Does an amended order that repeats an error affect the judgment?

Question from The Illusion, Does an amended order that repeats an error affect the judgment?

Answer from AI:

What the law says about amending an order

In Canada a court may amend its own orders to correct clerical or typographical mistakes, or to reflect the true intention of the judgment. The authority to do so is found in the Courts of Justice Act (Ontario) and the corresponding Rules of Civil Procedure in other provinces. For example, Ontario’s Rule 61.02 allows a judge to correct a mistake in a written order without the need for a new hearing, provided the correction does not change the substance of the decision.

When the amendment still contains the error

If the amended order is intended to fix the error but the same mistake remains—perhaps expressed in different wording—the court’s correction has not been effective. The law treats this as an incomplete or defective amendment, and the parties have several procedural options:

1. File a further motion to amend

   • A party can bring a motion for further amendment (or a motion for clarification) asking the judge to correct the remaining error.
   • The motion should explain why the current wording is still inaccurate and how it diverges from the judge’s original intent.

2. Seek a re‑draft of the judgment

   • In more serious cases, a party may request that the judge re‑draft the judgment or issue a new judgment that accurately reflects the decision. This is rare, but courts will do it when the error affects the rights or obligations of the parties.

3. Appeal the order

   • If the error changes the legal effect of the order (e.g., the amount of a monetary award, the scope of an injunction, or a custodial arrangement), the affected party may apply for leave to appeal to a higher court.
   • The appeal would argue that the error, persisting in both the original and amended orders, undermines the enforceability of the judgment.

Does the original judgment become “questioned”?

The existence of an error in the original order does not automatically invalidate the judgment. Courts distinguish between:

• Clerical or typographical errors – these are generally corrected by amendment without affecting the substantive judgment.
• Substantive errors – if the mistake changes the legal rights of a party, the court may treat the judgment as defective and require a more formal correction.

When the amended order still repeats the error, the court may view the situation as still defective, prompting the procedural steps above. The original judgment remains lawful so long as the court’s final, correct order is eventually issued. Until that happens, enforcement of the defective order can be stayed or set aside on the basis that the order does not accurately reflect the court’s decision.

Practical steps for the parties

• Promptly raise the issue – file a motion for further amendment or clarification as soon as the error is noticed. Courts favor timely corrections.
• Document the intended outcome – attach the original judgment, the first amendment, and a clear statement of the correct wording you are seeking.
• Consider the impact – if the error affects a material right (e.g., a payment amount, a restraining order), an appeal may be more appropriate than another amendment.
• Preserve the record – keep copies of all filings and court rulings; they will be essential if the matter proceeds to a higher court.

When to get legal help

Because the appropriate remedy depends on the nature of the error, the province’s specific rules, and the potential impact on your rights, it is advisable to consult a licensed lawyer who can assess the facts, draft the necessary motions, and advise whether an appeal is warranted.

For further reference, see:

• Courts of Justice Act, R.S.O. 1990, c. C.42 – the provincial statute governing court powers to amend orders.
• Ontario Rules of Civil Procedure, Rule 61.02 – the rule that permits correction of clerical mistakes.

(If you are in a different province, analogous statutes and rules apply; a lawyer can point you to the relevant provisions.)