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CIVIL PROCEDURE - Pleadings - Amendment of - To alter or add to claim for relief

Thursday, May 09, 2019 @ 8:39 AM  


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Appeal by the plaintiff from a decision denying it permission to amend its defamation action. The appellant was a nonprofit corporation that provided treatment for addicted adolescents. In 2009, the respondent CBC broadcast a program that severely criticized the appellant, relying heavily on the allegations of former program participants that they were raped, abused and mistreated while they attended the Centre. The appellant then commenced the current defamation action against CBC and some of its employees. After the CBC reposted the 2009 program on its website in 2017, the appellant applied to make substantial amendments to its claim seeking to add allegations that the defamatory features of the program included the very ones it initially declined to pursue. The chambers judge concluded that the appellant’s change of litigation strategy constituted significant litigation prejudice for the CBC. He concluded that it seemed unfair to force the respondents to alter their strategy and defend a claim that was much broader than originally contemplated. He refused to permit appellant to make a claim outside the scope of the original statement of claim which restricted the claims to the sensationalism.

HELD: Appeal allowed. The chambers judge erred in concluding that the appellant’s strategic about-turn, without more, constituted significant litigation prejudice for the defendants. The chambers judge failed to explain how the proposed amendments would prejudice the respondents and, if they did, why a costs order would not adequately ameliorate this prejudice. The respondents did not allege that the proposed amendments made superfluous any litigation step that they had already taken. There was no evidence that the time their lawyers had previously devoted to the defence of the action was wasted. The fact that the respondents would have to spend more time going forward responding to the new claims than if the claim was not amended did not constitute significant prejudice. The respondents did not demonstrate that the appellant’s proposed amendments would cause them significant litigation prejudice or that the proposed amendments advanced hopeless claims, were the product of bad faith or contravened the public interest in expeditious and economical dispute resolution. The proposed amendments were not inconsistent with the public interest. They did not contravene the court’s obligation to be responsible stewards of public funds devoted to the administration of justice and to support practices that promoted the expeditious and economical resolution of disputes. There was no reason to believe that granting permission to amend the claim would impair the parties’ ability to be trial-ready on schedule.

AARC Society v. Canadian Broadcasting Corp., [2019] A.J. No. 419, Alberta Court of Appeal, T.W. Wakeling, D. Pentelechuk and J.D.B. McDonald JJ.A., April 8, 2019. Digest No. TLD-May62019012