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Tag: Rule 6-1(1)(b)

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

Written by admin on . Posted in BCSC Civil Rule 6.

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.

Amending Pleadings and the New Rules: The Low Threshold Continues

Written by admin on . Posted in BCSC Civil Rule 6, Uncategorized. 128 Comments on Amending Pleadings and the New Rules: The Low Threshold Continues


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?

Written by admin on . Posted in BCSC Civil Rule 6, Civil Procedure. 103 Comments on Can Pleadings Be Amended After Trial?


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.