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).
