Winter
Civil Procedure
Christopher Scott
Outline for LAW 307 A01, as taught by Associate Professor Kerry Simmons
With credit to Joshua Steeper for his invaluable resource,
in particular his summary of Orders,
for which class I was not present
University of Victoria Faculty of Law
2011
Civil Procedure
Table of Contents
OVERVIEW OF THE LITIGATION PROCESS
1
EARLY STAGES OF LITIGATION – LIMITATIONS, PLEADINGS AND INJUCTIONS
2
Considerations Prior to Filing Suit
2
Drafting Pleadings
Pleadings Generally
Notice of Civil Claim
Pleadings Filed After the Notice of Civil Claim
Amending Pleadings
3
3
4
4
5
Service
5
Non-Compliance with the Rules
6
Injunctions
6
PREPARING EVIDENCE FOR TRIAL
7
Detention, Preservation, and Recovery of Property
7
Discovery
Disovery and Inspection – The List of Documents
Examination for Discovery
Interrogatories
Witnesses – Witness Lists and Pre-Trial Examination
Physical Examination and Inspection – Medical and Property Examinations
Admissions
7
7
8
9
9
10
10
Expert Witnesses
11
APPLICATIONS, AFFIDAVITS AND ORDERS
12
Applications
12
Affidavits
13
Orders
13
PRE-TRIAL CONFERENCES
14
Case Planning Conference
14
Trial Management Conference
14
Settlement Conferences
15
RESOLUTION WITHOUT A FULL TRIAL
15
Default Judgment
15
Summary Judgment
15
Discontinuance and Withdrawal
15
Summary Trial
16
Dismissal for Want of Prosecution
17
i
Civil Procedure
PRE-TRIAL PREPARATIONS
17
Applying for and Selection of a Jury
18
EVIDENCE AND PROCEDURE AT TRIAL
19
Ending Trial Early
19
Exhibits
19
Witnesses
19
Trial Procedures
19
Failure to Attend
19
COSTS
20
OTHER ISSUES
21
ALTERNATIVES TO LITIGATION
22
Fast Track Litigation
22
Mediation
22
PROFESSIONAL ETHICS AND POLICY ISSUES
23
Law Society Rules
23
Access to Justice
24
INDEX OF CASES
25
ii
Civil Procedure
Overview of the Litigation Process
•
•
The Object of the Rules: "[T]o secure the just, speedy and inexpensive determination of every
proceeding on its merits."
(R. 1-3(1))
o Proportionality: This includes “conducting the proceeding in ways that are proportionate to the
amount involved, the importance of the issues, and the complexity of the proceeding. (R. 1-3(2))
Stages of a Civil Action:
o Meeting with client: Identify the cause of action, determine whether they want to sue.
 Be sure to note the relevant limitation periods.
o Pleadings:
(Part 3)
 Notice of Civil Claim (π)
(R. 3-1)
 Response to Notice of Civil Claim (∆)
(R. 3-3)
o Application for Injunction [optional]
(Part 10)
o Discovery:
(Part 7)
 Document Discovery
(R. 7-1)
 Examinations …
 for Discovery (i.e. examinations of other parties, not witnesses)
(R. 7-2)
 of Land or Property
 of Witnesses (pre-trial; transcripts can be used to impeach, but not as evidence!)
 Deposition (witness examined under oath pre-trial; used as evidence at trial)
(R. 7-8)
 Interrogatories
 Notice to Admit
 Selecting Expert Witnesses (see also Part 11)
o Case Planning Conference [optional]
 7 days notice (5-1(3)) must be given to the other parties
 Case plan must be submitted (5-1(5)); contents are dictated by R. 5-1(6))
o Chambers Applications [optional, but very likely]
o Expert Witnesses
(Part 11)
 Duty of Expert Witnesses
(R. 11-2)
 Appointment of Joint Expert
(R. 11-3)
 Appointment of [Party] Experts
(R. 11-4)
 Appoint of Court's Expert (more complex than party experts)
(R. 11-5)
 An Expert Report is required
(R. 11-6)
o Trial
(Part 12)
 Trial Management Conference [mandatory]
(R. 12-2)
 Limitation: Must occur at least 28 days before trial
 Trial brief must be filed in Form 41 at least 7 days before the conference
(R. 12-2(3))
 This includes the witness list [Prof – the most important part!]
 Evidence and Procedure at Trial
(R. 12-5)
 Jury Trials
(R. 12-6)
o Costs
(Part 14)
o Resolution without trial
 Default Judgment
 Summary Judgment
 Summary Trial
 Dismissal for Want of Persecution
1
Civil Procedure
Early Stages of Litigation – Limitations, Pleadings and Injuctions
Considerations Prior to Filing Suit
•
•
•
•
Jurisdiction:
o Small Claims Act: Governs jurisdiction over civil matters w.r.t. Provincial Courts
 Purpose: To resolve disputes in a "just, speedy, inexpensive and simple manner"
(SCA s. 2)
 Provincial Courts have jurisdiction over claims with a value of $25,000 or less.
(SCA s. 3)
 Note: This is not exclusive jurisdiction; the Supreme Court can hear it as well.
 Prof: Provincial Court has a huge backlog of cases. Supreme Court will heard the case
sooner (~3 months instead of 1 year), but it will cost more.
 There is a right of appeal from the Provincial Court to the Supreme Court.
(SCA s. 5)
o Supreme Court Act:
 Divvies up the province into 7 judicial districts (which are composed of counties).
(SCA s. 8)
 Each district has a registry, with which all documents must be filed.
 Masters of the Court: Same powers as a judge in chambers (can hear applications) (SCA s. 11)
 Note: Masters’ decisions can always be appealed up to a judge of the BCSC.
Limitation Periods: Contained in the Limitation Act (“LA”).
o Default: Unless otherwise noted, all actions have a 6 year limitation period
(LA s. 3(5))
o 2 years: Personal injury or property damages, incl. econ. losses from contract/tort/statute (LA s. 3(2))
 Exception: Damages for a sexual offence have no limitation.
(LA s. 3(4)(k))
o 10 years: A variety of causes of action, mostly dealing with trusts.
(LA s. 3(3))
o Ultimate Limitation: Despite confirmations or extensions, no action can be commenced more
than 30 years after its intial cause. This does not apply to unlimited actions (below)
(LA s. 8)
o No Limitation: Mostly possession of land, collateral, or enforcement of injuctions/etc. (LA s. 3(4))
Extensions to Limitation Periods:
o Confirming a Cause of Action: If a cause of action is confirmed by the would-be defendant,
then the limitation period restarts at that time if it has not already expired.
(LA s. 5)
 Requirements: Must be in writing and addressed to the claimant (there’s more!) (LA ss. 5(5),(6))
o Postponement of the limitation period: Time does not start running until:
(LA s. 6(3))
 The identity of the defendant is known to the claimant
 A reasonable person would conclude (knowing the facts within π’s means of knowledge
and having taken the appropriate advice a reasonable person would seek on those facts) that:
 That cause of action would have a reasonable prospect of success
(LA s. 6(3)(a))
 π ought to be able to bring an action, in light of π's interests and circumstances. (LA s. 6(3)(b))
 This is the most significant factor. π must be acting reasonably in light of π’s own
interests and circumstances by delaying the action. If so, postponement granted. (Novak)
o Counterclaim or Other Claims: Courts may permit amendments of pleadings to add parties or
counterclaims after the limitation period where the court considers it just.
(LA s. 4)
 Factors for whether you can add parties or claims after the limitation period:
(Teal Cedar)
 Extent of the delay (how far out of the limitation period are we?)
 Reasons for the delay (why wasn't it brought earlier?)
 Explanation (why wasn't this knowledge obtained earlier?)
 Degree of prejudice caused by the delay (particularly prejudice to the ∆ being added)
 Extent of the connection between the existing claims and the new claims being added.
Notice of Claim vs. Petition vs. Requisition:
o Notice of Civil Claim: Unless otherwise required, every action starts with this.
(R. 2-1(1))
o Petition to the Court: Any action listed under R. 2-1(2) starts with this.
(R. 2-1(2))
o Requisition: May use instead of petition if parties consent or no notice is required. (Rs. 2-1(2), 17-1)
2
Civil Procedure
Drafting Pleadings
Pleadings Generally
• Purpose: "The ultimate function of pleadings is to clearly define the issues of fact and law to be
determined by the court." All assessments take place with this in mind.
(Delaney)
o Pleadings must be as brief as the nature of the case permits.
(Delaney)
• Contents:
o Material Facts: Pleadings must contain a summary of the material facts
(Delaney)
 Material facts: Those facts that are necessary for forming a complete cause of action (Delaney)
 Categories of material facts:
(Delaney)
 The plaintiff's right or title
(Delaney)
 The defendant's wrongful act violating that right or title
(Delaney)
 The consequent damage, whether nominal or substantial.
(Delaney)
o Pleadings can’t contain evidence.
(R. 3-7(1))
o Only briefly refer to material documents and conversations. They may only be quoted if the
words themselves are material.
(R. 3-7(2))
o Facts needn’t be plead if they’re presumed by law to be true or the burden’s on another party(R. 3-7(3))
o Although you can’t be inconsistent, allegations may be made “in the alternative”
(Rs. 3-7(6),(7))
o Conclusions of law can only be pleaded if the material facts are also pleaded.
(R. 3-7(9))
o Surprising Allegations: Must explicitly plead any fact or law that rebuts another party’s
claim/defence, would take them by surprise, or raise new issues of fact not already plead (R. 3-7(12))
o General Relief: No need to request general relief
(R. 3-7(13))
o General Damages: If claimed, the amount of general damages must not be plead.
