Date:
20130227
Docket: T-2022-89
T-1254-92
Citation:
2013 FC 198
Vancouver, British Columbia,
February 27, 2013
PRESENT: Roger
R. Lafrenière, Esquire
Case
Management Judge
BETWEEN:
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CHIEF VICTOR BUFFALO ACTING ON
HIS OWN BEHALF AND ON BEHALF OF ALL THE OTHER MEMBERS OF THE SAMSON INDIAN
NATION AND BAND, AND
THE SAMSON INDIAN BAND AND
NATION
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Plaintiffs
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and
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HER MAJESTY THE QUEEN IN RIGHT
OF CANADA, THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT, AND
THE MINISTER OF FINANCE
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Defendants
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AND
BETWEEN:
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CHIEF JOHN ERMINESKIN,
LAWRENCE WILDCAT, GORDON LEE,
ART LITTLECHILD, MAURICE WOLFE,
CURTIS ERMINESKIN, GERRY ERMINESKIN, EARL ERMINESKIN, RICK WOLFE, KEN CUTARM,
BRIAN LEE, LESTER FRAYNN, THE ELECTED CHIEF AND COUNCILORS OF THE ERMINESKIN
INDIAN BAND AND NATION SUING ON THEIR OWN BEHALF AND ON BEHALF
OF ALL THE OTHER MEMBERS OF THE
ERMINESKIN INDIAN BAND AND
NATION
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Plaintiffs
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and
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HER MAJESTY THE QUEEN
IN RIGHT OF CANADA,
THE MINISTER OF INDIAN AFFAIRS
AND NORTHERN DEVELOPMENT,
AND THE MINISTER OF FINANCE
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Defendants
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REASONS FOR
ORDER AND ORDER
[1]
The
Defendants, Her Majesty the Queen in Right of Canada, the Minister of Indian
Affairs and Northern Development, and the Minister of Finance (collectively referred
to in these reasons as “the Crown”) seek leave to amend the Crown’s Amended
Statements of Defence in two representative actions brought on behalf of the
Samson Indian Band and Nation (Samson) in Court File No. T-2022-89 and the
Ermineskin Indian Band and Nation (Ermineskin) in T-1254-92 (collectively
referred to as “the Plaintiffs”).
[2]
The
Crown’s motion is brought pursuant to Rule 75 of the Federal Courts Rules,
SOR/98-106 [FCR], which provides as follows:
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75. (1) Subject to subsection (2) and rule 76, the
Court may, on motion, at any time, allow a party to amend a document, on such
terms as will protect the rights of all parties.
(2) No amendment shall be allowed under subsection
(1) during or after a hearing unless
(a) the purpose is to make the document
accord with the issues at the hearing;
(b) a new hearing is ordered; or
(c) the other parties are given an
opportunity for any preparation necessary to meet any new or amended
allegations.
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75. (1) Sous réserve du paragraphe (2) et de la règle
76, la Cour peut à tout moment, sur requête, autoriser une partie à modifier
un document, aux conditions qui permettent de protéger les droits de toutes
les parties.
(2) L’autorisation visée au paragraphe (1) ne peut
être accordée pendant ou après une audience que si, selon le cas:
a) l’objet
de la modification est de faire concorder le document avec les questions en
litige à l’audience;
b) une
nouvelle audience est ordonnée;
c) les
autres parties se voient accorder l’occasion de prendre les mesures
préparatoires nécessaires pour donner suite aux prétentions nouvelles ou
révisées.
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[3]
The
Crown seeks leave to specifically reference ss. 39(1) and (2) of the Federal
Courts Act, RSC 1985, c F-7 [FCA] and ss. 42, 43, 44, and 45(1)(g)
of the Ontario Limitations Act, RSO 1980,
c 240 [OLA] in its statements of defence in the two proceedings and to
provide additional facts upon which its limitations defence is based. The Crown
maintains that it is out of an abundance of caution that it seeks to formally
amend its pleading in light of the position taken by the Plaintiffs in closing
argument at the trial of the first two phases of the actions, as explained
below.
[4]
The
motion is vigorously opposed by the Plaintiffs.
The Pleadings
[5]
The
underlying involve numerous claims by the Plaintiffs against the Crown relating
to the Crown’s management of oil and gas resources, the management of royalty
and other trust monies and the provision of programs and services.
