Amending Previous Admissions Within Defence:

Question: In Ontario Small Claims Court, do I need consent or leave of the court to withdraw a previously admitted fact when amending my Defence?

Answer: Yes. In Ontario Small Claims Court, if your amended Defence would withdraw a prior admission of fact, you generally need the plaintiff’s consent or the court’s leave, not just a simple amendment. This is because the Small Claims Court rules permit amendments up to 30 days before trial but are silent on withdrawing admissions, so courts look to the Rules of Civil Procedure, including Withdrawal of Admission, and the reasoning in 1760357 Ontario Limited v 1789316 Ontario Limited, 2013 CanLII 54055. The court typically considers whether the amendment raises a triable issue, whether the admission was inadvertent or due to wrong instructions, and whether the other side would suffer prejudice that cannot be compensated in costs. For help managing Defence amendments that affect admissions, paralegal and property management support is available through Mole Legal Services at (647) 709-5157.

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Consent or Leave of Court Is Required to Withdraw a Previously Admitted Fact

After a Defendant in a Small Claims Court case serves a Defence pleading containing admissions to factual allegations stated within the Plaintiff's Claim, the Defendant must obtain Consent from the Plaintiff or Leave, meaning special permission, from the Court, if an amendment to withdraw a previous pleaded admission is desired by the Defendant. Accordingly, a Defendant should answer the Plaintiff's Claim very cautiously.

Note: Please contact Mole Legal Services by phone at: (647) 709-5157 to discuss any specific questions that you may have.

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:

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.