1.2: Purpose and intention of these rules
3.65: Permission of Court to amendment before or after close of pleadings

Case Summary

The Plaintiff and Defendant became joint venture participants in an agreement to build a large magnesium oxide plant with Jordan Magnesia Company Limited (JorMag). The Parties entered into an amending agreement in order to resolve cash flow issues but the project continued to encounter delays which resulted in the termination of the entire project. The Parties and JorMag submitted to arbitration, and the Plaintiff and Defendant subsequently entered into a claims agreement which had the effect of suspending the claims as between the Plaintiff and Defendant. The joint venture participants settled with JorMag and the Plaintiff commenced this Action against the Defendant, claiming damages for the failure of the project. The Plaintiff subsequently sought to amend its Amended Statement of Claim and its Statement of Defence to Counterclaim pursuant to Rules 1.2 and 3.65. The Plaintiff argued that the proposed amendments required no supportive evidence.

Wittmann C.J. outlined Rule 3.65 and noted the test for amending pleadings. Chief Justice Wittmann confirmed that the evidentiary threshold for allowing amendments is "generally low"; however, substantive amendments do require supportive evidence. Certain amendments to allegations (for example: fraud, breach of trust, wilful default or undue influence) require a greater evidentiary standard. Chief Justice Wittmann held that the proposed amendments required evidence. Further, it was appropriate to consider the prior evidence brought in support of the Application to decide if the amendments should be allowed. Based on a detailed consideration of the proposed amendments and the available evidence, Wittmann C.J. allowed some specific amendments to the Pleadings and denied other amendments.

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