(R. 3-7(14))
o Denying Facts: If an allegation of fact is denied, its substance must be answered (i.e. it cannot
be denied “evasively”)
(R. 3-7(15))
o Particulars: These go beyond “material facts”; they are more detailed, add more context
 Required in misrep., fraud, undue influence (and other) cases, or when “necessary” (R. 3-7(18))
 If more particulars are found after pleadings, they may be served (or demanded) then (R. 3-7(20))
 The court may order a party to serve "further and better" particulars of a matter.
(R. 3-7(22))
 Parties must request particulars from other parties before applying to the court for them(R. 3-7(23))
 A demand for particulars doesn't automatically grant a stay of proceedings or an extension
of time, but it may be grounds for the granting of an extension of time.
(R. 3-7(24))
• Striking Pleadings: The court may strike out or amend all or part of any pleading/document on a
number of grounds: e.g. unneccessary, no reasonable claim, prejudicial, abusive
(R. 9-5(1))
o Upon Striking: The court may pronounce judgment or stay or dismiss the proceedings, and
may order the costs of the application to be paid as special costs (i.e. full costs).
(R. 9-5(1))
o Application: No evidence can be admitted in an application for striking
(R. 9-5(2))
o Test: "Assuming that the facts as stated in the statement of claim can be proved, is it "plain
and obvious" that the plaintiff's statement of claim discloses no reasonable cause of action?" (Young)
 The claims should only be struck out if there is a “radical defect” such that there is no
chance they they could succeed.
(Young)
o Example: Initiating multiple proceedings from one set of facts maliciously or vindictively
constitutes an “abuse of process” and allows striking. Lacking material facts does, too.
(Young)
3
Civil Procedure
Notice of Civil Claim
• Form: Must be filed in Form 1.
(R. 3-1(1))
• Contents: Notice of Civil Claim contents (R. 3-1(2)) and general pleadings contents (R. 3-7)
o Specific Contents: (1) concise statement of the material facts, (2) the relief sought, (3) a
concise summary of the legal basis, (4) the proposed place of trial, (5) if a party sues/is sued in
a representative capacity, show in what that capacity is, (6) data collection information. (R. 3-1(2))
o General Contents: See Pleadings Generally, p. 3.
(R. 3-1(2)(g))
• Expiry: A notice of civil claim is not enforceable beyond a period of 12 months
(R. 3-2(1))
o Renewal: A court may grant renewal of the notice for an additional 12 months
(R. 3-2(1))
 The renewal period begins at the date of the renewal order
(R. 3-2(3))
 Can get a 2nd renewal, for up to 12 more months (Prof: Need a "pretty good reason") (R. 3-2(2))
 Factors in determining whether to grant renewal:
(Sutherland)
 Was the application to renew brought promptly?
(Sutherland)
 Did ∆ have any notice of the claim?
(Sutherland)
 Has ∆ suffered prejudice?
(Sutherland)
 This factor gets serious (and perhaps decisive) weight
(Sutherland)
 Was failure to serve notice attributable to the actions of ∆?
(Sutherland)
 Was failure to serve notice attributable to π?
(Sutherland)
 Failure to serve a writ is "an irregularity"; courts have a broad/unfettered discretion to
renew, and should do whatever is necessary to see that justice is done.
(Sutherland)
• Service: Must be served via personal service (see Service, p. 5)
(R. 4-3(1))
Pleadings Filed After the Notice of Civil Claim
• Response to Notice of Civil Claim
(R. 3-3)
o Form: Must be filed in Form 2.
(R. 3-3(1))
o Contents: Regarding the contents of the notice of civil claim (NoCC), the response must: (R. 3-3(2))
 Facts: Must accept, deny or plead no knowledge of each fact in the NoCC. Denials must set
out an alternate version of the fact. Any additional material facts must be included. (R. 3-3(2)(a))
 Omissions: Allegations of fact that are not responded to are deemed to be outside of the
knowledge of the defendant
(R. 3-3(8))
 Spurious Denials: Forcing the plaintiff to go to additional expense to prove facts that
were spuriously denied may result in having costs awarded against you. (c.f. R. 14-1(14)(b))
 Relief: Must explicitly accept, oppose or take no position on the remedies sought against ∆.
If relief is opposed, a consise legal summary for that opposition must be given. (R. 3-3(2)(b),(c))
 General Contents: See Pleadings Generally, p. 3.
(R. 3-3(2)(d))
o Timing: Responses must be filed and served within the following period (UTCOO):
(R. 3-3(3))
 Canadian Resident: 21 days after service.
(R. 3-3(3)(a)(i))
 US Resident: 35 days after service.
(R. 3-3(3)(a)(ii))
 Others: 49 days after service.
(R. 3-3(3)(a)(iii))
 Note: You can request an extension from other counsel. Most will consent, as a courtesy.
o Consequences of Failure to Respond: See Default Judgment, p. 15.
• Counterclaims: Defendants may file claims in the action against the plaintiff in Form 3.
(R. 3-4)
o Timing: These use the same rules as a response to notice of civil claim in R. 3-3(3).
(R. 3-4(1))
o Non-Plaintiff Parties: Counterclaims may be made against third parties or defendants (in
addition to the plaintiff, who must always be named); 3rd partied become joined as parties. (R. 3-4(2))
o Nomenclature: Plaintiff and defendants are still referred to as such in counterclaims (i.e. the
claimant is still the defendant). New parties are "defendants by way of counterclaim"
(R. 3-4(3))
o Responses: These may be filed and served in Form 4.
4
Civil Procedure
•
o Applicable Rules: Counterclaims and responses to counterclaims are subject to rules 3-1, 3-3
and 3-8 as if they were notices of civil claim and responses to notices of civil claim.
(R. 3-4(6))
 Content: Their forms are subject to the general content rules in R. 3-7 (see p. 3) (Rs. 3-4(1), (5))
o Separation: A court can rule that a counterclaim be struck or tried separately.
(R. 3-4(7.1))
Replies: These can be filed by the plaintiff as a response to a response, but it’s rare.
(R. 3-6)
o Timing: The plaintiff has 7 days after the response to civil claim to serve these
(R. 3-6(1))
Amending Pleadings
• Before service of notice of trial and case planning conference, amendments may be made without
leave of the court. After one of those events, need the court’s permission or parties’ consent. (R. 6-1(1))
• Amended pleadings must be served on all the parties within 7 days by ordinary service.
(R. 6-1(4))
o Exception: Amendments made at trial do not have to be served or filed.
(R. 6-1(8))
• Response: A party has 14 days after being served with an amended pleading to amend their own
pleading and serve it on all other parties. They may only amend an matters raised by the original
amendement in this manner.
(R. 6-1(5))
o If no response is filed, that party’s original pleading is deemed to be their response. Any new
facts raised in the amended pleading are deemed to be outside their knowledge
(R. 6-1(6))
Service
•
•
•
Addresses: Every party of record must have an address for service
(R. 4-1(1))
o If you have a lawyer, this is the lawyer's address
o If you have no lawyer, you need an accessible address within 30km of a court registry, or (1)
any accessible address and (2) a BC postal address, fax number or e-mail address.
o Note: Parties of record are only those who have responded to your notice.
Ordinary Service: Documents may generally be served by ordinary service
(R. 4-2(1))
o How to Serve: Leaving the document at the listed address, faxing it, or e-mailing it.
(R. 4-2(2))
o Calculation of Time: If service is performed after 4pm on a non-holiday (or any time on a
holiday or Saturday), service is deemed to occur on the next business day.
(R. 4-2(3))
 Recall that "holiday" includes Sunday (and other listed holidays)
(Interpretation Act s. 29)
 Faxes and E-mails: They follow the same rule, but under a different provision
(R. 4-2(6))
 Interpretation Act Rules: The first day of a time period is excluded from calculation. The
last day is included, unless the period is expressed as “clear” days/etc, or as “at least” or
“not less than” a certain number of days/etc.
(IA s. 25)
 Less than 7 days: If the period is for less than 7 days, holidays are not included.
(R. 22-4)
 Extensions of any time period may be ordered by the court, or with consent
(R. 22-4(2),(3))
o Service by mail: Service is deemed to be completed 7 days after the date of mailing (pushed
back to the next business day)
(R. 4-2(4))
o Service by fax: If more than 30 pages, can only transmit it after 5pm or before 8am unless
there’s consent. If less than 30 pages, it can be transmitted at any time.
(R. 4-2(5))
 This doesn’t affect timing; Rule 4-2(6) still applies to the deemed time of service.
Personal Service: Required for notices of civil claim, petitions, counterclaims, etc.
(R. 4-3(1))
o Individuals: Just leave the document with him or her
(R. 4-3(2)(a))
o Others: For corps, infants, the mentally incompetent, etc, leave a copy with an appropriate
representative (as indicated in the Civil Rules)
(R. 4-3(2)(b)-(h))
o Timing: The Civil Rules just restate the rules for ordinary service (see above)
(R. 4-3(7))
5
Civil Procedure
•
•
•
Alternative Methods of Service: The requirement of personal service may be waived.
o The court can grant permission (without notice) to use an alternative method of service if it is
impracticable to perform personal service because the person to be served (1) can't be found
after a diligent search, or (2) is evading service of the documents
(R. 4-4(1))
o A copy of the order allowing alternative service must be served with the document unless it is
service by advertisement (or UTCOO)
(R. 4-4(2))
 Form for Advertisements: Advertisements must be in Form 10.
