The Applicants challenged the constitutionality of several Orders of the Alberta Chief Medical Officer of Health (the “CMOH Orders”). Following the close of the pleading period, the Applicants applied for leave to amend their Originating Application to include two orders that were not previously included in the scope of the Action.

Rule 3.65(4) allows the Court to grant permission to a party to amend its pleading after the pleading period has closed, including as late as at trial. The Court will generally allow for an amendment unless it is prejudicial and not compensable in costs, hopeless, or brought in bad faith.

Justice Romaine explained that, when the Court assesses the merits of an Amendment Application, it must consider the public interest. Justice Romaine cited the Supreme Court of Canada in Ernst v Alberta Energy Regulator, 2017 SCC 1, and explained that when the constitutionality of a law is decided, the public interest “requires that the fullest and best evidence possible be put before the Court.”

Justice Romaine dismissed the application to amend under Rule 3.65(4). Her Ladyship found that the amendment would cause prejudice to the Respondents, not compensable in costs. The application to amend was brought late and during the course of the proceedings, which triggered issues of hearing fairness since neither party had addressed the two CMOH Orders through affidavit evidence. If the Court were to allow the amendment, it would require a lengthy adjournment that would run against the public interest of resolving litigation as expediently and economically as possible.

The Court then turned its attention to determine whether the Applicants can rely upon Rules 9.15(4) and 13.5 to account for the inclusion of the two CMOH Orders by varying a previous Interlocutory Order of the Court. Rule 9.15(4) allows the Court to vary an Interlocutory Order based on information that had been discovered after the Order was made or on any grounds the Court considers just. Rule 13.5 gives the Court discretion to vary time periods. 

However, Justice Romaine declined to vary the Oral Hearing Order. The Applicants did not adduce any new information nor made any new submissions that would justify the variation.