1.2: Purpose and intention of these rules
3.74: Adding, removing or substituting parties after close of pleadings
6.3: Applications generally
6.6: Response and reply to application
6.7: Questioning on affidavit in support, response and reply to application

Case Summary

The Plaintiffs filed a Statement of Claim in June 2015 and sought to add an additional party, Cordy Oilfield Services Inc. (“Cordy”) through an ex parte Application in February 2017. Master Robertson adjourned the Application so that Cordy could receive notice pursuant to Rule 6.3 which refers to “every other person affected by the application”. Upon receiving service of the Application and supporting Affidavit, Cordy sought to further adjourn the Application to question on the Affidavit. The Plaintiffs opposed the adjournment, arguing that Cordy was only entitled to notice. Master Robertson disagreed and granted the adjournment to allow for questioning on the Affidavit.

The Plaintiffs appealed Master Robertson’s Decision. As stated by Justice Anderson, “[t]he issue to be decided is whether a proposed party has any standing to participate in or oppose the application to add it as a party to an action”. Anderson J. also noted that Rule 3.74 governs the addition of a party in the circumstances.

While each of the Plaintiffs and Cordy made submissions concerning Rule 1.2, Anderson J. held that the foundational Rule is not “particularly determinative or helpful in deciding this issue”.

Cordy submitted that each of Rules 6.3, 6.6 and 6.7 supported its position. In particular, Rule 6.3 regarding notice of an application, and Rule 6.7 regarding affidavits in support of an application, refer to “person(s)” rather than parties. Further, Rule 6.6, regarding response to an affidavit, refers to a “respondent”, which is not defined in the Rules and according to Cordy, ought to “include anyone responding to an application”.

The Plaintiffs suggested that Master Robertson’s Order created two classes of Defendants, however Justice Anderson did not find this to be an issue, as the old Rules also created two types of Defendants, those requiring the Court’s permission to be added and those that did not.

Her Ladyship then went on to note that to add a Defendant after the close of pleadings, there must be an application and supporting evidence. The Court then has the discretion to allow the application. Further, Justice Anderson remarked that adding a party is an amendment to a pleading, granting the amendment is discretionary, and that discretion should be exercised “generously”, and “especially [so] when the amendment is sought early in the proceedings”.

Justice Anderson then reviewed the test to amend pleadings, remarking that the threshold to do so is low. Her Ladyship found that allowing a proposed party to participate in the amendment Application would help the Court “decide whether there is prejudice that cannot be remedied and whether the Court is satisfied that the order to add the party should be made”. Accordingly, Anderson J. maintained that allowing Cordy to participate in the Application was not contrary to the Rules. Further, Justice Anderson held that for notice to be meaningful there must be a right to participate in the Application and thus there was no error in Master Robertson’s Decision. Anderson J. therefore dismissed the Appeal.

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