Amendment of Pleadings in Ontario – Rule 26

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Parties are often focused so much on the merits of their case and the damages claimed that they ignore the potential costs award in their case. But most lawyer know that in many cases, costs drive the litigation and have a significant role to play in the outcome of a case. This lecture explains the rules relating costs and how to benefit from these rules in your civil proceeding.

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:


Lecture Slides:

Welcome everyone this is Amer Mushtaq from YouCounsel.

Today we’ll talk about Amendment of Pleadings which is covered under Rule 26 of the Rules of Civil Procedure in Ontario.  We begin with our usual disclaimer that this course is not legal advice if you have any specific questions regarding your issues you should contact a lawyer or a paralegal or contact the Law Society of Ontario for a referral.

What is meant by amendment of pleadings?  The basic principle you want to keep in mind is that you can only get from a court what you have asked for in the pleadings.  What does that mean? If you have asked for damages of $100,000 in your pleadings and at trial you are hoping that because your case was so good the judge will award you $250,000, that’s not going to happen because you have only asked for $100,000. 

Even if the judge believes that you could have gotten more damages or you should have been entitled to more damages but because you have not asked for it you will not get it.  That’s the basic thing so you have to consider pleadings and what you’re asking to be contained in the pleadings (within the four corners of those pleadings).

Similarly, let’s say that you want the court to award you damages for mental pain and suffering but if you do not ask for damages for mental pain and suffering—if you do not plead that tort of mental pain and suffering, you will not get damages for that.  If you do not ask for punitive damages, you will not get punitive damages.

The basic thing that you want to understand is that the court will only grant you something that is contained in your pleadings and if it’s not in the pleadings you will not get it.  If you understand that, then you realize that your pleadings are very important, whether it’s a statement of claim or statement of defence—the documents are important.  And what you are asking the court to do? Either to accept certain facts as true or to provide you certain remedies—you have to ask for it. 

Just a quick reminder for those people who do not realize what pleadings are.  Pleadings are statement of claim, statement of defense, reply, third party claim, cross claim, etc.  Those are the basic documents in which parties lay out their position for the court in terms of claim, in terms of defences and in terms of claiming any remedies from other third parties.

Why you may need to amend pleadings?  There could be multiple reasons why you may need to amend pleadings and I’ll give you some examples.  (1) You may need to add delete or substitute parties.  You started a court action and then you realize at some point that there are additional parties that you want to add as defendants in your court action.  Then you have to amend your pleadings to add those parties or that party into the court action. 

Or, you may have misspelled the party’s name and when you have to correct that spelling mistake then that will be considered a substitution of parties.  You will have to amend your pleadings to actually correct the spelling of that party’s name. 

Similarly, you may realize that you no longer need a party or you don’t think that the party that you have named as a defendant should not have been a party and you want to delete that party’s name—you will have to amend the pleadings to get that. 

Similarly, you may have made mistakes in your pleadings, you may be looking for damages for $250,000 and you may have inadvertently put $25,000.  If there’s a mistake and you want to correct it you, will have to amend the pleading to fix that.  

You may realize that there are new facts that are relevant to your case, that you have not pleaded previously and you want to add those facts into your pleadings—you may need to amend the pleadings. 

Similarly, you may have causes of action (cause of action is the legal basis of something that you’re asking the court to do)—for example, as I said tort of mental pain and suffering could be a cause of action that you have not pleaded or you may have pleaded negligent misrepresentation but you want to add fraudulent misrepresentation into the cause of action that you are asking the court to grant you so you may need to change, add or delete causes of action. 

All of these circumstances are ones in which you will have to amend the pleadings.  Then again, you may want to change the amount of damages you are claiming—you may add damages or reduce damages or delete damages—you will have to amend your pleadings to do that.

Where does the right to amend a pleading come from? This is contained in Rule 26.01.  The most important part of the Rule that you want to understand is the language that is used in this Rule “the Court Shall grant amendment unless…”  Let me take you to the Rules.  We will quickly read it:  Rule 26.01 says:

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 cost or an adjournment.”

