APA Inc. Experts Conseils/Consultants and Forgeron Engineering Limited v. Fares Construction Ltd., 2025 NSCA 42
Reading time: 5 minutes (approx.)
By: Hayley Gardner (Articled Clerk)
A recent decision from the Nova Scotia Court of Appeal provides guidance to parties seeking to make late amendments to their pleadings by clarifying the grounds upon which judicial discretion should be exercised to allow such amendments.
This matter stems from the collapse of a crane at a construction site in downtown Halifax. Litigation commenced afterwards in the form of several actions launched against various parties who had been involved in the construction. Two of those parties, APA Experts and Forgeron Engineering, had already filed their Statements of Defence when they first became aware that the project had been insured under a builder’s risk insurance policy, which included liability coverage for all contractors and subcontractors on the project.
After learning about the existence of the policy, APA and Forgeron each filed a motion to amend their pleadings. They sought to add a defence which relied upon them being insured parties under the liability policy. The proposed amendments were denied by the Nova Scotia Supreme Court, and APA and Forgeron appealed the decision.
The Court of Appeal allowed the amendments and, in the process, provided some helpful insight into the proper exercise of judicial discretion on motions to amend.
In Nova Scotia, a late amendment to a pleading should be allowed if (1) it raises a justiciable issue, (2) it is proposed in good faith, and (3) it would not cause the other party serious prejudice that is non-compensable in costs. The amendments in this matter were denied by the motions judge on the first ground. As such, the only issue on appeal was whether the proposed amendments were justiciable.
Writing for the Court of Appeal, Justice Fichaud explained that justiciability, when considered on a motion to amend, should be assessed by the same standard that would apply on a motion for summary judgement. This means that a proposed pleading is not justiciable if it is absolutely unsustainable on its face. Assessing a judgement “on its face” means that the motions judge does not hear evidence nor decide contested facts pertaining to the merits of the case. Rather, the motions judge should assume the facts as they are pleaded or agreed to. Reliance upon a contested fact or a debatable submission on an issue of law or contractual interpretation does not render a proposed amendment absolutely unsustainable on its face.
The motions judge had found that the proposed pleadings were not justiciable based on the belief that APA and Forgeron would not be considered insured parties under the policy. This was an error in the application of the above principles, as it required the motions judge to engage in a contractual interpretation of the insurance policy. The Court of Appeal emphasized here that a party moving for an amendment has no evidentiary onus to prove the merits of its proposed pleading.
After considering the proposed amendments in accordance with the appropriate principles, the Court of Appeal overturned the decision of the motions judge and allowed the amendments of the pleadings.
