Joinder

In the world of estate law, litigation is often unavoidable. Sometimes, facts and players will emerge after the initial pleadings stage, i.e., after litigation has already begun.

In that case, a notice of application or statement of claim must be amended to add further respondents who are not already part of the litigation. This addition of new parties is also called “joinder”. Joinder is addressed under Rule 26.01 and subrule 5.04(2) of the Rules of Civil Procedure.

Rule 26 states: “On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.”

Subrule 5.04(2) states: “At any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment”.

The Plante Test

The test for joinder is set out in Plante v. Industrial Alliance Life Insurance. In this case, the Court considered the following six criteria to be met by the party requesting joinder, despite a potential limitations issue:

(a) The amendments must not result in irremediable prejudice;
(b) The amended pleading must be legally tenable;
(c) The proposed amendments must otherwise comply with the rules of the pleading;
(d) Joinder should be appropriate under subrule 5.02(2) or required under rule 5.03;
(e) Joinder should not be inappropriate under subrule 5.03(6) or rule 5.05;
(f) The addition of the proposed party must not be an abuse of process.

On (a), irremediable prejudice refers to prejudice which involves more than costs or money. For instance, prejudice may be irremediable where it would be unfair to add a party at a very late stage of litigation.

On (b), the proposed amendments, in this case to add a party, must be legally tenable. The Court must decide if whether the facts, as pleaded, discloses a cause of action. A request for joinder may be denied when there is no reasonable cause of action against the new proposed party to be added.

On (c), the proposed amendments, in this case to add a party, must otherwise comply with applicable rules of pleadings. For instance, they should not be scandalous, frivolous or vexatious, or amount to an abuse of process.

On (d), joinder must either be appropriate under subrule 5.02(2) or required under rule 5.03. Regarding 5.02(2), joinder is appropriate in cases where there are common questions of law or fact, or, if it appears that the joinder would promote the convenient administration of justice. Regarding 5.03, every person whose presence which is necessary to enable the court to adjudicate effectively and completely on the issues should be joined as a party.

On (e), joinder should not unduly complicate or delay any hearings, or cause undue prejudice to a party.

On (f), the addition of the proposed party must not be an abuse of process.

The Take-away

In addition to the above, it is worth remembering that the relief for joinder is ultimately discretionary. Courts will consider, on a case-by-case basis, whether or not joinder should be granted. The guiding principles at hand are judicial efficiency and fairness.