Korte et al. v. Cormie et al., (1996) 178 A.R. 199 (CA)

• Judge: Hunt, Lieberman and McFadyen, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: January 10, 1996
• Citations: (1996), 178 A.R. 199 (CA)

Korte v. Cormie (1996), 178 A.R. 199 (CA);

    110 W.A.C. 199

MLB headnote and full text

Jean C. Korte and Donald Black, on their own behalf, and on behalf of all other persons who were actual or beneficial holders of so-called investment contracts with First Investors Corporation Ltd., as shown in the records of that company as of June 30, 1987; and Conrad LeClerk and Kenneth Wark on their own behalf and on behalf of all other persons who were actual or beneficial holders of so-called investment contracts with Associated Investors of Canada Ltd. as shown in the records of that company as of June 30, 1987 (respondents/plaintiffs) v. Deloitte, Haskins & Sells (appellant/defendant) and Donald M. Cormie, John M. Cormie, James Cormie, Eivor Cormie, Allison Cormie, Eivor Cormie Jr., Robert E. Cormie, Bruce G. Cormie, Neil Cormie, Kenneth N. Marlin, Christa U. Petracca, Robert Pearce, Collective Securities Inc., Collective Securities Ltd., Principal Securities Management Ltd., Principal Consultants Ltd., Cormie Ranch Inc., Estate Loan & Finance Ltd., County Investments Ltd., and Deloitte & Touche Inc. (defendants) (not parties to the appeal)

(Appeal No. 9403-0361)

Indexed As: Korte et al. v. Cormie et al.

Alberta Court of Appeal

Hunt, Lieberman and McFadyen, JJ.A.

January 10, 1996.

Summary:

The plaintiffs amended their statement of claim without leave. One of the defendants applied for an order striking the amend­ments.

The Alberta Court of Queen's Bench, in a decision reported 151 A.R. 153, disallowed the application, ordered the action to proceed but preserved any limitation defence avail­able at the time of the amendment. The defendant/applicant appealed.

The Alberta Court of Appeal dismissed the appeal.

Practice - Topic 1505

Pleadings - Statement of claim - Particu­lar matters - Admissions - The Alberta Court of Appeal did not find it necessary to decide here whether it was ever possible to have an admission in a statement of claim although, in the face of rules 25, 71, 119, 162, 165, 219, 230 and 231 of the Alberta Rules of Court, the court was inclined to the view that it was not - See paragraphs 8 to 16.

Practice - Topic 2110

Pleadings - Amendment of pleadings - Adding new cause of action - The plain­tiffs amended their statement of claim without leave to add an allegation of con­spiracy to defraud against Deloitte, who was already subject to an allegation of breach of trust - Deloitte moved to strike the amendment because leave was required since the amendment added a new cause of action - The motion was dismissed - The Alberta Court of Appeal held that the conspiracy allegation concerned "essential­ly the same set of facts as originally alleged in relation to facilitating the breach of trust" - As such, the amendment did not raise an absolutely distinct and differ­ent cause of action, but rather one that was related to the facts as originally pled - Leave was not required - See paragraphs 17 to 27.

Practice - Topic 2111

Pleadings - Amendment of pleadings - Prohibition against adding new action which is statute barred - The plaintiffs amended their statement of claim without leave to add an allegation of conspiracy to defraud against Deloitte, who was already subject to an allegation of breach of trust - Deloitte moved to strike the amendment because leave to amend would not have been given since the new conspiracy alle­gation was statute barred - The motion was dismissed - The Alberta Court of Appeal held "that if an amendment raises the possibility of a limitations argument, leave of the court should be required to amend" - The court granted leave but preserved Deloitte's right to raise any limitations argument available at the time of the amendment - See paragraphs 28 to 44.

Practice - Topic 2122

Pleadings - Amendment of pleadings - Statement of claim - Withdrawal of an admission - The plaintiffs amended their statement of claim without leave to delete the specific exception of the defendant Deloitte from an allegation of conspiracy to defraud - Deloitte moved to strike the amendment because leave was required since the amendment constituted the with­drawal of an admission - The motion was dismissed - The Alberta Court of Appeal held that assuming it were possible to have an admission in a statement of claim so that leave to withdraw it would be required, what was sought to be withdrawn here was not an admission but "an allega­tion in the framing of the action" - Leave was not required - See paragraphs 8 to 16.

Practice - Topic 2130

Pleadings - Amendment of pleadings - Leave - General - [See Practice - Topic 2110 , Practice - Topic 2111 and Practice - Topic 2122 ].

Cases Noticed:

Korte v. Deloitte, Haskins & Sells (1993), 135 A.R. 389; 33 W.A.C. 389; 15 C.P.C.(3d) 109 (C.A.), refd to. [para. 1].

