3.62: Amending pleading
3.65: Permission of Court to amendment before or after close of pleadings
3.68: Court options to deal with significant deficiencies
5.17: People who may be questioned
7.3: Summary Judgment (Application and decision)

Case Summary

The Appellant, Farm Credit Canada (“FCC”), appealed a Master’s Decision dismissing FCC’s Application for Summary Judgment against the Respondents, Ken Ping Chan and Raymond M.W. Wan  (collectively, the “Respondents”), and granting the Respondents their Application to amend their joint Statement of Defence and Costs (collectively, the “Underlying Applications”). The Underlying Applications related to guarantees given by each of the Respondents in support of a loan made by FCC (the “Loan”) to a corporation called Pacific Rockyview Enterprises Inc. (“Pacific Rockyview”). The Loan was in default and FCC sued the Respondents on their respective guarantees.

Mandziuk J. addressed two issues: (1) whether or not the Respondents could amend their Statement of Defence under Rules 3.62, 3.65, and 3.68; and (2) if FCC was entitled to Summary Judgment against the Respondents under Rule 7.3. Justice Mandziuk noted that where an Application for Summary Judgment is heard concurrently with a cross‑Application for permission to amend pleadings, the Court must determine the amendment Application first before determining the Application for Summary Judgment.

Procedurally, Justice Mandziuk noted that the Respondents had not questioned FCC’s officer, had not examined any FCC witness on Affidavits, and had not questioned any other FCC employee, which is permitted under Rule 5.17. Justice Mandziuk found no evidence to support the Respondents’ proposed amendments, found that there were only bald assertions, and accordingly denied the proposed amendments on the basis that the defences raised therein were hopeless.

Justice Mandziuk emphasized that a Court’s considerations in determining whether proposed amendments to a Statement of Defence are hopeless under Rule 3.68 overlap considerably with the considerations in determining an Application for Summary Judgment under Rule 7.3. His Lordship noted that if certain amendments to a Statement of Defence are held to be hopeless, it would be very unusual, maybe impossible, for such amendments to survive an Application for Summary Judgment. Having found that the amendments were hopeless, Mandziuk J. concluded that the matter could be justly and fairly resolved on a summary basis and that there were no genuine issues requiring a Trial. Accordingly, His Lordship granted Summary Judgment against the Respondents in the amount owing under the guarantees.

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