1.2: Purpose and intention of these rules
3.65: Permission of Court to amendment before or after close of pleadings
3.68: Court options to deal with significant deficiencies
4.36: Discontinuance of claim
8.20: Application for dismissal at close of plaintiff’s case
13.6: Pleadings: general requirements
13.7: Pleadings: other requirements

Case Summary

This Decision addressed an Application by the Plaintiffs/Defendants by Counterclaim, for a non-suit in the Counterclaim, brought pursuant to Rule 8.20. Preliminary issues relating to the adequacy of Pleadings and amendments to Pleadings were also addressed.

The Plaintiffs/Defendants by Counterclaim (“PR”) sued the Defendants/Plaintiffs by Counterclaim (“Colony”) in contract for failure to pay amounts owing pursuant to a subcontract. Colony defended and countersued for costs to complete unfinished work and for fraud, bribery, conspiracy and other torts allegedly committed by PR in league with a former Colony employee and his corporation (together, “Lacroix”). The Trial was longer than anticipated and was adjourned prior to Lacroix being able to call evidence. While awaiting continuation dates, PR and Lacroix brought an Application for a non-suit. Preliminary issues were raised as to whether Colony could amend its Pleadings, pursuant to Rule 3.65, to delete several claims and whether certain of Colony’s claims had been inadequately pleaded, pursuant to Rules 13.6 and 13.7.

On Colony’s request to amend, the Court noted that amendments are typically granted in all but four exceptional circumstances, none of which had been argued. Instead, PR argued that it was too late for Colony to withdraw the claims without Costs consequences. Noting that Colony’s request essentially amounted to a request for a discontinuance pursuant to Rule 4.36, to which Costs consequences automatically attach, the Court allowed the amendment, subject to PR’s right to speak to Costs at the end of Trial.

As to adequacy of Pleadings, the Court observed, noting Rule 1.2, that where inadequate Pleadings are identified, the proper remedy is typically rectification of the Pleadings. Regarding Colony’s allegations of fraud, the Court held that the appropriate remedy, if one was necessary, was to permit amendments to include specific allegations supported by evidence given at Trial which were arguably captured within the meaning of Colony’s umbrella allegation of “further and other fraudulent activities”. Other alleged inadequacies were either not inadequate or could be similarly addressed through amendment.

On PR’s and Lacroix’s request for a non-suit, the Court observed that a non-suit Application demands a limited inquiry to determine whether evidence has been adduced on all elements of the claim and, if so, whether a prima facie case has been made out, affording the evidence its most favourable meaning and ignoring any concerns as to credibility. Applying this to the claims at issue, the Court held that a generous reading of the evidence satisfied the low bar required to resist a non-suit. Issues as to inadequate Pleadings were properly dealt with under an Application to strike pursuant to Rule 3.68, and not an Application for a non-suit. Accordingly, the non-suit Application was dismissed.

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