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CIVIL PROCEDURE – LAW 270B.001
Steve Patterson
University of British Columbia
Prof. Brook Greenberg and Prof. Jennifer Francis
Fall 2008
TABLE OF CONTENTS
SECTION ONE – COMMENCEMENT OF PROCEEDINGS
I. Commencing Proceedings and Undefended Proceedings………………………………………
1. Proceeding of an Action in British Columbia…………………………………………..
2. Underlying Principles……………………………………………………………………
Rule 1(5) …………………………………………………………………………
Rule 2(1) ………………………………………………………………………….
3. Ethical and Professional Obligations…………………………………………………….
Oath of Barrister and Solicitor……………………………………………………
Professional Conduct Handbook, ch. 8 & ch.11………………………………….
4. Commencing Proceedings……………………………………………………………….
A. Writ of Summons………………………………………………………………….
Rule 8, Form 1……………………………………………………………………
Rule 20……………………………………………………………………………
AGBC v. Georgetti (1987 BCSC) ……………………………………………….
Hicks v. Beaver Lumber (1993 BCCA) …………………………………………
B. Petition……………………………………………………………………………..
Rule 10……………………………………………………………………………
5. Limitation Periods……………………………………………………………………….
British Columbia Limitation Act………………………………………………….
6. Service and Delivery of Documents……………………………………………………..
Rule 11…………………………………………………………………………….
Orazio v. Ciulla (1966 BCSC) …………………………………………………..
7. Service (Substitutional and Ex Juris) ……………………………………………………
Rule 12……………………………………………………………………………
Credit Foncier v. McGuire (1979 BCSC) ………………………………………..
Rule 13…………………………………………………………………………….
8. Renewal………………………………………………………………………………….
Rule 9……………………………………………………………………………...
Lowe v. Christensen (1984 BCCA) ………………………………………………
Johnson v. Cooke (2000 BCSC) …………………………………………………..
Seeliger v. Eagle Ridge Hospital (2007 BCCA) …………………………………
II. Pleadings and Parties……………………………………………………………………………
1. Functions of Pleadings…………………………………………………………………...
2. Statements of Claim………………………………………………………………………
Rule 19, Form 13………………………………………………………………….
Rule 20…………………………………………………………………………….
3. Parties…………………………………………………………………………………….
Rules 5, 6, and 7……………………………………………………………………
4. Appearance……………………………………………………………………………….
Rule 14……………………………………………………………………………..
5. Default Judgments………………………………………………………………………..
Rules 17 and 25……………………………………………………………………
Austin v. Rescon Construction (1986 BCSC) ……………………………………..
Bank of Montreal v. Erickson (1984 BCCA) ……………………………………..
Schmid v. Lacey (1991 BCCA) ……………………………………………………
6. Statements of Defence and Counterclaims……………………………………………….
Rule 21, Form 14…………………………………………………………………..
Sandes v. Brown (1979 BC Cty. Ct.) ………………………………………………
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National Leasing Group Inc. v. Top West Ventures Ltd. (1991 BCCA)…………..
7. Amendments to Pleadings……………………………………………………………….
Rules 15 and 24……………………………………………………………………
Langret Investments v. McDonnell (1996 BCSC) ………………………………..
Teal Cedar Products Ltd. v. Dale Intermediaries Ltd. (1996 BCCA)…………….
Broom v. The Royal Centre (2005 BCSC) ………………………………………..
III. Class Actions (Certification) ……………………………………………………………………
Class Proceedings Act, Part 1 to Part 3……………………………………………
Tiemstra v. ICBC (1997 BCCA) ………………………………………………….
Rumley v. British Columbia (1999 BCCA) ………………………………………
IV. Third Party Proceedings………………………………………………………………………….
Rule 22…………………………………………………………………………….
Adams v. Thompson (1987 BCCA) ………………………………………………
Aylsworth v. Richardson Greenshields of Canada Ltd. (1987 BCSC)……………
Tucker v. Asleson (1993 BCCA) ………………………………………………….
BC Ferry Corporation v. T&N (1993 BCSC) ……………………………………
V. Offers to Settle……………………………………………………………………………………
Rule 37B…………………………………………………………………………...
Clark v. Sidhu (2005 BCSC) ……………………………………………………...
Kurylo v. Rai (2006 BCCA) ……………………………………………………......
I.R.C. and R.J. v. S.C. (2006 BCCA) ………………………………………………
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SECTION TWO – DISCOVERY
I. Discovery and Inspection of Documents……………………………………………………........
1. Document Disclosure……………………………………………………...........................
Rule 26, Forms 92 and 93…………………………………………………….........
2. Procedure, Relevant Documents, and Professional Obligations…………………………..
G.W.L. Properties v. W.R. Grace (1992 BCSC) …………………………………..
Compagnie Financiere v. Peruvian Guano Co. (1882 UKCA)……………………
Peter Kiewit v. BC Hydro (1982 BCSC) …………………………………………..
Myers v. Elman (1940 HL) …………………………………………………….......
3. Privileged Documents……………………………………………………..........................
Hodgkinson v. Simms (1988 BCCA) ………………………………………………
Shaughnessy Golf & Country Club v. Uniguard Services (1986 BCCA)…………..
Keefer Laundry Ltd. v. Pellerin Milnor Corp. (2006 BCSC)………………………
Leung v. Hanna (1999 BCSC) ……………………………………………………...
Dufault v. Stevens and Stevens (1978 BCCA) ………………………………………
Hunt v. T&N (1995 BCCA) ……………………………………………………......
II. Examinations for Discovery and Interrogatories…………………………………………………
1. Examinations for Discovery……………………………………………………................
Rule 27, Form 20…………………………………………………….....................
Cominco Ltd. v. Westinghouse Canada Limited (1979 BCCA)……………………
B.C. Lightweight Aggregate v. Canada Cement LaFarge (1978 BCCA)………….
Rainbow Industrial v. C.N.R. (1986 BCSC) ………………………………………
Westcoast Transmission v. Interprovincial Steel (1984 BCSC)……………………
Allarco Braodcasting v. Duke (1981 BCSC) ………………………………………
Dillingham Construction v. BC Hydro (1990 BCSC) ……………………………..
Fraser River Pile & Dredge Ltd. v. Can-Dive Services Ltd. (1992 BCSC)……….
HMTQ v. Bug Busters (2001 BCCA) ……………………………………………..
Rogers v. Bank of Montreal (1986 BCSC) …………………………………………
Blue Line Hockey v. Orca Bay Hockey (2007 BCSC) ………………………………
2. Interrogatories……………………………………………………......................................
Rule 29……………………………………………………......................................
Roitman v. Chan (1994 BCSC) …………………………………………………….
Hoyt v. ICBC (2001 BCCA) …………………………………………………….....
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SECTION THREE – PRE-TRIAL PROCEDURES
I. Injunctions and Prejudgment Attachments……………………………………………………......
1. Interlocutory Injunctions……………………………………………………......................
Rule 45…………………………………………………….......................................
Attorney General of British Columbia v. Wale (1986 BCCA)………………………
CBC v. CKPG Television Ltd. (1992 BCCA) ………………………………………
2. Undertakings as to Damages…………………………………………………….................
Vieweger v. Rush (1964 SCC) ……………………………………………………...
3. Mareva Injunctions…………………………………………………….................................
Aetna Financial Services Ltd. v. Feigelman (1985 SCC) …………………………
Reynolds v. Harmanis (1995 BCSC) ………………………………………………..
Silver Standard Resources v. Joint Stock Co. Geolog (1998 BCCA)……………….
4. Anton Pillar Orders……………………………………………………...............................
Anton Pillar KG v. Manufacturing Processes Ltd. (1975 HL)………………………
5. Pre-Judgment Garnishing Orders……………………………………………………..........
Court Order Enforcement Act, ss.1-27; Schedule 1, Forms A-F……………………
Knowles v. Peter (1954 BCSC) ……………………………………………………..
II. Interlocutory Procedures……………………………………………………....................................
1. Interlocutory Applications…………………………………………………….....................
Rule 44……………………………………………………........................................
Bache Halsey v. Charles (1982 BCSC) …………………………………………….
2. Chambers……………………………………………………...............................................
Rule 52, Rule 51A…………………………………………………….......................
Nichols v. Gray (1978 BCCA) ……………………………………………………...
3. Affidavits……………………………………………………...............................................
Rule 51……………………………………………………........................................
Tate v. Hennessey (1901 BCCA) ……………………………………………………
Re CJOR Limited (1965 BCCA) ……………………………………………………
4. Masters……………………………………………………..................................................
Rule 53, Practice Directions…………………………………………………….......
Public Trustee v. Batiuk (1995 BCSC) ……………………………………………
5. Particulars……………………………………………………..............................................
Rule 19 (11), (12), and (16) …………………………………………………….......
G.W.L. Properties Ltd. v. W.R. Grace & Co. of Canada (1993 BCSC)……………
6. Pre-Trial Examination of Witness……………………………………………………........
Rule 28……………………………………………………........................................
Johnston v. Royal Jubilee Hospital (1980 BCCA) …………………………………
Delgamuukw v. British Columbia (1988 BCSC) ……………………………………
Yemen Salt Mining Corp. v. Rhodes-Vaughan Steel Ltd. (1994 BCSC)……………
Carmichael v. Austin (1994 BCSC) ………………………………………………..
Sinclair v. March (2001 BCSC) …………………………………………………….
7. Scandalous, Frivolous or Vexatious Matters………………………………………………
Rule 19(24) ……………………………………………………................................
Carey Canada Inc. v. Hunt (1990 SCC) …………………………………………...
Citizens for Foreign Aid v. Canadian Jewish Congress (1999 BCSC)……………..
8. Physical Examinations……………………………………………………..........................
Rule 30……………………………………………………........................................
Stainer v. ICBC (2001 BCCA) ……………………………………………………..
9. Depositions……………………………………………………...........................................
Rule 38……………………………………………………........................................
Groves v. Liborin (1998 BCSC) ……………………………………………………
10. Special Case……………………………………………………........................................
Rule 33…………………………………………………….......................................
Jabs Construction Ltd. v. Callahan (1991 BCSC) …………………………………
11. Proceedings on Point of Law……………………………………………………..............
Rule 34……………………………………………………........................................
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Harfield v. Dominion of Canada General Insurance Co. (1993 BCSC)……………. 90
12. Orders…………………………………………………….................................................. 90
Rule 41……………………………………………………........................................ 90
SECTION FOUR - TRIALS
I. Summary Trials and Interlocutory Appeals……………………………………………………......
1. Summary Judgment……………………………………………………................................
Rule 18……………………………………………………..........................................
Hughes v. Sharp (1969 BCCA) ……………………………………………………...
Progressive Construction v. Newton (1980 BCSC) …………………………………
2. Summary Trial……………………………………………………........................................
Rule 18A…………………………………………………….......................................
Inspiration Management v. McDermid (1989 BCCA) ………………………………
Orangeville Raceway Limited v. Wood Gundy Inc. (1995 BCCA)………………….
3. Interlocutory Appeals…………………………………………………….............................
Masters Orders, Rules 53(6) and 53(9), and Judges' Orders………………………….
Court of Appeal Act, ss.6-7……………………………………………………...........
Abermin Corp. v. Granges Exploration Ltd. (1990 BCSC)……………………….....
Rahmatian v. HFH Video Biz Inc. (1991 BCCA) …………………………………..
Power Consolidated (China) Pulp Inc. v. BC Resources Inv. Corp. (1988 BCCA)…
Watson v. Imperial Financial Services Ltd. (1992 BCCA) …………………………
II. Trial Procedure, Notices to Admit, and Experts' Reports…………………………………………
1. Notices to Admit……………………………………………………....................................
Rule 31, Form 23…………………………………………………….........................
Skillings v. Seasons Development Corporation (1992 BCSC)……………………...
2. Expert Reports……………………………………………………........................................
Rule 40A……………………………………………………......................................
Delgamuukw v. British Columbia (1988 BCSC) ……………………………………
Pedersen v. DeGelder (1985 BCSC) ………………………………………………..
Vancouver Community College v. Phillips Barratt (1988 BCSC)…………………..
Surrey Credit Union v. Wilson (1990 BCSC) ………………………………………
Kroll v. Eli Lilly Inc. (1995 BCSC) …………………………………………………
Yewdale v. ICBC (1995 BCSC) ……………………………………………………..
3. Expedited Trials……………………………………………………......................................
Rules 66 and 68……………………………………………………............................
4. Mediation……………………………………………………................................................
Law and Equity Act, Notice to Mediate Regulation………………………………….
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SECTION ONE – COMMENCEMENT OF PROCEEDINGS
I. COMMENCING PROCEEDINGS AND UNDEFENDED PROCEEDINGS
1) PROCEEDING OF AN ACTION IN BRITISH COLUMBIA
Commencement
of Proceedings
a) Writ with
Endorsement (R.8)
b) Petition (R.10)
c) Pleadings (R.1113)
d) Appearance
(R.14)
e) Statement of
Claim (R.20)
f) Statement of
Defence (R.21)
g) Counterclaim
(R.21)
h) Third Party
Notice (R.22)
i) Reply (R.23)
Discovery
Pre-Trial
Trial
Post-Trial
a) Document
Disclosure (R.26)
b) Examinations
for Discovery
(R.27)
c) Interrogatories
(R.29)
d) Notices to
Admit (R.31)
e) Particulars
(R.19(11))
a) Interlocutory
Applications (R.44
& R.51A)
b) Garnishing
Orders (Court
Order
Enforcement Act)
c) Injunctions
(R.45)
d) Mareva
Injunctions
e) Anton Pillar
Orders
f) Pre-Trial
Conference (R.35)
g) Mediation and
Offer to Settle
(Notice to Mediate
(General
Regulation))
h) Expert Reports
(R.40A)
i) Summary
Disposition (R.18
& R.19(24))
a) Summary Trials
(R.18A)
b) Trial Rules
(R.39 & R.40)
a) Orders (R.41)
b) Costs (R.57)
c) Appeal
- Hint: look at index of Rules…it parallels how an action progresses (useful for exam fact patterns)
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2) UNDERLYING PRINCIPLES
- 2 important rules:
a) Rule 1 — Citation, Application and Interpretation
(5) Object of Rules
- "The object of these rules is to secure the just, speedy, and inexpensive determination of
every proceeding on its merits"
- This has 2 aspects, as there is tension between:
i) Obtaining a just result
- May require more resources (time, money) to get to the truth
ii) Speedy and inexpensive process
- May overlook some important details to be practical
- McEachern, former C.J.B.C., said:
- "…some of our rules…seem designed to obtain perfect justice…(but) we have never
tried to assess on a cost-benefit ration, whether perfect justice could be (obtained)" (p.10)
- Details with getting carried away with litigation and it becoming cost-prohibitive
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b) Rule 2 — Effect of Non-compliance
(1) Non-compliance with rules
- "Unless the court otherwise orders, a failure to comply with these rules shall be treated as
an irregularity and does not nullify a proceeding"
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3) ETHICAL AND PROFESSIONAL OBLIGATIONS
- Note: there will be questions on ethics on the exam (with extra emphasis)
- There are 5 sources:
a) Barristers' and Solicitors' Oath
- Said on mass when one is called to the bar…see p.1
- All lawyers in the province are required to promise:
i) Not to promote suits on frivolous pretences
- Allowed to take on challenging cases, but not impossible cases without merit
ii) Not to pervert the law to favour or prejudice anyone
iii) To act in all things truly and with integrity
b) Professional Conduct Handbook
- Rules that govern lawyers that are expressly required by the Law Society…see chapters 8 and 11
- Certain conduct is prohibited, including:
i) Chapter 8 – Lawyer as Advocate
a) Prohibited Conduct
- s.1(a) – No abuse of process with any proceedings motivated by malice
- s.1(b) – Assist the client in doing anything dishonest or dishonourable
- s.1(e) – Knowingly asserting something without any reasonable basis
- s.1(f) – Obliged to disclose pertinent authority directly on point, even if it hasn't
been mentioned by an opponent
- s.1(g) – Dissuade a material witness from giving evidence, or advise them to be
absent
b) False Evidence
- s.2 – Where a client advises you that the client intends to offer false testimony, you
must explain that you will have to withdraw if they do so
- s.4 – If you withdraw, you cannot say why
c) Interviewing Witnesses
- s.12 – You can seek info from any witness, even if they are a witness for the other
side, subject to the other rules in this section
- s.12 – If the witness is a part to the proceeding, and is represented, you cannot
contact them except with consent of their lawyer
- s.12.1 – If you know a witness is represented by another lawyer, and they are not a
party to proceeding, you must let other counsel know you are going to contact them
- s.12.1 – If you speak to a witness in those circumstances, you must:
i) Advise of your role in the proceedings, and
ii) Not do anything that effectively suppresses the witness
- s.13 – You cannot tell your own witness not to talk to the other side
- G: To avoid problems with lay litigants, lawyers must always keep detailed notes
d) Ex Parte Proceedings
- Ex Parte Proceedings are where you make agreements to be before a decisionmaker without the other side showing up (ie: during injunctions)
- s.21 – Counsel in an ex parte matter has a duty to inform the court of all material
facts, including those adverse to your client
ii) Chapter 11 – Responsibility to Other Lawyers
a) Dealing with Other Lawyers
- s.5 – Lawyers must be prompt, courteous, and punctual
- s.6 – Lawyers are obligated to reply reasonably promptly to any communication
from another lawyer which requires a response
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b) Undertakings
- These are promises made as counsel to do or not to do something
- s.7 – A lawyer must:
a) Not give an undertaking that cannot be fulfilled,
b) Fulfil every undertaking given, and
c) Scrupulously honour any trust condition once accepted
- s.10 – Can't impose impossible or unfair undertakings on other lawyers
c) Default Proceedings
- s.12 – A lawyer who knows that another lawyer has been consulted in a matter shall
not proceed by default in the matter without inquiry and warning unless expressly
instructed by the client to the contrary, in which case such instructions should be
communicated at the outset of the matter
d) Courtesy
- s.13 – A lawyer shall avoid ill-considered or uninformed criticism of the
competence, conduct, advice, or charges of other lawyers
c) Common Law
d) Good Conscience
e) Best Practices
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4) COMMENCING PROCEEDINGS
- There are 2 ways to commence proceedings in the BC Supreme Court:
a) Writ of Summons – Rule 8(1)
- "Except where otherwise authorized by an enactment or these rules, every proceeding in the
court shall be commenced by issuing a writ of summons"
b) Petition
- In contrast to a writ, whole case essentially needs to be filed
- ie: facts, affidavits, and other evidence, and heard in Chambers rather than by trial
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A) WRIT OF SUMMONS
- Two rules governing writ of summons with endorsement:
a) Rule 8 – Form and Commencement of Proceedings
(1) Writ of summons
- "Except where otherwise authorized by an enactment or these rules, every proceeding in the
court shall be commenced by filing a writ of summons"
(2) Endorsement
- "A writ of summons shall be endorsed either with a statement of claim or with a concise
statement of the nature of the claim made and the relief required in the action"
- Thus there are 2 things that can be done:
a) Endorsement
- "Concise statement" explaining why D is being sued and damages sought
- Should identify 3 things:
i) The legal basis for claims
ii) Provide some detail of nature of events and breach, and
iii) The relief/damages sought
- Don't want too much detail that will tie your hands when you file SOC
b) Statement of Claim – Full blown pleading, fleshes out endorsement
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- Generally it is better to include a statement of claim, because:
a) There are risks in using a mere endorsement, such as:
i) No cause of Action
- Hicks: summary of claim naturally more susceptible to argument that it doesn't
disclose a cause of action, and may even be found so insufficient as to be nullity
ii) Limiting Effect
- Whatever you have in the writ limits what you can do in the statement of claim
- See Rule 20(3):
- P "may, in a statement of claim, alter, modify, or extend the claim without
amending the endorsement on the writ"
b) You have to do a Statement of Claim at some point anyways
(3) Form
- "Unless these rules otherwise provide, a writ of summons shall be in Form 1"
(4) Service
- "Subject to Rule 13, a writ of summons may be served within or outside British Columbia"
(5) Representative action
- "If the plaintiff sues or a defendant is sued in a representative capacity, the endorsement
shall show in what capacity the plaintiff or defendant sues or is sued"
(8) Writ of summons to be signed
- "A writ of summons shall be signed by the plaintiff or by or for the plaintiff’s solicitor"
(9) Sealing of writ of summons
- "A writ of summons shall be sealed and dated by the registrar"
(11) Procedure on filing writ of summons
- "After a writ is filed under this rule, the registry is to number the action commenced by the
writ and enter the names of the parties in an index"
b) Rule 20 – Statement of Claim
(2) Delivery
- "The plaintiff shall file and deliver a statement of claim either with the writ of summons or
within 21 days after appearance"
(3) Altering claim from that endorsed on the writ
- "The plaintiff may, in a statement of claim, alter, modify or extend the claim without
amending the endorsement on the writ"
AGBC v. Georgetti (BCSC 1987)…Authority for strict application of Rule 20(3) regarding amending SOC
F: - BC Unions threatened to hold general strike, BC gov't commenced with writ by way of endorsement
I: - Could claims in statement of claim, which were different than were in the Writ, could be accepted?
J: - No, for Georgetti
A: - Rule 20(3) doesn't permit addition of new claims
- Claims in Writ that weren't imported into Statement of Claim were deemed to have been abandoned
R: - If nature or "entire character" of the endorsement is altered in a Statement of Claim, P must
be taken to have abandoned the allegations in the endorsement
- Province could have avoided this by:
a) Incorporating the claims in the Writ endorsement into the Statement of Claim
b) Included the tort claims in the original endorsement
Hicks v. Beaver Lumber (BCCA 1993)…Court will try to balance interests of both parties with ambiguity
F: - Stack of counter tops fell on P while he was shopping at Beaver Lumber, and he sued
- Prior to expiration of a limitation period, P filed a Writ of Summons with and Endorsement
- D argued it didn't disclose a cause of action as sounding in negligence or the Occupiers Liability Act
I: - Was the endorsement adequate?
J: - Chambers judge held Writ as a nullity…BCCA said it was only just OK
A: - On appeal, A argued 2 things:
a) Endorsement was sufficient on its face
- Lambert J.A. agreed with this argument
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b) R.2(1) required any failure to comply with rules is only an irregularity, not a nullity
- Goldie J.A. agreed with this argument
- Split decision, but Toy J.A. agreed with both argument
- In all of these matters under the Rules it is important to consider the interests of justice as they are
revealed by an assessment of the prejudice suffered by each party through the application of the Rules
- “In my opinion, in this case the defendant could not have been mislead by this endorsement and
suffered no prejudice, whereas the striking out of the writ of summons would deprive the plaintiff
entirely of his cause of action”
R: - If an endorsement brings to the defendant's attention the type of case which it would have to
meet, and occasion and location on which the action occurred, a cause of action can be inferred
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B) PETITION
- Features of Petitions:
- Most petition matters authorized by statute are strictly legal questions, not factually focused
- ie: appeals from tribunal decisions, from foreclosure proceedings, interpretation of a K, ect…
- Hearing of a petition generally proceeds based on affidavit evidence
- Court retains discretion to have a Petition matter transformed into an Action
- In contrast to a writ, the whole case essentially needs to be filed in a petition, as it sets out the facts,
affidavit and other forms of evidence
- Why have Petitions? Why not just begin with a Writ?
- Originating applications follow a different process, that generally does not lead a trial
- The process can be faster than an action brought by a Writ
- Most pre-trial processes are available in actions, not petitions
- Petitions are governed by Rule 10:
a) Rule 10 — Originating Application
(1) Originating application
- "An application, other than an interlocutory application or an application in the nature of an
appeal, may be made by originating application where…"
- (a) to (h) lists the occasion on which you are to commence an action by way of
originating application
(3) Originating application by petition
- "Subject to subrule (2), a person wishing to bring an originating application must file a
petition in Form 3"
- Can be issued from any registry, but must disclose on what authority you are proceding
on and set out the facts briefly (not unlike a statement of claim)
(4) Service
- "Unless these rules provide otherwise, a copy of the petition and of each affidavit in support
must be served on all persons whose interests may be affected by the order sought"
(5) Response
- "A respondent who wishes to receive notice of the time and date of the hearing of the
petition or to respond to it must, in addition to complying with Rule 14 (1) (b), deliver to the
petitioner 2 copies, and to every other party of record one copy, of
(a) a response in Form 124, and
(b) each affidavit on which the respondent intends to rely"
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5) LIMITATION PERIODS
- Almost every matter brought to the court must be filed within a prescribed period
- These limitation periods can be found in various statutes
- In the absence of a specific statute that establishes a limitation period, the Limitation Act generally applies
- Limitation periods can be extended by confirmation or postponement
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- Default limitation periods are governed by the Limitation Act:
a) British Columbia Limitation Act
3(2) Limitation periods
- "After the expiration of 2 years after the date on which the right to do so arose a
person may not bring any of the following actions:
(a) subject to subsection (4) (k), for damages in respect of injury to person or property,
including economic loss arising from the injury, whether based on contract, tort or
statutory duty;
(b) for trespass to property not included in paragraph (a);
(c) for defamation;
(d) for false imprisonment;
(e) for malicious prosecution;
(f) for tort under the Privacy Act;
(g) under the Family Compensation Act;
(h) for seduction"
3(5) Limitation periods
- "Any other action not specifically provided for in this Act or any other Act may not be
brought after the expiration of 6 years after the date on which the right to do so arose"
5(1) Effect of confirming a cause of action
- "If, after time has begun to run with respect to a limitation period set by this Act, but before
the expiration of the limitation period, a person against whom an action lies confirms the
cause of action, the time during which the limitation period runs before the date of the
confirmation does not count in the reckoning of the limitation period for the action by a
person having the benefit of the confirmation against a person bound by the confirmation"
- Thus, if before a limitation period under this Act expires, the person against whom the
action lies confirms it, then the period up to the confirmation does not count in the
limitation period
5(2) – Sets out how you can confirm
6(1) Running of time postponed
- "The running of time with respect to the limitation period set by this Act for an action
(a) based on fraud or fraudulent breach of trust to which a trustee was a party or
privy, or
(b) to recover from a trustee trust property, or the proceeds from it, in the possession of
the trustee or previously received by the trustee and converted to the trustee's own
use,
is postponed and does not begin to run against a beneficiary until that beneficiary becomes
fully aware of the fraud, fraudulent breach of trust, conversion or other act of the trustee on
which the action is based"
6(3) Running of time postponed
- "The running of time with respect to the limitation periods set by this Act for any of the
following actions is postponed as provided in subsection (4):
(a) for personal injury;
(b) for damage to property;
(c) for professional negligence;
(d) based on fraud or deceit;
(e) in which material facts relating to the cause of action have been wilfully concealed;
(f) for relief from the consequences of a mistake;
(g) brought under the Family Compensation Act;
(h) for breach of trust not within subsection (1)"
6(4) Running of time postponed
- "Time does not begin to run against a plaintiff with respect to an action referred to in
subsection (3) until the identity of the defendant is known to the plaintiff and those facts
within the plaintiff's means of knowledge are such that a reasonable person, knowing those
facts and having taken the appropriate advice a reasonable person would seek on those facts,
would regard those facts as showing that
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(a) an action on the cause of action would, apart from the effect of the expiration of a
limitation period, have a reasonable prospect of success, and
(b) the person whose means of knowledge is in question ought, in the person's own
interests and taking the person's circumstances into account, to be able to bring an
action"
- Must assess means of knowledge of a reasonable person, and assess what a reasonable
person would have received in advice, then determine if a reasonable person could have
brought an action at that point…if that's satisfied, then postponement OK (G: too convoluted)
- G: this test will not be on the exam
- In sum, when acting for a client, you should always ask/do two things:
a) When does the limitation period expire?
b) Always inform/warn the client about it
______________________________________________________________________________________
6) SERVICE AND DELIVERY OF DOCUMENTS
- Service rules are intended to ensure that parties to litigation gets proper notice of proceedings that may
affect their interests
- Service and delivery of documents are governed by Rule 11:
a) Rule 11 — Service and Delivery of Documents
(1) Service of writ of summons
- "Service of a writ of summons is required UNLESS the defendant enters an appearance"
(2) How service effected
- "Service of a document is effected on
(a) an individual by leaving a copy of the document with him or her,
- Orazio: you can physically leave a copy of the document with him/her
(b) a corporation by leaving a copy of the document with the president, chairman,
mayor or other chief officer of the corporation, or with the city or municipal clerk, or
with the manager, cashier, superintendent, treasurer, secretary, clerk or agent of the
corporation or of any branch or agency of the corporation in the Province, or in the
manner provided by the Business Corporations Act or any enactment relating to the
service of process, and, for the purpose of serving a document upon a corporation
whose chief place of business is outside British Columbia, every person who, within
the Province, transacts or carries on any of the business of, or any business for, that
corporation shall be deemed its agent,
- Thus can leave a copy with the president, ect.. or with a manager, agent, ect..
of any branch or agency of the corporation, or by s.9(1)(a) of the BC Business
Corporations Act
(c) an unincorporated association, including a trade union, by leaving a copy of the
document with any officer of the association, or in the case of a trade union, with a
business agent,
(d) an infant, in accordance with the Infants Act, and
(e) a mentally incompetent person by leaving a copy of the document
(i) with the person’s committee or, where there is no committee, with the person
with whom he or she resides or in whose care he or she is or with the person
appointed by the court to be served in the mentally incompetent person’s place,
and
(ii) with the Public Guardian and Trustee,
and in no case is it necessary to show the original document"
(3) Date of deemed service
- "Where a writ of summons or petition has not been served on a person, but the person files
an appearance or attends at the trial or hearing, the writ or petition shall be deemed to have
been served on that person on the date the person files or attends"
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(6) Service on a party of record
- "Service of a document on a party of record may be made by delivering the document to an
address for delivery provided under Rule 4"
- This provides that service of the document on a party can be made by delivery to an
address for delivery…doesn't apply to 1st service, which must be affected under s.11(2)
- Once litigation starts, plaintiff or petitioner is required to provide an address for
delivery in the Writ or Petition
- Defendant is required to provide an address for delivery is required in the appearance
(6.1) How to deliver a document
- "A document may be delivered to an address for delivery in any of the following ways:
(a) if the address for delivery is the office or postal address of the solicitor of record for
a party,
(i) by leaving the document at the office of the solicitor during normal business
hours, or
(ii) by mailing the document by ordinary prepaid mail to the address for delivery;
(b) if the address for delivery includes the fax number of the solicitor of record for a
party, by transmitting the document to the fax number of the solicitor together with a
cover memorandum in Form 9;
(c) if the address for delivery of a party who acts in person is a residential address or
business address,
(i) by leaving the document at the residential or business address with anyone who
appears to be an adult person,
(ii) if delivery cannot be effected under subparagraph (i), by inserting the document
into a mail box, mail slot or mail receptacle at the residential or business
address, or
(iii) if delivery cannot be effected under subparagraph (i) or (ii), by affixing the
document to a door of the residence or business;
(d) if the address for delivery of a party who acts in person is a postal address, by
mailing the document by ordinary prepaid mail to the postal address;
(e) if the address for delivery of a party who acts in person includes a fax number, by
transmitting the document to the fax number together with a cover memorandum in
Form 9;
(f) if the address for delivery is an e-mail address, in accordance with Rule 69(18)"
Orazio v. Ciulla (1966 BCSC)…Defendant successfully served despite not retaining a copy of the writ
F: - Plaintiff lawyer in car accident claims against defendant, and usual lawyer for D shared the same
office space with counsel for P
- P issued writ, and D's usual counsel took over negotiations with current D counsel trying to settle
- D came to see usual lawyer about another matter, who advised D about the writ, explained what it
was, and handed a copy to D…D handed it back and didn't report the matter to his current counsel
- D argued he was never effectively served because rule 11(2) requires one to both deliver and leave
the Writ with the defendant
I: - Was service as required by Rule 11(2) requires both delivery and that a copy be left with D?
