3.62: Amending pleading

Case Summary

The Plaintiff applied to amend his Statement of Claim to include allegations of misappropriation of personality, and breach of duties of confidentiality and fiduciary trust. Tilleman J. confirmed that as long as there was some foundation for the amendment and unless there was a significant prejudice or injustice, an Order to allow amendments should be freely given. It was noted that factors such as bad faith, unreasonable delay, or questionable motive should always be considered, as they could prove fatal to a request to make amendments, but none of those factors were argued by the Defendants in this case. Further, Tilleman J. confirmed that amendments cannot be hollow, futile, or hopeless, and further defined futile as meaning that “it would make little sense to grant an amendment that is barren of all evidence and is otherwise so starved of a triable issue that it faced a perfect (100%) chance of success on a motion to strike or a motion for summary judgment”. In this case, Tilleman J. held that the allegations were worthy of argument and it was preferable to err in sending a matter to Trial on its merits, rather than take it away on the Pleadings. Tilleman J. concluded by noting that while the evidence could be stronger, Pleadings were not evidence and in this case there was a “modest degree of evidence”. The Application to amend was allowed.

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