3.68: Court options to deal with significant deficiencies
5.33: Confidentiality and use of information
10.31: Court-ordered costs award
10.52: Declaration of civil contempt
10.53: Punishment for civil contempt of Court

Case Summary

The Defendant appealed the Decision of an Applications Judge granting the Plaintiff permission to amend his Statement of Claim in the underlying wrongful dismissal Action.

The Court dismissed the Appeal, allowing the amendments, with the exception of some that were not permitted.

Pursuant to Rule 6.14(4), the Court noted what is included in the record of proceedings on an Appeal of an Applications Judge’s Judgment or Order. The Court also set out that the test for additional evidence set out in Rule 6.14 (3) was a “very lax test”, noting that the test for whether additional evidence is relevant and material is whether the new evidence might reasonably be expected to significantly help determine one or more issues raised on the Appeal. The Court found that the supplemental evidence and transcripts of Questioning were properly before it as evidence that was relevant and material to the Appeal.

The Court reviewed the jurisprudence and principles surrounding the exercise of discretion in permitting an amendment to a Pleading in relation to Rule 3.65, noting that: there is a strong presumption in favour of allowing amendments to Pleadings after the close of Pleadings; the Applicant need not show any particular reason for needing the amendment;  that Courts should exercise their discretion to allow the amendment unless the non-moving party demonstrates an exception or compelling reason not to; the Court must consider the impact the proposed amendment will have on the non-moving party’s litigation interests and the public interest in the resolution of litigation as quickly as reasonably possible without the expenditure of more public and private resources than is reasonably necessary.

The Court noted that the compelling reasons or grounds not to permit amendments that have been recognized over time include whether the: (1) proposed amendment will significantly harm a legitimate litigation interest of the non-moving party; (2) proposed amendment advances a claim that cannot possibly succeed or is hopeless because it would have been struck if it were in the original Pleading, which specifically include considerations under Rule 3.68(2)(a)-(e); (3) proposed amendment is not supported by a required threshold level of evidence, based on the nature of the proposed amendment; (4) proposed amendment seeks to add a new party or a new cause of action after the expiry of a limitation period and is statute-barred or subject to a “rock-solid” limitations defence, unless permitted by statute; (5) proposed amendment or the failure to plead earlier, involves bad faith; and (6) proposed amendment will contravene the public interest in promoting expeditious and economic dispute resolution.

The Court found that the amendments did not: fail to disclose a cause of action or that there was a compelling reason to refuse the amendments for failing to disclose a cause of action; the amendments were barred by either the Limitations Act, RSA 2000, c L-12 or the Worker’s Compensation Act, RSA 2000, c W-15 and that the amendments were not against the public interest, noting that they did not solely cause delay.

The Court set out that the evidentiary threshold for amending Pleadings after the close of Pleadings depends on the nature or classification of the proposed amendment. Specifically, the Court noted three categories: (1) amendments which require no or minimal evidence which include those that are trivial, inconsequential, ancillary, or merely clarify wording and also those which add new causes of action based on the facts that are already pleaded; (2) most other significant amendments that require only modest evidence and have a low evidentiary threshold, including any admissible evidence but may also include hearsay and potentially even opposing party Pleadings; and (3) some amendments which have a significantly elevated evidentiary threshold that require significant evidence establishing a “good ground” or “exceptional circumstances” including those that seek to new causes of action based on fraud, high handedness, or malicious conduct but the elevated threshold does not apply where the amendments add particulars for an existing cause of action.

The Court determined that (1) certain aspects of the amendments relating to Alberta Occupational Health & Safety were not relevant and were accordingly struck, (2) certain aspects of the amendments relating to wrongdoing in litigation conduct and were partially struck; (3) there was sufficient evidence surrounding the particulars of allegations relating to how the Defendant had made misrepresentations to the various administrative tribunals, noting that any concerns about particularization could be addressed in a Request for Particulars or an Order under Rule 3.61; (4) the amendments relating to physical injury were not duplicative and unnecessary; (5) the amendments relating to what the Plaintiff would do if he obtained a punitive damage Award was irrelevant, prejudicial, and accordingly struck; and (6) that it was not satisfied that amendments relating to certain July 2018 communications were covered by settlement privilege.

The Court considered what an appropriate Costs Award would be in accordance with Rule 3.66, noting that Rule 3.66 had dual competing purposes. The Court set out that Rule 3.66(1) encourages litigants to get their Pleadings right the first time and to hold the amending party responsible for Costs resulting from the amendment, while Rule 3.66(2) was intended to ensure that Respondents in amendment Applications do not unreasonably object to amendments.

The Court noted that if the Defendant sought to serve a Request for Particulars in accordance with Rule 3.61 and was required to do so within one month of its decision.

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