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 Plaintiffs applied to amend their Amended Statement of Claim. The parties agreed that, pursuant to Rule 3.65, the Court had broad discretion regarding whether or not to allow amendments. Justice McCarthy noted that any pleading may be amended, no matter how careless or late, subject to four exceptions: (a) the amendment would cause serious prejudice to the opposing party which was not compensable in costs; (b) the amendment requested is hopeless; (c) unless permitted by statute, the amendment seeks to add a new party or 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.

The Defendants did not dispute every proposed amendment, and the undisputed amendments were allowed by the Court pursuant to Rule 3.62. The Defendants opposed the remainder of the amendments on the basis that they were hopeless and would have been struck if they had been contained in the original Statement of Claim. McCarthy J. noted that, whether an amendment is "hopeless" is a high standard. As a starting point, Rule 3.68(2) sets out the conditions necessary for a Court to exercise its discretion to strike all or part of the Pleadings. Additionally, a claim can be hopeless to the extent that it does not meet the minimum, modest evidentiary threshold required to support the amendment, or if the amendment is "so inconsistent with the record that it could fairly be described as 'hopeless'". The Court must assess the limited evidence available and is not required to take that evidence at face value.

The Defendants argued that the Court did not have jurisdiction under the contract between the parties to grant some of the remedies sought by the Plaintiffs and, as such, claims based on those remedies were hopeless. After considering the evidence, Justice McCarthy granted leave to amend the Amended Statement of Claim as proposed, with the exception of those that were premised on breaches of specific articles of the contract that had expired.

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