3.62: Amending pleading
3.68: Court options to deal with significant deficiencies

Case Summary

The Plaintiff, Carbone, applied to amend her pleadings in regards to two Actions filed against two lawyers, McMahon and Burnett. The lawyers had defended a medical malpractice suit filed by Carbone. Carbone filed an individual claim against each of McMahon and Burnett, essentially alleging that they had conducted the litigation in the medical malpractice action in a malicious manner. McMahon and Burnett cross-applied to strike both Statements of Claim pursuant to Rule 3.68.

The Court confirmed that Rule 3.68 allows the Court to strike a claim or any part of a claim if: the pleading discloses no reasonable claim; is frivolous, irrelevant or improper; or constitutes an abuse of process. Furthermore, the Court confirmed that the threshold for striking pleadings is high. It must be established that the claims are “bound to fail.”

Hollins J. ruled that both of the Plaintiff’s Statements of Claim failed all three grounds set out in Rule 3.68. The Plaintiff’s claims included numerous allegations of misconduct against McMahon and Burnett but no facts that would support an independent cause of action. Moreover, the Court ruled that attempts to re-litigate settled matters in a manner that arguably goes beyond res judicata and into vexatious litigation, and could be considered an abuse of process.

Despite these determinations, Hollins J. did canvass the Rules governing amending pleadings. Under Rule 3.62(1)(b), proposed amendments are generally allowed unless: the amendment would cause serious prejudice not compensable in Costs; the amendment requested is hopeless (in other words, would have been struck if pleaded originally); the amendment is sought after the expiry of the applicable limitation period; or there is an element of bad faith associated with the Plaintiff’s failure to plead the amendments requested at the first instance.

The Plaintiff’s proposed amendments consisted of three types of claims: malicious conduct of the Defendants in the previous Action, breach of privacy, and defamation. Hollins J. denied all of the proposed amendments primarily on the basis that they were hopeless; they would have been struck under Rule 3.68 even if they had been pled in the first instance. The Court also noted that the Rules require that the particulars of claims for defamation and conspiracy be included in a Statement of Claim, yet the Plaintiff provided no factual basis for her claim of defamation.

The Plaintiff’s Application to amend was dismissed and both of her Statements of Claim against the Defendants were struck.

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