LINDSTROM v CASHYN HOMES INC

The Appellants appealed a Court of Justice’s decision denying portions of their Application to amend their Amended Amended Dispute Note and Counterclaim and denying a request to transfer the Action to the Court of King’s Bench (the “COJ Decision”). The denied proposed amendments included: (i) adding a corporate officer as a Defendant to the Counterclaim; (ii) increasing the amount of certain damages claimed; and (iii) adding a new cause of action related to theft. The request to transfer the Action to the Court of King’s Bench was based on an assertion that the proposed amendments would increase damages above the Court of Justice’s monetary jurisdiction (the “Transfer Application”). As the amendments were denied, the Transfer Application was likewise denied.

Applying Rules 3.65 and 3.74, Dario J. noted that amendments should generally be permitted except where the proposed claim is hopeless, advanced in bad faith, or would cause serious prejudice. Applying this principle, the Court reached a mixed result regarding the appeal on the proposed amendments.

The Court allowed the corporate representative to be added as a Defendant for limited negligence claims based on an alleged personal duty of care, but held that the proposed contract claims against him were doomed to fail because he was not a party to the contract. It also rejected several proposed amendments as hopeless, including claims to recover personal debts allegedly caused by the Respondents’ non-payment. However, the Court permitted a claim for consequential damages arising from that non-payment, such as interest, collection costs, and legal expenses. The claim for loss of future opportunities was denied for lack of sufficient particulars, and the proposed increase in damages for allegedly stolen property was dismissed as an unsupported “bald assertion.” However, the Court allowed a $15,615 increase in damages for “extra work” completed by the Appellant because the claim was itemized and supported by evidence.

The Court applied Rules 1.2 and 1.4 to dismiss the appeal of the Transfer Application, finding that transferring the Action after 18 months of litigation, where the allowable claims remained within the Court of Justice’s $100,000 monetary jurisdiction, would result in significant “throw-away costs” and waste judicial resources. The Court held that the guiding principles of timely and cost-effective resolution outweighed the Appellants’ interest in transferring the matter to increase the Quantum of Damages.

The Appeal was allowed in part. However, the Court found that portions of the Appeal of the amendment Application were brought in bad faith due to their late timing, lack of supporting evidence, and potential prejudice to the proceedings. As a result, the Respondent was awarded costs.