J: - No, D doesn't need to retain a copy
A: - Test for service was that the "essential ingredient is that the process delivered to the defendant must
be so delivered under circumstances which enable the Court to conclude that the individual knew, or
reasonable should have known, what it was"
- "That he knew the document was a writ, issued against him by the plaintiff, and knew, in
addition, the general nature of the claim therein advanced"
- Here, the test was satisfied
R: - Service is effected on a defendant if they knew, or reasonably should have known, that the
document was a writ, and the Rules do not require the defendant to retain a copy for service to
be effected
______________________________________________________________________________________
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7) SERVICE (SUBSTITUTIONAL AND EX JURIS)
- Sometimes, the strict requirements for service cannot be complied with easily
- Therefore, Rule 12 provides some relief to a party having difficulty effecting service by providing
forms of substitutional service
- Therefore, one important rules here:
a) Rule 12 — Substituted Service
(1) Court may order substituted service
- "Where for any reason it is impracticable to serve a document as set out in Rule 11, the
court may order substituted service, whether or not there is evidence that the document
will probably reach the person to be served or will probably come to the person’s attention
OR that the person is evading service"
(2) How substituted service effected
- "Substituted service of a document is effected by taking the steps that the court has ordered
to bring the document to the attention of the person to be served"
- The form of substitutional service is within the discretion of the court
- Some common substitutional service provisions include posting on the door of a
residence, posting at the courthouse, publishing notice in a newspaper, or serving on
someone else in contact with the person
- Credit Foncier: to get a substitutional service order, application must establish that
personal service cannot be usefully effected or will involve too great of a cost
(3) Service of order required
- "Unless otherwise ordered, a copy of the order for substituted service of a document shall be
served with the document, except in the case of an order for substituted service by
advertisement, in which case the advertisement shall contain a reference to the order"
(4) Substituted service at residence without order
- "Subject to subrule (10), if an attempt to serve a document on a person at the place of
residence of that person is unsuccessful, the document may be served by doing both of the
following:
(a) leaving it, during or after that attempt, in a sealed envelope addressed to that
person, at the place of residence of that person, with anyone who appears to be an
adult member of the same household; and
(b) subsequently mailing the document addressed to the person at that place of
residence"
- This, along with R.12(7), permit forms of substituted service without the need to obtain
a court order first
- These are different than substituted service under R.12(1), which requires an order
- Before you can rely on R.12(4), you must have tried and failed to serve the person at
their residence
- Service under R.12(4), to be effectively relied upon, must be confirmed by an affidavit
that sets out that the address at which the documents were left is the residential address of
the person
(5) Effective date of service
- "A document served under subrule (4) is deemed to be served on the same day of the week,
in the calendar week following mailing, as the day of the week on which the document was
mailed or, if that day is a Saturday or holiday, on the next day that is not a Saturday or
holiday"
(6) Affidavit
- "If service is effected under subrule (4), an affidavit of service must state that the deponent
believes that the address at which the document was left and to which the document was
mailed is the residential address of the person on whom service was to be effected"
(7) Substituted service by mail without order
- "Subject to subrule (10), a document may be served by mailing it, together with an
acknowledgment of receipt card in Form 5.1, by ordinary prepaid mail OR by registered
mail to the residential, business or postal address of the person to be served"
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(8) Effective date of service
- "Service of a document under subrule (7) is effective when the sender receives
(a) the acknowledgment of receipt card, or
(b) a post office receipt bearing a signature that purports to be the signature of the
person served"
- Either way to be effective, receipt must be acknowledged
- Additionally, you still have to file an affidavit under R.12(9) below, stating that the
address used is the residential, postal or business address of the person
(9) Affidavit
- "If service is effected under subrule (7), an affidavit of service must state that the deponent
believes that the address to which the document was mailed is the residential, business or
postal address of the person on whom service was to be effected"
(11) If document does not reach person
- "Even though a document has been served in accordance with subrules (4) to (9), a
person may show, on an application to set aside the consequences of default, on an
application for an extension of time or on an application in support of a request for an
adjournment, that the document
(a) did not come to the person's notice, or
(b) did come to the person's notice at a time later than when it was served or effectively
served"
Credit Foncier v. McGuire (BCSC 1979)…Reasonable steps before substitutional service orders granted
F: - Petitioner tried to serve D through a process server, but housekeeper refused to open door and
verified address with neighbour
I; - When will substituted service under Rule 12 be allowed?
J: - Not here, for D…no evidence of real difficulty
A: - The court held that to obtain a substitutional service order, the applicant must establish that
personal service cannot be usefully effected or will involve too great a cost
- To do this, the applicant must show:
a) Reasonable steps have been taken to locate the party to be served; and
b) If located, that reasonable efforts have been made to effect personal service
- What is reasonable depends on the circumstances of each case
- There is no requirement for a party to assist or cooperate with the sheriff's officer in order than
service may be effected
- Thus going around to the house a few times and leaving a message for D to call you is not
enough, as there is no duty to cooperate if you are the defendant
- Impractical held to mean that it cannot be done or capable of being done only at unreasonable cost
R: - The opinion that a party is evading service is one that, unless adequately supported by the facts,
will almost certainly be rejected
- Additionally, Rule 13 allows an individual to effect service for a BC action outside of BC, as long as you
get leave of the court (R.13(3)) or fall within the ambit of R.13(1):
a) Rule 13 — Service Outside British Columbia
(1) Service outside British Columbia without leave
- "Service of an originating process or other document on a person outside British Columbia
may be effected without leave in any of the circumstances enumerated in section 10 of the
Court Jurisdiction and Proceedings Transfer Act"
- This has changed very recently, as amendments added reference to CJPTA
- Grounds for service ex juris without leave are still similar to what they were before, and
include actions:
- In respect of proprietary interests in property in BC
- Contracts to be performed in BC or subject to the law of BC
- Torts committed in BC
- An injunction against doing something in BC
- These criteria are intended to ensure that a matter to be tried in BC, where a defendant
is not resident here, has sufficient connection to the jurisdiction to proceed here
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(2) Idem
- "Except in a family law proceeding, a copy of an originating process served outside British
Columbia without leave shall state specifically by endorsement in Form 6 upon which of the
circumstances enumerated in section 10 of the Court Jurisdiction and Proceedings Transfer
Act it is claimed that service is permitted under this rule"
- Thus requires an originating process (petition or writ) served outside of BC without
leave must state by endorsement the grounds on which service is based
- You may state more than one ground
(3) Application for leave to service outside the jurisdiction
- "In any case not provided for in subrule (1), the court may grant leave to serve an originating
process or other document outside British Columbia"
(6) Time for appearance
- "Subject to subrule (6.1), if a person is served with an originating process outside British
Columbia, the time for appearance by that person, after service, is
(a) 21 days, in the case of a person residing anywhere within Canada,
(b) 28 days, in the case of a person residing in the United States of America, and
(c) 42 days, in the case of a person residing elsewhere"
- In contrast, service within BC requires an appearance to be filed within 7 days
(6.1) Time for appearance may be shortened
- "The court may shorten the time for appearance on an application made without notice"
(12) Manner of service abroad
- "A document may be served outside British Columbia
(a) in a manner provided by these rules for service in British Columbia,
(b) in a manner provided by the law of the place where service is made if, by that
manner of service, the document could reasonably be expected to come to the notice
of the person to be served, or
(c) in a state that is a contracting state under the (Hague) Convention, in a manner
provided by or permitted under the Convention"
______________________________________________________________________________________
8) RENEWAL
- One big rule here:
a) Rule 9 — Renewal of Writ
(1) Renewal of original writ of summons
- "No original writ of summons shall be in force for more than 12 months, but where a
defendant named in the writ has not been served, the court, on the application of the
plaintiff made before or after the expiration of the 12 months, may order that the
original writ of summons be renewed for a period of not more than 12 months which,
unless otherwise ordered, shall commence on the date of the order"
(2) Renewal of renewed writ of summons
- "If a renewed writ of summons has not been served on a defendant named in the writ, the
court, on the application of the plaintiff made during the currency of the renewed writ, may
order the renewal of the writ for a further period of not more than 12 months which,
unless otherwise ordered, shall commence on the date of the order"
(3) Renewal of writ of summons
- "Unless otherwise ordered by the court, a copy of each order granting renewal of a writ shall
be served with the renewed writ, and the renewed writ shall remain in force and be
available to prevent the operation of any statutory limitation and for all other purposes"
(5) Application to petition
- "This rule applies to a petition"
Lowe v. Christensen (1984 BCCA)…Court concerned about rights of litigants rather than lawyer conduct
F: - P was involved in a motor vehicle accident in Feb 1979, lawyer issues writ in July 1980
- Writ wasn't served and lawyer suspended by Law Society in Nov 1981
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- After 1 ½ years, client's second lawyer tells ICBC that he will have to renew the claim, however,
nothing happens for more than a year, then application to renew was brought ex parte
- P thought everything was proceeding normally, but almost immediately after discovering the issue
about service, P instructed an action be commenced against his first lawyer
I: - What is necessary to see justice done?
J: - For P, renewal granted
A: - Non-compliance with the Rule requiring service of a writ within 12 months is an irregularity
- Test for court considering renewal to see that justice is done:
- The question must be answered with a view to all of the circumstances
- If there is an injustice to the plaintiff, and not the defendant, the writ should be renewed
- Court more concerned with the rights of litigants rather than the conduct of their solicitors
- Here, failure to serve was the result of P's solicitor, not the plaintiff himself
- No real prejudice to the defendants
R: - When deciding whether to grant renewal of a writ under Rule 9, the court will grant renewal if
there would be injustice to the plaintiff
Johnson v. Cooke (2000 BCSC)…Delay will not necessarily result in actual prejudice to defendants
F: - P sued for complications arising from surgical procedures (ie: contaminated bolt in ankle)
- Writ issued within limitation period, but lawyer didn't tell her it would expire after a year
- Writ expired without having been served, so P brings application to renew the writ
I: - Can the renewal application proceed?
J: - Yes, for P
A: - Court applies the Bearhead test, which gives 5 factors:
a) Was the application brought promptly?
- Yes, brought within 6-8 weeks, which was reasonably prompt
b) Did the defendant have notice of the claim from sources other than the writ?
- Defendant doctors had reason for suspicion, but not actual knowledge…couldn't resolve
c) Has the defendant suffered prejudice? (overriding factor…see Eagle Ridge)
- Where delay in serving is not deliberate, prejudice should be assessed from the date of the
writ, plus a "reasonable period" for service
- Here, since there were hospital records to assist in recollection, there was no prejudice to the
defendants from the delay, as doctors didn't remember anything from the beginning and
records are kept particularly to defend themselves in litigation
- Thus, there is general prejudice in delay, but no "actual prejudice" to these defendants
d) Was the failure to serve the writ attributable to the actions of the defendant?
e) Was the plaintiff or his solicitor at fault?
- In the absence of actual prejudice, the plaintiff will not be held responsible for the mistakes
of counsel
- Court then reviews jurisprudence on when renewal has been refused…situations include:
a) Egregious delay
b) Fault of the plaintiff
c) Actual prejudice
R: - The overriding factor the court will consider when deciding whether to grant a renewal
application is whether there is "actual prejudice" to the defendants, and delay may only
constitute "general prejudice" that will not bar a successful application
Seeliger v. Eagle Ridge Hospital (2007 BCCA)…Plaintiff need not have evidence demonstrating merits
F: - Another medical malpractice claim…D argues P must show they have a good cause of action
I: - To what degree should a court consider the merits of the claim in considering whether to renew?
J: - For P…low threshold test
A: - Court holds that plaintiff must show the pleadings disclose a cause of action that is not bound to fail
- Thus no evidence required of the plaintiff
- Assumption is what is pleaded is true as set out in the statement of claim
- However, if the defendant contends that the claim is bound to fail, some limited evidence may be
required…court doesn't discuss this much
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- Court reaffirms Cooke where delay doesn't create actual prejudice to the defendants
- Also affirms where if the plaintiff is let down by counsel, they won't lose their cause of action
R: - When the court is considering the merits of the claim in considering whether to grant a renewal
application, there is a very low threshold where the plaintiff simply must demonstrate that the
pleadings disclose a cause of action that is not bound to fail
______________________________________________________________________________________
II. PLEADINGS AND PARTIES
1) FUNCTIONS OF PLEADINGS
- There are 4 functions of pleadings:
a) Clearly and Precisely Define the Issues
- Effective pleadings narrow the issues and reduce the time required to try the action
b) Give Fair Notice
- Give notice to other side so that it may prepare its evidence for trial
c) Inform the Court of Events
- Pleadings set limits of the action which may not be extended without amendments
d) Permanent Record of the Issues
- This makes it readily available for reference for future litigants
- Also, can't keep litigating the same issue between parties, so record is important for that
- While modern approach to pleadings is less technical and more liberal (ie: room for amendments),
pleadings are still the first shot at the judge and are critical for setting a good tone for the proceedings
- See tips sheet on p.67
______________________________________________________________________________________
2) STATEMENTS OF CLAIM
- It's almost always best to file a writ of summons with a statement of claim instead of an endorsement
- This is because you have to file a SOC in the future regardless (Rule 20)
- Also, if SOC and endorsement are inconsistent, the court deems the claims only in the endorsement
to have been abandoned
- Endorsements generally only filed when there is little time before the limitation period expires
- The aim of a statement of claim is to tell a clear and convincing story to the judge, since it's the first
shot, and should contain the following basic information:
a) Identification of the parties
b) Status of the parties
c) Facts to demonstrate jurisdiction of the court over the parties
d) What, where, when, and how things happened
e) Why they happened
f) Relief sought
- There are 3 forms of statement of defence:
a) Traverse (denial)
b) Confession and avoidance
- ie: the claim is true as far as it goes but it is not the whole story
c) Demurrer
- ie: even assuming the claim is true, the claim is bad in law
- Rule 11 states when particulars are necessary, and particulars have several purposes:
a) Ensure the other party knows the case to meet
b) Prevent surprise
c) Enable the other side to know the evidence it ought to marshal
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d) Limit the generality of the pleadings
- Want to keep them general enough so that you're not tied down when it goes to trial
e) Limit and define the issues to be tried and for which discovery is required
f) Tie the hands of the party…see powerpoint for end
- There are 3 important Rule Sections:
a) Rule 1 – Defintions
(8) Defintions
- "'Pleading' includes a statement of claim, statement of defence, reply, counterclaim,
statement of defence to counterclaim, third party notice and statement of defence to third
party notice"
- Rule 19 applies to all of the pleadings as defined here
b) Rule 19 – Pleadings Generally
(1) Contents
- "A pleading shall be as brief as the nature of the case will permit and must contain a
statement in summary form of the material facts on which the party relies, but not the
evidence by which the facts are to be proved"
i) Fact is a thing that happened and a thing that exists (what you must prove)
- Key here: facts, not evidence (ie: say D was speeding, but not that witness saw it)
ii) Evidence is the manner in which you intend to prove that fact (how you prove it)
- Sometimes, who said what matters (ie: in a libel suit), but usually it's evidence
- If you're in doubt of whether a fact is material, it should be included, as it may
preclude you from proving facts at trial
(2) Documents, conversations should be stated briefly in pleading
- "The effect of any document or the purport of any conversation referred to in a pleading, if
material, shall be stated briefly and the precise words of the documents or conversation
shall not be stated, except in so far as those words are themselves material"
- This requires the effect of any document or conversation to be stated briefly
- ie: don't put entire K in SOC…just summarize the effect of the contract
- In practice, short quotations are OK as long as the words are material/relevant
- Reaffirms R.19(1) where counsel is to be concise and frame issues for the court
(5) Form
- "A pleading shall be divided into paragraphs numbered consecutively, each allegation being
contained in a separate paragraph"
- Again, pleadings should be organized and concise to be persuasive
(7) Inconsistent Allegations
- "A party shall not plead an allegation of fact or a new ground or claim inconsistent with the
party's previous pleading"
- See subrule (8), which permits counsel to plead in the alternative
(8) Alternative Allegations
- "Subrule (7) does not affect the right of a party to make allegations in the alternative or to
amend or apply for leave to amend a pleading"
- ie: in breach of contract case, there was express term, or alternatively, an implied term
- This can be useful in forcing a party to narrow its case and sharpen the issues
(9) Objection in point of law
- "A party may raise in a pleading an objection in point of law"
(9.1) Pleading conclusions of law
- "Conclusions of law may be pleaded only if the material facts supporting them are pleaded"
- Thus law permits objections in law but only if material facts are provided
(10) Status Admitted
- "Unless the incorporation of a corporate party or the office or status of a party is specifically
denied, it shall be deemed to be admitted"
- Thus if P is a corporation, counsel for D should always do a corporate search before
pleading in defence
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(11) Where particulars necessary
- "Where the party pleading relies on misrepresentation, fraud, breach of trust, willful default
or undue influence, or where particulars may be necessary," the party must provide particulars
in the pleading
- Particulars are the detailed facts on which a claim is based (ie: date of events)
- It is a discretionary matter for a Chambers judge to determine "where particulars may
be necessary"
(11.1) Further particulars
- "Particulars need only be pleaded to the extent that they are known at the date of pleading,
but further particulars may be delivered after they become known, and shall be delivered
within 10 days of a demand being made in writing"
- However, R.19(16) authorizes the court to order a party to deliver further and better
particulars, and R.19(17) requires a demand be made of the other party before bringing an
application for further and better particulars (thus sections out of order)
(13) Set-off or Counterclaim
- "A defendant in an action may set off or set up by way of counterclaim any right or claim,
whether the set-off or counterclaim is for damages or not, so as to enable the court to
pronounce a final judgment on all claims in the same action"
i) Set-off = defence to P's action, intrinsically tied to the claim made by P both factually
and quantatively
- ie: in a contract case where the vendor claims for failure to pay, the purchaser could
plead a set-off on the basis that because of late delivery the goods were worth less,
and the damages should be reduced by the value of the set-off
- This is limited to the amount that P claims
ii) Counterclaim = separate and independent action by D against P which does not
destroy the plaintiff's original claim
- ie: in the same contract dispute, the defendant could bring a counterclaim for
damages for late delivery
- The practical difference is that if P's claim is dismissed or discontinued, the set-off
falls away, but a counterclaim continues, and can be greater than P's claim
- ie: successful counterclaim by D entitles D to costs of counterclaim, but does not
disentitle P to the costs of original claim, since CC doesn't defeat original claim
- While these lead to perhaps more litigation, there are still the same cost
consequences, and some P's may be wary of bringing suits in fear of counterclaims
- See statement of defence rules for formalities, but usually this is included in the
same package as the SOD even though it's a separate document
(15) Pleading after the statement of claim
- "In a pleading subsequent to a statement of claim a party shall plead specifically any matter
of fact or point of law that
(a) the party alleges makes a claim or defence of the opposite party not maintainable,
(b) if not specifically pleaded, might take the other party by surprise, or
- ie: limitation defence or estoppel argument
(c) raises issues of fact not arising out of the preceding pleading"
- Again, reinforces the functions of pleadings to define the issues, give fair notice, and tell a
story for the court
(16) Order for Particulars
- "The court may order a party to deliver further and better particulars of a matter stated in a
pleading"
(17) Demand for Particulars
- "Before applying to the court for particulars, a party shall demand them in writing from the
other party"
(18) Demand for Particulars but not a Stay of Proceedings
- "A demand for particulars does not operate as a stay of proceedings or give an extension of
time", but a party may apply for an extension of time for delivering a pleading on the ground
that the party cannot answer that pleading until particulars are provided"
20
- ie: if particulars needed to file SOD, but you aren't getting one and don't want to be in
default, it can be a legitimate reason for asking for an extension
- In practice, application for extension of time is done in response to and at the same time
as an application to compel particulars
(19) Denial required if fact not admitted
- "An allegation of fact in a pleading, if not denied or stated to be not admitted in the pleading
of the opposite party, shall be taken to be admitted, except as against an infant or mentally
incompetent person" (important)
- Thus most SOC have a token blanket statement of not admitting anything in the SOD
- The more specific you are, the more likely you are stuck with an admission
(20) General denial sufficient except where proving different facts
- "Where a party intends to prove material facts that differ from those pleaded by an opposite
party, a denial of the facts so pleaded is not sufficient, but where a party intends to prove
material facts that differ from those pleaded by an opposite party, a denial of the facts so
pleaded is not sufficient, but the party shall plead his or her own statement of facts if those
facts have not been previously pleaded"
- If SOD says facts are different than facts P stated in SOC, you must plead those facts
(21) Substance to be answered
- "If a party in a pleading denies an allegation of fact in the previous pleading of the opposite
party, the party shall not do so evasively but shall answer the point of substance"
- Thus a standard form of defence denying all of P's allegation is ineffective
(22) Denial of contract
- "If a contract, promise or agreement is alleged in a pleading, a bare denial of it by the
opposite party shall be construed only as a denial of fact of the express contract, promise or
agreement alleged, or of the matters of fact from which it may be implied by law, and not as a
denial of the legality or sufficiency in law of that contract, promise or agreement"
- The contract existence itself is denied with a bare denial, not the legality, terms, or
sufficiency of the contract
(24) Scandalous, frivolous, or vexatious matters may be struck out
- "At any stage of a proceeding the court may order to be struck out or amended the whole or
any party of an endorsement, pleading, petition or other document on the ground that
(a) it discloses no reasonable claim or defence as the case may be,
- This is the most commonly applied subsection
- This test is very high, and the application assumes that the facts as pleaded are true
- R.19(27) provides that no evidence is admissible on a R.19(24)(a) application
- Q: is there a legal question that can possibly succeed?
(b) it is unnecessary, scandalous, frivolous or vexatious,
(c) it may prejudice, embarrass or delay the fair trial or hearing or the proceeding, or
(d) it is otherwise an abuse of process of the court
- Arises most frequently when somebody is repeatedly bringing the same claim
- In (b), (c), and (d), you can lead evidence
and the court may grant judgment of order the proceeding to be stayed or dismissed and may
order the costs of the application to be paid as special costs"
(27) Idem
- "No evidence is admissible on an application under subrule (24)(a)"
(28) General relief
- "A pleading need not ask for general or other relief"
- Sandes v. Brown: Notwithstanding this rule, a pleading should almost always conclude with
a prayer for relief"
c) Rule 20 – Statement of Claim
(1) Form
- "A statement of claim must be in Form 13"
(2) Delivery
- "The plaintiff shall file and deliver a statement of claim either with the writ of summons or
within 21 days after appearance"
- Thus writ with an endorsement isn't a good idea, as must file SOC regardless
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(3) Altering claim from that endorsed on the writ
- "The plaintiff may, in a statement of claim, alter, modify or extend the claim without
amending the endorsement on the writ"
(4) Place of trial
- "A statement of claim must show the proposed place of trial"
(5) Specific relief
- "A statement of claim must state the specific relief which the plaintiff claims, and may ask
for relief in the alternative" (ie: damages, injunction)
______________________________________________________________________________________
3) PARTIES
- There are 3 important Rule sections that deal with parties:
a) Rule 5 – Multiple Claims and Parties
(1) Multiple Claims
- "Subject to subrule (6), a person, whether claiming in the same or different capacities, may
join several claims in the same proceeding"
(2) Multiple parties
- "Subject to subrule (6), a proceeding may be commenced by or against 2 or more persons
where
(a) if separate proceedings were brought by or against each of them, a common
question of law or fact would arise n all the proceedings, or
(b) a right to relief claimed in the proceedings, whether or not it is joint, several or
alternative, is in respect of or arises out of the same transaction or series of
transactions, or
(c) the court grants leave to do so"
(6) Separation
- "Where a joinder of several claims or parties in a proceeding may unduly complicate or
delay the trial or hearing of the proceeding or is otherwise inconvenient, the court may order
separate trials or hearings or make any other order it thinks just"
(7) Idem
- "Where a counterclaim or a third party proceeding ought to be disposed of by a separate
proceeding, the court may so order"
- Thus the court uses judicial discretion when deciding whether to separate proceedings
(8) Consolidation
- "Proceedings may be consolidated at any time by order of the court or may be ordered to
be tried at the same time or on the same day"
- ie: if there are common questions, you want efficiencies of same witnesses with
different consequences for different parties
(11) – (23) Representative Proceedings
- These are for actions where there is a representative plaintiff, but these have generally been
replaced by class action lawsuits
b) Rule 6 – Persons Under Disability
(1) Interpretation
- "In this rule 'committee" means the committee of the estate of a patient appointed under the
Patients Property Act"
(2) Commencement of proceedings by person under disability
- "A person under legal disability shall commence or defend a proceeding by his or her
litigation guardian"
(3) Idem
- "Unless a rule otherwise provides, anything that is required or authorized by the rules to be
done by or invoked against a party under disability shall
(a) be done on his or her behalf by his litigation guardian, or
(b) be invoked against him or her by invoking the same against his or her litigation
guardian (ie: guardian stands in the person's shoes)"
- This effectively places the litigation guardian with same powers as persons
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(4) Idem
- "A litigation guardian shall act by a solicitor unless the litigation guardian is the Public
Guardian and Trustee"
(5) Litigation guardian
- "Unless the court otherwise orders or an enactment otherwise provides, a person ordinarily
resident in the Province may be a litigation guardian of a person under disability
without being appointed by the court"
(6) Committee as litigation guardian
- "Where a person is appointed committee, that person shall be the litigation guardian of the
patient in any proceeding unless the court otherwise orders"
(7) Consent of litigation guardian
- "Before the name of a person is used in a proceeding as a litigation guardian that person's
conent, signed by the person or his or her solicitor, shall be filed, unless the person has been
appointed by the court"
(8) Certificate of fitness
- "Unless a committee has been appointed, the solicitor for a person under a disability, before
acting in a proceeding, must, unless subrule (8.1) applies, file a certificate that he or she
knows to believes" has a conflict of interest
(9) Party becoming incompetent
- If a party to a proceeding becomes a mentally incompetent person, the court must appoint a
litigation guardian for him or her unless
(a) a committee has been appointed for the party
(11) Step in default
- "A party shall not take a step in default against a person under disability without leave
of the court"
(13) Idem
- "If no appearance has been entered to an originating process on behalf of a person under
disability, the person who commenced the proceeding, before continuing the proceeding
against the person under disability, shall obtain an order from the court appointing a litigation
guardian for him or her"
(14) Compromise by person under disability
- No settlement, ect…is binding upon a person with a disability "without the approval of the
court"
- Thus extra level of protection for those litigating for people with a disability
(15) Approval of compromise
- "Where, before a proceeding is commenced, an agreement is reached for the settlement or
compromise of a claim of a person under disability, whether alone or with others, and it is
desired to obtain the court's approval, application may be made by an originating application,
and the court may make any order as it thinks just"
- See statement of claim on email where claim is for 2,000,000,000 billion and cars
c) Rule 7 – Partnerships
(1) Partners may sue or be sued in firm name
- Must be firm where they were partners "at the time when the alleged right or liability arose"
(2) Service on firm
- "Service is effected upon a firm by leaving a copy of the document to be served either with a
person who was a partner at the time the alleged right or liability arose or with a person at a
place of business of the firm who appears to manage or control the partnership business
there"…thus these service rules are different than the general service rules in Rule 11
(3) Appearance
- "An appearance by a partnership shall be in the name of the firm, but a partner served as a
partner may file an appearance and defend in the person's own name, whether or not named in
the originating process"
(4) Affidavit naming partners
- "Where a partnership is a party to a proceeding, any other party may deliver a notice
requiring one of the partners to deliver within 10 days an affidavit setting out the names and
addresses of all persons who were partners when the alleged right or liability arose"
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(7) Idem
- "Subject to subrule (8), where an order is made against a firm, execution to enforce the order
may issue against any person who
(a) entered an appearance in the person's own name in the proceeding as a partner,
(b) having been served with the originating process as a partner, failed to enter an
appearance in the proceeding,
(c) admitted in a pleading or affidavit that the person is a partner, or
(d) was adjudged to be a partner"
______________________________________________________________________________________
4) APPEARANCE
- The rules for appearance are as follows:
a) Rule 14 – Appearance
(1a) Filing of appearance – petition
- "Where a party wishes to enter an appearance to an originating process other than a petition,
the party shall file an appearance in Form 7 and shall deliver a copy of the appearance
forthwith to the plaintiff"
(1b) Filing of appearance – others
- "Where a party wishes to enter an appearance to a petition, the party shall file an appearance
in Form 8 and shall deliver a copy of the appearance promptly to the appellant"
(1e) Filing of appearance – others
- "An appearance may be filed at a registry by fax"
(3) Time for appearance
- "Unless the court otherwise orders or these rules otherwise provide, the time for
appearance is 7 days from the service of the originating process" (Writ or Petition)
(4) Appearance after time for appearance
- "A party may enter an appearance after the time for appearance has expired"
(6) Disputed jurisdiction
- A party can file an appearance and still challenge jurisdiction
(6.1) Order declining jurisdiction may be sought
- A party can appear and apply to the court to decline jurisdiction (argue forum conveniens)
(6.2) Disputed process or service
- A party can appear and dispute service
(6.4) Party does not submit to jurisdiction
- "If, within 30 days after entering an appearance in a proceeding, a party of record delivers a
notice of motion under subrule (6)(a) or (b) or (6.2) to the other parties of record or files a
pleading referred to in subrule (6)(c)
(a) the party does not submit to the jurisdiction of the court in relation to the proceeding
merely by filing or delivering any or all of the following:
(i) the appearance;
(ii) a pleading under subrule (6)(c);
(ii) a notice of motion and supporting affidavits under subrule (6)(a) or (b), and
- ie: file motion challenging jurisdiction
(b) until the court has decided the application or the issue raised by the pleading, the
party may, without submitting to the jurisdiction of the court,
(i) apply for, enforce or obey an order of the court, and
(ii) defend the action on its merits"
- ie: pleading challenging jurisdiction
- Thus, if in any doubt, file an appearance (as you don't want a default judgment), and then
dispute the jurisdiction, forum conveniens, or service within 30 days first, and then you can
defend on the merits (ie: don't do SOD yet ) (important…review powerpoint slides here)
- This is why any step other than an appearance means submitting to the jurisdiction
______________________________________________________________________________________
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5) DEFAULT JUDGMENTS
- The rules for default judgments are as follows:
a) Professional Conduct Handbook
- Sets out ethical obligations that governs counsel
- However, these are not enforced by the court…they are enforced by the Law Society
b) Rule 17 – Default of Appearance To Writ
- This applies when the defendant has not appeared within the time required
(1) Default in filing of appearance
- "A plaintiff may proceed against a defendant under this rule if
(a) that defendant has not filed an appearance to a writ of summons, and
(b) the time for appearance has expired"
(2) Filings required
- "A plaintiff who wishes to proceed against a defendant under this rule must file proof of
service of the write on that defendant and a requisition endorsed by the registrar with a
notation that no appearance has been filed by that defendant"
(3) Claim for debt or liquidated demand
- Where the plaintiff's claim against a defendant is solely for recovery of a debt or liquidated
demand, the plaintiff may enter final judgment in Form 86 against that defendant for a sum
not exceeding that claimed, interest if entitled and costs, and may proceed with the action
against any other defendant"
- Liquidated demand is certain amount that requires no further finding (usually debt)
(5) Claim for unliquidated damages
- "Where the plaintiff's claim against a defendant is solely for unliquidated damages, the
plaintiff may enter judgment in Form 86 against that defendant for damages to be assessed
and costs, and may proceed with the action against any other defendant"
(7) Multiple claims
- If you have claims for liquidated and unliquidated damages, you can deal with them
separately
c) Rule 25 – Default of Pleading
- This rule provides for default proceedings in respect of any pleading other than an appearance
(1) Default in filing and delivering a statement of claim
- "If a plaintiff has not filed and delivered a statement of claim and the time for doing so has
expired, the court may, on the application of a defendant, order that the action be dismissed or
make any other order it thinks just"
- Since you have only 14 days to file SOC after writ, you can go into default
(2) Default in filing and delivering a statement of defence
- "A plaintiff may proceed against a defendant under this rule if
(a) that defendant has not filed and delivered a statement of defence, and
(b) the time for filing and delivering the statement of defence has expired"
(3) Filings required
- "A plaintiff who wishes to proceed against a defendant under this rule must file
(a) proof of service or delivery of the statement of claim on that defendant
(b) proof that that defendant has failed to deliver a statement of defence, and
(c) a requisition endorsed by the registrar with a notation that no statement of defence
has been filed by that defendant
(4) (6) (8) (14) Claim for liquidated and unliquidated damages
- Similar to Rule 17
(15) Court may set aside or vary default judgment
- "The court may set aside or vary any judgment entered under this rule"
Austin v. Rescon Construction Ltd. (1986 BCSC)…3 requirements for D to set aside a default judgment
F: - P started action for trespass on land and unjust enrichment when D put bolts in wall of P's house
- Counsel for P had left voicemails about SOD, but the calls weren't returned by counsel for D
- D didn't file statement of defence, so P got a default judgment…D brought application 8 days later
I: - Can D succeed in setting aside the default judgment?
