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Civil Litigation Cases - Amending Pleadings - General (4). Chand Morningside Plaza Inc. v. Healthy Lifestyle Medical Group Inc.
In Chand Morningside Plaza Inc. v. Healthy Lifestyle Medical Group Inc. (Ont CA, 2026) the Ontario Court of Appeal allowed an appeal, here brought against "the dismissal of their collection action" seeking "payment of the amounts that remain owing under a guarantee and a mortgage".
The central issue was the amendment of pleadings post-trial [under R26.01], here post-trial:[1] This appeal involves the question of the appropriate procedure to be followed for pleadings amendments raised by the trial judge following a trial.[1] Here, the trial judge, on his own initiative, effectively amended the respondents’ amended fresh as amended statement of defence by relying on unpleaded defences to defeat the appellants’ action without allowing the appellants to meaningfully respond.
[2] There is no question that r. 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, permits tenable amendments at any stage of an action, absent non-compensable prejudice to the opposing party. In an appropriate case, a court may also, on its own initiative, raise the question of whether an amendment should be made to a pleading: O’Bryne v. Farmers’ Mutual Insurance Company (Lindsay), 2014 ONCA 543, 121 O.R. (3d) 387, at para. 23. The overarching question for the court in considering whether an amendment should be made is whether trial fairness will be compromised by prejudice to the opposing party that cannot be fairly addressed and compensated.
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[9] Trial management decisions are ordinarily entitled to significant appellate deference: Rassouli-Rashti v. Tayefi, 2023 ONCA 315, at para. 19. It happens that issues may arise after the trial is completed and that many of them can be appropriately and fairly dealt with by providing notice to the parties and inviting written submissions. However, in this particular case, it was an error for the trial judge to address these issues without adequately giving notice of them to the parties and by only requesting written submissions.
[10] Specifically, while the trial judge sent an email to the parties asking for further written responses to questions, the trial judge’s email and questions did not adequately convey to the parties that the trial judge was considering broad, new issues that were not raised at trial by the respondents. Nor that they gave rise to the potential for defence amendments that may have required an amended reply from the appellants, as well as the presentation of additional evidence.
[11] Like the defence amendment made mid-trial to permit the respondents to rely on their assertion of undue influence, these other potential defence amendments should have been dealt with in court as part of the trial. The appellants would then have had the opportunity to make detailed, oral submissions in court and, at the very least, to respond formally to the proposed defence amendments. If the amendments were permitted, the appellants should have been permitted to address the amendment of their reply, if desired. It may also have been appropriate to canvass reopening the trial to ascertain whether the parties wished to call further evidence and make additional submissions in court to respond to the new defences that the trial judge applied following the trial. An adjournment of the trial may also have been warranted to ensure trial fairness.
[12] As a result, I would allow the appeal and remit the action to the Superior Court for a new trial before a different judge. It is unnecessary to address the appellants’ other grounds of appeal. Accordingly, these reasons are restricted to explaining why I would allow the appeal based on the ground of procedural unfairness.
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Analysis
[36] This appeal turns on the question of procedural unfairness. I accept the appellants’ submissions that the trial judge dismissed the action on the strength of two defences that were not pleaded or raised by the Badhwars and to which the appellants were denied the opportunity to respond in a meaningful way.
i. Governing principles
[37] The overarching consideration here is trial fairness. The parties are entitled to know the issues that are joined in the proceeding. They marshal their evidence and litigation strategy in accordance with the pleadings. If new issues arise, the parties are entitled to respond to them. Depending on the timing, the proposed amendments may be too prejudicial to the opposing party.
[38] As this court reiterated in Holmes v. Hatch Ltd., 2017 ONCA 880, at para. 7: “The law assumes that the parties’ pleadings properly delineate all relevant claims in dispute and define the issues.” The court went on to set out the operative principle, as outlined by this court in Rodaro v. Royal Bank (2002), 2002 CanLII 41834 (ON CA), 59 O.R. (3d) 74 (C.A.). The court in Rodaro, at para. 60, explains:It is fundamental to the litigation process that lawsuits be decided within the boundaries of the pleadings. As Labrosse J.A. said in 460635 Ontario Limited v. 1002953 Ontario Inc., 1999 CanLII 789 (ON CA), [1999] O.J. No. 4071 at para. 9 (C.A.) (QL):... The parties to a legal suit are entitled to have a resolution of their differences on the basis of the issues joined in the pleadings. A finding of liability and resulting damages against the defendant on a basis that was not pleaded in the statement of claim cannot stand. It deprives the defendant of the opportunity to address that issue in the evidence at trial. ... [39] Rule 26.01 permits tenable pleading amendments to be made at any time, including following a trial, “unless prejudice would result that could not be compensated for by costs or an adjournment.” The mandatory language of r. 26.01 – that leave to amend a pleading “shall” be granted – is tempered by the court’s discretion to prevent non-compensable prejudice.
