In April, 2008, the Plaintiffs filed an Originating Notice which sought to register the Plaintiffs’ Montana Judgment in Alberta, pursuant to the Reciprocal Enforcement of Judgments Act. In July, 2008, the Plaintiffs issued a Statement of Claim in relation to the debt created by the Montana Judgment. The registration Application was heard and dismissed in 2009. The Plaintiffs then pursued the debt Action, but Summary Judgment was granted in favour of the Defendants on the basis that it was brought outside the relevant limitation period.

The Plaintiffs applied to amend the 2008 Originating Notice to add the debt claim as an alternative to the registration remedy that was initially pursued. In the alternative, the Plaintiffs sought a Procedural Order under Rule 3.2(6), directing that the amendment be set out in a Statement of Claim filed in this Action. The Plaintiffs argued that, pursuant to section 6 of the Limitations Act, if a claim is added to an already commenced Proceeding, the Defendant is not entitled to immunity from liability, provided the added Claim is related to the conduct, transaction or events described in the original Pleading. The Plaintiffs further argued that their Application was permitted under Rule 6.3, which provides that, unless the Court otherwise permits, an Application may be filed during an Action or after Judgment is entered.

The Defendants argued that section 6 of the Limitations Act requires an existing Proceeding or Claim to which an amendment may be made. The Originating Notice proceeding was concluded in 2009. The Originating Notice merged into the Formal Judgment, and the Court became functus. Further, the Defendants argued that Division 3 of Part 9 of the Rules sets out the only circumstances under which an amendment after Judgment can be sought (i.e. under Rule 3.6), but that Division 3 of Part 9 had no relevance to the Plaintiffs’ circumstances.

Graesser J. held that Rule 6.3 was of no assistance to the Plaintiffs because Rule 6.1 provides that Division 1 of Part 6 does not generally apply to Originating Applications. Further, Graesser J. held that Plaintiffs were not required to bring themselves within Division 3 of Part 9. Rather, the Plaintiffs were required to meet the requirements of Rule 3.65, which relates specifically to amending Pleadings.

Graesser J. held that an Action can end in a number of ways. An Action can lie dormant for up to the period governed by Rule 4.33, after which it is effectively at an end. The present Action was not dormant for long enough to be treated as dead merely by the passage of time.

Graesser J. held that the Plaintiffs could have pursued the debt claim as an alternative remedy in 2009. In the Originating Notice, the Plaintiffs sought the registration of the Montana Judgment, Interest and Costs, and the general and often pled remedy of “such further and other Relief as Counsel may advise and this Honourable Court deems just”. The only issue adjudicated in 2009 was the registration of the Judgment. There was no adjudication relating to the findings of fact or the Judgment itself, and there was no pursuit of any other relief as sought in the Originating Notice. Graesser J. held that having regard to the actual wording in the Originating Notice, it could not be said that everything contemplated by the Originating Notice had been litigated. There was no technical reason under the Rules which would bar the Plaintiffs from pursuing further relief, subject to res judicata, issue estoppel, action estoppel and Rule 4.33.

Graesser J. held that prejudice is relevant to the Court’s determination as to whether to allow an amendment under Rule 3.65. Prejudice relates to the ability to answer a Claim, and turns on factors such as availability, health and memory of key witnesses and destruction of relevant records. Prejudice does not refer to the loss of a limitations defence or other technical arguments. Graesser J. held that the Defendants would not be prejudiced by the amendment, and that the Plaintiffs had met the requirements for an amendment under Rule 3.65. Graesser J. allowed the Application, and permitted the Plaintiffs to amend the Originating Notice to add the alternate relief related to the debt Action.