25
J: - Yes, for D, they can file the statement of defence (however, D must pay P's costs thrown away)
A: - In order to succeed on an application to set aside a default judgment, applicant must meet the well
established test from Miracle Feeds:
a) He did not wilfully or deliberately fail to enter an appearance or file a defence to the
plaintiff's claim
- Here, there was simply an unfortunately misunderstanding between counsel
b) He 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
- Here, D's moved in a reasonably prompt fashion
c) He has meritorious defence or at least a defence worthy of investigation
- This is often the most hotly debated factor
- Here, sufficient facts to support D's contentions, as application to set aside included a SOD
which supported D's claim and it appeared to have a meritorious defence
R: - Defendants can set aside a default judgment if they meet 3 requirements from Miracle Foods
Bank of Montreal v. Erickson (1984 BCCA)…Same factors for default judgment but different result
F: - D unable to pay bank loan guarantee, and filed appearance but no defence
- Default judgment was granted, and nothing happened until the bank sought to execute the judgment
- D claims they failed to defend because they felt harrased by the bank, they wished to work things out,
they were bankrupt and had no point in defending, believed bank had no moral right to claim on the
guarantee, and didn't dispute that they owed the money
I: - Was BMO entitled to a default judgment?
J: - Yes, for BMO
A: - Court used the same factors as Austin from Miracle Foods, but here, the court found that none of the
three things were shown by the defendant
- Here, D's reasons not to defend had no basis in law
R: - Different result from applying the 3-part test from Miracle Foods for deciding if an application
to set aside a default judgment ought to be granted
Schmid v. Lacey (1991 BCCA)…"Worthy of investigation" doesn't mean baseless allegations
F: - P starts action for trespass on land, as D was cutting down trees on P's property
- D argued that he didn't respond because he thought a settlement had been reached, and alternatively
that he had hired a person to log trees on his property and logged P's property without his consent
I: - Should the default judgment be struck out?
J: - No, for P
A: - Court applied Erickson, but failed 3rd criterion that a defence must be "worthy of investigation"
- Here, affidavits were sketchy and allegations must be supported with details
- Therefore, court didn't conclude that a reasonable defence existed
- Case shows the amount of evidence required to set aside a default judgment
- Locke J.A. held that the test for a meritorious defence requires more than just bald assertions
- Differs from Austin, as there D provided facts defence to back up his legal defence
R: - For a defence to be "worthy of investigation", one must "descend to details such as to enable
the judge to correctly exercise his mind upon whether there is indeed such a defence"
______________________________________________________________________________________
6) STATEMENTS OF DEFENCE AND COUNTERCLAIMS
- Statement of Defence is covered by the same rules governing pleadings generally in Rule 19
- There is one important rule:
a) Rule 21 – Statement of Defence and Counterclaim
(1) Form
- "A statement of defence must be in Form 14"
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(5) Delivery
- "Where a defendant has entered an appearance the defendant shall file and deliver a
statement of defence and any counterclaim to the plaintiff within 14 days form the time
limited for appearance or from the delivery of the statement of claim, whichever is later"
- Timing depends on if writ is served with or without SOC
- If together, you get 7+14…if separately, you get 14 from the time the SOC comes
(6) Counterclaim
- "A counterclaim must be pleaded separately, must be in Form 15, and may be included in
the same document as the statement of defence"
(7) Idem
- "The parties shall be referred to in a counterclaim in their original capacities and the terms
'plaintiff by way of counterclaim' and 'defendant by way of counterclaim' shall not be used
except as provided in subrules (8) and (11)"
(8) Counterclaim against plaintiff and another person
- "Where a defendant sets up a counterclaim that raises questions between that defendant and
the plaintiff along with any other person, the defendant may join that person as a party
against whom the counterclaim is made"
- This is only where the questions raised are essentially joint between P and other person
(10) Idem
- "Where the person referred to in subrule (8) is a party to the original action, the defendant
shall deliver the counterclaim to that person within the period in which the defendant is
required to deliver it ot the plaintiff"
- See powerpoint for R.21(11)
(12) Defence to counterclaim
- "A person served with a counterclaim becomes a defendant to the counterclaim from the
time of service with the same rights and obligations in respect of conducting a defence to the
counterclaim or otherwise as a defendant"
(13) Separate trial of counterclaim
- Counterclaim can be severed and tried separately if need be by defendant
(14) Where action stayed or discontinued
- "Where, in an action in which the defendant has set up a counterclaim, the action of the
plaintiff is stayed, discontinued or dismissed, the counterclaim may proceed"
(15) Judgment
- "Where a set-off or counterclaim establishes a defence to the plaintiff's claim, the court may
give judgment for the defendant for any balance in the defendant's favour or for other relief as
the court thinks just"
Sandes v. Brown (1979 BC Cty. Ct.)…Pleadings should always conclude with a prayer for relief
F: - P sues for damages for negligence from D's well drilling on P's property
I: - There are no issues or judgement…just an example of a terrible SOC and SOD…what not to do
A: - Many rules in conflict, such as:
a) Rule 19(1) – Must allege material facts
- It is not an allegation of any fact to plead that a party "says" something
- Also, it lacked particulars of the negligence, contains contradictory allegations, lacked a
statement of material facts
b) Rule 21(1) – Statement of defence must be in Form 14 according to the rules
- Here, it wasn't in the correct form, and was improperly titled
c) Rule 19(19) – Positive allegation in one party's pleadings not specifically denied is deemed to
be admitted
- Thus no need to admit allegations made in the statement of claim
d) Rule 19(28) – It's in conflict with Form 12, so pleadings should always conclude with a
prayer for relief
- Demonstrates the ultimate purpose of pleadings…to frame the issues in dispute
R: - Onus on counsel to define with reasonable accuracy what issue or issues they want decided
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National Leasing Group Inc. v. Top West Ventures Ltd. (1991 BCCA)…Counterclaim must have COA
F: - P made claim to collect an outstanding debt for a computer system
- D wrote weird counterclaim, using code language and bad grammar (ie: said plaintiff was a verb)
I: - Should the counter-claim be dismissed for not disclosing a cause of action?
J: - Yes, counter-claim dismissed
A: - Judge found a general intent to plead fraud, but little else
- Recommended D should submit another SOD written by someone with a more traditional view of the
English language…only dismissed the counterclaim
- Thus distinction between striking out counterclaim v. recommendation to amend statement of defence
R: - Counterclaims must disclose a comprehensible, arguable cause of action
______________________________________________________________________________________
7) AMENDMENTS TO PLEADINGS
- There are 2 important rule sections:
a) Rule 15 – Change of Parties
(1) Party's death, bankruptcy, ect.
- "Where a party dies or becomes bankrupt, or a corporate party is wound up or otherwise
ceases to exist, but the claim survives, the proceeding shall not abate by reason of the death or
bankruptcy or the corporate party having been would up or ceasing to exist"
(5a) Removing, adding or substituting party
- "At any stage of a proceeding, the court on application by any person may
(i) order that a party, who is not or has ceased to be a proper or necessary party, cease to
be a party
(ii) order that a person, who ought to have been joined as a party or whose participation
in the proceeding is necessary to ensure that all matters in the proceeding may be
effectually adjudicated upon, be added or substituted as a party, and
(iii) order that a person be added as a party where there may exist, between the person
and any party to the proceeding, a question or issue relating to or connected
(A) with any relief claimed in the proceeding, or
(B) with the subject matter of the proceeding
which in the opinion of the court it would be just and convenient to determine as
between the person and that party"
(5b) Removing, adding or substituting party
- "No person shall be added or substituted as a plaintiff or petitioner without the person's
consent"
(6) Procedure where order made
- Practical issues of what happens when a party is added
b) Rule 24 – Amendment
(1) When amendment may be made
- "A party may amend an originating process or pleading issued or filed by the party at any
time with leave of the court, and, subject to Rules 15(5) and 31(5)
(a) once without leave of the court, at any time before delivery of the notice of trial or
hearing, and
(b) at any time with the written consent of all the parties"
(2) (3) How amendments made
- Deal with practicalities, such as filing a new document, amendments are dated, identified,
and underlined
(5) Amendment at trial
- "Unless the court otherwise orders, where an amendment is granted during a trial or hearing,
an order need not be taken out and the amended document need not be filed, delivered or
served"
(8) Amendments consequent upon amendment
- If a SOC, counterclaim or third party notice is amended, the responding party is entitled to
make consequential amendments
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Langret Investments v. McDonnell (1996 BCSC)…Potential prejudice not enough to defeat amendment
F: - P brought action to amend a petition regarding the jurisdiction of the court for granting a receiving
order under the Bankruptcy and Insolvency Act, which has specific rules about amending petitions
- Sought to add 2 new allegations regarding the "locality of the debtor"
- Originally, they claimed that D principally resided in BC…however, D produced an Irish
passport and claimed he principally resided in Ireland
- Now, they want to add that he carried on business, or alternatively, has property in BC
- This petition is to be amended before the matter is heard in court
- Chambers judge denied amendment because the penal nature of the BIA means changes must relate to
substance, not form…applied a strict test in considering whether or not to amend
I: - When are amendments to pleadings allowed?
J: - For A, amendments allowed to the extent that they didn't conflict with the statute
A: - Court makes two holdings:
a) Amendments are allowed unless prejudice can be demonstrated by the opposite party
- This sets out a broad and permissive test for amendments under Rule 24(1)
- Rationale is that allowing amendments is to enable the real issues to be determined
- Fundamental objective of the civil rules is the just, speedy and inexpensive determination of
every proceeding on the merits
- Here, principles of civil procedure aren't inconsistent with BIA
b) "Potential" prejudice will not suffice to defeat a motion to amend
- Otherwise, almost any amendment could be defeated on technical grounds
- Any evidentiary issue respecting the locality of the debtor is to be determined by the judge
hearing the petition, not the chambers judge hearing a motion to amend
- Merits of amendment are to be adjudicated in the trial or hearing, not in determining whether
the amendment should be granted
R: - Amendments are allowed unless actual prejudice can be shown by the opposing party
Teal Cedar Products Ltd. v. Dale Intermediaries Ltd. (1996 BCCA)…Factors for permitting amendments
F: - P appeals chambers judge decision to deny application to add new cause of action against insurance
companies…claims CJ erred because he:
a) Put too much importance on P's decision not to sue originally, and
b) Shouldn't have prioritized policy over judicial discretion
- CJ ruled that there was no prejudice in delay to D, but since P chose not to include the claim within
the limitation period, it's denied
I: - Is the amendment allowed?
J: - Yes, for P, as delay was small, no prejudice to D, and not unjust for insured to change views
A: - First, court holds that leave to add a new cause of action should not be refused solely because the
plaintiff's conduct was a deliberate decision or was "voluntarily dilatory"
- Next, court looks at how the court should exercise discretion under s.4(4) of the Limitation Act
- Holds that discretion to permit amendments is unfettered, subject only to the general rule
that it be exercised judicially
- Considerations include length of delay, reasons for delay, expiration of limitation period,
prejudice to the respondents, and connection (if any) between existing claim and new COA
R: - The most important overriding factor in determining whether to permit amendments to an
application is the question of what is just and convenient
Broom v. The Royal Centre (2005 BCSC)…Misnomers can be corrected without leave of the court
F: - P slipped and fell at Royal Centre, and wanted to know who was responsible for maintenance of a rug
and the surrounding area
- P applied to amend SOC to replace "John Doe 1" with "SMS" after investigation…claims it's not
adding a new party, but simply correcting a name/misnomer
I: - Does R.24(1)(a0 entitle P to amend a writ and a statement of claim to substitute a specific defendant
for a misnomer without leave of the court?
J: - Yes, for P
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A: - Past case law was distinguishable, as they were about adding (not substituting) D's name after the
limitation period expired
- Quotes Teal where delay is not determinative…the most important factor is whether or not D has
been substantially injured by the misnomer and the correction of his name
- Also, there is always the overriding question of what is just and convenient in the circumstances
- Intent of Rule 24(1)(a) is "avoid the costs and time involved in making an application early in the
proceedings"
- Uses Davies test: is it a misnomer, or is there another entity to whom the description on the writ
might refer?
- Here, it's clear P is suing maintenance company (SMS) and it's employees
- Also, P had difficulty finding out D's identity because SMS's carried on work under name Focus
R: - In cases of misnomers, a party is entitled to amend their pleadings without leave of the court
under Rule 24(1)(a) as in the case of any other irregularity
______________________________________________________________________________________
III. CLASS ACTIONS (CERTIFICATION)
- The Class Actions Proceedings Act is a legislative response to deal with complex litigation
- It sets out a framework to deal with multiple claims by multiple parties in a single proceeding
- This is useful where no single claimant will bring and action because there are either insufficient
resources or it's not economically feasible in light of the benefits
- 2 main policy reasons behind class actions:
a) Providing access to justice for plaintiffs
- There are certain losses where it isn't beneficial to sue individually
- ie: extra monthly charges on bills…only of value if added up collectively
- Dual problem here if small common individual claims aren't brought forward:
i) Need to provide a remedy
- Theory of tort: people returned to the position they were in absent the tortuous action
ii) Encourage tortuous behaviour
- Company has no incentive to change wrongful behaviour if not challenged
- Can't simply write off losses as a cost of doing business
- Also, where widespread but minimal harm, this is helpful
- ie: VISA overcharges interest at insignificant amount for each person
b) Efficiency
- Cost and effort in maintaining justice (ie: at courthouses) is a very complex operation
- If things get backed up, 2 problems occur:
i) Civil backlog
- An award for damages may take years
ii) Criminal refusal
- Some criminal trials may not take place because there are too many ongoing trials
- One way to avoid delays is avoid cases going to trial (ie: mediation), or being more efficient in
not having multiple trials on the same issue (ie: class actions)
- Risks to class actions:
a) Quasi-extortion
- Implications are so profound with a possible loss, especially with a small company w/o insurance
- ie: USA shareholder class actions where lawyers pounce once they notice the slightest mistake
b) Needless claims
- Can be driven by lawyers on contingency fees where a lawsuit may not be necessary
- ie: UBC parking ticket class action proceeding
c) Risky for all parties
- Sometimes trials can produce an anomalous result…with class actions, eggs are all in one basket
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- In BC, class proceedings are governed by the Class Proceedings Act, which has several key features:
- Must opt out if resident of BC
- Must opt in if non-resident of BC
- Class members are bound by determinations of class issues
- ie: settlement is binding on all class members once approved by the act
- Right of discovery is limited
- ie: D generally can only discover the representative plaintiff
- The court takes a very protective role with regard to class proceedings
- Court approval required for settlement or discontinuance
- Must lead evidence and demonstrate to the court why a settlement is fair
- There is no cost regime, so no party recovers cost under the Act
- Class counsel fees also subject to court approval
- They are generally on a contingency basis, and counsel must justify the fee
- There are many important sections of the Class Proceedings Act:
a) Part 2 — Certification
2(1) Plaintiff's class proceeding
- "One member of a class of persons who are resident in British Columbia may commence a
proceeding in the court on behalf of the members of that class"
2(2) - "The person who commences a proceeding under subsection (1) must make an application
to a judge of the court for an order certifying the proceeding as a class proceeding and, subject
to subsection (4), appointing the person as representative plaintiff"
2(3) - "An application under subsection (2) must be made
(a) within 90 days after the later of
(i) the date on which the last appearance or statement of defence was delivered, and
(ii) the date on which the time prescribed by the Rules of Court for delivery of the
last appearance or statement of defence expires without its being delivered, or
(b) at any other time, with leave of the court"
2(4) - "The court may certify a person who is not a member of the class as the representative
plaintiff for the class proceeding only if it is necessary to do so in order to avoid a substantial
injustice to the class"
3 Defendant's class proceeding
- "A defendant to 2 or more proceedings may, at any stage of one of the proceedings, make an
application to a judge of the court for an order certifying the proceedings as a class
proceeding and appointing a representative plaintiff"
4(1) Class certification
- "The court must certify a proceeding as a class proceeding on an application under section 2
or 3 if all of the following requirements are met:
(a) the pleadings disclose a cause of action;
(b) there is an identifiable class of 2 or more persons;
(c) the claims of the class members raise common issues, whether or not those common
issues predominate over issues affecting only individual members;
(d) a class proceeding would be the preferable procedure for the fair and efficient
resolution of the common issues;
(e) there is a representative plaintiff who
(i) would fairly and adequately represent the interests of the class,
(ii) has produced a plan for the proceeding that sets out a workable method of
advancing the proceeding on behalf of the class and of notifying class members
of the proceeding, and
(iii) does not have, on the common issues, an interest that is in conflict with the
interests of other class members"
4(2) - "In determining whether a class proceeding would be the preferable procedure for the fair
and efficient resolution of the common issues, the court must consider all relevant matters
including the following:
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(a) whether questions of fact or law common to the members of the class predominate
over any questions affecting only individual members;
(b) whether a significant number of the members of the class have a valid interest in
individually controlling the prosecution of separate actions;
(c) whether the class proceeding would involve claims that are or have been the subject
of any other proceedings;
(d) whether other means of resolving the claims are less practical or less efficient;
(e) whether the administration of the class proceeding would create greater difficulties
than those likely to be experienced if relief were sought by other means"
7 Certain matters not bar to certification
- "The court must not refuse to certify a proceeding as a class proceeding merely because of
one or more of the following:
(a) the relief claimed includes a claim for damages that would require individual
assessment after determination of the common issues;
(b) the relief claimed relates to separate contracts involving different class members;
(c) different remedies are sought for different class members;
(d) the number of class members or the identity of each class member is not known;
(e) the class includes a subclass whose members have claims that raise common issues
not shared by all class members"
10(1) If conditions for certification not satisfied
- "Without limiting section 8 (3), at any time after a certification order is made under this Part,
the court may amend the certification order, decertify the proceeding or make any other order
it considers appropriate if it appears to the court that the conditions mentioned in section 4 or
6 (1) are not satisfied with respect to a class proceeding"
10(2) - "If the court makes a decertification order under subsection (1), the court may permit the
proceeding to continue as one or more proceedings between different parties and may make
any order referred to in section 9 (a) to (c) in relation to each of those proceedings"
b) Part 3 – Conduct of Class Proceedings
12 Court may determine conduct of proceeding
- "The court may at any time make any order it considers appropriate respecting the conduct
of a class proceeding to ensure its fair and expeditious determination and, for that purpose,
may impose on one or more of the parties the terms it considers appropriate"
13 Court may stay any other proceeding
- "The court may at any time stay any proceeding related to the class proceeding on the terms
the court considers appropriate"
14(1) Applications
- "The judge who makes a certification order is to hear all applications in the class proceeding
before the trial of the common issues"
14(2) - "If a judge who has heard applications under subsection (1) becomes unavailable for any
reason to hear an application in the class proceeding, the chief justice of the court may assign
another judge of the court to hear the application"
14(3) - "A judge who hears applications under subsection (1) or (2) may but need not preside at
the trial of the common issues"
Tiemstra v. ICBC (1997 BCCA)…Class actions must settle an important element of the dispute
F: - Tiemstra denied Part 7 benefits (ie: therapy, travel costs, medications) in accidents with little damage
- ICBC had a "no crash-no cash" policy, basing claims on objective conclusions of doctors only
- P claimed ICBC breached statutory policy and fiduciary duty to the class by dealing with claims not
based on individual characteristics but rather on the basis of prescribed characteristics
- Brought as a class action as most claims individually were around $500
I: - Is class action an appropriate means for addressing the rejection of no fault claims as a result of the
"no crash-no cash" program instituted by ICBC in 1992?
J: - No, for ICBC
A: - Court held that the plaintiffs would be in no better position after a determination of the common
issues because each claim would still need to be determined on their individual merits
- ICBC and claimants would still need to argue about the validity of the claim
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- Since class action would break down into individual trials, it's not the preferable procedure for
the fair and efficient resolution of the common issues
- Neither judicial economy nor access to justice would be improved by a class action here
R: - Class actions will only be certified if the common issue settles an important element of dispute
Rumley v. British Columbia (1999 BCCA)…Court certifies group of disabled sexual abuse victims
F: - Class action suit as a result of sexual abuse of students at a residential school for the deaf and blind
over 40 years by staff and other students
- Suit wishes to certify "students," "family members," and "secondary abuse victims" who were victims
- Students also claim educational malpractice independently of sexual abuse
- Family members claim for misrepresentation, "emotional harm and mental suffering"
- Secondary abuse victims claim abuse at school caused student to abuse others, and that this result
was a foreseeable consequence of the abuse
- It was a provincial school under provincial legislation…when reports about systemic abuse were
made, the school administration dealt badly when they heard about it
- Victims plead claims in both negligence and breach of fiduciary duty
I: - Are class proceedings appropriate to litigate claims of sexual abuse? (yes)
- Are they appropriate to litigate wider claims and educational issues apart from sexual abuse? (no)
J: - See above, but "students" only get certification for sexual abuse claims
A: - Province argued that abuse took place over a long period of time, so the standard of care differed
- Since number of perpetrators were high and they included not only staff but also students, the
standard of care must be applied to each person's individual circumstances
- However, court said that these points don't matter because the nature of the claim is that the school
failed on a systemic level to protect against sexual abuse
- There was systemic negligence: a failure to have in place management and operations
procedures that would reasonably have prevented the abuse
- Court then dealt whether class procedure was the preferable procedure
- Here, yes, as P's had disability so they may not have the tools individually to prove case
- Individual actions would be less practical and efficient, and while issues of injury, causation, and
damages will have to be individually litigated following proceedings, common issue of systemic
negligence makes class proceeding appropriate
- Claims for educational malpractice only viable in extreme situations, and while court doesn't rule
them out, they shouldn't be entangled in claims for sexual abuse beyond aspects directly relevant to the
sexual abuse in question
R: - Demonstrates that class certification must answer 2 questions: whether it's a fair, efficient
method of advancing the claim, and whether it's preferable to other methods of proceeding
______________________________________________________________________________________
IV. THIRD PARTY PROCEEDINGS
- Basically, this allows somebody being sued to try and drag another party into the litigation to take some
of the burden/blame/damages if that other party is responsible for some of the damage
- Rather than bring a separate proceeding, there is an enjoining of a third party
- Allows a party other than the plaintiff to assert a claim (both independent or dependent)
- Example: A v. B & C, where negligent driving causing A's injury
- B can plead in defence contributory negligence against plaintiff A
- B also claims against C by way of Third Party Notice for contribution/indemnity
- Court would then decide claim between A & B and B & C
- Here, A doesn't assert any claim against C, as B's claim against C is entirely separate
- Plaintiff may find contributory negligence is successful and fault may be A, B, and C 1/3 each
- Therefore, A would only get 1/3 from B, and then A would bring claim against C for 2/3
- Independent: Independent of A v. B's claim on C
- Dependent: B & C contributory (depends on what A has claimed against B)
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- 4 possible reasons for allowing third party proceedings:
a) To avoid multiplicity of claims
- Where an action contains similar facts
b) Mechanism for 3rd party to have a say in the plaintiff's claim
- ie: if the building has a bad design, it crumbles down, and therefore the bad designer defence is
heard as well
c) To encourage judicial economy
- Allows courts to deal with more actions
c) Matters to be determined at the same time
- The important rule section is Rule 22:
a) Rule 22 – Third Party Procedure
(1) Filing a third party notice
- "A party of record who is not a plaintiff may file a third party notice in Form 17 if the party
of record alleges against any person (in this rule called "the third party"), whether or not the
third party is a party to the action, that
(a) the party is entitled to contribution or indemnity from the third party in respect
of a claim made against the party in the action,
- ie: "I may be liable but if I am, there's somebody liable to me", so the third
party becomes involved
- Contribution: portion (%) of damages
- ie: There's a common debt jointly held, so there's a right to contribution
- Indemnity: claim whole of what you are liable for
- ie: Guaranteed debt, bank sues guarantor, and the guarantor claims against
the principal debtor, so the principle ("A") claims indemnity
(b) the party is entitled to any relief against the third party relating to or connected
with the original subject matter of the action, or
- This is a broad section that isn't used much
(c) a question or issue relating to or connected with any relief claimed in the action or
with the original subject matter of the action is substantially the same as a question
or issue between the party and the third party and should properly be determined
in the action"
- This contains a two-part test:
i) Q or I in original subject matter is substantially the same as Q or I
between party and 3rd party
ii) Properly be determined in the action
- ie: There is a common question or issue in negligence between A v. B & C and
C v. B
(2) Contents of a third party notice
- "A third party notice must contain a statement in summary form of
(a) the material facts on which the party issuing it relies, and
(b) the relief that that party seeks against the third party"
- There also must be a cause of action, not just a frivolous claim, or else R.19(24) applies
(3) When leave is required
- "A party of record may file a third party notice
(a) at any time with leave of the court, or
(b) without leave of the court,
(i) at any time before a notice of trial is delivered, or
(ii) if a notice of trial has been delivered, at least 120 days before the scheduled trial
date"
- Generally leave is not required to bring in a third party, but there are exceptions
(5) Service and delivery of a third party notice
- "A party who files a third party notice shall forthwith
(a) serve on each person named as a third party in the third party notice
(i) copies of that third party notice, and
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(ii) if the third party was not a party of record at the time of the filing of the third
party notice, copies of any pleadings that have previously been delivered by any
party to the action, and
(b) deliver a copy of the third party notice to each party of record"
(6) Application to set aside notice
- "At any time, on application, the court may set aside a third party notice"
- This is available for the third party, not the plaintiff
- Third party notice can be struck out if it doesn't comply with R.22(1)(a-c) (see BC Ferry)
- This is a high hurdle to allege no COA, as must convince court claim is bound to fail
(7) Appearance
- "A third party may enter an appearance in accordance with Rule 14 and shall forthwith
deliver a copy of the appearance to each other party of record"
(8) Statement of defence
- "A third party who has entered an appearance shall file and deliver to each other party of
record a statement of defence to the third party notice within 14 days after the later of
(a) the time limited for appearance, and
(b) the service of the third party notice"
(14) Contribution or indemnity claimed under the Negligence Act
- "A defendant who claims contribution or indemnity under the Negligence Act from a person
shall do so,
(a) if the person is a plaintiff, by counterclaim, or
(b) in any other case, whether or not the person is a party to the action, by third party
notice"
(15) Apportionment of liability claimed under the Negligence Act
- "A defendant who does not claim contribution or indemnity under the Negligence Act but
who does claim an apportionment of liability under that Act shall claim that apportionment
in the statement of defence"
(18) Third party procedure not to prejudice the plaintiff
- "The court may impose terms on any third party procedure to limit or avoid any
prejudice or unnecessary delay that might otherwise be suffered by the plaintiff as a result of
that third party procedure"
(19) Trial
- "An issue between the party filing the third party notice and the third party may be tried at
the time the court may direct"
Adams v. Thompson (1987 BCCA)…Court will see 3rd party notices as unnecessary if claim against P
F: - P wanted to develop some property, but missed deadlines, so they sue their engineers (D1) and the
contractors (D2) for negligent design and delay of sewage disposal system in subdivision development
- D1 and D2 filed 3rd party notices against P's solicitors claiming P's lawyers were slow and negligent
- Solicitors apply to have 3rd party notice dropped…won at Chambers, D's appeal
I: - Is a 3rd party notice appropriate when D is doing all claiming against P?
J: - No, for R
A: - Court held that 3rd party claim is redundant because the nature of the claim could be plead directly
against the plaintiff in their failure to mitigate
- Solicitors were retained to act as agents to act on behalf of P, so the acts of the agents were acts
for which P was responsible for and not the proper subject of a 3rd party action
- Also, if giving of advice wasn't within scope of agency, D's claim that failure to advise P to
mitigate losses was still obligation of P for which D could make out in SOC against P
- Also, if P responsible for conduct of solicitors, then there is vicarious liability
- Demonstrates that the court doesn't like unnecessary procedures
R: - If the only negligence against the 3rd party is attributable to the plaintiff, then there is no need
for 3rd party proceedings, as the defendant can have the full remedy against the plaintiff by way
of defence
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Aylsworth v. Richardson Greenshields of Canada Ltd. (1987 BCSC)…P can't suffer prejudice or delay
F: - P claims D bribed investment manager of one of P's mutual funds and "blew off" with $20 million in
worthless stock, so they sue for conspiracy, bribery, fraud, negligence, and other COA's
- D wanted to bring in other brokers and insurers as third parties, but the litigation got very
complicated and lengthy (ie: from 2 months to 6 months)
I: - When can a 3rd party action be severed into its own action?
J: - Here, severed
A: - In complex cases like these, if severance of third party issues would shorten the length of the trial
significantly, the 3rd party issues should be tried separately
- 3rd parties wouldn't be bound by finding of facts and the determination of issues between P and D
- Pursuant to R.22(18), if 3rd party proceedings will lengthen the trial significantly, the plaintiff will
suffer prejudice and delay
- No prejudice to D, as trial will be decisive and will get same judgment
R: - When deciding whether to sever 3rd party actions into their own actions, court must consider
whether P will suffer prejudice or unnecessary delay as a result of that 3 rd party procedure
- Two kinds of tortfeasors:
a) Joint Tortfeasor
- There is an indivisible cause of action, where releasing one releases them all
- At common law, joint tortfeasors are jointly and severally liable
- Three possible situations:
i) Conspiracy is the cause of action because of concerted action between both tortfeasors
ii) Where parties owe a joint obligation/duty that is not performed
iii) Where one party is vicariously liable for the actions of another (ie: employer/employee)
- Example: you are in a car accident and rear-ended twice…two people (D1 and D2) are joint
tortfeasors and are liable jointly or severally
- As P, you can sue D1 or D2 for 100% liability
- If you sue D2, he has a right to sue D1 for contribution and indemnity, or third party D1
- If you are contributorily negligent, this severs joint liability, so must sue D1 and D2
- Under s.4 of the BC Negligent Act, P's can only sue D's for their portion of the damages
- That is, if you as P are 20% liable, there is only 80% liability to be split between D1 and D2
b) Several Concurrent Tortfeasors
- 2 parties are independent and not a cause to the same action
- ie: 2 drivers independently cause actions which contribute to the plaintiff's injury
Tucker v. Asleson (1993 BCCA)…Negligence Act creates independent statutory right for D to sue other D
F: - P in MVA when truck driven by mom collides with tractor trailer on icy highway
- P was passenger, D1 is driver/mom of P's car, D2 is driver of second car, D3 is Crown
- P sued everybody in negligence, but then settled with D1/mom before trial
I: - Does settlement release other D's pursuant to s.4 of the BC Negligence Act?
J: - No, D2 (second driver) can still sue D1 (mom)
A: - Court clarifies that this is not a case of "joint tortfeasors" but rather a case of "several concurrent
tortfeasors" whose liability under s.4 of the Negligence Act is joint and severable
- s.4 of Act does give a right to a several concurrent tortfeasor to sue
- It creates an independent statutory right on the part of D
- Here, D2 can bring an entirely separate action to recover mom's share of the damages upon
which they paid
- D1 argues that since already settled before trial, "jointly and severally liable" shouldn't be enforced
- However, Crown and D2 remain liable for the full amount and can claim against D1 for
proportion/contribution and indemnification
- Policy: if settlement is for virtually nothing, then non-settling tortfeasors can be liable for the
bulk of the damages
R: - BC Negligence Act creates an independent statutory right on the part of a several concurrent
tortfeasor who wishes to assert that a loss claimed against him by a plaintiff was wholly or partly
caused by the "fault" of others to seek contribution and indemnity from those others, regardless
36
of whether those others have entered into settlement agreements extinguishing their liability to
the plaintiff
- Tucker remedy creates a problem, as there is no incentive for settlement
- ie: if D1 settles so they don't have to go to trial, but gets called back anyways, what’s the point?
- The next case has a solution…
BC Ferry Corporation v. T&N (1993 BCSC)…Defendant can't bring in another defendant that settled
F: - P, BC Ferries, sues manufacturer (D1) and installer (D2) of asbestos installed in the ferries
- Before trial, P settles with D1 with an "agreement not to sue"
- Then P sues D2 only for the amount court says D2 is liable for, and D2 wants to 3 rd party D1
I: - Does the settlement sever joint and several liability and disallow D2 from bringing in D1 as 3rd party?
J: - Yes, severs joint liability, court strikes out 3rd party notice issued by D2 against D1
A: - Court holds that if the plaintiff, at the hands of two tortfeasors, suffers a loss and despite the fact that
the loss was caused by both, elects only to claim from one defendant that portion of the loss that the
one defendant caused, that defendant can have no right to ask the third party to contribute
- This is so because the defendant is only called upon to pay that part of the plaintiff's damage that
it caused and no more
- It is not K between P and D1 that prevents D2 from recovering from D1
- It's the fact that D2 is not being called upon to pay more than his portion that makes
recovery impossible from D1
- Thus the court distinguishes Tucker because P only sought that portion of damage actually caused
by D1 in the action (ie: 60%) and had agreed not to seek any portion of the losses claimed against the
3rd party (ie: 40%) against whom contribution was sought
R: - A defendant can't bring in another defendant as a third party if it is only being asked to pay
their apportionment of liability
- A fact pattern regarding pleadings and parties…there are 3 questions:
a) What parties may be plaintiffs in a resulting action and against which potential defendants might
they claim?
