1.2: Purpose and intention of these rules
3.65: Permission of Court to amendment before or after close of pleadings
4.28: Confidentiality of formal offer to settle
10.33: Court considerations in making costs award

Case Summary

A Summary Trial was held regarding an Order to determine the damages resulting from the wrongful dismissal of the Plaintiff, Ms. Kosteckyj. There were two preliminary Applications which Justice Sidnell addressed before turning to the substantive matter.

The first was an Application by the Plaintiff to strike certain paragraphs in the Statement of Defence. In the Statement of Defence, the employer Defendant, Paramount Resources Ltd., had disclosed the settlement offer made at the time of the Plaintiff’s termination and asserted that it was unreasonable for the Plaintiff to refuse the settlement offer.

Justice Sidnell found that including the settlement offer in the pleadings was inappropriate. In support of this finding, Justice Sidnell considered Rule 4.28 which states that a Formal Offer to Settle is to be kept confidential from the Court until accepted or until a remedy is decided. Justice Sidnell also noted Rule 10.33(2)(h), which permits the Court to consider settlement offers for the purposes of Costs. The Defendant acceded that the paragraphs which pled the settlement offer should be struck. Justice Sidnell then ordered that those paragraphs be struck from the Statement of Defence and would be ignored in the Summary Trial.

The second Application was an Application by the Plaintiff to amend her Amended Statement of Claim to include a claim for constructive dismissal which, if proven, had occurred a few weeks prior to the actual termination of employment. Justice Sidnell advised that Rules 1.2 and 3.65 inform the Court as to whether to allow the proposed amendment. Rule 3.65 gives the Court the discretion to permit amendments. Justice Sidnell noted that the general rule from the jurisprudence directs the Court to allow an amendment, as doing so reflects the purpose of the Rules as described in Rule 1.2 for fair and just resolution in a timely and cost-effective manner. Justice Sidnell cited four major exceptions to the general rule: (i) the amendment would cause serious prejudice to the opposing party, not compensable in Costs; (ii) the amendment is hopeless; (iii) unless permitted by statute, the amendment seeks to add a new party or new cause of action after the expiry of a limitation period; and (iv) there is an aspect of bad faith associated with the failure to plead the amendment at first instance.

Justice Sidnell went on to review McDonald v Fellows, (1979) 17 AR 330 (Alta CA), which addresses when serious prejudice could occur. As stated in that case, prejudice is “virtually inevitable” where evidence has been completed and the Action was conducted without reference to the amendment. Evidence had been concluded in the case by the time the Plaintiff applied to amend her Amended Statement of Claim. Justice Sidnell considered the evidence and whether the Defendant would suffer prejudice, and concluded that no serious prejudice would occur. As a result, the Application to amend the Statement of Claim was granted.

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