TIGER CALCIUM SERVICES INC v SAZWAN, 2019 ABQB 885
1.2: Purpose and intention of these rules
3.65: Permission of Court to amendment before or after close of pleadings
10.31: Court-ordered costs award
10.33: Court considerations in making costs award
13.6: Pleadings: general requirements
13.7: Pleadings: other requirements
The Plaintiffs sought to amend its Statement of Claim to, among other things “add particulars and elaborate on prior claims” including allegations of misrepresentation and fraud. The Defendants opposed the Application. The Application was granted as against one Defendant and dismissed as against another.
Her Ladyship cited Rule 3.65 which gives the Court a broad discretion to allow amendments and noted the “classic rule” that all amendments ought to be allowed unless doing so (i) causes serious prejudice to another party; (ii) is hopeless; (iii) seeks to add a new party or cause of action; or (iv) there is an element of bad faith.
Rules 13.6 and 13.7 provide that a pleading must give particulars of fraud and misrepresentation when these allegations are included in the pleading. Further, the Court noted that when proposed amendments raise new allegations of fraud, the evidentiary threshold is significantly elevated. Citing Canadian Natural Resources Ltd v Arcelormittal Tubular Products Roman SA, 2013 ABCA 87, Her Ladyship confirmed that a party proposing an amendment alleging fraud must show “‘good ground’ or ‘exceptional circumstances’ for such amendments and that ‘good ground’ cannot be shown without ‘significant evidence’”. The Court found the Plaintiffs provided significant evidence (in the form of an Affidavit) in support of the proposed amendments related to one of the Defendants. However, the Affidavit contained hearsay evidence related to another Defendant and the Court found that this did not meet the threshold established by the case law.
One of the Defendants argued the Application to amend should be dismissed based on delay — stating that the Plaintiffs’ failure to diligently pursue allegations of fraud triggered the Court’s jurisdiction under Rule 1.2. The Court found no delay and dismissed the Defendant’s Application to dismiss the Action on those grounds.
The Court concluded by considering Costs awards that arise as a result of amendments to pleadings under Rule 3.66, and the general Costs Rules — Rule 10.31 and 10.33. In awarding Costs against the Plaintiffs, the Court observed that leading up to this Application, the Plaintiffs had prepared and provided numerous versions of the lengthy amended Statement of Claim to the Defendants. The Court also noted that some Defendants were represented by the same counsel. Therefore, Her Ladyship did not award a separate set of Costs for each version of the amended Statement of Claim reviewed, nor for multiple Defendants who were represented by the same counsel.View CanLII Details