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Civil Litigation - Amending Pleadings - General (3). Curtis v. McCague Borlack LLP
In Curtis v. McCague Borlack LLP (Ont CA, 2024) the Ontario Court of Appeal considered an appeal, here involving a lawsuit brought against opposing counsel in a prior proceeding involving the appellants which was dismissed on grounds of 'absolute privilege'.
The court considers the (generous) law of amending pleadings, here after the defendant/respondent's successfully struck "the appellants’ statement of claim as disclosing no cause of action under r. 21.01(1)(b)":
[8] .... The motion judge was right to strike the statement of claim on the basis of absolute privilege, and he did not err in refusing leave to amend except in one respect. He erred in refusing Mr. Curtis leave to amend against Mr. Turkienicz and McCague Borlack in relation to the tort of malicious prosecution, which was alluded to, but imperfectly pleaded, in the statement of claim. The usual practice is to grant leave to amend, as many authorities confirm. In Gagne v. Harrison, 2024 ONCA 82, this court noted, at para. 13:The question is then whether leave should be granted to the appellants to amend the statement of claim. 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 or vexatious or there is non-compensable prejudice to the defendants. The test applies even where it is determined that the statement of claim, as pleaded, should be struck: Fernandez Leon v. Bayer, 2023 ONCA 629, at para. 5. . Platnick v. Bent
In Platnick v. Bent (Div Court, 2024) the Divisional Court dismissed an appeal of a libel action. Here the court cites the presumption in favour of amending pleadings:[12] Under the ordinary Rules of Civil Procedure, the presumption is in favour of granting leave to amend the pleadings. Leave to amend shall be granted unless it would cause prejudice that could not be compensated: Rule 26.01. Leave to amend can also be denied if the proposed amendments do not disclose a reasonable or tenable cause of cation: 16884444 Ontario Ltd. v. State Farm Fire and Casualty Co, 2017 ONCA 42 at para. 25. . Gagne v. Ivari
In Gagne v. Ivari (Ont CA, 2023) the Court of Appeal considered a test for amending pleadings:[13] The question is then whether leave should be granted to the appellants to amend the statement of claim. 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 or vexatious or there is non-compensable prejudice to the defendants. The test applies even where it is determined that the statement of claim, as pleaded, should be struck: Fernandez Leon v. Bayer, 2023 ONCA 629, at para. 5. . Auciello v. La
In Auciello v. La (Div Court, 2023) the Divisional Court considers the particular role of the 'prayer for relief' [the first paragraph of a claim] in amending pleadings:(d) Amendments to Specify Heads of Damages to the Prayer for Relief
[62] Mr. Auciello proposed to replace his claims for an injunction with claims for further damages. He asked to add to the prayer for relief claims for, “"punitive damages, loss of rental income, loss of business income, loss of personal income and devaluation of the Plaintiffs lands."
[63] The Associate Justice held that the plaintiffs already made a claim for the loss of value of their land in the body of the existing statement of claim. He therefore held that there was no need to add that specific claim to the prayer for relief in para. 1 of the pleading.
[64] The Associate Justice recognized that the proposed claims for different heads of damages are not “new claims” within the meaning of the case law cited above. He also found that, read generously, the existing statement of claim already pleaded facts needed to support the additional relief sought.
[65] Nevertheless, he refused to grant the plaintiffs leave to amend the statement of claim to add the new claims to the prayer for relief because they were too late. He held:[34] However, as with the other proposed amendments to the Statement of Claim as discussed above, I find that the passage of more than seven years from the issuance of the Statement of Claim, coupled with the lack of any explanation or justification for the delay in asserting these new heads of damages, gives rise to a presumption of non-compensable prejudice to the Defendant and I deny leave to amend on that basis. ....
[99] How is it an abuse of process to specify in the prayer for relief a claim for loss of value of land that is already contained in the body of the pleading? The Associate Justice says that it is not necessary to do so. That is not the test, however.
[100] The Associate Justice also found that the facts needed to support the proposed additional heads of relief were already pleaded. How then is it an abuse or prejudicial to the defendant’s right to a fair, efficient, and affordable trial process to allow amendments to be made to clarify in the prayer for relief that relief is indeed sought in respect of the facts already pleaded?
