Saskatchewan Court of Appeal allows appeal that is “cannibalization” of original proceedings

Saskatchewan’s Court of Appeal has allowed an appeal to make changes to a statement of claim after the expiry of the applicable limitation period.
The proposed amendments involve a complete “cannibalization of the original proceedings” in The Insurance Company of the State of Pennsylvania (ICSOP) v. Cameco Corporation, wrote Justice R.G. Richards, a member of the three-judge panel of the Court of Appeal.
Nevertheless, the appellate court allowed the amendments on the grounds that the province’s Limitations Act did not expressly address the magnitude of such changes.
Cameco Corporation in October 1995 incurred potential liability to the families of 10 individuals killed in a helicopter crash.
In 1996, nine of the 10 families filed an action against Cameco in Saskatchewan; the trustee of the tenth victim filed an action in British Columbia. The respondent, Associated Aviation Underwriters Inc. (now Global Aerospace Inc.), assumed Cameco’s defence.
ICSOP denied its policy with Cameco provided any coverage for either the Saskatchewan or British Columbia actions. American Home Assurance Company’s policy provided excess coverage, but it also denied coverage.
Cameco pleaded it had been put to the defence of the Saskatchewan action and faced possible liability for damages, costs and interest. The statement of claim made no reference to the B.C. action, Richards wrote.
Cameco alleged that ICSOP, American Home and Commonwealth Insurance Company had neglected or refused to pay legal, defence, investigation, negotiation and settlement costs as required by their respective insurance policies with Cameco.
By February 2005, Global had fully settled all of the claims against Cameco arising out of the helicopter crash and had fully indemnified Cameco in relation to the claim.
In April 2007, Global not Cameco filed an application requesting radical changes to Cameco’s statement of claim. These changes included:
it sought to substitute itself for Cameco as plaintiff and to delete Cameco as a party to the action.
it asked to have Commonwealth deleted as a defendant.
it requested leave to make wholesale changes to the body of the statement of claim by dramatically striking, adding and amending paragraphs in order to convert that pleading into a claim by Global for contribution by ICSOP and American Home toward Global’s cost of indemnifying Cameco; and
it sought to extend the scope of the claim to include not only the Saskatchewan action, but the B.C. action as well.
“As is readily apparent, the amendments not only introduce a wholly new plaintiff and a new cause of action and abandon any claim against one defendant, they also eliminate the original plaintiff and the original cause of action and extend the proceedings to include new subject matter,” Richards wrote.
Amendments of such “far reaching significance are not contemplated by s. 20 of the Limitations Act” and the appeal is allowed, decided the majority of the panel.