The Applicant/Plaintiff brought an Application to amend its Amended Statement of Claim to either add the Respondent, Flint Corp., as a Defendant to the Action or in the alternative, to substitute the current Defendant with Flint Corp. The Respondent argued that the claim against it was time-barred, contending that the Applicant had constructive knowledge of Flint Corp.’s involvement but failed to act within the limitation period.

The Application engaged Rule 3.74, as well as Sections 3(1)(a), 6(1) and (4) of the Limitations Act, RSA 2000, c L-12 (the Limitations Act). The Court stated that, pursuant to Rule 3.74, the Court may order that a person be added or substituted as a Defendant to an Action. However, a Court may not make that order if prejudice would result that could not be remedied by a costs award, adjournment, or the imposition of terms. Applications Judge Park stated that the “classic rule” for amendments is that a pleading can be amended at any time, regardless of the lateness or carelessness of the party seeking to amend. However, where the amendment seeks to add a new party or cause of action after the expiry of a limitation period, unless permitted by statute, an exception applies.

The Court determined that the Applicant acted with due diligence in its discovery of the claim against the Respondent, and it was reasonable for the Plaintiff to consider the Respondent as a potential Defendant when it did. The Plaintiff satisfied the requirements of the Limitations Act by notifying the Respondent of the claim within months of discovering the claim, inside the 2-year limitation period. The Court found that the amendment would not cause irreparable prejudice. Applications Judge Park therefore granted the Application.