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

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?


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.

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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