Justice Zarnett’s recent decision at the Court of Appeal for Ontario in Becker v. Toronto (City)[1] takes me back to the old Celine Dion love song, Coulda Woulda Shoulda. While the context is different, the advice remains the same: in litigation, like in love, you can’t succeed on appeal saying “coulda, woulda, shoulda, but I didn’t do that.”[2]
In Becker v. Toronto (City), the City of Toronto defended a personal injury action under the Occupiers Liability Act, R.S.O. 1990, c. O.2, at trial on the basis that it had installed a type of safety glass required by the 1990 Ontario Building Code, O. Reg. 413/90, which was in force at the time of the accident. The trial judge found that the City had not done so and breached its duty of care. On appeal, the City argued that the trial judge erred by not considering whether the City met its duty by undertaking reasonable efforts to have the appropriate glass installed regardless of what glass was actually installed.
In accordance with the general rule that appellants may not raise a point on appeal that was not pleaded, or was not argued in the trial court, Zarnett J.A. roundly rejected this argument. He characterized the City’s position on appeal to be “that it should be entitled to the benefit of any defence the evidence and law could support, regardless of the theory it expressly articulated to the trial judge, and regardless of the way its submissions framed the questions the trial judge was to decide.”[3] Justice Zarnett explained:
Strong authority contradicts the City’s argument that a position is advanced, and remains on the table, so long as it was pleaded and not formally abandoned, without regard to how the case was put at trial. Although the authorities arise in the context of attempts to raise a new issue on appeal, in my view they apply even more forcefully to an attempt to argue that a trial judge failed to consider an issue that was not raised before her.[4]
Even if the alternative defence had been pleaded, it was not articulated or pursued at trial, and unfairness would have resulted to the plaintiff/respondent for the trial judge to have decided the case on that theory,[5] regardless of whether the City had expressly abandoned that position or theory.[6]
Becker is consistent with and builds on appellate jurisprudence which considers it unfair to allow an appellant to spring a new argument on the other side on appeal in circumstances where the respondent(s) may have led evidence at trial if they knew the matter was in issue.[7] Justice Zarnett goes further, holding that even if there is some evidence in the record that “coulda” supported a claim or defence, and trial counsel “shoulda” pursued the theory at trial (and perhaps “woulda” had they known the primary argument would fail), “it would be unfair to permit the [appellant] to resurrect an argument virtually abandoned at trial on which relevant evidence was not fully adduced”.[8]
Justice Zarnett reiterated the Court of Appeal’s earlier caution to would-be-appellants: “you cannot take advantage afterwards of what was open to you on the pleadings, and what was open to you upon the evidence, if you have deliberately elected to fight another question, and have fought it, and have been beaten upon it.”[9] Or, if you prefer Celine: “…don't you miss out on the way; don't find a reason to say; coulda woulda shoulda; but I didn't do that.”
Either way, the lesson is the same: strategic choices at trial whether to advance alternative arguments or not should be made carefully, for there is no second kick at the can on appeal.
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[1] Becker v. Toronto (City), 2020 ONCA 607.
[2] https://www.azlyrics.com/lyrics/celinedion/couldawouldashoulda.html
[3] Becker at para. 34.
[4] Becker at para. 36.
[5] Becker at paras. 35-38, citing Union Building Corporation of Canada v. Markham Woodmills Development Inc., 2018 ONCA 401 at paras. 13, 15 and Shaver Hospital for Chest Diseases v. Slesar (1979), 27 O.R. (3d) 383 (C.A.).
[6] Becker at para. 41, citing Cotic v. Gray, [1983] 2 S.C.R. 2.
[7] K.M. v. H.M., [1992] S.C.J. No. 85, 142 N.R. 321 at 367; R. v. Brown, [1993] 2 S.C.R. 918 at 923; Kaiman Estate v. Graham Estate (2009), 245 O.A.C. 130 (C.A.) at paras. 23-24.
[8] Becker at para. 37.
[9] Becker at para. 39, quoting Pedwell v. Pelham (Town) (2003), 174 O.A.C. 147 (C.A.) at para. 50.
