The appellant sought to amend its statement of claim to add a claim for breach of contractual warranty after its original claim for negligent design was dismissed by summary judgment.
The motion judge refused the amendment, finding it would cause non-compensable prejudice and require the withdrawal of an admission.
The Court of Appeal allowed the appeal, holding that the prejudice relied upon (death of witnesses, destruction of documents, alteration of the plant) existed before the action was commenced and therefore did not result from the proposed amendment.
The Court also found that the original pleading did not contain an admission precluding the amendment.
