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Amending a Pleading – Easier than you think?


“And that’s ok, they’re just afraid to change” – Shannon Hoon.

What happens after you start a lawsuit, and you realize that you did not sue all the parties you think responsible for your matter? Or what happens if you forgot to reference in the claim something that happened to you? The pleading is done and served, so everything must be set in stone, right? Maybe not. It may come as a surprise that this is not always the case; there is almost always a way to change what is on the page.

A recent decision of the Ontario Superior Court of Justice, Luh v. Di Pietro, 2022 ONSC 2719 [Di Pietro] reinforces the importance of a pleading and it demonstrates the permissibility of the aspects of the Rules of Civil Procedure (the “Rules”) which govern the process for amending a pleading.

The Pleadings

In a legal action, the pleadings are usually the most important documents for all parties concerned. They establish what the issues are, and these will govern the scope of evidence and proceedings throughout. What is included and omitted from a pleading can make or break a case. The pleadings in an action must give the opposing party sufficient notice and particulars of the case which they must meet to plead and advance defences.

A pleading which does not cross this relatively simple threshold may severely negatively impact a party’s ability to present their case or defence. For example, failing to reference a subject in a pleading can block a party from being able to ask questions about this in an examination for discovery, which may in turn hamper that party’s case irreparably. This can negatively impact your ability to prove your case, reduce the amount of damages at play, or can even strengthen your opponent’s position. 

As such, how to properly draft a pleading is one of the first lessons a new lawyer learns and is one which they can spend the next several years (or more) repeatedly learning.

With the high degree of importance that the legal system places on a pleading, it corresponds that there are several areas of the Rules which govern all aspects of a pleading’s lifecycle. This includes rules about what can and cannot be included in a pleading, the process for requesting a Court strike language from a pleading which one party deems objectionable, and, unsurprisingly, the process by which a pleading can be amended.

Amendments to The Pleadings

The holding in Di Pietro demonstrates just how much amendment the Court and the Rules permit.

In Di Pietro, the Defendant and Plaintiff by Counterclaim, Lancaster Custom Cabinets & Closets Inc. (“LCCC”) moved for leave to amend its Statement of Defence and Counterclaim. The amendments being sought included several significant changes, including pleading additional defences, quantifying damages being sought, and adding a further claim against a defendant. LCCC also moved to amend the pleadings to name six additional Defendants by Counterclaim.

After apparently refusing to consent to the amendment, the Plaintiffs and Defendants by Counterclaim opposed the motion, and moved to strike or sever the Counterclaim. The Plaintiffs and Defendants by Counterclaim’s opposition to LCCC’s motion was based on their assertion that the proposed revisions were legally untenable, without basis in fact, and that if the proposed amendments were granted, these would unduly delay the trial of the main action.

In granting LCCC’s motion and denying the Plaintiffs and Defendants by Counterclaim’s motion, Associate Justice McGraw provided a comprehensive overview of the rules surrounding pleadings and their amendment. The Court noted that the rules governing the amendment of a pleading were permissive in their wording, and indicated that under the Rules, a court is required to grant a motion to amend a pleading unless the responding party would incur a non-compensable prejudice as a result.

Associate Justice McGraw also noted thatto determine whether an amended pleading is legally tenable, the only question is whether the amendments disclose a cause of action and they are to be granted unless the claim is clearly impossible of success.

In reviewing the matter, Associate Justice McGraw noted most of the Plaintiffs and Defendants by Counterclaim’s objections to the amendments were regarding disputed issues which needed to be determined in a proper hearing – and not at the pleadings stage. The Court noted that “as such, the Plaintiffs cannot satisfy the high onus that the Defendants’ allegations are incapable of proof or impossible of success.” The Court also noted that the Plaintiffs and Defendants by Counterclaim had not shown that granting the proposed amendments would lead to prejudice – and that the prospect of a longer, more complex trial did not constitute prejudice.

Di Pietro stands for the proposition that the rules permit a dramatic and substantial amendment to a pleading where the amendment discloses a reasonable cause of action.

Key Takeaways

Counsel would be wise to grant a requested amendment, with the knowledge that refusal to do so may lead to a motion where the requested relief will be granted. All there is to be gained from refusing to do so is the potential to cause an unnecessary delay in the matter and for both sides to incur costs.

Whether you are an employer or employee, if you are dealing with a matter under litigation, we can work with you to facilitate and streamline the process.

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