1.2: Purpose and intention of these rules
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
13.6: Pleadings: general requirements

Case Summary

The underlying dispute related to the Defendant’s alleged breach of a restrictive covenant, to which he agreed when purchasing land from the Plaintiffs. The Plaintiffs applied for leave to amend the original Statement of Claim and an Order directing the Registrar to register the restrictive covenant on title. Justice Jones considered only those issues concerning the amendment Application. A number of proposed amendments were non-contentious as they addressed the technical requirements of Part 13, Division 3 of the Rules. Other proposed amendments, which were opposed by the Defendant, altered the remedies claimed and arguably added new Claims. Justice Jones noted that the Plaintiff was initially self-represented, so the original Statement of Claim failed to meet the requirements of Rule 13.6(1)(a) and contravened Rule 13.6(2)(a), as the Claim blended facts, evidence and argument.

Justice Jones cited the general principle, essentially codified in Rule 3.74(3), that an amendment should be allowed no matter how careless or late, unless there is prejudice. This general principle is subject to four main exceptions: (i) the amendment would cause prejudice, not compensable in costs; (ii) the amendment fails to raise a triable issue; (iii) the amendment seeks to add a new party past the limitation period, and without permission by statute; and (iv) the failure to plead the amendment in the first place entails bad faith. These considerations are to be made in light of Rules 1.2(2)(a) and (b) regarding identifying the real issues in dispute and efficiency in resolving a Claim.

Justice Jones reviewed the proposed amendments and noted that, since pleadings had closed, Rule 3.62(1)(b)(ii) and 3.65(1) applied. One of the main arguments by the Defendant was that some proposed amendments added claims which were past the limitation period which were not saved by Section 6 of the Limitations Act, RSA 2000, c L-12. The Plaintiffs argued that the proposed amendments either did not actually raise a new claim, or they related to the initial claim, thereby satisfying Section 6 of the Limitations Act. Justice Jones noted that even if the requirements of Section 6 of the Limitations Act are satisfied, the Court retains discretion not to allow the amendment if it were to cause serious prejudice to the other party. Jones J. held that the proposed amendments did not prejudice the Defendant in a way that was not compensable through a costs award; rather, they allowed the parties to be able to better resolve the issues between them. More evidence was needed to conclusively determine if the proposed amendments were past the limitation period, but in any event, Justice Jones held that Section 6 of the Limitations Act would apply to save them. The amendments were allowed.

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