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Civil Litigation - Amending Pleadings - General (2)

. Fernandez Leon v. Bayer Inc.

In Fernandez Leon v. Bayer Inc. (Ont CA, 2023) the Court of Appeal considered (and granted) an appeal of a motion order that struck product liability pleadings [under R21.01(1)(b)] without leave to amend:
[3] Bayer’s motion was brought under r. 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, asserting that the statement of claim did not disclose a cause of action. The motion judge agreed, concluding that there were substantial foundational deficiencies in the appellants’ claim that could not be cured by simply amending the pleading.

[4] Irrespective of the deficiencies that she identified in the appellants’ pleading, the motion judge erred in refusing to grant leave to amend the statement of claim. She did not advert to or apply the test for amendment of pleadings articulated by this court. Instead, the motion judge concluded that there was “no benefit in permitting the [appellants] to try and find some tenable basis in fact for a claim against Bayer when none [had] been found by them to date”.

[5] Leave to amend a statement of claim should be denied only in the clearest of cases, when it is plain and obvious there is no tenable cause of action, the proposed pleading is scandalous, frivolous or vexatious, or there is non-compensable prejudice to the defendants: see McHale v. Lewis, 2018 ONCA 1048, at paras. 6 and 22; Klassen v. Beausoleil, 2019 ONCA 407, 34 C.P.C. (8th) 180, at para. 25. This test applies even where it is determined that the statement of claim, as pleaded, should be struck: see Burns v. RBC Life Insurance Company, 2020 ONCA 347, 151 O.R. (3d) 209; Tran v. University of Western Ontario, 2015 ONCA 295. The fact that allegations are bald and lack supporting material facts is not itself a reason for refusing leave to amend: Miguna v. Ontario (Attorney General) (2005), 2005 CanLII 46385 (ON CA), 205 O.A.C. 257, at para. 22.


[8] The test for striking pleadings for not disclosing a reasonable cause of action is stringent, and the moving party must satisfy a very high threshold in order to succeed. This may occur where the allegations do not fall within a cause of action known to law, or because the statement of claim fails to plead all the essential elements of a recognized cause of action: Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 1998 CanLII 4831 (ON CA), 164 D.L.R. (4th) 257 (Ont. C.A.), at para. 10. Unless it is “plain and obvious” that there is no chance of success, a claim, even a novel one, ought to be allowed to proceed. The pleading must be read generously, erring on the side of permitting an arguable claim to proceed to trial: see Rausch v. Pickering (City), 2013 ONCA 740, 369 D.L.R. (4th) 691, at para. 34.


[11] In our view the proposed amendments plead the essential elements of the claims for negligent design and manufacture. The proposed amendments plead the material facts that are required to support the pleaded causes of action. That is, they meet the low threshold for pleading a cause of action.

[12] We do not agree with Bayer that in every case where a plaintiff alleges negligence in the design and manufacture of a product, the statement of claim must be struck unless it identifies the specific defect in the product that caused the injury. The particulars of a specific defect are not in our view elements of the tort that are always required to be pleaded before the claim discloses a cause of action. To identify a specific manufacturing or design defect in every case would place too onerous a burden on a plaintiff at the stage of initiating a proceeding in a product liability action. In this case, involving a medical device that is alleged to have caused injury after it was implanted for its intended use, the appellants meet the requirement to plead a cause of action in negligence, even if they cannot at this time identify a specific defect in the product’s manufacture or design.
. Shwaluk v. HSBC Bank of Canada

In Shwaluk v. HSBC Bank of Canada (Ont CA, 2023) the Court of Appeal considered granting leave to amend a Claim, here in the context of withdrawal of an factual or a legal admission:
[4] An admission may relate to a fact or to a legal consequence − a position − alleged to flow from the fact. In determining whether a proposed amendment withdraws an admission in a pleading, the nature and extent of the admission is a key consideration. ...


[14] The motion judge dismissed the motion. She essentially gave two reasons for doing so.

[15] First, she held the proposed amendments seek “to withdraw the admission by [Ms. Shwaluk] that she did not submit an application for LTD benefits to Sun Life”. She noted that withdrawal of an admission is governed by r. 51.05 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and requires the moving party to demonstrate that the proposed amendment raises a triable issue, the admission was inadvertent or resulted from erroneous instructions, and the withdrawal will not result in non-compensable prejudice to the other party. The motion judge found that Ms. Shwaluk did not satisfy any of these criteria.


