Canada (Attorney General) v. Chak, (2008) 439 A.R. 51 (QB)

• Judge: Yamauchi, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 06, 2008
• Citations: (2008), 439 A.R. 51 (QB);2008 ABQB 103

Can. (A.G.) v. Chak (2008), 439 A.R. 51 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. FE.160

The Attorney General of Canada (respondent/plaintiff) v. Nagham Mujahid Chak also known as Naghman Mujahid Chak (appellant/defendant)

(0103 04598; 2008 ABQB 103)

Indexed As: Canada (Attorney General) v. Chak

Alberta Court of Queen's Bench

Judicial District of Edmonton

Yamauchi, J.

February 11, 2008.

Summary:

Chak entered into guaranteed student loan agreements in 1991. In April 1997, Chak ceased to be a full-time student and defaulted on the loans. In February 2001, the plaintiff filed a statement of claim regarding the outstanding amounts. The style of cause spelled Chak's first name incorrectly. During an examination for discovery in November 2001, Chak corrected the spelling of his name and acknowledged that he had taken out the loans. In March 2004, the plaintiff filed a motion for summary judgment and an application to have all of the documents amended to correct the spelling of Chak's first name.

A Master of the Alberta Court of Queen's Bench, in a decision not reported in this series of reports, allowed the motion and the application. Chak appealed.

The Alberta Court of Queen's Bench dismissed the appeal.

Practice - Topic 2105

Pleadings - Amendment of pleadings - Prejudice or presumed prejudice - What constitutes - [See Practice - Topic 2112 ].

Practice - Topic 2112

Pleadings - Amendment of pleadings - Name of party - Misnomer - Chak entered into guaranteed student loan agreements in 1991 - In April 1997, Chak ceased to be a full-time student and defaulted on the loans - In February 2001, the plaintiff filed a statement of claim regarding the outstanding amounts - The style of cause spelled Chak's first name incorrectly - During an examination for discovery in November 2001, Chak corrected the spelling of his name and acknowledged that he had taken out the loans - In March 2004, the plaintiff filed a motion for summary judgment and an application to have all of the documents amended to correct the spelling of Chak's first name - A Master allowed the motion and the application - The Alberta Court of Queen's Bench dismissed Chak's appeal - The court rejected Chak's argument that the Master's decision was prejudicial to him because the name change placed the plaintiff beyond the limitations period - The claim was filed within the six year limitation period - Chak identified himself very early in the proceedings as the defendant - Chak was not substantially injured by the correction of the misnomer - See paragraphs 13 to 18.

Cases Noticed:

CompCorp Life Insurance Co. v. Harvard Developments Ltd. et al. (1996), 195 A.R. 133; 47 Alta. L.R.(3d) 97 (Q.B.), refd to. [para. 12].

Discount Auto Sales et al. v. Cash Store Inc., [2005] A.R. Uned. 262; 2005 ABQB 212, refd to. [para. 12].

Matwychuk v. Western Union Insurance Co. (1992), 134 A.R. 230 (Q.B.), revd. (1994), 162 A.R. 182; 83 W.A.C. 182 (C.A.), refd to. [para. 12].

Barrett v. McClellan et al. (2004), 350 A.R. 385 (Q.B.), refd to. [para. 12].

Bauer v. Hyland Estate et al. (1977), 2 A.R. 246; 2 Alta. L.R.(2d) 42 (T.D.), refd to. [para. 13].

Bauer v. Public Trustee (Alta.) - see Bauer v. Hyland Estate et al.

Davies v. Elsby Brothers Ltd., [1960] 3 All E.R. 672 (C.A.), refd to. [para. 13].

Alberta v. Canadian National Railway Co. et al. (2003), 320 A.R. 373; 288 W.A.C. 373; 12 Alta. L.R.(4th) 4 (C.A.), refd to. [para. 15].

Nagy v. Phillips et al. (1996), 187 A.R. 97; 127 W.A.C. 97 (C.A.), dist. [para. 18].

Banister et al. v. Alberta et al. (2000), 274 A.R. 178; 2000 ABQB 772, dist. [para. 18].

Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423; 247 N.R. 97; 126 O.A.C. 1, refd to. [para. 19].

Jager Industries Inc. v. Canadian Occidental Petroleum Ltd. et al. (2000), 273 A.R. 1 (Q.B.), refd to. [para. 20].

Litemor Distributors (Edmonton) Ltd. v. Midwest Furnishings & Supplies Ltd. (2005), 379 A.R. 102; 2005 ABQB 520, dist. [para. 24].

Counsel:

Barry Benkendorf (Department of Justice Canada), for the respondent/plaintiff;

Arman Chak, for the appellant/defendant.

This appeal was heard on February 6, 2008, by Yamauchi, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on February 11, 2008.