Noting of default was also set aside; late amendment allowed if no prejudice to defendant
The Alberta Court of Appeal has upheld an application to amend a statement of claim to reflect the allegedly true name of “John Doe,” even though the application came more than three years after it was originally served.
In Anglin .v Pankiw, 2022 ABCA 362, Joseph Anglin was a candidate in the 2015 elections. He alleged that certain people damaged his election signs during the campaign and conspired to undermine his chances to win the election.
He later believed that Rick Pankiw was one of those responsible. Without amending his statement of claim, Anglin served Pankiw with a statement of claim in 2018.
However, a standoff ensued at trial. Pankiw alleged that service was ineffective because there was no amendment of the statement of claim. Anglin noted that Pankiw was in default, which was also noted by the Clerk of Court. No precedent for this procedure was given
Anglin finally brought an application to amend the statement of claim in 2021.
The chambers judge found that the 2018 service was effective and that Pankiw suffered no prejudice despite the 3.5-year delay. Thus, the judge allowed the application to amend the statement of claim.
On appeal, Pankiw alleged that the judge erred in granting of the application to amend.
The appellate court allowed the appeal in part.
Amendment to name of defendant necessary
While the parties acknowledge the tradition of using “John Doe” to name unknown defendants, once the plaintiff came to learn of the real name, it was incumbent upon him to have the pleadings properly amended, said the court.
The appellate court found that the application to amend was clearly late. However, late amendments are permissible if there is no prejudice to the defendant that is not compensable in costs, said the court.
However, the appellate court found that the irregularity in the application justified setting aside the noting of Pankiw in default. As such, the appellate court allowed the appeal in part, permitting the amendment application on the condition that the noting in default be set aside.
The order permitting the amendment of the statement claim was confirmed but only on the condition noting in default is set aside.