(1) Did the motion judge err in concluding the amendments sought to withdraw an admission?

[17] In my view, the motion judge failed to use the correct legal test and erroneously determined that Ms. Shwaluk sought to withdraw an admission. That erroneous determination resulted in the motion judge applying the incorrect test to the question of whether the amendments should be allowed. Appellate interference is therefore justified, as a judge errs in law when they apply the wrong legal test: Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748, at para. 35.

(a) The Amendments Did Not Withdraw an Admission

[18] The motion judge’s reasons for concluding that the amendments involved the withdrawal of an admission were brief. She simply stated that the “amendments proposed by [Ms. Shwaluk] are an attempt … to withdraw her admission; that she never filed an application for LTD [benefits]”. The only paragraph of the amendments she specifically referred to was (underlining indicates the amended portion):
[Ms. Shwaluk] did not submit an application/formal proof of loss claim form for LTD benefits to Sun Life, pending resolution of her STD benefits with her employer. However, [Sun Life] was put on notice by June 22, 2015 that [Ms. Shwaluk] was seeking short-term and long-term disability benefits.
[19] With respect, the motion judge erred in concluding that this amendment constituted a withdrawal of an admission.

[20] To determine whether an amendment withdraws an admission, two matters need to be considered: (i) the nature and extent of the admission in the original pleading; and (ii) the difference between the original pleading and the proposed amended pleading concerning what was admitted.

[21] In addressing these matters, it is important to recognize that admissions can pertain to alleged facts or to the legal conclusions or consequences (i.e., the party’s positions) alleged to follow from the alleged facts, or to both.

[22] Therefore, when considering the nature and extent of an admission, a court must consider whether the admission does one, or both, of the following: makes a “deliberate concession to a position taken by” the other party; or, accepts that “a set of facts posed by” the other party is correct: Yang v. The County of Simcoe, 2011 ONSC 6405, at para. 46 (emphasis added).

[23] That admissions may relate to facts or positions follows from the nature of the pleadings process. Pleadings are required to set out the material facts on which a party relies for their claim or defence. However, they may also contain conclusions of law if the material facts supporting them are pleaded: rr. 25.06(1) and (2). In other words, pleadings must allege facts, but they also, permissibly and routinely, allege the positions said to follow from those facts.

[24] For example, a plaintiff’s pleading may describe what the defendant did or failed to do, and it may also plead that such behaviour was negligent. The former are allegations of fact, the latter a position as it is a conclusion of mixed fact and law: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 26-29. Similarly, a pleading may allege that the defendant fired the plaintiff with a specific amount of notice − an allegation of fact − but may also allege that doing so was a wrongful dismissal, a position as it is a proposition of mixed fact and law: Dupuis v. Edmonton Cellular Sales Ltd., 2006 ABCA 283, 397 A.R. 376, at para. 6.

[25] Responsive pleadings (defences and replies) may address both the factual allegations and the conclusions or positions in the pleading being responded to, including by making admissions. Efficiency and fairness in the civil litigation process is advanced when this occurs. Although the Rules of Civil Procedure regarding statements of defence and reply pleadings refer to admissions of alleged facts found in the pleading to which they respond (see rr. 25.07(1) and 25.09(1)), nothing in the Rules prevents a party from also admitting, or denying, a legal conclusion or position that has been alleged. For instance, a defendant could admit that they behaved as the plaintiff contends and deny the position that the conduct constituted negligence or wrongful dismissal. Or they could, instead, admit that the conduct constituted negligence or wrongful dismissal, but then deny that the plaintiff suffered any damages. Doing so helps to frame the issues in the litigation.


(b) The Motion Judge’s Error Led Her to Apply the Wrong Test for Whether to Grant Leave to Amend

[36] Amendments to pleadings are generally governed by r. 26.01: “On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment”. Under this rule, the court must permit an amendment, regardless of the stage of the action at which it is sought, unless the party opposing the amendment can demonstrate actual prejudice that is non-compensable, or unless the delay in seeking it was so long, and the justification so inadequate, that prejudice is presumed: 1588444 Ontario Ltd. v. State Farm Fire and Casualty Co., 2017 ONCA 42, 135 O.R. (3d) 681, at para. 25.