The important part is that the Rules require the judge to grant to you the opportunity (to grant you the permission) to amend your pleadings at any stage—it could be right at the time of trial or it could be just before you commence the trial and you want to amend your pleadings and the court shall grant it to you.  

The exceptions are that granting you that amendment, at that time, is going to prejudice other parties in such a way that prejudice cannot be compensated by cost because the court can award costs against you for bringing these amendments in a delayed fashion or the court could grant an adjournment.  If you ask for an amendment at the eve of trial the court may believe that you may be granted that amendment but it will be unfair to the parties to respond to that the next day at trial the court may grant adjournment.  If the court can compensate your delay by awarding cost or by granting adjournments then the court shall grant it. 

Generally, the basic principle of amending the pleadings is that the court is required to grant you to make your amendments because the court wants each party to present their case in the way they want to present it—to set out the causes of action; to set out the facts as they deem appropriate even if they are coming with those amendments later in the court process.  

But you want to remember that the basic Rules of the pleading still apply.  What that means is just because you are including something as part of the amendment does not mean that you can do anything with those pleadings.  For example, if you’re what you’re asking the court to amend is frivolous or vexatious; the court may not allow it.  The Rules are the same—that what cannot be included in the original statement of claim will not be allowed to be included later just because you are doing it by way of an amendment. 

Similarly, if your limitation period is expired, then the court may not grant you the amendments because the time to add a party, for example, has expired (the limitation period is expired).  That party may have a valid defence to say that such amendment may not be granted because the limitation period is expired.  The important point I want you to remember is that the basic rules of pleading still apply to any amendments that you are seeking.  

Now, how do you amend a pleading? Rule 26.03 covers that.  I’ll give you three scenarios in which the amendments are possible.

(1)  first scenario is without the leave or consent of the court.  You can just go ahead and have the amendment done and file it with the court.  That’s the first scenario. The easiest one

(2) The second is on consent of all parties.  

And (3) then third is with leave of the court.  Let’s go through each scenario one by one.

(1)  Without leave or consent: there are two conditions that you need to meet in order to amend your pleadings without consent or without leave of the court.  The first condition is (a) that the pleadings are not closed.  And what is meant by pleadings being closed?  (i) I’ve covered it in another lecture but Rule 25.05 is the one that describes when pleadings are closed.  

There’s a specific meaning of these words pleadings being closed.  Pleadings are closed when either you have or a party has delivered their reply—meaning they have served it and filed it with the court or the time for the delivery of reply has expired.  That’s number one and (ii) number two every defendant who is in default, has been noted in default. 

Once these events have occurred—either the reply is delivered, and every defendant who is noted in default is noted in default, then the pleadings are considered closed.  As long as the pleadings are not closed you can go ahead and amend your pleadings.  You do not require anyone’s permission prior to the close of pleadings.  You can simply amend your pleadings—go to the court office and have the Registrar issue you the amendment. 

(b) The second condition is that the amendment you are seeking prior to the close of pleadings does not include addition, deletion or substitution of parties.  If it’s an amendment that does not include addition, deletion or substitution of parties and pleadings are not closed you can go ahead and amend those pleadings without permission of anyone.

(2) On consent: this is pretty straightforward.  You need to obtain consent of all parties if you want to amend your pleadings.  If the pleadings are closed, at any stage during the court action, you can write to the other parties and say that I wish to amend my pleadings in this form.  You provide them with your draft amended pleadings and obtain consent of all parties.  Once they provide you the consent, you file that consent with the court along with your amended pleading.  The Registrar will amend your pleadings. 

