It is frequent in estate litigation that new facts arise and the claim must be amended to provide for the adequate remedy.
This blog is a summary of the courts power to make such an order.
Rule 6-1(1) of the Supreme Court Rules provides that a court may grant leave to amend the whole or any part of a pleading filed by the party.
Discretion to permit amendments is unfettered, subject only to the general rule that it be exercised judicially.
Considerations are: the length of the delay, reasons for the delay; prejudice to the defendants and the overriding question of what is “just and convenient”?
Teal Cedar Products v Dale Intermediaries Ltd ( 1996) 19 BCLR (3d) 282
16. Amendments should be allowed unless actual prejudice can be demonstrated by the opposing
party or the amendment would be useless.
Langret Investments S.A. v. McDonnell (1996), 21 B.C.L. R. (3d) 145, at paras. 34.
- Potential prejudice is not enough to defeat an application for amendment of the pleading: Langret, supra, at para 43.
- There is a wide discretion in the court to determine what is in the interests of justice and to do what is just and convenient between the parties. Prejudice to the respondents can be dealt with in costs. In Jones, the court found actual prejudice arising from the amendment of the pleading, which would cause the respondent’s re-evaluation of his entire case, but the court found that this prejudice could be compensated with costs:
Jones v. Lululemon Athletica Inc., 2008 BCSC 719,
Victoria Grey Metro Trust Company v. Fort Gary Trust Company (1982), 30 B.C.L.R. (2d)
45, Mclaughlin J. (as she then was) nicely brings together other considerations regarding the test to amend a
pleading:
“Before addressing the proposed pleadings, I refer to the principles which govern the granting of amendments to pleadings. 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 …” These provisions arguably support a generous approach to the question of amendments. However, the court will not allow useless amendments: Gesman v. Regina (City) (1907). 1 Sask. L.R. 39. 7 W.L.R. 307: Hubbuck & Sons Ltd. v. Wilkinson, Heywood & Clark Ltd.. 11899) 1 Q.B. 86 (C.A.). Similarly, it seems to me obvious that the court will not give its sanction to amendments which violate the rules which govern pleadings. These include the requirements relating to conciseness (R. 19(1)); material facts (R. 19(1)); particulars (R. 19(11)); and the prohibition against pleadings which disclose no reasonable claim or are otherwise scandalous, frivolous or vexatious (R. 19(24)). With respect to the latter, it may be noted that it is only in the clearest cases that a pleading will be struck out as disclosing no reasonable claim; where there is doubt on either the facts or law, the matter should be allowed to proceed for determination at trial: Mimes v. Minnes (1962). 39 W.W.R. 112. 34 D.L.R. (2d) 497 (B.C.C.A.); B.C. Power Corp. v. A.G.B.C (1962), 38 W.W.R. 577, 34 D.L.R. (2d) at 211 (B.C.C.A.). If there is any doubt, it should be resolved in favour of permitting the pleadings to stand: Winfieldv. Interior Ener. Services Ltd. (1969). 68 W.W.R. 383. 4 D.L.R. (3d) 71 (B.C.S.C). While these cases deal with striking out claims already pleaded, consistency demands that the same considerations apply to the question of amendment to permit new claims.”
