Précis: The Federal Court permitted a defendant to amend its Statement of Defence to allege additional causes of the collapse of a stow of containers where the amendments were not a radical departure from prior pleadings, were not doomed to fail and the motion to amend was made in a timely fashion.
Facts: During the discharge of the plaintiff’s vessel by the defendant a stack of containers collapsed causing damage to the vessel. The plaintiff brought the present action against the defendant. The defendant filed a defence pleading the containers had been negligently misaligned during loading. The defendant now brought an application to amend its defence to plead the misalignment was also due to defects in the placement of the cell guides and spacing bars and to plead that a stack of 8 containers was inherently dangerous. The plaintiff opposed the amendments arguing they constituted a radical departure from previous pleadings, were unsupported by evidence and doomed to fail, were untimely and were prejudicial since evidence had been lost and the plaintiff’s rights of recourse were time barred.
Decision: The amendments are allowed.
Held: The proposed amendments are not a radical departure from the prior pleadings which identified misalignment and improper stowage as contributing factors. The amendments are also not doomed to fail as the defendant has demonstrated that there is some evidence in support of them. Amendments can be refused as untimely when allowing them would unduly delay the trial of the action, however, here the amendments are requested before expert reports have been prepared and before a trial date has been set and will not cause significant delay. The more significant argument made against the amendments is that to allow them would cause prejudice to the plaintiff that could not be compensated for in costs. The plaintiff relies on the fact the vessel has been sold and destroyed together with her documents. However, the evidence would have been lost even if the amendments were in the original pleading and therefore does not lead to an injustice.