Lacroix et al. v. MacDonald and Hoffe Appraisals Ltd., (2015) 369 Nfld. & P.E.I.R. 205 (NLTD(G))

• Judge: Murphy, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: February 26, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 369 Nfld. & P.E.I.R. 205 (NLTD(G))

Lacroix v. MacDonald & Hoffe (2015), 369 Nfld. & P.E.I.R. 205 (NLTD(G));

    1150 A.P.R. 205

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. JL.022

Dennis Joseph Lacroix (first plaintiff) and Joe Peloso (second plaintiff) v. MacDonald and Hoffe Appraisals Limited (defendant)

(201301G1244; 2015 NLTD(G) 85)

Indexed As: Lacroix et al. v. MacDonald and Hoffe Appraisals Ltd.

Newfoundland and Labrador Supreme Court

Trial Division (General)

Murphy, J.

June 17, 2015.

Summary:

The plaintiffs claimed against the defendant in breach of contract, negligence and negligent misrepresentation, regarding the defendant's appraisal of a property on which the plaintiffs relied in providing a loan to the owners of the property. The defendant applied to amend its statement of defence to add a claim of contributory negligence by the plaintiffs.

The Newfoundland and Labrador Supreme Court, Trial Division (General), allowed the application in part.

Practice - Topic 2105

Pleadings - Amendment of pleadings - Prejudice or presumed prejudice - What constitutes - The plaintiffs claimed against the defendant in breach of contract, negligence and negligent misrepresentation, regarding the defendant's appraisal of a property on which the plaintiffs relied in providing a loan to the owners of the property - The defendant applied to amend its statement of defence to add a claim of contributory negligence by the plaintiffs - The Newfoundland and Labrador Supreme Court, Trial Division (General), allowed the application in part - Any prejudice caused by the amendments making the matter more complex and requiring further document production was minor and could be compensated by costs - There was no basis in law for the plaintiffs' argument that requiring the plaintiffs to produce documents of the type likely to be required would be a breach of privacy - See paragraphs 15 to 19.

Practice - Topic 2110

Pleadings - Amendment of pleadings - Adding new cause of action or "claim" - The plaintiffs claimed against the defendant in breach of contract, negligence and negligent misrepresentation, regarding the defendant's appraisal of a property on which the plaintiffs relied in providing a loan to the owners of the property - The defendant applied to amend its statement of defence to add a claim of contributory negligence by the plaintiffs - At issue was whether the proposed amendments were "embarrassing" - The Newfoundland and Labrador Supreme Court, Trial Division (General), stated, "The term embarrassing in this context refers to whether or not the pleadings are such that the opposing party is able to clearly see the legal basis of the claim being made and the nature of the factual basis upon which it is brought. The corollary to this is that an opposing party must not be left to speculate as to the legal and factual basis for the claim." - Here, the amendments set out both the legal and factual basis of the claim - They were not "embarrassing" - See paragraphs 25 and 26.

Practice - Topic 2123.1

Pleadings - Amendment of pleadings - Statement of defence - Adding new defence - The plaintiffs claimed against the defendant in breach of contract, negligence and negligent misrepresentation, regarding the defendant's appraisal of a property on which the plaintiffs relied in providing a loan to the owners of the property - The defendant applied to amend its statement of defence to add a claim of contributory negligence by the plaintiffs - The Newfoundland and Labrador Supreme Court, Trial Division (General), allowed the application in part - While there was doubt whether the proposed amendments constituted a good defence, the application should not be refused on that basis alone - The amendments raised triable issues - See paragraphs 20 to 24.

Practice - Topic 2123.1

Pleadings - Amendment of pleadings - Statement of defence - Adding new defence - The plaintiffs claimed against the defendant in breach of contract, negligence and negligent misrepresentation, regarding the defendant's appraisal of a property on which the plaintiffs relied in providing a loan to the owners of the property - The defendant applied to amend its statement of defence to add a claim of contributory negligence by the plaintiffs - At issue was whether the proposed amendments were pled with particularity - The Newfoundland and Labrador Supreme Court, Trial Division (General), allowed the application in part - The particulars of contributory negligence were properly pled in the proposed paragraphs 8(a) through 8(e) - However, the particulars of paragraph 8(f) were framed as "... Some of the particulars of either or both of the Plaintiffs own negligence include, but are not limited to ... " - It was not appropriate in an amendment such as this to indicate that other unspecified particulars of negligence might be pled later - Paragraph 8 in its present wording was not permitted - The defendant was permitted to change the wording so that it read: "The particulars of either or both of the Plaintiffs' negligence are:" - See paragraphs 27 to 34.

Torts - Topic 6637

Defences - Contributory negligence - Particular cases - Practice - Pleading - [See second Practice - Topic 2123.1 ].

Words and Phrases

Embarrassing - In the context of a defendant's application to amend its statement of defence to add a claim of contributory negligence by the plaintiffs, the Newfoundland and Labrador Supreme Court, Trial Division (General), discussed the meaning of the word "embarrassing" - See paragraph 25.

Cases Noticed:

Snow v. Kashyap (1995), 125 Nfld. & P.E.I.R. 182; 389 A.P.R. 182 (Nfld. C.A.), refd to. [para. 11].

Butler v. Kloster Cruise Ltd. et al. (1992), 98 Nfld. & P.E.I.R. 135; 311 A.P.R. 135 (Nfld. C.A.), refd to. [para. 13].

Petten et al. v. E.Y.E. Marine Consultants et al. (1994), 120 Nfld. & P.E.I.R. 313; 373 A.P.R. 313 (Nfld. T.D.), refd to. [para. 22].

Imperial Oil Ltd. v. Hickey (T.P.) Insurance Ltd. et al. (2000), 196 Nfld. & P.E.I.R. 298; 589 A.P.R. 298 (N.L.T.D.), refd to. [para. 37].

Counsel:

Erin Best, for the plaintiffs;

Melissa Hill, for the defendant.

This application was heard at St. John's, N.L., on February 26, 2015, by Murphy, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered the following reasons for judgment on June 17, 2015.