Amendment to reflect real name allowed despite 3.5-year delay: Alberta Court of Appeal

Noting of default was also set aside; late amendment allowed if no prejudice to defendant

Amendment to reflect real name allowed despite 3.5-year delay: Alberta Court of Appeal
Amendment to reflect true name of John Doe allowed

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.

Recent articles & video

Minister should have considered Charter rights of parents denied access to NWT French schools: SCC

Canadian Lawyer Employment Law Masterclass to tackle AI in the workplace and other pressing issues

Canadian Securities Administrators calls for comment on binding regime for investor-related dispute

Fifth annual Canadian Law Awards to recognize the legal sector's most outstanding

Alberta introduces new Family Justice Strategy to ensure uniform access to justice

White & Case expands global mergers and acquisition practice

Most Read Articles

Saskatchewan Health Authority wins case against orthopedic surgeon found to be vexatious litigant

Roundup of law firm hires, promotions, departures: Dec. 4, 2023 update

Two cases before SCC could 'fundamentally change' youth sentencing for serious crimes, says lawyer

How Karl Tabbakh's return to Canada helped him lead with a global focus at McCarthy Tetrault