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Federal Court - Amending Pleadings - Federal. Jewish National Fund of Canada Inc. v. Canada (National Revenue) [amending NofA]
In Jewish National Fund of Canada Inc. v. Canada (National Revenue) (Fed CA, 2025) the Federal Court of Appeal considered a motion to amend pleadings, here a Notice of Appeal:I. The request for leave to amend the Notice of Appeal
[6] Motions for leave to amend are governed by Rule 75. The governing principle is that an amendment should be permitted at any stage of a proceeding "“if it assists in determining the real questions in controversy between the parties, provided it would not result in an injustice not compensable in costs and that it would serve the interests of justice”" (Canada v. Pomeroy Acquireco Ltd., 2021 FCA 187 at para. 4; McCain Foods Limited v. J.R. Simplot Company, 2021 FCA 4 at para. 20 (McCain Foods); Teva Canada Limited v. Gilead Sciences Inc., 2016 FCA 176 at para. 26 (Teva Canada)).
[7] One additional criterion is that when a proposed amendment raises new grounds supporting the relief sought, it cannot be allowed if it is plain and obvious that those new grounds, assuming the facts pleaded to be true, have no reasonable prospect of success (McCain Foods at para. 20; Teva Canada at paras. 28-31). When that occurs, determining whether the new grounds are doomed to fail requires that they be examined "“in the context of the law and the litigation process”" and that "“a realistic view […] be taken”" (McCain Foods at para. 21). Put differently, they must be capable of withstanding the test applicable to motions to strike (McCain Foods at para. 22).
[8] These principles provide for a "“liberal approach to amendments”" (Sanofi-Aventis Canada Inc. v. Teva Canada Limited, 2014 FCA 65 at para. 13). As this Court stated in Canderel Ltd. v. Canada, 1993 CanLII 2990 (FCA), [1994] 1 F.C. 3 (C.A.), allowing an amendment or not "“[u]ltimately [...] boils down to a consideration of simple fairness, common sense and the interests that the courts have that justice be done”".
[9] These principles apply to amendments to a Notice of Appeal but "“with minor modification”" (McKesson Canada Corporation v. Canada, 2014 FCA 290 at para. 7 (McKesson)). One modification is that in considering whether a proposed "“new ground of appeal”" has a reasonable prospect of success, a motion judge "“should keep front of mind the demarcation of tasks between a motions judge and an appeal panel”". As a result, if "“reasonable minds could differ on the merits of the new ground”", then the proposed new ground must be allowed to enter the appeal, "“leaving its ultimate resolution to the panel hearing the appeal”" (McKesson at para. 9). . Michel v. Canada (Attorney General)
In Michel v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal partially allowed an appeal, here from a denied class action certification motion that resulted when "the Federal Court declined to allow the plaintiffs leave to amend their Third Amended Statement of Claim (the Statement of Claim) and to reapply for certification".
The court considers the law of leave to amend pleadings, although here where prior amendments have been granted:[78] The determination of whether to grant a party leave to amend a pleading is a discretionary one and, therefore, absent an error of law or principle, reviewable for palpable and overriding error: Brink at para. 41; McMillan v. Canada, 2024 FCA 199 at para. 106; Ramos v. Canada (Attorney General), 2019 FCA 205 at para. 21; Conway v. The Law Society of Upper Canada, 2016 ONCA 72 at para. 16.
[79] As a matter of principle and as a general rule, if there is a justiciable claim that can be advanced by a party, they should be granted leave to amend their pleadings to make such a claim in the event their pleading is struck for want of necessary material facts unless they have already been granted so many chances to amend that the court concludes they are unable to plead the required material facts, as occurred in Heli Tech Services (Canada) Ltd. v. Weyerhaeuser Company Limited, 2011 FCA 193.
