What are the operative errors at trial as to remedy and as to evidence?
Alberta, Canada
The following excerpt is from Guarantee RV Centre Inc. v. Schmidt, 2007 ABCA 89 (CanLII):
So there were three operative errors at trial as to remedy and as to evidence, two of them impacting on large issues or amounts. The only remedy which we can see for these defects is a new trial. We cannot proceed now on an unpleaded issue. See Delgamuukw v. R. 1997 CanLII 302 (SCC), [1997] 3 S.C.R. 1010, 1063, 220 N.R. 161, 213 (paras. 76-77). If the pleadings are not amended, the remedy will be limited to damages and costs. If the new evidence is at all like the old evidence, it may well be that the new trial judge will find some breaches of express or statutory (implied) warranties. If the pleadings stand as they are, it is likely that judge will award significant damages.
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