Date: 20011016
Docket: T-1065-00
Neutral Citation: 2001 FCT 1122
BETWEEN:
PAUL FONG
Plaintiff
and
CENTRE DU MOTEUR E.D. DE LAVAL INC.
Defendant
REASONS FOR ORDER AND ORDER
RICHARD MORNEAU, PROTHONOTARY:
[1] This is a motion by the defendant under Rule 75 of the Federal Court Rules, 1998 (the Rules) to amend its statement of defence.
[2] In regard to the principles applicable to amendments of pleadings, the following passage from Canderel Ltd. v. Canada, [1994] 1 F.C. 3 (C.A.), at page 10, accurately reflects the definitely liberal approach recommended to the Court in such matters:
... while it is impossible to enumerate all the factors that a judge must take into consideration in determining whether it is just, in a given case, to authorize an amendment, the general rule is that an amendment should be allowed at any stage of an action for the purpose of determining the real questions in controversy between the parties, provided, notably, that the allowance would not result in an injustice to the other party not capable of being compensated by an award of costs and that it would serve the interests of justice.
[3] It can be added to these remarks, as a backdrop, that in the case of an amendment, as in an application to strike out a pleading, the amendment should be allowed unless it is clear and obvious that the amendment has no hope of success (see Raymond Cardinal et al. v. Her Majesty the Queen, an unreported decision of the Appeal Division of this Court, dated January 31, 1994, docket A-294-77 (Heald, Décary and Linden JJ.A.).
[4] In Visx v. Nidek, [1998] F.C.J. No. 1766, the Federal Court of Appeal also restored the following remarks, drawn from an 1886 judgment, to the agenda:
The rule of conduct of the Court in such a case is that, however negligent or careless may have been the first omission, and however late the proposed amendment, the amendment should be allowed, if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs; but, if the amendment will put them into such a position that they must be injured, it ought not to be made.
[5] In view of the above principles, it is appropriate in the case at bar to allow this motion to amend by the defendant and to consider that the amended statement of defence attached to the defendant's record is deemed to have been served and filed as of the date of this order. For the reasons expressed in Court, the various objections raised in writing during the hearing by the plaintiff cannot be accepted in this case.
[6] The plaintiff may, however, within the next fifteen (15) days, serve on the defendant, in relation to the amendments made to the statement of defence, a written examination under Rule 296 of no more than ten (10) questions. The affidavit in reply to these questions under Rule 99(3) shall be served within fifteen (15) days of the service of the examination.
[7] The plaintiff may serve and file an amended reply within fifteen (15) days of the service of the defendant's affidavit in reply.
[8] The plaintiff is awarded costs of $250 in relation to this motion, which the defendant shall pay to it within thirty (30) days of this order.
Richard Morneau
Prothonotary
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20011016
Docket: T-1065-00
Between:
PAUL FONG
Plaintiff
and
CENTRE DU MOTEUR E.D. DE LAVAL INC.
Defendant
REASONS FOR ODER
AND ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: T-1065-00
STYLE: PAUL FONG
Plaintiff
and
CENTRE DU MOTEUR E.D. DE LAVAL INC.
Defendant
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 15, 2001
REASONS FOR ORDER OF RICHARD MORNEAU, PROTHONOTARY
DATED: October 16, 2001
APPEARANCES:
Paul Fong for the plaintiff
Yves Archambault for the defendant
SOLICITORS OF RECORD:
Charbonneau & Archambault for the defendant
Montréal, Quebec
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