Pentelechuk J

1.2: Purpose and intention of these rules
3.74: Adding, removing or substituting parties after close of pleadings
13.18: Types of affidavit

Case Summary

The Plaintiff sought to amend his Statement of Claim in a personal injury action to add the personal representative of a deceased Defendant (the “Proposed Defendant”), and to plead particulars of the Proposed Defendant’s negligence. The Court considered whether the proposed amendments were outside the limitation period, whether they prejudiced the Proposed Defendant, and whether they were appropriate amendments generally.

Justice Pentelechuk was not satisfied that the Proposed Defendant received notice of the Claim within the applicable time period, and the Plaintiff’s added claim against the Proposed Defendant was therefore statute barred. Justice Pentelechuk was also not satisfied that allowing the amendment in the circumstances was appropriate. Under Rule 3.74, the Court may order that a person be added as a party to an action if the Application is made by a party and the Court is satisfied the Order should be made. An amendment is also inappropriate if it would result in prejudice to a party which could not be remedied by the imposition of costs.

Pentelechuk J. observed that Rule 13.18 requires that an Affidavit be sworn based on personal knowledge or on information known to the affiant and their belief. The Affidavits from both parties referenced hearsay evidence and were conflicting with respect to crucial details.

The Foundational Rules, specifically Rule 1.2, underscore the objective of determining claims as expeditiously and economically as possible. Considering the conflicting evidence as to the type of vehicle involved, and the limited evidence tying the vehicle to the Proposed Defendant, Justice Pentelechuk determined that the amendment “ought not to be allowed in the interests of justice”. The Proposed Defendant was awarded Costs of the Application.

View CanLII Details