Digest: Polsfut v Sembalerus, 2018 SKQB 137

• Date: May 01, 2018

Reported as: 2018 SKQB 137

Docket Number: QBG 500/14 JCS , QB17523

Court: Court of Queen's Bench

Date: 2018-05-01

Judges:

• Rothery

Subjects:

• Statutes � Interpretation � The Limitations Act, Section 5, Section 20
• Civil Procedure � Pleadings � Statement of Claim � Application to Amend
• Civil Procedure � Pleadings � Statement of Claim ��Adding�Defendant
• Civil Procedure � Queen�s Bench Rules, Rule 3-72, Rule 3-84

Digest: The defendant, Schroeder�s, a towing and salvage company, applied pursuant to Queen�s Bench rule 7-1 for an order that the action commenced against it by the plaintiff was barred by operation of s. 5 of The Limitations Act. In response, the plaintiff applied pursuant to Queen�s Bench rule 3-72, rule 3-78 and rule 3-84 to allow amendments to its initial claim against the defendant Sembalerus to add Schroeder�s as a defendant and sought leave of the court pursuant to Queen�s Bench rule 1-6 to cure the defect of having amended his statement of claim without prior leave of the court. The affidavit evidence filed by both the plaintiff and Schroeder�s proved that the plaintiff amended its claim to add the latter as a defendant about two months after the two-year limitation period. The plaintiff sued Sembalerus for breach of contract and conversion in April 2014. They had entered into a contract in 2011 where Sembalerus sold the plaintiff various old vehicles stored on his land. Under the contract the plaintiff was allowed to bring more vehicles on the land but eventually Sembalerus imposed a deadline on the plaintiff to have the scrap metal removed. When the plaintiff missed the deadline, Sembalerus sold the metal. Sembalerus filed a defence alleging the plaintiff had repudiated the contract and counterclaimed for costs allegedly incurred to have the metal crushed and removed from his property by Schroeder�s. The work it performed was completed by October 16, 2013. With the consent of Sembalerus� counsel, the plaintiff amended his claim on December 16, 2015 to add Schroeder�s as a defendant, alleging that it wrongfully converted his personal property and was jointly liable with Sembalerus for the damages incurred. Schroeder�s filed its defence denying conversion and filed against Sembalerus for indemnification. The issue was whether Schroeder�s could be added as defendant under s. 20 of the Act.
HELD: The plaintiff�s application to add Schroeder�s as a defendant was dismissed and it was unnecessary then...