3.62: Amending pleading
3.65: Permission of Court to amendment before or after close of pleadings
3.68: Court options to deal with significant deficiencies

Case Summary

The Plaintiff applied to amend its Statement of Claim. One of the Defendants, Mr. Wilson, a lawyer who had acted for a party opposite the Plaintiff in a commercial tenancy matter, cross-applied under Rule 3.68 to have the Claim against him dismissed as it did not disclose a reasonable cause of action.

Master Robertson noted that, although the Applications were argued together, it was incumbent upon the Court to decide the amendment Application before deciding the Application to strike. The Court reviewed the proposed amendments and noted the classic rule was that 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 repaired. The Court also cited Dow Chemical Canada Inc v Nova Chemicals Corporation, 2010 ABQB 524 (CanLII), where Wittmann C.J. identified four major exceptions: (1) the amendment would cause serious prejudice to the opposing party, not compensable by costs; (2) the amendment is “hopeless”; (3) unless permitted by statute, the amendment seeks to add a new party or a new cause of action after the expiry of the limitation period; and (4) there is an element of bad faith associated with the failure to plead the amendment in the first instance.

Master Robertson held that none of the exceptions applied in this case, and allowed the amendments subject to the decision on the cross-Application to strike brought by Mr. Wilson pursuant to Rule 3.68. Pursuant to Rule 3.65(2), Master Robertson ordered the amended Statement of Claim to be filed and served within three weeks of date of the decision.

With respect to the cross-Application to strike out portions of the Statement of Claim, Master Robertson noted that, generally speaking, in the context of advancing legal proceedings, a lawyer does not owe a duty to an opposing party. The Court found that much of the Claim sought to be advanced against Mr. Wilson was bound to fail in law, and had no reasonable prospect of success. Master Robertson struck the portions of the Claim which related to Mr. Wilson’s actions in his role as counsel for the landlord in the underlying matter.

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