Amendment of pleadings

Marks v. Ottawa (City), 2011 ONCA 248 deals with procedural issues including the entitlement to amend pleadings:

[18]         Rule 26.01 provides that:

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.

[19]         Although the general rule is that amendments are presumptively approved, there is no absolute right to amend pleadings.  The court has a residual right to deny amendments where appropriate: Daniele v. Johnson (1999), 45 O.R. (3d) 498 (Div. Ct.) at paras. 11 -15.[2]  Further, I would agree that the proper factors to be considered are those first set out in Simrod v. Cooper, [1952] O.W.N. 720 (H.C.J. Master) at p. 721, aff'd at p. 723 (H.C.J.), and quoted with approval in Vaiman v. Yates (1987), 60 O.R. (2d) 696 (H.C.J.) at p. 698, which can be summarized as follows:

·        An amendment should be allowed unless it would cause an injustice not compensable in costs.

·        The proposed amendment must be shown to be an issue worthy of trial and prima facie meritorious.

·        No amendment should be allowed which, if originally pleaded, would have been struck.

·        The proposed amendment must contain sufficient particulars.