Defendants Refused Leave to Amend Statement of Defence less than Ten Weeks Before Trial Sittings

Defendants Refused Leave to Amend Statement of Defence less than Ten Weeks Before Trial Sittings

Burton v. Docker, 2023 ONSC 1974

Written By: Lindsay Charles and Cody Malloy, Student-at-Law

A recent decision from the Superior Court of Justice stemmed from an incident where the Plaintiff was rear-ended by the Defendant driver.  The Defendants brought a motion moving for leave to amend their statement of defence to plead the inevitable accident defence.  The Plaintiff opposed the motion on prejudicial grounds, claiming lengthy delay inadequate justification.

The collision occurred in 2017, and the Plaintiffs injuries were later deemed catastrophic.  Although the inevitable accident defence was not explicitly claimed in the statement of defence, the Defendants argued that the Plaintiff had notice of this defence from the examinations for discovery, which were in July 2020, where the Defendant driver provided evidence that one of her tires blew just before the collision.  Importantly, the Plaintiff’s claim would be defeated should the Defendants be permitted to plead the inevitable accident defence.

After examinations for discovery, Plaintiff’s counsel requested communication “soon” if the Defendants were taking the position they bore no liability.  The action was set down for trial in May 2021.  An unsuccessful mediation occurred in December 2021, and a pre-trial conference occurred in August 2022.  The Defendants did not seek leave to amend their defence until 2.5 years after examinations for discovery.

Furthermore, the Defendants’ motion to transfer the action and try it together with the Plaintiff’s related short and long term disability benefits action was dismissed in February 2023, citing the risk of delay to the Plaintiff.  The Regional Senior Justice who dismissed the motion noted that any delay would force the Plaintiff to face a higher deductible for non-pecuniary general damages.  Additionally, the Plaintiff’s pre-trial income loss claim is capped at 70%, whereas the Plaintiff can recover 100% of post-trial income loss.

Legal Principles

Rules 25.07(4) 26.01, and 48.07(a) of the Rules of Civil Procedure are relevant to this case:

Rule 25.07(4): In a defence, a party shall plead any matter on which the party intends to rely to defeat the claim of the opposite party and which, if not specifically pleaded, might take the opposite party by surprise or raise an issue that has not been raised in the opposite party’s pleading.

Rule 26.01: 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.

Rule 48.07: Where an action is placed on a trial list,

(a)  all parties shall be deemed to be ready for trial…

The Court cited the following case law as relevant to the motion at issue:

[16]         In 1588444 Ontario Ltd. v State Farm Fire and Casualty Co.2017 ONCA 42, at para 25, the Court of Appeal summarized the general principles regarding leave to amend motions:

  •         the rule requires the court to grant leave to amend unless the responding party would suffer non-compensable prejudice
  •         the amendment may be permitted at any stage of the action
  •         the prejudice must flow from the amendments and not from some other source
  •         the non-compensable prejudice may be actual prejudice—evidence that the responding party has lost an opportunity in the litigation that cannot be compensated as a result of the amendment (specific details must be provided)
  •         non-compensable prejudice does not include prejudice resulting from the potential success of the plea or the fact that the amended plea may increase the length or complexity of the trial
  •         at some point, the delay in seeking an amendment will be so lengthy, and the justification so inadequate, that prejudice to the responding party will be presumed
  •         the onus to prove actual prejudice lies with the responding party
  •         the onus to rebut presumed prejudice lies with the moving party
  •         when the delay in seeking amendment is lengthy, courts will presume prejudice to the responding party and the onus to rebut the presumed prejudice lies with the moving party

[17]         Requiring a party to change its entire litigation strategy late in the litigation is non-compensable prejudice. See Horani, at para 36; Fam. Delicatessen Ltd. v London (City)2006 CanLII 5135 (Ont CA), at para 7.

[18]         The proposed amendment must be shown to be an issue worthy of trial and prima facie meritorious. See Marks v Ottawa (City)2011 ONCA 248, at para 19.

[19]         In Toronto Standard Condo. Corp. No 2051 v Clairlea Inc.2016 ONSC 2948, Associate Judge Haberman held that if a proposed amendment has “been forecast by evidence disclosed at discoveries”, leave to amend should be granted and any prejudice dealt with by costs or an adjournment. This decision aligns with the Court of Appeal’s framework, which acknowledges that, in some cases, the presumed prejudice overrides the salutary effects of an adjournment or costs order.


The Plaintiff argued that the Defendants’ delay in seeking this amendment was so lengthy and the justification so inadequate that prejudice should be presumed.

The Court noted that the Defendants’ motion was brought less than ten weeks before the trial sitting.  The Court also highlighted the Regional Senior Justice’s finding that a delay in this action’s trial “would not be in the interests of justice”.

Justice Agarwal elaborated on the timeline of the Defendants’ delay.  The Defendants’ lawyer and insurer knew about the blown tire in February 2019, and they did not provide an explanation for the delay in the affidavits filed for this motion.  The defence also offered no explanation as to why they waited over two years since examinations for discovery to amend their defence.

Justice Agarwal found that the proposed amendment would change the Plaintiff’s litigation strategy:

[28]         The inevitable accident defence might have changed Burton’s entire litigation strategy. Though this prejudice could be addressed through appropriate orders regarding the conduct of the trial or an adjournment of the trial, and concerning discovery and expert’s reports, Burton should not be put in the position of delaying the trial, which is not in the interests of justice, because the Dockers failed to plead this defence promptly.

[29]         I also put some weight on rule 48.07(a). Though the Dockers are entitled to seek leave to amend their pleading any time, even after trial, they were deemed to be ready for trial when this action was placed on the trial list after the pre-trial conference. Obviously, they weren’t ready for trial given they now seek an adjournment. That they haven’t explained this discrepancy is further evidence of the presumed prejudice to Burton.


The Court dismissed the Defendants’ motion due to presumed prejudice against the Plaintiff arising from the Defendants’ lengthy delay in requesting leave and inadequate justification for doing so.

This case stands for the principle that a defendant is not automatically granted leave to amend their statement of defence, especially if in doing so would cause a plaintiff to unfairly change its litigation strategy.  Here, the Court did not want to grant an adjournment to allow the Plaintiff to change its litigation strategy as any further delay of the trial would result in further prejudice to the Plaintiff.

Lindsay Charles


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