ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Posts Tagged ‘Rule 6’

ICBC Allowed To Raise Late “WCB Defense” On Undertaking to Pay Equivalent Benefits

April 4th, 2018

Interesting reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, allowing a Defendant to make a late amendment to their pleadings to raise a WCB defense but in doing so the Court made the Defendant’s insurer promise to pay equivalent benefits to the Plaintiff should the defense succeed.

In today’s case (Roberts v. Pearson) the Plaintiff was involved in a collision and sued for damages.  More than three years after the crash the Defendant wished to raise, for the first time, the “WCB Defense”, namely an allegation that both parties were in the course of employment at the time of the crash thus stripping the Plaintiff’s right to sue and forcing him to rely on WCB for compensation.

The court granted the amendment.  However the court noted that since the limitation to seek WCB benefits expired the Plaintiff may have their right to sue stripped and be left with no recourse from WCB.  The court made the amendment conditional on the Defendant’s insurer “providing an undertaking that if the Workers Compensation Board determines that it has jurisdiction but refuses to extend the limitation period to allow the plaintiff benefits from the date of the accident, the insurance company will pay the equivalent of any benefits the plaintiff would have received save for the delay in making the application to the Board“.

In finding this result just Master Wilson provided the following reasons:

[32]         In this case, the first the plaintiff was aware that the defendant Pearson was working at the time of the accident was February 6, the same date Pearson advised that he took the position the plaintiff was also working. The s. 10 Defence is only applicable if both the plaintiff and the defendant were working. Even if the plaintiff were working at the time of the accident, he would not have known there was a possible bar to his claim until he became aware the defendant was also working.

[33]         The defendants also say that the undertaking should not be imposed because its imposition in Brzozowski and Eugenio was due to the delay between when the defendant was aware of a possible s. 10 Defence and when the application was actually brought. I do not read those cases that way. If the court’s concern had been the delay in bringing the application to amend the pleadings, the undertaking would presumably have only needed to address the prejudice resulting from when the defendant became aware of the s. 10 Defence and the filing of the application to amend.

[34]         The undertakings in Brzozowski and Eugenio are not so limited. Those undertakings required the defendant insurer to undertake to pay the equivalent of any benefits the plaintiff would have received but for the delay in making the application to the Workers Compensation Board without reference to the application to amend. I conclude that the undertaking was to address the prejudice to the plaintiff caused by the fact that the s. 10 Defence was raised after the expiration of the presumptive limitation period in s. 55(1) of the Workers Compensation Act.

[35]         Finally, the defendants say that if I am inclined to permit the amendment conditional upon the undertaking, that I should instead adjourn the application in order that the defendants have an opportunity to review the plaintiff’s entire employment file, which they say I should order produced at this time. I am not prepared to do this for two reasons:

a)    Production of the employment file would not be determinative of whether the plaintiff was acting within the scope of his employment at the time of the accident; and

b)    The determination of whether or not a person such as the plaintiff was within the scope of their employment is a matter within the sole jurisdiction of the Workers Compensation Board and is thus not something this court has the authority to decide.

[36]         In the circumstances, I am prepared to permit the defendants to amend their response to civil claim, conditional on their insurer providing an undertaking that if the Workers Compensation Board determines that it has jurisdiction but refuses to extend the limitation period to allow the plaintiff benefits from the date of the accident, the insurance company will pay the equivalent of any benefits the plaintiff would have received save for the delay in making the application to the Board, less any benefits paid to the plaintiff pursuant to Part 7.

[37]         The reference to benefits commencing at the date of the accident is to address the plaintiff’s concern that since more than three years has elapsed, there is a risk pursuant to s. 55(3.1) of the Workers Compensation Act that benefits would only be paid from the date of the application. This may or may not be a concern given that the plaintiff did not cease work entirely until 2016. The reference to Part 7 benefits already paid addresses the concern of the defendants as to the potential for double recovery.

[38]         In keeping with the court’s decisions in Brzozowski and Eugenio, costs of this application will be in the cause.


Plaintiff's Are "Entitled To Rely" On Representations of ICBC in Naming Defendants in Pleadings

November 20th, 2012

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing whether a party should be substituted in on-going litigation where the Defendant was incorrectly named due to representations of ICBC.  In short the Court held substitution should be permitted in such circumstances.

