Master Smart

3.62: Amending pleading
3.65: Permission of Court to amendment before or after close of pleadings
7.3: Summary Judgment (Application and decision)

Case Summary

The Plaintiff, (“Mr. Birss”) and the Crown commenced a Claim against the Defendants after Mr. Birss suffered a subdural hematoma following a test organized and run by the Defendants. The Plaintiff sought to amend the Statement of Claim to add allegations of breach of fiduciary duty. The Defendants sought Summary Dismissal of the Plaintiffs’ Action on the grounds that the proposed amendment lacked merit, and that an implied consent and waiver of liability agreement provided complete defences to the Plaintiff’s claims of battery and negligence.

Master Smart explained that Rules 3.62 and 3.65 both allow the Court to permit amendments after the pleadings have closed. The threshold for allowing such an amendment is very low. The classic rule is that “an amendment should be allowed, no matter how careless or late, unless there is prejudice to the other side, and even that is no obstacle if it is repaired”. Master Smart stated that there are four exceptions to the classic rule, and in this case the exception to consider was whether the amendment revealed a cause of action, or was inconsistent with the record such that it could be described as hopeless. An Applicant does not have to demonstrate that the amendment will be proven at Trial, but must provide some minimal evidence in order to justify the amendment. Given that the overarching threshold for allowing an amendment is low, the threshold for finding that an amendment is hopeless is relatively high. Master Smart, referring to the possibility of fiduciary duties due in a teacher-student relationship where there is a heightened risk, as in a taekwon-do school, granted the amendment to the Statement of Claim.

The Defendants sought Summary Dismissal pursuant to Rule 7.3(1)(b). Master Smart considered whether there was merit to the allegations of a breach of fiduciary duty. Given the low threshold to reject a claim for Summary Dismissal, Master Smart noted that the authorities indicated the existence of fiduciary obligations arising in sporting or recreational activities, therefore, there was some merit to the allegations of a breach of fiduciary duty. Master Smart held that, based on the factual record before the Court, a fair and just determination could not be made. Accordingly, the Defendant’s Application for Summary Dismissal was dismissed.

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