J. 1999 SKQB 270 Q.B. A.D. 1995 No. 2004 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: JANINE KOROLUK and ELOISE KOSTIUK and FRED KOSTIUK DEFENDANTS Patrick Loran for the plaintiff Tim Stodalka for the defendants FIAT D.H. WRIGHT J. December 29, 1999 INTRODUCTION [1] The defendants sought to amend their statement of defence at the opening of the trial to plead, in effect, Accord and Satisfaction. The application was opposed. The trial judge directed the defendants to proceed by notice of motion in chambers, and the trial was adjourned. [2] This action was commenced in 1995 and proceeded to discovery of documents, examinations for discovery and pre-trial conference. It was set down for trial at Saskatoon, and the trial commenced on October 25, 1999. At the opening the defendants applied to amend their statement of defence by pleading Accord and Satisfaction. The plea was based on the allegation that the parties had settled their differences in October, 1988, as a result of negotiations between the solicitors then representing the parties. [3] The defendants’ application came before me in chambers on November 25, 1999. THE PLEADINGS AND PROPOSED AMENDMENTS [4] The plaintiff sued the defendants for breaches of trust. The defendants categorically denied the allegations and stated that any property which they held for her was delivered to her many years ago. This plea is epitomized by the wording of para. of the statement of defence and quote: 4. In the alternative, if the Defendants did hold property in trust for the Plaintiff as alleged, which is not admitted but denied, the Defendants state that any and all property so held was transferred into the sole possession of the Plaintiff on or before October of 1988. The defendants also counterclaim for other monies which are not relevant to this application. [5] The applicants (defendants) wish to add the following paragraphs to their defence: 4A. Further, or in the alternative, the Defendants say that pursuant to an agreement between the parties as particularized in part by correspondence from the Plaintiff’s former solicitor, Mr. Laurie Burrows, then of the Mackenzie Nussbaum Burrows Law Firm of Saskatoon, dated April 12, 1989 to the Defendant’s lawyer, Pamela Cuelenaere, of the Cuelenaere, Beaubier, Kendall Fisher Gaucher Law Firm, the parties settled all matters at issue. The Defendants in pursuance of the April 12, 1989 Agreement, on or about April 15, 1989 duly delivered certain chattels to the Plaintiff and the Defendant, Eloise Kostiuk, did not proceed with an action against the Plaintiff for her breach of the October 30, 1989 Agreement whereby the Plaintiff wrongfully failed to transfer $9,677.00 to the Defendant Eloise Kostiuk as particularized in paragraph of the Counterclaim. 4B. Further or in the alternative, the Defendants plead s. 64 of the Queen’s Bench Act, S.S. 1998, c. Q-1 (formerly s. 45.7) and say that the said April 12, 1989 letter constitutes the Plaintiff’s express acceptance of the Defendants’ performance of their trustee obligations. Further, or in the alternative, the Defendants’ actions as outlined in paragraph 4A were rendered pursuant to an agreement for satisfaction of the obligation. [6] Elaine Kostiuk swore an affidavit in support of the application. It contains several statements consider significant. recognize it is not appropriate for me to enter into consideration of the evidence on this application. may, however, look at the existing pleading and consider it in the light of the proposed amendments. Ms. Kostiuk says, in answer to the respondent’s complaint that the amendments are “novel” and not raised before, that para. (supra) reflects the plea of settlement. It does not. It says the applicants transferred any property they held in trust for the respondent to her in October, 1988 and nothing more. That is not plea of Accord and Satisfaction or settlement. [7] The proposed amendments raise specifically the plea of Accord and Satisfaction. It is an affirmative defence. [8] Ms. Kostiuk also makes the following statement in para. of her affidavit: 9. had always considered that all of the matters at issue between my husband and and my daughter, Janine Koroluk, had been resolved in 1988 and 1989. That statement constitutes formal admission that the applicants had known of the alleged settlement as early as October, 1988 and discussed the matter with their solicitor of the day. [9] Counsel referred to several authorities but relied primarily on two: International Minerals Chemicals Corp. (Canada) Ltd. et al. v. Commonwealth Insurance Co. et al. (1990), 1990 CanLII 7419 (SK QB), 85 Sask. R. 304 (Q.B.) and Royal Bank of Canada v. Roles et al. (1992), 1992 CanLII 8097 (SK QB), 98 Sask. R. 146 (Q.B.). have reviewed both at length and The Queen’s Bench Rules of Saskatchewan: Annotated. also reviewed Queen’s Bench Rule 153 and it is relevant to quote it here: 153 party shall plead specifically any matter, fact or point of law which: (a) makes claim or defence of the other party not maintainable; or (b) if not