Wirth Limited (Plaintiff)
v.
The ship Atlantic Skou and Ove Skow R/A and
Case Transportation Limited (Defendants)
Trial Division (T-123-74), Collier J.—Vancou-
ver, January 28 and February 8, 1974.
Practice—Amendment of statement of claim—No limita
tion period—Clerical error in defendant's name—No leave of
Court required—Federal Court Rule 421(1).
Where no limitation period arises and where the effect of
the amendment sought does not substitute a party or create
doubt or confusion, the statement of claim can be amended
without leave of the Court under Rule 421(1).
APPLICATION for leave to amend.
COUNSEL:
D. F. McEwen for plaintiff.
No one appearing for defendants.
SOLICITORS:
Ray, Wolfe, Connell, Lightbody and Rey-
nolds, Vancouver, for plaintiff.
No one appearing for defendants.
COLLIER J.—The plaintiff, by Notice of
Motion, requests ex parte an order amending the
style of cause as set out in the Statement of
Claim. The action is one for damage to cargo
shipped on the "Atlantic Skou". The first corpo
rate defendant is alleged to be the owner of the
vessel, and the defendant, "Cas .Transportation
Limited" (I have used the spelling in the style of
cause and underlined the 11 the charterer. The
goods are alleged to have been shipped from
Antwerp in July of 1972 destined for this
country.
The Statement of Claim was issued on Janu-
ary 10, 197'4. It has not been served on anyone,
nor has any party to the action pleaded to it.
In paragraph 3 of the Statement of Claim the
defendant in question is described as "Cast
Transportation Limited". The material shows
that "Cast" is the proper first name of the
company; "Case" was a typographical error.
I granted the order sought. Counsel for the
plaintiff wished to make certain submissions in
respect of the necessity or otherwise of obtain
ing leave of the Court to amend the Statement
of Claim in circumstances such as these, where
the effect of the amendment asked for is to
correct an error in the style of cause 1 .
Mr. McEwen's submissions were premised on
the assumption, in this and other cases, that no
question arises as to the intervention of a limita
tion period. He says he is entitled to amend, in a
case such as this, in the manner provided by
Rule 421(1) which is as follows:
Ru(e 421. (1) A party may, without leave, amend any of his
pleadings at any time before any other party has pleaded
thereto..
He states he has been advised by the Registry
in this, and similar cases, he cannot proceed
under Rule 421(1), but in order to amend the
style of cause, must first obtain leave of the
Court and was referred by the Registry to Rule
425. I set out that rule as well:
Rule 425. An amendment to correct the name of a party
may be allowed under Rule 424, notwithstanding that it is
alleged that the effect of the amendment will be to substitute
a new party, if the Court is satisfied that the mistake sought
to be corrected was a genuine mistake and not misleading or
such as to cause any reasonable doubt as to the identity of
the party intending to sue, or, as the case may be, intended
to be sued.
In my view, Rule 425 has no application to
the circumstances here. No limitation period
arises, nor can it be alleged the effect of the
amendment sought is to substitute a new party.
The party in question was properly identified
and described in the body of the Statement of
Claim.
I do not feel these views are in any way
inconsistent with those expressed by the Chief
Justice of this Court in a footnote on the second
1 In the circumstances (which might not, in the ordinary
case, come before a judge of the Court) I agreed to hear the
submissions and, if it seemed desirable, to give some written
comments.
page of his Reasons for Judgment in The Robert
Simpson Montreal Limited v. Hamburg-Amerika
Linie Norddeutscher [1973] F.C. 1356.
It is my opinion, therefore, that the particular
amendment sought here, did not require leave of
the Court. I do not express any view as to
amendments sought to delete or substitute par
ties, or to correct mistakes where there may be
doubt or confusion, or changes as to the identity
of a party. In the latter cases, it may well be that
Rule 425, or Rule 1716, or both may be
relevant.
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.