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Amending Pleadings

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If you are an employee bringing a lawsuit against your former employer, or if you are a company that is a defendant in a lawsuit, then the facts and legal questions that the Court needs to determine will be defined by the pleadings. Pleadings include:

  1. a statement of claim, which is prepared by the plaintiff and issued by the Court to commence the lawsuit; and
  2. a statement of defence, which is prepared by the defendant to respond to the lawsuit.

Other types of pleadings are possible, including a Reply filed by the plaintiff in response to the statement of defence, but in most cases additional pleadings after a statement of defence are merely optional.

The pleadings are critical pieces to the lawsuit, as they define the facts and issues that will need to be proven. Moreover, throughout the discovery process, a fact or issue will be considered relevant if it relates to the issues as defined in the pleadings. For instance, the question of whether a specific document needs to be disclosed or not will be determined by reference to the pleadings themselves.

Given the importance of the pleadings, it is common that one or more parties to a lawsuit will need to make changes to their pleading as the issues come into focus and they become aware of new facts in their case. When the need arises, how do you go about amending your pleading?

Depending on the stage that the lawsuit is in, amending a pleading can go from very simple to very complicated. The simplest situation is in the early stages of a lawsuit, and before pleadings have closed. If the amendments do not necessitate the addition, deletion, or substitution of a party to the lawsuit, then the party seeking to make the amendments can simply file their amended pleading with the Court. They are not required to get any other party’s consent, nor are they required to get the Court’s permission to make the amendments.

If the lawsuit is in a later stage and the pleadings are closed, or if the amendments necessitate the addition, deletion or substitution of a party to the lawsuit, then the party seeking to make the amendments will either need every party to consent (including any person or company that will become a party to the lawsuit as a result of the amendments), or will need leave (i.e. permission) from the Court. Obtaining leave from the Court will involve bringing a motion, which any opposing party can respond to.

The complexity of the motion itself will also depend on various factors. In many cases, the Court’s approval of an amendment will essentially be automatic. The Rules of Civil Procedureprovide that 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 costs or an adjournment. That means that unless the opposing party can point to specific prejudice that will result from the amendments, the Court will always grant the proposed amendments. It is often difficult to point to actual prejudice as a result of an amendment, and the most common one is the expiry of a limitation period. That is why it is very common for opposing parties to simply consent to amendments rather than go through the process of a motion which will likely result in the amendments being granted.

There are two common ways in which proposed amendments will be denied by the Court. The first is if the amendments will result in a pleading that violates the Rules of Civil Procedure. The Ontario Court of Appeal has held that no amendments should be allowed which, if originally included in the pleadings, would have been struck by the Court for violating the Rules.

The second common way in which proposed amendments will be denied by the Court is where it can be established that the amendments will result in a new claim being asserted after the expiry of the limitation period. In these cases, the motion will be much more complex than in other cases, as the Court will need to examine the evidence and determine whether the limitation period has in fact expired. More information about limitation periods in employment law cases can be found here.

Accordingly, it is important to prepare well drafted pleadings at the onset of litigation, and if amendments are required, it is critical to make these amendments before the applicable limitation period has expired.

Whether you are an employee or an employer that is a party to litigation, we can help you determine the best steps to take and the appropriate way to protect your interests. If you have any questions about your situation or if you would like to get legal advice, please feel free to contact us.

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