- Plaintiffs:
- Suewell Marina's Ltd. for damage to docks
- Boat owners for damage to boats
- Passengers for personal injuries
- Coastal Ferry Services Inc. (CFS) for damage against its boat
- West Vancouver Drydocks (WVD) for payment in K against PCL
- Premier Controls Ltd. (PCL) for payment in K against WVD
- Defendants:
- CFS, WVD, PCL, George Bligh (captain of the ferry), Robert Loblaw (Ferries maintenance
supervisor), and Schlieffen Design and Planning GMB (German engineering firm)
b) What defendants may have a set off or counterclaim available and against whom?
- WVD, PCL, and Schlieffen would likely bring a set-off or counterclaim against CFS for
contributory negligence and indemnity
- WVD would also bring counterclaim or set-ff against CFS for breach of contract, as they haven't
been paid their money yet
c) Who may have a third party claim, and against whom?
- WVD would bring third party notice against PCL and CFS for contribution and indemnity
- Since Suewell, boat owners, and passengers will likely sue CFS together, CFS will likely 3 rd
party WVD, PCL, and Schlieffen (not Bligh and Loblaw, as they're employees of CFS)
______________________________________________________________________________________
V. OFFERS TO SETTLE
- The ramifications here are mainly cost consequences
- A new regime was instituted in 2008, which was a reversion to the way things used to be
- Note that the case law here is under the old regime…however, they raise interesting issues
37
- The old regime, under Rule 37 and 37A, set out a complete code with regard to offers to settle and cost
consequences, whereby the court had no discretion to vary the costs ordered
- This lack of discretion was said to give certainty to the parties
- ie: if offer beat the final judgment, the loser was liable for double costs
- However, there was no review of the reasonableness of costs (see Clark, which Kurylo overturned)
- Now, Rule 37B is much simpler, as there is no required form, everything must be in writing and delivered
to all parties of record, and indicate in an offer that they reserve the right to bring an offer to the attention of
the court for consideration of costs
- Here is the relevant section:
a) Rule 37B – Offer to Settle
(1) Definition
- "In this rule, "offer to settle" means
(a) an offer to settle made and delivered before July 2, 2008 under Rule 37, as that rule
read on the date of the offer to settle, and in relation to which no order was made
under that rule,
(b) an offer of settlement made and delivered before July 2, 2008 under Rule 37A, as
that rule read on the date of the offer of settlement, and in relation to which no order
was made under that rule, or
(c) an offer to settle, made after July 1, 2008, that
(i) is made in writing by a party to a proceeding,
(ii) has been delivered to all parties of record, and
(iii) contains the following sentence: "The ….[name of party making the offer]….
reserves the right to bring this offer to the attention of the court for consideration
in relation to costs after the court has rendered judgment on all other issues in
this proceeding"
(2) Offer not to be disclosed
- "The fact that an offer to settle has been made must not be disclosed to the court or jury, or
set out in any document used in the proceeding, until all issues in the proceeding, other than
costs, have been determined"
(3) Offer not an admission
- "An offer to settle is not an admission"
(4) Offer may be considered in relation to costs
- "The court may consider an offer to settle when exercising the court's discretion in
relation to costs"
- This is the biggie, as it means the court now has discretion regarding offers to settle
(5) Cost options
- "In a proceeding in which an offer to settle has been made, the court may do one or both of
the following:
(a) deprive a party, in whole or in part, of costs to which the party would otherwise be
entitled in respect of the steps taken in the proceeding after the date of delivery of the
offer to settle;
(b) award double costs of all or some of the steps taken in the proceeding after the date
of delivery of the offer to settle"
(6) Considerations of court
- "In making an order under subrule (5), the court may consider the following:
(a) whether the offer to settle was one that ought reasonably to have been accepted,
either on the date that the offer to settle was delivered or on any later date;
- Unclear how to determine "reasonableness", as the merits of the case are only
one aspect of what's considered reasonable
(b) the relationship between the terms of settlement offered and the final judgment
of the court;
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(c) the relative financial circumstances of the parties;
- F: Not clear what this consideration has to do with anything
- F: Acts for banks, and knows that people think that banks will never be entitled
to recover costs/double costs because they have the money to cover legal fees
(d) any other factor the court considers appropriate"
- These considerations are problematic because now parties have no idea if they'll have to pay
- Sometimes costs are enormous…ie: $200,000-$300,000 when expert evidence is required
- Now, not clear how lawyers can advise clients which route to take if costs are uncertain
Clark v. Sidhu (2005 BCSC)…Offers to settle must be reasonable in the circumstances to get double costs
F: - P sued D for damages from MVA…there was little damage to the car but she was 60 years old
- D claims little car damage meant personal injuries complained of weren't possible
- To show his disrespect, he made an insulting offer to settle for $1.00, which P rejected
- P's claim was subsequently dismissed, and D now wants double costs pursuant to old Rule 37(24)
I: - Should D get double costs after P's claim was dismissed and P declined the offer to settle?
J: - No, for P, only regular costs for D as the offer to settle wasn't "reasonable"
A: - Policy underlying the rule – that of encouraging early and reasonable efforts to settle litigation –
would be undercut where the amount offered is so low as to amount to no offer at all
- P who felt wronged, sued to make it right but lost, is doubly wronged if D, who took the
contrary view of their respective rights, offered a pittance in settlement
- D seeking double costs following dismissal of P's claim must show that an offer to settle was
reasonable in the circumstances
- Here, D admitted liability for MVA, and there was some evidence of injury, so $1.00 was a joke
R: - The policy underlying Rule 37 is promoting early and reasonable efforts to settle litigation, and
this is not advanced in any way by unreasonable offers to settle
Kurylo v. Rai (2006 BCCA)…Courts have no discretion to consider reasonableness of monetary offers
F: - Another MVA, where P got a judgment against D at trial
- D appeals the judgment, and wants double costs pursuant to old Rule 37(24)
I: - Should the court consider the reasonableness of an offer?
J: - No, for D, Clark precedent reversed
A: - Court overrules Clark because when D assesses his position in litigation of any kind, he may consider
that P has no case and will fail at trial
- But D may be willing to make some minor offer, which carries costs with it, in the hope that the
action would go away, and so he doesn't have to pay large legal bills to establish his legal position
that P has no case
- Focus can only be on the time available to accept the offer, not any considerations on the soundness
of the offer or the state of the evidence or anything of the kind
R: - Reasonableness of an offer under Rule 37 is no business of the Court when it's a monetary offer
I.R.C. and R.J. v. S.C. (2006 BCCA)…"Global offers" to settle against several plaintiffs aren't valid
F: - 3 P's (2 at trial) brought allegations of sexual assault against D
- They won at trial and brought an action for double costs from the date offer to settle was brought
- D's offer made a "global offer" of settlement in respect of more than one action against multiple P's
I: - Can a "global offer" to settle sent to several plaintiff's constitute a valid offer to settle?
J: - No, for P's
A: - Here, when one defendant makes an offer to two plaintiffs, P's are left to speculate:
a) How the global sum offered is to be allocated between them
b) Neither P can accept the offer with respect to her own claim alone
R: - Offeree must know exactly what he/she is being asked to agree to in settlement of his/her claim
______________________________________________________________________________________
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SECTION TWO - DISCOVERY
I. DISCOVERY AND INSPECTION OF DOCUMENTS
1) DOCUMENT DISCLOSURE
- Rule 26 and the common law govern document disclosure and obligations
- Main Rule, again, is Rule 26:
a) Rule 26 — Discovery and Inspection of Documents
(1) Delivery of and answer to demand for discovery of documents
- "A party to an action may deliver to any other party a demand in Form 92 for discovery of
the documents which are or have been in the party's possession or control relating to any
matter in question in the action, and the other party shall comply with the demand within
21 days by delivering a list, in Form 93, of the documents that are or have been in the
party's possession or control relating to every matter in question in the action"
- Requires party to any other party a demand for discovery of documents
- Includes documents that are or have been in the party's possession relating to any matter
in question in the action within 21 days
- Peruvian Guano: "relating to any matter in question in the action"
(1.1) Court may order delivery of list of documents
- "The court may order that a party deliver to any other party a list of the documents that
relate to a matter in question in the action and that, although not in the possession or control
of the party against whom the order is made, are within that party's power"
- "Power" is broader than "control" or "possession"
- Power means you have an ability to obtain the documents, but not necessarily a right
- Control means you have an enforceable right to get the documents
(1.2) Court may excuse performance
- "The court may order that a party be excused from compliance with subrule (1), (1.4), (2),
(7) or (9), either generally or in respect of one or more documents or classes of documents"
- Thus court can excuse compliance with certain document disclosure obligaitons
(1.3) Documents to be enumerated
- "Documents to which there is no objection to production must be enumerated in a
convenient order and include a short description of each"
- Rules 1.3 to 1.6 describe how to list documents
(1.4) Insurance policy
- "A party must ensure that there is listed in the list of documents prepared under subrule (1)
any insurance policy under which an insurer may be liable
(a) to satisfy the whole or any part of a judgment obtained in the action, or
(b) to indemnify or reimburse any party for any money paid by that party in satisfaction
of the whole or any part of such a judgment.
(1.5) Information not to be disclosed
- "Despite subrule (1.4), information concerning the insurance policy must not be disclosed to
the court at trial unless it is relevant to an issue in the action"
(1.6) Insurance policy
- "For the purposes of subrules (1.4) and (1.5), "insurance policy" does not include an
application for insurance"
(2) Claim for privilege
- "Where it is claimed that a document is privileged from production, the claim must be
made in the list of documents with a statement of the grounds of the privilege"
(2.1) Nature of privileged documents to be described
- "The nature of any document for which privilege from production is claimed must be
described in a manner that, without revealing information that is privileged, will enable
other parties to assess the validity of the claim of privilege"
- Thus party claiming privilege must describe the document
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- This enables the other party to assess the validity of the claim of privilege, but does not
reveal information that is privileged
(3) Affidavit verifying list of documents
- "The court may order a party to deliver an affidavit verifying a list of documents"
- Thus not necessary to swear to a list of documents unless the court orders it
(4) Application for specific documents
- "At any time, on the application of a party, the court may require any other party to deliver
an affidavit stating
(a) whether a document or class of documents specified or described in the application is
or has been in the possession, control or power of the party delivering the
affidavit, and
(b) if the document or class of documents is not then in that party's possession, control
or power, when it ceased to be in that party's possession, control or power and
what has become of it"
- An application under this rule has to be supported by an affidavit stating the documents
are believed to have been in the party's control and are relevant
(7) Inspection of documents
- "A party who has delivered a list of documents to any other party shall allow the other
party to inspect and copy the listed documents that are within the delivering party's
possession or control, except those which the delivering party objects to producing, and,
when the delivering party delivers the list, that party shall also deliver a notice stating a place
where the documents may be inspected and copied during normal business hours"
(8) Production of document referred to in pleadings
- "At any time a party may deliver a notice to any other party, in whose pleadings or affidavits
reference is made to a document, requiring the other party to produce that document and,
within 2 days, the other party shall deliver a notice stating a place where the document may
be inspected and copied during normal business hours or stating that he or she objects to
producing the document and the grounds of the objection"
(9) Copies of documents
- "Where a party is entitled to inspect documents in the possession or control of another party,
the other party shall, on request, deliver copies of any of the documents, if reproducible, on
payment in advance of the cost of reproduction and deliver"
(10) Order to produce document
- "The court may order the production of a document for inspection and copying by any
party or by the court at a time and place and in the manner it thinks just"
(11) Non-party disclosure
- "Where a document is in the possession or control of a person who is not a party, the
court, on notice to the person and all other parties, may order production and inspection of the
document or preparation of a certified copy that may be used instead of the original. An order
under Rule 41 (16) in respect of an order under this subrule may be made if that order is
endorsed with an acknowledgment by the person in possession or control of the document that
the person has no objection to the terms of the proposed order"
- Thus court can order production by a non-party, upon application with notice to the
person and all other parties
(12) Inspection of document by court
- "Where, on an application for production of a document, production is objected to, the court
may inspect the document for the purpose of deciding the validity of the objection"
(13) Supplementary list of documents
- "Where, after a list of documents has been delivered under this rule,
(a) it comes to the attention of the party delivering it that the list was inaccurate or
incomplete, or
(b) a document relating to a matter in question in the action comes into the party's
possession or control,
the party shall deliver forthwith a supplementary list specifying the inaccuracy or document"
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(14) Party may not use document
- "Unless the court otherwise orders, where a party fails to make discovery of or produce for
inspection or copying a document as required by this rule, the party may not put the document
in evidence in the proceeding or use it for the purpose of examination or cross-examination"
- Thus, if you do not disclose a relevant document, the document may not be used in the
proceedings by that party
- R.2(5) also provides in (c) and (d) that if someone fails to permit document disclosure
or inspection, the proceedings may be dismissed
(15) Determination of issue before discovery
- "Where the party from whom discovery or inspection of a document is sought objects, the
court may, if satisfied that for any reason it is desirable that any issue or question in dispute in
a proceeding should be determined before deciding on the right to discovery or inspection,
order that the issue or question be determined first and reserve the question of discovery or
inspection"
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2) PROCEDURE, RELEVANT DOCUMENTS, AND PROFESSIONAL OBLIGATIONS
- The next case dealt with an extremely large volume of documents, and how to list them…
G.W.L. Properties v. W.R. Grace (1992 BCSC)…Ordered enumeration and description of relevant docs
F: - P owned office tower that had asbestos-filled insulation, which caused loss/damage when removed
- P applied to strike out D's defence on basis that D's resisting release of further documents, or
alternatively wants a complete and comprehensive list of documents
- D claims to have over 1 million producible documents which comprised of 460 boxes
I: - Did D conceal documents to the extent that they should be denied a defence?
J: - No, for D…were not dishonest, but D must provide a better list
A: - Court refused to strike out the defence, finding that there was no deception as there was no specific
list of the 1 million documents in the 460 boxes
- However, court did order that the existing lists be produced
- P's also sought further and better list of documents
- D resisted on the basis that listing the documents in detail would be onerous
- Court held that a list was possible to be prepared, and that the Rule requires for list to provide:
a) An ordered enumeration of the documents, and;
b) Some description of all relevant documents
- There is some flexibility in how to satisfy those requirements, including grouping documents
- Here, D was required to list all relevant documents, and provide an affidavit verifying the list
- What is required in each case depend on the nature of the documentation that must be described
R: - The list must provide the party seeking discovery a meaningful, reliable, and complete
disclosure as well as an effective aid to retrieving the documents produced when an inspection is
conducted
- The next case deals with the issue of which documents are relevant…
Compagnie Financiere v. Peruvian Guano Co. (1882 UKCA)…Broad test for relevance for discovery
F: - P claimed for breach of K and specific performance for undelivered Peruvian guano
- D claims there were only negotiations, so no K existed, and to prove it, saw a minute book of P that
suggested further relevant documents were in P's possession that they though were relevant to action
I: - When does a document relate to a matter in question?
J: - For P
A: - Gives the broad test for relevance:
- A relevant document "would be evidence upon any issue, but also which, it is reasonable to
suppose, contains information which may – not which must – either directly or indirectly
enable the party requiring the affidavit either to advance his own case or to damage the case
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of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may
have either of these two consequences"
- How might a document relate to a matter "indirectly"?
- If the document may lead to a train of inquiry which may permit the party to advance its case or
damage the other side's case
R: - Peruvian Guano gives broad scope for the right under Rule 26(1) to ask for any documents
"relating to any matter in question in the action", as it can include any document which would
be evidence on any issue, or any document which it is reasonable to suppose contains information
which may either help or harm the party's case, either directly or indirectly
- The next case limits Peruvian Guano for BC…
Peter Kiewit v. BC Hydro (1982 BCSC)…Every reasonable effort must be made to locate documents
F: - P entered into K with D to construct power lines on a transmission line…BC Hydro was supposed to
supply steel, to Pe Ben, who would then build and ship the towers
- Job didn't go very well, and steel delivery, which was part of K, wasn't properly managed
- P then claims substantial damages against BC Hydro for failing to supply steel on time, delaying
work to be completed on time, and claims deceit and negligent mismanagement
- P wants to see all documents of other contracts at the same time because may be evidence of misrep.
- D had disclosed 30,000 documents and advised of a 12 page list of further documents
- D objects to disclosing huge numbers of documents that related to other phases of K and other K's
I: - What extent of disclosure should be required?
J: - Some
A: - McEachern CJSC holds that applying Peruvian Guano would require disclosure of these documents
- Rules are not our servants, not our masters, and thus refuses to slavishly follow Guano
- Court concerned that documents sought may not exist
- However, court ordered that every reasonable effort must be made to enable P to locate any
document that may assist the parties
- Court leaves it to the parties to find a means of addressing the issue, and suggests:
a) Extensive search be conducted but at P's expense, or
b) P's post security for costs of the search with the costs assessed at conclusion of the matter, or
c) Try some issue before disclosure obligations are determined as provided for in R.26(15)
R: - Every reasonable effort must be made to enable plaintiffs to locate any documents which may
assist the parties to ascertain the truth…however, what is not permissible is to require a party to
incur enormous expense in what may be a futile search for something which may not exist
- The next case deal with the professional and ethical obligations governing P's counsel wrt disclosure…
Myers v. Elman (1940 HL)…Counsel has responsibility to advise client to include all relevant documents
F: - P succeeded at trial, and wants costs from D's solicitor for professional misconduct
- P claims solicitor gave false defences and permitted client to swear a false affidavit of documents
- TJ held that defence was OK, but permitted false affidavis, so must pay 1/3 costs of action and 2/3
costs of application…CA reversed, as conduct of proceedings done by managing clerk
I: - What responsibility does counsel have to assist and advise the client of the obligation to include all
relevant documents upon request?
J: - For P
A: - Court held that it did not matter whether it was evident on the face of the affidavit or not that
documents had not been disclosed because the solicitor had not reviewed the affidavit in any event
- Client cannot be expected to realize the scope of document disclosure obligations
- Solicitors have a duty as an officer of the court to investigate and as far as possible ensure that
document disclosure is properly provided
- Solicitor cannot allow the client to make whatever affidavit the client believes fit
R: - If counsel does not carefully investigate or supervise their client's inclusion and omission of
documents, the lawyer can be found guilty of professional misconduct
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3) PRIVILEGED DOCUMENTS
- Privilege is the principal exception to the obligation to disclose relevant documents
- Privilege over documents is broken into related sub-classes:
a) Solicitor-client communications (aka legal advice privilege)
b) Litigation privilege
c) Solicitor's brief privilege
- The next case notes that privilege trumps disclosure and introduces the "dominant purpose" test…
Hodgkinson v. Simms (1988 BCCA)…Selection of photocopies for a solicitor's brief protected by privilege
F: - P invested funds, but didn't turn out as expected and sued accountants that P claims gave him bad
investment advice that caused his loss
P claims negligence and breach of fiduciary duty because the accountants received secret commission
on the property developments which the accountants encouraged the P to invest in
- D wants to have access to photocopies the plaintiff's counsel has, and D says that it has changed
offices 4 times recently and things have gone missing
- Copies were made by P's solicitor or documents obtained from third parties…ie: the photocopies are
of unprivileged information, but they are difficult to obtain, and they are in briefcase of P's solicitor
- The documents were not made for the purpose of litigation, but they were copied for the purpose of
litigation and are in the briefcase for the purpose of litigation
- P says D could track down the docs himself; D says he doesn't have to because docs aren't privileged
I: - Are the documents privileged?
J: - Yes, for P, originals not privileged but selected copies are
A: - McEachern CJBC for majority noted importance of full disclosure and there are 2 goals to disclosure:
a) To prevent ambush if a trial does take place, and
- Here, there can be no concern of ambush as D's could just as easily make inquiries and
obtain the documents…can't be ambush if you disclose that fact in advance
b) To facilitate settlement before proceeding to trial on known facts
- Purpose of solicitor's brief privilege is to ensure people can retain a lawyer and communicate fully
without the concern that the other side will pry into those communications
- Thus no need to subdivide into communications/contents…it is one all-embracing privilege that
permits client to speak in confidence to the solicitor
- Test for solicitor's brief privilege is the dominant purpose rule:
- In order to determine whether a document in a lawyer's brief is privileged, the court must
determine whether the document was produced with the dominant purpose of using it or its
contents in order to obtain legal advice or to conduct or aid in the conduct of litigation
- Where a lawyer exercises legal knowledge, skill, judgment, and industry to assemble a collection
of relevant documents for litigation, privilege will attach
- Here, privilege arose even though the originals were not privileged
- Privilege arises from the selection process
- Also, majority find that the privileged documents have not been sufficiently described and thus
require a further list
- Dissent note that R.1(5) requires matters to be determined on their merits, and only with full
disclosure and limited privilege can that goal be fulfilled
- Dissent also holds that if the original documents are not privileged, the copies ought not to be
- D might indeed be taken by surprise
R: - Where a lawyer exercises legal knowledge, skill, judgment and industry to assemble a collection
of relevant copy documents for his brief for the purpose of advising on or conducting anticipated
or pending litigation, he is entitled (unless the client consents) to claim privilege for such
collection and refuse production
- The next case determines if privilege should be determined document by document…
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Shaughnessy Golf & Country Club v. Uniguard Services (1986 BCCA)…Individual documents tested
F: - Fire burned down golf clubhouse after a security guard employed by one D had a wild party
- Insurers sue in place of P (golf club) for fire to P's clubhouse under right of subrogation
- Underwriters had many adjuster's reports and wanted many of them to be privileged under litigation
privilege…D applies for an order for disclosure of the reports arguing they weren't privileged
I: - Can privilege be granted to a large group of documents created for different purposes?
J: - No, for P, each particular document's dominant purpose for creation must be the reasonable prospect
of litigation
A: - D argued that the reports had not been created for the dominant purpose of being used for litigation
- Instead, argued that underwriters prepared those kinds of reports in the ordinary course of
business whether litigation was contemplated or not
- Here, after cross-examination on affidavits, the court held that some of the reports were made for the
dominant purpose of litigation, and some were not
- Thus court must examine the true purpose of each individual report and applied the dominant
purpose test to each individual document
R: - The dominant purpose test must be applied on a document by document basis, and the
existence of suspicious circumstances is not sufficient to protect every insurance report with
litigation privilege
- The next case is a recent case that canvasses the various forms of privilege…
Keefer Laundry Ltd. v. Pellerin Milnor Corp. (2006 BCSC)…Litigation v. lawyer advice v. brief privilege
F: - P operated laundry mat, D manufactured laundry equipment, and P sued for breach of K, negligence,
and misrepresentation for unfit equipment
- D's main defence is that P executed a document with the effect of releasing the claim
I: - Can privilege be relied upon?
J: - Somewhat
A: - Litigation need not be contemplated, but not every communication is privileged…the test is:
a) Is it a communication between lawyer and client?
b) Does the communication entail seeking or giving legal advice? and
c) Is the communication intended to be confidential?
- Here, the descriptions of the documents were not sufficient to make out a legal advice privilege
- Court holds the preferable approach is to file affidavit evidence on application to establish privilege
- Here, because there was conflicting case law, and the parties had not filed affidavits, the judge
reviewed the documents
- Court reviews litigation privilege and determines that it is distinct from legal advice privilege and
is narrower in scope
- Litigation privilege covers documents created for the dominant purpose of litigation, although
the documents need not be confidential
- Litigation privilege applies to communications and documents between clients and third parties,
the dominant purpose of which is litigation
- The test for establishing litigation privilege entails that a party must show:
a) Litigation was ongoing or reasonably contemplated when the document was created; and
- This is usually an easy hurdle
b) The dominant purpose of the document was litigation, based on an examination of all of the
circumstances and the evidence filed in support of the claim of privilege
- This can often be more difficult
- Again, affidavit evidence should be filed in support of the claim of privilege
- Lawyer’s brief privilege is intended to prevent a party from seeing the strategy of the other side
- This privilege allows a lawyer to make full investigation and properly prepare for litigation
- The test for lawyer’s brief privilege is whether the lawyer has exercised professional skill
and judgment in assembling the documents
R: - There are various forms of privilege that attach to documents and in each case documents will
only be produced if they pass tests
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- The next case deals with the issue of listing privileged documents…
Leung v. Hanna (1999 BCSC)…Court will err on the side of maintaining privilege
F: - P started motion for D to submit a more detailed list of documents under R.26(2.1) so they can form
an opinion on whether or not they are privileged
- D claims description already sufficient, and R.26(2.1), which was added in 1998, didn't expand info
that must be provided about the nature of the documents which are listed in Part 3 of the List of Docs
I: - Was it necessary under the current rule to list each document for privilege individually? (yes)
- Was the description of the documents sufficient? (no)
J: - Yes, for P
A: - The court notes that R. 26(2.1) limits the description required to that information which would not
reveal privileged information
- Court also holds that providing the dates documents were made may disclose privileged information
- Maintaining privilege is the right of the client and the responsibility of the lawyer
- The court holds that the relief available to a party who believes privilege has been improperly
claimed is to apply under R. 26(12) for the court to review the document
- Court holds it must err on the side of maintaining privilege
- The court concludes that the descriptions in the list do not assist the plaintiff, but the overriding
requirement is not to reveal information that is privileged
- The plaintiff’s application was dismissed but with the ability to bring an application under R. 26(12)
and costs assessed on the outcome of that hearing
R: - While providing the dates documents were made may disclose privileged information,
maintaining privilege is the right of the client and the responsibility of the lawyer
- The next case deals with an appeal from the refusal by a chambers judge to order that the defendant was
entitled to non-party disclosure of documents that the plaintiff was granted the right to receive…
Dufault v. Stevens and Stevens (1978 BCCA)…Court orders production of docs in possession of non-party
F: - P claimed for injuries from car accident caused by negligence of D
- CJ gave P greater access to the hospital records than he allowed D, so D appeals to BCCA
- Order required the hospital to give the P x-rays and other documents
- D didn't oppose but wanted equivalent disclosure
- The record is in control of a third party and the order was made under rule 26(11) and third party is
required to provide certified copies of the originals, but need not disclose the originals
I: - Should the D get a copy of the hospital records?
J: - Yes, for D
A: - The court held the intent of R. 26(11) was to provide a party with the means of obtaining production
and inspection of documents from non-parties provided it can establish that the document is relevant
- The application cannot be a “fishing expedition”
- Instead, must show that a person who is not a party to the action has a "document" or
"documents" in their possession which relate to a matter in issue
- If the applicant shows the documents are relevant on the Peruvian Guano test, the court will order
production by the non-party, unless there are reasons not to, such as:
a) The document is privileged
b) The interest of the non-party may be embarrassed or adversely effected
c) The non-party’s interest is not overriding
- The court holds that before refusing to order production on the grounds it may embarrass or adversely
affect a non-party, the court must:
a) Weigh the probative value of the document against the negative affect on the non-party, and
b) Determine whether it is more just to require production or not
- Here, the court holds the defendant should have production of the documents as there was no claim
that the hospital may be embarrassed by production
- The only potential embarrassment was the plaintiff’s and that was not a basis for refusing
production as she was a party to the litigation
- Also, the documents were certainly relevant
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R: - In order to refuse production of a document in possession of a non-party because it may
embarrass or adversely affect the non-party, the court must be satisfied that the probative value
of the document would be slight and that it would not be unjust to require production
- The next case deals with the need for permission to use documents outside of the case…
Hunt v. T&N (1995 BCCA)…Implied undertaking of confidentiality over documents disclosed in litigation
F: - Hunt brings asbestos action…there are many other P’s, some of which bring actions in Texas
- P’s in different J’s plan to work together and share discovered information…here, P is the respondent
- D is appealing the decision of the chambers judge saying that the documents disclosed in this action
were available to the other BC actions and to the Texas actions
- Instead, D wants to provide copies of documents to D only with condition that they be used only for
litigation in BC, not Texas
I: - If a party obtains documents on discovery, can they use those documents in other proceedings?
J: - No, for D…this is a change in the law – default position is now that cannot use the information
beyond the current proceedings – receiver has to apply for permission to do so…doesn't decide if in
this case the documents can be shared – that is left to the TJ to assess
A: - CJ was bound by the decision in Kyuquot which the court held permitted the plaintiff to make any use
of the documents it wished
- In that case, BCCA had held that while documents disclosed in litigation ought not to be used for
other purposes, party wishing to restrict use had to establish an injunction order was appropriate
- Here, BCCA sat a 5 judge panel and held the rule in Kyuquot was anomalous in Canada and other
jurisdictions, and instead prefers the dissent in Kyuquot
- The dissent in Kyoquot had held that a blanket confidentiality rule would encourage broader
disclosure since there was less risk of misuse or collateral use of the documents disclosed for the
purpose of litigation
- Anomalous to recognize a right of privacy and an obligation to use discovery documents only in
the proceedings in which they are produced, but then to require the owner to take steps to prevent
a breach of that obligation
- Generally, there was a confidentiality obligation in respect of receiving documents in litigation
- Thus the majority find there is an implied undertaking of confidentiality over documents
disclosed in litigation
- The rule now is there is an obligation on a party obtaining discovery of documents requiring the
party to obtain prior to using documents other than in the proceedings:
a) The owner’s permission; or
b) Leave of the court;
c) Use in the proceedings includes showing the documents to witnesses and advisors such as
expert witnesses
R: - A party obtaining discovery of documents is required in appropriate cases to obtain the
owner's permission OR the court's leave to use the documents for any other purpose than the
proceedings in which they are produced
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II. EXAMINATIONS FOR DISCOVERY AND INTERROGATORIES
1) EXAMINATIONS FOR DISCOVERY
- Rules provide a variety of methods for ascertaining facts and narrowing the issues between parties, with
one method is an examination for discovery
- Examination for discovery is an oral examination under oath of a party or a representative of a
party who is adverse in interest to you
- It is in the nature of cross-examination and provides for the ability for re-examination
- Usually happens in a board room at law firm or reporter's office with no judge present
- Raises professional obligations because lawyers must control the process
- Unlike court procedures, they're not public proceedings, and as a general rule, most other parties or
counsel for parties are not welcome
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- Counsel can act either as examining counsel or as counsel representing the party being examined,
which is often called "handholding"
- Everything that happens is being recorded by a court reporter, thus must maintain professionalism
- See Cominco, where counsel unreasonably objected to the examiner's questions time after time
and they were revealed in court
- The purpose of examinations for discovery, together with document discovery, is to find out what the
other party's case is all about for trial
- Allows one party to get the evidence that was unavailable in pleadings
- Provides one opportunity (and only one) to canvas the opposing party's main witness
- By doing so, you can get at evidence that the party will rely on during the trial
- It could be said that there are 3 purposes to examinations for discovery from a procedural perspective:
a) Discover the opponents case in order to know what case you will have to meet at trial
- Can discover facts and root out strengths/weaknesses of opponents case
b) State the needs for you own case
- Obtain admissions which can then be used as evidence at trial
c) Removes surprise at trial, so no "trial by ambush"
- Want to tie the other side down
- There are also strategic reasons to use examination for discovery:
a) They often lead to settlement
- Demonstrate the strengths of your case and show to the other side that there are problems with
their case
- They are also a pain/costly/lengthy procedure that might force settlement
b) Used to impeach credibility of a witness
- ie: read into the record at trial D's evidence
- They key Rule is Rule 27 – Examination for Discovery, which has many parts
a) Timing of Examination for Discovery
(1) Leave of the court not required
- "Subject to this rule, an examination for discovery may take place without leave of the
court at any time up to 14 days before the scheduled trial date"
(13) Time
- "An examination for discovery by a plaintiff may take place after the expiration of time for
delivery of the statement of defence of the party to be examined, and an examination by a
defendant may take place at any time after the defendant has delivered a statement of
defence"
- Thus can take place after the statement of defence is filed and up to 2 weeks before the trial date
- If it takes place in the 2 week period or during trial, counsel needs to obtain leave of the court
- Reasons to get leave include late production of documents, amendments to pleadings, or other
"exceptional" circumstances
- Generally speaking, after document discovery, examination for discovery takes place, but it's
also good to do examination ASAP, as they can lead to settlement and reduce costs
b) Who Can Be Examined?
