Executive Summary: Key Legal and Evidentiary Issues

• The plaintiff sought leave to amend the Statement of Claim to add Majestic Automotive Limited as a defendant in a slip and fall action.
   
• Benlea did not oppose the amendment but asked that the plaintiff pay its costs as a term of leave.
   
• Under Rule 26.01, leave to amend must be granted on just terms unless prejudice would result that costs or an adjournment could not compensate.
   
• Correspondence dated May 8, 2026, in which Benlea identified Majestic’s role and warned it would seek costs, was relied on in opposing the motion on costs.
   
• Plaintiff’s counsel did not take up Benlea’s invitation to discuss the issue and offered no explanation for the lack of response.
   
• Costs in this context are compensatory rather than punitive, and Rule 57.01 allows the court to consider conduct that unnecessarily lengthens a proceeding.
   

Facts of the case

Jessy Barkhouse brought an action for damages arising from a slip and fall accident. On March 9, 2026, the plaintiff issued a Statement of Claim in a separate action naming Majestic Automotive Limited as the sole defendant. A second action, the present one, followed on April 13, 2026, naming Benlea Group of Companies as the sole defendant. Both actions arose from the same alleged loss and pleaded identical facts against different defendants. The plaintiff later discontinued the action against Majestic without explaining to Benlea why.

On May 8, 2026, before serving its Statement of Defence and before pleadings closed, Benlea told plaintiff’s counsel it intended to seek instructions to issue a third party claim against Majestic and Top Gear Automotive. Benlea advised that both were tenants or occupiers of the property and that Majestic was believed to be responsible for winter maintenance in the parking-lot area. Its counsel invited a telephone discussion and said it would seek costs if the plaintiff waited until after a third party claim was issued and pleadings closed before moving to add those parties. Plaintiff’s counsel replied, “[f]rom what I understand quite clearly, your client is responsible, no one else,” and urged Benlea to serve its defence quickly to avoid default. Later that same day, Benlea’s counsel explained that it had voluntarily provided the information so the plaintiff could consider amending the claim to add the correct defendants. Counsel repeated Benlea’s view that the correct defendants had not been named and warned that a later amendment would require Benlea to incur costs to respond to the amended pleading. It added that it would rely on the correspondence to support a costs request if the plaintiff sought an amendment after a third party claim was issued and pleadings closed.

Benlea served and filed its Statement of Defence on May 14, 2026, and issued a third party claim against Majestic and Top Gear on May 25, 2026. In July 2026, Benlea delivered its draft affidavit of documents and Schedule “A” productions. These included snow-removal invoices from Majestic to Benlea for the 2024–2025 and 2025–2026 winter seasons. Benlea subsequently advised plaintiff’s counsel that its arrangement with Majestic was verbal, with Majestic responsible for plowing the property and invoicing Benlea at the end of the winter season. Top Gear delivered its pleadings on September 2, 2026, and Majestic delivered its pleadings on September 14, 2026. Each filed a defence and crossclaim to the third party claim and a Statement of Defence to the main action.

On September 18, 2026, the plaintiff served a motion seeking leave to add Majestic as a defendant, returnable October 1, 2026. Plaintiff’s counsel had booked the motion unilaterally, and it was returnable in 13 days, so Benlea asked that dates be canvassed with all counsel. Benlea also said it would seek instructions to oppose the motion on costs alone, relying on the May 8, 2026 correspondence. On September 24, 2026, Benlea confirmed it took no position on the amendment itself but opposed the motion on costs.

Policy and legislative provisions at issue

Rule 26.01 requires the court, at any stage of an action, to 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. In exercising its discretion as to costs under Rule 57.01(1), the court must consider the result in the proceeding. It may also consider other circumstances, including:

• conduct that tended to lengthen the duration of the proceeding unnecessarily;
• steps that were improper, vexatious or unnecessary, or taken through mistake, negligence or excessive caution;
• a party’s refusal to admit anything that should have been admitted.

Under Rule 57.01(2), success in a proceeding or a step does not prevent a costs award against the successful party. Rule 57.03(1) places the costs of a motion in the court’s discretion, subject to rule 57.03(2). Section 131(1) of the Courts of Justice Act gives the court discretion over the costs of a proceeding or a step in it, including by whom and to what extent they are paid.

The court also referred to case law on amendment costs. Tilden v. St. Catharines (City), 2019 ONSC 7522, recognized that costs are often not awarded against the moving party on an amendment motion and that the terms of the amendment usually compensate the opposing party for additional costs. MacPherson v. 2155530 Ontario Inc. et al., 2022 ONSC 6822, treated a request to correct one’s own pleading as an indulgence that does not ordinarily justify costs to the moving party. Ross Dixon Financial Services Limited v. Fair River Capital Corporation et al. concerned a motion to add a defendant after the close of pleadings. There, the court confirmed that where the addition of a party was overlooked, it may be appropriate to require the moving party to bear the costs of adding that party and amending the proceeding.

Reasoning and analysis

Benlea argued that leave should be granted only on terms requiring the plaintiff to compensate it for the reasonable costs caused by the plaintiff’s chosen procedural course. In its view, the plaintiff had both the information and the opportunity to add Majestic before pleadings closed. The plaintiff did not seriously contest the facts. According to the court, it may have been argued that the indications from Benlea’s counsel were conclusory and that Benlea provided no documentary basis concerning Majestic until its affidavit of documents. Plaintiff’s counsel did not dispute Benlea’s request to communicate and gave no explanation for the lack of response.

The court found this was not a case where the plaintiff learned of Majestic’s potential involvement only after pleadings closed, since Majestic had been the sole defendant in the first action. Before pleadings closed, Benlea had advised the plaintiff of the roles of Majestic and Top Gear, invited discussion, and explained why it shared the information. It also gave express notice that it would seek costs. Once the plaintiff declined to act, Benlea reasonably protected its position by preparing, issuing, serving and litigating the third party claim. Many of the resulting costs would foreseeably become unnecessary once the plaintiff moved to add Majestic, a party it was already familiar with. The court found the plaintiff’s conduct, whether perfunctory, dismissive or otherwise, would reasonably and objectively be viewed as leading to delay, lengthening the proceeding, and causing unnecessary steps and costs, as occurred here. Stressing that costs in this context are compensatory and not punitive, the court added that Benlea’s responding materials on the motion also arose from the plaintiff’s timing. They also arose from the plaintiff’s request for relief without addressing the costs that timing caused.

Ruling and overall outcome

Leave was granted to amend the Statement of Claim as requested, subject to a costs term in Benlea’s favour. After reviewing the Bill of Costs submitted and finding the matter was not of any significant complexity, the court fixed Benlea’s costs at $2,500, payable by the plaintiff within 30 days. The decision does not break that figure down among the third party claim, the motion, and the anticipated amendments to Benlea’s pleadings.