The Plaintiff was a former employee of the Defendant, Enbridge, and during his employment the Plaintiff had a relationship with the individual Defendant, Scratch. When the relationship was brought to Enbridge’s attention, the Plaintiff was dismissed for cause. The Plaintiff commenced separate Actions against Enbridge and Scratch which were consolidated by consent. The Plaintiff applied to file an Amended Statement of Claim seeking, among other things, to add Scratch’s partner Holden as a Defendant on the basis that the individual Defendants conspired to have him fired. He also sought an Order waiving Rules 5.2 and 5.33.

Scratch and Holden argued that the Amended Statement of Claim contained impermissible evidence in breach of Rule 5.33 (implied undertakings). Further, Scratch argued that, if the Court allowed the amendments to the Statement of Claim, she was entitled to Costs pursuant to Rule 3.66. Holden argued that there were insufficient facts to add him as a Defendant for conspiracy. He also argued that the amendment Application was brought in bad faith and that the contents were frivolous, irrelevant and designed to embarrass, contrary to Rule 3.68(2).

Justice Tilleman reviewed the relevant Rules and held that the Rule against implied undertakings in Rule 5.33 is only infringed if information from pre-Trial discovery is used beyond the scope of the litigation in which it has been obtained. The production relied upon by the Plaintiff to seek the addition of Holden as a Defendant was not beyond the scope of the litigation in which it was discovered, and was therefore not in violation of Rule 5.33. Tilleman J. also held that there were communications that met the threshold to add conspiracy as a cause of action against both Scratch and Holden, and therefore granted permission to add Holden as a Defendant under Rule 3.74(2)(b).

Justice Tilleman observed that the Amended Statement of Claim contained a significant amount of content that was superfluous, salacious, or in breach of Rule 13.6(2)(a), which provides that a Pleading must state the facts on which a party relies but not the evidence by which the facts are to be proved. His Lordship ordered the removal of irrelevant, salacious and redundant information in the Amended Statement of Claim.