(2) Oral examination on oath
- "An examination for discovery is an oral examination on oath"
(3) Examination of party adverse in interest
- "A party to an action may examine for discovery any party adverse in interest"
- There are 2 requirements by virtue of this rule:
i) Must be a party
ii) Must be adverse in interest…usually clear in pleadings
- Co-defendants, in absence of third party notice and have commonality of
defence, usually can't examine each other unless other D admits a crucial fact
that puts into question your defence…then you may be able to examine other D
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- In fact pattern, P's as a group would have ability to examine one representative
of CFS, and same is true for multiple D's if they have commonality of interest
- See Orca Bay, where P couldn't examine representative of D company #4
because all D companies had a commonality of interest and they'd already
examined Stan McCammon and others from D companies #1-#3
- Examining party generally has the choice to determine who to examine
(4) Examination of director, etc.
- "A person who is or has been a director, officer, employee, agent or external auditor of a
party may be examined for discovery, but that party may apply to the court at any time before
the examination for an order requiring the examining party to examine instead of that person
some other person who is or has been a director, officer, employee, agent or external auditor
of the party"
- There are 2 parts:
i) Examining Party Can Choose
- Where a party is a corporation, the examining party has the choice from amongst
directors, officers, ect., either current or former members of the corporation
- See Dillingham, where evidence given by party disclosed is not completely binding
ii) Application for substitution
- Where a party an apply to court for an order requiring the examining party to
examine some other person…so while there is a general rule that the examining party
get to choose, the party to be examined can apply for substituted representative
- See Rainbow, where there was a application to substitute because the junior
representative couldn't deal with the serious issues of the litigation, resulting in
potential prejudice to the defendants
(5) Examination of employees, agents, etc.
(a) - "A party who has examined for discovery any party adverse in interest shall not
examine an employee or agent of that adverse party without leave of the court"
- Thus to apply for a second discovery, you must apply for leave of the court
- See case law for factors the court will consider when considering granting leave
- Thus examining counsel must be careful when choosing which corporate
representatives to examine, and whether to accept adverse party's suggestions
- See Westcoast Transmission, where test is whether adequate or satisfactory
discovery has been obtained
- See Rogers,
(b) - "A party who has examined an employee or agent of another party shall not examine
that other party without leave of the court"
(c) - "A party who has examined a person referred to in subrule (4) shall not examine any
other person referred to in that subrule without leave of the court"
(6) Corporation to name person for examination
- "Where a corporation is a party, it shall disclose the name of a person to be examined who
is knowledgeable concerning the matters in question in the action"
- You should choose to examine the person most knowledgeable, but if you don't know
then the corporation should advise you who is the most knowledgeable
- See BC Lightweight, where the effect of rule is requires disclosure of a name, but it does
not take away the right of the examining party to choose a representative
(7) Examination of partners
- "Where a partnership is a party, one or more of the partners may be examined for discovery"
(8) Examination of party for whose benefit action brought
- "Subject to subrule (11), a person for whose immediate benefit an action is brought or
defended may be examined for discovery"
(9) Examination of assignor
- "Where an action is brought by an assignee, the assignor may be examined for discovery"
(10) Examination of guardian and infants
- "Where an infant is a party, the infant, his or her guardian and his or her litigation guardian
may be examined for discovery"
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(11) Examination of mentally incompetent person
- "Where a mentally incompetent person is a party, his or her litigation guardian and his or her
committee may be examined for discovery, but the mentally incompetent person may not be
examined without leave of the court"
(12) Examination of bankrupt
- "Where a trustee in bankruptcy is a party, the bankrupt may be examined for discovery"
c) Setting Up Examination For Discovery
(14) Place
- "Unless the court otherwise orders, or the parties to the examination consent, an examination
for discovery shall take place at a location within 10 kilometers of the registry that is nearest
to the place where the person to be examined resides"
- ie: if you and opposing counsel are in Vancouver, but representative is in Kamloops,
you can insist on discovery in Vancouver…but usually you'll go up to Kamloops
- Usually, your client will be examined at your office, and examine adverse party at
opposing counsel's office
(15) Examination before reporter
- "An examination for discovery shall be conducted before an official reporter, who is
empowered to administer the oath"
(16) Appointment
- "Where a party is entitled to examine a person for discovery, the party may fix a time for
the examination with an official reporter, and the person to be examined shall attend and
submit to examination if
(a) at least 2 days before the examination, the person is served personally with a notice
of appointment in Form 20 and is tendered the proper witness fees, or
(b) the person is a party to and has a solicitor in the action and, at least 7 days before
the examination, the notice of appointment is delivered and the proper witness fees
are tendered to that solicitor"
(17) Delivery of notice
- "The party examining for discovery shall, at least 2 days before the examination, deliver a
copy of the notice of appointment to
(a) the solicitor for the person to be examined, where
(i) the person to be examined is a party to and has a solicitor in the action, and
(ii) that solicitor has not received a copy of the notice under subrule (16) (b), and
(b) each of the other parties of record"
(19) Idem
- "Where a solicitor receives a notice under this rule, the solicitor shall forthwith inform the
person required to attend and shall pay the fees to that person. The fees shall not be attached"
(20) Production of documents
- "Unless the court otherwise orders, a person to be examined for discovery, and the party
on whose behalf the person is to be examined, shall produce for inspection on the
examination all documents in his or her possession or control, not privileged, relating to the
matters in question in the action"
(25) How recorded
- "An examination for discovery shall be taken down in the form of question and answer, and
copies of the transcript may be obtained on payment of the proper fee by any party of record,
the person examined or by any other person as the court for special reason may permit"
(26) Application to persons outside British Columbia
- "So far as is practicable, this rule applies to a person residing outside of British Columbia,
and the court, on application on notice to the person, may order the examination for discovery
of the person at a place and in the manner it thinks just and convenient, but unless the
court otherwise orders, delivery of the order and the notice may be made on, and payment of
the proper fee may be made to, the solicitor for the person"
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d) Scope of Questions At Examination For Discovery
(21) Examination and re-examination
- "The examination of a person for discovery shall be in the nature of a cross-examination,
and the person examined may be re-examined on his or her own behalf or on behalf of a party
not adverse in interest to him or her in relation to any matter respecting which he or she has
been examined. After the re-examination he or she may be further examined by the examining
party"
(22) Scope of examination
- "Unless the court otherwise orders, a person being examined for discovery shall answer any
question within his or her knowledge or means of knowledge regarding any matter, not
privileged, relating to a matter in question in the action, and is 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"
- This includes two parts:
i) Scope
- The scope of discovery is defined by relevance
- Broader scope than at trial, as evidence is relevant if it might be relevant…ie:
"regarding any matter, not privileged, relating to a matter in question in the action"
- See Allarco and Cominco, where scope is broad but often defined by pleadings
- See Bug Busters, where being "compellable to give names and addresses of
persons" relates to material facts, not witness or experts you intend to call at trial
ii) "Means of Knowledge"
- A discovery is not limited to the personal knowledge of the party being
examined…they can inform themselves about what's in their "means of knowledge"
- See Cominco, where "means of knowledge" must have some limits and depend on
reasonableness (F: reasonableness depends on circumstances of the case)
(23) Scope of examination
- "In order to comply with subrule (22), a person being examined for discovery may be
required to inform himself or herself and the examination may be adjourned for that purpose"
(24) Objections
- "Where a person under examination objects to answering a question put to him or her, the
question and the objection shall be taken down by the official reporter and the validity of the
objection may be decided by the court, which may order the person to submit to further
examination"
- See Allarco, where McEachern J. recommends asking focus, pointed questions and
fulfilling professional obligations as counsel to keep objections to a minimum
- Categories of objections:
i) Relevance
- Should be careful, as the scope of discovery is broad
ii) Speculation
- Opinion evidence and hypothetical Q's usually isn't relevant on Q at issue
- Exceptions in some areas, such as medical/professional malpractice
iii) Priviledge
- Frame Q's to avoid eliciting privileged info, such as "excepting
communications you've had with your lawyer, what steps did you take…"
iv) Vagueness
- ie: "what was the state of your health"…when?
v) Confusing
- Double negatives, compound questions, unclear what's being asked
vi) Legal
- ie: were you unjustly enriched? What was your legal duty?
vii) Misstatements
- Counsel may misstate evidence stating by adverse party
viii) Bad Objections
- "It's not in pleadings"…scope may be defined by relevance, but it's broad
- "Asked and answered"…examiner's right to ask Q's in different ways
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Cominco Ltd. v. Westinghouse Canada Limited (1979 BCCA)…Scope of examination for discovery broad
F: - There was a fire at Cominco's smelter plant in Trail, and they allege the fire spread rapidly because of
the propensity of PVC-coated cables to spread fire
- D supplied and manufactured the cables at the plant, but claims they shouldn't have been expected to
know the fire hazard posed by the cables
- P has many COA's, including breach of K, negligence, breach of statute, failure to warn, ect…
I; - What is the scope of discovery under R.27(22)?
J: - Lots, but majority here for A
A: - Court rejects idea that discovery must bear directly on matters and issues
- Post-fire events: raises 3 issues:
a) Is such evidence relevant?
- Yes, post-fire conduct bears on capacity to produce fire retardant cable and test cables for
flammability, and on what ought to have been known before the fire;
b) Is there policy that such evidence s/b excluded?
- No, D will not expose others to injury and self to further lawsuits in order to avoid tenuous
argt that b/c he has changed/improved sth he has admitted fault
c) Is there a fear that jury will use evidence improperly?
- No, scope of discovery different from admissibility at trial – TJ need not admit answer in
evidence; also, juries in Canada receive guidance from judge and this is not jury trial
- A question need only be related to the subject-matter, and so the socpe is broad since it must be plain
that the question is clearly not relevant, and so need not plainly reveal purpose
- Examiner may take circuitous route to obtain answers; it's effective cross-examination technique
R: - Requests for production of documents or questions which go beyond reasonable limits into
areas which are not relevant and cannot be relevant should not be allowed
B.C. Lightweight Aggregate v. Canada Cement LaFarge (1978 BCCA)…Effect of Rule 27(6)
F: - Action in conspiracy against 33 corporations, and P applies for an order requiring an officer of D's
corporation to attend to be examined for discovery
- Problem is the officer, who was once the GM and on the board of directors, lives in Paris
- As a substitute, D offers another officer for examination, which P rejects
I: - Which party gets to select the representative of the corporate party to be examined for discovery?
J: - Here, P, as officer can be examined either in Vancouver or in Paris at D's request
A: - Adverse party may choose one representative, but the 2nd may not examine another without leave of
the court
- Amendment to R.27(6) now requires a corporate party to "disclose the name", but it doesn't take
away the right of an adverse party to select a representative of the corporate party who is to be
examined for discovery
R: - Effect of Rule 27(6) does not take away the right of an adverse party (ie: the examiner) to select
a representative of the corporate party who is to be examined for discovery
Rainbow Industrial v. C.N.R. (1986 BCSC)…Discretion of court to override P's prima facie R.27(4) right
F: - P alleges fraud, and wants to examine a junior associate
- D makes allegation to substitute under R.27(4), saying in this complex litigation only a senior
associate could answer the Q's, and the junior's answers could potentially prejudice D
I: - Does R.27(4) give P a right to select the employee they wish to examine?
J: - Yes, but here there is an exception, so here for D
A: - Confirms the general rule that a party gets to choose its witness as long as there is no prejudice to
D, which is to be determined by the court
- Here, however, the court chose to allow the defendant's application for substitution
R: - There is discretion in the court to override the prima facie right to examine a representative of
choice in order to achieve fairness and a balance between the parties
Westcoast Transmission v. Interprovincial Steel (1984 BCSC)…Test when court will grant 2nd discovery
F: - Steel pipe bursts, and P sues D, the manufacturer, in breach of contract and negligence
- P applies to examine another witness after examining 2 of D's witnesses
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- They claim they were misled because the witnesses were not knowledgable on the matters in issue
- They needed to continually inform themselves thereby resulting in hearsay evidence being
adduced and the flow of examination being disturbed
I: - Will the court use s.27 discretion to allow ordering of further witnesses to be examined?
J: - No, for D
A: - Confirms LaFarge regarding the choice of the examining party
- P tried to argue that examinations are like cross-examinations, but court holds 2 goals to discovery:
a) Discover the other party's case
b) Obtain admissions which support the examiner's case
- The court articulates a test for examination of further witnesses:
a) Has there been a full inquiry into all matters which may be relevant to the issues raised on the
pleadings?
b) Have those inquiries been answered either of the witnesses's own knowledge, or upon his
informing himself?
- Must demonstrate that questions asked have not been answered, or that answers given are incomplete,
unresponsive, or ambiguous, or that follow-up questions have similarly not been answered in a clear,
complete, and responsive way in order to justify a second discovery
- Note that discovery may be interrupted for the witness to inform himself
- P also argued that he wasn't able to obtain admissions because they were based on hearsay
- However, for practical purposes, it is necessary to allow corporate rep to give hearsay evidence
- Admissions on examination for discovery based on hearsay evidence may be admissible at
trial if the witness expressly adopts or accepts the truth of that information
R: - In exercising its discretion to allow further witnesses to be examined, the issue for the court is
whether adequate or satisfactory discovery has been or can be obtained from the representative
put forward, having regard to the purposes of discovery to discover the adverse party's case and
obtain admissions, regardless of whether the witness was chosen by the corporation or picked by
the plaintiff
- Therefore, two tests following Westcoast:
a) Test for satisfactory exam for discovery
- Whether there has been full inquiry into all matters that may be relevant to issues raised on
pleadings and whether those inquiries have been answered either of witness’s own knowledge or
upon informing himself
b) Test to show that discovery has been unsatisfactory so as to entitle party to further examination
- Must show Qs asked have not been answered, or answers are incomplete, unresponsive or
ambiguous, or follow-up Qs also not answered in clear, complete and responsive way
Allarco Broadcasting v. Duke (1981 BCSC)…Scope of examination defined by the pleadings
F: - Not many facts
I: - What's the scope of examination?
J: - Pretty broad
A: - Amendment of pleadings after examination doesn't automatically permit examination to be renewed
- Only be possible if further discovery was ordered at the time of amendment, or subsequently, by
an order of the court
- Here, McEachern J. comments too many questions were asked in discovery, went on too long, ect…
- Must be pointed in Q's you're asking and not let discoveries go on endlessly
- Scope of examinations for discovery should be more restrictive than scope of trial b/c trial judge has
discretion to control course of trial whereas no corresponding restraint at discovery
R: - Pleadings existing at the time of discovery define the scope of the examination
Dillingham Construction v. B.C. Hydro (1990 BCSC)… Nothing in R:27 gives right to insist binding A's
F: - P examined a respresentative of a corporation, and asked that the answers be binding
I: - Under R.27, does an examining party have the right to compel a corporate litigant being examined to
produce a representative authorized to give evidence which is "binding" on the corporation?
J: - No, for D
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A: - No rules authorizing examining party insist answers are "binding", and also no duty requiring
corporate litigant to seek authorization
R: - There is nothing in the rules that gives the examining party the right to insist that the witness to
be examined for discovery be "authorized" by the corporate litigant who produces the witness,
or to insist that the witness give answers that are "binding" on the corporate litigant
Fraser River Pile & Dredge Ltd. v. Can-Dive Services Ltd. (1992 BCSC)…3 guidelines for lawyer-client
F: - Barge rented by D from P sinks in Georgia Straight
- During examination, D's representative says it was his fault, so counsel jumps up and wants to talk to
his client…P objects and brings application to court to rule that D's counsel must shut up
I: - To what extent can counsel speak or "hand-hold" client during the examination for discovery?
J: - Depends, but strict limits
A: - Fraser gives guidelines for what kind of communication you can have with client during discovery:
a) Discovery Less Than 1 Day
- Counsel for witness should refrain from having any discussion with the witness
- In order to maintain appearance of proper conduct, counsel and the witness should not even
be seen to converse during any recess
b) Discovery More Than 1 Day
- Counsel is permitted to discuss with witness all issues relating to the case, including
evidence that is given or to be given, at the conclusion of the discovery every day
- However, prior to any such discussion taking place, counsel should advise the other side of
their intention to do so
c) In All Cases
- Counsel for the witness should not seek an adjournment during the examination to
specifically discuss evidence given by the witness
- Such discussion should either wait until the end of the day adjournment or until just before
re-examination at the conclusion of the cross-examination
R: - Court makes guidelines when communicating with your client during discovery to balance
integrity of discovery process and demand for practicality
HMTQ v. Bug Busters (2001 BCCA)…Giving names and addresses must relate to material facts
F: - Forest fire where D's employees were working on tree-planting K…P alleges fire result of negligence
- D knows names of employees, but not addresses…P found out 5 addresses, but refuses to disclose
I: - Are names and addresses of witnesses as to fact that counsel for the plaintiff obtained for the
purposes of litigation are privileged, and therefore no compellable on examination for discovery by the
defendant, pursuant to R.27(22)?
J: - Yes, addresses must be produced
A: - Cominco: no exclusionary rule for witnesses following amendments
- P's claim of privilege as part of solicitor's brief would defeat intent of R.27(22)
- Clear purpose of R. 27(22) as amended in 1976 was to eliminate the privilege previously
protecting disclosure of names of witnesses on matters of fact in discovery process; P’s
interpretation of Rule would impair intended scope of Rule
- Difference between fact witnesses (OK) v. experts (privilege might attach)
- Therefore names and addresses of witnesses as to fact are compellable for discovery; obligation
to provide overrides solicitor’s brief privilege
R: - Purpose of R.27(22) is to abrogate the privilege previously protecting disclosure of the names of
witnesses on matters of fact, and their addresses, in the discovery process
Rogers v. Bank of Montreal (1986 BCSC)…Court refused to grant leave to examine second bank officer
F: - Sues bank for improper appointments, and bank manager that was appointed applied for
indemnification against the bank in respect of any J/costs that P got against the bank
- Bank defends indemnification action, saying advice it got from receiver and law firm was negligent
I: - Can they examine bank manager?
J: - No
A: - 4 factors a court will consider when considering whether to grant leave for a second discovery:
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a) The circumstances of the particular case
b) The responsiveness of the witness under examination and the degree to which he has taken
pains to inform himself
c) The nature and materiality of the particular evidence sought to be canvassed with the
second representative; and
d) What appears to be the most practical, convenient and expeditious alternative
- Here, the application failed, as outside legal counsel retained by a bank is not examinable as an offer
or agent of the bank, unless they were in-house counsel or actively involved in the negotiations with
the party seeking to examine him
R: - When considering whether to grant leave for the examination for discovery of a second agent or
officer, the court will examine the particular circumstances, responsiveness of the witness, the
materiality of the evidence, and the presence/absence of any convenient alternatives
Blue Line Hockey v. Orca Bay Hockey (2007 BCSC)…Court denies application to examine any rep.
F: - P's allege Beedie, Gaglardi, and Aquilini formed a partnership to pursue the acquisiton of Orca Bay
- Partnership entered into negotiatons with McCaw and Orca Bay in November 2003
- P's say Acquilini left the partnership some months later and secretly pursued acquisition of an interest
in Orca Bay on his own using confidential information he obtained as a member of the Partnership
- P's sue Acquilini's on breach of K and breach of fiduciary duty
- Beedie and Gaglardi want to examine Deboins as representative of one of 4 Orca Bay companies
- They originally examined and wanted Stan McCammon, but now want Deboins, relying on R.27(3)
which entitles P to examine any corporate representative
I: - Can P examine Deboins?
J: - No, for Orca Bay
A: - R.27(3) can't be considered in a vacuum
- Case shows that individuals often use variety of corporate entities to achieve corporate purposes
- Here, P won't suffer prejudice if they are precluded from examining Debonis
- In each instance, McCammon is either capable of providing the evidence as a result of his own
personal knowledge or he can inform himself by making enquiries of Deboniss
- P claims that there was no agreement or acceptance that Stan could bind all 4 companies
- However, court holds that the parties have proceeded on the unspoken assumption that
McCammon's evidence would be admissible at trial as against all of the Orca Bay companies
- R. 27(3) does not entitle party to examine every party adverse in interest; esp. where multiple parties,
depends on commonality of interest (in which case can only examine one party); where there are
separate interests, parties may be permitted to examine other parties
R: - To examine a different corporate representative from related companies, the companies must
not have a commonality and identity of interest and party seeking examination will suffer
prejudice if they are not entitled to examine
- Finally, how can examinations for discovery be used?
- It's your transcript, not the client's
- During trial, you can bring transcript and attach affidavit to be used at summary trial
- During a normal trial, it can be used to establish admissions to impeach for the purposes of reading in
evidence and if a party dies, there may have to rely on the evidence
______________________________________________________________________________________
2) INTERROGATORIES
- These are essentially a written discovery, where adverse party responds with a written answer
- They are better for technical information and issues requiring a chronology
- Questions requiring a narrative response are often better answered in examination for discovery
- As a general rule, you don't see them very often, they are subject to the same relevance test, so
matters "may" relate, not "must" relate
- Case law recommends that you should pick the procedure that is most practical or preferable
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- The relevant Rule section is Rule 29:
a) Rule 29 – Discovery By Interrogatories
(1) Service of and answer to interrogatories
- "A party to an action may serve on any other party, or on a director, officer, partner, agent,
employee or external auditor of a party, interrogatories in Form 22 relating to a matter in
question in the action, and the person to whom the interrogatories are directed shall, within
21 days, deliver an answer on affidavit to the interrogatories. The party serving the
interrogatories shall notify all other parties of record"
- In practice, this practice is almost never complied with
- Interrogatories involve very complex questions, and 21 days is too strict a time frame
(2) Where a party is a body of persons
- "Where a party to an action is a body of persons, corporate or unincorporate, empowered to
sue or to be sued, in its own name or in the name of an officer or other person, the court may,
on the application of any other party, make an order allowing that other party to serve
interrogatories on the officer or member of the body specified in the order"
(3) Time for service
- "The plaintiff may serve interrogatories after the expiration of time for delivery of the
statement of defence of the party to be examined, and the defendant may serve interrogatories
after the defendant has delivered a statement of defence"
(4) Where more than one person to answer interrogatories
- "Where interrogatories are required to be answered by more than one person who is an
officer, director, partner, agent or employee of a party, the interrogatories shall state which of
the interrogatories each person is required to answer"
(5) Objection to answer interrogatory
- "Where a person objects to answering an interrogatory on the ground of privilege or on the
ground that it does not relate to a matter in question in the action, the person may make the
objection in an affidavit in answer"
(6) Insufficient answer to interrogatory
- "Where a person to whom interrogatories have been directed answers any of them
insufficiently, the court may require the person to make a further answer either by affidavit or
on oral examination"
(7) Application to strike out interrogatory
- "Where a party objects to an interrogatory on the grounds that it is not necessary for
disposing fairly of the action or that the costs of answering would be unreasonable, that party
may apply to the court to strike out the interrogatory, and the court shall take into account any
offer by him or her to make admissions, to produce documents or to give oral discovery"
(8) Delivery of interrogatories to solicitor
- "A party may, instead of serving interrogatories under subrule (1) or (2), deliver the
interrogatories to the solicitor of the person to whom the interrogatories are directed"
(9) Idem
- "Where a solicitor receives interrogatories under subrule (8), the solicitor shall forthwith
inform the person to whom the interrogatories are directed"
(10) Continuing obligation to answer
- "Where a person who has given an answer to an interrogatory later learns that the answer is
inaccurate or incomplete, the person is under a continuing obligation to deliver to the party
who served the interrogatory on affidavit deposing to an accurate or complete answer"
Roitman v. Chan (1994 BCSC)…Court lays down 7 main principles of interrogatories
F: - Husband seriously injured in MVA, and died 2 years later from injuries
- Brings action against driver and hospital doctors and nurses who treated him for his heart attack
I: - Are interrogatories drafted by the plaintiff appropriate?
J: - Some OK, others struck down
A: - Main purpose of interrogatories is to determine who did what exactly
- 2 means of discovery:
a) Examinations  confrontational, narrative answers required, time pressures
b) Interrogatories  extensive research, lists, chronology, more expansive time frame
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- 7 principles of interrogatories:
a) They must be relevant to a matter in issue in the action
b) They are not to be in the nature of cross-examination
c) They should not include a demand for delivery of documents
d) They should not duplicate particulars
e) They should not be used to obtain names of witnesses
f) They are narrower in scope than examinations for discovery
g) The purpose of interrogatories is to enable the party delivering them to obtain admissions of
fact in order to establish his case and to provide a foundation upon which cross-examination can
proceed when examinations for discovery are held
- Here, request for names of involved medical staff OK, as they relate to a material fact
R: - Case lays down principles of interrogatories
Hoyt v. ICBC (2001 BCCA)…Interrogatories are limited and can't usually be used to get names
F: - As usual, ICBC wants names from interrogatories to prove that injuries sustained by P in MVA didn't
entitle her to receive benefits
- ICBC, who appeals TJ decision, claims that there is no general rule against use of interrogatories to
obtain names of witnesses as long as they are relevant and relate to a matter in question
I: - Unless the name of a person is material or relevant to a fact in issue on the pleadings, can it be
obtained on interrogatories?
J: - No, for P (Hoyt)
A: - Court regrettably limits interrogatories, since names can be drawn during examination, thus adding to
expense and discouraging settlement
- Court holds that interrogatories can't generally be used to obtain names of witnesses unless they can
be shown to be relevant to the issues raised in the pleadings
- No proper basis has been shown here for court to interfere with that practice
- Interrogatories are not examinations, and were not intended to allow for a fishing expedition
R: - Well settled practice of the trial court will not generally permit the use of interrogatories to
obtain the names of witnesses, unless they can be shown to be relevant to issues raised in the
pleadings
______________________________________________________________________________________
SECTION THREE – PRE-TRIAL PROCEDURES
I. INJUNCTIONS AND PREJUDGMENT ATTACHMENTS
1) INTERLOCUTORY INJUNCTIONS (guest lecture)
- High risk/reward to applying for injunction, as it can either freeze assets before trial
- Duties of candor and honesty to the court is thus more important here than in other areas
- An injunction is a court order (not by way of writ) to use its equitable power to stop somebody from doing
something before both sides have had a chance to fully argue their case
- Done on basis of "strong arguable case" (or "prima facie case"), evidence on affidavits, ect…
- Two kinds of injunctions (other than Mareva injunctions and Anton Pillar orders):
a) Interim – temporary until a specified date
b) Interlocutory – stay in force before trial
- Law and Equity Act, s.39, grants the court the power to make this equitable relief
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- There is one main rule for injunctions – Rule 45:
a) Rule 45 — Injunctions
(1) Applications for interlocutory injunctions
- "An application for an interlocutory injunction may be made by a party whether or not a
claim for an injunction is included in the relief claimed"
- Thus even if you don't specifically set out in writ of summons or statement of claim that
you seek an injunction, you can still apply for one
- Thus similar to every other interlocutory application
(2) Applications for interlocutory injunctions before proceeding commenced
- "An application for an interlocutory injunction may be made before commencement of a
proceeding and the injunction may be granted on terms providing for the commencement of
the proceeding"
- This is in case of urgency and with leave of the court
- However, rarely invoked, as injunctions usually started at same time as proceedings
(3) Applications for interim injunctions without notice
- "If an application for an interlocutory injunction is made without notice, the court may
grant an interim injunction"
- Thus within court's power not only to grant an injunction, but also to grant it for a
specific period of time
- Strategically, sometimes you give other side notice, and sometimes not, but it's good
practice to give the other side notice because:
i) Creates a 2-step process
- Court puts onus on party seeking injunction, not absent party, to argue for
urgency of injunction…often court will grant interim injunction and order them
back to court later
ii) Higher duty of candor to court
- If making an order without notice, court will order full disclosure, and counsel
must honestly admit weaknesses of case
iii) Higher burden
- First step onus may switch from "good arguable case" to "strong prima facie
case"
(4) Injunction by court order
- "No writ of injunction shall be issued. An injunction shall be by order of the court"
(7) Application for injunction after judgment
- "In a proceeding in which an injunction has been or might have been claimed, a party may
apply by petition after judgment to restrain another party from the repetition or continuance of
the wrongful act or breach of contract established by the judgment or from the commission of
any act or breach of a like kind"
- This rule recognizes that there may be a lengthy process to enforce J before trial
- Gives authority post-trial to seek injunctions
- To get an interlocutory injunction, there are 2 main alternate tests, both being good law but Wale, being a
BCCA case affirmed by SCC, more applicable and more advantageous to BC:
a) 2-step test from Wale
i) Is there a fair and arguable question to be tried?
- This is not a high threshold, just asks if the issue is not frivolous or vexatious
- Court simply must satisfy itself that the issue is reasonable and serious
- Rare for court to hold here, and will go to balance of convenience anyways just in case the
judge is wrong on part 1
ii) Does the balance of convenience favour granting or refusing the injunction?
- Advantage of Wale is that there are only 2 steps, and taking the factor of irreparable harm
and putting it as one of many factors in the balance of convenience stage can allow counsel to
make up for the lack of irreparable harm with other factors
- See CBC for non-exhaustive, non-formulaic yet useful checklist
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b) 3-step test from RJR-MacDonald
i) Is there a fair and arguable question to be tried?
ii) Will there be irreparable harm?
iii) Does the balance of convenience favour granting or refusing the injunction?
- Since it's a 3-step test, an application may fail if they can't prove irreparable harm
- However, it may be more advantageous for an opponent to argue when defending
Example Fact Pattern For How a Injunction is Granted Practically
F: - 2 adjacent properties, A and B…B has statutory right of way against A's property that allows A to
build a road from B's property to public road, which A now wishes to do as a necessary way to carry
on business
- A refuses to let B build the road and threatens to blockade construction…you are acting for B
I: - What practical steps do you take as counsel?
A: - Steps for counsel to prepare application for an injunction:
a) Get a definite refusal
- Not covered in rules, but practically speaking, you must have a denial of access or a threat
- In a fact pattern such as this over land, problems are foreseeable
a) Decide whether to file for injunction before or after filing statement of claim
- Almost always, counsel will start an action, file a statement of claim, state material facts
regarding the right of way and effects on B
- While debate about whether to bring by writ or by statement of claim, since injunction
affects people's rights significantly ahead of trial, SOC is more proper course of action
c) Decide whether to urgently proceed with or without notice
- Set timelines under Rules of Court in interlocutory applications are almost never used
- Urgency of injunction means 2 week timeline for interlocutory not relevant
- Instead, counsel races to Chambers and requests short leave without notice or agrees with
other counsel to proceed
d) Get affidavit setting out evidentiary basis for injunction, which must show several elements:
i) Issue to be tried – what's the legal right being interfered with?
- Here, B presents copy of statutory right of way, which is the legal right interfered with
ii) Irreparable harm – what will happen if the injunction is not granted now?
- Here, interference with B's ongoing business will cause B's business to fail
iii) Clear evidence of denial
- Must have clear evidence that's there's been not only an interference with your rights,
but also that there is a clear refusal…here, B needs evidence of denial of access
e) In addition to writ and affidavits, you need a notice of motion
- This form commences the application itself
- Should set out the order sought: interlocutory injunction refraining party A from doing X
f) Apply for an enforcement order to allow police to arrest those disobeying the injunction
- RCMP and local police will not intervene in civil disputes unless they're specifically ordered
to by the courts as to not favour one segment of the community over another
- Courts have issue with this, as role of police is to enforce orders of the court, even where the
court doesn't specifically tell the police to enforce
- Courts will be very reluctant to grant these at first instance
g) Outline under Rule 55(A) and Rule 44
- Sets out case as reference to the case law, which is last piece of paper you need
h) Attach a draft order to the notice of motion
- Allows judge to look at notice of motion and draft order at same time and speed up process
i) Serve injunction order on opposing party
- If opposing side is unrepresented, they must be personally served…otherwise, can be
delivered to opponent's counsel
- If they refuse to be served, can order a processing server to serve them
- After the proper paperwork has been entered into the court, what are the arguments for the parties?
a) Party B – Your client
- Party A doesn't have the assets to satisfy damages to business
- This is a clear black-and-white contractual issue, thus strength of applicant's case
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b) Party A - Opponent
- Party B is trying to change the status quo
- If injunction application is successful, but Party B refuses to remove blockade, what do you do:
a) Call police
- To get a court enforcement order, court often needs evidence that the police are aware of the
dispute and have chosen not to intervene
b) Present another notice of motion and go back to court to get court enforcement order
- Will need affidavit setting out timeline of the situation
c) Police goes to party and reads enforcement order
- If opposing party disobeys, police may arrest/leave situation alone
d) If the opposing party continues to disobey, can start proceedings for contempt of court
- At first instance, onus is on party seeking the injunction to prosecute civil contempt of court
- Under Rule 51(a), must be beyond a reasonable doubt and penalty sought
Attorney General of British Columbia v. Wale (1986 BCCA)…2-step test for BC for injunctions
F: - Indian Band wishes to have a commercial fishery on their reserves and keep legislative/administrative
control over it, so they pass their own by laws regarding it which were approved by the Minister
- Yet Ministry claims limitless nature of by-laws gives total control to the Indians and deplete salmon
stock, and therefore they're not in the best interests of fisherman or Canadians
- Therefore, 2 days before benefits bestowed, A-G BC launched proceedings for ex parte injunction,
got it, and then was confirmed at a full hearing with all the parties for an interlocutory injunction
- Note: pretrial injunctions will either be interim (valid for a short specific period only) or
interlocutory (binding until trial)
- Indian band appeals from the final order for an interlocutory injunction
I: - Did CJ apply the correct test for an injunction, and if so, was there enough evidence upon which an
injunction could be granted?
