EllisDon Corp v Winnipeg Date:, 2016 MBCA 62

Citation: EllisDon Corp v Winnipeg Date: 20160606 Airports Authority Inc et al, 2016 MBCA 62 Docket: AI15-30-08493 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Madam Justice Barbara M. Hamilton Mr. Justice Christopher J. Mainella BETWEEN : ELLISDON CORPORATION ) ) (Plaintiff/Defendant by Counterclaim) Respondent ) ) ) - and - ) ) WINNIPEG AIRPORTS AUTHORITY INC. ) S. J. Hammel, Q.C. and ) D. A. Chicoine (Defendant/Plaintiff by Counterclaim) Appellant ) for the Appellant ) - and - ) ) J. M.

Woolley STANTEC ARCHITECTURE LTD. ) for the Respondent ) EllisDon Corporation (Third Party) Respondent ) ) - and - ) K. A. Duff ) for the Respondent ALLIANZ GLOBAL RISKS US INSURANCE ) Stantec Architecture Ltd.

COMPANY and AECOM CANADA LTD. ) ) (Third Parties) ) Appeal heard and ) Decision pronounced: - and - ) June 6, 2016 ) PARSONS CANADA LTD. ) ) (Fourth Party) ) ) - and - ) ) ABCO-MODERN JV INC., MAPLE ) TERRAZZO MARBLE & TILE ) INCORPORATED, JOHNSON CONTROLS ) LP, VISION ALMET LIMITED, AZIMUTH ) THREE ENTERPRISES INC. and ) GIBRALTAR CONCRETE CANADA LTD. ) ) (Third Parties to the Counterclaim) ) ) - and - ) ) FRANKLIN TERRAZZO COMPANY INC., ) MAPEI INC., PRIMCO LIMITED, DUROX ) FLOOR ACCESSORIES LIMITED, DUROX ) FLOOR ACCESSORIES PS

(2003) CORP. and ) DUROX FLOOR ACCESSORIES PS INC. ) ) (Fourth Parties to the Counterclaim) )

) - and - ) ) ROMSTAR ONTARIO MARBLE & TILES, ) MIHAIL and VIOREL MIHAI ) ) (Fifth Parties to the Counterclaim)) CHARTIER CJM (for the Court): [1] Winnipeg Airports Authority (WAA) appeals the decision of the motion judge, who is also the case managementjudge, dismissing its request for leave to amend its statement of defence and counterclaim to add several new claims against EllisDonCorporation (EllisDon) and to add a head of damage in its indemnity claim against the third party Stantec Architecture Ltd. (Stantec). Atthe conclusion of the hearing, we dismissed the appeal with brief reasons to follow.

These are those reasons. [2] Viewed in the abstract, the motion judge’s decision to not allow WAA to amend its pleadings more than a year beforethe scheduled trial date appears abnormal. Indeed, this Court has said on numerous occasions that the general practice is to allowamendments virtually at any time up to the date of trial (see Ranjoy Sales and Leasing Ltd et al v Deloitte, Haskins & Sells (1989), (MB KB), 62 ManR (2d) 65 (QB), aff’d (1990), (MB CA), 63 ManR (2d) 248 (CA)).

However, adifferent perspective emerges when his decision is viewed in the context of the manner in which the parties agreed to manage the pre-trial process. [3] In this case, the parties sought, and agreed, to take

part in a case management process to move this large claimregarding the construction and design of an airport forward as expeditiously and efficiently as possible. They agreed to certain deadlines,including that all pleadings would be closed, without leave of the court, by December 1, 2014, and that the delivery of all affidavits ofdocuments would take place by December 19, 2014. A case management memorandum reflecting these timelines was issued by themotion judge. A case management memorandum is like a pre-trial memorandum.

Pursuant to Manitoba, Court of Queen’s Bench Rules,Man Reg 553/88, r 50.01(8.1), the terms of a pre-trial memorandum are binding on the parties unless the judge presiding at the trialorders otherwise. On May 15, 2015, almost half a year past the deadline for the close of pleadings, WAA moved to amend its pleadingsto add the new claims against EllisDon and Stantec. [4] Rule 26 governs the circumstances under which amendments may be made to a pleading.

Rule 26.01 states that, “atany stage of an action”, the court may grant leave to amend a pleading on such terms as are just, unless prejudice would result that couldnot be compensated for by costs or an adjournment. The leading case on r 26 is Ranjoy, which identifies four factors for consideration.Since all counsel endorsed the case management deadlines, the effect the amendments would have on those timelines became anotherrelevant factor. [5] WAA submitted that the motion judge failed to expressly consider the factors set out in Ranjoy and failed to give themappropriate weight and consideration.

We do not agree. His reasons show otherwise. The motion judge noted that the parties hadagreed to a timeline by which the litigation was to proceed. He directed himself to r 26.01 and considered and weighed all four Ranjoyfactors. More importantly, a fair reading of his reasons shows he turned his mind to issues raised by WAA. [6] WAA also submitted that the motion judge overemphasized the “seriousness of the prejudice” factor. We disagree. There can be no doubt that the prejudice factor tipped the balance towards denying the leave request. Tipping is not overemphasizing.

The motion judge found that the proposed amendments were not minor in nature. He concluded that they introduced new claims andpotentially opened the litigation to further discovery and to further new parties, thereby threatening to delay this matter for a lengthyperiod of time. In our view, his conclusion, that the parties in the litigation would suffer serious prejudice, was one that he was entitledto draw on the record of the proceedings. [7] In the end, the critical issue on this appeal was whether the motion judge exercised his discretion reasonably.

Appellate intervention is only warranted if the motion judge erred in principle, misapprehended the evidence in a material way or was soclearly wrong as to amount to an injustice. Despite the able argument of counsel for WAA, we have not been convinced that he so erred. With the benefit of two years’ experience in dealing with this litigation, the motion judge fully understood the factual context. In ourview, he exercised his discretion appropriately. We see no injustice in the circumstances. [8] For these reasons, the appeal was dismissed with costs in favour of EllisDon and Stantec. CJM JA

JA