[40] The court’s discretion to make such amendments is not unfettered and must be exercised in accordance with the principles of procedural fairness. The moving party must show there is no prejudice that cannot be compensated for by costs or an adjournment: Avedian v. Enbridge Gas Distribution Inc., 2023 ONCA 289, at para. 6. Given this standard, it will be rare that amendments following trial will be permitted because of the strong likelihood of prejudice to the opposing party. Indeed, where there is inordinate delay in seeking amendments, prejudice will be presumed unless there is sufficient proof to the contrary to rebut this presumption of prejudice: Family Delicatessen Ltd. v. London (City), 2006 CanLII 5135 (Ont. C.A.), at para. 6; 1588444 Ontario Ltd. v. State Farm Fire and Casualty Company, 2017 ONCA 42, 135 O.R. (3d) 681, at paras. 25, 36-37.
[41] The limit on the court’s discretion arising from the presumption of prejudice arises from the unfairness that such late amendments will cause because of the way that parties have chosen to manage the litigation, including decisions regarding pleadings, settlement, evidence and submissions: see e.g., Milosevic (Litigation Guardian of) v. Etheridge (1991), 3 C.P.C. (3d) 69 (Ont. Gen. Div.), at para. 6; Kings Gate Developments Inc. v. Colangelo (1994), 1994 CanLII 416 (ON CA), 17 O.R. (3d) 841 (C.A.), at pp. 843-44; and Family Delicatessen Ltd., at para. 7.
[42] At the very least, if the court is considering new defences, an opportunity should be given to the opposing party to oppose the amendment and, if the amendment is permitted, to reopen the trial to call further evidence and make additional submissions. To prevent an unreasonable use of the amendment rule, where late amendments are permitted, the court should consider orders that will prevent trial unfairness, such as an adjournment of the trial to permit further production and examination for discovery, as well as ordering costs: Kings Gate Developments Inc., at pp. 844-45. . Georgiou v. Ministry of Health et al.
In Georgiou v. Ministry of Health et al. (Ont Div Ct, 2026) the Ontario Divisional Court granted a motion to quash a JR, this where the underlying JR advanced a number of remedies respecting medical referral.
The court considers a JR 'pleadings' amendment issue, here involving joinder of parties:[52] Any motion to amend pleadings in an originating process to add parties must be assessed against a series of criteria derived from Rule 26.01 and Rule 5.04(2): Beaudoin v. City of Ottawa, 2025 ONSC 3870, at para. 10.
[53] Rule 26.01 states: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. [54] While the language of Rule 26.01 is mandatory, the Court has residual discretion to deny amendments where appropriate. As stated by the Court of Appeal in Marks v. Ottawa, 2011 ONCA 248, 280 O.A.C. 251, at para. 19, factors to be considered are summarized as follows:a. An amendment should be allowed unless it would cause an injustice not compensable in costs.
b. The proposed amendment must be shown to be an issue worthy of trial and prima facie meritorious.
c. No amendment should be allowed which, if originally pleaded, would have been struck.
d. The proposed amendment must contain sufficient particulars. [55] Rule 5.04(2)of the Rules of Civil Procedure states:5.04(2) At any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment. [56] Similar to the operation of Rule 26.01, the Court also retains residual discretion under Rule 5.04(2) to refuse a joinder. Additional considerations noted by courts include fairness and judicial efficiency (if adding a party would unduly complicate or delay the proceeding), or if the addition of a party appears to be an abuse of process. . Chanderpaul v. Caesars Convention Centre Ltd.
In Chanderpaul v. Caesars Convention Centre Ltd. (Ont CA, 2026) the Ontario Court of Appeal dismissed cross-appeals, here in an MVA negligence lawsuit context where alcohol-server liability and piercing the corporate veil were issues.