In this week’s case (Bedoret v. Badham) the Plaintiff was involved in a 2009 motor vehicle incident.  After retaining counsel ICBC wrote to the Plaintiff’s lawyer indicating that the other motorist involved in the incident was a Mr. Badham.  The Plaintiff initiated a lawsuit against this individual.  After the limitation period expired ICBC responded to the lawsuit denying that Mr. Badham was involved in the incident.  The Plaintiff then sought to name ICBC as a ‘nominal defendant’ pursuant to section 24 of the Insurance (Vehicle) Act.  ICBC opposed the application.   Master Young criticized ICBC’s position calling it ‘astonishing‘ and finding that an order adding ICBC to the litigation was appropriate and further went on to award increased costs.  In doing so the Court provided the following reasons:

[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…

[22]         …ICBC asserted to counsel for the plaintiff in the official first letter that Jaswinder Badhan was the driver of the vehicle. This was long after any discussions with the unrepresented plaintiff and in response to the standard letter sent at the commencement of all motor vehicle accident cases. Plaintiff’s counsel was entitled to rely on the information contained in the letter. If ICBC later learned that it was in error, it had a responsibility to correct that error so as not to mislead the plaintiff. Failing to do so until after the expiry of the limitation period and then opposing the amendment to the claim is unreasonable…

[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.


Limitation Periods Not Determinative When Adding Parties to Existing Litigation

July 31st, 2012

One of the exceptions to the strict application of limitation periods relates to adding parties to existing litigation.  In these circumstances an expired limitation period is not, in and of itself, a barrier to add a party to a lawsuit in the BC Supreme Court.  This was demonstrated in reasons for judgement released this week by the BC Supreme Court, New Westminster Registry.

In this week’s case (Haworth v. Haworth) the Plaintiff was injured while riding as a passenger in a vehicle driven by her husband in 2007.  The vehicle lost control in icy conditions.  She sued him for damages.  In the course of the lawsuit ICBC plead the “inevitable accident” defence and eventually added the appropriate road maintenance company as a Third Party.  The Plaintiff then sought to add this party as a  Defendant.  The Road Maintenance company objected arguing, among other matters, that the limitation period to sue them has expired.  Master Keighley found this unpersuasive and granted the Plaintiff’s application.  In doing so the Court provided the following reasons:

[39] There is, as previously confirmed, a presumption of prejudice if a proposed defendant will be deprived of a limitation defence by his addition as a party. Also, as previously indicated, the relevant period during which prejudice is to be assessed is that which follows the expiration, in this case, of the three year period following the date upon which the cause of action arose. The plaintiff will certainly suffer prejudice if her application is dismissed. She will lose a possible claim against a party or parties with potential liability. This issue, Wilson J. indicates in Walsh v. Blair, Vancouver Registry, Action No. M015646, BCSC, said as follows:

[22]      There is prejudice to the plaintiff in that if the application is not allowed, she will lose a right to claim against a party with potential liability. As noted in Takenaka v. Stanley (2000), 91 B.C.L.R. (3d) 179 (S.C. Master), that will usually outweigh the loss of a potential limitation defence to a potential defendant. Generally, the courts are reluctant to deprive a plaintiff of his or her day in court, so that the trend in the cases appears to be that it will take more than theoretical prejudice to outweigh the loss of that potential claim.

[40] The plaintiff’s potential peril becomes more significant when one considers that, should the application be dismissed, and should the present defendant succeed on the issue of unavoidable accident, she will be left without remedy although blameless with respect to the circumstances of the accident.