(R. 4-4(3))
o Requirements to get an order for substituted service:
(Wall)
 Personal service cannot be usefully effected or will involve too great a cost.
(Wall)
 Reasonable steps have been taken to locate the party to be served
(Wall)
 If he has been located, reasonable efforts had been made to effect personal service
(Wall)
 What is reasonable depends on the circumstances of each case, including:
(Wall)
 The type of relief claimed
(Wall)
 The amount involved
(Wall)
 The avenues explored to locate the person
(Wall)
 The steps taken to effect personal service
(Wall)
 Note that "reasonable efforts" usually require attempting to perform service (or proving
that it is unlikely to work)
(Wall)
o Example: Service to Japan costs $500. Action is for millions. Alternative denied.
(Wall)
 Alternative service is an exception to the rule of personal service, not a right.
(Wall)
Proof of Service: Filing an affidavit by the person who served the document proves service (R. 4-6(1))
o A response being filed by the respondent is also sufficient to prove service
(R. 4-6(1))
Relief: Courts can make an order to remedy ineffective service (which occurs when it doesn't come
to a party's notice, notice came later than service, or the document was incomplete)
(R. 4-7)
Non-Compliance with the Rules
•
•
•
Non-compliance should be viewed as an irregularity and doesn't nullify proceedings or docs. (R. 22-7(1))
Orders: The court can make any order it wants in response to non-compliance, including dismissal
of all or part of the proceeding/doc, allow amendments, or pronounce judgment
(R. 22-7(2))
o Note: If the action is dismissed and the limitation period has passed, can still apply for an
extension through the court’s general power to extend time periods
(R. 22-4(2),(3))
Specific Forms of Non-Compliance: If a party refuses or neglects to obey a subpoena, answer a
question, produce a document, make discovery, or submit to a medical exam (among other things),
the action will be dismissed (if the plaintiff), or the proceeding may continue as if no response to
civil claim had been filed (if the defendant)
(R. 22-7(5))
Injunctions
•
•
•
•
Before Trial: An injuction may be applied for even if it is not requested in the pleadings
(R. 10-4(1))
Before Proceedings: On the condition that a proceeding begin, an injunction can be sought even
before pleadings are filed or served
(R. 10-4(2))
Application for Injuction Without Notice: This may result in an interim injunction
(R. 10-4(3))
Damages: An order for an injuction must include the applicant’s undertaking to abide by any
order that the court may make as to damages (this should reduce unwarranted applications) (R. 10-4(5))
o This undertaking must include an affidavit.
6
Civil Procedure
•
The Test: An injunction may be granted where:
o The applicant demonstrates to the court that there is a fair question to be tried
(CBC, Whale)
 This relates to the reasonable apprehension of the existence of a right and the breach thereof(CBC)
 This is a matter of “common sense”
(Whale)
o Is there likely to be irreparable harm if the injunction is denied?
(Whale)
 Don’t need “clear proof” for this; simple doubt re: adequacy of damages is enough
(Whale)
 Note: In CBC, this factor is rolled into the 1st factor (i.e. Whale uses 3 prongs, but not CBC)
o The balance of convenience favours granting the injunction. Factors include:
(CBC, Whale)
 Consider the adequacy of damages as a remedy
 Adequate for the applicant if not granted? Injunction is not appropriate
 Inadequate for the respondent if [improperly] granted? Injunction may be inappropriate
 The likelihood that if damages are awarded they will be paid
 The preservation of contested property
 Other factors re: whether harm from granting/refusal of the injunction would be irreparable
 Which of the parties has acted to alter the balance of the relationship (or the status quo)
 The strength of the applicant's case
 This is considered as a balancing factor; questions about the strength of the case are also
asked when determining whether the first prong has been met.
 Any factors affecting the public interest.
 Any other factors affecting the balance of justice and convenience.
Preparing Evidence for Trial
Detention, Preservation, and Recovery of Property
•
The court may make an order allowing a party to enter land or buildings in order to detain or
preserve property that is in issue.
o Prof: This is effectively a civil search and seizure rule. Need “pretty good evidence”
(R. 10-1)
Discovery
Disovery and Inspection – The List of Documents
• Within 35 days of the close of pleadings (i.e. the end of the response period), each party must serve
a "list of documents" to the other party.
(R. 7-1(1))
o Form: Lists of documents must be served in Form 22 and must contain:
(R. 7-1(1))
 All documents that are or have been in the party's possession or control and, if available,
could be used by any party at trial to prove or disprove a material fact (Form Part 1)
 All other documents to which the party intends to refer at trial (Form Part 2)
o Definition: The “close of pleadings” is the time when the reply period ends (i.e. 7 days after
service of the response to the notice of civil claim, or whatever day the reply is served)
(R. 3-6(1))
 Calculation of Time: See Service, p. 5.
o Definition: "Documents" is very broad, basically includes any recorded information at all (R. 1-1(1))
o Privileged Documents: Must be included in the Form 22 list of documents, along with a
statement of the grounds of privilege.
(R. 7-1(6))
 The nature of the document must be described in a manner (without revealing privileged
information) that will enable other parties to assess the validity of the claim of privilege(R. 7-1(7))
 There must be some evidence as to why a document is claimed to be covered by a privilege,
not a mere assertion of privilege.
(Benning)
 Litigation Privilege: The creator of the document must put in an affidavit describing the
circumstances under which the document was created and why it was created.
(Benning)
7
Civil Procedure
•
•
•
•
•
o Purpose: Rule 7-1 was designed with proportionality in mind in order to limit volume of initial
disclosure of documents to relevant matters. The rule used to refer to documents relating to
“any matter in question”, but now refers to those that are relevant to “material facts”. This
narrowed the scope of intended disclosure. If you need more, make an application.
(Biehl)
Each party must allow other parties to inspect and copy, during normal business hours and at the
location specified in Form 22, the non-privileged listed documents.
(R. 7-1(15))
o Other parties can request copies, which must then be served on them by the possessing party,
but the requesting party does have to pay for it (in advance, though that’s usually waived)(R. 7-1(16))
Demanding additional documents: A party can demand (in writing) that additional documents be
added to the list if they believe that the opposing party's list of documents is incomplete.(Rs. 7-1(10),(11))
o Response: The other party has 35 days to respond with reasons why some/all of the documents
aren't being produced (they can also choose to comply and produce some or all of them) (R. 7-1(12))
o Application for Production: If the other party chooses not to comply with the demand within
35 days, the demanding party may make an application an order that other party comply (R. 7-1(13))
 The judge may then order (or excuse the party from) compliance.
(R. 7-1(14))
Unlisted Documents: Any documents not in a list of documents may not be used in court. (R. 7-1(21))
Third-Party Records: Production of a [copy of a] document that is held by a third party can be
ordered by the court with an application under Rule 8-1 and notice to all parties (incl. 3rd party)(R. 7-1(18))
Professional Ethics:
o Lawyers have to maintain complete confidentiality of all information disclosed by client, even
if it's publicly known. However, certain documents must be disclosed to other parties, who have
an implied undertaking to also keep the information confidential and use it only in context of
that action, unless there is permission (or a court order) to use it in another action.
(Sandbar)
o Lawyers that receive a document not intended for them must: (Law Society Handbook Ch. 5, Rule 15)
 Return it unread and uncopied, or
 If the lawyer doesn't realize it wasn't intended for him/her until all or part of it was read, it
must be returned uncopied and the disclosing party must be made aware of the extent to
which the lawyer is aware of it, and what use the lawyer intends to make of it.
Examination for Discovery
• Purposes of examinations for discovery:
o To get admissions from the other party to help your case
o To gather evidence to construct a whole picture of the case
• Each party must make him/herself (or a representative, esp. corps.) available for examination (R. 7-2(1))
• Length: No examinations of a person can go longer than 7 hours (unless he/she consents)
(R. 7-2(2))
• Location: Examinations must occur within 30km of the registry closest to the examinee
(R. 7-2(11))
• All Examinations Recorded: All examinations must be before a court reporter
(R. 7-2(12))
• Notice: At least 7 days before the examination, the person to be examined (or their lawyer, if
they're a party) must be served an appointment in Form 23. Witness fees must also be provided to
the party (or their lawyer) as required under Schedule 3 of Appendix C.
(R. 7-2(13))
• During examination, the examinee must produce for inspection all documents in his or her
possession or control (not privileged) relating to the matters in question in the action.
(R. 7-2(16))
o Note that this is broader than discovery and inspection – “matters in question”.
(Biehl)
• Examination is performed as a cross-examination, though they may re-examined on their own
behalf (by their lawyer) or by a party not adverse in interest on any matter discussed.
(R. 7-2(17))
• Scope: Must answer any question within your knowledge (unless privileged or irrelevant) (R. 7-2(18))
o They're also compellable to give the names and addresses of all persons who reasonably might
be expected to have knowledge relating to any matter in question in the action.
(R. 7-2(18))
8
Civil Procedure
•
•
•
•
•
•
o A person being examined for discovery may be required to inform him/herself. The
examination may be adjourned for that purpose.
(R. 7-2(22))
 The examining party can request response by letter (instead of reconvening)
(R. 7-2(23))
 Letter responses are under oath, and examination can still be continued after a letter (R. 7-2(24))
Objections: If question is objected to, the question and answer are recorded. The court determines
if the objection was valid and whether the party should submit to further examination
(R. 7-2(25))
Format: Transcripts are recorded in question-and-answer format, and can be requested by parties,
examinees, and court-appointed people.
