What is the test for an application to amend the statement of claim in the Abacus litigation?

Alberta, Canada


The following excerpt is from Iampen v. Royal Bank of Canada, 1987 CanLII 3465 (AB QB):

On appeal, Seaton, J.A., states at p. 365: "The 'gravamen', 'substance', 'real character' or 'true basis' of the plaintiffs' claim (to employ the words used in the cases analyzing questioned claims) is that the defendants, by improperly putting in a receiver, caused damage to the plaintiffs, that the defendants' purpose was to injure them and Abacus; that the result of the defendants' acts was the collapse of Abacus; and that the plaintiffs' shares went down in value, their dividends stopped, their control of Abacus was lost, their employment ceased and their reputations suffered. "All of the damages alleged were consequential in the sense that they flowed from the damage caused to Abacus. "The chambers judge held that as the damage alleged was consequential, not direct, the rule in Foss v. Harbottle [(1843), 2 Hare 461, 67 E.R. 189] applied. He held that the plaintiffs could not maintain such an action that only the company could recover for the defendants' conduct, if it was actionable at all. "He also held that the plaintiffs could not escape that result by alleging the tort of conspiracy; the need for direct damage, as opposed to consequential damage, continued. "I agree with Mr. Justice McKenzie. "The appellant has, at the conclusion of the argument, made an application to amend the statement of claim which has been amended a number of times before. We are told that the purpose of this application is to restate that which was not stated quite clearly enough and to state new matters. "To the extent that the proposed amendments are a cleaning up, I think that they are not necessary. We have not dealt in this appeal with technical defects or with details, but with the substance of the claims. To the extent that the proposed amendments offer new claims, in my view those claims do not clear the Foss v. Harbottle hurdle any better than their predecessors."

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