Last week, in 1250264 Ontario Inc. v. Pet Valu
Canada, Justice Belobaba rejected class counsel's
late-breaking attempts to recast the representative plaintiff's
claim. After receiving feedback from the court during the hearing
of a summary judgment motion, the plaintiff moved to amend its
pleadings and add a new common issue prior to the release of the
decision on the summary judgment motion. Justice Belobaba held that
allowing the plaintiff's motion would have caused prejudice to
No absolute rule emerges from the decision – indeed, a
different result was reached on an attempt to recast a case on
last year. Nonetheless, the case demonstrates that courts are
cognizant of the very real prejudice that defendants can suffer
when plaintiffs attempt to radically recast a claim after years
have passed and key steps have taken place in class action
The decision emerged in a certified class proceeding after the
defendant brought a summary judgment motion that turned out to be
largely successful. (The Court of Appeal dismissed a motion by the
plaintiff to file a late notice of appeal of the decision
dismissing most of the plaintiff's claim last week.) Justice Belobaba nonetheless had to
delay his decision on two of the common issues when the plaintiff
brought a motion, after the summary judgment motion had been heard,
to amend its pleadings and add a new common issue.
Though Justice Belobaba noted that "it is only in unusual
situations that a proposed amendment to the statement of claim will
be denied", he nonetheless dismissed the claim solely on the
grounds of prejudice. He held:
Absent his intervention, "the summary judgment motion
would have concluded and the defendant would likely have prevailed
on most of the common issues".
The defendant encountered actual prejudice in respect of the
proposed amendments and the new common issue, having been "in
a position to obtain complete summary judgment on the existing
common issues as well as a probable cost award against the
representative plaintiff" that likely would have ended the
The representative plaintiff is a defunct corporation that
likely has no assets to satisfy a judgment and would therefore
likely not have commenced a new class proceeding on the new common
Allowing the motion would have tilted the proceeding in the
plaintiff's favour. In this respect, he cited decisions in
which Justice Perell noted that "defendants, just as much as
plaintiffs, are entitled to access to justice" and courts
"should also be aware that the procedure of a class action is
meant to level the playing field, not tip the field in the favour
Justice Belobaba noted that there appeared to be some merit to
the plaintiff's new allegations, and he would have allowed the
amendment, albeit only partially, had he reached a different
conclusion on the issue of prejudice. This case is an important
recognition that an attempt by a representative plaintiff to
radically recast a claim years after it has been commenced can be
very unfair and should in such circumstances not be permitted.
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.
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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.
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