Date: 19990301
Docket: A-34-98
CORAM: STRAYER J.A.
LINDEN J.A.
ROBERTSON J.A.
BETWEEN:
SCOTTISH & YORK INSURANCE CO. LIMITED and
VICTORIA INSURANCE COMPANY OF CANADA
Respondents
(Plaintiffs)
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Appellant
(Defendant)
REASONS FOR JUDGMENT
(Delivered from the Bench at Toronto, Ontario on
Monday, March 1, 1999)
STRAYER J.A.:
[1] We are all of the view that this appeal should be allowed.
[2] The learned motions judges, in our view, in considering possible prejudice to the respondents as a result of the proposed amendment to the statement of defence, confused the effects on the respondents" trial strategy in the Ontario Court action with effects on their strategy in the Federal Court action. It is the latter which is the concern of the Federal Court.
[3] The issue before the motions judge, and before us, is as to whether the cooperation by the appellant with the respondent in the Ontario Court action, carried out when the respondents were unaware of the potential limitation defence in the Federal Court action, has prejudiced their ability to now challenge that limitation defence by proving that the cause of action against the appellant arose outside of Canada.
[4] We would first observe that there is nothing to indicate that the respondents were led to believe that they would not be in an adversarial relationship with the appellant if and when the Federal Court action proceeded. Any sharing of strategy by the respondents therefore must be taken to have occurred with knowledge of the risk this might pose to their conduct of the Federal Court action.
[5] Secondly, the respondents did not demonstrate to the motions judges or to us that any particular evidence necessary to their answer to the limitation defence had been lost to them through the delay in the appellant"s motion to amend. They recite in general terms the deaths of two possible witnesses and the destruction of certain unspecified documents (denied by the appellant) but in no way demonstrate that such evidence is unique and cannot be replaced by other witnesses and documents.
[6] In these circumstances we believe that the learned motions judge should have given much greater weight to the principle that, in the absence of prejudice to an opposing party, an amendment to pleadings should be allowed, if otherwise proper. He also gave undue weight to the delay in seeking this amendment as a ground for its refusal.
[6] We will therefore allow the appeal and grant the relief sought in the appellant"s amended Notice of Motion dated November 7, 1997. To ensure that there be no prejudice to the respondents we will also give them leave to amend their reply in relation to the amendment to the statement of defence and to conduct any further examinations for discovery made necessary by that amendment.
[7] Having regard to the appellant"s delay in seeking this amendment, we will award costs to the respondents here and below on the application to amend, as well as any additional costs incurred by the respondents for such further examinations for discovery as are necessary in relation to the amendment herein authorized.
"B.L. Strayer"
J.F.C.A.
FEDERAL OURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-34-98
| STYLE OF CAUSE: SCOTTISH & YORK INSURANCE CO. LIMITED and |
| VICTORIA INSURANCE COMPANY |
OF CANADA
Respondents
| (Plaintiffs) |
| - and - |
| HER MAJESTY THE QUEEN IN RIGHT OF CANADA |
| Appellant |
(Defendant)
DATE OF HEARING: MONDAY, MARCH 1, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
| OF THE COURT BY: STRAYER J.A. |
Delivered at Toronto, Ontario
on Monday, March 1, 1999
APPEARANCES: Mr. Timothy E.G. Fellowes, Q.C.
| For the Respondents |
| Mr. Peter A. Vita, Q.C. |
For the Appellant
| SOLICITORS OF RECORD: Morris Rosenberg |
| Deputy Attorney General of Canada |
| For the Appellant |
Fellowes, McNeil
| Barristers-At-Law |
| 218-111 Richmond Street West |
| Toronto, Ontario |
| M5H 2G4 |
For the Respondents
FEDERAL COURT OF APPEAL
Date: 19990302
Docket: A-34-98
BETWEEN:
SCOTTISH & YORK INSURANCE CO. LIMITED and
VICTORIA INSURANCE COMPANY OF CANADA
Respondents
(Plaintiffs)
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Appellant
(Defendant)
REASONS FOR JUDGMENT
OF THE COURT