Leave to Amend Refused Without Proposed Amendments Before the Court

The Dispute

A family became involved in a lengthy dispute with the province after their daughter was taken into government care during a child protection investigation. Once she had been returned to the family, the parents and their adult son pursued a civil claim against the ministry, two of its staff and the foster family, alleging mistreatment in care. The claim sought damages for the child’s treatment while in care and for harm the family said it had caused them.

The Parties’ Positions

The parents and their adult son maintained that the pleading, though amended several times, disclosed viable claims in misfeasance in public office, defamation and negligently caused mental injury. They framed those claims on the ministry and its staff having acted unlawfully in removing and retaining custody of the child, and on statements made about the family being false and defamatory. On appeal, they argued the chambers judge had erred in treating those claims as certain to fail, in finding they lacked standing to claim for their daughter’s treatment in care, and in refusing a further opportunity to amend despite the litigation’s history.

The respondents resisted the appeal on the ground that the pleading, notwithstanding its several amendments, disclosed no material facts capable of supporting the causes of action asserted. They maintained that a claim in misfeasance in public office requires pleaded facts establishing the unlawfulness of official conduct, not a bald assertion of bad faith, relying on the Supreme Court of Canada’s decision in Odhavji Estate v. Woodhouse and this court’s own decision in Madadi v. Nichols. On the defamation claim, they relied on the rule requiring a plaintiff to particularise the defamatory words alleged, noting the appellants had themselves conceded the words had never been pleaded. On leave to amend, they submitted that a court is entitled to view sceptically a fifth application brought without any proposed amendments before it and without evidence explaining years of delay.

The Court’s Decision

The Court of Appeal for British Columbia dismissed the appeal in its entirety, holding that the chambers judge had not erred in finding the claims, as pleaded, disclosed no material facts capable of establishing the causes of action asserted. It further found that the judge’s discretionary refusal to permit a further amendment was not the result of any misdirection, nor was it clearly wrong. The appellants had known for some time that a court would be unlikely to allow further amendments without first seeing a proposed draft, and none had ever been produced. The order striking the pleading in full stood, as did the refusal of leave to amend, bringing the litigation to an end without the claims ever being tested on their merits.

Key Lessons for Claimants and Government Defendants

• Put a complete draft of proposed amendments before the court on any application for leave to amend. Leave to amend was refused here on a fifth application because no draft of the intended changes was ever produced, even though the claimants had been told, consistent with Young v. Borzoni, that a court was unlikely to permit further amendments without first seeing them.
• Plead the specific facts that make an official’s conduct unlawful before alleging misfeasance in public office. The claim here was struck because it alleged bad faith and unlawful conduct without setting out facts capable of establishing either, which the court treated as no different from an unsupported assertion.
• Set out the precise words alleged to be defamatory at the outset of a defamation claim. The claimants conceded in their own submissions that the specific words attributed to the respondent had never been pleaded, a gap Rule 3-7(21) of the Supreme Court Civil Rules does not allow a plaintiff to fill after the fact.

The outcome of this matter turned on the pleading before the court and the record on the leave to amend application. A differently pleaded or evidenced claim may proceed differently.

ATAC LAW represents individuals and public bodies in civil claims against government agencies and officials, including appeals from orders striking pleadings.

ATAC LAW acted for the claimants on the appeal. The matter was handled by Dan H. Griffith.