Date: 19991202
Docket: T-2618-91
BETWEEN:
ALEC GEORGE WARD
Plaintiff
| - and - |
| HER MAJESTY THE QUEEN IN RIGHT OF CANADA, |
| AS REPRESENTED BY THE MINISTER OF THE DEPARTMENT OF INDIAN AND NORTHERN AFFAIRS AND AS REPRESENTED BY THE MINISTER OF THE DEPARTMENT OF NATIONAL REVENUE |
Defendants
REASONS FOR ORDER
MacKAY, J.:
[1] By application the plaintiff seeks leave of the Court to further amend a statement of claim, already amended on three previous occasions. The application was opposed by the defendants when the matter was heard in Edmonton on November 24, 1999. Decision was reserved. Subsequently an Order issued, allowing the application on terms, for the following reasons.
[2] There is no dispute that the test for considering an application for leave to amend pleadings is that set out in Visx Inc. v. Nidek Co. et al., (1998), 234 N.R. 94 (F.C.A.), that a proposed amendment should be allowed if it can be made without injustice to the other side and there is no injustice where any disadvantage may be remedied by an award of costs. In Hoechst Aktiengesselschaft v. ADIR, [1998] F.C.J. No. 1028, after reviewing relevant jurisprudence, Madam Justice Reed stated that the Court should only deny amendments in plain and obvious cases where the matter is beyond doubt. Provided the proposed amendment may assist in determining the real issues in controversy between the parties it ought to be permitted.
[3] In this application the plaintiff seeks three further amendments to the already thrice amended statement of claim. These are as follows.
[4] First, the amendments now proposed would add paragraph 19 which alleges that as a result of the actions of the two defendant Ministers, Her Majesty the Queen in Right of Canada has breached her fiduciary duty to the plaintiff.
[5] For the defendant it is said that the breach of fiduciary duty on behalf of the Minister of Indian and Northern Affairs is already alleged in the statement of claim. Further, no particulars for that alleged breach or for the actions of that Minister or of the Minister of National Revenue giving rise to the claim are here set out in the proposed paragraph 19. In my opinion, that objection can be met by directing that particulars be provided.
[6] Second, the prayer for relief would be amended by the addition of words specifying an amount equal to the difference in administration fees paid by the Public Trustee and those that might have been charged by the Minister of Indian and Northern Affairs to be an element of restitution claimed in the first paragraph of that prayer for relief.
[7] The defendants' argument against this amendment, as I understand it, relates to the merits of the claim, a matter which the Court at this stage is not free to judge. In my opinion, the amendment proposed may assist in clarifying the issues as perceived by the plaintiff, whether or not he may be successful at trial.
[8] Third, the prayer for relief would be further amended by a general clause, frequently included in a statement of claim, that is, "such further and other relief as counsel may advise and this Honourable Court may allow".
[9] Upon questioning, counsel for the plaintiff indicated that this was desirable as a possible basis for claiming damages should the Court not approve the claim for restitution as expressed in the statement of claim. In my opinion, that would not be an appropriate basis for a claim in damages and the general clause if allowed should be on terms whereby it is not to be construed to include a claim for damages for alleged breach for fiduciary duty or other alleged wrong.
Conclusion
[10] Subject to terms providing for particulars to be provided of actions alleged in paragraph 19 as proposed, and for excluding any claim for damages from the general summary term for relief, in my opinion, the amendments proposed do not prejudice the defendants. At this stage, while the pleadings have already been amended three times, discoveries are not completed and there is no injustice to the defendants by allowing the amendments proposed. It is not plain and obvious, in my view, that the amendments should be refused and they may assist in determining real issues in controversy between the parties.
[11] An Order granting leave to amend the statement of claim as proposed, on terms set out in the Order, as here outlined, issued following the hearing.
(signed) W. Andrew MacKay
JUDGE
OTTAWA, Ontario
December 2, 1999.