Rule 12 – Amendment, Striking Out, Stay and Dismissal

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.  O. Reg. 258/98, r. 12.01 (1).

Electronic Filing

(1.1) In the case of a plaintiff’s claim that was issued electronically under rule 7.04, the plaintiff may file the amended claim electronically if the claim being amended has not yet been served. O. Reg. 38/16, s. 7.

Requirement to File in Paper Format

(1.2) Subrule 7.02 (5) applies, with necessary modifications, to an amended plaintiff’s claim that is filed electronically under subrule (1.1). O. Reg. 38/16, s. 7.

Service

(2) The amended document shall be served by the party making the amendment on all parties, including any parties in default, in accordance with subrule 8.01 (14).  O. Reg. 258/98, r. 12.01 (2); O. Reg. 78/06, s. 25 (1).

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).  O. Reg. 393/09, s. 13.

Service on Added Party

(4) A person added as a party shall be served with the claim as amended, except that if the person is added as a party at trial, the court may dispense with service of the claim.  O. Reg. 258/98, r. 12.01 (4).

No Amendment Required in Response

(5) A party who is served with an amended document is not required to amend the party’s defence or claim.  O. Reg. 78/06, s. 25 (3).

Motion to Strike out or Amend a Document

12.02 (1) The court may, on motion, strike out or amend all or part of any document that,

(a) discloses no reasonable cause of action or defence;

(b) may delay or make it difficult to have a fair trial; or

(c) is inflammatory, a waste of time, a nuisance or an abuse of the court’s process.  O. Reg. 78/06, s. 26.

(2) In connection with an order striking out or amending a document under subrule (1), the court may do one or more of the following:

1. In the case of a claim, order that the action be stayed or dismissed.

2. In the case of a defence, strike out the defence and grant judgment.

2.1 In the case of a motion, order that the motion be stayed or dismissed.

3. Impose such terms as are just. O. Reg. 78/06, s. 26; Reg. 44/14, s. 11 (2).

General Power to Stay, Dismiss Action

(3) The court may, on its own initiative, make the order referred to in paragraph 1 of subrule (2) staying or dismissing an action, if the action appears on its face to be inflammatory, a waste of time, a nuisance or an abuse of the court’s process. O. Reg. 44/14, s. 11 (3).

(4) Unless the court orders otherwise, an order under subrule (3) shall be made on the basis of written submissions in accordance with the following procedures:

1. The court shall direct the clerk to send notice by mail to the plaintiff that the court is considering making the order.

2. The plaintiff may, within 20 days after receiving the notice, file with the court a written submission, no more than four pages in length, responding to the notice.

3. If the plaintiff does not file a written submission that complies with paragraph 2, the court may make the order without any further notice to the plaintiff or to any other party.

4. If the plaintiff files a written submission that complies with paragraph 2, the court may direct the clerk to send a copy of the submission by mail to any other party.

5. A party who receives a copy of the plaintiff’s submission may, within 10 days after receiving the copy, file with the court a written submission, no more than four pages in length, responding to the plaintiff’s submission, and shall send a copy of the responding submission by mail to the plaintiff, and, on the request of any other party, to that party. O. Reg. 44/14, s. 11 (3).

(5) The clerk shall send a copy of an order made under subrule (1) by mail to all the parties as soon as possible after the order is made. O. Reg. 44/14, s. 11 (3).

(6) A document required under this rule to be sent by mail shall be mailed in the manner described in subrule 8.07 (1), and is deemed to have been received on the fifth day after it is mailed. O. Reg. 44/14, s. 11 (3).

General Power to Stay, Dismiss Motion

(7) The court may, on its own initiative, make the order referred to in paragraph 2.1 of subrule (2) staying or dismissing a motion, if the motion appears on its face to be inflammatory, a waste of time, a nuisance or an abuse of the court’s process. O. Reg. 44/14, s. 11 (3).

(8) Subrules (4) to (6) apply, with necessary modifications, to the stay or dismissal of a motion under subrule (7) and, for the purpose, a reference to the plaintiff shall be read as a reference to the moving party. O. Reg. 44/14, s. 11 (3).

Clerk to Notify Court

(9) If the clerk becomes aware that an action could be the subject of an order under subrule (3), or that a motion could be the subject of an order under subrule (7), the clerk shall notify the court. O. Reg. 44/14, s. 11 (3).

Stay or Dismissal if No Leave under Courts of Justice Act

12.03 (1) If the court determines that a person who is subject to an order under subsection 140 (1) of the Courts of Justice Act has instituted or continued an action without the order having been rescinded or leave granted for the action to be instituted or continued, the court shall make an order staying or dismissing the action. O. Reg. 44/14, s. 11 (4).

Request for Order

(2) Any party to the action may file with the clerk a written request for an order under subrule (1). O. Reg. 44/14, s. 11 (4).

Service of Order

(3) An order under subrule (1) may be made without notice, but the clerk shall send a copy of the order by mail, in the manner described in subrule 8.07 (1), to every party to the action as soon as possible after the order is made. O. Reg. 44/14, s. 11 (4).