[6]
Samson
commenced its representative action by filing a Statement of Claim on
September 29, 1989. The Crown filed its Statement of Defence on March 19,
1992. Samson amended its Statement of Claim on four occasions: September 30,
1994, December 18, 1998, March 30, 2000 and April 26, 2000. The Crown amended
its Statement of Defence on December 19, 1994, February 1, 1999 and March
31, 2000.
[7]
Ermineskin
filed its Statement of Claim in 1992, and subsequently amended its pleading on
September 30, 1994, October 23, 1998 and March 28, 2000. The Crown filed its
Statement of Defence in 1992, and amended its pleading three times between 1992
and 2000.
[8]
In
both proceedings, the Crown’s Statement of Defence and amendments pleaded the Alberta
Limitations of Actions Act, RSA 1980, c L-15 (ALAA) and the Federal
Court Act (now the Federal Courts Act); however, the pleadings were
silent as to which sections of these Acts were being relied upon. Furthermore,
the Crown's pleadings were silent with respect to the OLA.
[9]
In
its Reply, Samson addressed section 39 of the FCA and, among other
things, pleaded:
35…
c. Section 39 of the Federal Court Act and the Limitations
of Actions Act of Alberta are inapplicable to Plaintiffs in respect to the
claims, rights or causes of action of Plaintiffs as set forth in the Amended
Statement of Claims in that:
i.
they do not constitute causes of action which may arise in any
province between subject and subject; and
ii. they
constitute unique causes of action not contemplated by section 39 of the Federal
Court Act which is unknown to private law.
36. In
the alternative, if prescription and limitations of actions do apply, which is
not admitted but denied, the Limitations of Actions Act of Alberta is
not applicable in the within proceedings in that the situs of the Crown’s
fiduciary obligations to the Plaintiffs and the control and management in
respect to at least the reserves, mineral rights and moneys interest of
Plaintiffs, and any suits, claims, rights or causes of action arising therefrom
are at Her Majesty’s Seat of Government in Ottawa and Plaintiffs rely upon the
laws relating to prescription and the limitations of actions in force in the
Province of Ontario.
[10]
The
Ermineskin also addressed s. 39 of the FCA in paragraphs 16-16A of its
Further Amended Reply and pleaded that s. 39 is not applicable to an action
involving the aboriginal or treaty rights of the Plaintiffs and, if found to be
applicable, s. 39 is unconstitutional in that it discriminates against
Ermineskin contrary to s. 15 of the Canadian Charter of Rights and Freedoms.
Ermineskin also pleaded:
16A. Further,
or in the alternative, in reply to paragraph 44 and 45 of the Third Amended
Defence, the Plaintiffs say that, even if, by virtue of section 39 of the Federal
Court Act, provincial legislation periods applies to the Plaintiffs' causes
of action in this case, which is denied, then the Alberta Act does not apply
because:
(a) the
applicable legislation is that which would have applied had the action been
brought in the courts of the province where the causes of action arose, and
(b) the
causes of action in the present case, or in the alternative some of the causes
of action, did not arise in Alberta, but rather arose in Ontario, and thus the
applicable legislation is that of Ontario and not that of Alberta, and
(c)
further, or in the alternative, if an action had been brought in
the courts of a province, whether Alberta or Ontario or otherwise, no
limitation period would have applied to the causes of action raised in this
proceeding.
Procedural
History of the Proceedings
[11]
The
Plaintiffs’ claims relate to a long period of time, involve numerous Crown
agencies and have required extensive documentary and oral discovery. The vast
majority of documentary and oral discovery was conducted by the parties between
1992 and 2000.
[12]
The
parties agreed that issues to be determined at the trial would be divided into
the following phases:
a.
historical
issues, including a determination of certain of the Plaintiffs’ rights under
Treaty 6;
b.
money
management issues, relating to the alleged mismanagement of the Plaintiffs’ monies
held in trust by the Crown;
c.
oil
and gas issues, relating to alleged mismanagement by the Crown of oil and gas
resources on the Plaintiffs’ reserve lands;
d.
other
oil and gas issues, including tax and regulated pricing issues;
e.
per
capita distribution issues; and
f.
programs
and services issues (in Samson’s case only).
[13]
It
was initially contemplated by the parties that all the phases would be heard by
Mr. Justice Teitelbaum (who is now retired). However, given the length and
complexity of the trial, it became evident that certain phases would have to be
heard by a different judge. On September 17, 2002, Justice Teitelbaum ordered
that he would only serve as the judge for the historical and money management
phases and that the remaining phases would be heard by another judge.
