1.2: Purpose and intention of these rules
3.62: Amending pleading
3.63: Identifying amendments to pleadings
3.65: Permission of Court to amendment before or after close of pleadings
3.66: Costs
3.74: Adding, removing or substituting parties after close of pleadings

Case Summary

The Plaintiff, a former seismic licensing company, commenced an Action against the Defendants claiming breach of contract, breach of copyright and conversion for the alleged sharing of seismic data. The Plaintiff applied to amend the Statement of Claim to add additional claims against the Defendants and to increase the quantum, and to add three new named Defendants and 26 additional “John Doe” style Defendants under Rules 3.62, 3.63, 3.65 and 3.66.

Following the principles set out in Balm v 3512061 Canada Ltd, 2003 ABQB 98, Master Robertson noted that:

The classic rule is that an amendment should be allowed, no matter how careless or late, unless there is prejudice to the other side, and even that is no obstacle if it is repaired.

Master Robertson clarified that, particularly where the amendment is to add new Defendants, the Applicant must provide some evidence of the claim; however, the evidence must be meaningful. That bar is still present though it may be low. Master Robertson observed that, if no exceptions to the classic rule applied, the pleadings could generally be amended. In addition, Master Robertson also noted that Rule 3.74 was applicable to adding parties after the close of Pleadings. The express caution in that Rule is that the Court is precluded from making an Order if prejudice would result that could not remedied by a Costs award, adjournment or the imposition of terms. Once the Court has established that a party would be seriously prejudiced by an amendment, Rule 3.74(3) requires that no amendment be made.

Master Robertson analysed each of the proposed amendments in the Application and held that there was little or no evidence to support the claims. “Housekeeping” amendments that were routine in nature were allowed, but many parts of the claims were hopeless because they proceeded on a faulty legal premise without evidence. The proposed amendment to increase the quantum was disallowed as it was not supported by evidence. Master Robertson also declined to add the 26 “John Doe” Defendants and two of the three proposed named Defendants on the basis that fishing for evidence to support the claims against the proposed Defendants was not acceptable: there must be modest evidence of wrongdoing by a party prior to their addition as a Defendant. Master Robertson observed that, if the amendments had been allowed adding all of the proposed parties, significant terms would have been imposed as well as Costs, Security for Costs and deadlines for filing and service, taking into account Rule 1.2(2)(b).

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