When a civil proceeding is already ongoing, sometimes you need to add, delete or substitute a party. This can be done by following specific Rules in the Rules of Civil Procedure. This lecture explains how a party can be added, deleted or substitute once the pleadings have been filed with the court.
This lecture is taught by Amer Mushtaq, LL.B., M. Engineering , B.Sc. (Hons.), who is the Principal and Founder of Formative LLP. Through his YouTube channel, YouCounsel, Amer shares practical advice from his years of legal experience to help anyone access justice and achieve their goals. Subscribe today to learn more.
Show Notes:
N/A
Lecture Slides:
Welcome to YouCounsel.
Sometimes when a proceeding is ongoing in a civil court in Ontario you may realize that you need to add, delete or substitute a party to the proceeding. If you need to do so, you have to follow specific Rules that are contained in the Rules of Civil Procedure. Today’s lecture will cover those rules and explain to you how you can add delete or substitute a part
This lecture is for educational purposes only. If you have any specific questions about your case you should contact a lawyer or a paralegal or the Law Society for Ontario for a referral to one of the legal experts.
We will specifically discuss Rules 26.02 and 26.03 with respect to the addition, deletion or substitution of parties you may notice by reading the rules that Rule 26 deals with all kinds of issues regarding the amendment of pleadings. Now Rules 26.02 and 26.03 apply number one to all parties – whether you are a plaintiff, defendant, 3rd party applicant or respondent. As long as you are a party to a proceeding you can follow these Rules to make the changes regarding the addition, deletion or substitution of parties. Secondly, these Rules apply in the same manner to all pleadings whether it’s a statement of claim, statement of defence, application, response to an application, 3rd party claims, cross claims – whatever the nature of the pleadings.
We will explain the application of these Rules by an example. Let’s say that you have issued a statement of claim against 2 defendants: number one ABC Inc. and number 2 CDE Inc. These are the 2 defendants named in your statement of claim. You want to add a party; delete a party or substitute a party—we will cover these topics one by one.
Adding a party: Lets say you realize that XYZ Inc. is also a company that should have been a defendant in your claim. You have discovered some new facts that explain to you that XYZ Inc. should be a proper party. Now you want to add a party. You have already issued your claim and you have all already named the 2 defendants and XYZ Inc. was not a party at that time. How do you go about adding XYZ Inc.?
There are 2 ways: number one you get a consent of all parties including the party that needs to be added (that means you get consent of ABC Inc, CDE Inc. and XYZ Inc.). You get that consent and with that consent you file the amended pleading with the court office. The 2nd option is you bring a motion. You obtain leave of the court. You bring the motion before a judge or a master depending upon your jurisdiction and then the master or judge will approve your pleadings. The motion needs to be served on all parties for you to be able to argue before a master or a judge. There are 2 ways to do that consent of all parties, including party to be added or obtain leave of the court by way of a motion.
If you want to substitute a party: For example you realize that CDE Inc. was not the right name of the party it should have been XYZ Inc. And so you want to substitute the party you want to remove CDE Inc. and substitute it with XYZ Inc. How do you go about doing that? Again there are 2 ways to do that: number one you get consent of all parties including the party to be substituted (in this case again it’s ABC Inc., CDE Inc and the party to be substituted as XYZ Inc.) You get consent of all parties. You file it with the court. Or you get the leave of the court like in the last scenario.
If you want to delete a party: You realize that CDE Inc., which was originally named in your claim should not be a defendant in this action and you want to remove that party—you want to delete that party—how do you go about doing that? You have 2 ways to do that: you get consent of all parties (ABC Inc. and CDE Inc). Or you bring a motion and obtain the leave of the court to do so.
There are 2 Rules that allow the court to amend your pleadings. 1st is Rule 5.04(2) which gives power to the court to add, delete or substitute a party at any stage in the proceedings. Once the proceedings are filed you can add, delete or substitute a party up to trial—at any stage in the proceedings—by following the Rule that we have just discussed. If you realize that a party needs to be added or deleted or substituted just before the trial you are allowed to bring this motion or obtain the consent of parties and go ahead and do that and the court has the power under Rule 5.04(2) to grant you that amendment.
Rule 37.02(3): This specific Rule gives power to the court’s registrar to add, delete or substitute a party when you have the necessary consent filed with the court. In this case when you have consent of all parties you don’t need to go in front of a master or a judge. You simply go to the window at the court office and you file your documents with them. The registrar will approve your amendment of the pleadings.
The thing that you want to keep in mind is that if you want to add, delete or substitute a party once the pleadings have been filed, then the only way to do that is by following the Rules that we have just discussed. Once the amendment is granted you have to serve on all parties the amended pleadings.
Hopefully this gives you a sense of how to add, delete or substitute a party if you come across this scenario in your specific action or application and you follow these rules and get your amendments done.
Thank-you for watching.
