master robertson

3.33: Reply to defence
3.67: Close of pleadings
3.68: Court options to deal with significant deficiencies
6.3: Applications generally
13.5: Variation of time periods
13.6: Pleadings: general requirements

Case Summary

The Plaintiff applied to amend his Statement of Claim (the “Amendment Application”), providing only informal notice to the Defendants on the day before their scheduled hearing to strike the Statement of Claim pursuant to Rule 3.68 (the “Striking Application”), on June 8, 2017. At the time the Amendment Application was filed, the Clerk also filed the amended Statement of Claim in error (the “Amended SOC”), despite the fact that the pleadings had closed. Master Robertson directed that the Amended SOC be struck as it was not filed pursuant to an Order, nor consent of the parties.

Master Robertson heard the Plaintiff’s submissions with respect to amending the Statement of Claim, treating the Amended SOC as a proposed Statement of Claim. Noting that an Application to amend a Statement of Claim must be heard before an Application to strike pursuant to Rule 3.68, Master Robertson adjourned the Striking Application.

Master Robertson stated that Rule 6.3 governs the amount of notice that parties ought to provide in respect of an Application. The Court may shorten the amount of notice required by abridging the time for service pursuant to Rule 13.5. However, there was no reason that the Amending Application was brought on such short notice given that the Striking Application was filed months earlier.

No Affidavit was filed in support of the Amending Application. Instead, the Plaintiff referred to other evidence, including an Affidavit filed December 20, 2016 (the “December Affidavit”). Master Robertson held that the Amended SOC was “almost a complete reproduction” of the December Affidavit, and therefore “an attempt to plead both evidence and argument”. This raised the question as to whether the Plaintiff was attempting to circumvent Rules 3.68(3) and 3.68(2)(b) in the context of the Striking Application, through the Amended SOC. Master Robertson held that the Plaintiff contravened Rule 13.6(2)(a), which mandates that evidence is not to be plead, by quoting the December Affidavit “almost exactly”. In addition, Master Robertson held that the Amended SOC did not clarify the Claim; accordingly, there was no reason to amend the Statement of Claim. Ultimately, Master Robertson dismissed the Amending Application.

View CanLII Details