Amending pleadings in a construction lien matter.

Date: August 2022

A recent decision from the Superior Court of Justice discussed the test to be applied on a motion to amend a pleading in a construction lien matter.

For ordinary actions, in determining whether an amendment to a pleading should be allowed under Rule 26, the presumption favours the amendment unless prejudice can be shown that cannot be compensated for by costs or an adjournment.

In the context of a construction lien matter, the bar is not quite as low as an ordinary action, and prejudice caused by the proposed amendment is inferred. However, the Court makes it clear that an inference “is a step away from saying that prejudice is deemed or even presumed.” As a result, although prejudice is inferred, all that is required to overcome the inference of prejudice, according to the Divisional Court is “sufficient proof to the contrary”.

For litigators trying to move matters through a legal system that is expensive and often quite inefficient, it’s very important to pick your battles wisely. As a result, before deciding to oppose a motion to amend pleadings, I think litigators should take a careful and objective look at the circumstances at hand.Click here for a link to the decision.

Scroll to Top