The Alberta Court of Appeal delivered a decision on February 21st clarifying the standard of review for decisions made by a case management judge regarding the amendment of pleadings after pleadings have closed. In Attila Dogan Construction and Installation Co. Inc. v AMEC Americas Limited 2014 ABCA 74, the Court found that the case management judge’s assessment of the evidence and discretionary decision were entitled to deference, and that the decision should not be overturned without a palpable and overriding error in assessing the evidence, an unreasonable exercise of discretion, or an extricable error.
The appellant issued a Statement of Claim in the above action in 2007, with one amendment in 2010. In May 2013 the appellant brought an application to further amend the statement of claim.
The 2013 amendment sought to include an allegation of “duress and/or undue influence” by the defendant in having the appellant sign an Amending Agreement to their Joint Venture Agreement. The case management judge found that the pleading of duress was “hopeless” based on evidence and found that:
“The evidence here indicates that [the appellant], in circumstances of financial stress, entertained a proposal to amend the Joint Venture Agreement, consulted with counsel, proceeded to negotiate, and arrived at an amendment that may, in the long run, not have been in its best interests. There is no evidence of the exercise of domination or control that would support a claim for undue influence.” (para.12)
The appellant argued that the case management judge erred in setting too high an evidentiary standard for amending pleadings, misstated the law, and failed to consider relevant evidence. The Court of Appeal ruled that the standard of review in this case was correctness, as it was a question of law. The findings of fact would only be reversed on appeal if they disclose a palpable and overriding error, and that absent an error on an extricable question of law, an error of principle, or a clearly unreasonable decision, deference is awarded to discretionary decisions of case management judges.
The Court of Appeal looked at the test for amending pleadings. While the bar is quite low and most applications to amend are approved, there are four main situations where the judge will not allow the amendments:
- where the amendment would cause serious prejudice to the opposing party that was not compensable in costs,
- where the amendment is hopeless,
- where the amendment seeks to add a new party or cause of action after the expiry of a limitation period that is not permitted by statue, or
- an element of bad faith is associated with the failure to plead the amendment in the first instance.
The Court of Appeal deferred to the case management judge, finding that the judge had properly applied the test of duress, and had not set too high a standard for the evidence required to support the amendment. While the evidentiary standard is low, the Court ruled that it does not preclude all weighing of tendered evidence by the judge, and that the applicant merely providing “some evidence” is not sufficient. The judge found that the appellant’s lack of protest at the time of negotiation of the Amending Agreement, and the fact that appellant failed to raise the claim until a decade into the dispute all led to the claim of duress being “hopeless.”
The Court ruled that the case management judge’s decision to refuse the amendment was entitled to deference.