T-4300-81
Island and Worldwide Shipping Agency Inc.
(Plaintiff)
v.
The ship Astron and Costar Shipping Co.
(Defendants)
Trial Division, Mahoney J.—Ottawa, December 4,
1981.
Practice — Application to file amended statement of claim
— Original style of cause showing clerical error — Applica
tion made notwithstanding Rule 421(1) — Statement of claim
not yet pleaded to — Court Registry refusing to accept
amendments to a style of cause under Rule 421(1), i.e. without
leave of the Court — Refusal based on Chief Justice Jackett's
obiter in the Robert Simpson case — Whether Rule 421(1)
applies — Application dismissed — Plaintiff entitled to effect
amendment without leave — No change to be made in a style
of cause without formal amendment — An amendment to the
style of cause may, however, be made in the manner provided
by the Rules of the Court for any amendment — Federal
Court Rule 421(1).
Robert Simpson Montreal Ltd. v. Hamburg-Amerika
Linie Norddeutscher [1973] F.C. 1356, explained.
MOTION pursuant to Rule 324.
COUNSEL:
Marc de Man for plaintiff.
SOLICITORS:
Stikeman, Elliott, Tamaki, Mercier & Robb,
Montreal, for plaintiff.
The following are the reasons for order ren
dered in English by
MAHONEY J.: The plaintiff applies for leave of
the Court to file an amended statement of claim
substituting "Coastal Shipping Limited" for
"Costar Shipping Co." as a defendant. The origi
nal designation was a clerical error. The statement
of claim issued September 1, 1981, and has not yet
been pleaded to. I have been wondering for some
time why, in view of Rule 421(1), this sort of
application is so frequently made.
Rule 421. (1) A party may, without leave, amend any of his
pleadings at any time before any other party has pleaded
thereto.
I have been informed that these applications are
made because the Court's Registry refuses to
accept amendments to a style of cause under Rule
421(1). The reason for that refusal lies in its
understanding of a footnote to the judgment of
Chief Justice Jackett in The Robert Simpson
Montreal Limited v. Hamburg-Amerika Linie
Norddeutscher'. In the footnote, the Chief Justice
observed [at page 1371]:
My examination of the pleadings in this action also causes me
to make the comment (which is not in any way pertinent to this
appeal) that, as far as I know, the Style of Cause is a title or
means of identifying an action. In my view, in the ordinary
case, every document filed should bear the Style of Cause of
the initiating document (even though there has been a change
of parties) for otherwise the Style of Cause does not serve its
principal purpose of identifying the action. If, in a particular
case, it is thought that having a ready means in the Style of
Cause for ascertaining all the parties to the action outweighs
the advantage of having an action identified throughout by the
same Style of Cause, an application should be made to the
Court for an order changing the Style of Cause. As far as I
know, an order of the Court is required to authorize the
Registry to accept for filing in respect of a particular action a
document bearing a Style of Cause other than that of the
document by which that action was initiated. [The emphasis is
mine.]
It is not necessary to consider the authority to
be accorded a comment in a footnote to the judg
ment of one member of an appeal court panel. This
was stated to be obiter. It was also not a comment
which the Registry could ignore.
In taking the comment literally and applying it
universally, the Registry has ignored both the con
text in which the comment was made, and in
which it remains entirely valid, and has also ren
dered the unambiguous provision of Rule 421(1) a
complete nullity where the style of cause is to be
affected by an amendment. So that the context of
the Chief Justice's comment may be understood, I
set out the following:
1. That action was commenced in the Exchequer
Court by a writ with the following style of cause:
1 [1973] F.C. 1356 at pp. 1370 ff.
THE ROBERT SIMPSON MONTREAL LIMITED, a corporation,
having its head office and chief place of business in the City of
Montreal, Province of Quebec,
Plaintiff,
against
HAMBURG-AMERIKA LINIE NORDEUTCHER LLOYD ERNST
RUSS, at all material times the owners and/or operators and in
any event the parties interested in the ship "BUCHENSTEIN"
and having agents and assets in the City of Montreal at 360 St.
James West,
and
MONTREAL SHIPPING COMPANY LIMITED, a corporation,
having its head office and chief place of business in the City of
Montreal, Province of Quebec,
Defendants,
2. That was followed by a statement of claim in
this Court with the following style of cause:
BETWEEN:
THE ROBERT SIMPSON MONTREAL LIMITED,
Plaintiff,
AND:
HAMBURG-AMERIKA LINIE NORDDEUTSCHER,
and
LLOYD ERNST RUSS,
and
MONTREAL SHIPPING COMPANY LIMITED,
Defendants.
3. After the filing of the defence, third party
notices were issued by certain of the defendants
and the following style of cause was thereafter
adopted:
THE ROBERT SIMPSON MONTREAL LIMITED
Plaintiff
v.
HAMBURG-AMERIKA LINIE NORDDEUTSCHER,
LLOYD ERNST RUSS, and
MONTREAL SHIPPING COMPANY LIMITED,
Defendants
and
HAMBURG-AMERIKA LINIE NORDDEUTSCHER,
and LLOYD ERNST RUSS,
Third Party Plaintiffs,
v.
WARNOCK HERSEY INTERNATIONAL LTD.,
and MONTREAL SHIPPING COMPANY LIMITED,
Third Party Defendants.
None of those changes in the style of cause were
effected by amendment pursuant to the Rules of
Court. They were simply adopted by the parties
and received by the Registry. That is what the
Chief Justice was commenting on.
Applications to the Court take time. They take
the time of counsel, of registry officers and of
judges. Time is money. Unnecessary applications
waste money, both that of the plaintiff and that of
the fisc.
Under the present practice, a plaintiff is entitled
to amend his statement of claim before it has been
pleaded to in the most substantial particulars; he
may add or subtract causes of actions and reme
dies sought without an order of the Court but he
cannot correct even a typographical or clerical
error in the style of cause without an order. The
Registry has been wrong in taking the Chief Jus
tice's comment to a logical but absurd conclusion.
A proper application of the comment would be
that no change is to be made in a style of cause
without formal amendment and the Registry
should continue to examine and refuse to accept
for filing pleadings and other documents that do
not bear the current style of cause in an action, be
it the original or, if a formal amendment has been
made, the amended style of cause. An amendment
to the style of cause may, however, be made in the
manner provided by the Rules of Court for any
amendment. In this instance, the plaintiff is enti
tled to effect the amendment it wishes without
leave.
ORDER
The plaintiff's application for leave to file an
amended statement of claim is dismissed without
prejudice to the right of the plaintiff to effect the
said amendment without leave pursuant to Rule
421(1).
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.