The Alberta Court of Appeal delivered a decision on February
21st clarifying the standard of review for decisions made by a case
management judge regarding the amendment of pleadings after
pleadings have closed. In Attila Dogan Construction and Installation Co.
Inc. v AMEC Americas Limited 2014 ABCA 74, the Court found
that the case management judge's assessment of the evidence and
discretionary decision were entitled to deference, and that the
decision should not be overturned without a palpable and overriding
error in assessing the evidence, an unreasonable exercise of
discretion, or an extricable error.
The appellant issued a Statement of Claim in the above action in
2007, with one amendment in 2010. In May 2013 the appellant brought
an application to further amend the statement of claim.
The 2013 amendment sought to include an allegation of
"duress and/or undue influence" by the defendant in
having the appellant sign an Amending Agreement to their Joint
Venture Agreement. The case management judge found that the
pleading of duress was "hopeless" based on evidence and
"The evidence here indicates
that [the appellant], in circumstances of financial stress,
entertained a proposal to amend the Joint Venture Agreement,
consulted with counsel, proceeded to negotiate, and arrived at an
amendment that may, in the long run, not have been in its best
interests. There is no evidence of the exercise of domination or
control that would support a claim for undue influence."
The appellant argued that the case management judge erred in
setting too high an evidentiary standard for amending pleadings,
misstated the law, and failed to consider relevant evidence. The
Court of Appeal ruled that the standard of review in this case was
correctness, as it was a question of law. The findings of fact
would only be reversed on appeal if they disclose a palpable and
overriding error, and that absent an error on an extricable
question of law, an error of principle, or a clearly unreasonable
decision, deference is awarded to discretionary decisions of case
The Court of Appeal looked at the test for amending pleadings.
While the bar is quite low and most applications to amend are
approved, there are four main situations where the judge will not
allow the amendments:
where the amendment would cause serious prejudice to the
opposing party that was not compensable in costs,
where the amendment is hopeless,
where the amendment seeks to add a new party or cause of action
after the expiry of a limitation period that is not permitted by
an element of bad faith is associated with the failure to plead
the amendment in the first instance.
The Court of Appeal deferred to the case management judge,
finding that the judge had properly applied the test of duress, and
had not set too high a standard for the evidence required to
support the amendment. While the evidentiary standard is low, the
Court ruled that it does not preclude all weighing of tendered
evidence by the judge, and that the applicant merely providing
"some evidence" is not sufficient. The judge found that
the appellant's lack of protest at the time of negotiation of
the Amending Agreement, and the fact that appellant failed to raise
the claim until a decade into the dispute all led to the claim of
duress being "hopeless."
The Court ruled that the case management judge's decision to
refuse the amendment was entitled to deference.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).