What Happens If After Filing a Defence Pleading a Defendant Wants to Amend the Defence Pleading In Such a Way As to Withdraw An Admission to An Alleged Fact?

When a Defendant Wants to Amend a Defence Pleading In Such a Way As to Withdraw a Previously Admitted Factual Allegation Within the Plaintiff's Claim, the Defendant Must Obtain Permission From Either the Plaintiff or the Court.

Understanding That Consent or Leave Is Required to Withdraw a Previously Admitted Fact In Small Claims Court

Lawsuit Document When a Defendant to a lawsuit serves and files a Defence pleading in response to the allegations as contained within the Plaintiff's Claim pleading, proper care should be taken to proper admit facts that should be admitted while also ensuring to avoid inaccurately admitting facts that are truly contentious as subsequently withdrawing the admission may be troublesome.

The Law

Generally, the Rules of the Small Claims Court, O. Reg. 258/98, permit a litigant to amend a pleading up until thirty (30) days prior to the original date scheduled for Trial; however, the Rules of the Small Claims Court are silent, meaning lacking details, about the amendment of a Defence pleading in a manner that withdraws a previously admitted factual allegation.  Accordingly, reference to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and case law, including the case of 1760357 Ontario Limited v 1789316 Ontario Limited, 2013 CanLII 54055 provide guidance.  Specifically, the Rules of the Small Claims Court, the Rules of Civil Procedure, and the 1760357 Ontario case, each respectively 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.



(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).

Matters Not Covered in Rules

1.03 (2) If these rules do not cover a matter adequately, the court may give directions and make any order that is just, and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the action and, if the court considers it appropriate, by reference to the Rules of Civil Procedure.

Withdrawal of Admission

51.05 An admission made in response to a request to admit, a deemed admission under rule 51.03 or an admission in a pleading may be withdrawn on consent or with leave of the court.

6.  In this case I saw no difficulty in allowing the defence to claim the unpleaded set-off for rent for February 2011.  However the defendant sought an amendment to allege that the amount of the security deposit was less than it had specifically admitted in its pleading.  That raised the question whether in the Small Claims Court an amendment which withdraws an admission requires leave of the court.

7.  I am aware of no appellate authority which addresses that question.  My colleague Deputy Judge Dickinson held that leave is required, in Kinka Transport Inc. v. Rideway Transport Inc., [2012] O.J. No. 4081 (Sm. Cl. Ct.), at para. 60.  With respect, I agree.

8.  In Antipas v. Coroneos (1988), 26 C.P.C. (2d) 63 (Ont. H.C.J.), Saunders J. reviewed the authorities dealing with withdrawal of admissions, in light of the new Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and particularly the liberal and purposive interpretive principle set out in rule 1.04(1) of those rules.  His Lordship observed that the modern trend had been “towards a more liberal view on the withdrawal of an admission.”  The party seeking leave to amend a pleading by withdrawing an admission was required to satisfy the court that (1) the proposed amendment raises a triable issue; (2) the admission was inadvertent or resulted from wrong instructions; and (3) the withdrawal will not result in any prejudice that could not be compensated in costs.

9.  Antipas v. Coroneos, supra, was specifically approved in Szelazek Investments Ltd. v. Orzech (1996), 44 C.P.C. (4th) 102 (Ont. C.A.).  I see no good reason why the requirement for leave should not apply in Small Claims Court.

As detailed above, as per the Rules of the Small Claims Court and the Rules of Civil Procedure as well as the 1760357 Ontario case, a Defendant must obtain the permission of the Plaintiff, formally referred to as Consent, among other parties if any, or the Defendant must obtain permission from the Court, formally referred to as Leave, when the Defendant is amending a Defence pleading in such a way as to withdraw a previously admitted fact. This requirement, per the 1760357 Ontario case, applies even in matters of the Small Claims Court.

Summary Comment

The Rules of the Small Claims Court are silent, meaning lacking of instruction or guidance regarding the amendment of a Defence pleading where the amendment will result in withdrawal of previously admitted facts; and accordingly, the Rules of Civil Procedure require review and wherein it shall be noted that such an amendment requires Consent of the Plaintiff or Leave of the Court prior to formally serving and filing such an amended Defence pleading.

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