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

Case Summary

Following a failed real estate transaction, the Plaintiff commenced a Claim against the Defendant, and the Defendant counterclaimed to recover his deposit. During Questioning of the Defendant, the Plaintiff became aware of information that suggested that new parties may be liable, and applied to amend the Statement of Claim. The Defendant opposed the Application and, based on the existence of a parallel Action involving the same parties, also applied to have this Action declared an abuse of process.

The Plaintiff submitted that the material in the parties’ Affidavits provided sufficient evidence to connect the new parties to the issues raised in the Action. Justice Wilson noted that, pursuant to Rule 3.74, three requirements must be met to amend the Claim: the Application to Amend must be brought by a party to the Action; the Court had to be satisfied that an Order should be made; and there must be no prejudice if the Pleading was amended. Wilson J. considered whether the addition of new parties was more likely to expand the scope and expense of the Action. Justice Wilson noted that, generally, any pleading could be amended no matter how careless or late the party was when seeking to make the amendment, subject to four exceptions.

Wilson J. noted that the Defendant’s objection to the amendments was based on the Plaintiff’s lack of evidence. Justice Wilson reviewed what quality and quantity of evidence was required for an amendment Application. His Lordship noted that a modest degree of evidence was required, but in this case such evidence included hearsay evidence, evidence of an uncertain conclusion, and evidence in Affidavits by parties other than the party seeking the amendment. Further, Wilson J. observed that the lack of a factual basis was ordinarily not a ground for denying an amendment, so long as it alleged facts which, if true, gave rise to a cause of Action. His Lordship held that there was nothing before the Court to suggest that the exceptions to the general rule applied, and there was sufficient allowable evidence upon which to base the amendments. In the result, Wilson J. held that the Pleadings could be amended.

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