Episode 7: Amending Documents & Claims

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Welcome everyone to the Ontario Small Claims Court Podcast. I want to thank you for taking the trouble to download this episode today and I hope that I can help you in some small way.

I’m Simon Brown and this podcast comes to you via iTunes, Stitcher Radio, or by using your favourite podcast app at www.osccpodcast.ca. If you haven’t done so already, you can either subscribe to iTunes or Stitcher Radio to get the latest update from the Ontario Small Claims Court Podcast and have it downloaded automatically to your device.

In this Episode 7 of the podcast, we are going to talk about amending documents and claims.

When people talk about amending documents, people naturally think about making a mistake and trying to correct it, kind of like this . . .

SFX: George Bush clip

Simon But the truth is that the real purpose of amending a document or claim is that it is used to reflect a change in circumstances, to reflect the addition of relevant facts, or to add additional arguments that better reflect the legal situation. Take, for example this other statement from another President of the United States . . .
SFX: Bill Clinton Denial clip
Sometimes you need to amend a claim because there are other causes of action that may be a better alternative to the original basis of the claim.

The Ontario Small Claims Court is actually quite forgiving with claims and defences about how they are written. In Superior Court, pleadings must be as exact as possible, because once you start your trial, you’re stuck with those pleadings. It becomes very difficult to change them. The reason why is simple: pleadings are written by lawyers who are supposed to know the law. When it comes to the Small Claims Court, the court is designed for the self-represented litigant. Therefore, tremendous leeway is given to written pleadings. The Small Claims Court will go out of its way to not only identify the cause of action as it is written in the claim or defence, but the Deputy Judge is free to draw upon their own experience as lawyers to apply other causes of action as the evidence unfolds. It’s because that the Small Claims Court must act as a summary court of law. Waiting for the self-represented litigant to realize another area of law in which to argue their case isn’t practical or fair.

Speaking as a paralegal, I cannot tell you how many times that a client comes in thinking they have one cause of action and not realizing that there may be two or three causes of action that may apply to their set of circumstances. Especially in employment law where a client was wrongfully dismissed and I found that they were leaving money on the table that should increase how much money they should be suing for. For example, did you know that if you are being paid commissions as a salesperson and then you are fired, that you would be entitled to commissions after you got fired? Here’s another example: did you know that if you are a construction contractor and that you are suing for breach of contract, that you could also sue on the basis that you provided materials and labour and that you should be compensated for it? That’s why I feel that if you want to sue someone on your own, then you should definitely have your claim reviewed by a paralegal or lawyer, if for no other reason than to make sure you are capturing every dollar that you are entitled to.

The right to amend is found under Rule 12.01 of the Rules of the Small Claims Court. Amending the document itself is straight forward. Take a copy of your plaintiff’s claim, defence, or defendant’s claim. If there are words or paragraphs that are being removed, take a ruler and with a straight line, cross out the offending words or paragraphs. If you are adding words or paragraphs, again, take a ruler and underline the new words or paragraphs. When you are finished with all of the insertions and deletions, make sure you have written on the front of the plaintiff’s claim, defence, or defendant’s claim the word “AMENDED”. Now you are free to serve the new amended document on all of the parties and can file the amended document along with the appropriate affidavits of service in the Small Claims Court. You do not need permission from the court to amend a claim or defence.

Unless. There is always an exception, isn’t there? The Small Claims Court does take exception as to when you can make the amendment. If it’s 30 days or less, you will need to get consent from the other parties to amend your claim or defence. This can be done by the Clerk of the Small Claims Court by all parties signing, then you serving and filing a Request for a Clerk’s Order on Consent Form 11.2A. If there is no consent, you must then serve, file, and argue a motion.

