Last Updated: August 23 2026
In Ontario Small Claims Court, do I need consent or leave to withdraw a fact I admitted in my Defence?
Denali Paralegal can help you understand the rule: if an amendment to a Small Claims Court Defence would withdraw a previously admitted fact, you generally need either the Plaintiff’s consent or the Court’s leave before filing and serving the amended pleading. This follows the Small Claims Court’s amendment framework, but where the rules are silent on withdrawing admissions, the Court looks to the Rules of Civil Procedure, including the withdrawal-of-admission principle in Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 51.05, and case guidance like 1760357 Ontario Limited v. 1789316 Ontario Limited, 2013 CanLII 54055. As a result, the party seeking to withdraw an admission typically needs to show a triable issue, that the admission was inadvertent or due to wrong instructions, and that withdrawing it won’t cause uncompensable prejudice, and if consent is not obtained, you must bring the issue for leave. For Ontario family law paralegal help on next steps and wording, call (877) 414-4377.
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Consent or Leave of Court Is Required to Withdraw a Previously Admitted Fact
As the Defendant is preparing to respond to a lawsuit by drafting a document known as a Defence, which is the document that answers the allegations within the document known as a Plaintiff's Claim, great care is required to ensure that alleged facts are admitted only when such facts are uncontentious whereas after facts are admitted an amendment may be difficult.
Note: Please contact Denali Paralegal by phone at: (877) 414-4377 to discuss any specific questions that you may have.
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:
Right to Amend
12.01 (1) A plaintiff’s or defendant’s claim and a defence to a plaintiff’s or defendant’s claim may be amended by filing with the clerk a copy that is marked “Amended”, in which any additions are underlined and any other changes are identified.
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Time
(3) Filing and service of the amended document shall take place at least 30 days before the originally scheduled trial date, unless,
(a) the court, on motion, allows a shorter notice period; or
(b) a clerk’s order permitting the amendment is obtained under subrule 11.2.01 (1).
Matters Not Covered in Rules
1.03 (2) If these rules do not cover a matter adequately, the court may give directions and make any order that is just, and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the action and, if the court considers it appropriate, by reference to the Rules of Civil Procedure.
Withdrawal of Admission
51.05 An admission made in response to a request to admit, a deemed admission under rule 51.03 or an admission in a pleading may be withdrawn on consent or with leave of the court.
6. In this case I saw no difficulty in allowing the defence to claim the unpleaded set-off for rent for February 2011. However the defendant sought an amendment to allege that the amount of the security deposit was less than it had specifically admitted in its pleading. That raised the question whether in the Small Claims Court an amendment which withdraws an admission requires leave of the court.
7. I am aware of no appellate authority which addresses that question. My colleague Deputy Judge Dickinson held that leave is required, in Kinka Transport Inc. v. Rideway Transport Inc., [2012] O.J. No. 4081 (Sm. Cl. Ct.), at para. 60. With respect, I agree.
8. In Antipas v. Coroneos (1988), 26 C.P.C. (2d) 63 (Ont. H.C.J.), Saunders J. reviewed the authorities dealing with withdrawal of admissions, in light of the new Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and particularly the liberal and purposive interpretive principle set out in rule 1.04(1) of those rules. His Lordship observed that the modern trend had been “towards a more liberal view on the withdrawal of an admission.” The party seeking leave to amend a pleading by withdrawing an admission was required to satisfy the court that (1) the proposed amendment raises a triable issue; (2) the admission was inadvertent or resulted from wrong instructions; and (3) the withdrawal will not result in any prejudice that could not be compensated in costs.
9. Antipas v. Coroneos, supra, was specifically approved in Szelazek Investments Ltd. v. Orzech (1996), 44 C.P.C. (4th) 102 (Ont. C.A.). I see no good reason why the requirement for leave should not apply in Small Claims Court.
As detailed above, as per the Rules of the Small Claims Court and the Rules of Civil Procedure as well as the 1760357 Ontario case, a Defendant must obtain the permission of the Plaintiff, formally referred to as Consent, among other parties if any, or the Defendant must obtain permission from the Court, formally referred to as Leave, when the Defendant is amending a Defence pleading in such a way as to withdraw a previously admitted fact. This requirement, per the 1760357 Ontario case, applies even in matters of the Small Claims Court.
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.
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