Amending Previous Admissions Within Defence:

Question: In an Ontario Small Claims Court case, do I need consent or leave to withdraw a fact I already admitted in my defence?

Answer: If you already admitted a factual allegation in your Small Claims Court defence, and later want to amend your pleading to withdraw that admission, you generally need the plaintiff’s consent or the court’s leave before you can take it back.   Even though the Small Claims Court rules set timing and the right to amend, they do not clearly address withdrawal of admissions, so courts look to the Rules of Civil Procedure and case law such as 1760357 Ontario Limited v 1789316 Ontario Limited, 2013 CanLII 54055, which held that leave is required when an amendment would withdraw an admission.   This matters because amending to withdraw an admission can raise triable issues, may be treated as a correction of inadvertence or wrong instructions, and must avoid unfair prejudice that cannot be addressed by costs.   For step-by-step help drafting an amended defence request (and choosing whether to seek consent or move for leave), contact Olson Craig Legal at (226) 886-2001; Ontario lawyer & paralegal teams help tenants, consumers, and businesses in Small Claims Court respond carefully to admissions to reduce procedural risk.

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Consent or Leave of Court Is Required to Withdraw a Previously Admitted Fact

When a Defendant to a lawsuit serves and files a Defence pleading in response to the allegations as contained within the Plaintiff's Claim pleading, proper care should be taken to proper admit facts that should be admitted while also ensuring to avoid inaccurately admitting facts that are truly contentious as subsequently withdrawing the admission may be troublesome.

The Law

Generally, the Rules of the Small Claims Court, O. Reg. 258/98, permit a litigant to amend a pleading up until thirty (30) days prior to the original date scheduled for Trial; however, the Rules of the Small Claims Court are silent, meaning lacking details, about the amendment of a Defence pleading in a manner that withdraws a previously admitted factual allegation.  Accordingly, reference to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and case law, including the case of 1760357 Ontario Limited v 1789316 Ontario Limited, 2013 CanLII 54055 provide guidance.  Specifically, the Rules of the Small Claims Court, the Rules of Civil Procedure, and the 1760357 Ontario case, 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.