[37] This is a different test than the one applicable for when the proposed amendment would withdraw an admission made in the original pleading. Rule 51.05 provides that: “an admission in a pleading may be withdrawn on consent or with leave of the court”. Absent consent, the party seeking an amendment to withdraw an admission must satisfy a three-part test to be granted leave. They must show that: (a) the proposed amendment raises a triable issue; (b) the admission sought to be withdrawn was inadvertent or the result of wrong instructions; and (c) the withdrawal will not result in non-compensable prejudice: Szelazek Investments Ltd. v. Orzech (1996), 44 C.P.C. (3d) 102 (Ont. C.A.).

[38] The test for withdrawal of an admission varies in two significant ways from the test applicable to other types of amendments. First, where no withdrawal of an admission is involved, the moving party is not required to show that the prior version of the pleading is the result of inadvertence or incorrect instructions. Second, the onus regarding prejudice is different. Where an admission is withdrawn “the onus is on the moving party to show that the opposite party will not be prejudiced, rather than the reverse as is the case under rule 26.01”: Kostruba and Sons v. Pervez, 2011 ONSC 4894, 38 C.P.C. (7th) 100, at para. 42.

[39] The motion judge applied the test for withdrawal of an admission and did so erroneously since no withdrawal was being made. The use of the incorrect test made a difference. I do not read the motion judge’s findings that Ms. Shwaluk had failed to satisfy the three-part test for withdrawal of an admission to be the equivalent of finding that Ms. Shwaluk should be denied leave to amend under r. 26.01. As I will explain, when the correct test is applied, leave to amend should be granted.

[40] The first consideration is the legal tenability of the amendment. An amendment will not be permitted if it is legally untenable, a point determined on the basis of the pleading taken as true, rather than by weighing evidence: Andersen Consulting Ltd. v. Canada (Attorney General) (2001), 2001 CanLII 8587 (ON CA), 13 C.P.C. (5th) 251 (Ont. C.A.), at paras. 34-35. Although the motion judge said the amendments did not raise a triable issue, her treatment of this point focussed on whether there was a reasonable explanation for Ms. Shwaluk’s supposed withdrawal of an admission, and was melded together with a consideration of whether the admission in the reply was inadvertent. She did not consider whether on the facts alleged in the amendments, taken as true, relief from forfeiture had a reasonable chance of success.

[41] Failing to file a proof of loss with an insurer within a policy-prescribed time limit is a type of imperfect compliance which might be amenable to relief from forfeiture: Falk Bros. Industries Ltd. v. Elance Steel Fabricating Co., 1989 CanLII 38 (SCC), [1989] 2 S.C.R. 778, at pp. 784-85; Kozel v. Personal Insurance Co., 2014 ONCA 130, 119 O.R. (3d) 55, at paras. 40-43. Although Sun Life argues that relief from forfeiture pursuant to s. 129 of the Insurance Act is not applicable to this type of policy, it is unnecessary that I determine whether that section, or any other section of the Insurance Act providing for relief from forfeiture, may apply. I see no reason why s. 98 of the CJA would not be applicable, as it has been held to be “available as an avenue of relief for contracts governed by the Insurance Act”: Kozel, at para. 58.

[42] In my view, the amended pleading raises a request for relief from forfeiture that is legally tenable. For example, in Smith v. Sun Life Assurance Company of Canada, 2021 ONSC 7109, the court granted relief from forfeiture after first determining that an insured’s failure to file a formal application for LTD benefits constituted imperfect compliance. The case involved circumstances where the insurer had previously dealt with and adjudicated the plaintiff’s request for STD benefits based on the same alleged disability and had some notice of an intention to claim LTD benefits: at paras. 25-28.

[43] The second consideration is prejudice. The motion judge made a finding that Ms. Shwaluk failed to show that Sun Life would not suffer non-compensable prejudice from the amendments. But given the different onus, this finding cannot be directly transposed into a finding that Sun Life proved it would suffer non-compensable prejudice, which is the test under r. 26.01. Other than noting the stage of the action, the only finding about prejudice the motion judge made was that “Sun Life has conducted its litigation strategy on the basis of the admission” and permitting the withdrawal of the admission would therefore prejudice it. However, since there is no withdrawal of an admission, this ground of prejudice cannot stand.
. Avedian v. Enbridge Gas Distribution Inc.

