Trevor Todd and Jackson Todd have over 60 years combined experience in handling estate disputes.

 

Barnes – Morrison v Kolias  2026 BCSC 1834 reviewed the law in BC relating to amending pleadings.

 

Rule 8-1(1) of the Rules provides that pleadings may be amended after service of a notice of trial only with leave of the court. The significance of the leave requirement is highlighted in the Appeal Reasons.

[31]      As a starting point regarding the principles governing the amendment of pleadings is the helpful summary by the Court in 1305788 B.C. Ltd. v Sodhi Dream Homes Ltd., 2023 BCSC 445:

[27]      Justice Kent helpfully summarized the principles governing amendments to pleadings in Thomas v. Rio Tinto Alcan Inc., 2019 BCSC 107:

[18]      Some of the basic principles governing applications for leave to amend pleadings have been summarized in Continental Steel Ltd. v. CTL Steel Ltd., 2014 BCSC 104 at para. 26 and in British Columbia (Director of Civil Forfeiture) v. Violette, 2015 BCSC 1372 at para. 41 [citations deleted]:

1. the court has a wide discretion to permit amendments so as to enable the real issues between the parties to be determined;
2. the discretion to permit amendments is unfettered, subject only to the general rule that it be exercised judicially;
3. the overriding consideration is the interests of justice generally and to direct what is just and convenient between the parties;
4. while useless amendments that do not advance a reasonable cause of action or defence are to be avoided, justice is generally best served by permitting amendments that will allow the real controversy between the parties to be decided on the merits;
5. amendments may not be allowed if they will cause actual and meaningful prejudice to the opposing party––mere potential prejudice is insufficient. Rather the party resisting an amendment must prove actual and significant prejudice;
6. additional considerations include any delays in applying for the amendment, the reasons for such delay and whether deliberate or voluntarily dilatory conduct is involved, particularly when a new cause of action is proposed to be added that would otherwise preclude the operations of a limitation defence;
7. costs are the general means of protecting against prejudice unless it would be a wholly inadequate remedy; and
8. courts should only disallow an amendment as a last resort.

[28]      More guidance was provided as to the factors that should be considered in applications to amend pleadings by Madam Justice Ross in Dawe v. B.C. Children’s Hospital, 2003 BCSC 443 at para. 17 (quoted in Kwikwetlem First Nation v. British Columbia (Attorney General), 2021 BCCA 311 at para. 166):

(a) amendments should be permitted as are necessary to determine the real question in issue between the parties

The basic rule, set out expressly in the former Rules and no doubt still applicable, is that such amendments should be permitted as are necessary to determine the real question in issue between the parties. Rule 1(5) requires an interpretation of the rules which permit the just and speedy determination of the dispute on its merits. Similarly, the Law and Equity Act, R.S.B.C. 1979, c. 224, s. 10, requires the court to grant all such remedies as any of the parties may appear to be entitled to “so that, as far as possible, all matters in controversy between the parties may be completely and finally determined”. Victoria Grey Metro Trust Co. v. Fort Gary Trust Co. (1982) 1982 CanLII 227 (BC SC), 30 B.C.L.R. (2d) 45 (S.C.);

(b) the court will not give its sanction to amendments which violate the rules that govern pleadings, including the prohibition of pleadings which disclose no reasonable claim. In considering this question, the court will apply the same tests and considerations as applicable on an application to strike claims already pleaded, see Victoria Grey Metro Trust Co. supra;

(c) a party is not required to adduce evidence in support of a pleading before trial, see McNaughton v. Baker (1988), 1988 CanLII 3036 (BC CA), 25 B.C.L.R. (2d) 17 (B.C.C.A.);

(d) on an application to amend the facts alleged are taken as established, see Canada (Attorney General) v. Ellis-Don Ltd., 2000 BCCA 111 (CanLII), [2000] B.C.J. No. 492;

(e) the discretion is to be exercised judicially, in accordance with the evidence adduced and the guidelines of the authorities. Factors to be considered include: the extent of delay, the reasons for delay, any explanation put forward to account for the delay, the degree of prejudice caused by the delay, the extent of the connection between the existing claims and a proposed new cause of action. The over-riding consideration is what is just and convenient, see Teal Cedar Products (1977) Ltd. v. Dale Intermediaries Ltd. (1996), 1996 CanLII 3033 (BC CA), 19 B.C.L.R. (3d) 282 (C.A.).

