1400467 Alberta Ltd. et al. v. Adderley et al., 2015 ABQB 524

• Judge: Veit, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: August 18, 2015
• Citations: 2015 ABQB 524;[2015] A.R. TBEd. AU.118

1400467 Alta. v. Adderley, [2015] A.R. TBEd. AU.118

MLB being edited

Currently being edited for A.R. - judgment temporarily in rough form.

Temp. Cite: [2015] A.R. TBEd. AU.118

1400467 Alberta Ltd., Adderley Holdings Ltd., Herlick's Welding Ltd., MacPherson Pipeline & Oilfield Consulting Inc., Lynco Construction Ltd. (plaintiffs/applicants) v. John Adderley, Colin MacPherson, Ivan Herlick, Jico Holdings Ltd., Ulster Cattle Corp., CJM Consulting Services Inc. and Clouded Moon Consulting Ltd. and Pro Canada West Energy Inc. (defendants/respondents)

Colin MacPherson, John Adderley, John Adderley as Trustee of the J&S Adderley Family Trust, Ivan Herlick, Jesse Herlick, Robyn Herlick and Tracy Herlick (plaintiffs by counterclaim) v. 1400467 Alberta Ltd. and Lynco Construction Ltd. (defendants by counterclaim)

(1103 12774; 2015 ABQB 524)

Indexed As: 1400467 Alberta Ltd. et al. v. Adderley et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Veit, J.

August 18, 2015.

Summary:

The plaintiffs applied for leave to file an amended amended statement of claim, in which JICo was a defendant, after the pertinent limitation period had expired. The plaintiffs asserted that the proposed amendment was merely a particularization of their original pleading and was therefore saved by s. 6(2) of the Limitations Act. By cross-application, the defendants sought leave to file an amended statement of claim, also after the limitation period had expired. The defendants proposed to add JICo as a plaintiff in their statement of claim, to assert that Lynco Construction Ltd. leased premises and equipment from JICo from about September 2008, but had not paid the agreed lease prices, and JICo therefore claimed damages of $700,000 against Lynco. The defendants argued that the plaintiffs had agreed to the proposed amendments in correspondence between lawyers. Second, the defendants said that their proposed amendments were saved by s. 6(2) of the Limitations Act. Third, if the court allowed the plaintiffs to amend their pleadings, the defendants should be allowed to amend their pleadings as well.

The Alberta Court of Queen's Bench granted the plaintiffs leave to amend their statement of claim. As required by s. 6(2), the proposed amendment related to the conduct, transaction or events described in the original pleading. The defendants were denied leave to amend their statement of claim. Their first argument, based on an agreement, could not be sustained. The plaintiffs were entitled to terminate the agreement made with the defendants concerning amendments to pleadings. JICo's post-agreement actions in Saskatchewan constituted a breach of its contractual obligation to perform its undertakings in the Alberta proceedings in good faith. Nor could the defendants' second argument be sustained. The defendants did not, in their original claim, include JICo as a plaintiff. If s. 6(3) applied, the defendants-by-counterclaim's lack of knowledge of the content of the claim within the limitation period was fatal. If the defendants' statement of claim were considered to be a counterclaim in proceedings in which JICo was already a defendant, and s. 6(2) applied, a failure to pay rent for equipment rentals was not "related to the conduct, transaction or events described in the original pleading". Nor could the defendants' third argument be sustained: no such quid pro quo was required by law or equity.

Contracts - Topic 3524

Performance or breach - Breach - Bad faith - See paragraphs 36 to 46.

Limitation of Actions - Topic 9409

Bars - Disallowance of defence - Claim added to a proceeding previously commenced - See paragraphs 60 to 71.

Practice - Topic 712

Parties - Adding or substituting parties - Notwithstanding limitation period - Statutory authorization - See paragraphs 68 to 71.

Practice - Topic 2111

Pleadings - Amendment of pleadings - Prohibition against adding new action or "claim" which is statute barred (incl. exceptions) - See paragraphs 47 to 71.

Practice - Topic 5023

Conduct of trial - By counsel - Agreements by counsel - General - See paragraphs 36 to 46.

Counsel:

Carmen L. Plante (Bishop & McKenzie LLP), for the plaintiffs;

Grant Van Hal and Dr. R. McKay White (Robert B. White & Company), for the defendants.

These applications were heard on May 5, 12 and 25, 2015, before Veit, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of decision on August 18, 2015.