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Amending Previous Admissions Within Defence: Requires Opposing Party Consent or Leave of Court in Some Circumstances
Question: What is required to withdraw a previously admitted fact in a Defence pleading?
Answer: Consent from the Plaintiff or leave from the Court is necessary to amend a Defence pleading to withdraw any previously admitted facts in Small Claims Court. Debly Law provides thorough assistance and guidance through legal processes to ensure that you understand the requirements and implications of such amendments, protecting your interests effectively.
Consent or Leave of Court Is Required to Withdraw a Previously Admitted Fact
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.
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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).
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 shown above per the Rules of the Small Claims Court and the Rules of Civil Procedure as well as the 1760357 Ontario case, Consent, meaning permission, of the Plaintiff, and other parties if applicable, or Leave, meaning permission, of the Court is required when amending a Defence pleading, even in Small Claims Court, in a manner that withdraws a previous admission to alleged facts.
Conclusion
The Rules of the Small Claims Court lack instruction or guidance regarding amendments to a Defence pleading in such a way that admissions of previous factual allegations are withdrawn; and accordingly, reference to the Rules of Civil Procedure as well as case law is necessary and reveals that Consent of the opposing party or Leave of the court is required prior to withdrawing a prior admission.
