Civil and Commercial Trial Counsel

How To Amend a Pleading in Superior Court

At a recent trial, I brought a motion to amend the client’s pleading day 1 in the unique situation of needing to update a claim to strictly comply with an Ontario Court of Appeal decision.  Of course, the earlier you amend your pleading, the better.

It is best to amend asap for 3 reasons: costs, credibility and limitation periods.  First, a late amendment, for example after examinations for discovery, may necessitate further discovery and therefore more costs.  Second, a late amendment may be perceived as a response to favourable or unfavourable information bringing about cross-examination exposure at trial on the amendment.  Third, pleading new causes of action or adding parties may involve limitation period issues.

The good ol’ rules of civil procedure talk about amendments at rule 26, but the mechanics of an amendment follow largely unwritten procedure.  Here’s what you need to do:

  1. Underline all amendments (do not change the date on the pleading);
  2. If pleadings have not closed, you do not need consent or leave of the Court to amend a pleading;
  3. Seek the other side’s consent.  Click here for a sample consent in the context of amending a statement of claim – this form does not exist in the rules of civil produdure;
  4. If consent can’t be obtained, bring a motion, get an order and have it issued and entered (another process with many unwritten rules, described here);
  5. Take either an original consent or the issued and entered order to the Court with a few copies of the amended pleading to have it stamped by the Registrar.  Click here for a sample of the  Registrar’s stamp in the context of a consent amendment;
  6. Serve the stamped, amended pleading and file it together with your affidavit of service with the Court.

 

This article is courtesy of the Ontario Civil Trial Manual

Click here for the Ontario Civil Trial Manual

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