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Amending Small Claims Court Pleadings: Requires Proper Marking of Changes as Well as Obeying Timing Rules
Question: How should changes be marked when amending a pleading in Small Claims Court?
Answer: When amending a pleading in Small Claims Court, the document must be marked “Amended” with any additions underlined and deletions struck through. Following the Rules of the Small Claims Court, O. Reg. 258/98 and the Rules of Civil Procedure, R.R.O. 1990, Regulation 194 ensures that the amendment is properly formatted. For assistance with these procedures, Caruso Legal Services Paralegal offers guidance to help you navigate the legal process smoothly.
Marking of Changes When Amending a Pleading
During the course of a lawsuit within the Small Claims Court, a party to the proceeding, being either a Plaintiff or a Defendant, may wish or need to amend a pleading document. There are many reasons for making an amendment such as to state newly discovered facts as allegations, to add an additional party, or to provide notice of alternate legal arguments, among other reasons.
The Law
The primary Rules regarding the amending of a Plaintiff's Claim or a Defence within the course of a Small Claims Court lawsuit are found within the Rules of the Small Claims Court, O. Reg. 258/98, and whereas these Rules are without detail about the formatting in which an amendment should be made, reference to the Rules of Civil Procedure, R.R.O. 1990, Regulation 194, also becomes necessary. With respect to amendments, these sets of Rules state:
Right to Amend
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.
Service
(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).
Time
(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).
Service on Added Party
(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.
No Amendment Required in Response
(5) A party who is served with an amended document is not required to amend the party’s defence or claim.
How Amendments Made
26.03 (1) An amendment to a pleading shall be made on the face of the copy filed in the court office, except that where the amendment is so extensive as to make the amended pleading difficult or inconvenient to read the party shall file a fresh copy of the original pleading as amended, bearing the date of the original pleading and the title of the pleading preceded by the word “amended”.
(2) An amendment to a pleading shall be underlined so as to distinguish the amended wording from the original, and the registrar shall note on the amended pleading the date on which, and the authority by which, the amendment was made.
(3) Where a pleading has been amended more than once each subsequent amendment shall be underlined with an additional line for each occasion.
As per the Rules regarding amendments, any amendments to the pleadings, meaning the changes, should be properly marked by using underlines to show all additions and by using striking to show all deletions. Here are examples for how this should appear:
Original
Pleading
- On July 1st, 2023, John Smith was driving a really cool 2023 Ferrari.
- John Smith was driving along highway 401 in Toronto.
- John Smith was driving very fast.
- John Smith changed lanes a bunch of times.
- During the final lane change, John Smith struck Sally Brown.
Amended
Pleading
- On July 1st, 2023, John Smith was driving a
really cool2023 Ferrari F430 Spider. - John Smith was driving along highway 401 in Toronto.
- John Smith was driving
very fastat approximately 120 kilometers per hour. - John Smith changed lanes
a bunch of timessix (6) times within the stretch of highway between Yonge Street and Avenue Road. - During the final lane change, John Smith
struckcollided with the automobile driven by Sally Brown.
Note: Whereas in legal documents underlining is reserved for the purpose of showing amendments from a previous version of a document, using underlining for other purposes is improper. Use underlining only for marking an amendment.
As per Rule 12.01(3), an amended pleading must be served upon applicable parties and filed with the court at least thirty (30) days prior to the originally scheduled Trial date. Note that the Rule includes the words, "originally scheduled" and thus, regardless of whether a Trial was adjourned, it is the "originally scheduled" date to which the Rule applies.
To amend a pleading less than thirty (30) days prior to the originally scheduled Trial date requires court permission or leave in legal speak. When a court reviews whether to allow the amending of a pleading, The Estate of Alice Mae Mundell v. Sienna Senior Living Inc., 2022 ONSC 4745, among other cases, provides guidance on when the court should allow the amendment whereas it is said:
[10] Amendments should be presumptively approved unless they would result in prejudice that cannot be compensated by costs or an adjournment; they are shown to be scandalous, frivolous, vexatious or an abuse of the court's process; or they disclose no reasonable cause of action (Andersen Consulting v. Canada (Attorney General), 2001 CanLII 8587 (ON CA), 2001 CarswellOnt 3139 (C.A.) at para. 37; Schembri v. Way, 2012 ONCA 620 at paras. 25 and 44).