[101] A claim to amend the amount of relief sought can generally be made even at trial. I would expect a defendant at trial to complain mightily that he was not given notice of such a claim by an amendment made prior to the trial – perhaps at the pretrial conference. The fact that a statement of claim does not list specific relief sought in the prayer for relief in paragraph 1 of a claim might itself be a ground of complaint even where the damages are referenced in the body of the claim. . Auciello v. La
In Auciello v. La (Div Court, 2023) the Divisional Court considered the law of amending pleadings:[53] The Associate Justice set out correctly the legal tests that apply on the motion to amend the statement of claim. He wrote:[14] Rule 26.01 of the Rules of Civil Procedure provides as follows: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 cost or an adjournment [15] The principles that apply on a motion for leave to amend under Rule 26.01 are well established:. The rule is mandatory. The court must allow the amendment, unless the responding party would suffer non-compensable prejudice, the proposed pleading is scandalous, frivolous or vexatious, or the proposed pleading fails to disclose a reasonable cause of action: Klassen v. Beausoleil, 2019 ONCA 407, at para. 25.
. The expiry of a limitation period is one form of non-compensable prejudice. A party cannot circumvent the operation of a limitation period by amending their pleadings to add additional claims after the expiry of the relevant limitation period: Klassen at para. 26; Frohlick v. Pinkerton Canada Ltd, 2008 ONCA 3, at para. 24
. An amendment will be statute-barred if it seeks to assert a new cause of action after the expiry of the applicable limitation period. In this regard, the case law discloses a "factually oriented" approach to the concept of a "cause of action", namely, a factual situation the existence of which entitles one person to obtain from the court a remedy against another person: Klassen, at para. 27; 1100997 Ontario Ltd. v. North Elgin Centre Inc., 2016 ONCA 848, at paras. 19-23, 33
. An amendment does not assert a new cause of action, and therefore is not impermissibly statute-barred, if the original pleading contains all the facts necessary to support the amendments such that the amendments simply claim additional forms of relief, or clarify the relief sought, based on the same facts as originally pleaded. Klassen, at para. 28, North Elgin, at 20-21.
. The court may refuse an amendment where it would cause prejudice. The prejudice must flow from the amendment and not some other source. At some point, the delay in seeking an amendment will be so lengthy, and the justification so inadequate, that prejudice to the responding party will be presumed, absent evidence to the contrary: Klassen, at para 31 1588444 Ontario Lid dba Alfredo's et al v State Farm Fire and Casualty Company, 2017 ONCA 42 [Punctuation is in the original.] . Yan v. Daniel
In Yan v. Daniel (Ont CA, 2023) the Court of Appeal briefly considers 'leave to amend' pleadings doctrine:[19] He noted that leave to amend should only be denied in “the clearest of cases” where “it is clear that the plaintiff cannot allege further material facts that [they know] to be true to support the allegations": Khursheed v. Venedig Capital SAS, 2019 ONSC 5190, at para. 37, citing Miguna v. Ontario (Attorney General) (2005), 2005 CanLII 46385 (ON CA), 205 O.A.C. 257 (C.A.), at para. 22.
[20] In this case, the motion judge noted that the appellant had already had an opportunity to amend her pleadings. Her amendments only resulted in “further unfocussed allegations and irrelevant facts asserted without any evidence”. Based on the pleadings and his knowledge of the proceedings, the motion judge believed that the appellant did not possess the material facts necessary to establish either cause of action and exercised his discretion to deny leave to amend accordingly. . Chaudry v. Bank of Montreal
In Chaudry v. Bank of Montreal (Div Court, 2023) the Divisional Court considers the test for leave to amend pleadings:[18] On the first issue, the test for amending pleadings, the appellant does not point to any error by the motion judge. The motion judge articulated the correct test, as set out in the reasons for decision. I summarize the test as follows:(i) r. 26.01 is a mandatory direction to the court to grant leave to amend unless prejudice would result that cannot be compensated for by costs or an adjournment;
(ii) the facts as alleged in the statement of claim are presumed to be true, with limited exceptions that do not apply here, and the statement of claim must be read generously;
(iii) leave to amend should only be refused in the clearest of cases, which include proposed amendments that disclose no cause of action;
(iv) pleadings will only be found legally untenable if clearly impossible of success. [19] As set out in Atlantic Lottery Corp. Inc. v. Babstock, at para. 19, novel claims may be struck out if doomed to fail.
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