Federal Court - Christian Aboriginal Infrastructure Developments ...

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the appellant to serve and file "a clean statement of claim" which is
to incorporate the amendments sought, save for those pertaining to
the joining of LPL as a plaintiff. The Order made by the Judge
follows logically from what she says at paragraphs 23 and 24 of
her Reasons. At paragraph 23, she explains that the amendments
sought by the appellant are made for the purpose of introducing a
new cause of action, i.e. in breach of contract, and for the purpose,
inter alia, of particularizing the existing claim in negligence
against the respondent. At paragraph 24, she refers to the
jurisprudence of this Court regarding amendments to pleadings and
states that that jurisprudence favours the granting of amendments.
Thus, the wording of the first Order comes as no surprise. In fact,
both the appellant and the respondent, in serving and filing their
amended Statements of Claim and Defence, assumed that the
Judge had granted leave to the appellant to make the incidental
amendments. In my view, on the wording of the first Order, the
appellant and the respondent were correct in their view that the
incidental amendments had been allowed.
2010 FC 495 (CanLII)
[37] In any event, it seems to me that, having pleaded to the
second amended Statement of Claim without objection, it does not
now lie in the respondent's mouth to argue that it is improper. If
that is the respondent's view, it ought to have brought its own
motion under Rule 58 before pleading to the second amended
Statement of Claim.
[25] The Federal Court of Appeal disposed of the appeal by making the following Order:
[42] For these reasons, I would allow the appeal with costs, set
aside the Order of January 11, 2005 and set aside the Order of
November 23, 2004, to the extent that it dismissed the appellant's
motion to add LPL as a plaintiff. Rendering the judgment which
ought to have been rendered, I would allow, in its entirety, the
appellant's motion to amend its Statement of Claim. As a result, I
would modify the Order of November 23, 2004 as follows:
The plaintiff's motion to join LPL as a plaintiff, to amend its
Statement of Claim to add a new cause of action in breach of
contract and to make various incidental amendments with respect
to existing causes of action is allowed.