Lee J

3.62: Amending pleading
3.65: Permission of Court to amendment before or after close of pleadings

Case Summary

The Plaintiff, Ms. Bull, sued the Defendants for damages on the basis of false arrest and false imprisonment following her arrest, detention, and alleged mistreatment at an RCMP holding facility. At Trial, Justice Lee ruled that no evidence would be led with respect to claims for either false arrest or false imprisonment; however, His Lordship did permit the Plaintiff to bring an Application to formally amend her Statement of Claim pursuant to Rules 3.62 and 3.65. Justice Lee noted that amendments to pleadings may be made after the close of pleadings no matter how careless or late, subject to four exceptions: a) 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; and d) there is an element of bad faith associated with the failure to plead the amendment in the first instance.

The Plaintiff did not proceed with the amendments, but rather attempted to proceed with the Trial. Following a further ruling by the Court on an evidentiary issue, Plaintiff’s counsel requested an adjournment of the Trial to Appeal the Court’s rulings to the Court of Appeal. The Defendants applied for double thrown away Costs as a result of the adjournment of the Trial.

Lee J. observed that, in determining thrown away Costs, the Court primarily needs to deal with both the events that took place when the Trial was set to begin, and the events that took place during the course of the Trial. Justice Lee noted that Costs are generally within the discretion of the Court. As such, Justice Lee concluded that the Defendants should be awarded some thrown away Costs as a result of the Trial having to be adjourned for the Plaintiff’s Appeal. Justice Lee awarded Costs under Schedule C, Column 3 for Trial preparation and for the Plaintiff’s unsuccessful Applications related to admissibility and scope of the Claim.

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