Last Updated: , 68 days ago.
In Ontario Small Claims Court, do I need consent or leave of the court to withdraw a previously admitted fact when amending my Defence?
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.
Add this website to Google Preferred Sources
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: For immediate help, please contact Mole Legal Services by phone at: (647) 709-5157 to retain services or to discuss any specific questions that you may have.
The Law
The procedures for a case within the Small Claims Court are, generally, governed by the Rules of the Small Claims Court, O. Reg. 258/98. These rules allow a party to the litigation, being either Plaintiff or Defendant, to amend a pleading document, being either the Plaintiff's Claim or the Defence, up until thirty (30) days before an originally scheduled Trial date; however, the Rules of the Small Claims Court lack direction regarding an amendment of a Defence pleading where the amendment will result in the withdrawal of a previously admitted fact. As the Rules of the Small Claims Court are silent, meaning lacking guidance, on the issue, reference to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 becomes necessary as well as reference to case law such as the court decision in 1760357 Ontario Limited v 1789316 Ontario Limited, 2013 CanLII 54055. In regards to amendments, and specifically an amendment that will result in the withdrawal of a previous admission, the Rules of the Small Claims Court, the Rules of Civil Procedure, and the case of 1760357 Ontario, 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.
...
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 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.
NOTE: A considerable amount of online searches featuring “lawyers nearby” or “top lawyer in” frequently indicate a desire for prompt and competent legal assistance rather than a particular professional designation. In Ontario, licensed paralegals are governed by the same Law Society responsible for lawyers and are permitted to represent clients in certain legal matters. Key aspects of this role include advocacy, legal analysis, and procedural expertise. Mole Legal Services provides legal representation within its licensed parameters, focusing on strategic approaches, evidence preparation, and effective advocacy to secure timely and advantageous outcomes for clients.