(R. 7-2(26))
Counsel for the examinee should not interfere with the examination (e.g. objecting) unless:
(Kendall)
o It's clearly necessary to avoid ambiguity in the question
o It's clearly necessary [?] to avoid injustice
Example: Opposing counsel objected so often and frivolously that counsel was effectively deprived
of the right of cross-examination. Court reset the clock for examination back to 7 hours.
(Kendall)
Prof: Tips on discovery:
o Ask one question at a time.
o Remember that only verbal words are recorded. Don't rely on gestures or tone. Ask highly
descriptive questions ("Are you currently looking at page X of document Y?" – "Do you see
this item in the top left corner of the page?")
o If someone (e.g. opposing council) starts shouting or getting sarcastic, state it out loud ("Mr.
Smith, your voice is getting louder. Could you please lower your voice?")
Special Issues:
o If there's a need for translation, the time needed for examination would probably be greater.
o Can't use the transcript outside of the current court action, (absent permission or a court order)
o If you order discovery and no one shows up, wait 15 minutes, get the court reporter to give you
a certificate of non-attendance, then go to court and request that the plaintiff's claim be struck.
The court will likely order the plaintiff to extend discovery within a certain period of time.
Interrogatories
• Definition: Interrogatories are a series of written questions submitted to a party. They reply in
writing, under oath. This is an uncommon alternative to examinations for discovery.
• Form: Discovery by interrogatories must be conducted in Form 24.
(R. 7-3(1))
• You can only serve interrogatories on a party if that party consents or the court grants leave (R. 7-3(1))
• Timing: Parties have 21 days to provide an answer under affidavit.
(R. 7-3(4))
• Continuing duty to answer: If the party later realizes that their answer was incorrect or
incomplete, they must provide supplemental answers in an affidavit.
(R. 7-3(11))
o If the court believes an answer is insufficient, they can demand a further answer
(R. 7-3(7))
Witnesses – Witness Lists and Pre-Trial Examination
• Witness Lists:
o Each party must file and serve a witness list on all other parties at least 28 days before trial (or
at the trial management conference, if that is earlier)
(R. 7-4(1))
 This can be varied by the case plan order.
 This doesn't include expert witnesses or adverse witnesses.
o Need to give the complete name and address for each witness.
(R. 7-4(2))
o There's a continuing obligation to amend inaccurate or incomplete witness lists.
(R. 7-4(3))
o There is no obligation to call a listed witness.
(R. 7-4(4))
• Pre-Trial Examination of Witnesses:
o The court can order that a non-party (i.e. a witness) who may have material evidence relating
to a matter in issue in the action be examined under oath.
(R. 7-5(1))
9
Civil Procedure
o
o
o
o
 The requesting party may (likely will) be required to pay the person's legal fees.
(R. 7-5(1))
Affidavit: Application for such an order must be supported by an affidavit that states the matter
in question that the witness is thought to have evidence on, and that the witness has refused to
give a statement on that matter or has given conflicting responses.
(R. 7-5(3))
 Other Parties’ Experts: If the witness is another party’s expert, the affidavit must also say
that you are “unable to obtain facts and opinions on the same subject by other means” (R. 7-5(3))
 Otherwise, those experts are excluded from pre-trial examination.
(R. 7-5(2))
Examination is in the usual pattern of direct, cross, and then re-direct.
(R. 7-5(8))
Length: Examinations can't exceed 3 hours.
(R. 7-5(9))
The general rules of exam. for discovery apply here (7-2(12),(16),(18),(22),(25)–(28)) (R. 7-5(10))
Physical Examination and Inspection – Medical and Property Examinations
• If the physical or mental condition of a person is in issue, the court may order an exam
(R. 7-6(1))
o The court may order further examinations.
(R. 7-6(2))
• Where necessary, the court may make an order for the inspection and preservation of property,
which may include taking samples or conducting experiments.
(R. 7-6(4))
• The court can authorize persons to enter land or buildings to carry out the inspection.
(R. 7-6(5))
Admissions
• Once the Response to Civil Claim has been submitted, a party can request another party to admit
"the truth of a fact or the authenticity of a document".
(R. 7-7(1))
o Form: Form 26 is used for this, and must specify the document at issue.
(R. 7-7(1))
• The truth of the fact is automatically presumed unless the party issues a specific denial, explains
why they can't make the admission, or explains why they must refuse due to privilege.
(R. 7-7(2))
o Costs: Where refusal to admit is unreasonable, the refusing party may need to pay the costs of
the other party incurred in proving that issue.
(R. 7-7(4))
o Timing: The party has 14 days to respond, otherwise it’s a deemed admission.
(R. 7-7(2))
• Withdrawal of admissions: Must get leave of the court or consent from parties.
(R. 7-7(5))
o Test for ordering withdrawal of a deemed admission: Look at all the circumstances, including:(Weiss)
 That the admission has been made inadvertently, hastily, or without knowledge of the facts.
 That the fact admitted was not within the knowledge of the party making the admission.
 That the fact admitted is not true.
 That the fact admitted is one of mixed fact and law.
 That the withdrawal of the admission would not prejudice a party.
 That there has been no delay in applying to withdraw the admission
o Example: π gets hurt in a car accident, loses some hearing. π's counsel gets a letter from ICBC
that, on the last (of 5 pages) states that a notice to admit is included; admission stated that π was
only suffering from a pre-existing condition. π doesn't notice it, 14 day period expires – all
those facts are admitted. π applies to withdraw; court accepts.
(Weiss)
10
Civil Procedure
Expert Witnesses
•
•
•
•
Pre-Trial Examinations: See Witnesses – Witness Lists and Pre-Trial Examination, p. 9.
The Duty of Experts:
o Experts have a duty to assist the court, not to advocate for either side
(R. 11-2(1))
 For this reason, you might want to hire on practitioners as "consultants", rather than experts
 Where expert violates his duty to and becomes an advocate for one side, their testimony will
be rejected as unreliable and not credible.
(Jayetileke)
o Experts must certify their reports, saying that they understand their duty and have met it. (R. 11-2(2))
Expert Reports:
o Content of a report:
(R. 11-6(1))
 In addition to formalities (name, address, etc), the expert must state the nature of opinion
that was sought ("terms of reference") and the opinion that was given.
 If the terms of reference (i.e. the questions asked of the expert) are biased so as to get a
particular form of answer, that can be attacked by the opposing side (or their expert).
 The expert must also give reasons for the opinion, which must include:
 A description of the factual assumptions on which the opinion is based,
 A description of any research leading to the expert opinion, and
 A list of every document relied on by the expert in forming the opinion.
 Prof: Summarizes this as five requirements:
 Qualifications
 List of documents reviewed
 List of facts and assumptions
 Terms of reference
 Analysis
o Timing: Report must be served on all parties at least 84 days (i.e. 12 weeks) before trial (R. 11-6(3))
o Responses: Responding reports must be served on all partes at least 42 days before trial. (R. 11-6(4))
o Objections: Notice of an objection to an expert report must be served at least 21 days before
trial and no later than the trial management conference.
(R. 11-6(10))
 If a reasonable notice could have been made in the above manner but was not, then any
objection raised at trial regarding that report will not be permitted. (UTCOO)
(R. 11-6(11))
o Challenging Expert Reports: Satisfying the civil rules doesn’t make a report admissible.
There are four criteria (taken from Mohan) re: admissibility of expert opinion evidence. (Cogenix)
 Relevance of opinion
(Cogenix, Mohan)
 Opinions should be “narrow and specific”
(Homolka)
 Necessity of the opinion to assist the trier of fact to draw correct inferences
(Cogenix, Mohan)
 Absence of exclusionary rules; and
(Cogenix, Mohan)
 Requisite qualifications of the proposed expert witness.
(Cogenix, Mohan)
 Qualifications narrow and specific
(Homolka)
Expert Evidence at Trial:
o Experts may not give opinions at trial that are not in their written reports
(R. 11-7(1))
 Exception: This doesn’t apply to the court’s own expert (appointed under Rule 11-5) (R. 11-7(1))
o Cross-Examination: A party may demand that experts attend trial for cross-examination.(R. 11-7(3))
 If this demand is made within 21 days of service of an expert’s report (court may vary
period), the expert must testify in order for the report to be admitted as evidence.
(R. 11-7(2))
 If no such demand is made, there is no need for the expert to attend trial
(R. 11-7(2))
o Broad Exception: The court can ignore the requirements of Part 11 and allow an expert to
provide evidence at trial if “the interests of justice require it”, among other grounds
(R. 11-7(6))
11
Civil Procedure
Applications, Affidavits and Orders
Applications
•
•
•
•
•
•
•
Notice: Most applications begin with a notice of application filed in Form 32.
(R. 8-1(5))
o Exceptions: Applications for orders by consent or applications that don’t require notice may
use Form 32 or a variety of other forms. Urgent applications, applications made by written
submissions, or applications that specifically list a different form.
(R. 8-1(2))
o Contents:
 Orders Sought: Describe precisely what you want the court to do (always ask for costs!)
 Factual Basis: State the facts that are being relied on
 Legal Basis: State the rule that provides the right to bring the application and give a brief
summary of the legal arguments, including citations of appropriate cases.
 Material to be Relied on: List affidavits and other documents
 Time Estimate: How long is the application likely to take?
