hUNT McDonald J

3.62: Amending pleading

Case Summary

The Appellant, the Craig Family (the “Craigs”), appealed a Master’s Decision which allowed the Respondent, Dan Currie (“Mr. Currie”), to amend his Pleadings. The original Claim for foreclosure on a mortgage was initiated by Mr. Currie in 2011. Mr. Currie was successful at the foreclosure hearing in 2014 but the Craigs successfully appealed that Decision in 2016. Mr. Currie subsequently applied to amend his Pleadings in 2017 to include an additional claim under a promissory note signed between the parties (the “Replacement Note”). The Craigs argued that the requested amendments were limitations barred by s. 3 of the Limitations Act, RSA 2000, c L-12 (the “Act”).

Justice Hunt McDonald noted that after Pleadings have closed a party may amend its Pleadings so long as the amendments comply with Rule 3.62(1)(b). It is well established that judicial discretion to allow amendments should be applied generously regardless of how late, or how carelessly the request is made. One of the exceptions to this low threshold is when the proposed amendments seek to add a new cause of action after the expiry of a limitation period under the Act.

Hunt McDonald J., referring to leading authority, found that the Court has several options when an amendment is sought with extant limitations issues: (1) find that the limitation period has not expired and allow the amendment; (2) rule the limitation period has expired and then consider s. 6(2)(b) of the Act which discusses for when an amendment can be made beyond the limitation period; or (3) find that because of uncertainty in the evidence, the amendments should be allowed subject to the determination of the limitation issue at Trial.

Justice Hunt McDonald found that s. 3(1)(a)(iii) of the Act considers situations where knowledge of a loss is not sufficient to immediately warrant bringing a proceeding. Her Ladyship determined that the claim under the Replacement Note was not “warranted” until after the Decision in 2016 allowing for the discharge of the original mortgage. Hunt McDonald J. concluded that the amendments under s. 6(2)(b) of the Act should still be allowed as the mortgage and Replacement Note were so closely related as to allow for the amendment under s. 6(2)(b) of the Act. The Appeal was dismissed.

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