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.