1.2: Purpose and intention of these rules
3.65: Permission of Court to amendment before or after close of pleadings
5.10: Subsequent disclosure of records

Case Summary

This case involved a dispute over payment for services and materials provided for the construction of a modular home. The Court’s consideration of the Rules in its Decision was largely confined to the preliminary matter of amending pleadings.

The Plaintiff argued at Trial that the Defendant had been unjustly enriched by construction services and materials it had furnished to the Defendant. The Defendant rebutted this allegation by arguing that there was a “donative intent” with respect to the services and materials provided, which is a juristic reason for any enrichment. The Plaintiff countered by pointing out that the Defendant had not pled donative intent or legitimate expectations in its Statement of Defence which prompted the Defendant to point out that the Plaintiff had also neglected to plead unjust enrichment in its Statement of Claim. The parties both sought to amend their pleadings to include these claims.

The Court decided that it would adjudicate on all of the matters and arguments raised regardless of whether they had been included in the pleadings. The Court stated that this approach is consistent with the spirit of Rule 1.2 to facilitate proceedings in a just and cost-effective way. Moreover, the Court confirmed that Rule 3.65 allows the Court to accept amendments to pleadings regardless of their lateness, subject to four exceptions: where doing so would cause a party prejudice not compensable with Costs; where an amendment is “hopeless”; where the amendment seeks to add a party or cause of action after the expiry of a limitation period; or where there is an element of bad faith associated with the amendment. None of these exceptions applied to any of the amendments sought by either party. Therefore, all of the amendments were allowed.

After deciding on the merits of the case, the Court addressed the issue of Costs. At the outset of Trial, the Court was advised that the Plaintiff had failed to produce some 250 pages of relevant records which resulted in extra Trial time and inconvenience for the Defendant’s counsel. The Court reiterated that Rule 5.10 requires parties to continuously disclose relevant and material records even if they are discovered or created after an Affidavit of Records. The Court therefore awarded $1,000 in Costs to the Defendant for the late disclosure while otherwise requiring the parties to bear their own Costs because there was mixed-success on the merits of the Action.

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