Potash Corp. of Saskatchewan Inc. v. Mosaic Potash Esterhazy Limited Partnership, (2010) 373 Sask.R. 1 (QB)

• Judge: Gabrielson, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: January 19, 2010
• Jurisdiction: Saskatchewan
• Citations: (2010), 373 Sask.R. 1 (QB);2010 SKQB 18

Potash Corp. v. Mosaic Potash (2010), 373 Sask.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2010] Sask.R. TBEd. MR.010

Potash Corporation of Saskatchewan Inc. (plaintiff/defendant by counterclaim) v. Mosaic Potash Esterhazy Limited Partnership (defendant/plaintiff by counterclaim)

(2009 Q.B.G. No. 666; 2010 SKQB 18)

Indexed As: Potash Corp. of Saskatchewan Inc. v. Mosaic Potash Esterhazy Limited Partnership

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Gabrielson, J.

January 19, 2010.

Summary:

The plaintiff applied for an order granting it leave to amend its statement of claim in accordance with a draft statement of claim attached to the notice of motion. The grounds cited in support of the application were that the amendments were necessary to fully determine the issues between the parties and that the defendant would not be prejudiced by the proposed amendment.

The Saskatchewan Court of Queen's Bench granted the application.

Practice - Topic 2101

Pleadings - Amendment of pleadings - General principles - Rule 165 of the Queen's Bench Rules provided that "The court may, at any stage of the proceedings, grant leave to a party to amend his pleadings, in such manner and on such terms as may seem just, and all such amendments shall be made as may be necessary to determine the real questions in issue between the parties." - The Saskatchewan Court of Queen's Bench stated that "... while Rule 165 is discretionary, the practice in Saskatchewan is for courts to allow amendments to pleadings whenever it can be done without injustice to the parties and where it is necessary to determine the real issues" - See paragraphs 10 to 12.

Practice - Topic 2102

Pleadings - Amendment of pleadings - Procedure for - The parties were two potash companies - The plaintiff applied for an order granting it leave to amend its statement of claim - The amendments included an allegation that the defendant had wilfully concealed the claim arising by virtue of the flooding of a mine (the inflow claim) - The grounds cited in support of the application were that the amendments were necessary to fully determine the issues between the parties and the defendant would not be prejudiced by the proposed amendment - The defendant contended that the application was improper because, inter alia, the application and the proposed amendments were not bona fide and were a flagrant abuse of process - The defendant alleged that the proposed amendments were in response to its application to strike the plaintiff's inflow claim on the grounds of the expiration of the limitation period - It submitted that the wilful concealment amendments were an attempt to avoid the limitation period defence and were therefore not bona fide - The defendant alleged that it would be premature to allow an amendment before considering its application to strike the original pleadings or at least that the applications should be determined concurrently - The Saskatchewan Court of Queen's Bench rejected the arguments - Litigation was not a chess match where each player had to complete a move before the next move could be made by the opposing player - No prejudice had been established by the defendant - Its application to strike the claim could still be heard - Furthermore, amendments to pleadings were specifically referred to in rule 173 as a potential remedy which was often granted in response to an application to strike; therefore it would not be an abuse of process to do so - An amended pleading would give the defendant and the court notice of the amended claim and the issues which the plaintiff intended to take to trial - How these amendments might affect the application to strike could then be fully considered at the hearing of that application - See paragraphs 18 and 19.

Practice - Topic 2105

Pleadings - Amendment of pleadings - Prejudice or presumed prejudice - What constitutes - The parties were two potash companies - The plaintiff applied for an order granting it leave to amend its statement of claim - The amendments included an allegation that the defendant had wilfully concealed the claim arising by virtue of the flooding of a mine (the inflow claim) - The grounds cited in support of the application were that the amendments were necessary to fully determine the issues between the parties and the defendant would not be prejudiced by the proposed amendment - The defendant contended that the application was improper because the amendments were inconsistent with paragraph 6 of the plaintiff's reply - The defendant submitted that, as there was no mention made in the plaintiff's reply that the defendant had wilfully concealed the inflow claim, therefore the plea in the amended statement of claim respecting wilful concealment was an inconsistency and the court should reject the application to amend in this regard -The Saskatchewan Court of Queen's Bench disagreed - The wilful concealment allegation contained in the amended statement of claim was not inconsistent with paragraph 6 of the reply which also alleged a failure to adhere to good mining practices - The amended claim expanded upon the allegations regarding good mining practices made in the original claim and the effect that this had upon the amount of potash product remaining due and owing under the mining agreement - In any event, the defendant had not alleged that it had suffered any prejudice by any alleged change in the plaintiff's position at this relatively early stage of the litigation - See paragraphs 16 and 17.

