Substance and not form

For at least a hundred years Courts have been moving away from mere form to focus on substance. Today's Court of Appeal decision in Hester v. Canada , 2008 ONCA 634 makes this point clearly.

A motion to amend was refused but the Court, in refusing, referred to a motion to strike. The motions court erred but it was an error that didn't matter because the result was the same regardless of the formal nature of the motion.

Accordingly the Court denied the appeal saying:

[1]               This is an appeal from the order of Lax J. striking without leave to amend certain paragraphs and causes of action in a draft fresh as amended statement of claim. There is no merit to the jurisdiction argument. While the motion was brought pursuant to Rule 26 seeking leave to amend the statement of claim and the motion judge expressed her reasons in language suggestive of a motion to strike, in our view, this is immaterial. The moving party sought their relief by filing a draft fresh as amended statement of claim which contained the proposed amendments. That is to say, in the form of a document already amended.

[2]               In the circumstances, we view this as really a distinction without a difference. The language used is immaterial in the circumstances here. Whether leave to amend is refused or the proposed amended paragraphs struck without leave to amend the result is the same. The proposed pleading and causes of action which the motion judge struck are not available to the moving parties. They could not be raised again in any other revised pleading.
James Morton
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