Amending Previous Admissions Within Defence:

Question: Can a Defendant in Ontario’s Small Claims Court withdraw a previously admitted fact in an amended Defence without consent or a court order?

Answer: Reznik Legal Services can help as a Paralegal in Ontario explain when Consent of the Plaintiff or Leave of the Court is required before you serve and file an amended Defence that withdraws a previously admitted fact, since Small Claims Court Rule 12 allows amendments but the Rules of the Small Claims Court are silent on withdrawal of admissions and the approach uses Rules of Civil Procedure, R.R.O. 1990, Reg. 194—including that admissions may be withdrawn only “on consent or with leave of the court” under Rule 51.05, and the Small Claims Court requirement for leave is reflected in 1760357 Ontario Limited v 1789316 Ontario Limited, 2013 CanLII 54055.   In practice, your amendment request should raise a triable issue, explain if the admission was inadvertent or due to wrong instructions, and show the other side will not face irreparable prejudice that costs cannot fix, so you can proceed confidently; call (416) 222-9906 to book an Ontario-wide free consultation.

Consent or Leave of Court Is Required to Withdraw a Previously Admitted Fact

After a Defendant in a Small Claims Court case serves a Defence pleading containing admissions to factual allegations stated within the Plaintiff's Claim, the Defendant must obtain Consent from the Plaintiff or Leave, meaning special permission, from the Court, if an amendment to withdraw a previous pleaded admission is desired by the Defendant. Accordingly, a Defendant should answer the Plaintiff's Claim very cautiously.

The Law

The procedures for a case within the Small Claims Court are, generally, governed by the Rules of the Small Claims Court, O. Reg. 258/98. These rules allow a party to the litigation, being either Plaintiff or Defendant, to amend a pleading document, being either the Plaintiff's Claim or the Defence, up until thirty (30) days before an originally scheduled Trial date; however, the Rules of the Small Claims Court lack direction regarding an amendment of a Defence pleading where the amendment will result in the withdrawal of a previously admitted fact.  As the Rules of the Small Claims Court are silent, meaning lacking guidance, on the issue, reference to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 becomes necessary as well as reference to case law such as the court decision in 1760357 Ontario Limited v 1789316 Ontario Limited, 2013 CanLII 54055.  In regards to amendments, and specifically an amendment that will result in the withdrawal of a previous admission, the Rules of the Small Claims Court, the Rules of Civil Procedure, and the case of 1760357 Ontario, each respectively state:

As shown above per the Rules of the Small Claims Court and the Rules of Civil Procedure as well as the 1760357 Ontario case, Consent, meaning permission, of the Plaintiff, and other parties if applicable, or Leave, meaning permission, of the Court is required when amending a Defence pleading, even in Small Claims Court, in a manner that withdraws a previous admission to alleged facts.

Conclusion

The Rules of the Small Claims Court lack instruction or guidance regarding amendments to a Defence pleading in such a way that admissions of previous factual allegations are withdrawn; and accordingly, reference to the Rules of Civil Procedure as well as case law is necessary and reveals that Consent of the opposing party or Leave of the court is required prior to withdrawing a prior admission.