869120 ALBERTA LTD v B & G ENERGY LTD, 2011 ABQB 209

EIDSVIK J

3.6: Where an action is carried on
3.66: Costs
3.74: Adding, removing or substituting parties after close of pleadings

Case Summary

The Plaintiff applied to amend a Statement of Claim to allow new Parties to be added and for substantial amendments to the Statement of Claim.

Eidsvik J. addressed the Rules of Court dealing with amendments, including Rules 3.62 through to 3.76, holding that the most applicable Rules were 3.65, which gives the Court the right to permit an Applicant to amend a pleading, and 3.74, which applies when an Applicant seeks to add parties to an Action. Rule 3.74(2)(b) allows the Court to Order that a person be added if the Court is “satisfied that the order should be made”. However, Rule 3.74(3) stipulates that “[t]he Court may not make an order under this rule if prejudice would result for a party that could not be remedied by a costs award, an adjournment or the imposition of terms”.

Eidsvik J. held that former Rules 132 and 133, although somewhat differently worded, were similarly broad, and that Rule 3.74(3) basically codifies the “classic rule” that “an amendment should be allowed no matter how careless or late, unless there is prejudice”, as outlined in Balm v 3512061 Canada Ltd, 2003 ABCA 98 and Milfive Investments Ltd v Sefel, 1998 ABCA 161. Citing additional case law arising from the former Rules relating to amendments, Eidsvik J. noted that other generally accepted criteria include that the amendment must raise a triable issue (must not be “hopeless”), and that there must be a “modest degree of evidence” if the amendment is beyond trivial or of a clarifying nature, unless the claim to be added is fraud, in which case a “stiffer test” is to be used. Finally, Eidsvik J. held that, if the Claim against a person to be added or the cause of action is outside the limitation period, then reference is to be made to s. 6 of the Limitations Act, RSA 2000, c L-12, to determine if it should be allowed.

Eidsvik J. allowed several of the requested amendments, and allowed the addition of some of the additional Parties. With respect to costs, Eidsvik J. held that, pursuant to Rule 3.66, the Party filing the pleading is subject to costs. Eidsvik J. noted that although the “result ha[d] been mixed” in the Application, the Plaintiff should bear the costs of the Application because the Application was unduly complicated by several revisions of the Claims and Affidavits being filed on the eve of the Applications.

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