 Jurisdiction: Is the application in the jurisdiction of a Master or a Judge? (See below)
o Service: The notice of application must be served with all of its cited documents/affidavits (R. 8-1(7))
o Timing: Application must be filed at least 8 business days before trial
(R. 8-1(8))
 This is extended to 12 business days if the app. is under Rule 9-7 (Summary Trial). (R. 8-1(8))
Response: An application response must be 10 pages or less, indicate the points on which the
applicant consents, opposes, or takes no action, and lay out any opposition in the same manner as a
notice of application (facts, law, affidavits, evidence, time estimate)
(R. 8-1(10))
o Service: The response must be served with 2 copies of each cited document/affidavit
(R. 8-1(9))
o Timing: Response must be filed within 5 business days after service of notice
(R. 8-1(9))
 This is extended to 8 business days if the app. is under Rule 9-7 (Summary Trial) (R. 8-1(9))
Written Arguments: Written arguments (other than the application forms and documents
themselves) may only be submitted if the hearing is estimated to take more than 2 hours. (R. 8-1(16))
No additional affidavits: No affidavits can be added to an above notice or response once the
deadline passes without parties’ consent or court order.
(R. 8-1(14))
Application Record: One business day before the application’s hearing, the applicant must provide
an application record to the registry where the hearing’s location. It must include an index, copies
of notice, application, responses, affidavits, pleadings, and all documents to be relied upon. (R. 8-1(15))
o Application records must be served on the respondents a full day prior to the hearing, and they
must return the record after the hearing.
(R. 8-1(17)–(20))
Masters’ jurisdiction: The same as judges’, except for where prohibited by direction (Const 1867 s. 96)
o Prohibitions on Masters’ Jurisdiction:
(See BCSC Practice Direction PD-14)
 Master does not have jurisdiction on any rule that specifically says a judge must decide it.
 Note: Read the provision authorizing the application! Does it say “judge”?
 Masters cannot dispose of an appeal.
 Where a party is under a legal disability (e.g. infants), the matter must go before a judge
 Masters have no jurisdiction with respect to criminal proceedings, can't make contempt
orders, can't grant injunctions, can't vary judges’ orders (except in certain circumstances)
 Masters cannot conduct trial management conferences.
o Non-Exhaustive Areas of Masters’ Jurisdiction:
 Interlocutory applications (i.e. anything pre-trial, other than the above)
 Certain matters with respect to family law cases
 A master can make final orders that are made by consent.
Other Types of Applications: See Rule 8-3 for consent applications, Rule 8-4 for applications
without notice. Urgent applications: see 8-5(1)-(5) for “short notice” and 8-5(6)-(8) for “no notice”
12
Civil Procedure
Affidavits
•
•
•
•
Tips on Affidavits:
o Start with a statement by the testifying party that attests to the truth of all the statements (and
saying that they believe the things that they didn't see themselves to be true)
o Include a brief summary of the claim and an outline of the action to date.
o Figure out what you need your witness or client to say and then state it clearly and plainly.
o Affidavits are purely factual – don't make arguments or state opinions.
o Lawyers can't generally make affidavits for themselves in an application.
 If it's purely procedural and you aren't the one arguing the application, it may be acceptable.
Rules of Affidavits Generally:
(R. 22-2)
o Must be set out in first person (“I…”)
o Must show the name, address, and occupation of the person swearing the affidavit
o If the affidavit is by an agent, lawyer, etc to a party, it must be stated.
o Must be divided into consecutively numbered paragraphs.
o May be in Form 109 (although some uses require a different form)
o Must set out in right hand corner name of person, sequence number, date (for identification).
o An affidavit is made when the affidavit is signed and the jurat is filled in.
o Rules exist for people who cannot read or see their affidavit, or who don't know English.
o To attach documents to an affidavit to get them before the court, they are attached as an exhibit.
o You don't have to file every single exhibit; can simply say that the whole document is not
attached and is available at counsel's office for viewing.
(R. 22-2(9))
o Affidavits may only include statements that could be made at trial
(R. 22-2(12))
o Can make an affidavit to be used in a proceeding, even if the proceeding hasn't already started.
Affidavit of Personal Service: Administered in Form 15.
o Content: A series of statements sworn to in numbered paragraphs
o On one side is a place for the jurat, who signs and says that they administered the oath. All
lawyers and notaries are commissioners and may sign it.
Counsel’s Duty: Counsel is responsible to guide information that goes into an affidavit and it must
be pure fact (no hearsay, unfounded allegations, opinion, etc.)
(Kennedy)
o Advice from the court: Advoid adjectives and opinions on the other side’s conduct.
(Kennedy)
Orders
•
•
•
Order Made After Application: This is done in Form 35.
o After application, one counsel will draft the order and submit it to the court, with the
agreement of opposing counsel.
o A pre-drafted order may be brought to court to be signed immediately if the matter is
uncontested or after making only very minor changes to it.
Consent Order: This is done in Form 34.
o Very similar to other order; key difference is that these are often made without a hearing.
o Submit this form of order for matters which have been done under consent of all parties
o Sign to say not only do they approve of the form of the order but that they consent to it on
behalf of their parties.
Orders Generally: These are goverened by Rule 13-1.
o Order of court may be drawn up by any party, though it's usually the successful party
o If the (draft) order is approved by the master/judge, signatures of the other parties aren't needed
o Date of order is when it was pronounced, not the date of the hearing, and it takes effect on that
same date, not some time in the future.
o The Slip Rule: The court may at any time fix an order which contains a clerical error (ie:
13
Civil Procedure
•
•
number was wrong in order, but it was right in court) if you resubmit the corrected order with a
letter/promise explaining what went wrong.
(R. 13-1(17))
o Courts typically give orders, but they may sometimes give direction or advice to parties.
These things have less weight than an order, but sometimes need to be documented.
(R. 13-1(18))
Enforcement: This is goverened by Rule 13-2.
o Often, people won't comply (immediately) with orders that are made; this section outlines the
steps which may be taken to get enforcement of the order.
o Just need to know that this section is here; don't need to know how to do any of it for this class.
Subpoena to Debtor: This is goverened by Rule 13-3.
o Another enforcement method where a party is supposed to pay money.
o Methods for finding out what assets the person might have so you can go collect the money
Pre-Trial Conferences
Case Planning Conference
•
•
•
•
•
A party can request a case planning conference, or the court can direct one.
(R. 5-1(1),(2))
If a case planning conference is ordered, the parties must produce case plan proposals.
(R. 5-1(5))
Conducted by a judge or master (usually a judge, if one is already seized of the matter)
Contents of case plan proposal: Must include proposals with respect to the following:
(R. 5-1(6))
o Discovery of documents
o Examinations for discovery
o Alternative dispute resolution methods.
o Whether any expert witnesses will be called (and, if possible, which areas they are experts in)
o A witness list
o Preferred date of trial, as well as place and type of trial and estimated length of proceedings
Orders: Judges or masters can make basically any order varying a case planning proposal or setting
aspects of the trial.
o The orders that can be made are listed; there are a lot.
(R. 5-3(1))
o Prohibited Actions: A judge or master at a case planning conference must not…
(R. 5-3(2))
 Hear applications supported by affidavit evidence
 Make an order for final judgment, unless the parties consent.
o A case planning conference must conclude with a case plan order (as set out in (1))
(R. 5-3(3))
 The order must be in Form 21.
(R. 5-3(4))
Trial Management Conference
•
•
•
Timing: A T.M.C. must take place at least 28 days before the scheduled trial date
Trial Brief: A trial brief must be filed in Form 41 (and it must be served on all parties)
o Contents: The form must lay out:
 Summary of issues and the filing party's position on each
 The list of witnesses to be called and the time they'll need
 The expert reports that will be submitted
 The witnesses to be cross-examined and time estimates for that cross-examination
 Documents and exhibits being tendered
 Authorities relied on
 Orders sought
 Estimated time required for trial
o Timing: Trial briefs must be submitted by each party at least 7 days before the T.M.C.
o Attendance: All counsel and parties must appear at the conference (UTCOO)
Orders: A judge can make basically any order at a T.M.C. (enumerated in the Rule)
14
(R. 12-2(1))
(R. 12-2(3))
(R. 12-2(3))
(R. 12-2(4))
(R. 12-2(9))
Civil Procedure
•
o Prohibited Actions: No applications that require affidavit evidence or final orders
(R. 12-2(11))
 Example: An adjournment application requires affidavit evidence, so it can't be handled
in a trial management conference.
(Vernon)
Common Books of Documents: The judge may order the creation of a common book of
documents. Counsel must agrees which documents will go before the court. One counsel puts them
together. Need two copies of the documents: one for the judge to have in front of them, one for the
witnesses to have in front of them. Must put reasons for which documents are in (e.g. agreeing that
documents are authentic, agreeing that documents are true, etc.)
(R. 12-2(9)(e)(ii))
Settlement Conferences
•
•
•
•
A judge or master can order attendance at a settlement conference.
(R. 9-2(1))
These must be recorded, but they can't be released without a court order
(R. 9-2(1))
The judge who presides at trial can't preside at settlement conference (unless parties consent) (R. 9-2(1))
Note: Settlement conferences are free!
Resolution Without a Full Trial
Default Judgment
•
•
•
•
If response period expires without a response being filed, default judgment may be granted (R. 3-8(1))
Filings: For default judgment, π must file proof of service, proof of failure to respond, requisition
from registrar noting a lack of response, and draft judgment order in Form 8
(R. 3-8(2))
Claims for damages in default judgment can be for ascertainable amounts, interest, etc. (Rs. 3-8(3)–(11))
Test: To set aside a default judgment, the applicant must show that he/she:
(Erickson)
o Did not wilfully or deliberately fail to enter an appearance or file a defence to π's claim
o Made his application to set aside the default judgment as soon as reasonably possible after
obtaining knowledge of the default judgment or explain any delay in bringing the application
o Has a meritorious defence, or at least a defence worthy of investigation.
