The Defendant applied under Rule 7.3 to summarily dismiss the Plaintiff’s claim. The claim related to the purported sale of land by the Defendant, now deceased, to the Plaintiff, as captured by a written purchase and sale agreement. Justice Marion granted the Defendant’s Application, finding no merit to the claim as the Plaintiff failed to waive the stipulated conditions by the required date, leading to the contract ending on its own terms.

Rule 7.3(1)(b) stipulates that a Defendant may apply to summarily dismiss a claim if there is no merit to it. In most cases, such applications are decided based on the personal knowledge of the affiants, as required by Rule 13.18(3). However, Courts may accept evidence that is not based on personal knowledge when the Applicant is an Estate. In such cases, the Court may weigh Affidavits sworn on information and belief, provided that the sources are disclosed as required by Rules 13.18(1)(b) and 13.18(2)(b).

The Plaintiff opposed the Application arguing, among others, that the waiver issue had not been properly pled by the Defendant. Rule 13.6(3)(i) requires a pleading to expressly plead “performance”. Justice Marion found that on the face of the existing Pleadings, a more specific pleading was not required. The Court held that when a “contract expired on its own terms because a certain event did not occur, neither a pleading of ‘breach of contact’ nor a specific pleading of ‘performance’” is required.

While the Court dismissed the claim on the Pleadings as they were before it, it also engaged in a separate analysis to determine if the Defendant would have been entitled to amend its Statement of Defence.

By virtue of Rule 3.65, the Defendant could have been granted permission to amend its Pleadings. While the Rule is discretionary, there is a strong presumption in favour of allowing amendments, and the applicant need not show any particular reason for amending it. The Court must, however, assess two guiding interests: (a) the impact of the proposed amendment on the non-moving party’s litigation interests, and (b) the public interest in resolving the litigation as quickly as reasonable, without the need to expand further public or private resources.

The Court found that it would have granted the estate permission to amend its Statement of Defence as: (i) the proposed amendments were amply supported by evidence, (ii) particularized the existing pleadings rather than add new defences, (iii) were not made in bad faith, and (iv) did not contravene the public interest. The amendments would not have unduly delayed the matter from proceeding to Trial, and would not have caused prejudice to the Plaintiff.