Topolniski j

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

Case Summary

The Plaintiffs sought to amend their Statement of Claim to include, among other things, switching the status of a party from Defendant to Plaintiff. This amendment raised limitation issues. Other proposed amendments were resisted by the Defendant on the basis of hopelessness and failure to meet the requisite threshold.

With respect to the proposed adding of a Plaintiff, the Defendant argued that the Claim was statute barred by the Limitations Act, RSA 2000, c L-12. The Court noted that when there is a limitations issue, the traditional approach is for the Court to: 1) determine that the limitation has not expired and allow the amendment; 2) rule the limitation has expired and then consider Limitations Act Section 6; or, 3) find that the amendments should be allowed subject to the determination of the issue at Trial. After reviewing the circumstances, the Court allowed the amendment to add a Plaintiff, noting that in this case it was appropriate that all limitation issues be determined at trial without prejudice to any party’s right to raise Claims or Defences under the Limitations Act.

With respect to the other proposed amendments within the Statement of Claim, Justice Topolniski noted that Rule 3.65 was applicable. The Court also noted the “classic rule” for the amendment of Pleadings is: “any pleading can be amended no matter how careless or late is the party seeking to amend”. The exceptions to this rule are: serious non-compensable prejudice; hopelessness (such that the plea would have been struck if originally pled); expiration of a limitation period; and, bad faith in failing to plead the matter in the first instance.

Topolniski J. noted that the threshold for permitting amendments is low unless there are allegations of fraud, high-handedness or malicious conduct. If so, then the test is stiffer and there must be significant evidence in support of the purported amendment. After reviewing the relevant case law and the proposed amendments, Justice Topolniski held that the amendments should be allowed.

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