In 2002, the Plaintiff entered into an investment management contract with the Defendants, Piikani Nation (Piikani), which was terminated after allegations of fraud and bribery. The Plaintiff commenced this Action in 2008, seeking damages for loss of income, pain and suffering, and other damages to be proven at Trial. The Statement of Claim was amended twice: first in 2009 to remove one of the Defendants, and again in 2012 to withdraw the Claim for pain and suffering (the Amended Claim). The Plaintiff later sought to amend the Amended Claim to include Wallace-type damages (a form of aggravated damages arising out of the termination of the contract), punitive damages, pain and suffering, and defamation, alleging bad faith termination and reputational harm. Piikani opposed the amendments, arguing that they were prejudicial, hopeless, limitations-barred, and constituted an abuse of process.

Graesser J. addressed Piikani’s objections, noting that while the Rules of Court and case law require some evidence to support amendments, the evidentiary threshold is low and does not need to be sufficient for Trial or Summary Judgment. Justice Graesser determined that additional damages, including Wallace-type damages, were permitted since the initial claim sought damages to be proven at Trial. Graesser J. found no prejudice or limitations issue as damages had been addressed in questioning. Furthermore, the Court clarified that specifying punitive damages did not introduce a new cause of action or cause prejudice, as damages for breach of contract were already sought.

Regarding the defamation amendment, Justice Graesser highlighted the 17-year gap since the alleged statements were made. Graesser J.  noted that statements in pleadings are absolutely privileged and cannot be the basis of a defamation claim. Additionally, any repetition of defamatory statements does not revive the initial claim, as limitation periods apply only to the repetition itself. With no evidence of defamatory statements made within the last two years, the defamation amendment was deemed statute-barred.

The Court also addressed the broader implications of delay, noting that the absence of records and unavailability of witnesses could disadvantage both parties. This was particularly relevant to the Plaintiff’s medical records, which were necessary for assessing the foreseeability of damages. Graesser J. emphasized that the Plaintiff’s failure to comply with Orders to produce such records would prejudice Piikani, with no remedy available to address such noncompliance. While acknowledging that damages for mental distress for breach of contract may be available in rare circumstances, Justice Graesser highlighted that the Plaintiff had abandoned those claims in a previous amendment and cannot pursue them again, either directly or indirectly. Similarly, the Plaintiff’s indemnification and save harmless claim against Piikani was dismissed, as it had previously been advanced and dismissed. Graesser J. concluded that allowing such amendment would introduce a new cause of action and constitute an abuse of process by revisiting issues that had already been decided.

As a result, Justice Graesser granted the Plaintiff permission to amend the Amended Claim to include Wallace-type damages and punitive damages. However, claims for pain and suffering, mental distress, general damages, defamation, and indemnification and hold harmless relief were disallowed, as they had either been abandoned or were barred.