2.7: Amendments to pleadings in class proceedings
3.74: Adding, removing or substituting parties after close of pleadings

Case Summary

The Applicant sought the addition of the Respondent companies as Defendants to the Action. The Respondents opposed the Application on the basis that the limitation period for the proposed claims against them had expired.

The Action was commenced as a Class Proceeding in 2010, seeking to recover the cost of repairs and remediation required to correct construction deficiencies discovered in the Applicant’s condominium complex. Following its review of the Defendant developer’s Affidavit of Records in 2013, the Plaintiff discovered that various subcontractors had performed services related to some of the alleged deficiencies, but had not been named as parties to the Action.

Justice Strekaf noted that Rule 2.7 states that after a certification order is made under the Class Proceedings Act, SA 2003, c 16.5, a party may only amend its Pleading with the Court’s permission. Further, after the close of Pleadings, no person can be added, substituted, or removed from an Action started by a Statement of Claim, except in accordance with Rule 3.74, which requires the consent of the party being added, substituted, or removed, or the Court’s approval. Rule 3.74(2) also states that a Court may not make an Order under this Rule if prejudice would result.

Justice Strekaf applied the classic rule to amendments, which provides that all amendments are to be allowed no matter how careless or late, unless one of four major exceptions applies. Strekaf J. specifically considered the third exception: whether the amendment sought to add a new party or a new cause of action after the expiry of a limitation period.

Strekaf J. held that once a party becomes aware that it has suffered damage that merits bringing proceedings it is incumbent on that party to take reasonable steps to identify the parties responsible for that damage. The Plaintiff’s single letter in 2010, requesting that the developer identify all sub-trades, contractors and consultants, was not found to meet the threshold of reasonable diligence to identify the parties responsible for the losses suffered. Accordingly, the Plaintiffs could not claim that the limitation period should be delayed until they had actual knowledge of the identities of the Respondents. The Application was dismissed.

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