[41] Neither Her Majesty the Queen or Argo Thompson allege, as is often the case in such applications, that they have been prejudiced by an inability to investigate the claims against them. HMTQ has, of course, been aware of the potential claim since May 12, 2011 when the application to add the Third Parties was brought. There was no evidence of any investigation conducted by HMTQ after that date to the present. While it seems likely the government representatives would have discussed the potential claim with representatives of Argo Thompson at an early date, there is no evidence of that and I can make no such assumption. With respect to itsinvestigation, Argo Thompson says as follows (and this appears in Affidavit No. 2 of Yvonne Van Vliet, a paralegal in the employ of Argo Thompson’s counsel):

14.       Attached as Exhibit “J” to this affidavit is a true copy of the timecard signed by plough operator Chris Jones on November 12, 2007. Mr. Jones’ timecard indicates that he commenced his shift at 5:00 p.m., on November 12, 2007 and worked until 4:25 a.m., on November 13, 2007. On his timecard he recorded applying 41 cubic meters of winter abrasive (activity 310B) to the Coquihalla Highway during his shift.

15.       On May 22, 2012 I was informed by Tom Bone, General Manager for Argo, during a teleconference, that Chris Jones has not been employed with Argo since 2008, nor has Argo been in contact with him since 2008. Furthermore, Mr. Bone informed me that Argo is not aware of Chris Jones’ current address or contact information.

[42] There is no indication that Mr. Jones cannot be found, what reasonable steps have been taken to locate him, or even whether his evidence, beyond that contained in the records, is required for the defence of these claims. With respect to records, there is no evidence to suggest that any are missing or have been destroyed.

[43] In the circumstances, I find that there is no prejudice to these proposed defendants in making the order sought, whereas the potential prejudice to the plaintiff, should she be deprived of potential claims, is overwhelming. An order will go in the terms of the application. Costs will be in the cause.


Foreign Insurers Entitled to Rely on s. 103 Limitation Defence; Adding Defendant Beyond Limitation Discussed

October 27th, 2011

Reasons for judgement were released today by the BC Court of Appeal addressing the ability of foreign insurers to rely on the s.103 limitation defence for no-fault accident benefits.

By way of background, BC’s Financial Institutions Act requires out of Province vehicle insurers to sign a “Power of Attorney Undertaking” in essence promising to provide the minimum insurance coverage available in BC when their insured vehicles are travelling in this Province.  As many North American jurisdictions have insurance limits well below those required in BC this often creates excess exposure for foreign insurers.

The Court of Appeal confirmed PAU signatories can take advantage of the limitation contained in s. 103 of BC’s Insurance (Vehicle) Regulation. The Court further discussed the common sense approach BC law imposes in adding a defendant to an existing lawsuit despite the availability of a limitation defence.

In today’s case (Moldovan v . Republic Western Insurance Company) the Plaintiff was injured while travelling as a passenger in a rented U-Haul vehicle.  The vehicle was insured by the Republic Western Insurance Company.  The Plaintiff sought no fault benefits and sued ICBC.  When he realized he sued the wrong insurer the limitation period under s.103 of the Insurance (Vehicle) Regulation had passed.

He sought to add RWIC to the existing lawsuit which the Court of Appeal ultimately permitted.  In doing so the Court explained that while a foreign insurer PAU signatory can take advantage of the s. 103 limitation period the Court retains a discretion to add a Defendant to an existing lawsuit even beyond the limitation period due to section 4(1)(d) of BC’s Limitation Act and further due to the former Rule 15(5)(a) which is reproduced as the new Supreme Court Rule 6-2(7).  The Court provided the following reasons:

[17] As will be seen below, I am of the opinion that while s. 103 would normally be available to RWIC to assert in defence of the plaintiff’s claim, s. 4(1)(d) of the Limitation Act nevertheless does permit the court to join RWIC as an additional defendant. I also conclude that RWIC should be so joined in the circumstances of this case…

[25] I conclude that the chambers judge erred in declining to apply s. 103 on the basis that the PAU does not constitute an agreement to incorporate into RWIC’s insurance policy all the terms that are required to be incorporated in a policy issued by ICBC.  The fact that s. 103 was not incorporated into U-Haul’s rental contract did not make it somehow inapplicable to Mr. Moldovan, any more than the silence of a British Columbia policy on the question of limitation would make it inapplicable to a claim against ICBC.  As a person claiming benefits under Part 7 in a British Columbia action, the plaintiff is subject to the statutory limitation in s. 103.  No breach of the principle of extraterritoriality arises…

[27] I set out below the material provisions of s. 4 again for convenience:

4(1)      If an action to which this or any other Act applies has been commenced, the lapse of time limited for bringing an action is no bar to

