Rule 26 makes it clear that a court must grant leave to amend a pleading on terms that are just unless prejudice would result that could not be compensated for by costs or an adjournment.
Curiously, however, while the Rules provide a pleading can be amended easily (in most cases) the Rules are silent regarding Applications. Can an Application be amended and if so on what basis?
Today's decision in Assaf Estate (Re), 2008 CanLII 23489 (ON S.C.) deals with the issue (among many other things) and finds Applications may be amended in the same fashion pleadings are amended.
The Court notes:
"[39] Although the Rules of Civil Procedure contain no specific provision governing the amendment of applications, one can analogize to Rule 26.01 which requires a court to 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."
In passing it may be noted that today's decision is the 13th reported decision to come of the Assaf Estate. One can only hope it will be the last decision -- I suspect, however, the proceedings will continue on.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
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