Master Hanebury

3.65: Permission of Court to amendment before or after close of pleadings
6.6: Response and reply to application
7.3: Summary Judgment (Application and decision)

Case Summary

The Plaintiff, Drefko sued the Defendants, Dr. Hicke, a chiropractor, and his professional corporation (“Hicke”) for negligence. The Defendants applied to Amend the Statement of Defence to include a defence under the Limitations Act, RSA 2000 c L-12, and the Limitations of Actions Act, RSA 1980 c L-15.

The Application to amend was initially supported by an Affidavit sworn by a legal assistant. Drefko filed an Affidavit in response, and Hicke swore and filed an Affidavit in reply. Drefko argued that Hicke’s Affidavit did not comply with Rule 6.6(2)(b) and should be struck. Master Hanebury held that the second affidavit did not comply strictly with the Rule, and it would have been prudent for Hicke to file his own Affidavit at the outset of the Application, not in response. Master Hanebury noted that Rule 6.6(3) provides that “it is the lack of notice that leads to the Court refusing to consider the affidavit”, and held that timing was not an issue between the parties, nor was either party caught by surprise with new information. As such, Master Hanebury held that all of the filed material would be considered to ensure that the Application was determined on the merits.

Drefko opposed the Application to amend the Statement of Defence on the basis that the amendment was hopeless, and would cause prejudice. Master Hanebury noted that Rule 3.65(1) provides that the Court may grant permission to appeal before or after the close of pleadings, and that an amendment may be allowed, no matter how late. There are, however, four exceptions: a "hopeless" amendment; an amendment which would cause serious prejudice to the opposing party not compensable in costs; an amendment which would add a new party or cause of action after a limitation period had expired; and where there is an element of bad faith in failing to plead the amendment at first instance. Master Hanebury confirmed that the threshold for considering whether an amendment is hopeless is the same as that on an Application to strike, not that used for Summary Judgment. Drefko asserted that the limitation period did not begin until the results of an MRI confirmed a serious injury. Master Hanebury found that the issue was arguable, and therefore, was not hopeless.

Drefko also argued that the amendment would cause prejudice as it was 16 years after the filing of the original Statement of Defence, document production had occurred, and Questioning had closed. Master Hanebury stated that the limitations defence should have been raised earlier, but that the correction of slips and oversights may be allowed to ensure that justice was ultimately done. The Application to Amend the Statement of Defence was allowed.

View CanLII Details