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
6.14: Appeal from master’s judgment or order

Case Summary

The Plaintiff sued for damages relating to losses incurred while collecting long term disability. The Plaintiff alleged that incorrect salary information was given to the insurer. Great Northern Data Supply Co Ltd (“NewCo”) was allegedly the administrator of the long term disability benefit plan. A Master allowed the Plaintiff’s Application to amend their Statement of Claim pursuant to Rules 3.62 and 6.74 to add NewCo. The Master reserved NewCo’s right to raise a limitations defence, but NewCo appealed the Master’s Order pursuant to Rule 6.14. It argued that the Master erred in permitting the amendment, regardless of the right to raise a limitations defence because: the Plaintiff failed to establish that the added Claim was related to the original Pleading; and the Plaintiff had had sufficient knowledge of the additional Claim within the limitation period.

On Appeal, Justice Schutz, after considering the provisions of Rule 6.14(3), allowed the Plaintiff to tender new Affidavit evidence because it was relevant and material, but allowed NewCo to file a responding Affidavit. Justice Schutz observed that nothing turned on the new evidence.

With respect to the amendment, Justice Schutz noted that Rule 3.65 grants considerable discretion to allow amendments after Pleadings close, but there are exceptions, such as those expressly provided for in Rule 3.74(3): a party should not be added if doing so would cause prejudice to a party which could not be remedied by a costs award, an adjournment or the imposition of terms. The non-compensable prejudice is not limited to a party’s ability to defend its case. As the limitation period had already expired, Schutz J. considered whether the added Claim was related to the conduct, transaction or events in the original Pleading, such that NewCo was not entitled to immunity from liability. Justice Schutz noted that “related to” has a very broad meaning, and held that the Plaintiff had met the onus of relating the added Claim to the conduct alleged in the original Pleadings.

Justice Schutz upheld the amendment to the Statement of Claim, but removed the proviso for NewCo to be able to raise a limitations defence. Schutz J. held that this qualification was incorrect due to s.6 of the Limitations Act, RSA 2000, c L-12. The Appeal was dismissed.

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