Form 11.2A, the Request for a Clerk’s Order on Consent is filled out the same way as a claim or defence is. If there is more than one defendant or plaintiff, don’t forget to add Form 1A after the first page and list the additional plaintiffs and defendants. On page 2 of the form, you will put your name or the name of your company as it was written on page one in the blank as to who is actually filing the Request. Make sure everyone got a copy of Form 11.2A and check that box off. Make sure that all of those parties that are affected by the request are not under disability and check that box off. Make sure that all of the parties have signed the Request, including new parties to be added, parties to be deleted, and parties that will be substituted. Check that box off when you are done.

Now go to Page 3 of the Request form and check off the appropriate box. The first three checkboxes are self explanatory. There is a checkbox for Plaintiff’s Claim, the Defence, and the Defendant’s Claim. The next three checkboxes are about adding, deleting, and substituting parties.

Sometimes mistakes happen as to naming the wrong party. This sometimes happen when you are naming a national donut shop chain as a defendant, but it is the numbered Ontario Incorporation that operates the particular store you are suing. You need to be suing the correct party; otherwise, you won’t get anything for your efforts. What if you have the wrong company name? There is a legal concept called ‘misnomer’ that can come into play. Misnomer generally works like this: you have named ABC Company as a party, but you find out later that ABC Industries Group Inc. is the parent to ABC Company. The test here is that if you change the name, does it make a difference as to who has liability? If it makes no difference, and all of the parties know that there is a lawsuit surrounding a particular set of facts, then no harm is done by changing the name in the pleadings. Another thing to be aware of is that under the Business Names Act, a company that is a party to a lawsuit cannot be in a proceeding if the business name contravenes the act or the business name is not registered with the Ontario government. The only exception is getting the permission of the court for the entity to use the business name in pleadings.

A general rule of thumb is that it is easier to remove the wrong parties than it is to add new parties. The reason why is multifaceted. The most common reason has to do with limitation periods for actions. Without exception, everyone is happy to accommodate you when you are removing a party from a lawsuit.

When you are adding parties to a lawsuit, you have to have in mind the Limitations Act. The Limitations Act says that generally, person who knows that they have a claim against someone has 2 years to bring a claim to court. If it is after that 2-year time, there are what’s called ‘discoverability’ clauses in the Act that states that the limitation period can start when the plaintiff realizes who that party is and what they had done. When the court assesses whether the party can be added to the claim or defence, the court will have to take into account what prejudice the new party will be in if they were to be included in the action. If the amendment happens after there has been a settlement conference, and that new-to-be-added party was not there at the first one, then the court may return everybody to the settlement conference stage in the proceedings.

The over-arching concern in amending documents is prejudice to the other parties that are affected by the amendment. The definition of ‘prejudice’ is being made to unjustly suffer. That prejudice may mean delay and adjournment needed by the parties based upon the new amendments. Usually, the courts will take that into account the prejudice suffered by a party by adding costs to the party making the amendment.

So, that takes care of how to make your own amendments to a document. But, what if the other party writes something that is totally argumentative or writes it in such a way that a trial judge will look at it and immediately think that you did something wrong making the process unfair? You can force the other side to make some edits. The way to do that is through a Rule 12.02 motion. The rule says that the court may strike out or amend all or part of any document that:
1. Discloses no reasonable cause of action or defence;
2. May delay or make it difficult to have a fair trial; or
3. Is inflammatory, a waste of time, or an abuse of the court’s process.
The stakes are higher in this process because the party who requests this motion can ask for the entire document to be struck, which would lead to dismissing or staying a claim, or granting judgment in favour of the plaintiff if striking a defence. If the document is a motion, then the motion can be stayed or dismissed with costs assigned to either side.

There are, of course two ways to approach this kind of motion, and both depend upon whether you are the moving party or the responding party. Let’s take a look at the moving party’s perspective.

In your affidavit supporting the motion, you will have to address one or more of the reasons why you are seeking the party to make an amendment or striking their document.

The first one is that it doesn’t disclose a reasonable cause of action or defence. This is where doing your legal research pays off in spades. Assuming that you have done your homework, you will know the legal tests involved in making a claim or raising a defence. The pleadings in of themselves should reveal the nature of the questions to be tried in order for the defence to meet the charge and respond accordingly.