Here the court considered amending pleadings in an R21 ['striking pleadings'] context:[42] Moreover, as a matter of general principle, a motion judge’s decision to deny leave to amend involves the exercise of discretion and is entitled to deference: Hartman v. Canada (Attorney General), 2026 ONCA 270, at para. 73. Where it is plain and obvious that a claim cannot proceed, there is no requirement that a motion judge grant leave to amend: see, e.g. Abbasbayli v. Fiera Foods Company, 2021 ONCA 95, at para. 29. The hurdle the appellant faces here is that there is nothing in the record that shows a viable path to amend her pleadings such that these claims could properly proceed. . Hartman v. Canada (Attorney General)
In Hartman v. Canada (Attorney General) (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, this brought where "the motion judge struck the Claim [SS: under R21.01(1)(b)] in its entirety on the basis that it was plain and obvious that the Claim had no reasonable prospect of success, even if supplemented with amendments proposed by the appellant".
Here the court considered the appellate SOR respecting leave to amend pleadings issues:[27] .... The motion judge’s decision to deny leave to amend was discretionary and is owed deference on appeal, absent a palpable and overriding error of fact or law: Conway v. The Law Society of Upper Canada, 2016 ONCA 72, 395 D.L.R. (4th) 100, at para. 16. . Hartman v. Canada (Attorney General)
In Hartman v. Canada (Attorney General) (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, this brought where "the motion judge struck the Claim [SS: under R21.01(1)(b)] in its entirety on the basis that it was plain and obvious that the Claim had no reasonable prospect of success, even if supplemented with amendments proposed by the appellant".
Here the court considers leave to amend pleadings issues:C. The motion judge did not err in refusing leave to amend the Claim
[69] The motion judge found that amendments proposed by the appellant were insufficient, since they merely repeated and expanded upon the same facts already pleaded without addressing the primary deficits in the Claim. Even with the proposed amendments, the Claim failed to plead material facts upon which it could be concluded either that the respondents had a private law duty of care towards the appellant’s son, or that they had subjective awareness that their actions were unlawful and likely to injure the appellant’s son. Having reviewed the proposed amendments, we see no basis to interfere with the motion judge’s findings that the proposed amendments would not have cured the deficiencies in the Claim.
[70] The appellant further argues that the Claim should be allowed to proceed because facts could emerge through the discovery process in support of the allegations of negligence or misfeasance. He relies upon this court’s decision in Shaulov v. Law Society of Ontario, 2023 ONCA 95, 166 O.R. (3d) 241, where this court granted leave to the appellant to amend his pleading and permitted his claim to proceed on the basis that the plaintiff required access to documents which were in the defendant’s possession in order to particularize his claim.
[71] In Shaulov, it was acknowledged that the defendant was in possession of documents at the heart of the plaintiff’s claim (the licencing examinations which the plaintiff alleged were discriminatory), and that the defendant refused to disclose them: Shaulov, at para. 17. No such circumstance or allegation exists in the present case. The preliminary data (December 2020, “Study 1”) and six-month data (April 2021, “Study 2”) from the Clinical Study, which the appellant alleges the respondents relied upon while approving and promoting the Vaccine, were published on December 31, 2020 and September 15, 2021, respectively. These reports are publicly available online and clearly were relied on by the appellant in drafting the Claim.
[72] As the Federal Court of Appeal pointedly observed in Painblanc v. Kastner (1991), 1991 CanLII 14420 (FCA), 58 C.P.R. (3d) 502 (F.C.A.), at p. 503, “[a]n action at law is not a fishing expedition and a plaintiff who starts proceedings simply in the hope that something will turn up abuses the court’s process”. The same principle was articulated by the Supreme Court in Imperial Tobacco, at para. 22:It is incumbent on the claimant to clearly plead the facts upon which it relies in making its claim. A claimant is not entitled to rely on the possibility that new facts may turn up as the case progresses. The claimant may not be in a position to prove the facts pleaded at the time of the motion. It may only hope to be able to prove them. But plead them it must. The facts pleaded are the firm basis upon which the possibility of success of the claim must be evaluated. If they are not pleaded, the exercise cannot be properly conducted. [73] The motion judge’s decision to deny leave to amend involved the exercise of discretion which is entitled to deference. We see no error in principle or palpable or overriding error that would justify intervention by this court.
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