Is a plaintiff entitled to seek damages for failing to disclose the evidence supporting his claim for the first time at trial?
British Columbia, Canada
The following excerpt is from Kralik v. Mt. Seymour Resorts Ltd. et al, 2007 BCSC 258 (CanLII):
This head of damages was not pleaded. The plaintiff relies on Boe v. Hamilton, [1990] B.C.J. No. 330 (S.C.) for the proposition that he should be entitled to raise the issue on the basis that he was aware of the evidence supporting the claim for the first time at trial.
In Whiten v. Pilot Insurance Company, 2002 SCC 18 the court held that punitive damages need to be pleaded or at least amendments need to be made to the pleadings. However, the defendant did not object to the issue being raised, so rather than deal with the issue on the point of pleadings, I will address the substantive issue.
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