Summary Judgment
•
•
•
•
Application: After a response, the claiming party (usually the plaintiff) can apply for summary
judgment against the answering party(ies) (usually the defendant[s]) on all or part of the claim (R. 9-6(2))
o Response: After the above application, the answering party can respond with the allegation that
the claiming party’s original pleading doesn’t disclose a cause of action (dismissal), or present
affidavits demonstrating that there is a genuine issue to be tried (w.r.t. their claim)
(R. 9-6(3))
Application by Answering Party: After serving a response, the answering party may apply for the
dismissal of all or part of the claiming party’s claims in the original pleadings.
(R. 9-6(4))
Orders: The court can make any order it wants, including dismissal if there is no genuine issue or
judgment if the only issue is one of law (i.e. no issues of fact).
(R. 9-6(5))
Costs: If no relief granted, applicant may have the application’s costs awarded against them. (R. 9-6(7))
o If the application was reasonable, the court may decline to fix costs
(R. 9-6(8))
o If the applicant acted in bad faith or for the purpose of delay, special costs may be awarded(R. 9-6(9))
Discontinuance and Withdrawal
•
•
•
Prior to the filing of notice of trial, the plaintiff can discontinue part or all of their claims against
one or more defendants unilaterally.
(R. 9-8(1))
o After that time, the leave of the court or the consent of the parties is required
(R. 9-8(2))
A defendant can withdraw all or part of a response to civil claim at any time unilaterally.
(R. 9-8(3))
o If they do so, the proceedings may continue as if no response was ever filed
(R. 9-8(7))
Costs: If you discontinue or withdraw entirely, you are liable for costs up to that date.
(R. 9-8(4))
15
Civil Procedure
Summary Trial
•
•
•
•
•
•
Evidence: May be by affidavit (most common), answers to interrogatories, evidence from
examination for discovery, expert reports (subject to R. 11-6(1)) or admissions (under R. 7-7) (R. 9-7(5))
o Prof: Basically, everything is written. No viva voce testimony.
Timing: Application for summary trial must be brought at least 42 days before the trial date. (R. 9-7(3))
Application: The application must be heard under Rule 8-1 (i.e. in Form 32)
(R. 9-7(4))
o The Test for permitting litigation under summary trial:
(Inspiration Management)
 The test is not whether a conventional trial would make any difference to the outcome.
 Policy: Because of urgency and cost, a full trial (with all its traditional safeguards) is not
always appropriate in every case.
 Considerations for the chambers judge:
 The amount involved
 The complexity of the matter
 Its urgency
 Any prejudice likely to arise by reason of delay
 The cost of taking the case forward to conventional trial relative to the amount involved
 The course of the proceedings
 Any other matters which arise for consideration on this important question.
 Application for a summary trial need not be unanimous among parties, and the judge may
use their common sense in determining whether a summary trial should be permitted.
 Conflicts in evidence or credibility issues do not necessarily prevent a summary trial.
The court may be able to review other material to resolve them.
Another party can bring an application to dismiss the application for a summary trial
(R. 9-7(11))
The court can order that persons be brought before the court for cross-examination
(R. 9-7(12))
Judgment: The court may render judgment as per usual, or it may declare that there are
insufficient facts or that it would be unjust to decide the matter on a summary judgment.
(R. 9-7(15))
o If the judge declines to rule, they may order that the matter proceed normally, or make any of
several orders under Rule 5-3(1) [among other orders].
(R. 9-7(17))
o Precedent and Critique: The word “just” means: inter alia, “That is such properly, fully, or in
all respects; complete in amount or character; full; proper, regular;”
(Chu)
 Summary trials don't necessarily result in perfect justice. They don't feature credibilityassessment (or any questioning of witnesses by the judge), they basically exclude or
distance the public (and the parties, who don't even need to show up) from the justiceseeking process, etc.
 In fact, it probably takes 2 or 3 times as long for a judge to render judgment in these cases.
There may be less time for counsel in court, but it might not reduce the burden on the court
system.
o Example: Where the materials are voluminous (850-900pp of legal authorities, 45pp of
pleadings, etc), the issue is complex and the materials are extensive, judgment on a summary
trial would be unjust.
(Chu)
o Guidelines for summary trials: Not firm numbers, but going well over may lead to unjustness. (Chu)
 Pleadings: No more than 5pp/party
 Affidavits and Exhibits: No more than 20pp/party
 Discovery Material: No more than 10pp/party
 Briefs/Outlines: No more than 10pp/party
 Legal Precedents: No more than 30pp/party
16
Civil Procedure
Dismissal for Want of Prosecution
•
•
If the plaintiff has not done anything for some time, the court can dismiss the proceeding
(R. 22-7(7))
o Recall: Lack of prosecution for one year requires the plaintiff to give notice of intention to
proceed to the other parties. Thus, probably no dismissal for less than 1 year of delay
(R. 22-4(5))
A judge hearing an application for dismissal must consider the following factors:
(Aker Kvaerner)
o The length of the delay and whether it was inordinate
(Aver Kvaerner)
 Certain types of cases should be brought quickly (e.g. issues which impinge on a
defendant's character and/or professional integrity)
 Example: Nothing happens in 3 years (except an address update): inordinate.
(Aker Kvaerner)
o Any reasons for the delay either offered in evidence or inferred from the evidence, including
whether the delay was intentional and tactical or whether it was the product of dilatoriness,
negligence, impecuniosity, illness or some other relevant cause, the ultimate consideration
being whether the delay is excusable in the circumstances
(Aver Kvaerner)
 Legitimate settlement discussions can be a reason for delay.
 The plaintiff must establish the excuse; it can’t just be alleged
o Whether the delay has caused serious prejudice to the defendant in presenting a defence and, if
there is such prejudice, whether it creates a substantial risk that a fair trial is not possible at the
earliest date by which the action could be readied for trial after its reactivation
(Aver Kvaerner)
 Must go beyond making the action more challenging; does it impact trial fairness?
o Whether, on balance, justice requires dismissal of the action.
(Aver Kvaerner)
 This question encompasses the other three and is the most important and decisive question.
 If the limitation period hasn’t expired, it’s more appropriate to just restart the action.
Pre-Trial Preparations
•
•
•
•
Notice of Trial: Must be filed in Form 40 and served on all other parties. Any party can file (R. 12-1(2))
o Service: After filing, the plaintiff must promptly serve the notice on all other parties
(R. 12-1(6))
o Note: The lawyer who is filing undertakes to pay the court for its time (hearing fees)
o The notice of trial must set out the time and place of trial.
(Rs. 12-1(3),(5))
o Objection to Time: If the time is unacceptable, another party may object to it within 21 days
of trial and either request a case planning conference or apply to reschedule the trial.
(R. 12-1(7))
o Timing: The trial will be held on or after the day requested.
(R. 12-1(8))
 Courts have lots of powers to vary the time of a trial.
(R. 12-1(9))
o If there’s a settlement or estimated length changes, then the Registrar must be informed(R. 12-1(10))
Trial Management Conference: See Trial Management Conference, p. 14.
Trial Record: The party who filed the notice of trial must file a trial record.
(R. 12-3(1))
o Contents: Pleadings, case plan order (if any), orders relating to trial conduct
(R. 12-3(1))
o Timing and Service: The trial record must be filed and served on all parties between 14 and
28 days before the trial.
(R. 12-3(3))
Trial Certificate: All parties must file trial certificates in Form 42.
(R. 12-4(1))
o Timing: It must be filed between 14 and 28 days before the scheduled trial date.
(R. 12-4(2))
o Contents: Statements that the party will be ready to proceed on the planned trial date, all their
examinations for discovery are done, a trial length estimate, and a TMC has been done (R. 12-4(3))
o Consequences of Non-Filing: If no trial certificates are filed, the trial gets removed from the
docket (i.e. you lose your trial date). If only some are filed, there is no penalty.
(R. 12-4(5))
17
Civil Procedure
Applying for and Selection of a Jury
•
•
•
•
•
•
•
Default: Trials are generally heard without a jury
(R. 12-6(1))
o Certain listed matters absolutely cannot have juries (e.g. administration of estates, specific
performance of a contract, partition and sale of real estate).
(R. 12-6(2))
Application: A party may apply for trial by jury with Form 47.
(R. 12-6(3))
o Timing: Notice must be served on all parties within 21 days after service of the notice of trial,
and at least 28 days before trial.
(R. 12-6(3))
 The party must also provide the sheriff’s office with no less than 30 days' notice of the
day, time and place set for the trial
(Jury Act s. 18)
o Sheriff’s Fee: “A sum sufficient to pay for the jury and jury process” must be paid during this
period.
(R. 12-6(3), Jury Act s. 17)
 Prof: If you're applying for a jury trial, be cautious about paying the sheriff's fees. Once
you've paid the fees, some cases say that you can no longer opt out of a jury trial.
 Other party cannot pay the fees if the party who files for jury notice doesn't pay it.
