This was an Appeal under Rule 6.14 from a Decision of an Applications Judge dismissing the Appellants’ Application to amend their Amended Statement of Claim. The Applications Judge applied the test from Douziech v Petra Corp., 2009 ABQB 437, and found that the proposed amendments amounted to the withdrawal of admissions made during Questioning. On Appeal, the Court found that the Applications Judge erred in characterizing the proposed amendments as admissions. The Court held that allegations in a Statement of Claim do not constitute admissions, and that the proposed amendments represented a change in litigation strategy, not a withdrawal of factual admissions.

The Court also considered the Respondents’ objection to the admissibility of a transcript of the Appellants’ own Questioning, filed in support of the Appeal. Relying on Rule 5.31, the Court ruled the transcript inadmissible, as parties may not use their own questioning transcripts in support of their own Application or proceeding.

The Respondents further argued that the Appellants were seeking to improperly vary a prior Consent Order. The Court found that the Appellants’ request was not an attempt to vary the Consent Order but rather a new application to amend pleadings. In any event, the Court found that the Consent Order could be varied under Rule 9.15(4), if necessary, as it was procedural and interlocutory in nature, and variation would be justified.

The Court concluded that the proposed amendments were not hopeless, would not cause serious prejudice not compensable in costs, and were consistent with the general principles governing amendments to pleadings. The Appeal was allowed, the Decision of the Applications Judge was set aside, and the Appellants were permitted to file their further Amended Statement of Claim.