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CIVIL PROCEDURE - Pleadings - Amendment of - Adding new defence

Monday, March 01, 2021 @ 9:43 AM  

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Appeal by the plaintiff from an order granting Economical Mutual leave to amend its statement of defence and allege that the acts of medical professionals and a hospital contributed to the appellant’s injuries. The appellant sued Blackwater, who operated an all-terrain vehicle, and five medical care providers who treated the appellant after the motor vehicle incident, for personal injuries suffered. Economical, Blackwater’s insurer, was added as a third party by order. The appellant then discontinued the claims against the health-care providers without Economical’s consent. Thereafter, Economical sought leave to amend its defence to plead novus actus interveniens. The case management judge noted that Economical had provided some evidence to support the amendment and that the appellant’s discontinuance made it necessary for Economical to raise the defence as a way of, in effect, advancing the claim of indemnity.

HELD: Appeal dismissed. The case management judge committed no reversible error. The amendment would not cause the appellant significant prejudice, advance a hopeless position or was the product of bad faith. It had been obvious, since the commencement of this action, that both the appellant and Blackwater wished to claim that the care the medical professionals, who were initially named defendants in the appellant’s action, contributed to the appellant’s injuries. Any prejudice the appellant might experience because of the amendment order was the result of Economical’s totally predictable response to the appellant’s decision to discontinue her claims against the medical professionals.

Pace v. Economical Mutual Insurance Co., [2021] A.J. No. 2, Alberta Court of Appeal, P.W.L. Martin, T.W. Wakeling and J. Antonio JJ.A., January 4, 2021. Digest No. TLD-March12021002