Court of Appeal for Ontario

Date: 2017-03-28 Docket: C62420 Judges: Juriansz, Lauwers and Hourigan JJ.A.

Between

TSI International Group Inc. Plaintiff (Respondent)

and

John Formosa, Steffen Nielsen, iFarm Local Inc., Richard Taylor, Great Life Group Inc. and John Masih, carrying on business as MSM Group Defendants (Appellants)

Counsel

Tim Gleason and Sean Dewart, for the appellants

Robert C. Taylor and Allyson Y. Lee, for the respondent

Heard: March 27, 2017

On appeal from: the order of Justice W. LeMay of the Superior Court of Justice, dated June 8, 2016 and the costs endorsement dated July 11, 2016.

Appeal Book Endorsement

[1] We are able to dispose of this appeal without addressing the substantive grounds of appeal raised. The motion judge ought to have granted leave to amend after striking from the appellants' statement of defence and counterclaim the defence of "clean hands" and the counterclaim of "abuse of process", and a number of paragraphs. Leave to amend should be denied only in the clearest of cases. The motion judge did not explicitly explain why he refused leave to amend. We are not persuaded by respondent's counsel's submission that the explanation is apparent from reading the reasons as a whole.

[2] As in Tran v. University of Western Ontario, 2015 ONCA 295, we conclude that in the absence of any articulated basis on which leave was denied and in the absence of any prior amendment, the appellants should not be deprived of the opportunity to amend their pleadings.

[3] We allow the appeal and vary the order of the motion judge by adding the words "with leave to amend" to paragraphs 1 and 2, and deleting the words "without leave to amend … is granted" and replacing them with the words "with leave to amend".

[4] As the "no leave to amend" argument was advanced on short notice, there will be no costs of the appeal. We decline to interfere with the costs of the motion.