[80] In terms of the general principle, in Enercorp Sand Solutions Inc. v. Specialized Desanders Inc., 2018 FCA 215, Justice Pelletier, writing for this Court, noted at paragraph 27 that:It has long been the policy of the law that meritorious claims should not be defeated on the basis of inadequate pleadings. In that spirit, when a pleading is struck, leave to amend should be granted unless it is plain and obvious that the defect cannot be cured by an amendment: see Simon v. Canada, 2011 FCA 6 at para. 15, 410 N.R. 374. A defect may be incurable if, for example, the Court lacks jurisdiction or if there are no facts which would disclose a cause of action: see Spatling v. Canada (Solicitor General), 2003 FCT 445 at paras 7-8, [2003] F.C.J. No. 621, Canada (Minister of Citizenship and Immigration) v. Seifert, 2002 FCT 859 at para.12, [2003] 2 F.C. 83. [81] Applying these principles in the context of class proceedings, this Court in Brink at paragraph 133, and in Canada (Attorney General) v. Jost, 2020 FCA 212 [Jost] at paragraph 49, held that leave to amend a statement of claim in a proposed class proceeding should only be denied in the clearest cases. These will be limited to situations where it is "“plain and obvious that no tenable cause of action is possible on the facts as alleged, and there is no reason to suppose that the party could improve his or her case by an amendment”" (Jost at para. 49). . McMillan v. Canada
In McMillan v. Canada (Fed CA, 2024) the Federal Court of Appeal considered an appeal, this from class action orders from a motion judge of the Superior Court that "dismissed Mr. McMillan’s motion to certify the action as a class proceeding on the basis that his statement of claim failed to disclose a reasonable cause of action" and refused "leave to amend his statement of claim".
Here the court considers granting leave to amend pleadings, here in a class action context:[106] The decision whether or not to grant leave to a party to amend their statement of claim is a discretionary one. As such, it is subject to review on the palpable and overriding error standard: Bigeagle v. Canada, 2023 FCA 128 at para. 27, leave to appeal to SCC refused, 40910 (6 June 2024).
[107] That said, leave to amend a statement of claim in a proposed class proceeding should only be denied in the clearest of cases. This would include cases where it is plain and obvious that no tenable cause of action is possible on the facts as alleged, and there is no reason to suppose that the party could improve his or her case by an amendment: Brink, above at para. 133; Jost, above at para. 49.
[108] In other words, for a statement of claim to be struck without leave to amend, the defect in the claim must be one that is not curable by amendment: Hunt v. Carey, above at 976-978; Davis v. Canada (Royal Canadian Mounted Police), 2024 FCA 115 at para. 97; Simon, above at para. 8. . Canada v. Easter
In Canada v. Easter (Fed CA, 2024) the Federal Court of Appeal dismissed Crown appeals from interlocutory orders which earlier dismissed two motions "under rule 75 of the Federal Courts Rules, SOR/98-106, for leave to amend its statement of defence and crossclaim" (the second for abuse of process), here in a "sexual, physical, and psychological abuse" action which claimed vicarious liability against the Canadian Armed Forces:IV. Standard of review
[26] The decision whether to grant leave to amend a pleading is discretionary. The standard of review on appeal is therefore the highly deferential standard of palpable and overriding error for questions of fact and mixed fact and law, and correctness for questions of law: Housen v. Nikolaisen, 2002 SCC 33 at paras. 8, 10 and 36; Bigeagle v. Canada, 2023 FCA 128 at para. 27, leave to appeal to SCC refused, 40910 (6 June 2024).
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[35] First, I see no error of law in the motion judge considering whether the provisions of section 269 were "“unknowable”" to the Crown. As her reference in this context to Value Village Market (1990) Ltd. v. Value Village Stores Co., [1999] F.C.J. No. 1663 at para. 17, helps to show, this question formed part of her consideration of the timeliness of the Crown’s motion.
[36] Timeliness — including any alleged lack of timeliness — is virtually always a relevant factor in a motion for leave to amend: Apotex Inc. v. Bristol-Myers Squibb Company, 2011 FCA 34 at paras. 33-37. In Value Village Market, the motion judge considered whether the corporate defendant’s claim that its representative (a vice president) was unaware of the factual circumstances supporting a proposed amendment mitigated its untimeliness. The Court ultimately rejected this argument because the underlying facts were "“reasonably knowable”" to the defendant even if not known to its representative. Here, the motion judge engaged in similar, and equally permissible, reasoning when considering the timeliness of the amendments sought.
[37] Moreover, the Crown’s submission that if unknowability can be considered, "“the Crown would never be granted leave to amend to plead statutory defences,”" is without merit. In rule 75 motions, all relevant factors are to be considered and balanced, and no single factor is dispositive: Sanofi-Aventis Canada Inc. v. Teva Canada Limited, 2014 FCA 65 at para. 17.
