1.2: Purpose and intention of these rules
3.56: Right to counterclaim
3.74: Adding, removing or substituting parties after close of pleadings

Case Summary

The Plaintiff commenced an Action against the Defendant claiming default under a lease agreement as between the Plaintiff and Defendant, and regarding a dispute over who was entitled to fire insurance payments. The Defendant counterclaimed stating that there was a partnership between the parties and there were matters in dispute beyond the fire insurance issues; specifically, improvements made to the lands and a living arrangement agreement between the individual parties. Questioning in the Action had occurred and the Defendant (Plaintiff by Counterclaim) applied to amend the Counterclaim to add an individual who was not already a party to the Action as a Plaintiff by Counterclaim. The Defendant (Plaintiff by Counterclaim) also sought to amend the amount of damages.

Master Robertson noted the concordance of former Rule 93 and new Rule 3.56(1) both in form and substance. Master Robertson considered whether the law had changed in light of Rules 1.2 and 3.74, concluding that “neither the former Rule, nor the current Rule, admitted of the possibility of adding a stranger to the proceedings as a Plaintiff-by-Counterclaim”. The Master observed that Rule 3.74(2)(a), which should be read in conjunction with Rule 3.56(1), was directed at making sure that a party added to an existing pleading as a Plaintiff is “consenting to being added”.

Master Robertson articulated the test for amending pleadings: an amendment should be allowed, no matter how careless or late, unless there is prejudice to the other side, and even that is no obstacle if it is required. Master Robertson set out the four major exceptions to the “classic rule” and noted that Rules 3.74(2)(b) and 3.74(3) establish three criteria to add a party:

1.      The Application must be made by a party;

2.      The Court must be satisfied that an Order should be made; and

3.      There should be no prejudice that could not be remedied.

Master Robertson clarified that, with respect to the second criteria, justice must require the addition of the parties.

Master Robertson considered and dismissed the Defendant’s (Plaintiff by Counterclaim) arguments that Rule 1.2 allowed the adding of a new Plaintiff by Counterclaim to make sure that the correct parties were before the Court and that Rule 3.56(1) should be “interpreted” to allow the addition of a stranger as a Plaintiff by Counterclaim.

With respect to the proposed revisions to the claims in the Counterclaim, the Master stated that such amendments were frequently sought after Questioning when the real issues had been clarified. Master Robertson described these kinds of amendments as “housekeeping” and noted that Rule 1.2(2) contemplated such circumstances. Master Robertson dismissed the Application to amend the Counterclaim by adding a further Defendant who was a stranger to the Action; however, the remaining proposed amendments revising the claims in the Counterclaim were allowed.

View CanLII Details