Korte v. Deloitte, Haskins & Sells, [1993] 3 S.C.R. v; 160 N.R. 319; 149 A.R. 159; 63 W.A.C. 149; 18 C.P.C.(3d) 48, refd to. [para. 1].

Chechik v. Bronfman, [1924] 3 D.L.R. 1065 (Sask. C.A.), dist. [para. 10].

Sampson & McNaughton Ltd. v. Nicholson (1984), 46 O.R.(2d) 339; 43 C.P.C. 134 (H.C.), dist. [para. 10].

Delap v. Canadian Pacific Railway Co. (1915), 8 O.W.N. 293 (Ont.), dist. [para. 10].

Baudistel v. Sinton (1915), 9 W.W.R. 291 (Sask. C.A.), refd to. [para. 17].

Minneapolis Threshing Machine Co. v. Clessen, [1950] 2 W.W.R. 574 (Alta. T.D.), refd to. [para. 18].

Tiedemann et al. v. Rhodes Estate et al. (1983), 55 A.R. 107; 29 Alta. L.R.(2d) 16 (Q.B.), refd to. [para. 18].

Myskiw v. Wynn et al. (1977), 4 A.R. 464; 3 Alta. L.R.(2d) 231 (C.A.), refd to. [para. 18].

Basarsky v. Quinlan, [1972] S.C.R. 380; 24 D.L.R.(3d) 720; [1972] 1 W.W.R. 303, refd to. [para. 20].

Bailey v. Reynolds and Reynolds (1977), 7 A.R. 425; 3 Alta. L.R.(2d) 384 (Dist. Ct.), consd. [para. 22].

Weldon v. Neal (1887), 19 Q.B.D. 394 (C.A.), refd to. [para. 28].

Central Trust et al. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109; 37 C.C.L.T. 117; 42 R.P.R. 161; 31 D.L.R.(4th) 481; 34 B.L.R. 187, refd to. [para. 29].

Frank v. Canada (Minister of Indian and Northern Affairs (1987), 88 A.R. 241; 56 Alta. L.R.(2d) 289 (C.A.), consd. [para. 33].

Corrigan v. Fanta and Wetaskiwin Indus­trial Machine and Welding Ltd. (1989), 96 A.R. 293; 64 Alta. L.R.(2d) 372 (C.A.), consd. [para. 33].

Allen v. Western Union Insurance Co. et al. (1994), 149 A.R. 385; 63 W.A.C. 385; 19 Alta. L.R.(3d) 189 (C.A.), consd. [para. 33].

Desjarlais v. Black et al. (1995), 168 A.R. 244; 28 Alta. L.R.(3d) 300 (Q.B. Mas­ter), refd to. [para. 35].

Davidson Partners Ltd. et al. v. Del Rio International et al. (1995), 166 A.R. 66; 26 Alta. L.R.(3d) 438 (Q.B.), refd to. [para. 35].

Davidson Partners Ltd. et al. v. Del Rio International et al. (1995), 174 A.R. 386; 102 W.A.C. 386 (C.A.), refd to. [para. 35].

Dumaine v. Kerry and Canada Post (1988), 87 A.R. 70 (Q.B.), refd to. [para. 35].

Med Finance Co. S.A. v. Bank of Montreal et al. (1993), 29 B.C.A.C. 98; 48 W.A.C. 98; 15 C.P.C.(3d) 269 (C.A.), refd to. [para. 36].

Deaville v. Boegeman (1984), 6 O.A.C. 297; 48 O.R.(2d) 725 (C.A.), refd to. [para. 36].

Coplen Estate et al. v. Bauman et al. (1989), 36 O.A.C. 321; 71 O.R.(2d) 308 (C.A.), refd to. [para. 36].

Owens v. Calgary Farmer, [1927] 3 W.W.R. 62; [1927] 4 D.L.R. 169 (Alta. T.D.), refd to. [para. 37].

Bernard v. Yurich (1987), 81 A.R. 1 (Q.B. Master), refd to. [para. 37].

Dunwoodco Ltd. v. Stermac (1975), 5 O.R.(2d) 254 (S.C. Master), refd to. [para. 37].

Statutes Noticed:

Rules of Court (Alta.), rule 25, rule 119 [para. 9]; rule 130(1), rule 132 [para. 3]; rule 162, rule 230, rule 231 [para. 9].

Authors and Works Noticed:

Salmond and Heuston, The Law of Torts (19th Ed. 1987), p. 415 [para. 26].

Counsel:

B.R. Burrows, Q.C., and R.G. McLennan, for the respondents (plaintiffs);

K.H. Davidson and E. Johnson, for the appellant (defendant).

This appeal was heard by Hunt, Lieberman and McFadyen, JJ.A., of the Alberta Court of Appeal. The decision of the Court of Appeal was delivered on January 10, 1996, by Hunt, J.A.