[38] Second, I would not accept the Crown’s submission that the motion judge erred by treating the proposed section 269 amendment as raising a new and distinct defence, rather than as merely clarifying the issues already in dispute. This Court accepted in Merck & Co., Inc. v. Apotex Inc., 2003 FCA 488 at para. 33, citing Ketteman, that there is "“a clear difference”" between the two situations, and that more justification for the former was required. In this case no limitations defence at all had been pleaded. Nor did the defence plead facts relevant to timeliness more generally, as the motion judge had noted was the case in Miller. Thus there was no reviewable error in the motion judge characterizing as she did the Crown’s proposed amendments to the statement of defence to raise timeliness, and plead the limitation defence, for the first time. . Brink v. Canada [class action certification]
In Brink v. Canada (Fed CA, 2024) the Federal Court of Appeal considered an appeal from a denial of a Charter s.15 ['discrimination'] class action certification motion, here where the motion judge struck the claim (without leave to amend it) on the basis that no Charter claim was made out on the pleadings. The claim was with respect to immigration process fees charged by the government to "non-Canadian born" individuals.
Here the court addresses 'leave to amend' pleadings, here after they are struck:[132] The decision as to whether or not a party should be granted leave to amend their pleading is a discretionary one. As noted earlier, the standard of review applicable to discretionary orders of the Federal Court is the Housen v. Nikolaisen standard.
[133] Leave to amend a statement of claim in a proposed class proceeding should only be denied in the clearest cases. That is, where it is plain and obvious that no tenable cause of action is possible on the facts as alleged, and there is no reason to suppose that the party could improve his or her case by an amendment: Jost, above at para. 49. . Bigeagle v. Canada
In Bigeagle v. Canada (Fed CA, 2023) the Federal Court of Appeal considered (and tragically denied) an appeal of a decision not to grant leave to amend pleadings, here in an important indigenous class action addressing the historical abuse and genocide of native women:[27] The decision to grant or deny leave to amend pleadings is a discretionary one that is equally subject to review on the standard set out in Housen (Ramos v. Canada (Attorney General), 2019 FCA 205 at para. 21; Miller v. Canada, 2019 FCA 61 at para. 10; Heli Tech Services (Canada) Ltd. v. Weyerhaeuser Company Limited, 2011 FCA 193 at para. 24).
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(3) Leave to amend
[101] Ms. BigEagle claims that the motion judge erred when she concluded that it was impossible to amend the pleadings in order to correct the alleged deficiencies, and that no evidence had been submitted demonstrating the pleadings could be amended to focus on a manageable cause of action. She argues that the provision of evidence is irrelevant to the pleadings. Also, the mere fact that the pleadings were amended in the past should not preclude further amendments. She further asserts that the motion judge erred when she struck the claim on her own motion. The motion judge should have allowed her to renew the motion on a changed record, or permitted the action to proceed as an individual action.
[102] I agree with Ms. BigEagle that the respondent did not specifically seek an order striking the claim. However, the Federal Court has the inherent jurisdiction to manage its own process and proceedings (Lee v. Canada (Correctional Services Canada), 2017 FCA 228 at paras. 6-8). The motion judge noted that the pleadings had been amended several times without curing the deficiencies and found that the defects in the statement of claim did not amount to “drafting deficiencies” (Reasons at para. 246).
[103] In my view, it was open to the motion judge to find that that the claim was too broad and could not be cured by amendment. When she referred to the absence of evidence, it was not in terms of proof. It was that no suggestion had been made as to how the pleadings might be amended. Likewise, Ms. BigEagle has not identified to this Court how the pleadings could have been amended to support the alleged causes of actions. I have not been persuaded that the motion judge committed a reviewable error in this regard. . Rebello v. Canada (Justice)
In Rebello v. Canada (Justice) (Fed CA, 2023) the Federal Court of Appeal held that when striking pleadings a court may deny leave to amend if it would be futile to grant it:[17] As stated at the outset of these reasons, a pleading in the Federal Court may be struck if, assuming the facts as pleaded are true, it is plain and obvious that the pleading discloses no reasonable cause of action. The Federal Court found this to be the case here and held that the Statement of Claim ought to be struck without leave to amend. It is open to the Federal Court to strike a pleading without leave to amend where the defects in the pleading are such that they cannot be cured by amendments (Simon v. Canada, 2011 FCA 6 at para. 8). . Canada (National Revenue) v. Sharp
In Canada (National Revenue) v. Sharp (Fed CA, 2022) the Federal Court of Appeal considered leave to amend pleadings in the Federal Court:[88] The general principle to be applied is that leave should be granted unless it is plain and obvious that the defect in the pleading cannot be cured by amendment (Enercorp at para. 27; Simon v. Canada, 2011 FCA 6 at para. 15, 410 N.R. 374). This is a low bar.
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