(Folk)
Refusal: Courts may refuse to conduct a jury trial
(R. 12-6(5))
o No refusal allowed in certain cases: defamation, false imprisonment, malicious prosecution(R. 12-6(5))
o An application for such refusal must be made within 7 days of the granting of a jury trial, and
refusal must be requested on one of the following grounds:
(R. 12-6(5))
 The issues require prolonged examination of documents or accounts or a scientific or local
investigation that cannot be made conveniently with a jury,
(R. 12-6(5))
 The issues are of an intricate or complex character, or
(R. 12-6(5))
 Onus of proving complexity is on the alleging party. The complexity must go beyond
what a large proportion of the population can handle.
(MacPherson)
 Where there have been conclusive findings of fact by a court (e.g. in summary trial), a
jury trial may be refused to avoid the embarrassment of a jury making contrary findings(Salem)
 Prof: Courts are beginning to recognize juries as highly capable bodies, so this
ground is continually narrowing.
 The extra time and cost involved in requiring that the trial be heard by the court with a jury
would be disproportionate to the amount involved in the action, or
(R. 12-6(5))
 The trial relates to a fast-track action (or one of the listed prohibited actions)
(R. 12-6(5))
Challenges: Each party may challenge any juror for cause, and may challenge 4 "peremptorily"
(i.e. without cause)
(Jury Act s. 20(3))
o No more than 20 peremptory challenges are permitted per trial (need 6+ parties). (Jury Act s. 21(6))
 If the limit is reached, the judge can adjust the entitlement
(Jury Act s. 21(7))
o The judge may determine the order that peremptory challenges are exercised
(Jury Act s. 20(5))
8 jurors must be sworn to render judgment in a civil trial
(Jury Act s. 20(1))
Verdict: If the jury can’t get a unanimous verdict in 3 hours, a majority of 75% or more may
deliver the verdict instead (at the judge’s direction)
(Jury Act s. 22(1))
o This has the same effect as a unanimous verdict.
(Jury Act s. 22(2))
Failure to follow Jury Act: Omitting on the Act’s requirements of a civil jury does not impeach the
verdict or judgment reached in a case.
(Jury Act s. 23)
18
Civil Procedure
Evidence and Procedure at Trial
Ending Trial Early
•
•
"No Evidence Motion": At the close of π's case, ∆ can apply to have the case dismissed on the
basis that there is no basis on which to support π's case.
(R. 12-5(4))
o ∆ may apply for a no evidence motion without giving up the ability to adduce evidence. (R. 12-5(5))
o The Test: Did π fail to call any evidence on an essential element of the case?
(Roberge)
 No evidence is weighed. Mere insufficiency is not enough – there must be no basis.
"Insufficient Evidence Application": At the close of π's case, ∆ can apply to have π's case
dismissed on the basis of insufficient evidence to meet π's burden.
(R. 12-5(6))
o If this application is made, ∆ cannot adduce any evidence.
(R. 12-5(7))
o The Test: Has π met a prima facie case for each of their claims (i.e. is there enough evidence
for the court to find in π's favour, if no contrary evidence is submitted)?
(Robinson)
 Weighing evidence is permissible here. It’s as if ∆ called no evidence and ended the trial.
Exhibits
•
•
•
•
Exhibit pages must be sequentially numbered (but you can restart the numbering for each tab)(R. 12-5(9))
After the time for appeal has expired (or the appeal ended), the Registrar may return exhibits.(R. 12-5(12))
Notice to Produce: A party of record may file a notice at least 2 days before trial requiring any
other party to bring any documents in the list of physical objects in their control.
(R. 12-5(8))
Opportunity to Inspect: no exhibit can be introduced unless the other party has been given an
opportunity to examine it at least 7 days before trial.
(R. 12-5(10))
Witnesses
•
•
•
Adverse Witnesses: If a party wants to call an adverse witness, they must serve notice in Form
45 at least 7 days prior to the date of appearance. (Party must still pay witness fees)
(R. 12-5(21))
o An adverse witness notice can be set aside for any of the listed reasons (unable to appear, not
necessary, undue hardship, or not adverse)
(R. 12-5(23))
o You can jump straight into cross-examination with an adverse witness.
(R. 12-5(26))
Witnesses must testify orally in open court.
(R. 12-5(27))
Evidence from a pre-trial examination may be used to impeach or contradict the testimony of the
examined person at trial, but not as direct evidence.
(R. 12-5(52))
o Exception: It may be used directly if that person is dead or otherwise unavailable due to age,
infirmity, sickness or imprisonment, the person is out of the jurisdiction, or the person's
attendance cannot be secured by subpoena
(R. 12-5(52))
Trial Procedures
•
•
•
The court can order that issues [of fact or law] be dealt with in a certain order
Different issues can be tried under different modes of trial.
Order of speeches:
o The party with the burden of proof has the opening statement
o The opposite party goes after the opening party
o There may be a rebuttal and, if the court allows it, a sur-rebuttal
(R. 12-5(67))
(R. 12-5(68))
(R. 12-5(72))
Failure to Attend
•
•
•
If no parties show up, the action may be struck from the trial list
If only one party shows up, the court may proceed with ex parte proceedings
Decisions arising from the above situations may be overturned.
19
(R. 12-5(75))
(R. 12-5(76))
(R. 12-5(77))
Civil Procedure
Costs
•
•
Background:
o Definition: Costs are “the taxable costs and disbursements”
 Prof: You'll generally recover between 15% and 35% of the actual costs incurred.
o Purpose of Costs:
 Encourages settlement by disincentivizing litigation (and encouraging lawyers to take a
balanced view of their case).
 Discourages vexatious litigation
 Encourages good conduct by all parties.
 Helps defray costs of meritorious litigants.
o Party and Party Costs: Appendix B includes a tariff that sets out "units" for each step in an
action. Based on the steps you take, your client gets a certain number of units. That number is
then multiplied by a Scale. The result is the dollar amount that can be claimed as costs.
 Scales: The dollar amount for “matters of ordinary difficulty” is Scale B (currently $110).
Scale A is used for “simple” matters ($60). Scale C is used for “complex” matters ($170).
 Scale B is the default, unless the settlement or order says otherwise.
(App. B s. 2(4))
 A settlement under Rule 9-1 must assess costs on Scale B.
 Court selects which scale gets used, can pick different scales for different actions
(App. B s. 2)
o Disbursement Costs: These are on top of the tariff’s costs (e.g. the filing fee, taxes on costs).
They are awarded automatically as part of costs.
(R. 14-1(5), c.f. Appendix B tariff)
How costs are generally assessed:
(R. 14-1(1))
o Costs are awarded to the winning party if there is “substantial success”, UTCOO.
(R. 14-1(9))
 Substantial success is more than a 50%+1 win on the BoP; it’s more like 75% (Aschenbrenner)
 Inquiry to determine whether to award costs after a trial:
(Aschenbrenner)
 Focus on the "matters in issue"
 Assessing the weight or importance of those "matters" to the parties.
 Do a global determination with respect to all the matters in dispute and determining
which party "substantially succeeded," overall and therefore won the event.
 Where one party "substantially succeeded," are there reasons to "otherwise order" that
the winning party be deprived of costs and each side then bear their own costs?
 Example: Despite winning only $5501, π was “substantially successful”
(Aschenbrenner)
o Types of Costs:
 Party-and-party costs (Appendix B). This is the default for the whole action, unless:(R. 14-1(1))
 The parties consent to an amount of costs
(R. 14-1(1)(a))
 The court orders that all or part of the proceedings are assessed under special costs (in
which case, any remaining items are assessed as per usual)
(R. 14-1(1)(b))
 The court may also order lump sum costs for all or part of the action
(R. 14-1(1)(c),(d))
 For our purposes, just assume that these are roughly party-and-party costs.
 Fast Track Action: Costs are assessed under Rule 15-1(15)–(17)
(R. 14-1(1)(e))
 Those rules also apply if the requirements for starting a fast-track action were met;
i.e. if relief was money, real property, a builder’s lein and/or personalty values at
$100,000 or less (not counting interest/costs), or the trial was 3 days or less (R. 14-1(1)(f))
 Special Costs may be applied for; these include all “fees that were proper or reasonably
necessary to conduct the proceeding”, in light of the listed circumstances.
(R. 14-1(3))
 e.g. if you are sued for fraud, and win, special costs will generally be awarded.
 Example: Due to the conduct of the expert (who was "an advocate thinly disguised in
20
Civil Procedure
•
•
•
the cloak of an expert"), special costs were awarded. Court lists circumstances that can
give rise to special costs: Wasting time, adducing questionable evidence, or other
"reprehensible conduct".
(Blake)
o Small Claims: If the case deals with a falls into small claims court jurisdiction (that is, if the
court awards damages of $25,000 or less), then only disbursements may be awarded. (R. 14-1(10))
 If there is “sufficient reason” to award costs, the court may do so. Having a reasonable
claim for a larger amount probably satisfies this.
(R. 14-1(10))
 Most of the exceptions in Rule 14-1(1) are subject to this rule, but not all. Read it. (R. 14-1(1))
 Example: π brings actions in nuisance, trespass, defamation, etc. Gets $1 for nuisance,
$5500 for trespass, nothing for defamation. Costs awarded because defamation cannot be
brought to Small Claims court, and that was part of the action (even if it failed) (Aschenbrenner)
o Application for Security for Costs: Requires a party to put a quantity of money in a trust
account prior to taking an additional step in the litigation
(R. 14-1(20))
 This requires a filing of Form 62 (in Appendix A), which is an itemized bill of costs.
 Prof: This is most useful when another party is impecunious.
Costs for applications: See Applications, p. 12.