J: - Yes, for A-G (with dissent)
A: - Injunction is a discretionary order, and the court will only interfere if:
a) Chambers judge erred in principle
b) Order not supported by the evidence
c) Decision will result in an injustice
- The following test is purposive and flexible
- Judge must not allow himself to become the prisoner of a formula
- Fundamental question in each case is whether the granting of an injunction is just and
equitable in all the circumstances of the case
- For an interim injunction in BC, the applicant must satisfy a 2-pronged test:
a) Satisfy the court that there is a fair question to be tried as to the existence of the right which
he alleges and a breach thereof, actual or reasonably apprehended, and
b) Establish that the balance of convenience favours the granting of an injuction
- Here, examine the adequacy of damages as a remedy for the respective parties
- Should not be granted unless there is doubt whether damages would be an adequate remedy
in the event the applicant succeeds at trial
- Must be shown that the applicant may suffer irreparable harm, but clear proof is not
required…doubt as to the adequacy of damages as a remedy may support an injunction
- There are 2 possible situations in assessing the balance of convenience
a) Easy
- Easy where there is a fair question to be tried and the applicant demonstrates that damages
may not provide an adequate remedy, an interlocutory injunction is justified
- Similarly, if the only irreparable harm would be to the party against whom the injunction is
sought, an injunction would not normally be granted
b) Difficult
- Both parties demonstrate that damages might not be an adequate remedy…factors include:
i) Preserving the status quo
- One side bases his claim on existing rights, while enforcement of the other's rights
would change the status quo
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ii) Strength of the applicant's case
iii) Circumstantial factors of each case
- Here, CJ failed to mention irreparable harm, but not fatal, as Cj asked if there was a fair question to
be tried and applied the balance of convenience analysis
- She clearly had in mind the relative risks of harm to the parties from granting or withholding
interlocutory relief, and to say it was an error because of her omission to discuss irreparable harm
as a separate element would be to adopt the formalistic approach judges should avoid
- Dissent by Seaton J.A.:
- Since CJ considered a political question that should be left to the legislature to decide, BCCA
can override CJ discretion and consider the matter afresh
- Concluded that if injunction is granted and it turns out Band ought to have been allowed to fish,
they will have been denied several seasons of fishing that they should not have been denied
- However, if injunction not granted and it turns out Band shouldn't have been allowed, other
fishermen will have been denied fish that the Indians caught
- The harm suffered by Band if injunction is granted equal to harm suffered to other fishermen if it
is not granted
- Also, A-G seeks to ban fishing while issues are determined, but Band not permitted to have them
determined before by-laws came into force
- Finally, Minister should be permitted to solve the problem without interference from the courts
- In conclusion, matter ought to be left in the hands of those who can answer the questions, not just
postpone answers
R: - The BCCA gives a test for granting interlocutory injunctions: must show a fair question to be
tried, irreparable harm, and that the balance of convenience favours granting the injunction
CBC v. CKPG Television Ltd. (1992 BCCA)…Lambert J.A. gives many factors for balance of convenience
F: - Dispute between CBC and 5 local affiliates over what can be broadcasted during "basic reserved
time" for CBC national network programming
- CBC appeals CJ order refusing to grant an injunction to prevent the affiliates from substituting direct
satellite feed for indirect microwave feed…affiliates claim K permits them to do so
- CJ used "prima facie case" test and not "fair issue to be tried" test for part 1, but decided that the
balance of convenience rested with the five affiliates
I: - Did CJ apply the correct test?
J: - Yes, for CKPG
A: - Lambert J.A. modifies/clarifies injunction test from Wale:
a) Is there a fair question to be tried?
- This is less strict that needed to establish a prima facie case, just need to show that you have
a good arguable case
b) Does the balance of convenience favour granting the injunction? Factors to consider include:
i) Adequacy of damages as a remedy for the applicant if the injunction is not granted, and for
the respondent if an injunction is granted and the claim fails at trial
- Usually these are grouped under the idea of irreparable harm, and court calculates
which party is more likely to suffer irreparable harm
- For irreparable harm, it's not just that it's difficult to calculate the amount of damages,
but that damages won't suffice
- ie: counterfeit goods bearing client's name will tarnish client's reputation
- ie: interference with an ongoing business such as a forestry project, as it will result
in loss of income to company and layoff of workers
- ie: for the flip-side of the argument, defenders can argue that land has cultural
significance (Native lands) and they will suffer irreparable harm if injunction granted
ii) Likelihood that if damages are finally awarded they will be paid
- Even if defender argues that damages are an adequate remedy, the court will still inquire
whether the party has the ability to pay those damages
- ie: weighs against professional protesters with no assets
iii) Preservation of contested property
- More often relevant with Mareva injunctions or freezing orders
- Comes up in property cases when property is in someway special or important
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iv) Whether harm from the granting or refusal of the injunction would be irreparable
- Reiteration of 'i' as to adequacy of damages
v) Which of the parties has acted to alter the balance of convenience of their relationship and
so affect the status quo…there are three aspects of the status quo:
a) Which party took the first step which brought about the alteration in their
relationship which led to an alleged actionable breach of the rights of one of the parties
b) Which party took the action which is said to be an actionable breach of the rights
of the other party
c) Nature of the conduct which is said to be wrongful and which is being carried on at
the time that the application for the interim injunction is brought
- Like irreparable harm, this is often a contentious point
vi) Strength of the applicant's case
- When assessing balance of convenience in cases where irreparable harm and arguments
on status quo are equal on both sides, this can be a tipping factor
- However, relative strength of the parties' cases must recognize the degree to which
those cases have not yet been revealed because of the nature of the evidence and the way
it has been presented on the injunction application, which may be markedly different
from the way it would be at trial
vii) Public interest; and
- Only when issues of public interest are involved, and not strictly contractual rights
viii) Any other factors affecting the balance of justice and convenience
- Just a signal from the court that this is not an exhaustive list, even though counsel in
arguments (and on a test) will go through list and make headings out of each factor
- These factors are not a formula or checklist…rather, it is a process of assessing all of the
relevant factors at one time and in one unified context reaching a single overall conclusion about
where the balance of convenience rests
- Here, CJ erred in principle when decided that the applicant needed to establish a "prima facie case"
- However, it didn't induce any error in the balance of convenience analysis
R: - The BCCA revises the test for granting an injunction into a 2-part test, with an emphasis on
factors during the balance of convenience analysis and the affect on the status quo
______________________________________________________________________________________
2) UNDERTAKINGS AS TO DAMAGES
- This is a recognition of the extraordinary nature of injunction orders
- It's an undertaking from client to undertake to pay the enjoined party damages as a result of the
injunction when at the end of the case the party asking for it loses at trial
- This rule governed by Rule 45(6):
a) Rule 45 – Injunctions
(6) Undertaking as to damages
- "Unless the court otherwise orders, an order for an interlocutory or interim injunction shall
contain the applicant's undertaking to abide by any order which the court may make as to
damages"
Vieweger v. Rush (1964 SCC)…Counsel must prove damages through an inquiry or an assessment
F: - P was financial backer for Layden, and when Government of Canada called for tenders for
construction of sections of the Trans-Canada highway, P submitted tender under its own name
contemplating Laydon to do the work, as long as they obtained services of company with knowledge to
do excavating through rock and equipment necessary to do so
- Layden contracted with D, who had disputes on site, with Laydon eventually leaving
- D claims it must be paid equipment rentals or that it would remove its equipment…P then applied
and obtained an injunction preventing P from doing so
- TJ held that there was no partnership between D and Laydon, so D was not bound to agreement
between Laydon and P…Court of Appeal disagreed
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I: - Can D get damages flowing from the interim injunction that was granted?
J: - No, for P
A: - Test is whenever the undertaking is given, and the plaintiff ultimately fails on the merits, an inquiry
as to damages will be granted unless there are special circumstances to the contrary
- Here, there are no special circumstances
R: - Court will not assert a bare assertion of damages, but rather a party must prove damages
through inquiry or an assessment
______________________________________________________________________________________
3) MAREVA INJUNCTIONS
- Mareva injunctions are used to prevent a party from taking assets out of the jurisdiction
- This is often called a freezing order, to preserve assets or contested property from being taken out of
the jurisdiction
- Purpose of a Mareva is to ensure that one party doesn't dissipate all of the assets and make
themselves judgment-proof so that the successful applicant is not left with nothing
- This is a harsh and exceptional remedy that should only be available in the clearest of cases
Aetna Financial Services Ltd. v. Feigelman (1985 SCC)…Test: strong pm case with real risk of asset rem.
F: - Pre-Vue went into default under debentures issued and held by Aetna
- Aetna, soon to become a judgment creditor of D, applied for an injunction preventing D from moving
assets out of Manitoba to D's offices in either Toronto or Montreal
- D was in the process of scaling down its operation in Manitoba and it was likely that the defendant
would have moved the assets out of Manitoba even if not for the imminent judgment in favour of P
- TJ and Alta. CA affirmed injunction to prevent this…now appeal
I: - Does moving across provinces constitute moving across a jurisdictional border for the purpose of
granting a Mareva injunction?
J: - No
A: - Estey J. reviews case law, beginning with the Lister Rule established by Cotton J. in Lister:
- "I know of no case where, because it is highly probable if the action were brought the plaintiff
could establish that there was a debt due to him by the defendant, the defendant has been ordered
to give a security till the debt has been established by the judgment or decree"
- Basically, this is the general rule that a plaintiff cannot execute on the assets of the defendant
before judgment has been made
- Estey J. concluded his review of the English case law with a summary of the law in the UK:
a) The plaintiff must demonstrate at least a good arguable case on the matter
- Some cases required the plaintiff to show an indisputable claim against the defendant
b) There must be assets of the defendant in the jurisdiction which are susceptible to execution
c) The defendant may be inside or outside the jurisdiction
d) There must be a real risk that the remaining significant assets of the defendant within the
jurisdiction are about to be removed or so disposed of by the defendant as to render nugatory any
judgment obtained at trial
e) Such orders are available not just to prevent the removal of assets from the jurisdiction, but also
to prevent disposal within the jurisdiction
f) The balance of convenience must be in favour of issuing the order
- Estey J. adopted the English criteria with the modification that in Canada it would be necessary for a
strong prima facie case to be shown
- This is a greater requirement than showing “a good arguable case”
- Estey J. underlined the continued applicability of the Lister Rule:
- "The overriding consideration qualifying the plaintiff to receive such an order as an
exception to the Lister Rule is that the defendant threatens to so arrange his assets as to
defeat his adversary, should that adversary ultimately prevail and obtain judgment"
- This statement clearly requires the plaintiff to show that the purpose of the defendant moving the
assets out of the jurisdiction of the court is to prevent the plaintiff recovering the anticipated
judgment debts
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- The Supreme Court’s restrictive approach was based partly on the fact that there are a number of
statutes which protect the rights of prospective judgment creditors
- It was held that Canadian legislation in this regard is more comprehensive than in the U.K.,
and that the courts should follow statutes where they are provided
- Furthermore, in the U.K. Mareva injunctions are used to prevent removal of assets to far off
lands in which the plaintiff would not easily be able to recover judgment
- However in Canada there are various laws in place to allow recovery across provinces
- Therefore the jurisdictional issues are quite different in the Canadian federal system as compared
to the British unitary system
R: - Therefore, the test for whether to grant a Mareva injunction:
a) P must demonstrate that there is a strong prima facie case
- Must set out the existence of a right and the breach of a right
- Here, applicant failed at this stage
- In Reynolds, not enough evidence that the assets were being moved to avoid judgment
b) Must be assets of D within the jurisdiction susceptible to the execution
- Basically, are there persons in the jurisdiction to whom the assets belong?
- Mareva are an in personum remedy against the party, and it's the person within the
jurisdiction being refrained from dealing with assets elsewhere
c) Must be a real risk that the remaining significant assets are going to be removed from the
jurisdiction or disposed of so as to make any later judgment a nullity
- Counsel must show an imminent risk, not just a mere possibility
- Silver: while court moved away from cautious approach here in Aetna, they still emphasized
that there must be an imminent risk
Reynolds v. Harmanis (1995 BCSC)...Forcing defendant to post security can amount to litigious blackmail
F: - P, BC resident, sues regarding coal venture project failure
- D, a Perth resident/lawyer, lived in BC in 1986-89 when he had a mining venture with P
- P wants injunction, but it would kill D's worldwide business activities
I: - Is a Mareva injunction appropriate?
J: - No, for P
A: - P argues order would cease D's carrying on business, but since claim is only for $1 million, D could
easily post security for the amount since he's rich
- Court disagrees, as while D "wheels and deals", there's only a possibility, not a real risk, that D
would dissipate his assets to frustrate P's claim
- Court concerned with "litigious blackmail", where P requires D to post security in order to get
on with his life and avoid the disastrous consequences of not being able to deal with his assets
- Therefore, here, there was insufficient evidence for such an extreme remedy that D would sell the
house where his wife and son were living in BC
R: - Mareva injunctions are exceptions to the general rule that the court will not order execution
before judgment, and will not issue Mareva injunctions for coercive purposes
Silver Standard Resources v. Joint Stock Co. Geolog (1998 BCCA)…Court prefer flexible approach to MI
F: - P made various loans to Russian company Geolog to get gold in Siberia in return for shares in Geolog
- P now brings action in default and wants/gets Mareva injunction on Cominco on behalf of D so that
money given to Cominco doesn't get paid back to D
- D then applies to get Mareva injunction set aside, and wins, and P appeals
- Note that this is a special context of a Mareva injunction to prevent a debtor paying an existing
creditor money which it is obliged to pay that creditor
- CJ disposed of Mareva injunction here because:
a) Monies wought to be attached by the injunction are owing by Cominco to Geolog and will be
taken to Russia by Geolog in the ordinary course of business
b) There is no evidence of any scheme by Geolog to avoid payment of any judgment that might
be rendered in BC, and
c) The evidence indicates a high likelihood that the rights of a third party, Dukat GOK, and its
workers, will be affected by the Mareva injunction
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I: - Should the Mareva injunction have been set aside?
J: - Yes, for D, CA won't interefere with TJ's discretion
A: - A further complication was that much of the money which Cominco was to pay Geolog was actually
going to be passed on to Dukat, a third party, who Geolog owed money to
- But this was the money that was garnished
- In weighing the balance of convenience and deciding to revoke the order, this negative effect on
the third party was a major factor
- If Dukat was cut off its mining employees, they would starve
- Furthermore the Chambers judge relied on Aetna, and said that there was no evidence that Geolog
was intentionally arranging its affairs to avoid judgement, and so ordered garnishing order cancelled
- CA said that Aetna is the starting point, but that the Aetna court was very cautious.
- Sub Issue – can a payment, to an existing creditor, to reduce a debt be a fraudulent preference under
the fraudulent preference Act? Conflicting views, but seems that the answer is NO, such payments are
not caught by the statute
- However under the bankruptcy act, any payment made within 3 months of initial bankruptcy is
void if you made it to give the paid creditor preference over the other bankruptcy creditors
- Court holds that there are three principles underlying Mareva injunctions:
a) Courts will not permit the course of justice to be frustrated by a defendant taking action to
render future judgment nugatory
b) It is not the purpose of a Mareva injunction to prevent a defendant acting as he would have
acted in the absence of a claim against him
- He cannot be required to reduce his ordinary standard of living or prevented from carrying
on his business in the ordinary way
c) It is not the purpose of a Mareva injunction to render the plaintiff a secured creditor, although
this may be the result if the defendant offers a third party guarantee or bond in order to avoid such
an injunction being imposed
- Many BC cases require intention to defeat judgement to be proved by the D
- But in Mooney, Huddart J.A. took a more “relaxed” approach (don’t be a prisoner of the
formulae) and said that courts should be flexible and should consider:
i) Relative strengths of the parties’ cases.
ii) Evidence of irreparable harm.
iii) Effects on third parties
iv) Factors affecting the public interest.
- Court holds that there is no hard rule that a Mareva injunction won't be granted/continued:
a) Unless evidence D fraudulently intends to defeat D's judgment
b) Where D's proposed payment made in the ordinary course of business
c) Where an injunction would materially and adversely affect an innocent third party
- Don’t use “rules or conditions”, but balance fairness and justice between the parties
- Here, P’s substantive case is strong
- No doubt that if injunction is released then P will not recover if it wins.
- However third parties will be affected, and the TJ did not err in law in following the cautious
approach from Aetna…so the appeal on the Mareva point is dismissed
- However it is noted that Aetna is 15 years old and with increasing globalization of business
the more flexible approach of Mooney should be taken
- It is clear that the CA would have decided the other way but they are obliged to defer to the TJ
unless has been an error of law
R: - In most cases it will not be just or convenient to tie up D’s assets or funds simply to give P
security for a judgment he may never obtain
______________________________________________________________________________________
4) ANTON PILLAR ORDERS
- These and Mareva Injunctions are often made without notice
- They deal with the dissipation of assets, and if you give the defendant notice, they might do exactly
what you are trying to prevent them to do, especially in cases of fraud
- Thus duty of candor and full disclosure to the court are heightened to the highest degree
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- Anton Pillar orders allow (as opposed to stopping) someone to do something
- In effect, it's a civil search warrant which can stop someone from dissipating evidence
- Often used to seize computers to obtain data
- Counsel doesn't get stuff as evidence, but the right to preserve the stuff for trial
- Practically, when an Anton Pillar order is executed, there will often be a baliff, applicant's counsel, and an
independent supervising solicitor dictating what's happening to submit a report to the court
Anton Pillar KG v. Manufacturing Processes Ltd. (1975 HL)…Test AP order: to prevent evidence destroy
F: - 2 employees from English operations discovered that 2 other senior people were in the process of
selling information to German competitors….concern was if they brought an application, not being ex
parte, notice might give them time to destroy the evidence
- So they bring an application for an injunction and they also sought an order to enter the premises to
get the evidence to support their claim
- In this action the main claim was for an injunction to stop the English company violating the patent
rights of the German company
- Judge below granted the interim injunction preventing such infringement but refused to grant the
order to allow inspection and removal of documents from the plaintiffs premises
I: - Was order allowed in this extreme circumstance?
J: - Yes, for P
A: - Lord Denning: This is not a search warrant; it is an order to the defendant to permit you to enter, but
the householder can shut the door in his face and say “Get Out”
- If they chose not to, then they are in contempt of court, and negative inferences may be drawn
when the trial on the original action is heard
- Denning specified the following conditions:
a) It must be essential that the plaintiff have inspection so that justice may be done;
b) There must be a grave danger that if the defendant was forewarned vital evidence would be
destroyed, and
c) The inspection must do no real harm to the defendant or his case
- The defendant has the right to refuse entry…plaintiff may not force its way in, but “must accept
refusal, and bring it to the notice of the court afterwards”
- The plaintiff is also required to make an undertaking in damages
-In this case a bond of £10 000 was required from the plaintiff. P’s solicitor, who is an officer of
the court, should attend the search
- Ormrod L.J. specified his own set of conditions for the order to be granted, which should only be
done when there is no alternative way of ensuring justice:
a) There must be an extremely strong prima facie case;
b) The damage, potential or actual, must be very serious for the plaintiff, and
c) There must be clear evidence that the defendants have in their possession incriminating
evidence, and there is a real possibility of destruction
- Shaw L.J. added that such extreme measures would only be warranted where “the normal processes
of the law would be rendered nugatory if some immediate and effective measure was not available”
R: - Order should only be made where it is essential that P should have inspection so that justice can
be done b/t the parties; and if D were forewarned, there is danger that vital evidence will be
destroyed or removed so that justice will be defeated; and when inspection would do no real harm
to D or his case
______________________________________________________________________________________
5) PRE-JUDGMENT GARNISHING ORDERS
- Like other injunctions, these are exceptionary orders where an applicant can get a court order prior to J
- Allows applicant to have a third party who owes money to the defendant pay that money into court
rather than pay it to the defendant
- Thus the order is actually executed against the third party (garnishee), not the defendant itself
- Purpose, like injunctions, is to preserve funds to ensure that there is sufficient money to satisfy J
- s.3 of Court Order Enforcement Act authorizes pre and post-judgment garnishing orders
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- Post-judgment garnishing orders are also available
- However, once you have judgment, you are a creditor, so it's a creditor's remedy
- Check out the Court Order Enforcement Act, ss. 1-27, as well as Schedule 1, Forms A-F:
a) Court Order Enforcement Act, ss.1-27: (p.1107)
3(2) Attachment procedures and exemptions
- "A judge or a registrar may, on an application made without notice to any person by
(a) a plaintiff in an action, or
(b) a judgment creditor or person entitled to enforce a judgment or order for the payment
of money,
on affidavit by himself or herself or his or her solicitor or some other person aware of the
facts, stating,
- Thus pre/post judgment distinction, with P (pre) and judgment creditor (post)
- Also, similar to injunctive relief purposes to ensure orders aren't circumvented
before being granted, so application can be made without notice
- Thus practically, applicants file application for pre-judgment garnishing order at
the time of notice of claim
- 'c' to 'f' set out requirements in affidavit
(c) if a judgment has been recovered or an order made,
(i) that it has been recovered or made, and
(ii) the amount unsatisfied, or
- Don't worry about this, as it's for post-judgment garnishing orders
(d) if a judgment has not been recovered,
(i) that an action is pending,
(ii) the time of its commencement,
(iii) the nature of the cause of action,
(iv) the actual amount of the debt, claim or demand, and
(v) that it is justly due and owing, after making all just discounts,
and stating in either case
- Must be a liquidated amount (amount owing without need for further
findings of the court as to liability or quantifications of damages)
- Thus most liquidated claims are amounts of debt
- Also must make "all just discounts", so if anything is owing to defendant,
must make that clear
(e) that any other person, hereafter called the garnishee, is indebted or liable to the
defendant, judgment debtor or person liable to satisfy the judgment or order, and is
in the jurisdiction of the court, and
(f) with reasonable certainty, the place of residence of the garnishee,
order that all debts due from the garnishee to the defendant, judgment debtor or
person liable to satisfy the judgment or order, as the case may be, is attached to the
extent necessary to answer the judgment recovered or to be recovered, or the order
made, as the case may be"
- Thus order takes money that garnishee (third party) that they owe to the defendant
and attaches up to the amount claimed to the plaintiff
3(4) Attachment procedures and exemptions
- "An order must not be made under this Part for the attachment of a debt due to an employee
for the employee's salary or wages before a judgment or order for the payment of money has
been obtained against the employee in the proceeding"
- Thus pre-judgment garnishing order cannot attach ot an employee's salary or wages
9(2) Debts bound from time of service of order
- "A copy of the garnishing order must be served at once, or within a time allowed by the
judge or registrar by memorandum endorsed on the order, on the defendant, judgment debtor
or person liable to satisfy the judgment or order"
- Once garnishee has notice or order, they can:
i) Dispute money is owed, or
ii) Pay all they owe into court
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11 When judge may order payment by garnishee with costs
- "If the garnishee does not
(a) at once pay into court the amounts payable for the debts, obligations and liabilities
attached or the amount limited by the garnishing order, and does not dispute the
debts, obligations and liabilities, or one or more of them claimed to be due, owing or
payable from the garnishee to the defendant, judgment debtor or person liable under
the judgment or order for the payment of money, or
(b) appear on notice to the garnishee,
then a judge may order the garnishee
(c) to pay into court the amount appearing due from the garnishee, or as much of it as
may be sufficient to satisfy the principal judgment or order and the costs of the
garnishing proceedings, or an amount estimated to be sufficient to satisfy the
judgment expected to be recovered and costs, and also the costs of the garnishing
proceedings, or
(d) if judgment has been recovered or an order for the payment of money made, to pay
to the person entitled the amount appearing due from the garnishee, or sufficient of it
to satisfy the principal judgment or order, and the costs of the garnishing
proceedings"
- Thus if garnishee doesn't pay or register dispute, under s.11, they can be hit with cost
sanctions…ordinarily, garnishee not responsible for cost of proceedings, but here can
have costs assessed against it
- Defendant can also apply to have garnishing order to be set aside
- Usually, technical defects are not fatal to applicants
- However, here, technical defects in materials can deprive substantial relief because ability to obtain
this impacts D's right to have payment of money owed to them…extraordinary remedy
- Once a garnishing order is lost, you can lose your substantive right on a technicality
Knowles v. Peter (1954 BCSC)…Application of garnishing order must be absolutely perfect with no errors
F: - Debt on chattel mortgage claimed…affidavit must contain a cause of action
I: - Can a technical defect kill a garnishing order?
J: - Yes
A: - Debt for chattel mortgage is not a cause of action as it provides a form of security and court won't
guess what the defect meant
R: - The attachment of debts before judgment is an extraordinary process which requires
meticulous observance of the requirements of the statute, and thus the application for the
garnishing has to be absolutely perfect with no errors
______________________________________________________________________________________
II. INTERLOCUTORY PROCEDURES
1) INTERLOCUTORY APPLICATIONS
- If discovery/examination process occurs co-operatively, process going from the issuing of a writ to trial
can happen without going to court
- However, this requires "reasonable" and co-operative counsel
- When issues arise between the parties, the intervention of the court is needed, and interlocutory
applications are brought
- Today is about how to bring the following applications and the rules governing them
- There are a number of interlocutory applications that we have seen throughout the course so far:
a) Pleadings
- Application for further and better particulars
- Application to amend pleadings or strike pleadings
- Application for substituted service or serve outside the jurisdiction
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- Application to add or substitute a party
- Application for renewal of a writ
- Order for severance and/or consolidation (R.5(6) and R.5(8))
- Certify a proceeding of a class proceeding, including all applications
- Leave to commence a third party proceeding
- Application to set aside a third party notice
b) Discovery and Inspection of Documents
- Delivery of documents
- Swearing an affidavit to verify your list of documents
- Seeking documents from somebody who isn't a party to the application
- Applications over privilege and seeking production on basis that privilege is not valid
c) Examinations For Discovery
- Application for ruling on objections over discovery
- Application to substitute another corporate representative
d) Others
- Rule 6 – commencement of proceedings by person under disability by his/her guardian
- Rule 2 – application in cases of non-compliance
- Most interlocutory applications in Rule 44 include the applications listed above dealing with the conduct
of the litigation governed by other Rules of the Supreme Court
- An interlocutory application is not a final order; it maintains the status quo of the parties and deals with
the conduct of the action, rather than a final order that determines the rights and status of the parties
- This distinction between interlocutory applications and final orders is important because:
a) Leave to Appeal
- With interlocutory orders, you must have leave to appeal
b) Nature of Evidence
- Interlocutory applications can rely on hearsay, but not with final orders
c) Jurisdiction
- Master v. Chambers Judge
- Interlocutory applications are made in Chambers with one exception: proceeding by way of desk order
- With requisitions, you submit to the registry, which is then considered by a Master
- It must be a matter that is consented to and one where notice is not required (see R.44(2))
- If those conditions are satisfied, the Master will grant the desk order without hearing from counsel
- ie: situations where there is no other party affected by relief P is seeking
- A party brings an interlocutory application by way of notice of motion
- Purpose of notice of motion is a notice by one party to all other parties that they party intends to
make an application for the order described in the motion
- A notice of motion must contain 3 things:
a) Rule
- You must expressly state rule, action, and/or relief you are relying on
b) Documents
- You must also set out affidavits and any other documents you use to support the motion
- "Other" documents can be pleadings, transcripts, previous reasons for judgment, ect…
c) Time
- You must estimate the time the application will take
- Once this is done, you must serve the other side with notice as well as any other party whose interests
may be affected by the action
- There are some exceptions (ie: R.52(12)), but ordinarily, always think about who needs to get served
- After being served, the party must file and serve a response if they wish to contest the motion
- Must state out which parts of the relief are opposed or consented to, and on what terms
- Also similar requirements for setting out affidavits/other documents and time estimates
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- One applicant receives the response, they have the opportunity to reply to the respondent with affidavits
under R.44(8)…but this should be the end of it according to R.44(9)
- Interlocutory applications are governed by a number of rules:
a) Rule 44 – Interlocutory Applications
(1) How interlocutory application must be brought
- "If an application in a proceeding is authorized to be made to the court, it must be made by
interlocutory application"
- R.1(8): "Proceeding" means an action, suit, cause, matter, appeal or originating application
(2) Interlocutory application by consent or if notice not required
- "An interlocutory application referred to in Rule 41 (16), (16.1) or (16.3) may be made in
accordance with that rule"
(3) Notice of motion
- "Subject to subrule (2), a party wishing to bring an interlocutory application must file a
notice of motion in Form 55 at or before the time at which the notice of hearing is filed
under Rule 51A"
- Bache Halsey: A notice of motion must specify exactly what you are seeking
(4) More than one matter may be included
- "A party may include, in one application, claims for relief in respect of more than one
matter"
(5) Service or delivery
- "Unless these rules provide otherwise, the applicant must deliver to each party of record and
must serve on each other person, other than a party, who may be affected by the order sought
(a) a copy of the notice of motion,
(b) a copy of each affidavit in support of the application that has not already been filed
and served, and
(c) any notice that the applicant is required to give under Rule 18A (6)"
(6) Response
- "A person who receives documents under subrule (5) and who wishes to receive notice of
the time and date of the hearing of the application or who wishes to respond to it must deliver
to the applicant 2 copies, and to every other party of record one copy, of
(a) a response in Form 124,
(b) each affidavit that has not already been filed and served on which the respondent
intends to rely, and
(c) any notice that that person is required to give under Rule 18A (6)"
(7) Time for response
- "A person who wishes to receive notice of the time and date of the hearing of the application
or who wishes to respond must deliver the documents referred to in subrule (6),
(a) if the application is for final judgment under Rule 18A, on or before the 11th day
after the delivery of the notice of motion, or
(b) in any other case,
(i) if the person is a party, on or before the 8th day after the later of
(A) the last date fixed for entry of appearance, and
(B) the date on which the notice of motion was delivered to the party, or
(ii) if the person is not a party, on or before the 8th day after the date on which the
notice of motion was served on the person"
(8) Reply by applicant
- "An applicant who wishes to respond to any document provided under subrule (6) must, no
later than the date on which the notice of hearing is delivered to the respondent in accordance
with Rule 51A, deliver any affidavits in reply to each person who delivered a response under
subrule (6)"
- This should be the end of the process…therefore no back-and-forth, back-and-forth
(9) No additional affidavits
- "Unless all parties of record consent or the court otherwise orders, a party must not deliver
any affidavits additional to those delivered under subrules (5), (6) and (8)"
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- Leave of the court here will be rare, and only in meritorious cases where exclusion of the
additional evidence would lead to injustice
(10) Place of hearing of application
- "The application may be heard at
(a) the place ordered by the registrar under subrule (14),
(b) if an order is not made under subrule (14), the place on which all parties of record
have agreed, or
(c) if paragraphs (a) and (b) do not apply, a place at which the court normally sits in
the judicial district in which the proceeding was commenced"
(11) Place of hearing must be stated
- "The applicant must state on the notice of motion the place at which the application will
be heard"
(12) If more than one place
- "If there is more than one place within the judicial district referred to in subrule (10) (c) at
which the court normally sits, the applicant may name, as the place for hearing, any of those
places"
b) Time – Interpretation Act and Rule 3(1) – Time
i) Interpretation Act – Section 25 – Calculation of time or age
(1) - "This section applies to an enactment and to a deed, conveyance or other legal
instrument unless specifically provided otherwise in the deed, conveyance or other legal
instrument"
(2) - "If the time for doing an act falls or expires on a holiday, the time is extended to the
next day that is not a holiday"
(3) - "If the time for doing an act in a business office falls or expires on a day when the office
is not open during regular business hours, the time is extended to the next day that the
office is open"
(4) - "In the calculation of time expressed as clear days, weeks, months or years, or as "at
least" or "not less than" a number of days, weeks, months or years, the first and last days
must be excluded"
- Note that if you need 7 days notice, and it takes place on Monday, serving on the
preceding Monday is not enough
(5) - "In the calculation of time not referred to in subsection (4), the first day must be
excluded and the last day included"
- Therefore, general rule is don't count the first day but count the last day
(6) - "If, under this section, the calculation of time ends on a day in a month that has no date
corresponding to the first day of the period of time, the time ends on the last day of that
month"
(7) - "A specified time of day is a reference to Pacific Standard time, or 8 hours behind
Greenwich mean time, unless Daylight Saving time is being used or observed on that
day"
(8) - "A person reaches a particular age expressed in years at the start of the relevant
anniversary of his or her date of birth"
ii) Interpretation Act – Section 29 – Expressions Defined
"holiday" includes
(a) Sunday, Christmas Day, Good Friday and Easter Monday,
(b) Canada Day, Victoria Day, British Columbia Day, Labour Day, Remembrance Day
and New Year's Day,
(c) December 26, and
(d) a day set by the Parliament of Canada or by the Legislature, or appointed by
proclamation of the Governor General or the Lieutenant Governor, to be observed as
a day of general prayer or mourning, a day of public rejoicing or thanksgiving, a day
for celebrating the birthday of the reigning Sovereign, or as a public holiday;
iii) Rule 3 – Time
(1) Computation of time
- "Unless a contrary intention otherwise appears, the computation of time under these
rules or in an order of the court is governed by the following provisions:
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(a) if a period of less than 7 days is prescribed by these rules or the order, holidays
shall not be counted;
- See Interpretation Act, s.29, for definition of "holiday", as it includes
Sunday (ie: 2 days notice required for Monday = serve on Thursday)
(b) service or delivery of documents effected after 4 o'clock in the afternoon shall
be deemed to have been effected on the next day that is not a holiday"
- Therefore 4pm is the cut-off time
- The next case highlights the importance of notice
Bache Halsey v. Charles (1982 BCSC)…Notice of motion must specify exactly what you are seeking
F: - 2 orders were made…1st order struck out improper defence of D, and 2 nd order granted default J,
which wasn't expressly sought in the original application
- D now asks to have the default J not applied/not enforced against him, as he had no notice of it
I: - Is the second order for a default judgment an irregularity or a nullity?
