Rule 12.01 - Amendments

O. Reg. 258/98: RULES OF THE SMALL CLAIMS COURT

12.01 (1) A plaintiff’s or defendant’s claim and a defence to a plaintiff’s or defendant’s claim may be amended by filing with the clerk a copy that is marked “Amended”, in which any additions are underlined and any other changes are identified. O. Reg. 258/98, r. 12.01 (1).

(2) The amended document shall be served by the party making the amendment on all parties, including any parties in default, in accordance with subrule 8.01 (14). O. Reg. 258/98, r. 12.01 (2); O. Reg. 78/06, s. 25 (1).

(3) Filing and service of the amended document shall take place at least 30 days before the originally scheduled trial date, unless,

(a) the court, on motion, allows a shorter notice period; or

(b) a clerk’s order permitting the amendment is obtained under subrule 11.2.01 (1). O. Reg. 393/09, s. 13.

(4) A person added as a party shall be served with the claim as amended, except that if the person is added as a party at trial, the court may dispense with service of the claim. O. Reg. 258/98, r. 12.01 (4).

Olumide v. Canada, 2016 FC 558 (CanLII)

[24] Amendments for pleadings should be allowed at any stage of an action for the “purpose of determining the real question in controversy between the parties” (Varco Canada Limited v Pason Systems Corp, 2009 FC 555, at para 25 (Varco Canada)). However, amendments will be denied, and pleadings will be struck, when it is plain and obvious that the underlying claim discloses no reasonable cause of action (Varco Canada, at para 26; Cardinal v R (1993), 72 FTR 309, 46 ACWS (3d) 377). In this case, the Applicant’s amendments just build on his theory of the case. They do not remedy the fact that he does not challenge the conduct of some “federal board, commission or other tribunal” so as to trigger his right to bring a judicial review application and the Court’s authority to entertain it.

St. Clair Tavern (Sarnia) Limited v Gresham III, 2015 CanLII 92202 (ON SCSM)

I would be remiss if I did not take this opportunity to thank counsel on both sides for their assistance and for the quality of their oral and written advocacy. They are both a credit to their profession.

The Court considers that it is proper to have recourse to the Rules of Civil Procedure pursuant to the authority in Rule 1.03(2) of the Rules of the Small Claims Court because the process or parameters for bringing a motion under Rule 12.01 of this Court are not covered adequately in that Rule.

Furthermore, the Court considers that an Order of this Court in this matter, having regard to the wording of Rule 26.01 of the Rules of Civil Procedure, the authorities cited by counsel, and the mandate in section 25 of the Courts of Justice Act should be “just and agreeable to good conscience” and in accordance with the authorities referred to in this decision.

The Motion under Rule 26.01 can be brought “at any stage of the action.” In the case at bar, although two trial dates had been scheduled but adjourned on consent, no trial was commenced and there is no current trial date scheduled.

Rule 26.01 is mandatory (King’s Gate). An amendment is to be permitted even in the face of unfairness and prejudice unless the prejudice cannot be compensated for in costs.

Regarding prejudice, there is no allegation that any witness will now be unavailable or that any relevant document has been lost or destroyed. There is no trial date that will necessarily have to be further adjourned. The possibility of the plaintiff having to obtain Independent Legal Advice is not the kind of prejudice contemplated by Rule 26.01 if it results from the inevitable result of a successful plea (Hanlan, at paragraph 2). Any prejudice relates to the wasted time that the plaintiff has spent in this action only to be faced with a new defence at this stage.

It is not for this Court, on a Motion such as this, to examine and decide upon the appropriateness of the allegation of negligence or breach of contract (Plante, at paragraph 21). Likewise, it is not for this Court, on a motion such as this, to make a determination as to whether a limitation period has expired or to make a finding on the issue of discoverability. That should be left for determination at trial, before the trier of fact, in the face of a full evidentiary Record, including materials from all previous judicial proceedings involving these parties, which materials are not now before this Court. There are material facts to be tried.

It is, on the contrary, for this Court on this Motion to determine if the amendment should be permitted and whether any prejudice can be compensated for in costs.

The Court considers that the amendments sought to be made are tenable and should be granted unless the claim is “clearly impossible of success” (Plante, at paragraph 21).

The Court concludes that the amendments sought to be made are, indeed, tenable, do not result in the prejudice contemplated by Rule 26.01 and are to be permitted even in the face of the perceived and speculative unfairness put forward by Mr. Brennan.

The proposed amendments should be permitted.

However, since there is no Discovery process in the Small Claims Court, the parties should have the benefit of another Settlement Conference once the Amended Defence is served and filed. Before the parties advance to trial on the amended pleading, they should all know the entire case of the other in order that all issues are known and so that any Order for production of documents or for any procedural matter or any other issue within the jurisdiction of this Court can be canvassed and made. That, among other things, is the purpose of the Settlement Conference provisions of the Rules of this Court.