Supreme Court of Canada
Basarsky v. Quinlan, [1972] S.C.R. 380
Date: 1971-10-05
Nick Albert Basarsky, Administrator of the Estate of Gordon Stewart Onishenko, Deceased (Plaintiff) Appellant;
and
Joe Quinlan and Eileen Quinlan (Defendants) Respondents.
1971: June 4; 1971: October 5.
Present: Martland, Ritchie, Hall, Spence and Laskin JJ.
ON APPEAL FROM THE SUPREME COURT OF ALBERTA, APPELLATE DIVISION
Practice—Application to amend statement of claim—Application made after expiry of limitation period—Special circumstances warranting Court to allow amendment.
Following an automobile accident in which O was killed, the appellant, as administrator of O’s estate, commenced an action against the respondents, claiming damages under the provisions of The Trustee Act, R.S.A. 1955, c. 346. Liability was admitted and the action proceeded limited to the matter of quantum of damages. The appellant applied for leave to amend the statement of claim in certain particulars which were not objected to by the respondents and for which leave was given, and in the same application the appellant asked leave to amend the statement of claim by adding two new paragraphs and by changing the prayer for relief so as to include a claim on behalf of O’s widow and children, pursuant to the provisions of The Fatal Accidents Act, R.S.A. 1955, c. 111. The application was dismissed by the chambers judge and an appeal to the Appellate Division was also dismissed. An appeal was then brought to this Court and the issue was to whether the proposed amendments could be made, having regard to the fact that the two-year period under which an action could be brought under The Fatal Accidents Act had expired before the application to amend was made.
Held: The appeal should be allowed.
The rule of practice in Weldon v. Neal (1887), 56 L.J.Q.B. 621, 19 Q.B.D. 394, is not absolute, and an amendment of the nature of that sought in the latter case will be allowed where peculiar circumstances exist which warrant the amendment being allowed. The adjective “peculiar” in the context of
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the judgment of Lord Esher M.R. in Weldon v. Neal and at the date thereof may be equated with “special” in current usage. The special circumstances which would warrant a court to allow such an amendment existed in the present case.
Tannas v. Mosser, [1930] 1 W.W.R. 738; Pontin v. Wood, [1962] 1 All E.R. 294; Hall v. Meyrick, [1957] 2 All E.R. 722; Cooper v. Williams, [1963] 2 All E.R. 282; Fitzpatrick v. Schram, [1928] 1 W.W.R. 751, referred to.
APPEAL from a judgment of the Supreme Court of Alberta, Appellate Division, dismissing an appeal from an order of Primrose J., whereby the appellant’s application to amend the statement of claim in certain particulars was dismissed. Appeal allowed.
H.L. Irving, Q.C., and J.K. Holmes, for the plaintiff, appellant.
D.H. Bowen, Q.C., for the defendants, respondents.
The judgment of the Court was delivered by
HALL J.—This is an appeal from the Appellate Division of the Supreme Court of Alberta in which an application by the appellant to amend the statement of claim in the action was dismissed.
Gordon Stewart Onishenko was killed in an automobile accident on September 9, 1967, near Lacombe in the Province of Alberta. The appellant Basarsky was appointed administrator of the estate of the deceased Onishenko under letters of administration granted to him on January 17, 1968. On October 18, 1968, the appellant commenced an action against the respondents. Paragraph 2 of the statement of claim reads in part as follows:
…and the Plaintiff brings this action on behalf of the said Estate pursuant to the provisions of the Trustee Act being Chapter 346 of the Revised Statutes of Alberta 1955 and amendments thereto. The appellant also alleged in the statement of claim:
THAT the said accident, injury, and death referred to in the preceding paragraphs hereof were
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caused solely and entirely by the negligence of the Defendant JOE QUINLAN in the operation of the motor vehicle operated by him,…
and in the prayer for relief, the claim was made:
Under the provisions of The Trustee Act on behalf of GORDON STEWART ONISHENKO, Deceased, for loss of life pain, suffering, and loss of expectation of life, and general damages in the sum of $250,000.00.
The defendants entered a statement of defence in the action and para. 1 of that defence reads:
THAT the Defendants admit the accident referred to in the Statement of Claim and further admit that the said accident occurred as a result of the negligence of the Defendant, JOE QUINLAN.
The action proceeded limited to the quantum of damages recoverable as liability had been admitted.
On August 26, 1970, the appellant applied to the presiding judge in chambers at Edmonton for leave to amend the statement of claim in certain particulars which were not objected to by the respondents and for which leave was given, and in the same application the appellant asked leave to amend the statement of claim by adding two new paragraphs 7(a) and (b) as follows:
7(a) The said Gordon Stewart Onishenko before the time of his death was 43 years of age, employed as a sheet metal shop foreman and his wife and children aforesaid were entirely dependent upon his earnings as such, for their support and education, and in consequence of the death of the said Gordon Stewart Onishenko they have been deprived of that means of support and education.
7(b) The Plaintiff, as Administrator aforesaid, incurred expense for the burial of the said Gordon Stewart Onishenko and therefore claims the sum of $500.00.
and by changing the prayer for relief to read:
(c) Under the provisions of the Fatal Accidents Act and on behalf of the widow and children of Gordon Stewart Onishenko, deceased, damages in the sum of $150,000.00.
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The application was dismissed without written reasons by Primrose J. and on an appeal to the Appellate Division the appeal from Primrose J. was dismissed, again with no written reasons.
The issue here is as to whether the proposed amendments could be made, having regard to the fact that the two-year period under which an action could be brought under The Fatal Accidents Act, R.S.A. 1955, c. 111, had expired before the application to amend was made.
