Delay in seeking an amendment might become so lengthy that prejudice would be presumed: court
The Ontario Superior Court of Justice has denied a plaintiff's motion to amend her pleadings because it was brought 12 years after the accident the resulted in litigation.
In Broome v. Western Assurance, 2023 ONSC 1732, Jennifer Broome was involved in a motor vehicle accident in 2011. She claimed accident benefits from Western Assurance Company and commenced an action in 2013. Several case conferences took place in 2022 to move the matter along so the case would be ready for trial. The court eventually ordered that the matter proceeds to a global mediation on June 29 and a trial in November. Broome subsequently brought a motion for leave to amend the pleadings to add a claim for punitive and aggravated damages.
The court said in its decision, “When is too long for a party to amend a claim to add punitive damages after the action has been set down for trial?”
The court said that Broome or his counsel should have advised the court and the defendant of their intention to bring a motion to amend the pleadings during the case conferences. Broome asserted that the Rules of Civil Procedure allow the plaintiff to amend a pleading “unless prejudice will result that could not be compensated for by costs or an adjournment.”
The plaintiff’s counsel relied heavily on the Statutory Accidents Benefits regime as a consumer protection legislation. He also argued that case law requires an insurer to act in good faith towards its insured regarding an accident benefits dispute. The counsel claimed there had been a significant change in circumstances, given various updated medical reports, which should have caused the defendant to pay Broome the accident benefits claimed in the litigation.
The defendant’s counsel argued that there was a significant prejudice to the parties, given the timing of the motion and its proximity to the fixed trial date. The counsel explained that the prejudice to all parties flows from the genuine possibility that the court might adjourn the trial date as the defendant intends to seek, as a condition of any order amending the claim, an order allowing for further discovery of the plaintiff, further productions, and the possibility of further defence medical examinations.
The Ontario Superior Court referred to case law emphasizing that there is no absolute right to amend pleadings. The court pointed out some factors to consider in granting leave to amend, such as the possibility that the amendment would cause an injustice not compensable in costs, that the proposed amendment is an issue worthy of trial and prima facie meritorious.
The court further stressed that it might grant an amendment at any stage of the action unless the responding party would suffer non-compensable prejudice. The court said that the prejudice must flow from the amendments, not some other source. The court cautioned that the delay in seeking an amendment might become so lengthy and the justification so inadequate that prejudice to the responding party would be presumed.
The court found that the plaintiff brought the motion to amend more than nine years after her statement of claim was issued, nearly seven years after the closure of pleadings, and five years after the last examinations for discovery. The plaintiff did not explain why she failed to move more expeditiously to amend her statement of claim to plead punitive damages.
The court ultimately dismissed Broome’s motion, ruling that “the delay is now so egregious that prejudice can be presumed.” The court said it would be inappropriate to grant the relief sought because the cause is on the “eve of trial” for all intents and purposes.
