Terrigno Investments Inc v Farrell, 2021 ABQB 311

Court of Queen’s Bench of Alberta Citation: Terrigno Investments Inc v Farrell, 2021 ABQB 311 Date: 20210421 Docket: 1701 06436 Registry: Calgary Between: Terrigno Investments Inc., Rocco Terrigno, Mike Terrigno, Antonietta Terrigno and Maurizio Terrigno Plaintiffs - and - Druh Farrell Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice R.J. Hall _______________________________________________________ [ 1 ] The Plaintiffs seek to amend their Statement of Claim, for a fourth time.

The Defendant objects to some of the proposed amendments. [ 2 ] The law regarding amendments to a Statement of Claim after pleadings have closed is that amendments will generally be allowed, subject to four major exceptions: 1. The amendment would cause serious prejudice to the opposing party, not compensable in costs; 2. The amended claim is hopeless; 3. Unless permitted by statute, the amendment seeks to add a new party or new cause of action after the expiry of a limitation period; or

4. There is an element of bad faith associated with the failure to plead the amendment in the first place. [ 3 ] The Plaintiffs first filed this application in October of 2019, but did not attach the proposed amendments. The Plaintiffs did attach proposed amendments in an affidavit in January of 2020; though not exactly the same as what is presently sought. Covid 19 had some effect on these proceedings. The Plaintiffs’ application to amend was again filed February 22, 2021. The actual proposed wording of the Amendments was appended to an affidavit served March 21, 2021.

The Plaintiffs note that is the same as in the January 2020 affidavit, but with a better job having been done, of underlining the proposed amendments. [ 4 ] The Plaintiffs say, in evaluating the passage of any limitation period, I should be considering either the date of the original application to amend (October 2019) or the date the intended amendments were first put forth in Mr.

Michael Terrigno’s affidavit (January 2020), as being the date the request was made, rather than using some later date, such as the date of this hearing, or the March 17, 2021 date when these exact amendments were provided by affidavit for the first time. [ 5 ] As the proposed amendments are, to all intents and purposes, those that were disclosed in the January 2020 affidavit, I use that date as the effective date of this application. [ 6 ] Part of the question before me is whether each amended claim was, at that time, barred by the Limitations Act. [ 7 ] The previous, three times Amended Statement of Claim pleaded, at paragraph 37: 37.

The Defendant has made repeated defamatory comments in or around 2015, injurious falsehood, and innuendo raising an apprehension of bias towards the Plaintiff, Terrigno Investments Inc.and its principals including but not limited to: i. In or around 2015 (but only discovered by the Plaintiff, Terrigno Investments Inc. until in or around April 2017), that the principals of the Plaintiff, Terrigno Investments Inc. are “criminals”, “mafia”, “gangsters”, involved with Mafia”, and a “members(

s) of the mafia” (all of which is ^ untrue).

For example, she told the Plaintiff, Terrigno Investments Inc. ‘s architects, JEREMY STURGESS and JEFF ANGEL the foregoing. ^ The Defendant also made these representations publicly at City Hall to other city councillors and staff, the particulars of which to be proven at the trial of this action. [ 8 ] The Plaintiffs argue that, to the extent that the disputed amendments simply provide further and better particulars of representations made by the defendant publicly at City Hall to city councillors and staff, they are not added claims and cannot be barred by the Limitations Act .

I agree. [ 9 ] I am further satisfied by the affidavit evidence of Mr. Michael Terrigno that the specifics of these alleged conversations only became known to the Plaintiffs in the summer and fall of 2018. These specifics were proposed to be pleaded in January 2020, which is within 2 years of the particulars having been discovered. Mr. Terrigno was not cross examined on his affidavit evidence in that regard. [ 10 ] Messrs. Chabot, Carra, Chu and Magliocca were all city councillors. The intended amendments related to Chabot (39 (

c) iii), Carra (39 (

c) ix), Magliocca (39 (

c) xi and xiii) and Chu (39 (

c) vii) are permitted. [ 11 ] Mr. Jonathon Denis was not a city councillor or staff at City Hall, so it cannot be said that the proposed amendment alleging statements made by the defendant to Mr. Denis are particulars of previously pleaded claims. However, Mr. Michael Terrigno’s affidavit evidence is that the alleged representation to Mr. Denis became known to the Plaintiffs in July 2018. Therefore, it is not clearly barred by the Limitations Act. [ 12 ] Accordingly, I permit the proposed amendments that allege representations by the defendant to Mr.

Jonathon Denis. [ 13 ] The Defendant has argued that the amended allegations are too vague to be allowed and that such vagueness unjustly prejudices the Defendant. I disagree. The substance of the alleged representation is pleaded. [ 14 ] The Defendant is entitled to file an amended statement of defence in response to the permitted amendments, and is not prohibited from raising a defence based upon the Limitations Act. Heard on the 12 th day of April, 2021. Dated at the City of Calgary, Alberta this 21 st day of April, 2021. R.J. Hall J.C.Q.B.A. Appearances: Michael Terrigno

Self Represented Christopher Souster For the remaining Plaintiffs Kelsey Becker Brookes for the Defendant