Clark Estate et al. v. Lee, (1997) 214 A.R. 109 (QB)

• Judge: Veit, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: June 06, 1997
• Citations: (1997), 214 A.R. 109 (QB)

Clark Estate v. Lee (1997), 214 A.R. 109 (QB)

MLB headnote and full text

Temp. Cite: [1998] A.R. TBEd. MR.050

Shirley Ann Yarwood, Administrator of the Estate of James Hamilton Clark, Deceased, on behalf of the Estate of James Hamilton Clark, Deceased, and on behalf of Shirley Ann Yarwood and Samantha Yarwood, Infant, by her Next Friend, Shirley Ann Yarwood (plaintiffs) v. Thelma Lee and Donald Lee (defendants)

(Action No. 9303-23776)

Indexed As: Clark Estate et al. v. Lee

Alberta Court of Queen's Bench

Judicial District of Edmonton

Veit, J.

June 11, 1997.

Summary:

Clark was killed in a 1991 motor vehicle accident. Clark's common law wife sued for damages for emotional and nervous shock. After the limitation period expired, the wife applied to amend the statement of claim to add a claim for her own personal injuries and a claim as a "cohabitant" under the Fatal Accidents Act. The defendants opposed the amendment.

A Master of the Alberta Court of Queen's Bench, in a judgment not reported in this series of reports, allowed the amendments to the pleadings. The defendants appealed.

The Alberta Court of Queen's Bench dis­missed the appeal. The amendments did not raise a new cause of action and the defend­ants would not be prejudiced by the amend­ments.

Practice - Topic 2110

Pleadings - Amendment of pleadings - Adding new cause of action - Clark was killed in a 1991 motor vehicle accident - Clark's common law wife sued for dam­ages for emotional and nervous shock - After the limitation period expired, the wife applied to amend the statement of claim to add a claim for personal injuries and a claim as a "cohabitant" under the Fatal Accidents Act - The defendants opposed the amendment - The Alberta Court of Queen's Bench affirmed a Master's decision permitting the amend­ments, where the amendments did not raise a new cause of action and the defendants would not be prejudiced by the amend­ments - The amendments were merely particularizations of the type of injuries and amount of damages suffered by the wife from the cause of action originally pleaded - The court stated that "the rule in Alberta today is that, after a limitation period has expired, the only amendments to pleadings that will be allowed are amendments that will bring minor or for­mal changes to the existing pleadings or amendments that are allowed in special circumstances".

Cases Noticed:

Manychief v. Poffenroth (1994), 164 A.R. 161; 25 Alta. L.R.(3d) 393 (Q.B.), refd to. [para. 4].

Gaudet et al. v. Rouselle and DeGrace; Cayouette v. Audfroid et al. (1988), 86 N.B.R.(2d) 108; 219 A.P.R. 108 (Q.B.), refd to. [para. 4].

Cummings v. Fleming, [1980] 4 W.W.R. 688 (B.C.S.C.), refd to. [para. 4].

Louis v. Esslinger et al., [1981] 3 W.W.R. 350 (B.C.S.C.), refd to. [para. 4].

McGuire and McGuire v. Fermini (1984), 62 N.S.R.(2d) 104; 136 A.P.R. 104 (S.C.), affd. (1984), 64 N.S.R.(2d) 60; 143 A.P.R. 60 (C.A.), refd to. [para. 4].

Garbett Estate et al. v. Universal Helicop­ters (Newfoundland) Ltd. et al. (1986), 61 Nfld. & P.E.I.R. 302; 185 A.P.R. 302 (Nfld. T.D.), affd. (1987), 69 Nfld. & P.E.I.R. 153; 211 A.P.R. 153 (Nfld. C.A.), refd to. [para. 4].

Trowsdale (Thompson) v. Mcdonald (1980), 20 B.C.L.R. 1 (S.C.), refd to. [para. 4].

Rago Millwork & Supplies Co. v. Woodhouse (D.) Construction Ltd. (1981), 28 A.R. 499 (Q.B. Master), refd to. [para. 5].

Basarsky v. Quinlan (1971), 24 D.L.R.(3d) 720 (S.C.C.), refd to. [para. 5].

Frank v. Canada (Minister of Indian and Northern Affairs) (1987), 88 A.R. 241; 56 Alta. L.R.(2d) 289 (C.A.), refd to. [para. 5].

Frank v. King Estate - see Frank v. Canada (Minister of Indian and Northern Affairs).

Dumaine v. Kerry (1988), 87 A.R. 70 (Q.B.), refd to. [para. 5].

Budget Rent A Car v. University of Toronto et al. (1991), 116 A.R. 33 (Q.B. Master), refd to. [para. 5].

Davidson Partners Ltd. et al. v. Del Rio International et al. (1995), 106 A.R. 66; 206 Alta. L.R.(3d) 438 (Q.B.), affd. (1995), 174 A.R. 386; 102 W.A.C. 386 (C.A.), refd to. [para. 5].

Cahoon v. Franks (1967), 63 D.L.R.(2d) 274 (S.C.C.), refd to. [para. 5].

Counsel:

E.J. Boomer, for the defendants;

J.A. Agrios, for the plaintiffs.

This appeal was heard on June 6, 1997, before Veit, J., of the Alberta Court of Queen's Bench, Judicial District of Edmon­ton, who delivered the following judgment on June 11, 1997.