McDonald, Wakeling and Pentelechuk JJA

1.2: Purpose and intention of these rules
3.62: Amending pleading
3.65: Permission of Court to amendment before or after close of pleadings
3.67: Close of pleadings

Case Summary

The Appellant appealed portions of a Chambers Judge’s Order denying it permission to amend its defamation claim. The Chambers Judge had determined that the proposed amendment related to a time barred injury, constituted significant prejudice to the Respondents, and should not be permitted. The Appellant appealed, arguing that its amendments were not prejudicial and not time barred, because pursuant to the “single publication rule” of defamation law, a new defamation Action is potentially available each day that defamatory materials remain on a website. The Court of Appeal noted at the outset that this is a “very interesting question and of unusual importance”.

First, Wakeling J.A. explained that the Court may authorize a party to amend a pleading after the close of pleadings pursuant to Rules 3.62, 3.65, and 3.67 when it is appropriate to do so. Typically, Courts allow such amendments unless there is a compelling reason not to, such as if allowing the amendment would “contravene the public interest in promoting expeditious and economical dispute resolution”, or would “significantly harm a legitimate litigation interest of the non-moving party”. This policy ensures that pleadings may be amended to “identify the real issues in dispute”, and is therefore consistent with Rule 1.2(a). However, non-moving parties should not have to incur costs responding to amendments that “cannot possibly succeed”, such as if they disclose no cause of action, are time barred, or are otherwise hopeless; or amendments that are the “product of bad faith”. The onus is on the non-moving party to demonstrate, on a balance of probabilities, that the amendment will significantly harm a legitimate litigation interest or the administration of justice.

Wakeling J.A. held that the Chambers Judge erred in refusing to permit the amendments. His Lordship held that the proposed amendments were not time barred due to the “single publication rule”. His Lordship also held that the Chambers Judge had erred in finding that the Appellant’s “strategic about-turn, without more, constituted significant litigation prejudice” to the Respondents, and had erred in failing to consider whether a Costs award could compensate for such prejudice. 

Pentelechuk J.A. agreed with Wakeling J.A. that the Appeal should be allowed, but declined to “weigh in on whether a defamation arises every day the defamatory material remains on an internet website”. Her Ladyship adopted Wakeling J.A.’s comments on the law regarding amendments to pleadings, and noted that even though the Appellant had changed its litigation strategy, it had not significantly prejudiced the Respondents, was driven largely by the Respondents’ consolidation of five underlying Actions, and their decision to raise the subject of the amendments in their own Statement of Defence: “it is hard for the respondents to say that they were prejudiced by these issues being raised when they themselves raised them in their defence”. Pentelechuk J.A. also noted that there was no evidence that the proposed amendments were hopeless or had been proposed in bad faith. As such, the Appeal was allowed and the Appellant was granted leave to amend its Statement of Claim.

In dissent, McDonald J.A. would have held that the re-posting of allegedly defamatory material online did not constitute a “republication” and therefore that the proposed amendments were out of time and hopeless. His Lordship did not comment on the test for permitting amendments to pleadings.

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