If you don’t plead it, you can’t appeal it: Ontario Court of Appeal confirms you can’t raise new theory of defence on environmental contamination appeal

On July 25, 2022, the Ontario Court of Appeal (the Court) released its decision in Sorbam Investments Ltd. v. Litwack, 2022 ONCA 551, a case involving the contamination of land where the defendant had personal knowledge of and allowed the migration of contaminants to continue. For succinct reasons, the Court dismissed the defendant landowner’s appeal on the basis that the appellant had advanced a new theory of defence on appeal which it had neither pleaded below nor led evidence at trial to support.

Read more about The Court’s decision here