The respondents in their factum rely principally on what is known as the rule in Weldon v. Neal[1], and the jurisprudence emanating therefrom and quote from Lord Esher M.R. in that case as follows:
It has been urged that if the Court were to allow an amendment by adding a cause of action which, if the writ were issued at the time when such amendment is allowed, would be barred, this would be giving the plaintiff an advantage and taking away from the defendant a right which he would have had—the effect of such an amendment being to allow the plaintiff to take advantage of the original writ of summons for the purpose of defeating the Statute of Limitations.
and:
The effect of allowing these amendments would be to deprive the defendant of his right to plead the Statute of Limitations.
It must be pointed out that there was omitted from the remarks attributed to Lord Esher M.R. in the Law Journal Queen’s Bench Report between the two quotations as given above the following:
The Court, inasmuch as they have power to allow amendment, would, under very peculiar circumstances,, allow it to be made; but, as a general rule, such an amendment will not be allowed. There are no peculiar circumstances here. The plaintiff originally brought an action for slander alone; and if the matters now sought to be put into the statement of claim had been included in the writ of summons, they would not have been barred; whereas if a new writ were to be issued in respect of these matters they would be barred. (Emphasis added.)
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It is of some significance to point out that Lord Esher M.R.’s judgment in Weldon v. Neal is also reported in the Law Reports[2], and the complete text of his judgment in the latter report of the case is as follows:
We must act on the settled rule of practice, which is that amendments are not admissible when they prejudice the rights of the opposite party as existing at the date of such amendments. If an amendment were allowed setting up a cause of action, which, if the writ were issued in respect thereof at the date of the amendment, would be barred by the Statute of Limitations, it would be allowing the plaintiff to take advantage of her former writ to defeat the statute and taking away an existing right from the defendant, a proceeding which, as a general rule, would be, in my opinion, improper and unjust. Under very peculiar circumstances the Court might perhaps have power to allow such an amendment, but certainly as a general rule it will not do so. (Emphasis added.)
This case comes within that rule of practice, and there are no peculiar circumstances of any sort to constitute it an exception to such rule. For these reasons I think the order of the Divisional Court was right and should be affirmed.
While the respective reports of the judgment of Lord Esher M.R. are not identical, whatever their semantic differences it becomes clear that Lord Esher M.R. is not stating a rule that precludes an exception. In the Law Reports version of the judgment one reads that the Court might perhaps have power to allow the amendment sought provided the circumstances were “peculiar”. The Law Journal version reads to this effect: the Court would grant the amendments sought provided there were “peculiar” circumstances. Thus the conclusion must be that the rule of practice in Weldon v. Neal is not absolute, and an amendment of the nature of that sought in the latter case will be allowed where peculiar circumstances exist which warrant the amendment being allowed. The power to allow an amendment after the time limited by a Statute of Limitations will necessarily be infrequently invoked as the circumstances warranting its use will not often occur. I
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am fortified in my interpretation of Weldon v. Neal (supra) by the fact that McKay and Mackenzie JJ.A. in Tannas v. Mosser[3], recognized that the rule was not absolute and by Holroyd Pearce L.J. in Pontin v. Wood[4], and Hodson L.J. in Hall v. Meyrick[5], who also recognized that there could be exceptions to the rule in Weldon v. Neal although no such circumstances were present in those cases.
The adjective “peculiar” in the context of Lord Esher M.R.’s judgment and at the date thereof may be equated with “special” in current usage. Such was the treatment accorded the expression by Holroyd Pearce L.J. in Pontin v. Wood (supra) at p. 297. The expression “peculiar” as used by Lord Esher M.R. in 1887 means “special” today. “Peculiar” has now another connotation as shown in The New Roget’s Thesaurus in Dictionary Form where it is defined as “odd, singular, curious, eccentric”. Lord Esher M.R. did not use “peculiar” in any of these senses.
In my view, the special circumstances which would warrant a court to allow such an amendment exist here. All the facts relating to the tort of the respondents and their liability for the death of Onishenko were pleaded in the original statement of claim. The respondents have admitted responsibility for the death of Onishenko. On the examination for discovery of the appellant which took place on June 9, 1969, counsel for the respondents examined as to the age of Onishenko’s widow, whether she had employment, the number of children and their ages as well as to the employment and earnings of the deceased, all matters relevant only to an action under The Fatal Accidents Act.
I think it cannot be suggested that the respondents were actually prejudiced by the appellant’s failure to name The Fatal Accidents Act specifi-
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cally in the original statement of claim. At the time the action was brought, the appellant, as administrator of the estate of the deceased, had the right to claim under The Fatal Accidents Act at the same time as he was putting forward the claim under The Trustee Act. The omission of the appellant to give particulars of those on whose behalf an action under The Fatal Accidents Act could be taken is not in itself fatal and neither is the failure to refer to the latter Act specifically: Cooper v. Williams[6]. The Alberta statute does not require that such particulars be given and failure to give those particulars is not a reason for striking out the statement of claim as disclosing no cause of action. This point was dealt with in Alberta in Fitzpatrick v. Schram[7], and in this regard also note should be taken of the judgment of Lord Denning M.R. in Cooper v. Williams (supra). The Imperial Fatal Accidents Acts specifically require that the intended beneficiaries of an action under the Acts be named. None the less, the failure so to name all the intended beneficiaries or to mention The Fatal Accidents Acts nor show that the plaintiff sued in a representative capacity did not nullify the proceedings.
In the light of the special circumstances existing in this case, I would allow the appeal and order that the statement of claim be amended as asked for. The appellant will have his costs in this Court and in the Appellate Division. The respondents are entitled to their costs of the application before Primrose J.
Appeal allowed with costs.
Solicitors for the plaintiff, appellant: Holmes, Crowe, Power & Johnston, Edmonton.
Solicitors for the defendants, respondents: Duncan & Bowen, Edmonton.