Thompson et al. v. Lodge at Waterton Lakes Inc. et al.,

• Judge: Hanebury
• Neutral Citation: 2006 ABQB 242
• Subject Matter: PRACTICE
• Citation: 2006 ABQB 242,(2006), 420 A.R. 294 (QBM),(2006), 420 AR 294 (QBM),420 AR 294,420 A.R. 294
• Date: 09 March 2006
• Court: Court of Queen's Bench of Alberta (Canada)

Thompson v. Lodge at Waterton (2006), 420 A.R. 294 (QBM)

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. JL.031

Joseph Thompson, Alice Romanowski, Ed Romanowski, John F.M. Frew, Elizabeth A.K. Honstone, Ewan M.S. Frew, and 401708 Alberta Inc. (plaintiffs) v. The Lodge at Waterton Lakes Inc., Proprietary Industries Inc., Tourism Capital Corporation (Bermuda) Ltd. (defendants)

(0201 01848; 2006 ABQB 242)

Indexed As: Thompson et al. v. Lodge at Waterton Lakes Inc. et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Hanebury, Master

March 30, 2006.

Summary:

In January 2002, the plaintiffs sued on a debt. A defence was filed in March 2002. In March 2004, the plaintiffs' application for summary judgment was dismissed. The defendants applied to amend their pleadings to add defences, including an argument that the plaintiffs were mis-described and that the plaintiffs were now statute-barred from correcting the mis-description. The plaintiffs argued that the amendments should have been made years before and cross-applied to amend their pleadings if the defendants were successful.

A Master of the Alberta Court of Queen's Bench allowed the defendants' amendments with the omission of references to the Limitations Act. The plaintiffs' amendments were also allowed.

Practice - Topic 2105

Pleadings - Amendment of pleadings - Prejudice or presumed prejudice - What constitutes - In January 2002, the plaintiffs sued on a debt that came due in October 2001 - A defence was filed in March 2002 - In March 2004, the plaintiffs' application for summary judgment was dismissed - The defendants applied to amend their pleadings to add defences, including an argument that the plaintiffs were mis-described and that the plaintiffs were now statute-barred from correcting the mis-description - The plaintiffs argued that the amendments should have been made years before and cross-applied to amend their pleadings if the defendants were successful - A Master of the Alberta Court of Queen's Bench held that to allow an amendment alleging that the plaintiffs were mis-described and were statute-barred from correcting the mis-description would cause the plaintiffs prejudice that could not be compensated in costs and was tantamount to bad faith - The court allowed the amendments without references to the Limitations Act - The plaintiffs' amendments were also allowed - This remedied any injustice while ensuring that all of the issues were before the trial judge.

Practice - Topic 2123.1

Pleadings - Amendment of pleadings - Statement of defence - Adding new defence - [See Practice - Topic 2105 ].

Practice - Topic 2126

Pleadings - Amendment of pleadings - Statement of defence - Adding limitation of actions plea - [See Practice - Topic 2105 ].

Cases Noticed:

Balm v. 3512061 Can. Ltd. (2003), 327 A.R. 149; 296 W.A.C. 149 (C.A.), refd to. [para. 21].

Crossing Company Inc. v. Banister Pipelines Inc. et al. , [2005] A.R. Uned. 4; 2005 ABCA 21, refd to. [para. 24].

Thomas J. Duncan Ltd. v. Sigurdson et al. (1968), 67 D.L.R.(2d) 478 (B.C.C.A.), refd to. [para. 24].

Anadarko Canada Corp. v. Gibson Petroleum Co. , [2003] A.R. Uned. 572 (Q.B.), refd to. [para. 28].

Davies et al. v. Edmonton (City) and Baker (1991), 126 A.R. 109; 84 Alta. L.R.(2d) 121 (Q.B.), dist. [para. 33].

Best et al. v. Hoskins et al. (2006), 390 A.R. 1 (Q.B.), dist. [para. 33].

Korte et al. v. Cormie et al. (1996), 178 A.R. 199; 110 W.A.C. 199 (C.A.), refd to. [para. 41].

Counsel:

Eugene J. Bodnar (Macleod Dixon LLP), for the applicants;

Norman D. Anderson (Shea Nerland Calnan), for the respondents.

This application was heard on March 9, 2006, by Hanebury, Master, of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following memorandum of decision on March 30, 2006.