Weilers LLP

Taking Trial Dates Seriously

Taking Trial Dates Seriously

May 19, 2023

By Brian Babcock

Getting your pleadings right in a timely fashion is an important, if often neglected, part of managing your lawsuit. If you do not, you may lose your trial date or have your amendment rejected.


The Court of Appeal has provided us with a fresh example in a case where the plaintiff, on the eve of trial, attempted to add a claim of substantial punitive damages to their statement of claim, including adding factual allegations to support the new claim.


What makes Horani v. Manulife Financial Corporation interesting is that it goes against the conventional view that amendments are always routine, because the rule governing amendments to pleadings is very liberal. This case makes it clear that in some situations, having proper pleadings from the beginning, or at least at an early stage of the proceeding, is essential.

Instead of making the claim in a timely fashion, the plaintiff and his lawyers waited until just before a scheduled 32-day trial to bring the motion for an amendment.

Although the rule on amendments generally is quite liberal (it states that the court shall grant leave to amend a pleading unless it would result in prejudice), once an action is set down for trial, no motions, including a motion to amend, can be brought without special leave of the court.

Horani arose from a slip and fall injury in the defendant’s office. Mr. Horani must have been seriously injured because after the claim was started his wife was named as litigation guardian for him, a step only taken where he plaintiff is incapable of making decisions about their own lawsuit.

The injury occurred in 2014. The statement of claim was issued in 2015. The amendment to name Mr. Horani’s wife as his litigation guardian was done in early 2017. Neither the original nor the amended statement of claim included a claim for punitive damages.

It is not very common in injury claims for the plaintiff to include a claim for punitive damages from the beginning of the lawsuit. If there is no serious misconduct by the defendant, there is no claim for punitive damages. In that case, it may be left out of the pleadings. Fault for personal injury seldom involves the sort of malicious, callous, or high-handed conduct that is required to make a successful claim for punitive damages.

The lesson here is to not delay in seeking the amendment once further facts become known through investigation, documentary discovery, or at oral examination for discovery of the defendant.

Judges are familiar with delayed knowledge of facts, and will typically apply the presumption in favour of amending. The longer you wait, the harder it becomes. Trying to do so after setting down for trial is risky at best.

We do not know the full facts of this case but the requested amendments to the facts alleged in the statement of claim suggest that the defendant manufactured false or inaccurate evidence and took a hostile approach in investigating the claim. If that information had been known earlier, it typically would lead to a claim for punitive damages, whether it would succeed at trial or not.

There is no Court of Appeal case which has considered what the test is for that leave. Superior Court judges hearing motions have expressed the test in different ways. Ultimately, in this case the Court of Appeal did not sort out that confusion. It was unnecessary to do so because the court agreed that the motions judge had correctly determined that the loss of the lengthy trial date and the resulting delay would be non-compensable prejudice to the defendant.

The plaintiff had not offered any explanation why there was so much delay in bringing the motion or as to what might have changed since the action was set down for trial that made the plaintiff suddenly realize that there was a claim for punitive damages. Generally, if the punitive damage claim is not in the original statement of claim because of a lack of facts, it would be added shortly after the examinations for discovery by which time the main facts are usually known to all of the parties, including the disputed facts.

The proposed claim for punitive damages was for $2 million, an unusually high amount compared to common awards. Because it relied on new facts, further examinations for discovery would likely be necessary, which would necessitate the postponement of the trial. The motions judge also believed, and the Court of Appeal agreed, that if the defendant had been facing the large punitive damage claim earlier in the case, they may have made different tactical decisions in responding to the claim.

This is in contrast to a second request made in the same motion to increase the amount claimed for damages for the disability itself. That amendment was allowed because it relied upon the same evidence, the same allegations of fact, and would not delay the trial.

The slow pace at which lawsuits proceed to trial is a major concern for the entire justice system. This is particularly true in places like Toronto, where this case arose. Although delay is less of a problem in Thunder Bay and Northwestern Ontario, the scheduling of trial time is still an important factor in how judges react to delay. The courts are always busy. If a judge suddenly has no case to hear, it may be impossible to schedule another case on short notice. That background factor no doubt influenced the courts’ thinking in this case.


The court wished to send a message and did so. In fact they sent several messages:

  • Amendments to pleadings must happen in a timely fashion;
  • Setting an action down for trial, and the ban on motions afterwards, is to be taken seriously;
  • The test for leave to amend after setting down for trial is still uncertain; and
  • The courts are also serious about getting actions set down for trial in a more timely fashion, and avoiding delay and inefficiency.

Of course, getting the pleading right in the first place avoids these problems. We cannot always predict how the shape of the case will change overtime, but a careful lawyer thinks ahead.

In addition to the problems seen in Horani, there are also limitations problems that may arise if the cause of action is not properly set out in a timely manner.


Drafting a statement of claim is an art which requires skill. It is not simply a matter of taking a precedent either from a form book or prior case. Careful lawyers like the litigation team at Weilers LLP customize the claim to include every potential cause of action and relief that may arise from the background facts.

Sometimes an amendment is still necessary but the litigation team at Weilers LLP is well schooled in the Rules of Civil Procedure. We bring motions in a timely fashion with good material and have an excellent track record of success.

If you are looking for a careful and knowledgeable litigation lawyer or team, feel free to contact us to see if Weilers LLP are the right lawyers for you.