Yes No Share to Facebook
Amending Previous Admissions Within Defence:
Requires Opposing Party Consent or Leave of Court in Some Circumstances
Last Updated: July 02 2026
Question: Can a defendant in Ontario Small Claims Court withdraw an admission in its defence without getting consent from the plaintiff or leave from the court?
Answer: In Ontario Small Claims Court, if your defence includes an admission of pleaded facts, you generally cannot withdraw that admission just by filing an amended defence without getting the plaintiff’s consent or the court’s leave; the Small Claims Court rules allow amendments within the usual timing limits, but they are silent on withdrawing admissions, so courts look to the Rules of Civil Procedure and the reasoning in 1760357 Ontario Limited v 1789316 Ontario Limited, 2013 CanLII 54055, which indicates that leave (and consent where applicable) is required when an amendment retracts a previously pleaded admission. If you are considering withdrawing an admission, VP Legal Services & Notary paralegal and notary services can help you assess your pleading options, reduce procedural mistakes, and prepare a practical plan for next steps for people across Ontario, with a free 15-minute intake and a consultation option; call (437) 286-1499 to discuss your situation today.
Consent or Leave of Court Is Required to Withdraw a Previously Admitted Fact
After a Defendant in a Small Claims Court case serves a Defence pleading containing admissions to factual allegations stated within the Plaintiff's Claim, the Defendant must obtain Consent from the Plaintiff or Leave, meaning special permission, from the Court, if an amendment to withdraw a previous pleaded admission is desired by the Defendant. Accordingly, a Defendant should answer the Plaintiff's Claim very cautiously.
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:
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.
...
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).
Matters Not Covered in Rules
1.03 (2) If these rules do not cover a matter adequately, the court may give directions and make any order that is just, and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the action and, if the court considers it appropriate, by reference to the Rules of Civil Procedure.
Withdrawal of Admission
51.05 An admission made in response to a request to admit, a deemed admission under rule 51.03 or an admission in a pleading may be withdrawn on consent or with leave of the court.
6. In this case I saw no difficulty in allowing the defence to claim the unpleaded set-off for rent for February 2011. However the defendant sought an amendment to allege that the amount of the security deposit was less than it had specifically admitted in its pleading. That raised the question whether in the Small Claims Court an amendment which withdraws an admission requires leave of the court.
7. I am aware of no appellate authority which addresses that question. My colleague Deputy Judge Dickinson held that leave is required, in Kinka Transport Inc. v. Rideway Transport Inc., [2012] O.J. No. 4081 (Sm. Cl. Ct.), at para. 60. With respect, I agree.
8. In Antipas v. Coroneos (1988), 26 C.P.C. (2d) 63 (Ont. H.C.J.), Saunders J. reviewed the authorities dealing with withdrawal of admissions, in light of the new Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and particularly the liberal and purposive interpretive principle set out in rule 1.04(1) of those rules. His Lordship observed that the modern trend had been “towards a more liberal view on the withdrawal of an admission.” The party seeking leave to amend a pleading by withdrawing an admission was required to satisfy the court that (1) the proposed amendment raises a triable issue; (2) the admission was inadvertent or resulted from wrong instructions; and (3) the withdrawal will not result in any prejudice that could not be compensated in costs.
9. Antipas v. Coroneos, supra, was specifically approved in Szelazek Investments Ltd. v. Orzech (1996), 44 C.P.C. (4th) 102 (Ont. C.A.). I see no good reason why the requirement for leave should not apply in Small Claims Court.
As detailed above, as per the Rules of the Small Claims Court and the Rules of Civil Procedure as well as the 1760357 Ontario case, a Defendant must obtain the permission of the Plaintiff, formally referred to as Consent, among other parties if any, or the Defendant must obtain permission from the Court, formally referred to as Leave, when the Defendant is amending a Defence pleading in such a way as to withdraw a previously admitted fact. This requirement, per the 1760357 Ontario case, applies even in matters of the Small Claims Court.
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.
NOTE: A significant volume of online queries, such as “lawyers nearby” or “top lawyer in,” frequently indicates a desire for prompt, competent legal assistance rather than a certain job title. In Ontario, the same Law Society that governs lawyers also regulates licensed paralegals, granting them the authority to represent clients in specified litigation cases. Core functions of this role include advocacy, legal assessment, and procedural expertise. VP Legal Services & Notary provides legal representation within its permitted scope, focusing on strategic positioning, evidence preparation, and persuasive advocacy to attain efficient and positive outcomes for clients.