In Avedian v. Enbridge Gas Distribution Inc. (Ont CA, 2023) the Court of Appeal considered a late (after the case had been set down for trial) motion to amend pleadings:
[5] The motion judge dismissed the motion to amend the appellants’ statement of claim. She found that the motion was being brought late, after the action had been set down for trial, and without any request for leave to do so pursuant to r. 48.04 [SS: "Consequences of Setting down", including no more motions] of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The motion judge also concluded, contrary to the submissions of counsel for the appellants, that the claims sought to be advanced by way of the amendments were different than the claims previously advanced in the action and materially altered the factual framework and the evidence that would have to be called. She found that prejudice to the defendants could be presumed from the delay in the amendments being sought given the current state of the action, that is, it being ostensibly ready for trial. Further, the motion judge questioned whether these new claims had a proper legal foundation.

[6] The appellants submit that the motion judge erred in reaching each of these conclusions. We do not agree. The motion judge properly considered all of the relevant factors in reaching her decision. Contrary to the position of the appellants, r. 26.01 [SS: amendment of pleadings] of the Rules of Civil Procedure does not mandate that amendments must be allowed in all circumstances. A court may refuse to grant an amendment if the granting of the amendment would cause non-compensable prejudice to the other side: 1588444 Ontario Ltd. v. State Farm Fire and Casualty Co., 2017 ONCA 42, 135 O.R. (3d) 694, at para. 25. Further, the court has a residual right to deny amendments where appropriate: Marks v. Ottawa (City), 2011 ONCA 248, 280 O.A.C. 251, at para. 19.


[9] In any event, the motion judge did not decide that issue, nor do we. That result does not change the fact that the questionable foundation for the claims was a proper matter for the motion judge to consider in terms of deciding whether the circumstances of the case as a whole justified allowing the amendments to be made: Brookfield Financial Real Estate Group Ltd. v. Azorim Canada (Adelaide Street) Inc., 2012 ONSC 3818, 111 O.R. (3d) 580, at para. 24.
. Yan v. Hutchinson

In Yan v. Hutchinson (Ont CA, 2023) the Court of Appeal considered a factor to be considered in granting leave to amend pleadings:
[39] Ms. Yan argues that the motion judge erred in denying leave to amend the claims. The law is that a plaintiff should be afforded the opportunity to amend their pleadings “unless the statement of claim contains a ‘radical defect’ incapable of being cured by an amendment”: Indal Metals v. Jordan Construction Management Inc., [1994] O.J. No. 1616 (Gen. Div.), at para. 13, adopted by this court in Taylor v. Tamboril Cigar Co., 2005 CarswellOnt 4775. The motion judge found that the appellant’s claims contain flaws that cannot be cured by amendment, citing Roche v. MacLeod Law Firm, 2018 ONSC 2760, at para. 28.
. Horani v. Manulife Financial Corporation

In Horani v. Manulife Financial Corporation (Ont CA, 2023) the Court of Appeal considered competing tests for leave to amend pleadings after the trial has been set down, here where there had been substantial delay before moving for leave:
[16] The proper test for granting leave to bring a motion under Rule 48.04(1) after an action has been set down for trial is subject to some disagreement among Ontario courts.

[17] Some courts have required the moving party to show “a substantial or unexpected change in circumstances such that a refusal to make an order under Section 48.04(1) would be manifestly unjust”: see, Hill v. Ortho Pharmaceutical (Canada) Ltd., [1992] O.J. No. 1740, 11 C.P.C. (3d) 236 (Gen. Div.); for cases adopting Hill, see LML Investments Inc. v Choi (2007), 2007 CanLII 8926 (ON SC), 85 O.R. (3d) 351 (S.C.), at para. 10; Jetport v Jones Brown Inc., 2013 ONSC 2740, 115 O.R. (3d) 772, at paras. 68, 70 and 71; Lugen Corporation v Starbucks Coffee Canada Inc., 2014 ONSC 7141, at paras. 12, 30, 31; Denis v Lalonde, 2016 ONSC 5960, at para. 11; Secure Solutions Inc. v. Smiths Detection Toronto Ltd., 2017 ONSC 2401, at paras. 42-46.

