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Leave granted to amend defence to plead misrepresentation despite entire agreement clause.
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.
Appeal and cross-appeal dismissed; trial judge's findings on construction contract damages and costs upheld.
The appellant appealed a trial judgment awarding the respondent the balance of a contract price for constructing and installing cabinets, while awarding the appellant damages on its counterclaim for repair costs.
The appellant argued that the respondent's failure to supply defect-free cabinets constituted a fundamental breach and that the trial judge erred in quantifying replacement costs.
The respondent cross-appealed the trial judge's decision to award no costs.
The Court of Appeal dismissed both the appeal and the cross-appeal, finding no evidence of fundamental breach, sufficient evidence to support the trial judge's damages quantification, and that the trial judge's costs disposition was within his discretion.
