Plaintiff's delay in obtaining an expert report led to the loss of crucial evidence: court
The Court of King's Bench of New Brunswick denied the plaintiff's request to amend her negligence claim, ruling that the proposed changes, introduced seven years after her slip-and-fall accident, would unfairly prejudice the defendants.
The plaintiff initially filed her lawsuit on May 1, 2017, alleging negligence after she slipped and fell on steps outside a grocery store operated by Manuel Groceries Limited and located on property owned by Loblaws Inc. Her claim initially focused on the defendants' alleged failure to maintain the stairs in a safe condition. The defendants denied liability, completed discoveries in 2018, and recently secured a trial date for late 2024.
On December 14, 2024, the plaintiff sought to amend her claim to introduce new allegations regarding the stairs' design and construction. Based on an expert report, the plaintiff claimed the stairs and handrails violated the National Building Code and the Occupational Health and Safety Act. The plaintiff argued the changes were necessary to address the full scope of negligence.
However, by June 2024, the defendants had removed and replaced the stairs without prior notice to the plaintiff, making them unavailable for further inspection or testing. The defendants opposed the amendments, citing irreparable prejudice due to losing key evidence, the potential expiration of claims against third parties, and excessive delay.
The Court of King’s Bench stated that parties may amend pleadings unless they demonstrate actual prejudice. Rule 27.10(1) of the Rules of Court permits amendments unless they cause prejudice that costs or an adjournment cannot address. However, the court found this case a "rare circumstance" where allowing the amendment would unfairly impact the defendants' ability to defend themselves.
The court found that the defendants had no reason to anticipate allegations about design and construction since the original claim did not raise these issues. Further, the plaintiff's seven-year delay in obtaining an expert report led to the loss of crucial evidence—the original stairs—which the court found to be a significant impairment to the defendants' ability to defend the claim. The court also accepted the argument that the delay could prevent the defendants from pursuing claims against the third-party contractor who built the stairs. Given these factors, the court dismissed the plaintiff's motion to amend the statement of claim.
