This was an Appeal of a Trial Judge’s finding that the Appellant had not been prejudiced by allowing the Respondent to amend their Statement of Claim to include prejudgment interest and by granting prejudgment interest based on a calculation for which there was no evidence.

The Court of Appeal noted that the Trial Judge had found that granting prejudgment interest would not cause the Appellant to suffer serious prejudice and that there was sufficient evidence before the Court to calculate prejudgment interest. The Trial Judge simply awarded prejudgment interest on 75% of the amount that the Respondent paid to settle the claims of Mr. Borger’s family.

On Appeal, the Appellants identified a tension between Rule 1.3(2) and Rule 13.6(2)(c)(iii): per Rule 1.3(2) the Court can give a remedy “whether or not it is claimed or sought”, however, per Rule 13.6(2)(c)(iii) a pleading must contain a statement of any interest claimed including the basis for the interest and the method of calculating it. The Court of Appeal found that Rule 1.3(2) confirmed that the Rules did not limit the jurisdiction of the Court and that Rule 13.6(2)(c)(iii) specified the way that litigants were to invoke the jurisdiction of the Court. Thus, the Court would not award interest that was not pleaded due to a lack of jurisdiction, but simply because it was not pleaded.

The Court of Appeal found that the Appellant was not prejudiced by having to answer a pleading that was not previously argued; any prejudice would have to bear on the Appellant’s ability to answer the new pleading. In the instant case there was no prejudice: the entitlement to interest was created by statute, and the Appellant admitted the reasonableness of the payment the Respondent had made to Mr. Borger’s estate. The Appellant had not been deprived of the opportunity to respond to and defend against the amended pleading. The Appeal was dismissed except for an adjustment to the rate of pre-judgment interest.