nielsen j

3.62: Amending pleading
3.74: Adding, removing or substituting parties after close of pleadings

Case Summary

The Plaintiff applied to amend the Statement of Claim, including amendments which added affiliates of the Plaintiff (the “Affiliates”) as additional Plaintiffs. The Defendants consented to all amendments except those which added the Affiliates as Plaintiffs, arguing that the limitation period had expired for the Affiliates to advance claims and that in any event the doctrine of laches and acquiescence applied to bar their claim.

Justice Nielsen noted that amendments after the close of pleadings require consent or leave of the Court per Rule 3.62, and that where an amendment seeks to add a party to a proceeding, Rule 3.62 states that Rule 3.74 applies which indicates that the Court may only make an Order to add, remove, or substitute a party where: the consent of the person proposed to be added as a party has been filed with the Application and no prejudice would result which cannot be remedied by an award of Costs, an adjournment, or the imposition of terms. Nielsen J. also noted that the general rule with amendments is that they will be allowed no matter how late or careless unless there is prejudice that cannot be repaired.

Justice Nielsen held that the expiry of the limitation date for the Affiliates to bring a claim did not prevent the amendments because of the application of section 6 of the Limitations Act, RSA c L- 12 which allows parties to be added to a proceeding in certain circumstances, including where no new claims or facts are added to the claim. Justice Nielsen found that the addition of the Affiliates did not add any new claims or facts, but that it simply particularized the damages claims and which party sustained which damage, and thus, the requirements of section 6 of the Limitations Act applied. In particular, Justice Nielsen found that the Defendants failed to satisfy their burden of establishing that they would suffer actual prejudice if the amendments were allowed.

Justice Nielsen did not find that acquiescence or laches applied in the circumstances of this case. The Application was allowed.

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