PRACTICE |
Pleadings |
Amendments |
MacNeil v. Canada (Minister of Indian and Northern Affairs)
T-1482-91
2001 FCT 470, Hugessen J
11/5/01
5 pp.
Motion for leave to amend statement of claim by adding: (1) defendants; (2) further claim for breach of fiduciary duty--First amendment not opposed--Action commenced in 1991--Alleged Crown improperly treating will of plaintiff's grandfather as conveying right of ownership in certain reserve lands to Mrs. Martin, whereas really only conveyed life interest--Action seeking to set aside certificate of possession issued to Mrs. Martin by Crown, declaration Mrs. MacNeil owner of lands in question--Neither Mrs. MacNeil nor Mrs. Martin examined for discovery--Both died about two years ago--Subparagraphs (i), (v) of proposed amendment repeating allegations of original statement of claim, but in context of claim for breach of fiduciary duty--Subparagraphs (ii), (iii), (iv) adding new allegations of fact bearing directly on states of mind of either Mrs. MacNeil or Mrs. Martin--As regards subparagraphs (ii), (iii), (iv), intervening deaths creating situation in which Crown at distinct disadvantage as cannot exercise rights to examine for discovery--Amendment thus prejudicing Crown--As regards subparagraphs (i), (v) still prejudice to Crown as result of new claim because deprived of opportunity to test original plaintiff on issue of possible acquiescence in situation--Plea of acquiescence or laches may have been available, but Crown cannot now use in support of that defence any admissions that could have obtained on discovery from Mrs. MacNeil--Motion allowed only for uncontested part; balance dismissed.