[14]
The
trial before Justice Teitelbaum on the first two phases concluded in December,
2004. At
that time, the first paragraph of the Crown’s limitation defence in both the
Samson and the Ermineskin actions read as follows:
The Defendants plead and rely
upon the provisions of the Limitations of Actions Act, RSA 1980, c
L-15 and the Federal Court Act, RSC 1985, c F-7.
[15]
The Crown
also pleaded that:
a. a six-year
limitation period applied;
b. additional
causes of action were based on events which occurred more than six years before
the filing of the amended versions of the Statements of Claim;
c. the Plaintiffs’
claims were not for the recovery of an interest in land;
d. the Plaintiffs
were aware or were reasonably able to inform themselves of the facts alleged in
their Amended Statements of Claim; and
e. the doctrines of
laches and acquiescence applied.
[16]
During
its written closing arguments, the Crown argued that s. 39(2) of the FCA
might act as a bar to the Plaintiffs’ claims. This section provides a
limitation period for causes of action that
arise
“otherwise than in a province.” Ermineskin submitted that the Crown’s
pleadings of a limitation defence were inadequate. In response, the Crown moved
before Justice Teitelbaum to amend its pleadings to include express reference
to certain limitation provisions. Both Ermineskin and Samson opposed the
amendments on the basis that the Crown had offered no explanation for the delay
in raising the limitation defences and on the basis that the amendments would
cause prejudice to the Plaintiffs as these defences were being raised just only
after the completion of discoveries, but at the close of the trial and
argument.
[17]
Justice
Teitelbaum heard the Crown’s motion to amend on January 20 and 21, 2005. The
Crown tendered no affidavit evidence in support of its motion. Instead, the
Crown took the position that its pleadings were “adequate" to raise the
same limitation defences it sought leave to include in its amended pleadings.
The Crown further argued that it was acting out of "an abundance of
caution”.
[18]
As
an aside, I note that in an exchange between Mr. Hunter, Crown counsel, and
Justice Teitelbaum, it was understood that the application to amend pertained
only to the first two phases of the trial.
MR. HUNTER: Different considerations, of
course, would apply, with respect to any amendments that were – with respect to
these or any other amendments as they might apply to subsequent phases of the
trial.
I do not think that you need to
deal with that. I think that, it should be simply made clear that that would be
dealt with by the case manager if one is appointed, or by a chambers judge or
by the new trial judge.
We simply would not want a
judgment that says you cannot make this particular amendment and it affects all
of the rest of the case, even though the circumstances are entirely different.
THE COURT: To start with, I will tell you
now, when you made your Application and as I said, I took it as a given and I
think Mr. O’Reilly was right in saying what he said and I take what you
say. I took it as a given that it only applied to the issue of money management
[down] which is being claimed.
[19]
Justice
Teitelbaum ultimately allowed the Crown’s application in part. He permitted the
amendments referring to specific sections of ALAA, but denied the
amendments relating to the FCA and the OLA, after concluding that
there would be “clear prejudice” to both Ermineskin and Samson if the
amendments relating to s.39(2) of the FCA and the OLA were
allowed.
[20]
On
November 30, 2005, Justice Teitelbaum dismissed the Plaintiffs’ claims in the
first two phases of the proceedings. The Plaintiffs’ appeal to the Federal
Court of Appeal was dismissed on December 20, 2006, and their application for
leave to appeal to the Supreme Court of Canada was dismissed on February 13,
2009. Throughout the appeal process, the Plaintiffs did not advance the
remaining claims against the Crown.
[21]
On
October 20, 2010, counsel for the Crown provided copies of the Crown’s proposed
Amended Statements of Defence to counsel for Samson and Ermineskin, requesting
their consent to the proposed amendments. The Plaintiffs indicated that they
would not consent.
[22]
To
date Ermineskin, Samson and the Crown have identified and produced well over
100,000 documents. Between 1992 and 2000, the parties engaged in over 200 days
of examinations for discovery of various deponents on behalf of the Crown and
the Plaintiffs. The examinations have resulted in over 20,000 pages of
transcripts and thousands of exhibits. Additionally there have been over 6000
undertakings given by the parties relating to the oil and gas phase. Detailed
answers have been given and reviewed for the majority of these undertakings.
[23]
In
anticipation of a case management conference to be held on November 18, 2010,
counsel for the Plaintiffs suggested that a reasonable time frame to complete
further discoveries on the oil and gas issues would be between two or three
years.
