Robert Karass

Royal Bank of Canada (RBC), as assignee of Monster Snacks Inc., moved for leave to amend the statement of claim to name itself as plaintiff and particularize allegations against the defendant.

The defendant opposed, arguing the proposed amendments pleaded new, statute-barred facts and causes of action, and did not comply with pleading rules.

The court granted an unopposed order to continue the action with RBC as plaintiff but dismissed the motion to amend.

The court found that the proposed amendments introduced fundamentally different, statute-barred claims based on new facts not originally pleaded, and that the pleading itself failed to comply with the rules of pleading, particularly regarding misrepresentation particulars.

Costs were awarded to the defendant.

The plaintiff noted several defendants in default.

The Vaughan Defendants and Antonio Gentile brought motions to set aside the noting in default.

The plaintiff argued that a motion to strike the statement of claim was not a step in defending the action, and that statements of defence were still required.

The court found that serving a notice of motion to strike the claim constitutes a step in the proceeding, making the noting in default irregular.

Additionally, the defendants met the criteria under Rule 19.03 for setting aside default.

The court set aside the noting in default for all defendants and awarded partial indemnity costs of $7,000 to both the Vaughan Defendants and Antonio Gentile, payable by the plaintiff.