Obviously, if you do not get the consent of parties there may be a situation where a party may not grant you their consent, then, you’ll have to bring a motion and seek a court order to amend your pleadings.  Now, remember, that when we’re talking about the consent of parties we’re talking about consent of all parties.  If you are adding, deleting or substituting parties, then you need the consent of those parties that you want to add.  If there’s a party that you’re going to add, which is not presently a defendant or a party in any way and you want to add that party as a party in that court action then you need (you require) their consent as well.  (3) And third is leave of court: Obviously, you can bring a motion under Rule 37 and you ask the court to grant you the amendment that you want.

How do you actually make the amendment on the document? It is in a specific way.  The Rules are very specific in how you make those amendments.  I’m going to go through that very quickly with you.  I’ll actually show you a quick example of one of the amended pleadings that I have. 

(1) First of all you have to add the word “amended” to the title of the pleadings.  (2) You have to keep the original issuance date(3) Then there is another option which is called “fresh as amended” which I will show you.  Let me see if I can show you a pleading. This is an example of a pleading.  I have taken away the court file numbers and parties name but you can see here that originally it was a statement of claim and I had amended it.  I have added amended and I’ve underlined it—which shows that I’m seeking the amendment of this claim.  Then whatever the original issuance date was—in this case it was February 10th 2016.  You keep that—you do not change the date to the current date.  You keep the original date as it is because when the registrar will amend it, the Registrar will put a stamp here and then put an issuance date here which will be the date of the amended statement of claim.  But you do not change this date.  

If you scroll down, you see that I’ve added this paragraph that my client is seeking short-term disability benefits for a certain amount and this was not previously claimed.  We have added a sub-paragraph here and that paragraph is underlined.  Every single amendment you make needs to be underlined.  That’s the important part that you want to keep in mind. 

Then similarly, if you scroll all the way down you will notice that the back page also takes the word amended and you provide that.  If you have multiple amendments—you made this amendment and then later on you realize that you need to amend it further.  Then what you have to do is you add another word amended here and then you put another underline—so two underlines will indicate that there have been two amendments to the document.  One underline indicates one amendment.  If I have to amend it again I will add another word here saying amended—so that indicates that it has been amended twice and underline it and so on and so forth.

What you want to keep in mind is that when you are drafting pleadings originally, not the amended ones, you do not want to use underlining at any stage in the pleading.  You will see that none of the headings are underlined because the underlining in Rules is specifically used to show amendments. If you underlined in the original pleadings—that becomes confusing when you are actually amending the pleading, for any reason.  Ideally when you’re drafting these pleadings you do not want to use underlining in your pleadings.

“Fresh As Amended” is another term that you can use. Essentially what it is—if your changes or amendments are so cumbersome that it will be difficult or inconvenient to read that document, then what you can do is you create a fresh document with all the changes that you want.  You do not underline anything except that you change the title to “Fresh As Amended”.  The rest of the pleading will be the same without any underlining because it’s a fresh document.  Over here you will create the wording “Fresh As Amended”.  That will indicate to the reader that this is a fresh statement of claim which has been amended and it has been amended without the underlining because by reading through those under linings it would have been cumbersome and difficult to read.  As I said, (a) for multiple amendments you’ll have to add additional lines for each occasion and (b) then do not underline the contents of the pleading unless you’re making amendments. 

Issuance and service of amended pleadings:  You take the amended pleadings to the court, the Registrar will issue the amended pleadings and put an issuance stamp on it.  Then you must serve the amend pleadings on each party.  You follow the Rules of Procedure about service and also about if you were served with amended pleadings then what do you need to do with respect to any filing of any response or delivery of any response.

In conclusion, you need to carefully consider whether you required the amendment or not.  Sometimes its strategic, sometimes it’s essential.  You want to consider the appropriate time for amendment.  Do you need to wait till trial? Do you need to wait till the end of examinations for discovery?—which may be an opportunity to revisit your case and see whether the amendments are appropriate or not.  You want to make sure that you follow the applicable Rules and once you have amended your pleadings you do it properly—go to the Registrar have it issued and serve it on parties.

Hopefully that explains to you how pleadings are amended under the Rules of Civil Procedure in Ontario.  Thank-you for watching.

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