Pic Realty Canada Ltd. and Rocca Group Ltd. v. Disher, (1982) 42 N.B.R.(2d) 41 (CA)

• Judge: Hughes, C.J.N.B., Stratton and Angers, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: September 02, 1982
• Jurisdiction: New Brunswick
• Citations: (1982), 42 N.B.R.(2d) 41 (CA)

Pic Realty Can. Ltd. v. Disher (1982), 42 N.B.R.(2d) 41 (CA);

    42 R.N.-B.(2e) 41; 110 A.P.R. 41

MLB headnote

Sommaire

Pic Realty Canada Limited and Rocca Group Limited v. Disher

(35/82/CA)

Indexed As: Pic Realty Canada Ltd. and Rocca Group Ltd. v. Disher

Répertorié: Pic Realty Canada Ltd. and Rocca Group Ltd. v. Disher

New Brunswick Court of Appeal

Hughes, C.J.N.B., Stratton and Angers, JJ.A.

September 2, 1982.

Summary:

Résumé:

The plaintiffs brought an action against the defendant and others for damages arising out of a building project. The plaintiffs obtained an order for leave to amend the statement of claim. The defendant appealed.

The New Brunswick Court of Appeal dismissed the appeal, because the defendant was not prejudiced by the amendment.

Practice - Topic 2101

Pleadings - Amendment of pleadings - General principles - The New Brunswick Court of Appeal held that leave to amend a statement of claim was properly given, where it was required to determine the real issues between the parties and the defendant was not prejudiced - The court stated that the power to amend is discretionary - See paragraph 17.

Practice - Topic 2111

Pleadings - Amendment of pleadings - Prohibition against adding new action which is statute barred - The New Brunswick Court of Appeal stated that, while an amendment will not be allowed to set up a new cause of action, which is barred by the expiry of a limitation period, an amendment will be permitted, if it is a mere modification or extension of a cause of action already raised - See paragraphs 14 to 16.

Practice - Topic 8804

Appeals - Duty of appeal court regarding discretionary orders - The New Brunswick Court of Appeal refused to disturb a trial judge's discretionary order granting leave to amend a statement of claim, where there was no error of law and no injustice resulted - See paragraph 17.

Cases Noticed:

Steward v. North Metropolitan Tramways Co. (1886), 16 Q.B.C. 556, appld. [para. 7].

Frobisher Limited v. Canadian Pipelines and Petroleums Limited et al., [1960] S.C.R. 126, appld. [para. 7].

Phelan v. Famous Players Canadian Corporation Limited et al., [1937] 2 D.L.R. 223, appld. [para. 17].

Wampler v. British Empire Underwriters Agency (1920), 48 O.L.R. 428, appld. [para. 17].

Statutes Noticed:

Rules of Court (N.B.), O. 28, rule 1 [para. 6].

Rules of Court (N.B.), rule 27.10 [para. 9].

Authors and Works Noticed:

Williston and Rolls, The Law of Civil Procedure, vol. 2, pp. 723-729 [para. 8]; 727 [para. 16].

Counsel:

Kenneth MacCallum, for the appellant;

David Norman, Q.C., for Pic Realty;

Hugh H. McLellan, for Rocca Group.