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Simon Shields, LLB

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Civil Procedure - Pleadings - Motion to Strike - Leave to Amend

TSI International Group Inc. v. Formosa (Ont CA, 2017)

In this case the Court of Appeal makes clear that, absent a clear basis for denying it, leave to amend struck pleadings should be granted if requested:
[1] We are able to dispose of this appeal without addressing the substantive grounds of appeal raised. The motion judge ought to have granted leave to amend after striking from the appellants’ statement of defence and counterclaim the defence of “clean hands” and the counterclaim of “abuse of process”, and a number of paragraphs. Leave to amend should be denied only in the clearest of cases. The motion judge did not explicitly explain why he refused leave to amend. We are not persuaded by respondent’s counsel’s submission that the explanation is apparent from reading the reasons as a whole.

[2] As in Tran v. University of Western Ontario, 2015 ONCA 295 (CanLII), we conclude that in the absence of any articulated basis on which leave was denied and in the absence of any prior amendment, the appellants should not be deprived of the opportunity to amend their pleadings.

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