(a)        proceedings by counterclaim, including the adding of a new party as a defendant by counterclaim,

(b)        third party proceedings,

(c)        claims by way of set off, or

(d)        adding or substituting a new party as plaintiff or defendant,

under any applicable law, with respect to any claims relating to or connected with the subject matter of the original action…

[35] The circumstances surrounding the plaintiff’s claim, which need not be rehearsed here, were reviewed by the Master.  Most important, he found that the plaintiff’s delay “resulted not from any tactical decision designed to gain an advantage for the plaintiff but from solicitor inadvertence or an honest error in judgment.”  As against this, RWIC has not alleged any particular prejudice. A helpful summary of the law on the weighing of relative prejudice in this context is found in the analysis of Martinson, J. in Wadsworth v. McLeod, supra:

Regard must be had for the presence or absences of prejudice. There must be a balancing of prejudices: Teal at p. 299. Prejudice can be assumed, or actual.

Prejudice means prejudice associated with the delay itself. The fact that an opposing party is affected negatively by such an amendment does not mean that he is prejudiced. The prejudice must affect the ability to respond to the amended claim: Bel Mar Developments Inc. v. North Shore Credit Union, [2001] B.C.J. No. 512, 2001 BCSC 388 at para. 9.

I agree with the following comments of Master Bolton in Takenaka v. Stanley, [2000] B.C.J. No. 288, 2000 BCSC 242 at paras. 41 and 42:

Putting aside any issues of actual prejudice in addition to the prejudice resulting from the loss of the cause of action or of the limitation defence, I am satisfied that the prejudice to a plaintiff in the former event will usually be greater than the prejudice to a defendant in the latter. In the former case the plaintiff loses the opportunity to ask a court to consider a claim that the defendant has done something the law of the land considers to be actionable. In the latter, the defendant loses a windfall opportunity to avoid the issue altogether. Their respective situations may be precisely balanced in purposely financial terms, but not, I conclude, as a matter of justice. A right to seek justice cannot fairly be equated with a right to cut short the search without an answer.

I believe that his analysis provides a firmer foundation for the conclusion I reached at paragraph 68 of the Mah decision ([2000] B.C.J. No. 44), that if all else is equal the balance of prejudice should be resolved in favour of the plaintiff.”  [At paras. 22-4.]

[36] In the circumstances of this case, it seems to me that the balance of prejudice is clearly in the plaintiff’s favour, and that it is just and convenient that RWIC was added as a defendant notwithstanding the time limitation in s. 103 of the Regulation.  I would therefore dismiss the appeal and confirm the order of the chambers judge below, although for different reasons than those she expressed.


Amending Pleadings and the New Rules: The Low Threshold Continues

July 14th, 2011

Rule 6-1 deals with amendments to BC Supreme Court pleadings.  Unless the opposing parties consent, once a trial date is set pleadings can only be amended with permission from the Court.  Authorities under the former Rules of Court established a very low threshold for obtaining a Court’s permission.  The first case I’m aware of dealing with this issue under the New Rules was released last week by the BC Supreme Court, Vancouver Registry, confirming that the law remains unchanged.

In last week’s case (TJA v. RKM) the Defendants wished to amend their pleadings by raising the defences of absolute and qualified privilege.  The Plaintiff opposed arguing they would be prejudiced if the amendment was permitted as the lawsuit was mature with examinations for discovery complete.   The Court permitted the amendment and remedied the prejudice raised by the Plaintiff with a costs order.  In reaching this result Madam Justice Maisonville confirmed the law remains unchanged under the new rules and provided the following reasons for judgement:

[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”. (See also McLachlin and Taylor, in British Columbia Practice, 2d ed. looseleaf (Butterworths, 1991) pages 24-1 to 24-2-10, and the decision of this Court in Chavez v. Sundance Cruises Corp. (1993), 15 C.P.C. (3d) 305, 309-10).


Can Pleadings Be Amended After Trial?

May 17th, 2011

Once a Notice of Trial has been served or a Case Planning Conference is held a party can only amend their pleadings with permission of all other parties or with leave of the Court.  The Court can allow an amendment of pleadings under Rule 6-1 during (or even after) trial as was demonstrated in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.

In this week’s case (0679372 B.C. Ltd. v. The Winking Judge Pub Ltd.) the Plaintiff’s claim proceeded to trial and was successful.  Following trial, but prior to entry of a formal order, the Plaintiff brought an applicaiton to amend it’s pleadings “to conform with the evidence at trial, and to conform with the Reasons for Judgement delivered“.

Madam Justice Smith granted the applicaiton finding this was an appropriate case to allow pleadings to be amended.  In making this finding the Court provided the following reasons:

[6] In Canadian National Railway Co. v. Imperial Oil Ltd., 2007 BCSC 1193, [2007] B.C.J. No. 1743 [C.N.R.] the following principles regarding amendments were set out at para. 18 with respect to the exercise of the Court’s discretion to permit amendments to pleadings during or at the conclusion of a trial:

(a)    the amended pleadings must not be inconsistent with the pleadings already filed on behalf of the party seeking an amendment;

(b)    the amended pleadings must not be inconsistent with the evidence tendered by that party at trial and on discovery;

(c)    the amended pleadings must be such that they would not have changed the whole course of the trial had they been requested at the outset of the trial;

(d)    the amendment must not be unfair to the opposite party; and

(e)   the amendment must be necessary for the purpose of determining the real issues raised.

[7] In my view, the plaintiff’s application for leave to amend should be granted.  It is consistent with the pleadings already filed.  It is not inconsistent with evidence tendered by the plaintiff at trial (or on discoveries, so far as I am aware).  The amended pleadings would not have changed the course of the trial.  Permitting the amendment will not be unfair to the defendants, who were well aware of the evidence and who were given the opportunity to make submissions regarding the implications of a possible express trust.  Finally, the proposed amendment is necessary to record accurately the issues raised and determined in these proceedings.


Can ICBC Deny Fault For a Crash After Previously Admitting it?

April 13th, 2011

As with most areas of law, the short answer is ‘it depends‘.  Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, canvassing this area of law.

In today’s case (Hurn v. McLellan) the Plaintiff was injured in a 2007 motor vehicle collision.  It was a ‘t-bone‘ crash that occurred in a parking lot.  The Plaintiff started a lawsuit and ICBC admitted the issue of fault in the Pleadings on behalf of the other motorist.  As the lawsuit neared trial ICBC brought an application seeking permission to withdraw the admission of fault.  Master Bouck dismissed ICBC’s request finding it would be prejudicial to the Plaintiff’s interests.  In doing so the Court provided the following useful summary of the law:

[26] …There are similar and overlapping considerations for the court on these two types of applications. However, to adopt the submissions of plaintiff’s counsel, the “high bar” threshold to obtain leave to withdraw an admission must be met before the “low bar” threshold to obtain leave to amend a pleading will follow. Thus, the legal test to be met by the defence is with respect to the withdrawal of an admission.

[27] Rule 7-7(5) of the SCCR  provides that:

7-7(5)  A party is not entitled to withdraw

(a) an admission made in response to a notice to admit,

(b) a deemed admission under subrule (2), or

(c) an admission made in a pleading, petition or response to petition

except by consent or with leave of the court.

[28] The principles which govern an application to withdraw an admission of fact are as follows:

1.  Whether there is a triable issue which, in the interests of justice, should be determined on the merits and not disposed of by an admission of fact;

2.  In applying that test, all of the circumstances should be taken into account including whether:

(a) the admission has been made inadvertently, hastily or without knowledge;

(b) the fact admitted was not within the knowledge of the party making the admission

(c) the fact admitted is not true.

(d) the fact admitted is one of mixed fact and law

(e) the withdrawal of the admission would not prejudice a party

(f) there has been no delay in applying to withdraw the admission.

Hamilton v. Ahmed (1999), 28 C.P.C. (4th) 139 (B.C.S.C.) at para. 11, as approved in Munster & Sons Developments Ltd. v. Shaw, 2005 BCCA 564.

[29] More recently, the test has been articulated by the court in 374787 B.C. Ltd. v. Great West Management Corp., 2007 BCSC 582 at para. 27:

As a general rule, the Court must consider whether in the circumstances of the case the interests of justice justify the withdrawal of the admission. The following facts, which are not exhaustive are relevant: delay, loss of a trial date, a party is responsible for an erroneous admission, inadvertence in the making of an admission and estoppel …

[30] The question of fault for the accident is one of mixed fact and law: Bedwell v. McGill, 2008 BCCA 6 at paras. 33 to 34, foll’g Housen v. Nikolaisen, [2002] S.C.J. No. 31, [2002] 2 S.C.R. 235 at para. 27 (S.C.C.), per Iacobucci and Major JJ.

[31] However, whether the admission sought to be withdrawn is one of fact, law or mixed law and fact, the same legal test applies: Nesbitt v. Miramar Mining Corp., 2000 BCSC 187 at para. 6.

[32] It is not enough to show that triable issue exists. The applicant must show that, in all of the circumstances, the interests of justice require the withdrawal of the admission: Rafter v. Paterson(November 7, 2007), Vancouver No. B924884.

[33] Moreover, even if a trial date is not imminent and the applicant gave early notice of the proposed withdrawal of the admission, delay in bringing an application for such relief might in itself be a “concern that cannot be overcome”: Sureus v. Leroux, 2010 BCSC 1344.


Can you add a Party to a Lawsuit After the Limitation Period Expires?

April 5th, 2011

Often times as a lawsuit progresses a Plaintiff learns of new allegations that could be made or new parties who may be responsible.  Lawsuits can take time to get to trial and often when these new revelations are made the limitation period to sue the new party has already expired.  When this happens can the party be added to the existing lawsuit?  The answer is yes, however, the Court’s permission must be granted to do so.  Today the BC Court of Appeal released reasons for judgement providing a detailed overview of this area of law.

In today’s case (Chouinard v. O’Connor) the Plaintiff was injured in an altercation that took place during a lacrosse game.  He sued his alleged assailant and a variety of others alleging battery.  As the lawsuit progressed the Plaintiff wished to amend the claim to add allegations of negligence.  By the time this happened the limitation period to sue in negligence had expired.  The Plaintiff applied to Court to allow an amendment to the lawsuit but this was denied.  The Plaintiff appealed but was also unsuccessful.  In dismissing the matter the BC Court of Appeal provided the following useful legal overview addressing factors a Court should consider in allowing amendments to a claim after a limitation period has expired:

[17] This Court has considered the proper approach to amendments to pleadings after the expiry of a limitation period on numerous occasions.  The issue has arisen frequently under both former Rule 15(5)(a)(iii) (now replaced by Rule 6-2(7)), where a plaintiff wished to add a party after the expiry of the limitation period, and under former Rule 24(1) (now replaced by Rule 6-1(1)) where a plaintiff sought to plead a new cause of action against an existing defendant after the expiry of the limitation period for bringing the cause of action.

[18] In Teal Cedar Products (1977) Ltd. v. Dale Intermediaries Ltd. (1996), 19 B.C.L.R. (3d) 282, 34 C.C.L.I. (2d) 211, this Court determined that the Supreme Court has broad discretion to allow or disallow an amendment, holding that the overriding test is whether it is “just and convenient” to allow the amendment.  Finch J.A. (as he then was), with the concurrence of Ryan J.A., stated:

[36]      This application was brought … under Rule 24(1) which permits a party to amend pleadings at any time, with leave of the court.  The rule is discretionary and contains no criteria for the exercise of that discretion.

[37]      The rule most often involved in questions arising under the Limitation Act is Rule 15(5)(a)(iii). It is invoked on applications to add parties. Rule 15(5)(a)(iii) says that the court may order a person to be added as a party where there exists a question which, in the opinion of the court, would be “just and convenient” to determine as between a party and the person sought to be added. The qualifying phrase “just and convenient” is not to be found in Rule 24(1).

[38]      Discretionary powers are, of course, always to be exercised judicially. It would clearly be unjudicial to permit an amendment to pleadings under Rule 24(1) if it appeared to be either unjust or inconvenient to do so. So, even though the words “just and convenient” are not found in Rule 24, justice and convenience would, in my view, be relevant criteria for the exercise of the discretion found in that rule.

[45]      [T]he discretion to permit amendments afforded by … Rule 24(1) … was intended to be 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.  Delay, and the reasons for delay, are among the relevant considerations, and the judge should consider any explanation put forward to account for the delay. But no one factor should be accorded overriding importance, in the absence of a clear evidentiary basis for doing so.

[67]      In the exercise of a judge’s discretion, the length of delay, the reasons for delay and the expiry of the limitation period are all factors to be considered, but none of those factors should be considered in isolation. Regard must also be had for the presence or absence of prejudice, and the extent of the connection, if any, between the existing claims and the proposed new cause of action. Nor do I think that a plaintiff’s explanation for delay must necessarily exculpate him from all “fault” or “culpability” before the court may exercise its discretion in his favour….

[19] The concurring reasons of McEachern C.J.B.C. (Ryan J.A. also concurring) were to similar effect:

[74]      Applying the same principles regardless of whether the application is to add new defendants … or new causes of action, … I believe the most important considerations, not necessarily in the following order, are the length of the delay, prejudice to the respondents, and the overriding question of what is just and convenient.

[20] In Letvad v. Fenwick, 2000 BCCA 630, 82 B.C.L.R. (3d) 296, Esson J.A. for the Court cited from Teal Cedar, and then said:

[29]      My understanding of the phrase “completely unfettered” in this context is that the discretion is not fettered by the relevant legislation, i.e., the Rule and the Limitation Act.  It is, however, fettered to the extent that, as was held in Teal, it must be exercised judicially, in accordance with the evidence adduced and such guidelines as may appear from the authorities.  It was held inTeal that the guidelines to which the chambers judge is required to have regard include these:

– the extent of the delay;

– the reasons for the delay;

– any explanation put forward to account for the delay;

– the degree of prejudice caused by delay; and

– the extent of the connection, if any, between the existing claims and the proposed new cause of action.

[21] As can be seen from the chambers judgment in the case before us, this list of factors has come to be seen as a checklist in applications to add a cause of action or a party after the expiry of the limitation period.  It is sometimes forgotten that the list of factors is not an exhaustive one, and that the overriding concern is whether the proposed amendment will be “just and convenient”.  The factors listed in Teal Cedar and in Letvad will typically be important factors to be considered by a chambers judge, but the decision is ultimately a discretionary one.  Thus in Boutsakis & Kakavelakis, A Partnership v. Boutsakis, 2008 BCCA 13, 77 B.C.L.R. (4th) 113, this Court upheld the granting of amendments even though not all of the Teal factors had been specifically referred to in the judgment of the chambers judge.  Newbury J.A., speaking for the Court, said:

[21]      … [I]t seems to me that although the summary trial judge did not mention the authorities, she did consider many of the factors listed in Teal Cedar – the reasons for the plaintiffs’ delay, the question of prejudice to the appellants; Mr. Kakavelakis’ difficulty in obtaining Mr. Boutsakis’ cooperation in enforcing the Partnership’s rights against Crown Travel; and the overall context of the two actions generally.  Given the high degree of deference that is to be accorded to a discretionary decision of this kind, I see no basis on which this court should interfere with her conclusion that both amendments to the Statement of Claim in the “F” action should be permitted and given effect to notwithstanding that between the issuance of the writ in 1989 and the 1997 and 2004 motions to amend, fresh causes of action advanced by those amendments would have become barred by the lapse of time.


Amending Pleadings and the New Rules of Court

March 25th, 2011

The first case that I’m aware of dealing with amendments of pleadings under the New Rules of Court was released earlier this week.  In short the Court held that the new Rules don’t change the law with respect to the Court’s discretion in permitting amendments.

In this week’s case (BRZ Holdings Inc. v. JER Envirotech International Corp.,) the Plaintiff sued various defendants for losses caused by alleged fraudulent or negligent misrepresentation.  As trial approached the Plaintiff sought significant amendments to their pleadings.  The Defendant opposed these arguing the changes would cause prejudice.  Mr. Justice Smith ultimately allowed most of the proposed amendments and in doing so provided the following useful reasons confirming the New Rules did not alter the law with respect to amendments of pleadings:

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.