[29]      What is clear from the authorities is that while useless amendments that disclose no reasonable cause of action must be avoided, the overriding principle is that generally amendments should be permitted in the interests of justice, to allow the real questions in issue between the parties to be litigated. Further, a party asserting that it will suffer prejudice due to the amendments must demonstrate actual and significant prejudice.

[32]      As indicated above, in the oft-cited decision of Victoria Grey Metro Trust Co. v. Fort Gary Trust Co., 30 B.C.L.R. (2d) 45,1982 CanLII 227 at para. 2(S.C.), Justice McLachlin (as she then was) confirmed that “consistency demands” that applications to amend pleadings be resolved under the same principles as applications to strike existing pleadings.

[33]      A fulsome review of these principles is found in Sahyoun v. Ho, 2015 BCSC 392:

[56]      This aspect of the defendants’ application is based on the difficulties with and inadequacy of the Amended Pleading. Such matters are best addressed through R. 9-5(1). The defendants’ R. 22-7(2) application, which allows a court to dismiss a proceeding for non­compliance with the Rules, is in a sense, derivative of and rests on their R. 9-5(1) application. Both applications are focused on the ongoing failure of Dr. and Mrs. Sahyoun to file a pleading that complies with the Rules. Accordingly, I have focused on the R. 9-5(1) application. That rule provides:

(1) At any stage of a proceeding, the court may order to be struck out or amended the whole or any part of a pleading, petition or other document on the ground that

(a)   it discloses no reasonable claim or defence, as the case may be,

(b)   it is unnecessary, scandalous, frivolous or vexatious,

(c)   it may prejudice, embarrass or delay the fair trial or hearing of the proceeding, or

(d)   it is otherwise an abuse of the process of the court, and the court may pronounce judgment or order the proceeding to be stayed or dismissed and may order the costs of the application to be paid as special costs.

[57]      The test on an application to strike an action under R. 9-5(1)(a), on the basis the pleadings do not disclose a cause of action, is whether it is plain and obvious the claim cannot succeed. It requires a conclusion that, assuming that the facts as stated are true, those facts disclose no cause of action and the pleadings disclose no arguable issue. If there is a chance that the action may succeed, then the action should be allowed to proceed; Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959 at 980; Thompson v. Webber, 2010 BCCA 308 at para. 11; Canadian Bar Assn. v. British Columbia, 2008 BCCA 92 at para. 37.

[58]      The test for striking a pleading under R. 9-5(1)(b), on the basis that it is unnecessary, scandalous, frivolous or vexatious, was recently summarized in Willow v. Chong, 2013 BCSC 1083, where Fisher J. said:

[20]      Under Rule 9-5(1)(b), a pleading is unnecessary or vexatious if it does not go to establishing the plaintiff’s cause of action, if it does not advance any claim known in law, where it is obvious that an action cannot succeed, or where it would serve no useful purpose and would be a waste of the court’s time and public resources: Citizens for Foreign Aid Reform Inc. v Canadian Jewish Congress, 1999 CanLII 5860 (BC SC), [1999] BCJ No. 2160 (SC); Skender v Farley, 2007 BCCA 629. If a pleading is so confusing that it is difficult to understand what is pleaded, it may also be unnecessary, frivolous or vexatious.

An “embarrassing” pleading, as contemplated by R. 9‑5(1)(c), is one that is so irrelevant that to allow it to stand would involve useless expense and would also prejudice the trial of the action by involving the parties in a dispute apart from the issues; Keddie v. Dumas Hotels Ltd. (1985), 1985 CanLII 417 (BC CA), 62 B.C.L.R. 145 at 147 (C.A.).

The abuse of process standard under R. 9‑5(1)(d) derives from a flexible doctrine. It allows the court to prevent a claim from proceeding where to do so would violate principles of judicial economy, consistency, finality and the integrity of the administration of justice; Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 at paras. 35‑37.

Though subsections (a)‑(d) of R. 9‑5(1) address different concerns and different wrongs, there is also some overlap between these subsections. Thus, for example, a pleading that discloses no cause of action, contrary to R. 9-5(1)(a), can also be unnecessary, frivolous or vexatious within the meaning of R. 9-5(1)(b); see e.g. Virk v. Brar, 2012 BCSC 1004 at paras. 69‑70.

A pleading can be embarrassing if it does not state the real issue in an intelligible form. It can also be embarrassing if it is prolix, includes irrelevant facts, argument or evidence. It can be prejudicial if it is designed to or has the effect of confusing the defendant, making it difficult, if not impossible, to answer; Virk at para. 75.