August 18, 2026
We have written several articles about the importance of pleadings – the formal documents which start or respond to a proceeding- covering:
- The core function of pleadings in defining the scope of the case
- What happens when you need to update or change facts, causes of action, or your requested remedies,
- and how amendments to pleadings impact proceedings, including
- The concept of “prejudice” against the opposing side, and
- How delays can increase cost.
THE ISSUE
Precise pleadings matter in the event of future lawsuits over similar or related disputes.
THE CASE
In Cusnir v Taylor, the Ontario Court of Appeal addresses this issue. The Plaintiff, who was not a registered real estate agent, had claimed against several realtors, and an insurer, for real estate commissions that she claimed that she was owed for her role in several real estate transactions.
Her lack of proper registration was a clear issue.
However, the defendants wanted to stop the lawsuit in its tracks before they even had to deal with that issue. The real estate defendants brought a motion in Superior Court alleging that the action was an abuse of process, because, they said, the issues were the same as those decided in an earlier small claims court action.
The insurer went along, basing their motion on the absence of any stated cause of action against it. The motion judge disposed of that aspect easily, and the Court of Appeal agreed. A statement of claim must contain a concise statement of the material facts that support the claim, and as against the insurer, Ms. Cusnir simply failed to do this. That part of her claim was dismissed. She was ordered to pay the insurer $5,000.00 for their costs of the appeal.
The motions judge decided that the entire action against the real estate defendants was just an effort to attempt again to sue for the same things that Ms. Cusnir sued for in small claims court. They dismissed it without leave to amend. The claim seemed to be dead in the water.
The Court of Appeal agreed about the claims related to most of the sales. The small claims court deputy judge had taken care to be very clear in his decision that he was NOT deciding about whether commission was owing arising from one sale of a certain commercial property.
The action was allowed to go forward regarding that sale.
The Court of Appeal reduced the amount of costs Ms. Cusnir had been ordered to pay the real estate defendants for the Superior Court motion to $3,750.00. it is safe to assume that she also had to pay the insurer for their costs of that motion.
The real estate defendants are exposed to the cost, inconvenience and expense of defending the claim. Even if they are successful, they will not be fully compensated for these realities.
In addition, the Court of Appeal ordered them to pay Ms. Cusner costs of the appeal.
TAKEAWAYS
- Pleadings in small claims court are more relaxed and informal than in Superior Court, to reflect the reality of unrepresented individuals drafting their own pleadings.
- The deputy judge in small claims court did an exceptional fine job of precision about what he was and was not deciding.
- If he had not done that, Ms. Cusner might have lost her appeal.
- If you are heading to small claims court, consider having a lawyer help you draft your claim, to avoid confusion about just what it is that you are suing for, and why.
- At the end of the small claims matter, make sure that the judges decision is clear and precise, as it was in this case.
- She DID lose her appeal against the insurer, because of the weakness of her Superior Court pleadings (though it is doubtful that she had any valid claim there anyway).
- Because the motion judge’s decision is not published, it is not clear whether Ms. Cusner was ordered to pay costs to the insurer. But she probably did.
- She clearly was at the Court of Appeal.
- She also was out the time she spent, and the inconvenience and stress, and the $3,750.00, because she pursued a claim that, except for one part, was doomed
- Having a lawyer help her draft the claim might have avoided this mess by:
- Giving her good advice about the likelihood of success;
- Dropping the issues that duplicated the small claims action;
- Precise drafting which might have resulted in more claims being allowed to proceed; and
- Saved her time, trouble, inconvenience and expense.
WHAT WEILERS LLP CAN DO FOR YOU
Our litigation team knows the Rules of Civil Procedure. More importantly we know:
- The importance of pleadings;
- How to draft pleadings;
- When and how to amend pleadings;
- 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
- 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 increase your chances of success, while saving you time, inconvenience, and stress, Weilers LLP might be the right lawyers for you. Give us a call and find out.