3.62: Amending pleading
13.18: Types of affidavit

Case Summary

This was an Application by the Plaintiff to amend its Statement of Claim to add a claim against another party, an individual named Graf. Graf contested the amendment on a number of bases.

Master Hanebury first reviewed the case law in relation to amending pleadings, and cited Balm v 3512061 Canada Ltd, 2003 ABCA 440 for the proposition that “an amendment should be allowed, no matter how careless or late, unless there is prejudice”. Master Hanebury also noted that:

1.         The amendment must raise a triable issue;

2.         The evidentiary threshold is low and hearsay evidence is allowed;

3.         There must, however, be some evidence to support the amendment; and

4.         The necessary amount of evidence is “modest”.

With those considerations in mind, Master Hanebury turned to the specific arguments raised by Graf. The first was that the Plaintiff’s Affidavits supporting the amendment ought to be struck, or portions ought to be struck, because they contain unattributed hearsay. Master Hanebury reviewed Rule 13.18(2) which states that, if an Affidavit is sworn on the basis of information and belief, the source of the information and belief must be disclosed. Although it was true that the paragraphs which the Respondent sought to have struck constituted unattributed hearsay, Master Hanebury found that in some cases there were documents in the Plaintiff’s Affidavit of Records which supported the information in question, and therefore those paragraphs were not struck. In one instance, it was found that some information which was unattributed hearsay was acknowledged by another party to the Action. Master Hanebury allowed these paragraphs to remain in the Affidavit; however, Master Hanebury did strike some paragraphs which were unattributed hearsay and not supported by any other evidence before the Court. Master Hanebury also struck several more paragraphs from the Affidavits because they contained inappropriate evidence by a lay person.

Further, Master Hanebury had to determine whether the Affidavits, as now redacted, contained sufficient evidence to support the amendment. Master Hanebury determined that they did, and further determined that the amendments were not hopeless. In the result, Master Hanebury allowed the Application to amend.

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