September 3, 2024
An earlier article explains why pleadings are important.
What happens if you need to update or fix something in your pleading?
In Ontario, the Rules of Civil Procedure provide rights to amend pleadings. The provision is very forgiving, stating that:
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.
What does “prejudice” mean?
That term can cover anything from a loss of evidence or unavailability of a witness needed for the amended pleading. It is stretched to include not allowing amendments which are too late because of a limitation period.
So, it is still important to get the claim right the first time, at least by naming all the necessary parties and causes of action.
If you misname a party, the Rules allow a change of the name of the party. Where the error is harmless, it does not trigger limitation concerns. However, expect an argument. Best to get it right in the first place. This is a reason to not leave it until the last minute to sue. Time to check names, especially of corporations or unincorporated businesses is preferable.
The other limitation argument is typically over whether the amendments add a new cause of action.
A cause of action is sometimes simply described as a claim. Limitations apply to each claim individually. Therefore, a new claim cannot be added after the limitation expires. So, it is important to include all possible claims in the Statement of Claim to begin with. Since more time leads to more time to think and review, not rushing at the last minute also helps this problem.
If you wonder more what makes a cause of action distinct from another cause of action, consider that a cause of action:
- refers to the specific legal grounds or factual basis upon which a plaintiff sues a defendant.
- is the legal theory under which a plaintiff brings a lawsuit and must demonstrate sufficient facts to support a claim that entitles them to a remedy under the law.
- typically consists of elements that must be proven to succeed in the lawsuit, such as harm or injury caused by the defendant’s actions or failure to act according to legal obligations.
- each cause of action corresponds to a particular area of law, such as contract disputes, negligence, defamation, or breach of fiduciary duty.
So, you need to know who to sue, what you are suing them for, why you are suing them, and under what area of law. This applies to amendments as well as Statements of Claim (or Notices of Application). Phrasing it correctly is a challenge for non-lawyers.
Unlike the Small Claims Court Rules, the Rules of Civil Procedure do not forgive vague pleadings that only roughly explain what the lawsuit is all about. That is why self-representation is more successful in Small Claims Court than in Superior Court.
Self-representation is very risky in Superior Court. If you intend to self-represent, getting a lawyer to help with pleadings is a good investment of money. It is more important when fixing them through amendments, especially if the motion to amend is opposed.
WHAT WEILERS LLP CAN DO FOR YOU
Our litigation team knows the Rules of Civil Procedure, but more importantly we:
- Know the importance of pleadings;
- Know how to draft pleadings;
- Know when and how to amend pleadings;
- Know when to tell you that we just, despite best efforts, cannot prove that you occupy the moral high ground, and how that should influence your strategy; and
- Know the judges and most lawyers in Thunder Bay and Northwestern Ontario, so we can better advise you on the human element of strategy.
If you need lawyers who can help you capture the moral high ground (and who doesn’t?) Weilers LLP might be the right lawyers for you. Give us a call and find out.