K.F.L. Holdings Ltd. v. William Stewart Properties Ltd., Dial Holdings Ltd., Stewart, Rowley, Brosseau, Hallberg and Bowglen Enterprises Ltd., (1982) 44 A.R. 200 (QBM)

• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 07, 1982
• Citations: (1982), 44 A.R. 200 (QBM)

KFL Holdings v. William Stewart Prop. (1982), 44 A.R. 200 (QBM)

MLB headnote and full text

K.F.L. Holdings Ltd. v. William Stewart Properties Ltd., Dial Holdings Ltd., Stewart, Rowley, Brosseau, Hallberg and Bowglen Enterprises Ltd.

(No. 8203-05591)

Indexed As: K.F.L. Holdings Ltd. v. William Stewart Properties Ltd., Dial Holdings Ltd., Stewart, Rowley, Brosseau, Hallberg and Bowglen Enterprises Ltd.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Funduk, Master in Chambers

December 7, 1982.

Summary:

A plaintiff in a mortgage foreclosure action applied to amend its statement of claim to add allegations of fact against the guarantors of the mortgage. Without the amendment the statement of claim disclosed no cause of action against the guarantors. The Alberta Court of Queen's Bench allowed the application.

Practice - Topic 2101

Pleadings - Amendment of pleadings - General principles - A Master of the Alberta Court of Queen's Bench referred to the general rule that an amendment to pleadings should be allowed if it can be made without prejudice to the other party - See paragraph 9.

Practice - Topic 2121

Pleadings - Amendment of pleadings - Statement of claim - Adding particulars or subsequent facts - A plaintiff in a mortgage foreclosure action applied under Rule 110(1) to amend its statement of claim to add certain allegations of fact against the guarantors of the mortgage - Without the amendment the statement of claim disclosed no cause of action against the guarantors - A Master of the Alberta Court of Queen's Bench, in allowing the application, held that Rule 110(1) could be used to plead subsequent facts where there was no prejudice, where the amendment related directly to the claim already advanced, and where no inconvenience to the other side resulted - See paragraphs 31 to 44.

Practice - Topic 1466

Pleadings - Statement of claim - Omission of essential facts - A Master of the Alberta Court of Queen's Bench held that a statement of claim that disclosed no cause of action was not a nullity and could be amended - The court stated that whether a cause of action was disclosed was a question of law to be determined at trial - See paragraph 10.

Practice - Topic 2105

Pleadings - Amendment of pleadings - Prejudice - What constitutes - A plaintiff in a mortgage foreclosure action applied to amend its statement of claim to add certain allegations of fact against the guarantors of the mortgage - Without the amendment the statement of claim disclosed no cause of action against the guarantors - The guarantors submitted that allowing the amendment would prejudice them by depriving them of their defence that the statement of claim did not disclose a cause of action - A Master of the Alberta Court of Queen's Bench allowed the amendment, holding that there was no prejudice in depriving the guarantors of their defence - See paragraphs 11 to 12.

Cases Noticed:

Eshelby v. Federated European Bank Ltd., [1932] 1 K.B. 254, aff'd [1932] 1 K.B. 423, not folld. [paras. 8, 9, 13-15, 31-37].

Miller v. Canadian Pacific Railway Company, [1933] 1 W.W.R. 233, refd to. [para. 9].

Frosted Food Centre Limited v. Mitchell (1958), 26 W.W.R.(N.S.) 656 (Man. C.A.), dist. [para. 15].

Hanser v. Hanser (1977), 76 D.L.R.(3d) 422 (Ont. H.C.), dist. [para. 16].

Township of Oro v. Kneeshaw (1980), 99 D.L.R.(3d) 373 (Ont. H.C.), dist. [para. 17].

Coe v. Coe, [1949] 1 W.W.R. 346 (Sask. K.B.), refd to. [para. 18].

Hills v. Hills (1964), 49 W.W.R.(N.S.) 508, refd to. [para. 19].

Corbett v. Corbett (1965), 53 W.W.R.(N.S.) 444 (B.C.S.C.), refd to. [para. 19].

Coutts & Co. v. Duntroon Investment Corporation Ltd., [1958] 1 W.L.R. 116, dist. [para. 20].

Upper Ottawa Improvement Co. v. Hydro-Electric Power Commission of Ontario, 16 D.L.R.(2d) 752 (Ont. H.C.), dist. [para. 21].

Sullivan v. Ramsay, 7 D.L.R.(2d) 769 (N.B.C.A.), dist. [para. 22].

Modern Construction Ltd. v. City of Moncton, 27 D.L.R.(3d) 212, dist. [para. 24].

Hargreaves v. Security Investment Company (1914), 7 Sask. L.R. 125, dist. [para. 25].

Allison v. Standard Lumber Company Limited (1925), 34 B.C.L.R. 257 (B.C.C.A.), dist. [para. 26].

Peck v. Sun Life Assurance Company of Canada (1905), 11 B.C.L.R. 215 (B.C.S.C.), refd to. [para. 26].

Robertson v. Wilson (1915), 8 W.W.R. 1068 (Alta. S.C.), folld. [para. 27].

Robbins Incorporated v. Inland Fisheries Ltd., [1930] 1 W.W.R. 925 (Man. K.B.), folld. [para. 28].

Hewitt v. Hewitt, [1970] 2 O.R. 167 (Ont. S.C.), refd to. [para. 29].

Cristall v. T. Eaton Company Limited, [1937] 3 W.W.R. 79 (Alta. S.C.), refd to. [para. 30].

Counsel:

A. Veylan, for the plaintiff;

I. Meier, for the defendant;

R.J. Cotter, for Hallberg.

This case was heard at Edmonton, Alberta, before FUNDUK, MASTER IN CHAMBERS, of the Alberta Court of Queen's Bench, who delivered the following judgment on December 7, 1982: