COURT CASES on AMENDMENT of PLEADINGS

 

Rule 6-1 of the British Columbia Supreme Court Civil Rules deals with the issue of amending pleadings.

 

In T.J.A. v. R.K.M., the Defendant sought to amend its’ pleadings by introducing the defences of absolute and qualified privilege, however the Plaintiff refused to agree, claiming he would be prejudiced by the amendments. The Court allowed the amendments.

 

[12]         Rule 6 – 1 (1) (b) (i) provides:

 

Rule 6-1 — Amendment of Pleadings

 

When pleadings may be amended

 

(1) Subject to Rules 6-2 (7) and (10) and 7-7 (5), a party may amend the whole or any part of a pleading filed by the party

(a) once without leave of the court, at any time before the earlier of the following:

(i) the date of service of the notice of trial, and

(ii) the date a case planning conference is held, or

(b) after the earlier of the dates referred to in paragraph (a) of this subrule, only with

(i) leave of the court, or

(ii) written consent of the parties of record.

 

[13]         In Langret Investments v. McDonnell, BCCA March 18, 1996 C.A. 020285 Vancouver Registry, Rowles J.A. for the Court, considering the predecessor rule to 6-1(1)(b)(i), held:

 

Rule 24(1) of the Rules of Court of British Columbia allows a party to amend an originating process or pleading.  Amendments are allowed unless prejudice can be demonstrated by the opposite party or the amendment will be useless.

 

[14]         The rationale for allowing amendments is to enable the real issues to be determined.  The practice followed in civil matters when amendments are sought fulfills the fundamental objective of the Civil Rules which is to ensure the “just, speedy and inexpensive determination of every proceeding on the merits”.

 

In BRZ Holdings Inc. v. JER Envirotech International Corp., the Court confirmed that the test for amendments of pleadings remains the same under the new British Columbia Supreme Court Civil Rules, which became effective July 1, 2010, as under the previous Rules.

 

[5]             The plaintiff’s claim is currently set out in an amended statement of claim filed in August, 2010 (the “current pleading”).  That document is 18 pages long with 68 paragraphs.  The plaintiff now seeks to file a second amended statement of claim (the “proposed pleading”) that adds more that 30 new paragraphs (some of which include multiple subparagraphs) as well as amendments to some of the existing paragraphs.  Most, although not all of these, amendments are opposed.

 

[6]             Amendments to pleadings are now governed by Rule 6-1 of the Supreme Court Civil Rules, B.C. Reg. 168/ 2009 [Rules], which is similar to the former rule 24 in that amendments at this stage of the proceedings require leave of the court.  Cases decided under the former rule make clear that amendments will usually be allowed unless the opposite party can demonstrate actual, as opposed to potential, prejudice, or unless the amendments would be useless:  Langret Investments S.A. v. McDonnell (1996), 21 B.C.L.R. (3d) 145 (C.A.) at paras. 34 and 43.  The court’s discretion is “completely unfettered and subject only to the general rule that all such discretion is to be exercised judicially, in accordance with the evidence adduced and such guidelines as may appear from the authorities” [emphasis added]: Teal Cedar Products v. Dale Intermediaries Ltd. (1996), 19 B.C.L.R. (3d) 282 (C.A.) at para. 45.  Nothing in the new Rules suggests any change in the court’s approach.

 

[7]               The plaintiff says the proposed amendments allege facts that emerged through the discovery process and facts that have already been referred to in responses to demands for particulars.

 

[8]               The defendants object to some of the proposed amendments because they allege representations made to the plaintiff company before it existed or because they allege duties owed to Mr. Noshir Divecha, the principal of the plaintiff company, who is not a party to this action. The say the plaintiff company acquired no rights prior to the date of its incorporation and cannot allege reliance on representations made prior to that date.

 

[20]           The plaintiff does not plead its case as one based on professional negligence.  The “qualifications” are a defined term in the pleading and are not alleged to arise from any professional standards governing the preparation of financial statements.  The plaintiff apparently will not be calling any expert evidence.

 

[21]            Nevertheless, the proposed amendments allege that certain specific information should have been included in certain financial documents.  The plaintiff may not be alleging professional negligence, but if the defendants are able to adduce evidence that the documents were prepared in accordance with professional standards, that may go the question of whether they are a misrepresentation or to the reasonableness of the plaintiff’s reliance upon them.  If counsel for the plaintiff wishes this trial to proceed as scheduled, those paragraphs cannot be included in the second amended statement of claim.

 

[22]            I therefore allow the proposed amendments, with the exception of paragraphs 33, 82-85 and 88-89.

 

In Bedoret v. Badham, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim. Counsel for the Plaintiff received information from ICBC as to the identity of the Plaintiff, which turned out to be erroneous. The Plaintiff used this information when naming the Defendant in the initiating legal documentation. After the expiry of the limitation period, ICBC denied that the named Defendant was involved in the accident at all. The Plaintiff’s lawyer then tried to name ICBC as a nominal Defendant, however ICBC refused. The Plaintiff brought an application to amend the Notice of Civil Claim, however ICBC refused. ICBC’S position drew harsh criticism from the Court, who granted the Plaintiff’s application to amend.

 

[16]         ICBC takes the astonishing position in this application that plaintiff’s counsel should not have relied on the March 1, 2010 letter setting out the third party particulars. If that letter cannot be relied on by the plaintiff’s counsel, then I wonder what the purpose of sending the letter is. The plaintiff’s counsel submits, and I accept, that it is standard practice in the personal injury bar to send an introductory letter asking ICBC for particulars and for copies of statements. It is common practice to wait for the reply letter before issuing a notice of civil claim. No letter was ever sent to the plaintiff’s counsel advising him that the contents of the March 1, 2010 letter were incorrect. It was not until the response to civil claim was filed after the expiry of the limitation period that ICBC informed the plaintiff that the named third party was not the driver of the vehicle that caused the accident.

 

[17]         Now ICBC opposes the application to be added as a nominal defendant. It submits that the plaintiff knew or ought to have known that ICBC was handling this file as an unidentified motorist case despite the fact that the official letter from ICBC to his lawyer said exactly the opposite.

 

[32]         I find that it is just and convenient to add ICBC as a nominal defendant. I do not find the delay in applying to court to be inordinate. I will not order that the action against Mr. Badhan be discontinued. I will order that the misnomer be corrected.

 

[33]         As a result of the unreasonable position taken by ICBC in this case, I find that Scale B costs do not adequately compensate the plaintiff, and I order that the proposed defendant, ICBC, pay costs to the plaintiff in any event of the cause at Scale C.