paperny, rowbotham AND martin jJa

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

Case Summary


The Plaintiff appealed a Chambers Judge’s Decision permitting an amendment to the Defendants’ Statement of Defence. The Plaintiff sued the Defendants in negligence, breach of various duties and breach of contract for failing to register a general security agreement in a timely manner. Following Questioning, the Defendants sought to amend their Statement of Defence because the Plaintiff had objected to several questions on the basis that the Defendants had not pleaded sufficient particulars to support the questions. In support of the Application to amend, one of the Defendants swore an Affidavit which exhibited documents prepared by others. The Affiant did not know who created the majority of the documents. They also attached a Statement of Claim from another Action that named the Plaintiff. At first instance, the Master denied the amendment Application, but on appeal, the Chambers Judge allowed the amendments. The Chambers Judge concluded that the Affidavit evidence was reliable and necessary.

The Court of Appeal noted that any Pleading could be amended, no matter how late or careless, unless one of four exclusions applied: it would cause serious prejudice that was not compensable in costs; the amendment requested was hopeless; the amendment sought to add a new party or new cause of action after expiration of the limitation period; or there was an element of bad faith with the failure to plead the amendment in first instance. Additionally, the Court noted that certain amendments required the application of a higher standard to the evidence, such as in cases of fraud.

In this case, the Defendants sought to amend the Pleadings to plead misrepresentation. The Affidavit in support contained hearsay, but the Court of Appeal held that there was sufficient evidence on the record to support the Chambers Judge’s Decision. The Court held that there was little prejudice to the Plaintiff, and it was not the role of the Court of Appeal to reweigh the evidence. Further, the Decision to allow an amendment to a Pleading was discretionary and in this case, was not unreasonable. The Appeal was therefore dismissed.

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