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Pleadings - Amendment - Leave

Torts - Conspiracy - Merger Doctrine

McHale v. Lewis (Ont CA, 2018)

Here the Court of Appeal sets out the test for leave to amend pleadings:
[6] The motion judge summarized the principles governing the decision whether to grant leave to amend a pleading from Aristocrat Restaurants Ltd. (c.o.b. Tony’s East) v. Ontario, [2003] O.J. No. 5331 (S.C.):
(a) the approach that amendments should be presumptively approved unless they would occasion prejudice that cannot be compensated by costs or an adjournment, they are shown to be scandalous, frivolous, vexatious, or an abuse of the court’s process, or they disclose no reasonable cause of action, is relevant to the issue of whether, on a motion to strike a pleading, a court should exercise its discretion to grant leave to amend;

(b) leave to amend should properly be given where a pleading can be put right or improved by amendment and no injustice is done thereby;

(c) depending on the circumstances of the case, striking out a pleading without granting leave to amend often does little to advance the ends of justice;

(d) in disposing of a motion to strike when a recognized cause of action has been improperly pleaded, but can be put right without non-compensable prejudice to the defendants, the preferred route is to afford the plaintiff the opportunity, upon appropriate terms, to plead the cause properly within the action before the court; and

(e) the foregoing approach makes practical sense and is in keeping with the objectives set out in rule 1.04, namely that the rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

Also, the court sets out the 'merger' doctrine for the tort of conspiracy:
[12] I also do not accept the argument on appeal that leave to amend was properly refused in application of the “merger doctrine.”

[13] This principle holds that where two or more persons conspire to commit a tort, and the tort is committed, the allegation of conspiracy adds nothing to the claim. A plaintiff is not entitled to be compensated twice for the same harm where the damages from both the conspiracy and the tort are the same: Jevco Insurance Co. v. Pacific Assessment Centre Inc., 2015 ONSC 7751 (CanLII), 128 O.R. (3d) 518 (Div. Ct.).


[21] I agree with the observations of Molloy J. in Jevco:
[52] Accordingly, in my view, the law supports permitting the conspiracy claim to be pleaded along with other nominate torts and applying the doctrine of merger only at the end of the trial when it is known if the plaintiff has been fully successful on the nominate torts and whether there is anything added by the conspiracy claim. Further, in the interests of paring down out-of-control interlocutory proceedings and introducing consistency in the law, as a practical matter it is preferable not to resolve these types of claims at the pleadings stage.

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