June 23, 2026

By Nick Melchiorre 

Life is filled with agreements. And sometimes, they need to be amended.

We have written before about the virtues of putting important agreements (also called contracts) in writing. Once they are in writing, it follows that any amendments should also be in writing. Care must be taken to ensure that the amendments integrate well with the original agreement.

THE ISSUE

Sometimes, over the life of a contract, multiple amendments are necessary to keep it up to date. That compounds the difficulties of keeping the terms consistent and coherent.

This raises the question:

At what point should you stop adding more amendments and replace the series of agreements with a “fresh as amended” contact, consolidating the agreement on a current basis?

There is no “one size fits all” answer. It depends on your particular circumstances. A recent Ontario Court of Appeal decision illustrates the risks of continually piling on amendments, and the need to discuss with your lawyer the possibility of a fresh contract replacing the messy pile.

As this case shows, going to the trouble of agreeing on a consolidated agreement when the parties are getting along may be a lot cheaper and quicker in the long run.

THE CASE

Chayil Church v. Soneil Pickering Inc. involved a lease, but could apply equally to any contract, including domestic contracts such as separation agreements and parenting agreements.

In this case, the original 1992 lease had been amended thirteen times. The landlord was a subsequent purchaser from the original landlord. Shortly after their purchase in 2024 they gave notice to terminate the lease, despite the fact that it had four years left to run.

The landlord relied upon a 30-day notice period in a 1998 amendment to the lease. The tenant argued that it was superseded by a 2020 amendment which contained had a more tenant friendly termination clause. The 2020 amendment apparently did not expressly refer back to the 1998 amendment being superseded by the 2020 amendment.

That confusion created an expensive enough litigation which would have easily justified the cost of simply doing a fresh agreement rather than trying to make sense of thirteen amendments.

The issue before the courts was “ Did the later amendment impliedly supersede the earlier amendment?”

Unfortunately, for some unknown reason, the Superior Court application judge failed to address that argument and ruled for the landlord. So, the tenant had to go to the Court of Appeal to try to get a proper ruling.

While the appeal was pending, the tenant had to bring a motion to continue an injunction keeping them in possession of the property. That was contested.

The court allowed the tenant’s appeal but instead of finding for the tenant, sent it back to the Superior Court, because the Court of Appeal decided additional findings of fact are required, it being an application, they had the jurisdiction to make those findings and decide the case.

The court awarded $20,000.00 in partial indemnity costs of the appeal, which is usually about two-thirds of the actual costs. That was for the successful party. The landlord would have their own costs to pay.

This does not include the cost of the original application, or the upcoming second time at Superior Court.

There is the risk that if the landlord is unsuccessful at that hearing, they might decide to bring a second appeal, increasing the costs further.

TAKEAWAYS

• Consolidating the amendments and original agreement into a fresh as amended agreement while the original landlord and the tenant were on friendly terms would have been a lot cheaper and quicker in the long run;
• Dealing clearly with the question of survival of earlier provisions, especially if there are successive amendments is important to avoid inconsistencies which might lead to a ton of litigation costs and costly delay;
• Avoiding litigation also reduces any lost cashflow during that length of time;
• You might not get fully compensated for what you think you lose during the life of the litigation;
• Nothing will compensate you for the time, inconvenience, and stress of litigation;
• The legal costs involved in taking these steps which may keep you out of court would be modest compared to those direct and indirect costs of a lawsuit.

 

WHAT WEILERS LLP CAN DO TO HELP YOU

Weilers LLP has a corporate and commercial team that, in addition to being trusted advisors and deal makers, is equipped to document your rights and needs, including key contracts, at predictable and manageable costs to give you peace of mind. Our “progressive approach” is anything but cavalier when it comes to documenting our clients’ interests properly.

The same principle applies to our clients in all areas of law.

Whether you need:

• a fresh agreement drafted
• amendments to an existing agreement
• are curious about consolidating a series of agreements
• or simply wish to have an agreement reviewed

 

contact us to see if we are the right lawyers for you.