Davidson v Manuel Groceries Ltd. and Loblaws Inc., 2025 NBKB 25 (CanLII)
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By: Krista Nasartschuk
On February 9, 2016, Juanita Davidson, the Plaintiff in this matter, suffered a slip and fall while exiting a grocery store owned and operated by the Defendants. An action was filed against the Defendants on May 1, 2017, which focused on their failure to maintain the location’s stairs in a safe condition. The Defendants denied liability in their Statement of Defence filed on September 7, 2017.
Justice Richard G. Petrie noted that the case had not moved forward quickly, with the matter only tentatively having been set for trial this year.
Plaintiff’s counsel filed a motion for leave to amend their Statement of Claim on December 14, 2024. Specifically, they wished to include previously unstated allegations with respect to the design and construction of the stairs. As noted above, the Plaintiff’s claim against the Defendants had, up until that point, been based on the Defendants’ failure to maintain the stairs in a safe manner.
The stairs on which the Plaintiff had fallen were constructed in 2015 by an unnamed third party, TNT Construction. These stairs were later removed and replaced by the Defendants in June of 2024. Following the replacement of the stairs, Plaintiff’s counsel had retained an expert to prepare a report regarding the circumstances of the Plaintiff’s fall. Upon receipt of the report, Plaintiff’s counsel sought to amend their Statement of Claim to allow for an expanded grounds of negligence as described above.
Defence counsel argued that allowing such an amendment would result in prejudice to the Defendants due to the loss of key evidence (the removal and replacement of the stairs), the loss of an available remedy against a third-party (TNT Construction) due to the expiration of the applicable limitation period, and the extreme delay in bringing the motion.
Plaintiff’s counsel countered that the Defendants had ample opportunity to investigate third-party liability issues and that the loss of evidence was due to the Defendants’ own actions.
Justice Petrie went on to provide commentary on the liberal and generous approach taken by New Brunswick Courts with respect to requests to amend pleadings, stating that the courts “effectively only refus[e] such where actual prejudice can be established that cannot otherwise be compensated by an order of costs or an adjournment” [para 31]. He then clarified that refusals to amend only occur in rare circumstances, noting that “mere delay” would not be sufficient cause for refusal [para 32].
Justice Petrie stated that the Defendants were not put on notice of any issue regarding deficiently in design or construction and, additionally, there was no explanation for the Plaintiff’s delay in seeking an expert opinion. He concluded that the Defendants had established that this was a “rare circumstance” in which they would suffer actual prejudice [para 37]. The main impetus for his denial of the motion was the loss of evidence due to the replacement of the staircase which he stated gave rise to a substantial risk that a fair trial would not be possible were the motion to amend be permitted. Although not necessary to allow him to deny the motion to amend, Justice Petrie also accepted the Defendants’ argument with respect to the prejudicial loss of remedy against TNT Construction. The Plaintiff’s motion was dismissed with costs payable to the Defendants.
