MANSON INSULATION PRODUCTS LTD v CROSSROADS C & I DISTRIBUTORS, 2011 ABQB 51
3.62: Amending pleading
3.65: Permission of Court to amendment before or after close of pleadings
3.74: Adding, removing or substituting parties after close of pleadings
7.1: Application to resolve particular questions or issues
7.2: Application for judgment
Manson applied for preliminary determination of certain contractual issues, pursuant to Rule 7.1(3). Poelman J. determined that Rule 7.1(3) must be read in conjunction with Rule 7.1 (1) and that the Rule contemplates a two stage procedure, as under the “old” Rule 221(1). Rule 7.1(1) authorizes the Court to order a question to be heard, to define the question or issue and to give procedural directions. Rule 7.1(3) is premised upon there having been an Order under Rule 7.1(1) and an Application pursuant to Rule 7.1(3) alone will not be successful.
Manson also applied for Summary Judgment pursuant to Rule 7.2. Poelman J. stated that there is no material difference between “new” Rule 7.2(a) and “old” Rule 162 (Summary Judgment Applications based on admissions). The authorities under the former Rule remain applicable for Summary Judgment Applications based on admissions.
Crossroads brought an Application to amend its pleadings pursuant to Rules 3.62(1) and 3.65 (amendment not adding parties) and 3.74 (amendments adding parties). Poelman J. noted that, generally, any pleading can be amended without regard to carelessness or lateness on the part of the party seeking to amend. The Court stated that the Rule:
… codifies the “classic rule” that “an amendment should be allowed no matter how careless or late, unless there is prejudice”.
This is subject to four major exceptions: Canadian Deposit Insurance Corp v Canadian Commercial Bank, 2000 ABQB 440, 269 A.R. 49 at para 11; Foda v Capital Health Region, 2007 ABCA 207 at para 10. Those exceptions are:
(a) The amendment would cause serious prejudice to the opposing party, not compensable in costs;
(b) The amendment requested is “hopeless” (an amendment that, if it were in the original pleadings, would have been struck);
(c) Unless permitted by statute, the amendment seeks to add a new party or a new cause of action after the expiry of a limitation period; and
(d) There is an element of bad faith associated with the failure to plead the amendment in the first instance.
Therefore, if no exception applies, the pleadings can generally be amended. Poelman J. noted that the principles are not premised on particular words in the old Rules. Rather, they arise from the function of pleadings before contemporary common law courts. Poelman J. added that the guidelines established by the authorities under the “old” Rules should inform the Court’s discretion. In this case, the amendments were granted as the Application was early in the proceedings and there was no assertion of prejudice.View CanLII Details