Ontario Court of Appeal orders new trial when judge made decision based on an issue not raised by the opposing party

 

In this appeal, the Ontario Court of Appeal agreed with Paul Gemmink’s argument that the judge who had heard the trial had been wrong in dismissing the plaintiff’s action. The trial judge had raised an entirely new issue after all the evidence had gone in. He had dismissed the commercial landlord’s claim for outstanding rent against a tenant that had left the premises based on his finding that the landlord had improperly re-entered the premises after the tenant left by changing the locks. However, this had not been an issue that had been raised by the tenant.  As a result, there was no proper evidence on it and no argument had been made. The Court of Appeal agreed with Mr. Gemmink’s that immediate re-entry by a commercial landlord does not prejudice its ability to claim outstanding rent where the tenant had abandoned the premises. Since there had been no evidence at trial as to whether the tenant had abandoned the premises since improper re-entry was not an issue that had been raised by the tenant, a new trial was ordered on this issue.