Crown’s
Motion to Amend
[24]
By
the present motion filed on December 23, 2010, the Crown seeks leave to amend
its statement of defence in the Samson action in the following manner:
47. The defendants plead
and rely upon the provisions of The Limitation of Actions Act, RSA 1980,
c L-15 and the Federal Court Act, RSC 1985, c F-7.
47A. The particular sections
of the Alberta Limitation of Actions Act, RSA 1980, c L-15 include
Sections 4(1)(e), 4(1)(g), 40 and 41. This amendment is made pursuant to an
Order of this Honourable Court dated January 21, 2005.
47B. Further, as the
Plaintiffs are seeking, inter alia, an accounting in respect of the
various allegations being made against the Defendants, and any cause or causes
of actions which may arise thereby relate to matters, lands and resources
situated within the Province of Alberta, the Defendants additionally plead and
rely upon Section 4(1)(c) of the Alberta Limitation of Actions Act, RSA 1980, c
L-15, as incorporated by Subsection 39(1) of the Federal Court Act, RSC 1985, c
F-7.
47C. In the alternative, with
respect to all of the Plaintiffs’ allegations relating to the management and
administration of their oil and gas resources, or to the programs and services
they have been provided, including those allegations which seek to impugn or
challenge the applicability of any Federal legislation, regulations or policies
of general application either to all Canadians, or to all Indians or Indian
lands throughout Canada, any cause or causes of action arising thereby arose
either in more than one province, or otherwise than in a province, and are statute-barred
by section 39(2) of the Federal Court Act.
47D. In the further
alternative, to the extent that any of the Plaintiffs’ allegations relating to
the management and administration of their oil and gas resources or their
programs and services relate to matters which give rise to a cause or causes of
action arising within the Province of Ontario, the Defendants plead and rely
upon the provisions of the Ontario Limitations Act, RSO, c 240, including
Sections 42, 43, 44, and 45(1)(g) thereof, as incorporated by Subsection 39(1)
of the Federal Court Act, RSC 1985, c F-7.
[25]
The
Crown also seeks to add eight new subparagraphs to paragraph 50 which specify
certain facts relating to the allegations contained in Samson’s Amended
Statement of Claim.
[26]
In
the Ermineskin action, the Crown seeks to amend paragraphs 44, 44A, 44B, 44C
and 44D of its statement of defence, in Part V: Limitation of Actions, in the
same way as in the Samson action. The Crown also seeks to add the same eight
subparagraphs to paragraph 47 which specifies certain facts relating to the
allegations contained in the Third Amended Statement of Claim.
[27]
In
support of its motion, the Crown tendered the affidavit of Lynda Sturney. Based
on the contents of this affidavit, Ermineskin sought and obtained an order
requiring the Crown to disclose all documents, including otherwise privileged
documents, regarding the legal advice the Crown received in respect to the
adequacy of its limitations defences in 2004: see Ermineskin First Nation v
Canada, 2011 FC 1091.
[28]
The
Crown disclosed three documents to the Plaintiffs, including a memorandum
from Macleod Dixon LLP (counsel for the Crown) to the Department of Justice
dated
December 17, 2004, which was written and sent after closing arguments were
presented in the money management trial. The purpose of the memorandum was to
address arguments made by the Plaintiffs during closing arguments that the
Crown’s limitations pleadings were inadequate and to propose that the Crown
seek an amendment to its pleadings in that regard.
[29]
In
its memorandum, Macleod Dixon reviews the history of the limitations pleadings.
It notes that certain legislative amendments were made to the FCA and
the Crown Liability and Proceedings Act [CLPA] just prior to the
filing of Ermineskin’s Statement of Claim. The effect of these amendments was
that provisions for limitations periods for actions against the Crown were
transferred from the FCA to the CLPA. The memorandum reflects
that both the Department of Justice, when initially filing the Statement of
Defence, and Macleod Dixon, when filing amendments to the Statement of Defence
between 1992 and 2000, overlooked this legislative change.
[30]
The
memorandum also notes that, in respect of the limitations period for an “action
arising otherwise than in a province”, Crown lawyers decided to pursue this
limitations argument only while preparing closing arguments for the money
management trial in 2004:
In the course of preparing our
written closing argument, however, we came to the view that it was quite
arguable based on recent authority that in fact the proper limitation period is
the independent federal one under subsection 39(2) of the same Act, and not a
provincial limitation period incorporated under subsection 39(1). Cross
examination of Ms. Sturney was completed on December 19, 2011.
[31]
Ms.
