GEOPHYSICAL SERVICE INCORPORATED v HUSKY OIL LIMITED, 2018 ABQB 622
3.62: Amending pleading
3.65: Permission of Court to amendment before or after close of pleadings
The Applicant, Geophysical Service Incorporated (“GSI”), applied to amend its twice-amended Statement of Claim. The Respondent, Husky Oil Limited (“Husky”), opposed the Application on the basis that the proposed amendments disclosed new causes of action outside of a limitations period.
The Court confirmed that a party may amend its pleadings pursuant to Rules 3.62 after the close of pleadings with permission from the Court if the proposed amendments include more than simply a correction to the names of parties to the Action. However, the Court has discretion pursuant to Rule 3.65 as to whether permission to amend is granted. The Court further confirmed that the starting point for assessing whether amendments will be allowed is the direction given by Wittmann C.J. (as he then was) in Dow Chemical Canada Inc v Nova Chemicals Corp, 2010 ABQB 524 (CanLII) where His Lordship stated that generally, any pleading may be amended at any time unless: the amendment causes prejudice not compensable by Costs; the amendment is hopeless; the amendment seeks to add a new party or cause of action outside of a limitation period; or there is an element of bad faith associated with the decision not to plead the amendment at the outset.
The Court then referred to the case of Canadian Natural Resource Ltd v Arcelormittal Tubular Products Roman SA, 2012 ABQB 679 (CanLII) as authority for what constitutes a new cause of action. A new cause of action arises when a new claim is based on new and distinct events that results in a different and distinct loss. However, if the proposed amendments are simply changes to the quantum of damages, or even the heads of damages claimed, this is allowable provided that the damages claimed still stem from the events originally pled.
The Court then assessed the amendments proposed by GSI and ruled that a number of them amounted to new causes of action; they were based on events that had not been previously pled within the requisite limitation period. The Court also found that certain other proposed amendments were “hopeless” based on previous jurisprudence also involving GSI which had disposed of similar claims. The remaining proposed amendments that the Court did not deem new causes of action or hopeless were allowed; however, the Court still granted Husky Costs “in recognition of the depreciation in the value of Costs on Schedule C since the last amendment date and the delay of GSI in bringing the application forward.”View CanLII Details