If you have an iPhone, this case may interest you.

This recently posted reasons for judgment concerns an application to the Court for an Order to amend an existing Notice of Civil Claim in a  proposed class action pertaining to the battery life of Apple iPhone batteries.

The case is referenced as Crema v Apple Inc., 2020 BCSC 1767 (CanLII).

The proposed amendments are to plead:

  1. the claim in trespass amounts to contraventions of certain provisions of the Criminal Code of Canada, R.S.C., 1985, c. C-46that deal with unauthorized use of a computer and/or mischief in relation to property including computer data;
  2. Apple misrepresented the iPhone’s speed, power, battery life and the content of its operating software updates in violation of the Business Practices and Consumer Protection Act, S.B.C. 2004, c. 2; and
  3. Apple’s representations about functionality, speed, power and battery life of its iPhone constitute implied terms pursuant to Apple’s Terms and Conditions of Sale and operating software updates.

Apple’s position is that there is no cause of action for breach of the Criminal Code and statutory breaches are only relevant to claims in negligence.


The amendments Mr. Crema proposes in the second amended notice of civil claim are allowed except for the amendments contained in proposed paragraphs 69 and 94 asserting contraventions and violations of the Criminal Code. Mr. Crema has leave to propose amendments in accordance with these reasons for judgment instead of the amendments he proposes in paragraphs 69 and 94.

Legal Principles – Review of amendments to existing claims

In reviewing this decision, the Court outlines a thorough review of the legal principles as it relates to amendments to existing claims and offers an excellent highlight of the law.  I will quote directly from the decision and definitely worthwhile to make a note of the referenced cases here as it will be helpful in existing claims you are managing that may require amendments.  This quotation sums it up very nicely:

Legal Principles pertaining to amendments

[7]         Rule 6-1(1) of the Supreme Court Civil Rules requires parties to obtain leave to amend their pleadings, save for an initial amendment prior to the notice of trial being served.

[8]         The law pertaining to amending pleadings is that amendments should be allowed as are necessary to determine the real question between the parties. It is a generous approach, allowing for pleadings as they are presented or could be presented so that, as far as possible, all matters in controversy between the parties may be completely and finally determined: Morriss v. British Columbia, 2010 BCCA 95 at para. 17, citing Victoria & Grey Metro Trust Co. v. Fort Gary Trust Co. (1982), 1982 CanLII 227 (BC SC), 30 B.C.L.R. (2d) 45 (S.C.) at 46.

[9]         In deciding whether to grant leave to amend pleadings, the court does not hear evidence and considers the pleadings assuming the facts pled are true: McNaughton v. Baker (1988), 1988 CanLII 3036 (BC CA), 25 B.C.L.R. (2d) 17 (C.A.), [1988] B.C.J. No. 515 at paras. 22–27. Novel pleadings are permitted. So long as the material facts have been pleaded, the case should be permitted to proceed so the court can consider whether it is successful based on the facts as proven at trial: Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959 at 980.

[10]      There are limits to this generous approach. Amendments, when combined with the original pleadings, must abide by the rules governing pleadings, including those pertaining to applications to strike under R. 9-5. The pleadings must disclose a reasonable claim, plead the material facts to do so, and avoid pleadings that are “unnecessary, scandalous, frivolous or vexatious”: Rules 3-1(2) and 9-5(1); see also  Victoria Grey Metro Trust Co. Amendments are necessary where they set out the real question in issue between the parties: Chouinard v. O’Connor, 2011 BCCA 121 at para. 13.

[11]      Whether pleadings should be struck for being unnecessary or scandalous is a discretionary matter. In some cases, courts have struggled with this determination. A pleading is unnecessary and so deserving of being struck if it does not advance a cause of action known to law. Claims that are “not necessarily unnecessary,” on the other hand, will not be struck: Citizens for Foreign Aid Reform Inc. v. Canadian Jewish Congress, [1999] B.C.J. No. 2160 (S.C.) at paras. 47 and 501999 CanLII 5860.

[12]      A scandalous pleading is “one that is so irrelevant that it will involve the parties in useless expense and will prejudice the trial.” Such pleadings will only be struck if they are irrelevant to the proceedings will distract the trial of the real issue or issues: Citizens at para. 47.