Amending Previous Admissions Within Defence:

Question: Can a defendant in Ontario’s Small Claims Court withdraw an admission in their Defence without getting consent or leave from the court?

Answer:   In Ontario Small Claims Court, if your Defence includes an admission to the Plaintiff’s factual allegations, you generally cannot withdraw that admitted fact by amendment without getting the Plaintiff’s consent or leave from the court, even though the Small Claims Court rules do not clearly spell out “withdrawal of admissions” in this exact context; courts often apply the Rules of Civil Procedure approach that an admission in a pleading may be withdrawn only on consent or with leave, meaning the court may require you to show the amendment raises a triable issue, the admission was inadvertent or due to wrong instructions, and the withdrawal will not cause prejudice you cannot address through costs, as reflected in 1760357 Ontario Limited v 1789316 Ontario Limited, 2013 CanLII 54055.   If you are thinking about amending after you already admitted facts, Denali Paralegal can help a family law services provider paralegal in Ontario review the wording of your pleading and advise the safest next step to avoid delays and procedural problems, call (877) 414-4377 to discuss your options.

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.