Basarsky v. Quinlan

Basarsky v. Quinlan

The rule in Weldon v. Neal is not absolute; a court may allow an amendment that would otherwise be time‑barred where special circumstances exist that remove any real prejudice to the defendant — here liability and all material facts were pleaded and admitted and discovery disclosed the particulars relevant to the Fatal Accidents Act — therefore the amendment adding a Fatal Accidents Act claim must be permitted.

Citation
[1972] SCR 380
Parties
Plaintiff Appellant: Nick Albert Basarsky, Administrator of the Estate of Gordon Stewart Onishenko; Defendant Respondent: Joe Quinlan; Defendant Respondent: Eileen Quinlan
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
5 October 1971
Procedural Posture
Civil Wrongful Death Action for Damages Under Trustee Act and Fatal Accidents Act / Appeal to the Supreme Court of Canada From the Supreme Court of Alberta, Appellate Division
Outcome
Appeal allowed
Legal Topics
Amendment of Pleadings, Statute of Limitations, Fatal Accidents Act, Trustee Act, Leave to Amend, Practice and Procedure
Source Language
English
Civil Procedure Tort Law Statute of Limitations Representative Actions Amendment of Pleadings Fatal Accidents Act Trustee Act Leave to Amend +1 more

Case Brief

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Parties

Nick Albert Basarsky, Administrator of the Estate of Gordon Stewart Onishenko

Plaintiff Appellant

Joe Quinlan

Defendant Respondent

Eileen Quinlan

Defendant Respondent

Procedural Posture

Civil Wrongful Death Action for Damages Under Trustee Act and Fatal Accidents Act / Appeal to the Supreme Court of Canada From the Supreme Court of Alberta, Appellate Division

Legal Issues

  1. 1 Whether a plaintiff may amend a statement of claim to add a cause of action under a statute where the limitation period has expired
  2. 2 Whether the rule in Weldon v. Neal prohibiting such amendments is absolute or admits exceptions
  3. 3 Whether the defendants would be prejudiced by the proposed amendment

Ratio Decidendi

The rule in Weldon v. Neal is not absolute; a court may allow an amendment that would otherwise be time‑barred where special circumstances exist that remove any real prejudice to the defendant — here liability and all material facts were pleaded and admitted and discovery disclosed the particulars relevant to the Fatal Accidents Act — therefore the amendment adding a Fatal Accidents Act claim must be permitted.

Court Disposition

Appeal allowed

Orders

  • Statement of claim amended as requested to add paragraphs 7(a) and 7(b) and to change the prayer to include a claim under the Fatal Accidents Act
  • Appellant awarded costs in this Court and in the Appellate Division