July 9, 2024

By Brian Babcock

We have written before about how success in a lawsuit usually depends upon good story telling. Good story telling begins with good pleadings- the documents that start the lawsuit, set out the defence, or a reply by the Plaintiff. Pleadings help tell your story.

THE ISSUE

But what happens if after pleadings are complete but before the case is decided, the story changes?

This happens quite often- lawsuits take time to resolve, and along the way, we often learn more about the facts that changes the story.

Fortunately, the Rules of Civil Procedure and Small Claims Court Rules both permit pleadings to be amended. In this article, we will focus on Superior Court pleadings under the Rules of Civil Procedure. The process in Small Claims is very straightforward and permissive.

In Superior Court, the right to amend your pleadings is also very broad.

Rule 26.01 states:

On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

Pleadings may be amended, with permission of the court, at any time- that means even during the trial, if, as often happens, there is evidence that does not match the pleading.

Leave or permission from the court is always required, but that is given pretty freely.

THE CASES

For example, the case of Zhang v Liu summarizes the test .

First, there is a residual right for the court to refuse the amendment where appropriate.

How do we tell when an amendment is allowed then?

According to a 2011 Ontario Court of Appeal case:

An amendment should be allowed unless it would cause an injustice not compensable in costs.

•       The proposed amendment must be shown to be an issue worthy of trial and prima faciemeritorious.
•       No amendment should be allowed which, if originally pleaded, would have been struck.
•       The proposed amendment must contain sufficient particulars.

 

A 2017 Court of Appeal decision goes into further detail, summarizing:

• The rule requires the court to grant leave to amend unless the responding party would suffer non-compensable prejudice; the amended pleadings are scandalous, frivolous, vexatious or an abuse of the court’s process; or the pleading discloses no reasonable cause of action.
• The amendment may be permitted at any stage of the action.
• There must be a causal connection between the non-compensable prejudice and the amendment. In other words, the prejudice must flow from the amendments and not from some other source.
• The non-compensable prejudice may be actual prejudice, i.e., evidence that the responding party has lost an opportunity in the litigation that cannot be compensated as a consequence of the amendment. Where such prejudice is alleged, specific details must be provided.
• Non-compensable prejudice does not include prejudice resulting from the potential success of the plea or the fact that the amended plea may increase the length or complexity of the trial.
• At some point, the delay in seeking an amendment will be so lengthy, and the justification so inadequate, that prejudice to the responding party will be presumed.
• The onus to prove actual prejudice lies with the responding party.
• The onus to rebut presumed prejudice lies with the moving party.

 

“Prejudice” means actual prejudice, not possible or imagined prejudice. Except delay may lead to prejudice being presumed – this is worth repeating.

So, as we have said before, do not sit on your rights. Move quickly.

The longer you delay, the more “costs thrown away” you may have to pay in case further examinations out of court are required or other preparation must be duplicated.

TAKEAWAYS

• It is still wise to try to get the story right in the first place.
• But the law recognizes that is not always possible.
• Amending pleadings may seem simple, but as with pleadings generally, a lawyer’s expertise comes in handy.

 

HOW WEILERS LLP CAN HELP YOU

At Weilers LLP, we look for lawyers who are good story tellers, and then look to hone that ability in our internal training and mentoring. We know the Rules, and how they are applied. We are skilled advocates.

If you need a lawyer who is a good storyteller- and anybody in litigation should- give us a call. We might be the right lawyers for you.