Scottish & York Insurance Co. v. Canada
A-34-98
Strayer J.A.
1/3/99
3 pp.
Appeal from Trial Division decision ((1998), 144 F.T.R. 133) dismissing motion to amend statement of defence by adding four paragraphs-Motions Judge, in considering possible prejudice to respondents as result of proposed amendment to statement of defence, confused effects on respondents' trial strategy in Ontario Court action with effects on strategy in Federal Court action-Whether cooperation by appellant with respondents in Ontario Court action, carried out when respondents unaware of potential limitation defence in Federal Court action, prejudiced ability to challenge limitation defence by proving cause of action against appellant arose outside Canada-Nothing to indicate respondents led to believe would not be in adversarial relationship with appellant if and when Federal Court action proceeded-Sharing of strategy by respondents occurring with knowledge of risk this might pose to conduct of Federal Court action-Respondents not demonstrating particular evidence necessary to answer to limitation defence lost to them through delay in appellant's motion to amend-Motions Judge should have given greater weight to principle, in absence of prejudice to opposing party, amendment to pleadings should be allowed, if otherwise proper-Also gave undue weight to delay in seeking amendment as ground for refusal-Appeal allowed-Court also giving respondents leave to amend reply in relation to amendment to statement of defence, to conduct further examinations for discovery made necessary by amendment-Having regard to appellant's delay in seeking amendment, Court awarding costs to respondents here, below on application to amend.