1.2: Purpose and intention of these rules
3.62: Amending pleading
3.65: Permission of Court to amendment before or after close of pleadings
6.3: Applications generally
7.3: Summary Judgment (Application and decision)

Case Summary

The Plaintiff brought a claim against three individual Defendants and one corporate Defendant for misappropriation of shares. One of the individual Defendants brought an Application to amend his pleadings in order to plead the provisions of the Limitations Act, RSA 2000, c L-12. At the same time, three of the four Defendants brought Applications for Summary Judgment to dismiss the Plaintiff’s claim on the basis that it was statute barred under the Limitations Act.

McCarthy J. dealt with the Application to amend the pleadings first. The Applicant did not file an Affidavit in support of the Application and instead relied on an Affidavit that had been filed earlier in the matter. The Respondent argued that Rule 6.3(3)(b) required the Application to be supported by an Affidavit, however, McCarthy J. stated that only a modest amount of evidence was needed to support an Application for an amendment, and held that the reliance on an earlier Affidavit was sufficient. Therefore, an Affidavit filed in conjunction with the Application was not necessary.

McCarthy J. found that when Rule 3.65 is read in conjunction with Rule 1.2(2)(a), the result is very similar to former Rule 132, as was decided in the case of Manson Insulation Products Ltd v Crossroads C & I Distributors, 2011 ABQB 51. After reviewing case law regarding former Rule 132, McCarthy J. stated:

… it appears that under the new rules pleadings can be amended no matter how careless or late the party seeking to amend.

McCarthy J. reviewed the exceptions for allowing an amendment under former Rule 132 and determined that there was no existing exception. The Application to amend the pleadings was granted.

In support of the Application for Summary Dismissal, an Affidavit was filed by only two of the three Applicants. The Respondent argued that each Applicant had to file an Affidavit in support of the Application. McCarthy J. did not agree with this suggested requirement and stated that:

… Quadrangle argues that the Applicants are required to rely on their own affidavits and their own evidence. However, I do not agree that this is the case. Rule 7.3(2) provides that the “application must be supported by an affidavit swearing positively […]”. The Applicants relied specifically on Coady’s and Wandinger’s affidavits. I find that this is sufficient to meet the requirements of Rule 7.3.

McCarthy J. applied the provisions of the Limitations Act, and granted Summary Judgment for one of the individual Applicants but dismissed the other Defendants’ Applications.

View CanLII Details