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While it is possible to amend a pleading at trial, the earlier you amend your pleading, the better. This article touches upon how to amend a statement of claim / how to amend a statement of defence.
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 Rules of Civil Procedure deal with amendments at rule 26, but the mechanics of an amendment follow largely unwritten procedure. Here’s what you need to do:
- Underline all amendments (do not change the date on the pleading);
- If pleadings have not closed, you do not need consent or leave of the Court to amend a pleading. This is based on rule 26.02(a). If you are amending on this basis, it may be worthwhile to send a Form 4E requisition in with your request to amend to identify for the Registrar the rule upon which the amendment is based;
- If pleadings are closed, seek the other side’s consent. Click here to purchase a sample consent to amend a statement of claim or consent to amend a statement of defence – these consent forms does not exist in the rules of civil procedure Court forms available on the government’s website;
- 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);
- 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;
- Serve the stamped, amended pleading and file it together with your affidavit of service with the Court.
For more information on pleadings, you can check out our blog posts on drafting pleadings:
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