[11] The Court of Appeal summarized the law on leave to amend motions in 1588444 Ontario Ltd. v. State Farm Fire and Casualty Co., 2017 ONCA 42:
[25] The law regarding leave to amend motions is well developed and the general principles may be summarized as follows:
The rule requires the court to grant leave to amend unless the responding party would suffer non-compensable prejudice; the amended pleadings are scandalous, frivolous, vexatious or an abuse of the court's process; or the pleading discloses no reasonable cause of action: Iroquois Falls Power Corp. v. Jacob Canada Inc., [2009] O.J. No. 2642, 2009 ONCA 517, 75 C.C.L.I. (4th) 1, at paras. 15-16, leave to appeal to S.C.C. refused [2009] S.C.C.A. No. 367, 2010 CarswellOnt 425; and Andersen Consulting Ltd. v. Canada (Attorney General), 2001 CanLII 8587 (ON CA), [2001] O.J. No. 3576, 150 O.A.C. 177 (C.A.), at para. 37. [page688]
The amendment may be permitted at any stage of the action: Whiten v. Pilot Insurance Co. (1996), 1996 CanLII 8109 (ON SC), 27 O.R. (3d) 479, [1996] O.J. No. 227 (Gen. Div.), revd (1999), 1999 CanLII 3051 (ON CA), 42 O.R. (3d) 641, [1999] O.J. No. 237 (C.A.), revd [2002] 1 S.C.R. 595, [2002] S.C.J. No. 19, 2002 SCC 18.
There must be a causal connection between the non-compensable prejudice and the amendment. In other words, the prejudice must flow from the amendments and not from some other source: Iroquois, at paras. 20-21; and Mazzuca v. Silvercreek Pharmacy Ltd. (2001), 2001 CanLII 8620 (ON CA), 56 O.R. (3d) 768, [2001] O.J. No. 4567 (C.A.), at para. 65.
The non-compensable prejudice may be actual prejudice, i.e., evidence that the responding party has lost an opportunity in the litigation that cannot be compensated as a consequence of the amendment. Where such prejudice is alleged, specific details must be provided: King's Gate Developments Inc. v. Drake (1994), 1994 CanLII 416 (ON CA), 17 O.R. (3d) 841, [1994] O.J. No. 633 (C.A.), at paras. 5-7; and Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1995), 1995 CanLII 7105 (ON SC), 25 O.R. (3d) 106, [1995] O.J. No. 2220 (Gen. Div.), at para. 9.
Non-compensable prejudice does not include prejudice resulting from the potential success of the plea or the fact that the amended plea may increase the length or complexity of the trial: Hanlan v. Sernesky, 1996 CanLII 1762 (ON CA), [1996] O.J. No. 4049, 95 O.A.C. 297 (C.A.), at para. 2; and Andersen Consulting, at paras. 36-37.
At some point, the delay in seeking an amendment will be so lengthy, and the justification so inadequate, that prejudice to the responding party will be presumed: Family Delicatessen Ltd. v. London (City), [2006] O.J. No. 669, 2006 CanLII 5135 (C.A.), at para. 6.
The onus to prove actual prejudice lies with the responding party: Haikola v. Arasenau (1996), 1996 CanLII 36 (ON CA), 27 O.R. (3d) 576, [1996] O.J. No. 231 (C.A.), at paras. 3-4; and Plante v. Industrial Alliance Life Insurance Co. (2003), 2003 CanLII 64295 (ON SC), 66 O.R. (3d) 74, [2003] O.J. No. 3034 (Master), at para. 21.
The onus to rebut presumed prejudice lies with the moving party: Family Delicatessen, at para. 6.
Conclusion
Amendment of a Small Claims Court pleading is allowed until thirty (30) days prior to the originally scheduled Trial date. The amendments within a pleading should be marked by showing the word, "Amended" upon the face of the pleading and by marking any additions with an underline and by marking any deletions with a strike.
