The parties were involved in a long-standing dispute over the purchase of certain real estate. Shortly before the Trial was set to be heard, the Court was informed that the Defendant, Prasad, intended to make additional arguments relating to a resulting trust or, alternatively, that the Applicant was entitled to relief from forfeiture. The parties sought directions from the Court as to whether Prasad was required to amend his Defence to plead these new arguments and, if so, whether leave to amend should be granted.

Justice Pentelechuk considered Rule 13.6 and stated that only the factual situation that discloses a cause of action needs to be pleaded, not the cause of action itself. In this case, none of the underlying facts had changed. Moreover, relief from forfeiture and resulting trust were not causes of action, but rather defences or forms of relief. On a plain reading of Rule 13.6(2), both defences were matters that could defeat or raise a defence to the Plaintiff’s claims, and should be pleaded. Further, Pentelechuk J. noted that Rule 13.6(3) states that a Pleading must include “any matter on which a party intends to rely that may take another party by surprise” including matters listed under the Rule. Although neither relief from forfeiture or resulting trust are listed, Justice Pentelechuk stated that the list is not exhaustive, and the paramount factor is whether the matter may take another party by surprise. The purpose of Rule 13.6(3) is consistent with the Courts’ position that Trial by ambush is not tolerated, and that parties are entitled to know the case they must meet. Pentelechuk J. concluded that the Respondent in this case could be caught by surprise, because both new arguments were not so routine that they would be anticipated in any contractual dispute. Her Ladyship concluded that the proposed amendments should be allowed.

Justice Pentelechuk noted that, pursuant to Rule 3.66(2), the Costs of a contested Application to amend a pleading are in the discretion of the Court. Because there was mixed success on the Application, each party was ordered to bear its own Costs.