[18] Others have determined that leave be granted if the moving party can demonstrate that “the interlocutory step is necessary in the interests of justice” even in the absence of a substantial or unexpected change in circumstances: see, A.G.C. Mechanical Structural Security Inc. v. Rizzo, 2013 ONSC 1316 (CanLII), at paras. 21-23; BNL Entertainment Inc. v. Ricketts, 2015 ONSC 1737, 126, O.R. (3d) 154 (Mast.), at paras. 12, 14; Fruitland Juices Inc. v. Custom Farm Service Inc. et al., 2012 ONSC 4902, at para. 28; and Cromb v. Bouwmeester, 2014 ONSC 5318, at para. 35.

[19] In yet other cases, courts have considered both tests and determined that they need not weigh in on the prevailing approach as the moving party could not meet the bar even under the broader “interest of justice” test: see for instance, Alofs v. Blake, Cassels & Graydon LLP, 2017 ONSC 950, at paras. 22-23; Chokler v. FCA Canada Inc. 2017, ONSC 4494, at para. 13.

[20] The appellants concede that (i) the motion judge correctly noted that the language of Rule 26.01 defines the scope of the exercise of the court’s discretion to grant leave to move to amend under Rule 48.04(1), and that (ii) the motion judge correctly articulated the principles that apply to a Rule 26.01 motion as to whether an amendment ought to be granted.

[21] However, the appellants submit that the motion judge erred in applying those principles. More specifically, they claim that, first, the motion judge erred in denying the amendment as “the only potential prejudice flowed from a possible delay in the trial being a matter compensable in costs”. Although the appellants concede that the motion judge was entitled to find and to presume prejudice, they argue that each item of potential prejudice to which the motion judge adverted was a matter compensable by costs or an adjournment. Second and relatedly, the appellants argue that it is in the interests of justice to allow the appeal to permit the amendment. Counsel for the appellants conceded in oral argument that the motion to amend should have been brought earlier than it was in this instance, but submitted that trial counsel’s error in not bringing it earlier should not be visited on the appellants.

[22] Despite the divergence of opinion on the test to be met under Rule 48.04(1), the parties agree that (i) leave to bring a motion to amend a pleading under Rule 48.04(1) is shaped by the requirements of Rule 26.01 and (ii) leave to amend a pleading under Rule 26.01 will be refused if it would result in prejudice that cannot be compensated for by costs or an adjournment: State Farm, at para. 25; Trillium Power, at para. 25. Briefly put, regardless of which Rule 48.04(1) test is adopted, this appeal must fail if the motion judge properly determined that allowing the appellants’ proposed amendment would result in non-compensable prejudice.


[25] While the onus to prove actual prejudice lies with the responding party, the onus to rebut presumed prejudice arising from delay lies with the moving party. A motion to amend will be denied where there is prejudice to the responding party that cannot be compensated by an award of costs, provided that the prejudice flows from the amendments. At some point, the delay will be so lengthy and the justification so inadequate that prejudice will be presumed: State Farm, at para. 25. The appellants accept these principles.


5) Analysis

[31] In our view, the motion judge made no error in her determination.

[32] First, as noted above, where the delay in seeking amendment is lengthy, courts will presume prejudice to the responding party and the onus to rebut the presumed prejudice lies with the moving party: State Farm, at para. 25 citing Family Delicatessen Ltd. V. London (City), 2006 CanLII 5135 (Ont. C.A), at para. 6. In Family Delicatessen, prejudice was presumed when the delay spanned over six years.

[33] The presumption of prejudice is also applicable in this case where the appellants sought leave to amend their pleading seven and a half years after the incident in question and four years after the action was set down for trial.

[34] Second, the appellants do not challenge the motion judge’s finding that, during this time, they failed to adduce evidence sufficient to rebut the presumption of prejudice. It is not clear what explanation the appellants proffered for the delay at the motion below and no explanation was offered on appeal other than counsel’s inattention. Indeed, the appellants’ counsel rightly conceded that this motion should have been brought at an earlier stage.

