Category: Pleadings : Amendment

Court Allows Addition Of Defendant After 2 Year Limitation Period, Whose Name ICBC Had Failed To Disclose

When ICBC cases are not settled within two years of the date of the accident, the Plaintiff must file a legal document called a Notice of Civil Claim in order to preserve the Plaintiff’s legal action. File materials provided by ICBC to counsel for the Plaintiff contain the names of the driver and owner of the Defendant’s vehicle, which must be included as named parties within the Notice of Civil Claim. Although the vast majority of the time such information is accurate, situations can arise where improper names are provided, as well as cases where names that should be provided are not.


In Littlejohn v. Clavelle, the Plaintiff was injured in a motor vehicle accident, and consequently commenced legal proceedings. Counsel for the Plaintiff was provided with names of Defendants by ICBC, however it would turn out to be the case that the name of the driver was omitted. The Notice of Civil Claim was filed, however shortly thereafter counsel for the Plaintiff was informed by ICBC of the error.


Counsel for the Plaintiff brought an application to add the name of of the Defendant driver. Counsel for the other Defendants took no position on the application, which means they did not agree to the amendment, nor did they object to it.


In allowing the amendment to the Notice of Civil Claim and finding that there was no prejudice to the current Defendants, the Court commented,


[6]              It is well-established that the addition of a party is a matter of discretion and it should be exercised generously to allow effective determination of the issues without delay, inconvenience or separate hearings (Delta Sunshine Taxi (1972) Ltd. v. Vancouver (City), 2014 BCSC 2100).


[7]              I note that the plaintiff was advised of the name of the actual driver of the defendants’ vehicle on May 27, 2020, three days after the expiry of the applicable limitation period on May 24, 2020. I also note that the original claim was filed in November 2019 and there is no evidence or suggestion of delay on her part or on the part of her counsel. It is clear that litigation was contemplated some time ago and the names of the current defendants were provided by ICBC in the normal course of business between counsel. Counsel for the plaintiff was entitled to rely on that information as being accurate. As well, the one year allowed for service has not passed (McIntosh v. Nilsson Bros. Inc., 2005 BCCA 297).

Court Permits Plaintiff To Amend Notice Of Civil Claim In Hit And Run Case

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.


Court Allows Amendments To Include Defences Of Absolute And Qualified Privilege

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”.


Court Confirms Test For Amendments Remains Same Under New Rules

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.

Court Permits Defence Amendment in “Worker v. Worker” Claim

In Eugenio v. Dhillon, the Plaintiff was injured in a motor vehicle collision, and subsequently brought an ICBC claim for damages for pain and suffering, as well as various other forms of damages. After pleadings had closed, Examinations for Discovery were conducted, and a trial date was set. ICBC’S lawyer then sought an order permitting the amendment of the Statement of Defence to plead the “worker worker” bar. Counsel for the Plaintiff argued that the Plaintiff would be prejudiced by such an amendment, as she would not be able to claim Workers’ Compensation benefits due to the expiry of the applicable limitation period. The Court allowed the amendment, on the condition that the insurance company pay the amount of benefits that the Plaintiff would have received, if the Workers’ Compensation Board were to not extend the limitation period for such purposes.


[7]               Pursuant to the reasoning in Re Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590, I am bound to follow the reasoning of Mr. Justice Owen-Flood in the case of Brzozowski v. Greyhound Canada Trans. Corp., [1998] B.C.J. No. 2400.  In that case, two plaintiffs were injured on the 11th of November, 1996, while riding as passengers on a bus owned and operated by the defendants.  Proceedings were commenced in which the defendant, Greyhound, admitted negligence on the part of its driver.

[8]               In November 1997 at the plaintiffs’ examination for discovery, counsel for Greyhound raised for the first time, a statutory Workers Compensation Act (the “Act”) defence pursuant to s.10 of the Act. The plaintiff then sought a ruling from the Workers’ Compensation Board for benefits pursuant to the Act. The adjudicator who heard the plaintiffs’ application disallowed their claims as they were brought outside the one-year time limit under s.55 of the Act.  Greyhound then brought a motion to amend its statement of defence to raise the statutory defence pursuant to s.10 of the Act and were permitted to do so on condition that they undertook to pay the equivalent of any benefits the plaintiff would have received save for its delay in applying to the Board for the s.10 ruling.


[9]               Mr. Justice Goldie made a similar ruling on an application for leave to appeal in the case of Parmar v. Virk (FAS), 9 B.C.L.R. (3d) 394, [1995] B.C.J. No. 1604.  A similar term was imposed in similar circumstances by Madam Justice Stromberg-Stein in the case of Zacharias v. Lo, [1999] B.C.J. No. 881from a hearing March 8, 1999.  I consider that I am obliged pursuant to these authorities to allow the amendment sought.  I do so on the same conditions that were imposed by Madam Justice Stromberg-Stein and Mr. Justice Owen-Flood in the Zacharias and Brzozowski actions.  That is, the amendment will be allowed on the undertaking of the defendants’ insurer that:

… if the Workers Compensation Board determines that it has jurisdiction, but refuses to extend the limitation period to allow the plaintiff benefits, 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.

Court Allows Defence To Amend Pleading In Section 10 Of Workers Compensation Act Case

In Lin and R & J Honeyland Inc. v. Tham, the Plaintiff was injured in a motor vehicle collision, and subsequently brought an ICBC claim for damages for pain and suffering, and various other forms of damages. ICBC’S lawyer filed a Statement of Defence (as it was known at that time), in which liability was disputed. Later in the litigation proceedings, ICBC’S lawyer brought an application for leave to amend the Statement of Defence to plead that both the Plaintiff and Defendant were workers in the course of their employment within the meaning of Section 10 of the Workers Compensation Act and, as such, the Plaintiff‘s ICBC claim was statute barred. Counsel for the Plaintiff would not consent to the amendment, taking the position that his client would be prejudiced if the application were to be granted, as the Plaintiff did not apply for compensation within one year of the date of the accident, as is required under the Workers Compensation Act. The Court ruled that it was conceivable that the Defendant could be deemed to be a worker within the course of his employment, and consequently allowed the application for leave to amend the Statement of Defence.


[14]           In the present case, the plaintiff agrees that he was an employer or worker at the time of the accident, but submits that when the WCAT makes its determination, it will find that the defendant was not a worker.  Therefore, he says the only effect of the present application will be an unnecessary delay of the trial.

[15]           The defendant has filed an affidavit sworn September 28, 2007 in which he deposes that at the time of the accident, he was employed by Dolphin Delivery Ltd. and was working and engaged in the delivery of newspapers.

[16]           In the circumstances, it is at least conceivable that the defendant may be found to have been a worker in the course of his employment at the time of the accident.  That being the case, it is proper for the defendant to seek a determination from the WCAT, and leave is granted to amend the statement of defence accordingly.