Date: 20000502
Docket: A-169-99
CORAM: ISAAC J.A.
ROBERTSON J.A.
NOËL J.A.
BETWEEN:
HER MAJESTY THE QUEEN,
Plaintiff/Respondent
and
J.D. IRVING, LIMITED, a body corporate,
ATLANTIC TOWING LTD., a body corporate,
IRVING OIL COMPANY, LIMITED, a body corporate,
the TUG "IRVING MAPLE", Her Owners
and all others interested in her and
UNIVERSAL SALES, LIMITED,
Defendants/Appellants
Heard at Ottawa, Ontario on Tuesday, May 2, 2000
Judgment delivered from the Bench at Ottawa, Ontario on Tuesday, May 2, 2000
REASONS FOR JUDGMENT OF THE COURT BY: NOËL J.A.
Date: 20000502
Docket: A-169-99
CORAM: ISAAC J.A.
ROBERTSON J.A.
NOËL J.A.
BETWEEN:
HER MAJESTY THE QUEEN,
Plaintiff/Respondent
and
J.D. IRVING, LIMITED, a body corporate,
ATLANTIC TOWING LTD., a body corporate,
IRVING OIL COMPANY, LIMITED, a body corporate,
the TUG "IRVING MAPLE", Her Owners
and all others interested in her and
UNIVERSAL SALES, LIMITED,
Defendants/Appellants
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario
on Tuesday, May 2, 2000)
NOËL J.A.
[1] This is an appeal by the defendants herein against a decision of a motions Judge allowing the plaintiff"s application to amend her statement of claim. The defendants contend that in allowing the amendment, the motions Judge, who is also the case management Judge, failed to deal with the objections which they had raised.
[2] The defendants resisted the motion on the ground that the proposed amendments were not sufficiently particularized and that some of the words or phrases may not be supportable in law or may not apply to some of the defendants who have all pleaded together.
[3] The motions Judge allowed the amendments. With respect to the first ground, he noted that:
| ... any pleading, and that includes a proposed amendment to a pleading, must be read in its entire context. When applying that principle to a proposed amendment, it means that the proposed amendment must be read as being part of the pleading to which it relates. When the proposed amendments to which objection has been taken on this ground are read in that context, I am quite satisfied that it is, by no means, plain and obvious that such amendments would be susceptible of being struck out on a motion as not disclosing a cause of action.1 |
[4] With respect to the defendants" objection that certain words or phrases ought to be struck, the motions Judge stated: "... it is no part of the Court"s role on a motion to amend to edit the proposed amendments." He then added "... the fact that one or more words or phrases in any particular paragraph of the pleading may be susceptible to being struck out does not render the amendment as a whole bad."2
[5] The motions Judge, as he was bound to do, considered the propriety of the amendments as they were presented by the plaintiff. Despite the objections raised by the defendants, he came to the conclusion that it had not been made plain and obvious that the amendments disclosed no cause of action. That particulars may perhaps properly be sought or that one or more phrases may be susceptible to being struck did not render the amendment as a whole bad. He went on to allow the motion.
[6] We can see no error in this decision. The motions Judge disposed of the amendment on proper grounds. He did not view the defendants" objections as affecting the propriety of the amendment as a whole and therefore proceeded to allow it. While it may have been open to the motions Judge to treat the defendants" objections as cross-motions and to attempt to dispose of them on that basis at once, he was obviously of the view that these would best be addressed, if need be, in the context of properly filed applications. This was a valid exercise of the motions Judge"s discretion.
[7] The appeal should be dismissed with costs in any event of the cause.
"Marc Noël"
J.A.
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