At a Trial involving a claim of wrongful dismissal, the main issue before the Court was whether the Plaintiff was dismissed, or had resigned from his employment with the Defendant companies. The Defendants also argued that the Plaintiff had repudiated the employment agreement. The Plaintiff objected to this argument because, although the Defendants pleaded that the Plaintiff had “abandoned his employment … entirely” in their Statements of Defence, they did not plead that the employment contract had been “repudiated”. Justice Pentelechuk noted that the concepts of abandonment and repudiation are distinct concepts in employment law.

Citing Rule 13.6, Pentelechuk J. noted that a cause of action itself need not be expressly pleaded in a Statement of Claim, as long as the facts giving rise to the cause of action are pleaded. On a “plain reading” of Rule 13.6(2), an alleged repudiation of the employment contract should have been pleaded as it was a matter which may defeat or raise a defence to the Claim.

Justice Pentelechuk held that, pursuant to Rule 13.6(3), a Pleading must include “any matter on which a party intends to rely that may take another party by surprise.” Although Rule 13.6(3) lists a number of circumstances in which an issue must be specifically pleaded, Her Ladyship noted that the list is not exhaustive. Since a claim of repudiation of the employment contract is not routine, and was unlikely to have been anticipated by the Plaintiff, it should have been included in the Statement of Defence. Justice Pentelechuk also noted that this finding was consistent with the principle that parties to an Action are entitled to know the case against them prior to Trial. Since the Defendants had not applied to amend their Statements of Defence to include the issue of repudiation, Justice Pentelechuk declined to consider it.