BORDEN LADNER GERVAIS LLP v CBI INVESTMENTS LTD, 2016 ABQB 220
3.65: Permission of Court to amendment before or after close of pleadings
3.74: Adding, removing or substituting parties after close of pleadings
The Plaintiff law firm (“BLG”) appealed a Master’s Decision which denied BLG’s request to amend its Amended Amended Appointment for Review of BLG’s charges and retainer agreement, and to add individual directors and shareholders of the Defendant company (“CBI”) as named Respondents in their personal capacities.
Justice Mahoney stated that Rule 3.65 does not apply to an amendment to add, remove, substitute or correct the name of a party to which Rule 3.74 applies. His Lordship considered Rule 3.74, which provides for the addition, removal or substitution of parties after the close of Pleadings. Mahoney J. held that the applicable threshold to allow such an amendment is low. According to the “classic rule” as set out in Balm v 3512061 Canada Ltd. , 2003 ABCA 98, “any pleading can be amended no matter how careless or late is the party who is seeking to amend”. The “classic rule” is subject to four exceptions:
a) that the amendment would cause serious prejudice to the opposing party, not compensable in costs;
b) the amendment requested is "hopeless";
c) unless permitted by statute, the amendment seeks to add a new party or a new cause of action after the expiry of a limitation period; and,
d) there is an element of bad faith.
The Master had previously held that granting the amendment would have resulted in prejudice and harm to the opposing party, and that the proposed amendment was both “hopeless” and out of time. Justice Mahoney agreed with this analysis, and denied the Appeal.View CanLII Details