Continental Insurance Co. v. Lehman Manufacturing (Canada) Ltd. and Villeneuve, (1991) 94 Nfld. & P.E.I.R. 354 (PEITD)

• Judge: Matheson, J.
• Case Date: June 20, 1991
• Jurisdiction: Prince Edward Island
• Citations: (1991), 94 Nfld. & P.E.I.R. 354 (PEITD)

Continental Ins. v. Lehman Mfg. (1991), 94 Nfld. & P.E.I.R. 354 (PEITD);

    298 A.P.R. 354

MLB headnote and full text

The Continental Insurance Company (plaintiff) v. Lehman Manufacturing Company (Canada) Ltd., Christian Villeneuve and Pierre Villeneuve (defendants)

(No. GSC-6289)

Indexed As: Continental Insurance Co. v. Lehman Manufacturing (Canada) Ltd. and Villeneuve

Prince Edward Island Supreme Court

Trial Division

Matheson, J.

August 6, 1991.

Summary:

A judgment debtor sued a defendant in contract for indemnification. The debtor moved to join a third party as a defendant and amend the statement of claim for the same purpose.

The Prince Edward Island Supreme Court, Trial Division, allowed the motion.

Limitation of Actions - Topic 208

Practice - Time for determination of com­pliance with limitation period - A plaintiff moved to join a third party as a defendant - The third party submitted that the claim was barred by the Statute of Limitations - The Prince Edward Island Supreme Court, Trial Division, held that noncompliance with the Statute of Limitations was a defence to the action and not a defence to the application - See paragraph 18.

Practice - Topic 2101

Pleadings - Amendment of - General principles - The Prince Edward Island Supreme Court, Trial Division, stated that in an application to amend a statement of claim an applicant must establish that no prejudice will result from the amendment which could not be compensated by costs or an adjournment - The court also stated that a court should not concern itself with the credibility of the case set forth by the party seeking the amendment - See para­graphs 12 and 13.

Practice - Topic 2107

Pleadings - Amendment by court to avoid unnecessary further litigation - A judg­ment debtor sued a defendant in contract for indemnification - The defendant trans­ferred all of its assets to a third party - The plaintiff alleges that the third party assumed all of the defendant's obligations - The Prince Edward Island Supreme Court, Trial Division, in order to promote the convenient administration of justice, allowed the plaintiff's application to join the third party and amend the statement of claim accordingly - See paragraph 17.

Cases Noticed:

Seaway Trust v. Markle (1988), 25 C.P.C.(2d) 64 (Ont. H.C.), consd. [para. 13].

Thames Steel Construction Ltd. v. Portman et al. (1980), 111 D.L.R.(3d) 460; 28 O.R.(2d) 445; 15 C.P.C. 308 (Ont. H.C.), appld. [para. 15].

Statutes Noticed:

Rules of Court (P.E.I.), rule 5 [para. 1]; rule 5.02(2) [para. 3]; rule 5.03(1), rule 5.03(4) [para. 2]; rule 5.04(2) [para. 4]; rule 26 [para. 1]; rule 26.01 [para. 5].

Statute of Limitations, R.S.P.E.I. 1988, c. S-7, generally [para. 18].

Counsel:

Sean J. Casey, for the plaintiff;

Michael A. Farmer, Q.C., for the defen­dants;

Catherine C. Flanagan, for the proposed defendant Mermaid Marine.

This action was heard on June 20, 1991, before Matheson, J., of the Prince Edward Island Supreme Court, Trial Division, who delivered the following judgment on August 2, 1991.