3.68: Court options to deal with significant deficiencies
6.14: Appeal from master’s judgment or order

Case Summary

The Appellant and Plaintiff, Remington, had been locked in litigation with the Defendant, Enmax, for many years. Remington purchased land that it intended to develop but the land was occupied by Enmax’s equipment and transmission lines. Enmax was accessing its lines under a series of transmission agreements with the previous landowner. In 2010, Remington obtained a Decision confirming its right to terminate the transmission agreements. Enmax subsequently went to the Surface Rights Board (“SRB”) to obtain a right-of-entry Order granting it access to Remington’s land. Remington objected to Enmax’s application to the SRB, saying that Enmax violated an agreement to not make such an Application. After a series of Decisions from the Court of Queen’s Bench and the Court of Appeal, it was determined that both the SRB compensation process and the current Action would proceed. However, Remington wished to amend its Statement of Claim to add damages arising from Enmax’s initiation of the SRB proceedings.

Master Robertson had dismissed Remington’s Application to amend its pleadings, and Remington appealed to a Justice of the Court of Queen’s Bench. This was the Appeal of Master Robertson’s dismissal of the Application to amend.

The Court noted that an Appeal from a Master is often described as an Appeal de novo notwithstanding that the wording of Rule 6.14(3) clearly describes it as an Appeal “on the record”. This refers to the standard of review (now settled to be correctness) and not to the evidence allowed on appeal. Not all Appeals from a Master are automatically Appeals de novo but rather, there is a low threshold for the introduction of new evidence on appeal, meaning that a true “appeal on the record” will be the exception rather than the rule. On such an Appeal the decision of the Master was not disregarded as though it had not been made (which would be a true de novo hearing). The Appeal is a review of the Decision, and there remains a burden on the Appellant to show that the Decision was not correct although the Court owes no deference to the Master.

The Court noted that as in Dow Chemical Canada v Nova Chemicals Corporation, 2010 ABQB 524, amendments should generally be allowed unless: (a) the amendments would cause serious prejudice not reparable in Costs; (b) the amendments are hopeless; (c) the amendments are time-barred because of limitations; or (d) the amendments are not pleaded or required in good faith.

The parties agreed that the only contested ground was whether Remington’s proposed amendments were hopeless. The Court described “hopeless” as a claim that would have been “strikable” from the original pleading under Rule 3.68 for disclosing no cause of action had it initially been included. While this description may leave the impression that no evidence may be considered on a motion to amend pleadings, this is not the case. The Applicant generally must introduce some evidence to support the amendments, albeit to a very low evidentiary threshold. As such, a proposed amendment is hopeless where it is not “arguable” or “viable”.

The Court found that in the circumstances, the proposed amendments were not hopeless and allowed the Appeal from the Master’s Decision.

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