The defendant brought a motion on the eve of trial seeking leave to amend his statement of defence to plead misrepresentation and promissory estoppel based on an email allegedly sent by the plaintiff’s representative before execution of a personal guarantee.
The plaintiff opposed the amendment, arguing the proposed defence was untenable because the guarantee was a full recourse guarantee containing an entire agreement clause and executed with independent legal advice.
The court acknowledged concerns about the merits of the proposed defence and the timing of the motion, but emphasized that amendments should generally be permitted unless non-compensable prejudice results.
The court found the email raised a sufficiently arguable issue regarding the defendant’s understanding of the guarantee.
Leave to amend was therefore granted so that the issue could be adjudicated at trial.
