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

Case Summary

This was an Application to amend a Statement of Defence and add a Counterclaim following close of pleadings, pursuant to Rules 3.62 and 3.65. The Application was made contemporaneous to the Respondent’s Application for Summary Judgment. This Decision dealt only with the Application to amend and add.

The underlying dispute concerned a commercial contract for construction and an alleged failure to pay amounts owing thereunder. Litigation was initiated in 2015, but resolution was delayed in part due to the Applicant’s failure to cooperate with procedural steps, including delivery of records and attendance for Questioning.

Noting that there is a minimal, but necessary, evidentiary threshold for introducing amendments after the close of pleadings, the Court considered several categories of proposed amendments, some of which amounted to mere clarifications and others which amounted to new allegations of fact or reversals of earlier statements. The Court noted that the evidentiary threshold for each amendment must be considered in the context of the nature of the amendment and in the context of other evidence before the Court.

The Court permitted some amendments and additions and refused others. Amendments and additions were permitted where they merely particularized, added to, or slightly varied statements made in the original Statement of Defence. The Court refused to permit other amendments where the Applicant failed to adduce sufficient or any evidence to corroborate the amendments and/or meaningfully dispel earlier contrary statements made by the Applicant in its Statement of Defence or on cross-examination. The Court also found that these amendments were sought in bad faith, in light of their substance and timing. Other amendments, which spoke to Counterclaims arising from a related, but separate contract, were also refused based on the failure to address them in the original Statement of Defence and limitation time bars.

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