1.5: Rule contravention, non-compliance and irregularities
3.30: Defendant’s options
3.42: Limitation on when judgment or noting in default may occur
3.74: Adding, removing or substituting parties after close of pleadings
3.76: Action to be taken when defendant or respondent added
6.2: Application to the Court to exercise its authority
11.31: Setting aside service

Case Summary

The Appellant sought to Appeal a Decision that allowed the Respondent to replace the “John Doe” Defendant, originally named and Noted in Default in the Statement of Claim, with the Appellant’s name. With regards to the required amendments to correct the name of the Defendant, the Court noted that if the Appellant was concerned by the Respondent’s delay in correcting the situation, the Rules contained available remedies including Rules 3.30, 3.42, 6.2, or 11.31.

The Appellant also took issue with the fact that the Respondent served the Appellant with the Statement of Claim prior to amending the style of cause to correctly name the Defendant. The Court, considering whether this was a fatal failure, noted that Rule 3.76 provides the Plaintiff the same rights with regards to service of the re-named Defendant as it had the originally named Defendant. As a result, the Respondent had one year to re-serve the Appellant following the granting of the Order to replace the original Defendant.

Finally, while recognizing that the Application to amend was late, the Court, citing Rules 1.5 and 3.74, noted that late amendments may be permitted provided there is not prejudice that cannot be addressed through Costs.

Ultimately, the Court allowed the Appeal in part, on the condition that the Noting in Default be set aside.

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