[35] Third, the motion judge correctly found that the prejudice was causally connected to the proposed amendment and not compensable in costs. As she noted, the proposed amendment to add a claim for punitive damages depended on new facts and arguments that were not pleaded, would affect how the respondent conducted its litigation, and would likely jeopardize the 32-day jury trial scheduled to begin on February 13, 2023, which has already been significantly delayed.

[36] Fourth, although some of the matters the motion judge referred to in her discussion of prejudice may have been items that would be compensable in costs, we do not read her presumption of prejudice to be limited to those matters, as the appellants contend. The motion judge was keenly aware of the fact that an amendment was to be denied only if prejudice was non-compensable, and we interpret the prejudice she presumed to extend to non-compensable matters. We agree with the respondent that the facts in this case are akin to those in this court’s decision in Family Delicatessen, at para. 7, where this court held that requiring a party to change its entire litigation strategy late in the litigation constituted non-compensable prejudice:
We agree with Counsel for the City that there would be some prejudice to the City had the amendment been allowed. The City had participated in the proceedings for some six years on the basis that it was a nominal Defendant. Its participation in the lawsuit was minimal and it took a cooperative stance with the other parties. Were the proposed amendment to be allowed, the City would be in a very different position with serious allegations of misrepresentation being brought against it. Its litigation strategy may well have been entirely different. It, of course, cannot undo what has already been done in this proceeding. While it is true that the prejudice to the City flowing from the proposed dramatic change in the course of this litigation could be addressed in part by appropriate orders concerning added discoveries and related matters, we are satisfied that the City could not be put in the position it would have been to meet these allegations had they been made in a timely fashion. [Emphasis added.]
[37] The underlined considerations above apply equally in this case. The prejudice to the respondent that the motion judge presumed, is non-compensable by costs or adjournment. The appellants, therefore, would not have been granted leave to amend under Rule 26.01. This is sufficient to dispose of the issue.

[38] We found that it is not necessary to determine the appropriate test under Rule 48.04(1) on this appeal. In any event, even if we were to apply the lower threshold for granting leave to bring a motion to amend under Rule 48.04(1), we are not satisfied that it would be necessary in the interests of justice to allow the appellants to bring a motion to amend its pleading to add punitive damages. The appellants have represented to the court their readiness to proceed to trial on two separate occasions and not once in this six-year period did the appellants seek to amend its pleading to add a claim for punitive damages. No plausible explanation for the delay was proffered to this panel and the motion judge beyond counsel’s inattention.

[39] Finally, the motion judge carefully reviewed both this request for leave to amend to bring a claim for punitive damages (which she refused) and the claim to increase the damage claim (which she granted). She offered a balanced approach and there was no evidence that she acted arbitrarily or capriciously in exercising her discretion to deny leave to bring a motion to add a claim for punitive damages.
. Cardinal Investments Inc. v. Ultra Depot (Ontario) Inc.

In Cardinal Investments Inc. v. Ultra Depot (Ontario) Inc. (Ont CA, 2022) the Court of Appeal dismissed an R21 striking of pleadings appeal on the unusual basis that the appellant could move for leave to amend it's pleadings below:
[8] Typically, the issue of leave to amend would be considered by a motion judge at the same time as a motion to strike a pleading or portions of a pleading. However, in the unusual circumstances of this case, in particular the silence of the motion judge’s reasons and order on the issue of leave to amend, and the position of the parties, we considered it appropriate to dismiss the appeal on the basis that the order of the motion judge does not bar the appellant from bringing a motion in the Superior Court seeking an amendment under r. 26.01.
. Globe POS Systems v. Visual Information Products Inc.

In Globe POS Systems v. Visual Information Products Inc. (Div Court, 2022) the Divisional Court considered an appeal from the dismissal of a defendant's motion to amend their defence, here to add a counter-claim. In this quote the court cites the test for granting leave to amend:
[2] ... The Associate Justice was correct in finding that she should not grant the motion for leave to amend if the proposed pleadings are, on their face, not tenable in law. The Associate Justice also correctly stated the breadth of this principle, quoting from a recent decision of the Court of Appeal as follows: “leave to amend should be denied only in the clearest of cases, especially where deficiencies in the pleading can be cured by an appropriate amendment and the other party would not suffer prejudice if leave to amend was granted.” (Burns v. RBC Insurance Co., 2020 ONCA 347 at para. 22, quoted at Decision, para. 8).


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Last modified: 25-09-23
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