Practice - Topic 2105

Pleadings - Amendment of pleadings - Prejudice or presumed prejudice - What constitutes - [See Practice - Topic 2102 ].

Practice - Topic 2120

Pleadings - Amendment of pleadings - Statement of claim - General - [See first Practice - Topic 2105 ].

Practice - Topic 2131

Pleadings - Amendment of pleadings - Leave - Evidence - The plaintiff applied for an order granting it leave to amend its statement of claim - The defendant contended that the application was improper because, inter alia, the plaintiff had not filed affidavit evidence in support of its application - The Saskatchewan Court of Queen's Bench stated that "There is nothing in Rule 165 which requires an affidavit to be filed in respect to an application by a party to amend its pleadings. There may be instances when an affidavit is filed or required to be filed to explain a significant delay in bringing the application or if there have already been multiple amendments. ... Furthermore, ... the judge dealing with the amendment is not to go into the merits of the claim but should only decide whether there is a prima facie meritorious claim set forth in the amended pleading. Accordingly, as a general rule, there is no need to set up a factual basis, by way of affidavit evidence, so as to establish the new allegations referred to in the amendment." - See paragraph 15.

Practice - Topic 2141

Pleadings - Amendment of pleadings - To plead fraud, misrepresentation, malice, intent, etc. - The parties were two potash companies - The plaintiff applied for an order granting it leave to amend its statement of claim - The amendments included an allegation that the defendant had wilfully concealed the claim arising by virtue of the flooding of a mine (the inflow claim) - The grounds cited in support of the application were that the amendments were necessary to fully determine the issues between the parties and the defendant would not be prejudiced by the proposed amendment - The defendant contended that the application was improper because, inter alia, the application and the proposed amendments were not bona fide and were a flagrant abuse of process - The defendant alleged that the wilful concealment claim was equivalent to an allegation of fraud which was so serious as to warrant an explanation as to the purpose of the amendment and that in the absence of an explanation the court should infer that the proposed amendment was not bona fide - The Saskatchewan Court of Queen's Bench rejected the argument - The plaintiff made no allegation in its proposed amendments that the defendant's behaviour amounted to fraud - Rather, it alleged that there was a special relationship between the parties which obligated the defendant to provide the plaintiff with sufficient information to determine whether the defendant was in compliance with the mining agreement and that the defendant's failure to do so was unconscionable - It was up to the trial judge to determine whether there was merit to these allegations and, if so, what the effect upon the mining agreement would be - See paragraphs 18 and 20.

Practice - Topic 2142

Pleadings - Amendment of pleadings - Considerations governing granting of leave - [See Practice - Topic 2102 and first Practice - Topic 2105 ].

Cases Noticed:

Klein v. Kaip (1989), 78 Sask.R. 31 (Q.B.), dist. [para. 9].

Emigh v. Boychuk Investments Ltd. - see MacDermid Lamarsh v. Boychuk Investments Ltd.

MacDermid Lamarsh v. Boychuk Investments Ltd. (1992), 101 Sask.R. 13 (Q.B.), dist. [para. 9].

Blanchette v. C.I.S. Ltd., [1974] 1 W.W.R. 638 (Sask. Q.B.), dist. [para. 9].

Ricco's Health & Fitness Centre Ltd. v. Lemstra et al. (1998), 171 Sask.R. 267 (Q.B.), dist. [para. 9].

Lamb v. Lamb, Lamb (F.J.) Development Ltd. and Lark Haven Developments Ltd. (1984), 32 Sask.R. 1 (C.A.), refd to. [para. 11].

Saskatchewan Institute of Applied Science and Technology et al. v. Hagblom Construction (1984) Ltd. et al., [2005] 1 W.W.R. 390; 240 Sask.R. 208 (Q.B.), refd to. [para. 12].

Belsat Video Marketing Inc. v. Astral Communications Inc. et al. (1998), 54 O.T.C. 84 (Gen. Div.), affd. (1999), 118 O.A.C. 105 (C.A.), dist. [para. 15].

International Minerals & Chemical Corp. (Canada) Ltd. et al. v. Commonwealth Insurance Co. et al. (1990), 85 Sask.R. 304 (Q.B.), refd to. [para. 15].

Statutes Noticed:

Queen's Bench Rules (Sask.) - see Rules of Court (Sask.), Queen's Bench Rules.

Rules of Court (Sask.), Queen's Bench Rules, rule 165 [para. 10].

Counsel:

Gordon J. Kuski, Q.C., and Amanda M. Quayle, for the applicant/plaintiff;

Douglas C. Hodson, Q.C., for the respondent/defendant.

This application was heard by Gabrielson, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following decision on January 19, 2010.