Sturney testified that there are no additional documents to disclose relating
to the Crown’s belief in the adequacy of its pleadings.
Legal
Principles on a Motion for Leave to Amend
[32]
The
only issue before the Court is whether the Crown is
entitled to amend its statement of defence pursuant to Rule 75 of the FCR.
[33]
The
oft-quoted test for amending pleadings is set out by the Federal Court of
Appeal in
Canderel Ltd v Canada, [1994] 1 FC 3 (FCA) [Canderel], at paragraph
9:
With respect to amendments, it
may be stated … that 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.
Analysis
[34]
The
parties agree that the Court has a broad discretion to grant or deny leave to
amend a pleading.
[35]
The
Crown argues that since it is not disputed that the proposed amendments raise a
reasonable defence, the Court need only focus on the prejudice that could arise
to the Plaintiffs if leave to amend is granted. The Crown suggests that, absent
serious prejudice, leave to amend must be granted. I disagree. In exercising
its discretion whether to grant leave to amend or not, the Court cannot simply
apply a strict or formulaic test, but rather, must consider all relevant
circumstances and factors to reach a just result.
[36]
In
Merck & Co v Apotex Inc, 2003 FCA 488 at paras 35-36, the Federal
Court of Appeal held that the party seeking the amendment bears the burden to
demonstrate that the addition of new defences serves the interest of justice.
In evaluating whether a proposed amendment would serve the interests of justice,
a multitude of factors may be considered. These factors include: (a) the
timeliness of the motion to amend; (b) the extent to which the proposed
amendments would delay the expeditious trial of the matter; (c) the extent to
which a position taken originally by one party has led another party to follow
a course of action in the litigation which would be difficult or impossible to
alter; and (d) whether the amendments sought will facilitate the court’s
consideration of the true substance of the dispute on its merits.
[37]
The
Plaintiffs submit that a consideration of these factors indicates that the
Crown’s motion to amend should be denied.
[38]
They
point to what they categorize as “inexcusable delay” by the Crown in seeking to
amend its pleadings. The Plaintiffs argue that the Crown is
seeking to add substantive limitations defences and additional factual
allegations to its Statement of Defence nearly two decades after it was
initially filed in 1992. They submit that the Crown had ample opportunity to
amend its pleadings, but failed to recognize the deficiencies until 2004.
Between 1992 and 2005, the Crown’s pleadings only disclosed a reliance on Alberta limitations periods. At no point during the lengthy discovery phase did the Crown
indicate that it intended to rely on Ontario limitations provisions or upon s.
39(2) of the FCA.
[39]
The
Plaintiffs submit that they will suffer prejudice by the addition of the new
defences at this late stage of the proceedings. They say that considerable time
and effort has gone into the discovery process, based on the state of the
Crown’s pleadings, through over 200 days of discovery between 1994 and 2000. In
light of the nature and breadth of the amendments sought by the Crown, the
Plaintiffs say that they would be required to conduct extensive additional
discovery, unnecessarily complicating the proceedings and ultimately delaying
the resolution of the litigation.
[40]
The
Plaintiffs concede that an order for costs may partially ameliorate the
financial burden of revisiting and conducting extensive additional discoveries
in respect of the proposed amendments; however they maintain that the
inefficiency and delay occasioned by the Crown’s amendments is simply too
prejudicial to them. The Plaintiffs submit that granting leave to the Crown is not
consonant with the interests of justice in guiding the litigation in a fair and
efficient manner.
[41]
The
Plaintiffs further submit that the interests of justice engage broader
considerations of fairness. According to the Plaintiffs, it would be unfair to
allow the Crown to add substantive defences which seek to quash portions of the
Plaintiffs’ claims based on the Plaintiffs’ delay in asserting their legal
rights, given the extraordinary delay of the Crown in seeking to assert its
legal rights.
[42]
With
respect to timeliness of a motion to amend, the nearer to the end of a matter
that an amendment is sought, the more cautious a Court ought to be in granting
the amendment: Canderel, supra at paragraphs 12 and 13. There
must be a legitimate expectation that there will be an end to the litigation
such that a seemingly endless series of amendments should be discouraged.
