Executive Summary: Key Legal and Evidentiary Issues

• Plaintiffs sought to amend their civil claim to add tort claims including misrepresentation, nuisance, and economic interference.

• The court found the proposed amendments were confusing, lacked material facts, and would not survive a motion to strike.

• Defendant argued successfully that the new claims were introduced too late and were potentially time-barred.

• Amendments alleging emotional distress and mental anxiety were not supported by legal basis or factual pleading.

• Costs for the application were awarded to the defendant, to be determined at the end of the trial.

• Plaintiffs were granted leave to reapply with properly drafted amendments, though the court expressed skepticism about success.

Facts and outcome of the case

Background and relationships

This case arises from a franchise dispute involving 1020840 BC Ltd. and its operator, Nancy Gareau, who owned and operated a Tim Hortons franchise in Creston, British Columbia. The plaintiffs entered into a sublease and licence agreement with The TDL Group Corp., which is the franchisor and sub-landlord. The third party, Kootenay Lake Log Structures Ltd., owns the property on which the Tim Hortons was located. The dispute concerns defects in the premises, garbage disposal issues, and alleged overpayments of property taxes, all of which the plaintiffs claim were not adequately addressed by TDL. The plaintiffs initially filed a civil claim in January 2023.

Nature of original claims

The plaintiffs originally claimed breach of contract, negligence, breach of the Franchises Act (SBC 2015), and unjust enrichment. They alleged that the Premises suffered from material defects, including water intrusion and poor garbage disposal design, and that TDL failed to address an overpayment to Kootenay for property taxes. According to the plaintiffs, these issues delayed the potential sale of the business and resulted in financial losses.

Attempt to amend the claim

In 2025, the plaintiffs applied to amend their claim to add new causes of action, including fraudulent misrepresentation, private nuisance, and the tort of intentional interference with economic relations. They also attempted to claim special damages and personal injury damages related to emotional distress and anxiety suffered by Ms. Gareau. However, they filed a previous version of this amended claim without leave of the court, breaching Rule 6-1(1)(b) of the Supreme Court Civil Rules. That version was struck by Justice Wilkinson in early 2025.

Court’s evaluation of proposed amendments

Associate Judge Harper reviewed the proposed amendments in detail and found them legally and factually deficient. The fraudulent misrepresentation claim lacked specific factual allegations and failed to meet the pleading requirements under Rule 3-7(18). The private nuisance allegation was a single conclusory sentence unsupported by material facts. The unlawful means tort claim did not properly identify the unlawful act against the third party (a potential buyer named Dane Walter), nor did it plead an intent to cause harm. The proposed emotional distress claims were also rejected for lack of legal foundation.

The court emphasized that proposed pleadings must be intelligible not only to the opposing party but also to the trial judge. Adding confusing amendments to an already unclear original claim would not serve justice or judicial economy.

Decision and costs

The court dismissed the plaintiffs’ application to amend the notice of civil claim, with the exception of changes to which the defendant did not object. Costs of the application were awarded to TDL in the cause, meaning they will be assessed at the end of the litigation depending on the final outcome. Although skeptical of the plaintiffs’ prospects, the court granted them leave to reapply if they could submit properly drafted pleadings that met the legal standards.

The ruling reinforced that procedural rules regarding amendment timing and pleading clarity must be strictly followed, especially in complex commercial litigation involving franchising and property disputes.