specifically pleaded, might take the other party by surprise; or (c) raises issues not arising out of the preceding pleadings. Applicants’ counsel relied on the decision in International Minerals Chemicals Corp. (Canada) Ltd. et al. v. Commonwealth Insurance Co. et al. and quote from the extract cited in his brief: The plaintiffs contend there is another principle which must be considered. They say the material filed on the application must show that the proposed amendment presents an issue worthy of trial and is prima facie meritorious. This proposition does not appear to have taken root in Saskatchewan practice. Moreover, the accuracy of the proposition has been challenged in Ontario. am of the view that it would be improper for me to assess the material filed on this application with the purpose of determining if the proposed amendment is worthy of trial. Assessing evidence is solely the function of the trial judge. On the question of the merits of the application, am limited to deciding whether there is prima facie meritorious claim set forth in the proposed pleading itself. Here the pleading clearly meets the test. respectfully agree with that statement. The respondents rely on my decision in Roles v. Royal Bank which was an application at trial to amend statement of defence. The application raised number of issues that are similar to those now before me. [10] This application cannot succeed for variety of reasons. The action extended over four years and was, to all intents and purposes, ready for trial on October 25. The amendments proposed raise new and unexpected issues. The applicants can provide no explanation for their long delay in bringing these matters forward, particularly in light of the allegations in para. 4 and para. 9 of Ms. Kostiuk’s affidavit. There is no explanation as to why counsel did not alert counsel for the respondent at least before the trial and at the very least at a time when the matter could have been adjourned without any additional cost or inconvenience to the parties. There is no explanation as to why the motion was presented at the opening of the trial. [11] If the amendment were granted, it would mark a significant change in the course of the action: Roles v. Royal Bank.  It would result, as respondent’s counsel points out, in further discoveries, examinations for discoveries and presumably a further pre-trial conference to address the completely new questions raised by the amendments. I have commented already on the fact that the applicants’ did not raise this new and substantive plea until the opening of the trial, but I also need to underscore the fact that the applicants are guilty of inexcusable laches in bringing the application. Why should 11 years pass before this issue is presented as significant and alternative plea to their oft-stated position that they are in no way liable for any breaches of trust? One would expect such plea to have been raised as the principal plea and in the first instance and without equivocation. The passage of time can only reflect on their own bona fides in this matter. [12] For all of these reasons, the application must be dismissed. do so and fix the costs at $400.00 to be paid by the applicants within 30 days. Counsel for the applicants urged me not to order payment forthwith, but have no hesitation in doing so in light of the conclusions have reached about the applicants’ motives in bringing the application. [13] Before ending my decision, must comment on one other matter. Counsel for the applicants applied for leave to argue his motion by telephone. refused leave. This was substantive motion. Argument occupied some considerable time in chambers and involved lengthy submissions by counsel. It was not proper matter to be conducted by telephone, nor is any substantive matter, no matter how much it may convenience counsel in particular case.
FIAT. The defendants sought to amend their statement of defence at the opening of trial. They applied to include accord and satisfaction as a defence, alleging that the parties had settled their differences through negotiations and the transfer of property 11 years earlier. Application opposed. Trial adjourned while motion heard in chambers. HELD: Application denied. This action extended over 4 years and was ready for trial. The applicants had no explanation for the delay in bring this matter. There was also no explanation for why the applicants' counsel did not alert the respondent's counsel before the trail or at least at a time when the matter could have been adjourned without additional cost or inconvenience. The applicants are guilty of inexcusable laches. The proposed amendments raised new and unexpected issues. It would be a significant change in the course of the action resulting in further discoveries, examinations, etc. to address the completely new questions raised by the amendments. Applicants to pay costs within 30 days. Applicants' request for leave to argue this motion by phone was refused as it was a substantive motion involving lengthy submissions by counsel.