The Plaintiff appealed a Master’s Decision dismissing its Application to add new claims and a new Defendant to an existing Action. The Pleadings had closed.

Justice Goss noted that Rule 3.62(1)(b) allows a party to amend Pleadings after the Pleadings have closed in accordance with Rule 3.74 and Rule 3.65. Rule 3.74 requires the Court to be satisfied that an Order should be made to add, substitute or remove or correct the name of any party other than a Plaintiff. The Court cannot make an Order under Rule 3.74 if prejudice would result that could not be remedied by a Costs Award, an adjournment or the imposition of terms. The burden is on the party resisting the amendment to show that it would suffer non-compensable prejudice if the amendment is allowed. The most common form of prejudice is the Respondent’s lost chance to lead more evidence; however, other prejudice may exist including the significant passage of time or the death or incapacitation of a key witness. Exceptions to the general rule allowing for amendments include where the amendment requested is hopeless, the amendment seeks to add a new party or new cause of action after the expiry of a limitation period, and where there is an element of bad faith associated with the failure to plead the amendment in the first instance.

This Application to amend dealt with an amendment that was after the expiry of a limitation period. The Court was thus required to consider Section 6 of the Limitations Act to determine whether the added claim was “related to the conduct, transaction or events described in the original pleading in the proceeding”. After reviewing the facts of this case, Justice Goss allowed the Appeal and granted the Plaintiff’s Application for an Order allowing it to amend its Amended Statement of Claim.