J: - For D, it's a nullity, but first order still stands
A: - Court gives 2 reasons for it being declared a nullity rather than merely an irregularity for a breach of
the rules:
a) Judgment given without notice to D
b) D deprived of his right to be heard in court
- However, D just can't avoid the nullity…he must apply for a declaration that the order is void
- Demonstrates that P must expressly state the relief sought on their notice of motion
R: - Judgment given without notice is contrary to the rules of natural justice and capable of being
declared a nullity since it deprives the defendant of his right to be heard
______________________________________________________________________________________
2) CHAMBERS
- There is a difference between court and chambers, as in chambers:
- Evidence is typically in affidavits
- There is no pre-trial discovery
- Lawyer controls the date, as opposed to having to ask for a date in court
- Lawyer's don't wear their robes
- No court reporters, as the clerk will write everything down
- Chambers is becoming more and more common in litigation departments these days
- Generally, evidence is adduced by way of affidavit with exceptions of R.52(8), which take the place
of direct evidence of witnesses
- s.52(8) exceptions allow party to bring witnesses into court or before court reporter when affidavit
evidence is contested on material points crucial to the case
- Chambers hears all applications for summary judgment (R.18 and R.18A), pre-trial conferences, case
management conferences, originating applications (petitions), and interlocutory applications
- Under Rule 51, the court can grant the relief sought in whole or in part, or dispose of any question that
arises on the application (in contrast with Charles), adjourn the application, or order a trial of the
proceedings generally or of an issue (R.52(11)(d))
- Rule 51A, being applications in Chambers generally, sets down how they are set down for hearing and the
actual exchange of material necessary to do that (see Chart handout)
- Introduced in 1981, and purpose of rule was to narrow and define issues as between the parties
- Parties must exchange an outline if application opposed and will be more than 30 minutes (Form 125
and Rule 51A(12)(a))
- Once materials have been exchanged, counsel settles on an available date, and then the application to
setting down a date for hearing is set
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- There are 3 kinds of applications (see Flowchart):
a) Applications 30 minutes or more but less than 2 hours
- Parties must each prepare an outline, and applicant must deliver outline, reply affidavits, and
notice of hearing 7 clear days before the date set for the hearing
- Also, applicant must prepare a Chambers record (see R.51A(12)(c))
- There is also a provision for a joint motion
b) Applications over 2 hours
- Same rules apply (prepare outline, Chambers record, ect…)
- However, as a practice directive (not in Rules…set by CJBCSC), Chambers record must also
include a written argument and a list of authorities
- Also, according to R.51A(6), date for hearing of this application must be fixed with Registrar
c) Applications under 30 minutes
- No need for outline, but judges prefer it and there is a practice directive to that effect
- No need to prepare a Chambers record
- Rules for Chambers include:
a) Rule 52 – Chambers
(1) Applications to be heard in chambers
- "All originating applications and, unless made in the course of trial, all interlocutory
applications, shall be heard and disposed of by the court in chambers"
(4) Failure of party to attend
- "If a party to an application fails to attend, whether on the return of the application or at the
time appointed for the consideration of the matter, the court may proceed if, considering
the nature of the case, it thinks it expedient to do so, and may require evidence of service it
thinks necessary"
- Provided that service was done and there's no dispute as to the hearing date, the court
will usually go on in the other side's absence under this rule
(8) Evidence on an application (important)
- "On an application, evidence shall be given by affidavit, but the court may
(a) order the attendance for cross-examination of a deponent, either before the court or
before another person as the court directs,
- More often done in front of a court reporter than before the court
- Since rule states 'may', cross-examination is discretionary, court will only
grant leave for cross-examination of a deponent if:
i) There are material facts in dispute that are denied by the deponent
ii) Cross-examination must be relevant in a way where it might affect the
outcome of the application
iii) Must serve a useful purpose in eliciting evidence that will assist in
determining the issue
- Obligation to produce deponent is on party who tenders their affidavit
- Thus parties must ensure witnesses available and ready for examination
- Scope of an examination here is limited, as opposed to the broad scope under
examinations for discovery
- Limited to matters that arise on the application
- Finally, re-examination is allowed by counsel
(b) order the examination of a party or witness, either before the court or before another
person as the court directs,
- This allows examination of a person who need not be deponent of an affidavit
- Useful where there is material evidence from a person who isn't co-operating
and refuses to swear on an affidavit
- Be careful with this subrule, as if they are not co-operating, they will be a
hostile witness, so must make sure their evidence is crucial to the case
(c) give directions required for the discovery, inspection or production of a document or
copy thereof,
- This is simply an expansion of document discover under Rule 26
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(d) order an inquiry, assessment or accounting under Rule 32, and
(e) permit other forms of evidence to be adduced"
- Nichols v. Grey: Statements by council as to evidentiary matters may be permitted
as "other forms of evidence to be adduced"
(11) Power of the Court
- "On an application the court may
(a) grant or refuse the relief claimed in whole or in part, or dispose of any question
arising on the application,
(b) adjourn the application from time to time, either to a particular date or generally, and
when the application is adjourned generally, a party may set it down on 2 days'
notice for further hearing,
(c) obtain the assistance of one or more experts, in which case Rule 32A applies, and
(d) order a trial of the proceeding, either generally or on an issue, and order pleadings to
be filed, and may give directions for the conduct of the trial and of pre-trial
proceedings, and for the disposition of the application"
- Leaves court discretion that matter may be determined on summary basis
- Thus can convert a petition into an action if there is a bona fide triable issue
- To show this, must show 3 things:
i) Must be facts in dispute
ii) Resolution of disputed facts must lead to resolution between the parties
iii) Resolution will determine the outcome of the issue
- Things court will consider between petition/summary under this subrule is:
- Whether it will lead to a multiplicity of proceedings
- Avoiding unnecessary costs or delay…if petition is more efficient, it will
be followed as long as it does not lead to injustice
- Whether the issues require determination of demeanor and credibility
- Need to have a full grasp of all of the evidence
- Whether judge believes discovery will advance case between the parties
- Usually reserved for cases where there are serious issues in dispute as revealed
by the affidavit
b) Rule 51A – Setting Down Applications For Hearing
(1) Application of this rule
- "This rule applies to originating and interlocutory applications"
(2) Definitions
- "In this rule:
"applicant" means a person bringing an originating and interlocutory application;
"court day" means a day on which the registry is open;
"respondent" means a person who has delivered a response in Form 124"
(3) Setting application for hearing
- "An applicant wishing to set an application down for hearing must file
(a) 2 copies of a notice of hearing in Form 126,
(b) the original notice of motion, if not already filed, and
(c) 2 copies of one of the following documents setting out or marked up in such a way as
to indicate the relief that is to be sought at the hearing:
(i) a requisition;
(ii) the notice of motion or the claim for relief in the petition, as the case may
be"
(4) When notice of hearing must be filed
- "Except as provided for by subrule (12) (f), a notice of hearing must be filed,
(a) in the case of an application without notice or an application to be made by
consent, at any time before the hearing of the application, and
(b) in any other case, at any time before noon on the day before the date set for the
hearing of the application"
(5) Date and time of hearing
- "The hearing must be set for 9:45 a.m. on a date on which the court holds chambers or at
such other time or date as has been fixed by the court or a registrar"
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(6) Date and time if hearing time more than 2 hours
- "If the application is estimated to take more than 2 hours, the date and time of hearing must
be fixed by the registrar"
- If matter is less than 1 hour, both sides agree to show up at Chambers and hope to get in
- If over 1 hour, must go and hopefully reserve a time on the day you show up
- If over 2 hours, must reserve a time for a hearing with the Registrar in advance
(7) Notice of hearing to be delivered to respondents
- "The notice of hearing, whether filed or unfiled, must be delivered to each respondent in
accordance with subrule (8) unless the application is to be made without notice or is to be
made by consent"
(8) Time for delivery of notice of hearing
- "The applicant must deliver the notice of hearing to each respondent,
(a) if the applicant or any respondent has estimated that the time required for the hearing
of the application will be more than 30 minutes, at least 7 clear days before the
date set for the hearing, or
(b) in any other case, at least 2 clear days before the date set for the hearing"
(9) Documents to be filed with the notice of hearing if application is without notice
- "If the application is to be made without notice, the applicant must file, with the notice of
hearing, the original of every affidavit, and of every other document, that
(a) has not already been filed in the proceeding, and
(b) is to be referred to at the hearing"
(10) Documents to be filed with the notice of hearing if application is by consent, unopposed
or estimated to take not more than 30 minutes
- "If the application is to be made by consent, will be unopposed, or will be opposed but is not
estimated by the applicant or by any respondent to take more than 30 minutes, the applicant
must file, with the notice of hearing and other documents referred to in subrule (3),
(a) the original of every affidavit, and of every other document, that
(i) is delivered by the applicant to a respondent with respect to the application, and
(ii) is to be referred to at the hearing, and
(b) a copy of every response, affidavit and other document that
(i) was delivered by a respondent to the applicant with respect to the application,
and
(ii) is to be referred to at the hearing"
(11) Documents to be filed by respondent if application is opposed
- "If the application will be opposed, each respondent must, before the hearing commences,
file the original of every affidavit, and of every other document, that
(a) was delivered by that respondent to the applicant with respect to the application, and
(b) is to be referred to at the hearing by that respondent"
(12) Procedure if the application is estimated to take more than 30 minutes
- "If the application will be opposed and the applicant or any respondent has estimated that the
time required for the hearing of the application will be more than 30 minutes,
(a) the applicant and each respondent must prepare an outline in Form 125 and
(i) the applicant must deliver the applicant's outline to each respondent with or
after delivery of the applicant's reply affidavits and at least 7 days before the
date set for the hearing, and
- This must set out relief and basis for seeking the relief, including relevant
case law
(ii) each respondent must deliver that respondent's outline to the applicant and to
each other respondent at least 2 days before the date set for the hearing,
- This must set out relief and basis for opposing the relief, including
relevant case law
(b) the applicant must compile a chambers record in a ring binder or in some other
form of secure binding,
(c) the chambers record must contain, in consecutively numbered pages, or separated by
tabs, the following documents in the following order:
(i) a title page bearing the style of proceeding and the names of counsel;
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(ii) an index;
(iii) a copy of the applicant's outline;
(iv) a copy of the outline of each respondent;
(v) a copy of the petition or notice of motion, as the case may be;
(vi) a copy of each response in Form 124;
(vii) a copy of every affidavit, and of every other document other than a written
argument, that is to be referred to at the hearing,
(d) the chambers record may contain any of the following:
(i) a draft order;
(ii) a written argument;
(iii) a list of authorities;
(iv) a draft bill of costs,
(e) the chambers records must not contain
(i) affidavits of service,
(ii) copies of authorities, including case law, legislation, legal articles or excerpts
from text books, or
(iii) any other documents unless they are included with the consent of all the parties.
(f) the applicant must file, with the notice of hearing and other documents referred to
in subrule (3), between 9:00 a.m. on the second court day before, and noon on
the day before, the date set for the hearing, or within any other time period set by
the Chief Justice by practice direction in relation to the registry in which the filing
must occur,
(i) the original of every affidavit, and of every other document, that
(A) was delivered by the applicant to a respondent with respect to the
application, and
(B) is to be referred to at the hearing, and
(ii) the chambers record, and
(g) the applicant must deliver a copy of the chambers record index to each respondent by
noon of the court day before the date set for the hearing"
(13) If respondent's application is to be heard at the hearing
- "If a respondent intends to bring on an application for hearing at the same time as the
applicant's application and the applications together are estimated by any party to take more
than 30 minutes to hear, subrule (12) applies and the parties must, so far as is possible,
prepare and file a joint chambers record and agree to a date for the hearing of both
applications"
Nichols v. Gray (1978 BCCA)…"Other forms of evidence" may be opinion statements of counsel
F: - P's are patient/husband, and claim that a doctor failed to diagnose him with an infection developed
under his care, resulting in further injury
- D, the doctor, appeals CJ's decision to make an order to dispense with a jury trial
- Affidavit evidence wasn't in dispute…opinion evidence of counsel about what evidence will be
adduced at trial was in dispute
- D claims CJ didn't consider the opinion evidence of counsel, so he had an insufficient basis to dismiss
the application…CJ claimed it didn't provide an adequate foundation to make a finding of fact
I: - What other evidence is acceptable under R.52(8)(e) "other forms of evidence to be adduced"?
J: - For P, D's appeal dismissed
A: - There are 3 main judgments, all agreeing with the result
a) Craig J.A.
- Purpose of R.39(27) regarding jury dismissal is that the chambers judge has a discretionary
power on an application under the rule
- Nothing in present rules precludes chambers judge from considering statements of counsel
on an application of this kind even though they related to evidentiary matters
- Onus on D to satisfy judge that he should make the order, and CJ decides what weight to
give to the evidence, including opinion evidence
b) Lambert J.A.
- Breaks up analysis into 2 stages:
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i) Stage 1 – CJ must make findings of fact based on evidence
ii) Stage 2 – If made, CJ can exercise discretion based on findings of fact
- Holds that CJ decided there was insufficient evidence to enable him to make a finding of
fact that is a prerequisite to his jurisdiction to exercise his discretion
c) Seaton J.A.
- Here, there was usual material for an application of this sort and that a decision was made
- CJ didn't conclude that there was no basis to exercise discretion, but that there was no basis
in fact to enable him to exercise his discretion in favour of the applicant
- B: Everything that is needed to support an affidavit should be included in the application, and the
statements of counsel should only be used to support/amplify that application
- Court will not rely on unsworn statements of counsel on a very significant issue
- Therefore, don't rely on Nichols in whole
R: - Unsworn evidence by counsel may be admitted as "other forms of evidence to be adduced"
under Rule 52(8)(e)
______________________________________________________________________________________
3) AFFIDAVITS
- An affidavit is a written statement of evidence sworn and given by a deponent before a person who is
authorized to take the sworn evidence
- Court relies on affidavits in the same way as they rely on oral testimony
- Thus affidavits are a substitute for live viva voce evidence
- Counsel has a professional obligations to ensure that the affidavit represents the true version of the story
- Counsel can ask certain pointed Q's, but can't put the evidence in a different light
- Don't use legal language and don't get client to testify to something they don’t know
- Review affidavit with deponent afterwards to make sure that it is their sworn truth
- Only obtain affidavits from witnesses for trial for a specific person and not merely to bind a witness
- They should be concise and tell the story in a logical way that can be persuasive
- Counsel should generally avoid swearing affidavits themselves, as Professional Conduct Handbook
contains two rules regarding the testimony of counsel:
a) Rule 9
- Unless evidence relates to a formal matter, a lawyer that gives affidavit or viva voce
evidence in a proceeding may no longer be allowed to act in that proceeding
b) Rule 10
- A lawyer that was a witness cannot be an advocate in an appeal to that decision
- A lot of rules govern affidavits:
a) Rule 51 – Affidavits
(1) Affidavit to be filed
- "An affidavit used in a proceeding must be filed"
(2) Form and content of affidavit
- "An affidavit must
(a) must be expressed in the first person and show the name, address and occupation of
the deponent,
- CJOR: multiple deponents can't happen anymore under current rules
(b) if the deponent is a party or the solicitor, agent, director, officer or employee of a
party, must state that fact,
- Thus must state relationship of the deponent to the parties
(c) must be divided into paragraphs numbered consecutively, and
(d) may be in Form 60"
(3) Making affidavit
- "An affidavit is made when
(a) the affidavit is sworn or affirmed by the deponent,
- Note difference between swearing and affirming
(b) the deponent
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(i) signs the affidavit, or
(ii) where the deponent is unable to sign the affidavit, places his or her mark on it,
and
(c) the jurat of the affidavit is signed by the person before whom it is sworn or affirmed"
- Counsel should ask 3 Q's to the deponent: have you read this affidavit, do you understand it,
and do you swear it to be true?
- Also confirm the identity of the deponent (ID), and warn of potential for cross-examination
- After this, counsel sign the jurat, and must sign each of the exhibits attached to the affidavit
(7) Exhibit to be marked
- "An exhibit referred to in an affidavit must be identified by the person before whom it is
made by signing a certificate placed on the exhibit in the following form:
This is Exhibit .......... referred to in the affidavit of .............................. made before me on
.................... [date]"
(10) Contents of affidavit
- "An affidavit may state only what a deponent would be permitted to state in evidence at a
trial, except that, if the source of the information is given, an affidavit may contain
statements as to the deponent's information and belief, if it is made
(a) in respect of an application for an interlocutory order, or
(b) by leave of the court under Rule 40 (52) (a) or 52 (8) (e)"
- General rule: regarding hearsay, any evidence you can give at trial is permissible in an
affidavit, as long as source of the info given and is in respect of an interlocutory application
- Since only permitted to state evidence admissible at trial, affidavits can't contain evidence
not relevant at trial, irrelevant opinions, arguments, ect…
- Note direct evidence will always be more persuasive than hearsay, even though it's allowed
(11) Use of defective affidavit
- "With leave of the court an affidavit may be used in evidence notwithstanding an irregularity
in form"
- Thus if you don't comply, you may be able to rely on it depending on the seriousness of
the irregularity and the seriousness of the application
- Authority to strike out affidavit is based on both the inherent jurisdiction of the court
and R.19(24), which allows the court to strike out any document
- The next case demonstrates the consequences of failing to state the sources of hearsay…
Tate v. Hennessey (1901 BCCA)…Affidavit will be inadmissible if grounds of info or belief aren't stated
F: - P wanted injunction to restrain D from alienating their interest, as D held 5/8 interest in BC mineral
claims in trust for P…P made application to issue a writ for service ex juris, but denied, now appeals
- CJ set aside original order because the affidavit didn't state grounds of info/belief and didn't show a
good cause of action on the merits
- A argues personal knowledge must be good until cross-examination and affidavits to the contrary
- R argues several affidavit statements weren't in P's knowledge and P didn't give the source of them
I: - Can an affidavit be admissible based on hearsay?
J: - No, for P (unless source is given), entire order is set aside
A: - Affidavit didn't disclose COA
- Also, though deponent used positive language, many of the essential points were founded upon his
information and belief only, and the grounds thereof weren't stated
R: - A person who gives a statement on information and belief must give the source of that
information or belief
Re CJOR Limited (1965 BCCA)…Affidavits can't be sworn by two people; each paragraph must be clear
F: - D are minority shareholders in Vancouver radio station CJOR, and bring a petition to replace the
present board of directors with a new board
- R argues affidavit is defective, as they claim they can't tell which deponents (there were many) know
what, or which facts they know v. which facts were given to them by their solicitor
I: - Is the affidavit admissible?
78
J: - No, for R, petition dismissed
A: - There were two problems with this affidavit:
a) Affidavit can't be sworn by two people
b) Source of information and belief must be given
- Deponents must identify which paragraph is known fact and which is based on info/belief
- A relies on case dealing with windup provisions of the English Companies Act
- However, that Act is distinguishable from the BC Act, as it prescribes a form of affidavit
allowing the verification of the petition without the necessity of stating the source of info/belief
- Here, no statutory provision is available to the application as under the English winding-up rules
- Court also notes that court must exercise greater care where the application is a final one, as here, as
opposed to interlocutory orders
- B: proper affidavit in support of a petition should mirror the facts in a petition, and this case shows
the consequences of the failure to do this
R: - In affidavits where information and belief are allowed, failure to state the source of information
and belief is not a mere technicality
______________________________________________________________________________________
4) MASTERS
- There are also many rules in regards to masters, who have the same jurisdiction as a Chambers Judge
subject to the Rules/enactment or unless the CJBCSC orders otherwise
- Thus they are creatures of statute under the Supreme Court Act, s.11(7), which gives CJSC power to
appoint Masters
- A practice directive expressly excludes areas of master's jurisdiction
- Also, there's a practice notice to the profession (p.691 of Annual Practice) stating what final orders
are subject to a master's jurisdiction
- 4 notes regarding masters compared to Chambers Judges:
- Masters have no inherent jurisdiction and thus they can't make final orders
- ie: R.18A applications for a summary trial that makes final determinations of law and facts
which change the rights/interests of the parties
- Masters hear almost all interlocutory applications
- An appeal from a Master is to the BCSC, not the BCCA
- Under R.53(7), an applicant has 14 days to appeal a Master's decision as opposed to 30 days from a
BCSC judge
- Relevant rules include:
a) Rule 53 – Masters, Registrars, and Special Referees
(1) Powers of a master
- "A master hearing an application has the powers of the court set out in Rule 52 (4) to
(12.3)"
(2) Master as registrar
- A master has the powers and jurisdiction of a registrar under these rules"
(3) Powers of a master in estates
- "A master has the powers of the court to dispose of all non-contentious business in the
administration of estates"
(5) Reference by master to judge
- "If a matter appears to the master proper for the decision of a judge, the master may refer it
to a judge, and the judge may either dispose of the matter or refer it back to the master with
directions"
(6) Appeal from master, registrar or special referee
- "A person affected by an order or decision of a master, registrar or special referee may
appeal the order or the decision to the court"
(7) Idem
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- "The appeal may be by way of summary reference from the master, registrar or special
referee at the request of a party or by filing a notice of appeal in Form 61 within 14 days after
the order or decision complained of"
Public Trustee v. Batiuk (1995 BCSC)…Jurisdiction of masters limited
A: - Here, no power to hear and decide a contested inquiry into mental capacity of alleged incompetent
- Based on CJBCSC's Practice Direction: "A master shall not exercise jurisdiction…(5) in any matter
relating to criminal proceedings or the liberty of the subject"
R: - Masters do not have authority nor jurisdiction in any matter relating to liberty of an individual
______________________________________________________________________________________
5) PARTICULARS
- Parties are required to plead the material facts on which their claims are based
- When you plead certain causes of action, you must provide full particulars (see R.19(11))
- G.W.L.: there are 6 purposes of particulars:
a) To inform the other side of the nature of the case they have to meet
b) To prevent the other side from being taken by surprise at trial
c) To allow you to prepare evidence in advance and prepare for trial
d) To limit generality of pleadings
e) To limit and decide issues to be tried for the purposes of examination and discovery, and
f) To tie the hands of other side so they can't broaden the issue later
- Overlap in purposes for discovery, but particulars are not intended to provide the party seeking particulars
with information as to how a particular fact is to be proven at trial
- Rather than info on means of proof, it seeks info about the material facts relied on by the party
- Power to grant order for particulars is discretionary
- Court will look at stage of pleadings and ask if particulars are necessary in order to meet 6 purposes
- No set rule as to when to apply for particulars
- Many interlocutory procedures have to do with particulars:
a) Rule 19 – Pleadings Generally
(11) Where particulars necessary
- "Where the party pleading relies on misrepresentation, fraud, breach of trust, wilful
default or undue influence, or where particulars may be necessary, full particulars, with
dates and items if applicable, shall be stated in the pleading. If the particulars of debt,
expenses or damages are lengthy, the party may refer to this fact and instead of pleading the
particulars shall deliver the particulars in a separate document either before or with the
pleading"
- Note that these COA's are pretty serious and that "where particulars may be necessary"
is left deliberately broad to include other COA's
(12) Particulars in libel or slander
- "In an action for libel or slander,
(a) where the plaintiff alleges that the words or matter complained of were used in a
derogatory sense other than their ordinary meaning, the plaintiff shall give
particulars of the facts and matters on which the plaintiff relies in support of
that sense, and
(b) where the defendant alleges that, in so far as the words complained of consist of
statements of fact, they are true in substance and in fact, and that in so far as they
consist of expressions of opinion, they are fair comment on a matter of public
interest, the defendant shall give particulars stating which of the words complained
of the defendant alleges are statements of fact and of the facts and matters relied on
in support of the allegation that the words are true"
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(16) Order for particulars
- "The court may order a party to deliver further and better particulars of a matter stated in a
pleading"
G.W.L. Properties Ltd. v. W.R. Grace & Co. of Canada (1993 BCSC)…Material facts v. means of proof
F: - P, owners of office towers, as well as third party, sues the asbestos installer
- D claims that P knew of the nature of insulation and existence of alternatives because they, or their
predecessor, were given advice on the matter about 30 years ago as well as other means
- After discovery, P demands further particulars for more complete statements of facts for trial
- D claims that the demand seeks only evidence and the mode by which material facts will be proven
I: - Should these particulars be regarded as material facts or as evidence?
J: - For P, further particulars should be given as matters were only material facts that D would need to
prove in order to argue it's case
A: - D's argument is that they've pleaded means of knowledge and nothing more, otherwise they would
plead evidence or the mode by which material facts are proven
- However, court holds that P only wants facts D relies on for a successful defence, not the
evidence by which those facts will be proven
- ie: with advice 30 years ago, P seeks facts D must prove, such as what the advice was and when
and by whom the advice was given…they do not seek evidence by which those facts will be
proven, testimony by the persons who have been given, and other modes of proof
- Again reiterates that a party does not have to plead evidence, only facts, and the line between material
facts and evidence is very gray
- The fact that what is sought may be obtained on discovery is irrelevant as to whether particular
application will be granted
- Particulars will be part of pleadings, and purposes of discovery and particulars are different
R: - Delivery of further and better particulars is primarily discretionary and depends on the facts of
each case
______________________________________________________________________________________
6) PRE-TRIAL EXAMINATION OF WITNESS
- This is the oral equivalent of Rule 26(11), and otherwise known as a deposition
- Provided as a purely investigatory technique to permit examination of an uncooperative witness
- ie: if a person agrees to give a responsive statement, you can't do a deposition
- Only provides information and material facts, not admissions to be read in at trial
- In UK, this isn't allowed…in USA, there's unlimited scope
- Canada has a middle ground, as examination isn't a legal right, but rather is granted with leave of the
court, and court will guard against abuse
- In practice, they're relatively rare, especially in commercial practice
- Test for successful application is in R.28(3)
- Rules are different for expert witnesses as counsel pay a witness to undertake work and provide opinions
- Test for an expert is more stringent and places a higher obligation…see R.38 on depositions as well
- There is one main rule regarding pre-trial examination of witnesses:
a) Rule 28 – Pre-Trial Examination of Witness
(1) Order for
- "Where a person, not a party to an action, may have material evidence relating to a matter
in question in the action, the court may order that the person be examined on oath on the
matters in question in the action and may, either before or after the examination, order that the
examining party pay reasonable solicitor's costs of the person relating to the application and
the examination"
(2) Expert
- "An expert retained or specially employed by another party in anticipation of litigation or
preparation for trial may not be examined under this rule unless the party seeking the
examination is unable to obtain facts and opinions on the same subject by other means"
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(3) Affidavit in support of application
- "An application for an order under subrule (1) shall be supported by affidavit setting out
(a) the matter in question in the action to which the applicant believes that the evidence
of the proposed witness may be material,
(b) where the proposed witness is an expert retained or specially employed by another
party in anticipation of litigation or preparation for trial, that the applicant is
unable to obtain facts and opinions on the same subject by other means, and
(c) that the proposed witness has refused or neglected upon request by the applicant
to give a responsive statement, either orally or in writing, relating to the witness'
knowledge of the matters in question, or that the witness has given conflicting
statements"
- Thus, absent experts, must prove that matter is material and there's been a refusal
- Johnston: If a person agrees to give a responsive statement, you can't get an order
(4) Notice of application
- "The applicant shall serve notice on the proposed witness at least 7 days before the hearing"
(5) Subpoena
- "Where a party is entitled to examine a person under this rule, by serving on that person a
subpoena in Form 21, the party may require the person to bring to the examination
(a) any document in the person's possession or control relating to the matters in question
in the action, without the necessity of identifying the document, and
(b) any physical object in the person's possession or control which the party
contemplates tendering at the trial as an exhibit, but the subpoena must identify the
object"
(6) Notice of examination
- "The examining party shall give notice of examination of a person under this rule by
delivering copies of the subpoena to all parties of record not less than 7 days before the day
appointed for the examination"
(7) Mode of examination
- "The proposed witness shall be cross-examined by the party who obtained the order, then
may be cross-examined by any other party, and then may be further cross-examined by the
party who obtained the order"
Johnston v. Royal Jubilee Hospital (1980 BCCA)…If a party agrees to cooperate, R.28 application denied
F: - Hosptial appeals order made for a pre-trial examination of one of their witnesses
I: - Should the order be overturned?
J: - Yes, P can't examine
A: - Solicitor for defendant hospital and for the witness sent a letter to P offering to give a "responsive
statement to any questions they would have relating to matters involved in this action"
- Therefore, P didn't satisfy the requirement of a refusal by the witness to give a responsive
statement under R.28(3)(c)
R: - An offer by the witness's solicitor to respond to any questions is sufficient to deny refusal to
provide a responsive statement
Delgamuukw v. British Columbia (1988 BCSC)…Answers by a witness must not be partial
F: - P intends to call on a genealogist of the Gitksan people, and the province wants to examine the expert
before the trial…expert is a member of the Band
- D delivered 110 Q's to the expert, who answered or furnished answers to 29 of them
I: - Did D refuse or neglect to give a responsive statement?
J: - Yes, for D, they can examine her
A: - Threshold under R.28(3)(a) is met, as the expert will obviously give material evidence and provide
facts that D can't obtain on its own
- However, answers weren't sufficiently responsive because they only partly assisted D in their search
for information on this important issue
R: - If original answers by a witness are partial and not sufficiently responsive, then an application
for a pre-trial examination of a witness can be allowed under Rule 28
82
Yemen Salt Mining Corp. v. Rhodes-Vaughan Steel Ltd. (1994 BCSC)…Officers can be examined
F: - P wishes to examine 2 employees of D who aren't parties to the action
I: - Can notice of the application be served on the employees of the party?
J: - Yes
A: - While officers and employees of a corporation are not parties, they may be examined on behalf of the
corporate party under Rule 27
- However, while the procedure is similar, the scope of inquiry is wider under Rule 28
- Rule 28 is not limited to matters in issue between the parties in question, but covers all that is
relevant to all parties in the action, including other D's and 3 rd parties
- While it wasn't challenged, notice was given to the employer, not employees
- However, any order for examination under Rule 28 of any witness, including employees of any
party, may affect the interests of all other parties
- Accordingly, notice of the application under R.28(1) must be served on all interested parties
R: - Officers and employees of a corporation may be examined under Rule 28, provided there are
reasonable grounds to show the witness has material evidence and there is not harassment
Carmichael v. Austin (1994 BCSC)…Change of mind and shielding of a witness may allow Rule 28
F: - P was a pedestrian hit by a car while crossing a highway…has no memory but was drinking prior to it
- D wants to examine P's brother, who was drinking with P, regarding P's physical and mental
impairment at the time of the accident, as it's crucial to their defence
- Brother originally refused to give a responsive statement, but subsequently through a solicitor offered
to answer Q's if put to him in writing
I: - Is it unfair to D to allow the witness to resile from his original position and through the buffer of P's
solicitor now respond in written form to the questions?
