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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).
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