[43]
An
extensive discovery phase was undertaken by the parties with reference to the
pleadings and in contemplation of all of the claims being adjudicated before
Justice Teitelbaum at the trial that commenced in 2000. Although the Crown may
be criticized for overlooking legislative amendments that were made to the FCA
and the CLPA for so many years, it remains that the Crown has
consistently maintained that the Plaintiffs’ causes of action arose in Alberta. Since the Plaintiffs have denied the allegation, asserting instead that if any
limitation period applies, some or all of the causes of action arose in Ontario, it was reasonable for the Crown to assume that their pleadings were sufficient on
their face to raise all of the issues related to the situs of the causes
of action.
[44]
In
any event, the Crown’s delay cannot be viewed in isolation and must be
considered in the context of the procedural history of the proceedings. I note
that the two actions have moved forward over the past two decades at a glacial
pace. The parties have also made a number of amendments to their pleadings over
the years.
[45]
Moreover,
the Plaintiffs’ argument that they have been prejudiced by the delay is undermined
by the fact that throughout the appeal process, the Plaintiffs have not
advanced the remaining claims against the Crown, which include the oil and gas
claims, the oil export tax / regulated pricing claim, the per capita
distribution claim and Samson’s programs and services claim.
[46]
I
note that when Mr. Justice Teitelbaum denied the Crown leave to make amendments
relating to s. 39(2) of the FCA and the OLA, his primary concern
was that the Plaintiffs had not had an opportunity to discover the Crown on the
particular allegations, and it was simply too prejudicial to the Plaintiffs to
allow the amendments after the close of evidence. However, in the case at bar,
none of the remaining phases have proceeded to trial. Document production by
both parties is ongoing and examinations for discovery have not been completed.
In fact, both Samson and Ermineskin have recently advised the Court that they
will require at least two or even three years for the completion of
discoveries. Any evidence that Samson or Ermineskin might require to advance
their own positions on the Crown’s limitations defence can be obtained before
the commencement of the next trial.
[47]
I
conclude that the proposed amendments to the Crown’s Statements of Defence will
not result in any serious prejudice to the Plaintiffs as examinations for
discovery have not yet been concluded and, to the extent that discovery of any
additional evidence detailing the geographic location of relevant events is
required, such discovery should be rather limited.
[48]
The
most compelling factor that tilts in the Crown’s favour is that the issue of
limitations is a real and important question that will have to be addressed at
trial, with or without the proposed amendments. No useful purpose would be
served by deferring the issue of sufficiency of the pleadings to the trial
judge.
[49]
Throughout
the course of the first two phases of the actions, the Plaintiffs were aware
that the Crown was relying upon a six-year limitation period and that there was
a live issue concerning the situs of the cause of action. Since the
closing arguments in the money management phases of the trial in December of
2004, at the very latest, the Plaintiffs have been fully aware of the Crown’s
reliance upon s. 39(2) of the FCA as an alternative argument. It was
apparent from the parties’ pleadings as a whole, and in particular the
Plaintiffs’ Replies, that the limitations issues engaged
s. 39 of the FCA and either the Alberta or Ontario limitations
legislation incorporated thereby. In the end, there is no “radical change in
the nature of the questions in controversy” occasioned by the proposed
amendments, but merely other alternative legal arguments being advanced based
on exactly the same facts already in issue between the parties.
[50]
During
the 2005 amendment application, Samson argued that it would be prejudiced by
the Crown’s proposed amendments – a position subsequently adopted by Ermineskin.
However, no evidence or explanation is provided as to why Samson failed to
explore in discovery the question of whether the Crown’s alleged breaches
occurred only in Ontario, when their own Reply alleged that very position.
There is also no evidence that the Plaintiffs sought particulars of the Crown’s
limitation defence or ever relied on the Crown’s limitation defence to their detriment.
Paradoxically, the Plaintiffs themselves have already placed in issue the
geographic location of events and their causes of action.
[51]
Taking
all the relevant factors into account, and being substantially in agreement
with the Crown’s submissions, which I adopt and make mine, I conclude that it
is in the interests of justice that the issues raised in the Crown’s proposed
amendments be fully canvassed at trial. The Crown’s motion will therefore be
granted.
[52]
As
a general rule, a party seeking an amendment should bear the costs of the
motion, particularly when the amendments are required due to inadvertence.
However, the Plaintiffs resisted this motion for leave to amend on the merits,
not just as to terms. In the circumstances, I conclude that there should be no
order of costs of this motion.
ORDER
THIS
COURT ORDERS that:
1.
The
Defendants are granted leave to amend their Statements of Defence as proposed
in Appendix 2 to their Memorandum of Fact and Law.
2.
There
shall be no order as to costs of the Defendants’ motion.
“Roger R. Lafrenière”
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