The Defendant sought to amend his Statement of Defence and file a Counterclaim approximately seven years after the commencement of the lawsuit, and after the matter had been set down for Trial. The Court stated that the threshold for amending pleadings is low. However, there are four major exceptions to the “Classic Rule” of permitting late amendments, which are set out in Dow Chemical Canada Inc v Nova Chemical Corporation, 2010 ABQB 524.

The Court reviewed the case law and the circumstances of this case and determined that all of the exceptions in Dow Chemical were engaged, and the amendments should not be allowed. The Court placed particular emphasis on the prejudice that the Plaintiff would face given the circumstances. The Court also stated that one of the proposed amendments raised the defence of tender, which, pursuant to Rule 13.9, required the Defendant to pay into Court the amount alleged to have been tendered before filing a defence based on tender. This pre-requisite had not been met by the Defendant and was thus another bar to allowing the amendments.

With respect to the Counterclaim, the Court stated that the Defendant had the onus of showing that there was a “real and substantial connection” between Alberta and the facts on which the proposed Counterclaim was based: Rule 11.25(1). The Court also noted that, in making this determination, factors to be considered included where the cause of action arose and convenience or inconvenience to potential witnesses: Kuffner v Manitoba Public Insurance Corporation, 2005 ABCA 440. After reviewing the facts, the Court determined that the Applicant had not made out a real and substantial connection. Finally, the Court stated that to allow a Counterclaim at this stage of the proceedings would be highly prejudicial to the Plaintiff, and that the Defendants had more than ample time over the last 7 years to seek to file a Counterclaim, but failed to do so.

In the result, the Court dismissed the Application to amend the Statement of Defence and file a Counterclaim.