3.44: When third party claim may be filed
3.45: Form of third party claim
3.56: Right to counterclaim
3.62: Amending pleading
3.65: Permission of Court to amendment before or after close of pleadings
3.74: Adding, removing or substituting parties after close of pleadings
13.5: Variation of time periods

Case Summary

The Plaintiff by Counterclaim sought permission from the Court to amend its Counterclaim. The Defendant by Counterclaim opposed those amendments. Specifically, the Plaintiff by Counterclaim sought permission to add several related parties as Plaintiffs by Counterclaim, amend the pleadings to add particulars and relief sought, and remove a claim for damages related to a specific issue.

Rule 3.65 allows the Court to grant permission to amend a pleading before or after the close of pleadings. The Court noted that whether to amend pleadings is a discretionary decision, but the general rule is that amendments to pleadings should be allowed, no matter how late or careless, unless there is prejudice to the other side. The Court also noted four exceptions to general rule, where:

  • The amendment would cause serious prejudice to the other party, not compensable in costs;
  • The amendment requested is hopeless such that if it were in the original pleadings, it would have been struck as being vexatious or an abuse of process or does not disclose a cause of action and is not relevant to a cause of action;
  • 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; or
  • There is an element of bad faith associated with the failure to plead the amendment in the first instance.

The Court allowed the Plaintiff by Counterclaim to add, as Plaintiffs by Counterclaim, those related parties that were named as Defendants in the Statement of Claim.

The Court did not, however, allow the addition of other additional parties (“Additional Parties”) who were not named as Defendants in the Statement of Claim. The Court noted that Rule 3.56 permits only an original Defendant the right to file a Counterclaim against the Plaintiff.

Furthermore, the Court did not permit the Plaintiff by Counterclaim to add a Third-Party Claim against the Additional Parties pursuant to Rule 3.45, notwithstanding that the Additional Parties consented pursuant to Rule 13.5 to extend the 6-month time period to file and serve a Third-Party Claim. The Court found that the proposed Third-Party Claim was not a true Third-Party Claim under Rule 3.44 because the Plaintiff by Counterclaim’s claims against the Additional Parties were unrelated to the Plaintiff’s claim against the Plaintiff by Counterclaim.

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