Executive Summary: Key Legal and Evidentiary Issues

• The central issue is whether the court should grant leave to the Plaintiff to further amend its Statement of Claim on the eve of a pending summary judgment motion.
• Rule 27.10 of the New Brunswick Rules of Court governs amendments to pleadings and permits leave unless prejudice results that cannot be remedied by costs or an adjournment.
• Amendments to pleadings are generally allowed, even if late or careless, provided the opposing party is not irreparably prejudiced.
• Filed just seven days before the summary judgment hearing, the Plaintiff's proposed amendment expanded the Statement of Claim from 11 to 34 pages and introduced several new causes of action.
• Granting leave risked requiring additional discoveries, a further amended defence, and further delay of the summary judgment motion and scheduled trial dates.
• Prejudice to the Defendants was found to be compensable by an adjournment and a costs award, making denial of the amendment unwarranted in the circumstances.

Facts of the case

On April 13, 2022, the Defendant City of Moncton authorized the demolition of an investment property owned by the Plaintiff, 707461 NB Ltd., located at 17 Spruce Street. Stacy Losier, a by-law enforcement officer employed by the City, had carriage of the file. The Plaintiff commenced an action against the Defendants on November 25, 2022, bearing cause number MC-706-2022, but discontinued it by filing a Notice of Discontinuance on February 27, 2023. A new Notice of Action with Statement of Claim Attached was filed on February 21, 2023, under matter number MC-133-2023. The Plaintiff filed an Amended Notice of Action with Statement of Claim Attached on July 8, 2024, and the Defendants filed an Amended Statement of Defence on October 4, 2024. The Defendants subsequently filed a motion for summary judgment on November 6, 2025, scheduled to be heard on March 30, 2026. On March 20, 2026, the Defendants served their pre-hearing brief in support of the summary judgment motion. On March 22, 2026, the Plaintiff forwarded to Defence counsel a proposed further Amended Statement of Claim — a 123-paragraph document — and on March 23, 2026, filed the present Notice of Motion seeking leave to amend.

Relevant rules and legal framework

The governing provision is Rule 27.10(1) of the New Brunswick Rules of Court, which provides that unless prejudice will result that cannot be compensated for by costs or an adjournment, the court may at any stage of an action grant leave to amend any pleading on such terms as may be just. Rule 27.10(2) further specifies the circumstances under which amendments may be made — with leave of the court being one such avenue. The broader interpretive context is supplied by Rule 1.03, which directs that the Rules be liberally construed to secure the just, least expensive, and most expeditious determination of every proceeding on the merits.

Reasoning and analysis

Chief Justice DeWare applied the principles established in Enbridge Gas New Brunswick Inc. v. Modern Construction (1983) Ltd., 2003 NBCA 78, which affirmed that amendments complying with the pleading rules should only very rarely be refused. The Court also considered Algo Enterprises Ltd. and NBP Enterprises Inc. v. REPAP New Brunswick Inc., 2013 NBQB 176, and the framework set out by Justice Morrison in Bigfoot Inc. v. Alberta Safety First Ltd. et al., 2025 NBKB 104 (CanLII). That framework identifies circumstances where amendments will generally be accepted and, conversely, the very limited circumstances where they may be denied — such as where the amended pleading raises a statute-barred cause of action, introduces clearly irrelevant facts, or would not disclose a reasonable cause of action if challenged by a motion to strike.

The Defendants argued that the proposed amendment was not truly an amendment but an entirely new pleading, expanding the Statement of Claim from 11 to 34 pages and introducing new causes of action — including wrongful demolition, direct liability of the City, negligent misrepresentation, estoppel, procedural fairness issues, and abuse of statutory discretion — beyond those already pleaded (misfeasance in public office, negligence, trespass on land, and trespass on grounds). They further contended that the request was a last-ditch attempt to delay the inevitable outcome of the summary judgment motion, coming after discoveries had been completed, trial dates set for October 6–9, 2026, and a settlement conference scheduled for August 2026. The Court acknowledged that the amendment was both careless and late, and that it risked necessitating additional discoveries and a further amended defence. However, Chief Justice DeWare distinguished the circumstances from Bigfoot Inc., where the proposed amendment would have transformed the entire character of the litigation and dramatically expanded financial exposure. Here, the new causes of action related to the same alleged damages and formed part of the ongoing allegations. The Court was unable to conclude at that stage that the amended pleading failed to disclose a reasonable cause of action.

Ruling and outcome

Chief Justice DeWare granted the Plaintiff's request to amend its Statement of Claim, finding that the prejudice to the Defendants could be remedied by an adjournment and a costs award. The Plaintiff, 707461 NB Ltd., was ordered to pay $3,000.00 in costs to the Defendants' solicitor within 15 days of the date of the order. The hearing of the Summary Judgment Motion was rescheduled to August 27, 2026 — the date previously set for the settlement conference — and the trial dates of October 6–9, 2026 were adjourned pending the outcome of the summary judgment motion.