In yesterday’s blog, I considered how to define the “closing of pleadings” in the context of applications. As an aside, I noted that the Rules of Civil Procedure allow a party to amend a pleading without leave of the Court until such time as pleadings have closed. The corollary that flows from yesterday’s blog is, of course, the question of what steps are to be taken by the parties and the Court when pleadings have closed and a party nonetheless moves to amend a pleading.
Rule 26.01 would seem to be the appropriate place to start, as it provides that the Court “shall grant leave to amend a pleading on such terms as are just”, unless such an amendment would result in prejudice that cannot be compensated by an award of costs or an adjournment. Although this Rule employs mandatory language suggesting that leave is to be granted except in discrete circumstances, the case law suggests the analysis is slightly more nuanced.
In Marks v Ottawa (City), the Court of Appeal considered an appeal of a lower court decision to deny the plaintiffs leave to effect certain amendments to a statement of claim while allowing others. The plaintiffs had brought a motion to amend a statement of claim with a view to amending existing claims and also introducing four new claims. The lower court granted only partial relief.
On appeal, the Court of Appeal noted that although Rule 26.01 provides that amendments are “presumptively approved” given the mandatory language of the Rule, the Court nonetheless retains a “residual right to deny amendments where appropriate.” The Court provided a list of factors that are to be considered on a motion for leave to amend.
Notably, and consistent with the language of Rule 26.01, the Court should allow pleadings to be amended unless such amendments “would cause an injustice not compensable in costs.” Moreover, the proposed amendment must be shown to be “an issue worth of trial and prima facie meritorious.” Conversely, an amendment should not be allowed if it would have been struck had it been included in the initial form of the pleading. Finally, the proposed amendment must contain “sufficient particulars.”
Although the first factor is intended to be broad in scope, the remaining three are interrelated and compel the Court to consider the merits and the particulars of additional claims being sought in deciding whether leave should be granted. Although the Court would effectively be performing a gatekeeping function in doing so, the Court is already empowered to perform a similar function with respect to claims raised in an original pleading. , for example, specifically empowers the Court to determine a discrete issue or question of law prior to a trial, or to strike a pleading entirely on the basis that it discloses no reasonable cause of action. Granting the Court the ability to perform a similar function with respect to claims to be raised in an amended pleading is merely an extension of its existing authority.
Thanks for reading.