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Amending Small Claims Court Pleadings: Requires Leave of the Court if Within Less Than Thirty (30) Days Prior to Trial
Question: How can you amend your pleading in Small Claims Court before the trial date?
Answer: You can amend your pleading documents up to thirty days before the originally scheduled trial date, ensuring greater flexibility in presenting your case, as stipulated in the Rules of the Small Claims Court and clarified in Hradecky v. Hydro One Networks Inc., [2014 CanLII 11543].
Understanding the Rule Permitting Pleading Amendments Up Until Thirty (30) Days Prior to the Originally Scheduled Trial Date
Unlike cases in the higher court, for cases proceeding within the Small Claims Court, pleading documents, meaning the Plaintiff's Claim or Defence, may be amended up until thirty (30) days prior to the originally scheduled Trial date. With this said, confusion and argument often arises including, among other issues, disputes regarding the meaning of originally scheduled. The likelihood of confusion and disputes may be reduced upon review of the applicable law.
The Law
The Rules of the Small Claims Court, O. Reg. 258/98, prescribe when a pleading may be amended. Specifically, the Rules of the Small Claims Court state:
12.01 (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).
The condition of "originally scheduled trial date" was explicitly referenced within the case of Hradecky v. Hydro One Networks Inc., 2014 CanLII 11543, where it was said:
32. Having carefully considered the matter, it appears to me that this situation should be dealt with in the same way that this court can deal with a claim for damages in excess of the monetary jurisdiction. Rather than simply dismissing the claim for want of jurisdiction, or alternatively transferring it to the Superior Court of Justice, the plaintiff should have an option to “amend down” to come within this court’s jurisdiction: see Lock v. Waterloo (Regional Municipality), [2011] O.J. No. 4989 (Sm. Cl. Ct.), at para. 4-11. However the plaintiff should put a proposed amended pleading before the court, before the court can determine whether leave to amend should be granted. Leave to amend is required under rule 12.01(3) since a trial date has previously been scheduled.
Conclusion
As stated in Rule 12.01(3), parties to a small claims court claim may freely amend a pleading document up until thirty (30) days prior to the originally scheduled trial date and as said in Hradecky, where a trial date was previously scheduled, leave (meaning permission) of the court is necessary. Accordingly, if the original Trial date was adjourned, leave will be required to amend a pleading.