The second reason is that the document may delay or make it difficult to have a fair trial. These are the people who file and serve reams of paper that mean nothing to the actual case itself.

The third reason is that the document is inflammatory, a waste of time, a nuisance or an abuse of the court’s process. These are usually easier to detect than the first two reasons. Sometimes, litigants use these pleadings to let out all sorts of grievances and slights against them in life and to vent it out directly at the opposing party. This is what human beings do, and it happens. If the pleadings call you a scumbag or a liar and a cheat, you can have those parts of the pleadings struck from those offending documents. The phrase “a waste of time” also means “no reasonable prospect for success”. To illustrate that point, let’s take, for example, the legal test for negligence. The test for negligence three-fold:
1. there must be a breach of a recognized duty of care through failure to meet the standard of care required;
2. there must be a causation of harm; and
3. that harm must have directly happened to the plaintiff and it was reasonably foreseeable.

Let’s frame this into an actual case. This case went all the way to the Supreme Court of Canada. The plaintiff was a customer of a bottled water service. One day, in a sealed bottle of water, he noticed a dead fly and part of another dead fly floating in it. This immediately made him vomit and caused all sorts of psychological trauma that affected his business and his everyday life for a period of time. So, time to apply the legal test for negligence.

Did the bottled water company owe a duty of care to the plaintiff? Yes, because bottled water company must make sure that there are no weird objects are floating around in their bottles or any other contaminants, either seen or unseen is in their water.

Was there a causation of harm? Yes, there was. The plaintiff had all sorts of reliable medical reports that proved that the plaintiff suffered from major depression and phobias directly from seeing the fly in the bottle of water.

Did it directly happen to the plaintiff and it was reasonably foreseeable? Yes, it did happen to the plaintiff directly, but no, it wasn’t reasonably foreseeable for the bottled water company to rationalize that every time that someone sees a dead fly in a bottle of water, that someone will get a psychiatric injury as a direct result of that kind of incident. If all of these parts are present in a claim, and you know they have no possible chance to win, based upon their pleadings alone, then you could bring a Rule 12 motion to court.

The phrase “abuse of the court’s process” can mean a myriad of things ranging from retrying a case that has already been resolved, or bringing the claim to the wrong court or multiple courts.

Sometimes, the court can, under their own initiative, stay or dismiss an action without either party making an issue of the document. If the court sees that this might be the case, the court can make this decision by written submissions only. The court would have to notify the plaintiff that it is considering an order under this section of the Rules. The plaintiff has 20 days to respond to the notice in writing and giving reasons why. Those written reasons can be no longer than four pages. If there is no response from the plaintiff, then the court can go ahead with the order without further notice to the plaintiff or any other party. If the court receives written submissions within the timeframe allowed and is kept to four pages maximum, then the court can tell the clerk to send a copy by mail to any other party. A party that receives the plaintiff’s written submissions has ten days to write a response to those submissions. The responding other parties must keep their submissions to four pages as well. In addition, they must send the response to the plaintiff, and any other party that requests to receive the response.

The court, again under its own initiative, can stay or dismiss a motion that appears on its face to be inflammatory, a waste of time, a nuisance, or an abuse of the court’s process.

If the court clerk becomes aware that an action or motion could be considered inflammatory, a waste of time, a nuisance, or an abuse of the court’s process, the clerk can notify the court of that situation.

Lastly, if the court recognizes that a person that is declared a “vexatious litigant” without obtaining permission of the court to start an action or bring a motion, the court can immediately order a stay or dismiss the action without giving notice.

You may be wondering how President Clinton amended his statement that you heard at the beginning of the podcast. Here it is.
SFX: Bill Clinton Apology clip
That wraps up this podcast. Your comments and questions are always invited. There are guides written by the Ministry of the Attorney General that are available at most Small Claims Court locations or on line at www.attorneygeneral.jus.gov.on.ca/english/courts/guides. There you will find the Guide to Motions and Clerk’s Orders.

Thank you for listening and I hope you join me again soon.