Costs for offers to settle: See also Settlement Conferences, p. 15.
o Offers to settle are not to be disclosed to the court until everything but costs are determined(R. 9-1(2))
o Rejections: In response to a rejected offer to settle, the court may choose to award increased
costs to the party whose offer was rejected if the amount offered was equal to or greater than
the amount awarded by the court.
(R. 9-1(5))
 The court may also award no or double costs (incl. disbursements) to parties for any actions
taken after an offer to settle is served.
(R. 9-1(5))
 Considerations for the court in assessing offer-related costs include
o Example: Court awarded an amount less than ∆'s offer to settle. However, ICBC (∆) has way
more money than π, and the value offered was very close to the final award. Court exercised its
discretion and chose to award costs to π anyways.
(Blake)
 In fact, in light of the reprehensible conduct of ∆, the court then chooses to grant ∆ no
costs and to grant π special costs amounting to the entire cost of the trial.
(Blake)
o If the awarded amount falls under Small Claims (see above), no costs are awarded unless there
was “sufficient reason” to bring the case to a BCSC hearing.
(R. 9-1(7))
Prof: Tell your client that, even if you win, you won't get all of the costs back (in most cases). Plus,
you still need to collect – it's not just an automatic cheque.
Other Issues
•
•
Rule 20-5: Persons who are indigent
o Anyone who says that they cannot afford fees charged by government to access courts can
make application under this section to not pay those fees
o Court can order that no fee is payable
o Meant to prevent access to court from being limited/prevented due to the fees
o If there's no real claim or defence, then the request will not be granted
o Application can be made by requisition rather than notice of application
Appendix C: Fees
o This appendix recongizes and sets out a wide variety of fees.
o 18 months ago hearing fees were in the news: people didn't think it was fair that you had to pay
to get into the court room and access justice. Government changed the fees in response: now,
there's no cost for the first 3 days but the cost afterwards is still there.
21
Civil Procedure
•
o All the fees in this appendix are disbursements (which are out of pocket costs). They are all
claimed under the bill of costs when you win your case.
Rule 3-5: Third Party Notices:
o Rule 3-5(1) sets out conditions for pursuing a third party claim.
 Timing: This has the same time limitations as a Notice of Civil Claim
 This is technically a pleading.
o Notice is set out in Form 5.
(R. 3-5(3))
o Usually arises in three different circumstances:
 Defendant says they didn't cause the problem and that it was the fault of a party not yet
part of the litigation. They'd file a third party notice, which sets out the claim against the
third party, who files a response.
 Defendant accepts liability but claims right to indemnity from third party.
 Motor vehicle personal injury matters: defendant does not have insurance and ICBC
steps in to provide coverage to plaintiff.
Alternatives to Litigation
Fast Track Litigation
•
•
•
•
•
•
•
This rule applies when trial can be done in 3 days, parties to action consent, court orders, or the
case concerns money/realty/etc. for less than $100k
(R. 15-1(1))
o Need to add "Subject to Rule 15-1" to all forms
(R. 15-1(2))
Damages can be awarded in excess of $100k, if the court considers it appropriate
(R. 15-1(3))
This rule doesn't apply to class actions
(R. 15-1(4))
Oral discovery is limited to 2 hours per person for adverse parties (normally 7 hours)
(R. 15-1(11))
No applications or affidavits can be filed unless there's been a case planning conference
(R. 15-1(7))
o Exception: Applications for adding parties, etc
(R. 15-1(8))
o Exception: Court can waive this where it is "impracticable or unfair" or it's urgent.
(R. 15-1(9))
If you apply for a trial date that is within 4 months of applying Rule 15-1 to your action, the
Registrar must schedule you within 4 months of the date requested.
(R. 15-1(13))
Costs (not including disbursements) are prescribed based on trial hearing length (UTCOO) (R. 15-1(15))
o One day or less: $8000, Two days or less: $9500, More than two days: $11,000.
(R. 15-1(15))
Mediation
•
•
•
•
•
What does a mediator do?
o Go to the balcony: Take time to reflect, calm down. Don't give responses triggered by anger.
o Step to their side: Acknowledge the other side's problem
o Reframe: After listening to their position, try to reframe yours in a fashion that they will accept
o Build them a "Golden Bridge": Compare the benefits of resolving now vs. letting it drag on.
 Present plausible and attractive alternatives to the parties.
o Use power to educate.
Quote: "The best generals are those who never go to war."
Apology Act: If you send an apology to someone regarding their injury/whatever, it is not
admissible to demonstrate liability. This was based on research that apologies go a long ways to
repairing human relationships.
Notice to Mediate: Courts can force parties to attempt mediation under a regulation under the Law
and Equity Act; it's called Notice to Mediate (General) Regulation
BATNA: Best Alternative To a Negotiated Agreement
o Ask: what's the best alternative for the client (party) if they don't negotiate?
o Goal is always to ask whether the mediation is an appropriate mechanism, if the timing is right
22
Civil Procedure
Professional Ethics and Policy Issues
Law Society Rules
•
•
•
•
Legal Professions Act
o Noble intentions for the society
o Public is well served by our support for ourselves and the professions.
o Only lawyers can practice law.
o s. 14(2): All members of the Law Society of BC are officers of the court.
o The Law Society has the power to dictate the conduct of members in Court, and the Courts
retain power to similarly impose conduct and discipline (e.g. contempt of court)
 Prof: Courts are reluctant to be too prescriptive regarding lawyers' conduct. The Law
Society does most of the legwork.
 Court's disciplinary actions aren't binding on the Law Society.
The Law Society's Professional Conduct Handbook may be framed as "guidelines", but they're
actually binding on lawyers.
o The CBA has a much more modern set of guidelines (that aren't binding) that are a good
reference.
Law Society's discipline process is complaint-driven.
o Complaints may be lodged by other lawyers, clients, or even judges.
Law Society Professional Conduct Handbook:
o Chapter 1: Canons of Ethics
 These are rules of general application, platitudes, etc.
 Many canons are repeated in greater detail in subsequent chapters
 Rule 2: To Courts and Tribunals
 Rule 2(1): Candor and fairness, Courteous and respectful
 Rule 2(2): Lawyers must defend judges against unjust criticism and complaint.
o Chapter 8: Lawyer as Advocate
 Rule 1: No abusing the court's process, no lying, no helping clients do dishonest stuff, no
omitting relevant case law.
 Rule 2: If a client offers to give false testimony, the lawyer has to tell them that they'll
withdraw if that happens
 Rule 3: If they do it anyways, you must withdraw.
 Rule 4: You can't tell anyone why you withdrew (if you withdraw under Rule 3)
 Rule 5: No calling witnesses who intend to offer false testimony.
 Rule 9: A lawyer who gives evidence as a witness must withdraw, unless it pertains to
a purely formal or uncontroverted manner.
 Rules 14-17: Contacting an Opponent's Expert
 Rule 23: Can't make public comment on the validity/worth/outcome of a case in which
they're acting, or claim to speak for the legal profession.
o Chapter 10: Withdrawal
 Rule 1: Withdrawal is obligatory in certain circumstances (e.g. discharged by client,
conflict of interest, incompetence, certain actions or requests by clients)
 Rule 2: If there's a "serious loss of confidence" between client and lawyer, the lawyer may
withdraw
o Chapter 11: Responsibility to Other Lawyers
 "every single communication [with another lawyer/party] you write is written with the
intention of being read by the judge"
 Maintain distance through tone and content of emails and letters
23
Civil Procedure
Access to Justice
•
•
Fees:
o BC Law Society's Professional Handbook Chapter deals with fees:
 Rule 8-1: Fees must not be "excessive"
 This is assessed based on the market rate, the lawyer's experience, the difficulty of the
work, etc.
 Rule 8-2: Referral fees cannot be paid by non-lawyers
 Rule 8-3: lawyers may only pay referral fees if the client is informed in writing
 Rule 8-4: If you're using a prepaid legal services plan, the lawyer must advise the client in
writing of:
 The scope of work to be undertaken
 The extent to which a fee or disbursement will be payable
 Rule 8-6: Lawyers can't split fees with non-lawyers
o BC Law Society Rules Part 8 deals with fees:
 Rule 8-1: Remuneration must be fair and reasonable in the circumstances
 Rule 8-2: Maximum rates for personal injury contingency fees
 33.3% for motor vehicle accidents, 40% for all others.
 Rules 8-3, 8-4: Form, contents and required statements in contingent fee arrangements.
Legal Aid:
o Legal aid in BC is only available to persons with incomes of $1420 (for a family of 1; it's
assessed based on family size)
o Prof: Legal aid is (or should be, at least) a core public service. It's pretty important.
o Public Commission Recommendations:
 Recognize legal aid as an essential public service
 Develop a new approach to define core services and priorities
 Modernize and expand financial eligibility
 Should use a generally accepted measure of poverty (such as StatsCan's LICO)
 Should be available to the "working poor" (e.g. 2xLICO)
 Establish regional legal aid service centers
 There were lots of features of these – mobile services around regional centers, expansion
of services to include pre-emptive justice (i.e. dispute avoidance)
 Integrate legal aid with other support services
 Re-establish LawLINE (dial-a-lawyer)
 Expand public engagement and political dialogue.
 Increase long-term, stable funding
 "Proactive Development" (Research, development, evaluation)
 Greater collaboration between public and private service providers
 Provide more support to social workers.
o Prof: The report describes what needs to be done, and not necessarily what is feasible in BC
politics.
24
Civil Procedure
Index of Cases
Short Name
Ct./Year
Keywords
25
Page