The Defendants applied to strike the Plaintiff’s Amended Statement of Claim pursuant to Rule 3.68, arguing that: the Plaintiff had no cause of action against the Defendants; the Action was frivolous; and the Claim was an abuse of process. The Plaintiff cross-applied to amend his Amended Statement of Claim and to add four more Defendants to the Claim in place of some of the “John Doe” Defendants.

Master Robertson noted that pursuant to Rule 3.67, the pleadings had closed almost a year prior to the Plaintiff’s Cross-Application, and that the Plaintiff initially filed the Amended Amended Statement of Claim without the consent of the Defendants or without the approval of the Court, which was in violation of Rule 3.62. Master Robertson determined that, based on the violation of Rule 3.62 alone, the Amended Amended Statement of Claim should be struck.

Master Robertson noted that the parties had not addressed Rule 6.3(3) which requires that the proposed new parties to the Amended Amended Statement of Claim be served with the Application at least five days before the Application. Further, the parties had not addressed Rule 3.74, which sets out the requirements for adding, removing or substituting parties after the close of pleadings. Master Robertson noted that Rule 6.6 provides that the Respondent to an Application must serve their Affidavit on the Applicant in a reasonable time before the Application, and that the Affidavit should not be considered unless the Court rules otherwise. In this case, Master Robertson determined that the Respondent’s Affidavit should be taken into account, even though it was not served on the Applicant in a reasonable time before the Application.

Master Robertson determined that the Court should first consider the Plaintiff’s Cross-Application to amend before considering the Defendants’ Application to strike the Claim. Master Robertson stated that some modest evidence is required for amendments, with an increase in the level of evidence required when allegations of fraud or malicious conduct are made. Further, the Court is entitled to refuse an amendment when the proposed cause of action was limitation barred, or when there is “an element of bad faith associated with the failure to plead the amendment in the first instance”. Master Robertson held, though the Plaintiff’s amendments were obscured by heavy and indiscriminate underlining, that no proper claims were proposed by the amendments and dismissed the Plaintiff’s Cross-Application to amend the Amended Statement of Claim.

Master Robertson considered the Defendants’ Application to strike the Plaintiff’s Claim, noting that Rule 3.68 sets out the Court’s options on such Applications. Master Robertson observed that evidence may be reviewed on Applications to strike under Rule 3.68, except when the Application is made pursuant to Rules 3.68(2)(b) and 3.68(3). Master Robertson noted that the Plaintiff’s Claim made broad allegations against all Defendants, and that while it is permissible to plead broad allegations in a Statement of Claim, the Pleading is required to include facts upon which a party relies pursuant to Rule 13.6(2). The Plaintiff’s Amended Amended Statement of Claim did not include such facts. Master Robertson therefore struck the entire Claim.