J: - Yes, for D
A: - Brother argues that even though he originally refused to answer or give a responsive statement, there
was no refusal because he subsequently offered to answer Q's through solicitor if put to him in writing
- However, this will be an awkward, expensive, and ineffective way of getting information
- Witness already refused to answer, and a subsequent change of mind is not sufficient to prevent
D's from getting the order they seek
- Not too unfair to the brother, as he can receive reasonable solicitor's costs for the application or the
examination, and P's solicitor can cross-examine him at the same time
- Distinguished from Johnston, as here, solicitor is trying to shield the witness
R: - A subsequent offer to provide a responsive statement may be insufficient to deny a pre-trial
examination if there was an initial refusal to answer any questions
Sinclair v. March (2001 BCSC)…Expert witness may be compelled to provide opinion as well as fact
F: - P applies for pre-trial examination of physician for info on complications arising from surgery and an
opinion about surgery performed in the first place
- D, the hospital, doesn't want P to examine the physician who was involved in surgery recovery
because the physician doesn't to become an expert in the trial, they see P as wanting to obtain evidence
for trial, and claim that he hasn't refused to offer a responsive statement under R.28(3)(c)
- There were two meetings, but one didn't offer conclusive info, and the second broke down
I: - Can P examine the physician?
J: - Yes, for P
A: - Physician is not an expert, so R.28(2) doesn't apply, only R.28(1), so exercise of the discretion in
R.28(1) depends first upon fulfillment of the requirements of R.28(3)
- Good summary of Rule 28 on p.486
- Judge holds that neither meeting constituted a sufficient response to P's requests, and there was no
open offer of a response such as the one from Johnston
- Here, witness has unique and irreplaceable knowledge, and there is a demonstrated need for his
opinion
R: - Expert witness may be compelled to provide opinion as well as fact; R. 28 includes “facts and
opinions” with regard to expert witnesses
______________________________________________________________________________________
83
7) SCANDALOUS, FRIVOLOUS OR VEXATIOUS MATTERS
- Available to either party, and provides a mechanism for them to apply to strike out any pleadings and
enforce the rules with respect to pleadings
- ie: you must plead material facts, and if you don't plead facts sufficiently to make out a claim, the
opponent can file a claim that it doesn't disclose a reasonable cause of action
- Application is not formalistic, so courts often strike out pleading with leave to amend
- On all R.19(24) applications, you assume the facts pleaded as true, so it's rare to have any evidence
adduced at this stage of the proceedings
- Difference in focus of courts between R.19(24) and R.18A:
a) Rule 19
- R.19(24) looks at pleadings and, assuming the facts are true, asks if it discloses a reasonable
cause of action without examining evidence
- If pleading doesn't contain a cause of action, proceed here and then claim alternatively under
R.18 (thus R.18 goes beyond R.19(24)
b) Rule 18
- R.18 looks at both sides and asks whether there is a defence to the claim
- If proceeding contains a cause of action known to law, proceed here
- One rule important here which sets out 4 grounds in which pleadings may be struck out:
a) Rule 19 – Pleadings Generally
(24) Scandalous, frivolous or vexatious matters
- "At any stage of a proceeding the court may order to be struck out or amended the whole
or any part of an endorsement, pleading, petition or other document on the ground that
(a) it discloses no reasonable claim or defence as the case may be,
- Test similar to R.18: Is it "plain and obvious" that the claim discloses a bona fide
triable issue? If not…struck out
- "Plain and obvious" test carries through R.19(24)(b), (c), and (d)
(b) it is unnecessary, scandalous, frivolous or vexatious,
(c) it may prejudice, embarrass or delay the fair trial or hearing or the proceeding, or
- 'b' and 'c' are often considered as one factor
(d) it is otherwise an abuse of the process of the court,
and the court may grant judgment or order the proceeding to be stayed or dismissed and may
order the costs of the application to be paid as special costs"
Carey Canada Inc. v. Hunt (1990 SCC)…Leading case on application of R.19(24) motions
F: - P brought action alleging that he contracted mesothelioma because of repeated exposure to asbestos
- D, asbestos companies, brings application under R.19(24) that P's statement of claim discloses no
cause of action, as it was based not only for negligence but also for their alleged conspiracy to
withhold info about dangers of exposure to asbestos
- At BCSC, court held that only damage subject to conspiracy action was direct damage
- Reversed at BCCA, as law and facts too complicated to disclose no COA at this stage of pleadings
I: - In what circumstances may a statement of claim (or portions of it) be struck out?
J: - For P, allegations based on tort of conspiracy should not be struck out
A: - Court gives the test for exclusion under R.19(24):
- "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"?
- If there is a chance that the plaintiff might succeed, then the plaintiff should not be "driven from
the judgment seat"…must be a "radical defect"
- Length, complexity, novelty of the action, or strength of the defence are not bars
- Thus the only scenario where a R.19(24) motion to strike out relevant portions of a statement of
claim may be properly struck out is when the action is certain or sure to fail because it contains a
radical defect
84
- Here, tort of conspiracy applies either when:
a) Where D's agree to use lawful means to harm P
b) Where D's use unlawful means to harm P…does it include use and intent?
- In Canada, P must establish objective intent…ie: D should know in the circumstances
- P fit statement of claim around Estey J.'s two-pronged summary on the law of conspiracy
- Thus no failure to plead relevant material facts here
- Here, it is not "plain and obvious" that P's SOC failed to disclose a reasonable claim because:
a) May be extended beyond commercial context to personal injury context…for TJ to decide
- Thus cases with novel or important issues should defer decision until all facts are known
b) Not P&O that allowing the action would amount to an abuse of process
R: - The sole question when applying the plain and obvious test to a R.19(24) motion is whether,
assuming that all the facts the plaintiff alleges are true, the plaintiff can present a question "fit to
be tried"
Citizens for Foreign Aid v. Canadian Jewish Congress (1999 BCSC)…Necessary v. scandalous pleadings
F: - Jewish Congress published a pamphlet stating that Foreign Aid directed hate propaganda
- P brings defamation action alleging malice and conspiracy
- D brings application to strike out 2 paragraphs in P's SOC pursuant to R.19(24) on the grounds that
they fail to disclose a reasonable claim, and by reason that they are unnecessary, scandalous, frivolous
and vexatious, or otherwise an abuse of process
- Additionally, D brings application that P post security for costs since P is a poor company
I: - Should the 2 paragraphs be struck out?
J: - In part…malice OK, conspiracy struck out, and must deposit costs to solicitor to be held in trust
A: - Court reviews "plain and obvious" test and concludes:
- "As long as the pleadings disclose a triable issue, either as it exists, or as it may be amended,
then the issue should go to trial. The mere fact that the case is weak or not likely to succeed is no
ground for striking it out under the provisions of R.19(24))"
- Under R.19(24)(a) – no reasonable claim disclosed – there are two relevant issues:
a) Malice – OK
- In defamation, there is malice if there is a wrong or improper purpose
- Here, "improper purpose" alleged by P could establish malice, so paragraph 9 stands
b) Conspiracy – Not OK
- P also alleges D's have a "conspiratorial world view" and combat "a mythical enemy"
- However, no reference in SOC to an agreement between D's to defame P, or that D's knew
of any such agreement, or that they intended to be a party thereto
- Didn't plead material facts necessary to establish conspiracy
- Under R.19(24)(b) or (c), it must be "plain and obvious" that the pleading offends the provision
- An "embarrassing" and "scandalous" pleading is one that is so irrelevant that it will involve the
parties in useless expense and will prejudice the trial of the action by involving them in a dispute
apart from the issues…too confusing to understand what's being alleged
- A pleading is "unnecessary" or "vexatious" if it does not go to establishing the plaintiff's cause
of action or does not advance any claim known in law
- A pleading is "frivolous" if it is obviously unsustainable, not in the sense that it lacks an
evidentiary basis, but because of the doctrine of estoppel
- F: key to all of these is something unnecessary that diverts the court from the issues
- Under R.19(24)(d), ambit of abuse of process is very wide
- Involves deception of court, dishonesty, proceedings without foundation, and improper purpose
- Here, statements are "scandalous", but will only be struck out if they are irrelevant to proceedings
- Here, paragraph 9 alleging malice is scandalous but is necessary to the tort of defamation
- However, conspiracy in paragraph 9, already struck out by R.19(24(a), isn't saved by (b) and (c)
R: - If a pleading is both scandalous and unnecessary, it will be struck out; however, if a pleading is
scandalous but necessary to the action, it will be allowed
______________________________________________________________________________________
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8) PHYSICAL EXAMINATIONS
- Pursuant to Rule 30, you can extend discovery in relation to a person's mental or physical condition or in
relation to a thing (not document) subject to physical examination
- Provision is for production and inspection of things as opposed to documents
- Purpose is to ensure that everyone has access to all relevant evidence
- One relevant rule section:
a) Rule 30 — Physical Examination and Inspection
(1) Order for medical examination
- "Where the physical or mental condition of a person is in issue in a proceeding, the court
may order that the person submit to examination by a medical practitioner or other qualified
person, and if the court makes an order, it may make
(a) an order respecting any expenses connected with the examination, and
(b) an order that the result of the examination be put in writing and that copies be made
available to interested parties"
(2) Subsequent examinations
- "The court may order a further examination under this rule"
(3) Questions by examiner
- "A person who is making an examination under this rule may ask any relevant question
concerning the medical condition or history of the person being examined"
(4) Order for inspection and preservation of property
- "Where the court considers it necessary or expedient for the purpose of obtaining full
information or evidence, it may order the production, inspection and preservation of any
property and authorize samples to be taken or observations to be made or experiments to be
conducted on or with the property"
(5) Entry upon land or buildings
- "For the purpose of enabling an order under this rule to be carried out, the court may
authorize a person to enter upon any land or building"
Stainer v. ICBC (2001 BCCA)…Rule 30 puts parties on equal footing with regard to medical evidence
F: - P sues for MVA; D adds ICBC as third party after ICBC denied its liability to indemnify D
- Court orders P to undergo 3 "independent medical exams" with 3 conditions…ICBC, as third party,
claims CJ erred in imposing 3 conditions because they don't put the parties on an equal footing
I: - Are imposing conditions on medical examinations consistent with the purpose of Rule 30 to put the
parties on an equal footing with respect to medical evidence?
J: - Yes, but some conditions struck down here
A: - Court describes purpose of Rule 30
- Steps necessary to put parties on equal footing with respect to medical evidence is a matter of
discretion for the chambers judge
- Here, 3 conditions:
a) P must forward to ICBC all medical reports she received – OK
- ICBC claims that she should also deliver all future medical reports as well
- However, D can choose the time at which it seeks independent medical examinations
b) ICBC must disclose to P "all documents generated by or on behalf of that doctor" – OK in part
- ICBC claims medical opinion of doctor protected under solicitor's brief privilege
- Court agrees in part...medical reports must be generated, but opinion are protected
c) ICBC directed to call for an independent medical examiner "for rebuttal evidence" – not OK
- Could lead to confusion…best left to expert evidence rules
R: - While a condition under Rule 30 may permit delivery to a plaintiff of the examining doctor's
notes that record the doctor's observations or findings on physical examination, it would not be
fair to require the defendant or third party to disclose any documents prepared by the doctor
which contain his confidential opinions or advice to the lawyer who requested the examination
______________________________________________________________________________________
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9) DEPOSITIONS
- Purpose of R.38 is to take sworn evidence with a view to using it at trial so that the evidence can be read
in at trial
- Done before or during trial, and done by consent of parties or by order
- Only to be used or suggested by the parties or ordered by the court where there is a risk that the court
might otherwise be deprived of evidence to an issue
- See R.38(2) for things court consider and grounds for the order
- Strategic considerations before proceeding with a deposition:
a) Can be used by either party
- Unlike a discovery where it is only your transcript, any party can read a deposition in at trial
b) Loss of personal connection
- Whenever you have a live witness before a judge, it makes the story more compelling/believable
- When introducing evidence by transcript/videotape, it becomes less compelling
- One relevant rule here:
a) Rule 38 — Depositions
(1) Examination of person
- "By consent of the parties or by order of the court, a person may be examined on oath before
or during trial, before an official reporter, or any other person the court may direct, in order
that the deposition be available to be tendered as evidence at the trial"
(2) Grounds for order
- "In exercising its discretion to order an examination under subrule (1), the court shall take
into account
(a) the convenience of the person sought to be examined,
(b) the possibility that the person may be unavailable to testify at the trial by reason of
death, infirmity, sickness or absence,
- Thus don't need a sure thing to justify an order…just a possibility
(c) the possibility that the person will be beyond the jurisdiction of the court at the time
of the trial, and
- Thus can't subpoena a person outside of the province without going through a
more in-depth process (beyond scope of this course)
(d) the expense of bringing the person to the trial"
(3) Subpoena
- "Where a party is entitled to examine a person under this rule, by serving on that person or a
party a subpoena in Form 21, the party may require the person or the party to bring to the
examination
(a) any document in the person's possession or control relating to the matters in question
in the action, without the necessity of identifying the document, and
(b) any physical object in the person's possession or control which the examining party
contemplates tendering at the trial as an exhibit, but the subpoena shall identify the
object"
(4) Place of examination
- "Unless the court otherwise orders, or the parties to the examination consent, an examination
under this rule shall take place at a location within 10 kilometers of the registry that is nearest
to the place where the person to be examined resides"
(5) Application of rule outside British Columbia
- "So far as is practicable this rule applies to the examination of a person residing outside
British Columbia, and the court may order the examination of a person in the place and the
manner it thinks just and convenient"
(6) Where person willing to testify
- "If the person to be examined is willing to testify, the order shall be in Form 31 and the
instructions to the examiner appointed in the order shall be in Form 32"
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(7) Where person not willing to testify
- "If the person to be examined is unwilling to testify, or if for any other reason the assistance
of a foreign court is necessary, the order shall be in Form 33 and the letter of request referred
to in the order shall be in Form 34"
(8) Letter of request
- "Where an order is made under subrule (7), the letter of request shall be sent by the party
obtaining the order to the Under Secretary of State for External Affairs of Canada (or, if the
evidence is to be taken in Canada, to the Deputy Attorney General for the Province of British
Columbia), and shall have attached to it
(a) any interrogatories to be put to the witness,
(b) a list of the names, addresses and telephone numbers of the solicitors or agents of the
parties, both in British Columbia and in the other jurisdiction, and
(c) a copy of the letter of request and any interrogatories translated into the appropriate
official language of the jurisdiction where the examination is to take place and
bearing the certificate of the translator that it is a true translation and giving his or
her full name and address"
(9) Filing of undertaking
- "The solicitor for the party obtaining the order shall file with the Under Secretary of State
for External Affairs of Canada (or the Deputy Attorney General for the Province of British
Columbia, as the case may be) his or her undertaking to be personally responsible for all the
charges and expenses incurred by the Under Secretary (or the Deputy Attorney General, as the
case may be) in respect of the letter of request and to pay them on receiving notification of the
amount"
(10) Notice of examination
- "Notice of examination of a person under this rule shall be given by the examining party
delivering copies of the subpoena to the person to be examined and to all parties of record not
less than 7 days before the day appointed for the examination"
(11) Mode of examination
- "The examining party shall examine the witness, who shall be subject to cross-examination
and re-examination"
(12) Objection to question
- "If an objection is made to a question put to a witness in an examination under this rule, the
question and the objection shall be taken down by the official reporter and the validity of the
objection may be decided by the court, which may order the witness to submit to further
examination"
(13) Recording of deposition evidence
- "Unless otherwise ordered, the deposition shall be recorded either by
(a) the official court reporter in the form of questions and answers, or
(b) on videotape or film"
(14) Perpetuating testimony
- "A person who, under the circumstances alleged by the person to exist, would become
entitled, on the happening of any future event, to an estate or interest in property, the right or
claim to which cannot by the person be brought to trial or hearing before the happening of the
event, may apply by originating application for an order to perpetuate any testimony which
may be material for establishing the right or claim by examination under this rule"
Groves v. Liboirin (1998 BCSC)…Deposition order granted because of convenience and expense
F: - Action for damages from MVA…P, who is 64 years old, claims non-pecuniary damages for future
income loss and wants to adduce evidence for a Winnipeg job opportunity at trial
- P makes application for order that the proposed company witness be examined under oath before a
court reporter in Winnipeg, and that the examination and cross-examination be videotaped for trial
- P, on social assistance, didn't have enough money to bring the witness to Vancouver, and
"convenience of the witness" was in issue as well (R.38(2)(a) and (d))
I: - With respect to R.38(2), do the circumstances giving rise to this application justify the making of the
requested order?
J: - Yes, for P
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A: - Application approved because:
a) Inconvenience to the witness to fly out to Vancouver for the deposition
b) Since P is 64 years old, future job income loss will be a significant issue at trial
c) Not inconvenient to D, as won't have to travel to Winnipeg to conduct cross-examination
d) Finding causation/losses to P uncertain, so deposition process is the best of P's choices
R: - Courts will strongly consider both the convenience of the person being sought to be examined
and the expense of bringing the person to trial in regards to ordering a deposition
______________________________________________________________________________________
10) SPECIAL CASE
- Rule 33 is a reference to the court to decide a question of fact or law
- Shortcut that the rule provides is that no evidence is adduced and parties agree to a joint
statement of facts
- Thus court is not engaged in a fact-finding mission, but rather presented with facts and answers a
question on the basis of those facts
- If the parties can't agree on a statement of facts, Rule 33 is not an appropriate procedure
- Intended as a time-saving device, so same factors to determine suitability under Rule 18A apply here
- Jabs Construction: as a general rule, the court will decline to decide based on hypothetical or
fictitious facts
- Why use Rule 33 as opposed to Rule 18 or Rule 19?
- Pleadings disclose a cause of action but not so clear under Rule 18 that the claim is bound to fail
- There's some doubt that would prevent the court from issuing summary judgment under Rule 18
- Parties agree on almost everything but one sharp issue is in dispute
- Note Rule 33A is a stated case that allows a question of law to be stated to the court
- Different than a summary procedure…it is when legislation contemplates a question of law to be
decided by the courts
- One important rule here:
a) Rule 33 — Special Case
(1) Statement of special case
- "The parties to a proceeding may concur in stating a question of law or fact, or partly of law
and partly of fact, in the form of a special case for the opinion of the court"
(2) Court may order special case
- "The court may order a question or issue arising in a proceeding, whether of fact or law or
partly of fact and partly of law, and whether raised by the pleadings or otherwise, to be stated
in the form of a special case"
(3) Form of special case
- "A special case must
(a) be divided into paragraphs numbered consecutively,
(b) state concisely such facts and set out or refer to such documents as may be
necessary to enable the court to decide the questions stated, and
(c) be signed by the parties or their solicitors"
- Thus must have a joint statement of facts, otherwise no Rule 33 application
(4) Hearing of special case
- "On the hearing of a special case, the court and the parties may refer to any document
mentioned in the special case, and the court may draw from the stated facts and
documents any inference, whether of fact or law, that might have been drawn from them if
proved at a trial or hearing"
- Thus allowing court to draw inferences allows judge to find facts to a very limited degree
(5) Order after hearing of special case
- "With the consent of the parties, on any question in a special case being answered, the court
may grant specific relief or order judgment to be entered"
89
Jabs Construction Ltd. v. Callahan (1991 BCSC)…Role of court is judicial, not as a consultant
F: - 2 former friends who acquired parcels of land had a falling out, and are now battling it out
- Each own an undivided ½ interest in all of the parcels of land
- P wishes to extricate himself from joint ownership, but only on his own terms and not at any price
- Motion, brought under Partition of Property Act, doesn't permit order allocation some parcels to
one owner an remaining parcels to the other, but permits physical division of property, which
wasn't available here because properties were developed
- In alternative, P claims remedies of partition and sale…hasn't yet requested court to direct a sale, as
he's afraid D will invoke right to purchase P's share in the properties, which would lose him millions
- Unwilling to take risk, P seeks court to determine in law whether if a ½ owner of property petitions
the court for an order for sale, if s.8 of Partition of Property Act (D's right to purchase) applies
- D argues that this is a hypothetical question, and parties should proceed on the basis of the legal
opinion of counsel, not the court…otherwise Jabs gets an early unfair advantage
I: - Can court decide moot or hypothetical legal issues in the abstract?
J: - Yes, for P
A: - Court's general disinclination to decide moot or hypothetical issues is not an absolute rule
- While primary function of court is to act judicially and not in an advisory or consultative
capacity, courts may address abstract issues if the circumstances warrant it
- Useful purpose test to determine acceptability of petition
- "Whether determination of the issue will or may serve a useful purpose"
- It is proper to take into account the practical realities faced by litigants and the saving of their
time and court time that a preliminary ruling may achieve
- Here, useful purpose served, as effect of an answer would either advance or end proceedings
- Here, not necessary that this special case arises from the pleadings…just a question of law that arises
from the parties (as opposed to rule 34)
R: - Where the determination of a hypothetical point of law may have a conclusive effect on
litigation, the court may choose to make the determination based on practical realities of
whether the special case will move the parties ahead in the proceedings, even if it will not
necessarily dispose of the legal problems the parties have
______________________________________________________________________________________
11) PROCEEDINGS ON POINT OF LAW
- Rule 34 is more limited than Rule 33, as it must be on a pure question of law
- ie: Q's arising out of contractual interpretation or causation are a mix of fact and law, and would be
inappropriate for resolution under Rule 34…go to Rule 33
- Point of law should arise from the pleadings, not from the parties generally
- Rule 34 shouldn't be used where there are contested facts…both sides assume facts are true
- Not ideal to decide novel or important questions of law in the absence of full facts…ie: whether a
duty of care exists and policy considerations limiting duty
- Power is discretionary and subject to same kinds of considerations as other summary procedures
- F: good practice to take the point of law in the statement of defence
- Different between Rule 34 and Rule 19(24) is very small
- However, Rule 34 allows the court to go a little beyond the "plain and obvious" test
- Yet in substance they largely achieve the same result…most cases plead one or other in alternative
- One relevant and short rule section:
a) Rule 34 — Proceedings on a Point of Law
(1) Point of law may be set down for hearing
- "A point of law arising from the pleadings may, by consent of the parties or by order of the
court, be set down by requisition for hearing and disposed of at any time before the trial"
(2) Court may dispose of whole action
- "Where, in the opinion of the court, the decision on the point of law substantially disposes of
the whole action or of any distinct claim, ground of defence, set-off, counterclaim or reply,
the court may dismiss the action or make any order it thinks just"
90
Harfield v. Dominion of Canada General Insurance Co. (1993 BCSC)…Question of pure law
F: - P had apartment wrecked by Grabowsky, who was insane and then subsequently died
- P then sues insurance company, who refuses to indemnify her for loss because of an exclusion clause
- P then applies under R.34(1) to ask if insurance policy excludes coverage for loss done by insane
person who was a named insured under the policy
- D claims motion should be set aside because:
a) The resolution of a point of law won't determine the dispute
b) Facts determining the point of law are in dispute between the parties
I: - Is application appropriate as a question of pure law under Rule 34?
J: - Yes, for P
A: - Purpose of R.34(1) is to provide a way to determine without deciding the issues of fact raised by the
pleadings, a question of law which goes to the root of the action
- On such an application, every fact in SOC must be taken to be true
- Alcan, the leading case, set out principles for the application of Rule 34:
a) The point of law to be decided must be raised and clearly defined in the pleadings
- Here, clearly yes
b) The rule is appropriate only to cases where, assuming allegations in a pleading of an opposite
party are true, a question arises as to whether such allegations raise and support a claim or
defence in law
- Here, clearly yes
c) The facts relating to the point of law must not be in dispute and the point of law must capable
of being resolved without hearing evidence
- No evidence required; only actual language of exclusion clause need be produced, so OK
d) Whether a point of law ought to be decided before the trial of the action is discretionary, and it
must appear that the determination of the question will be decisive of the litigation or a
substantial issue raised in it
- Here, yes
e) In deciding whether the question is one which ought to be determined before trial, the court will
consider whether the effect of such a decision will immeasurably shorten the trial, or result in a
substantial saving of costs
- Here, issues will be focused, and will save time and effort determining whether he
Grabowsky was insane, so OK
R: - There is no requirement that a Rule 34 application resolves the whole matter, but as long as it
has the potential to save time and money, it will be heard
______________________________________________________________________________________
12) ORDERS
- After application, Chambers Judge either release written or oral reasons for judgment and makes orders
- However, counsel draft the orders…so they must take what the judge said and prepare order forms
- Usually drafted by the winning party and done in a short time period after judgment pronounced
- Orders effective from time the order is pronounced, not when the order is registered (R.41(14))
- Winning party must send order to all other counsel, who then sign to note form of approval that it
accurately reflects the order of the court
- It is not appropriate to refuse to sign if it's appropriately reflected…signing doesn't represent consent,
only approval (difficult to explain to self-represented litigants)
- Orders should be drafted fairly without reference to arguments or reasons
- Finally, R.41(24) allows counsel to fix mistakes made in orders
- One big rule section:
a) Rule 41 — Orders
(1) No application for judgment necessary
- "No application for judgment is necessary except where an enactment or these rules
otherwise provides"
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(2) Judgment impossible on jury findings
- "Where, after any redirection the court thinks appropriate, a jury answers some but not all of
the questions directed to it, or where the answers are conflicting, so that judgment cannot be
pronounced on the findings, the action shall be retried"
(3) Only partial judgment possible on jury findings
- "Where the answers of the jury entitle either party to judgment in respect of some but not all
of the claims, the court may pronounce judgment on the claims as to which of the answers are
sufficient and the remaining claims shall be retried"
(4) Jury failing to reach verdict
- "Where the jury fails to reach a verdict in accordance with the Jury Act, the action shall be
retried"
(5) Retrial
- "A retrial under subrules (2) to (4) may take place at the same or subsequent sittings as the
court may direct"
(6) Continuing trial without jury
- "Where, for any reason other than the misconduct of a party or the party's counsel, a trial
with a jury would be retried, the court, with the consent of the party who required a jury trial,
may continue the trial without a jury"
(7) Idem
- "Where, by reason of the misconduct of a party or the party's counsel, a trial with a jury
would be retried, the court, with the consent of all parties adverse in interest to the party
whose conduct, or whose counsel's conduct is complained of, may continue the trial without a
jury"
(8) Drawing and approving orders
- "An order of the court may be drawn up by any party, and, unless the court otherwise
directs, shall be approved in writing by all parties or their solicitors or counsel, and then
left with the registrar to have the seal of the court affixed, but the order need not be
approved by a party who has not consented to it and who did not attend or was not
represented at the trial or hearing following which the order was made"
(9) Form of order
- "Unless these rules otherwise provide, an order shall be in Form 42, 43 or 86"
(10) Endorsement of order on application sufficient in certain cases
- "If an order has been made substantially in the same terms as requested, if the court endorses
the notice of motion, petition or other document to show that the order has been made or
made with any variations or additional terms shown in the endorsement, it is not necessary to
draw up the order, but the endorsed document must be filed"
(11) Order granted conditionally on document to be filed
- "If an order may be entered on the filing of a document, the party shall file the document
when leaving the draft order with the registrar, and the registrar shall examine the document
and, if satisfied that it is sufficient, shall enter the order accordingly"
(12) Waiver of order obtained upon condition
- "Where a person who has obtained an order upon condition does not comply with the
condition, the person shall be deemed to have abandoned the order so far as it is beneficial to
the person and, unless the court otherwise directs, any other person interested in the matter
may take either the steps the order may warrant or the steps that might have been taken if the
order had not been made"
(13) Effect and form of orders
(a) "An order of a single judge or master is an order of the court.
(b) An order must,
(i) if it is spoken to, show on its face the name of the judge or master who made the
order, or
(ii) if it is not spoken to, be in Form 56A.
(c) An order may be approved by any judge"
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(14) Date of order
(a) An order shall be dated as of the day on which it was pronounced.
(b) An order made by a registrar shall be dated as of the day on which it is signed by the
registrar.
(c) Unless the court otherwise orders, an order takes effect on the day of its date"
(15) Requirement of consent order
- "No consent order shall be entered unless the consent of each party affected is signified,
(a) where the party is represented by a solicitor or counsel, by the signature of the
solicitor or counsel, or
(b) where the party is not represented by a solicitor or counsel,
(i) by the oral consent of the party who attends before the court or the registrar, or
(ii) by the written consent of the party"
(16) Application by consent
- "Subject to subrule (16.1), an application for an order by consent may be made by filing
(a) a requisition in Form 56,
(b) a draft of the order in Form 56A, and
(c) evidence that the application is consented to"
(24) Correction of orders
- "The court may at any time correct a clerical mistake in an order or an error arising in an
order from an accidental slip or omission, or may amend an order to provide for any matter
which should have been but was not adjudicated upon"
- Thus corrections allowed even after order has been entered
______________________________________________________________________________________
SECTION FOUR – TRIALS
I. SUMMARY TRIALS AND INTERLOCUTORY APPEALS
1) SUMMARY JUDGMENT
- Purpose of Rule 18 is to provide a summary process to decide uncontestable matters
- It is not a process to adjudicate disputed facts, but rather deal with defenceless claims that are bound
to fail
- Test: is there a bona fide triable issue?
- Carey: if there is any doubt at all about whether there is a good claim, the application will not
succeed…it must be manifestly clear and beyond a reasonable doubt
- Hughes: not the function of a court to decide disputes of fact or law…only focus is to assess whether
there is a worthy issue capable of being tried
- Nature of evidence allowed is set out in Rule 18…plaintiff must provide an affidavit stating:
a) Verifying facts set out in the claim
b) Must state that P knows of no facts that would constitute a defence to their claim
- For D, it's possible to rest on your statement of defence and not to adduce evidence at all
- Progressive: acceptable to instead point to gaps in P's evidence as to what they are saying isn't true
- F: not strategically smart, better practice to have an affidavit that confirms facts set out in SOD
- If defendant applies for summary judgment, position is reversed…D must provide affidavit, and while P
could simply rest on their SOC, it's better practice to produce an affidavit
- Inspiration: McEachern CJSC states R.18 has limited utility because:
a) Most people can raise an arguable defence
b) Judges are reluctant to dismiss defences under R.18
- Thus Rule 18A was enacted to deal with these potential problems
93
- Rule 18 applications can be dealt with by a Master, and practical consequence of a determination of Rule
18 on a particular issue is to estop the issue to be raised between the parties
- This is available to both P and D, as well as another other parties in opposition (ie: third parties)
- Permits party, on grounds that there is no defence, to the whole or the part of the claim
- Thus possible to apply for summary judgment on only one issue or a few issues, not the whole claim
- One rule section important:
a) Rule 18 — Summary Judgment in Action
(1) Application for
- "In an action in which an appearance has been entered, in an action referred to in Rule 17 (9)
or 25 (12) or in a family law proceeding that is not an undefended divorce proceeding within
the meaning of Rule 60 (1), the plaintiff, on the ground that there is no defence to the whole
or part of a claim, or no defence except as to amount, may apply to the court for judgment
on an affidavit setting out the facts verifying the claim or part of the claim and stating that the
deponent knows of no fact which would constitute a defence to the claim or part of the claim
except as to amount"
(2) Order for
- "On the hearing of an application under subrule (1), the court may exercise any of its powers
under Rule 52 (8) and may
(a) grant judgment for the plaintiff on the whole or part of the claim and may impose
terms on the plaintiff, including a stay of execution of any judgment, until the
determination of a defendant's counterclaim or third party proceeding,
(b) allow the defendant to defend the whole or part of the claim either unconditionally
or on terms relating to the giving of security, time, the mode of trial or otherwise,
and may give directions under Rule 40 (44) and (52) for the hearing of evidence at
trial,
(c) with the consent of all parties, dispose of the action finally in a summary way, with
or without pleadings,
(d) award costs, or
(e) grant any other order it thinks just"
(3) Continuing proceedings after summary judgment
- "Where a plaintiff obtains judgment under subrule (2), the plaintiff may continue the action
in respect of any remaining part of the claim, any other claim or against any other defendant"
(4) Summary judgment on counterclaim or third party proceeding
- "This rule applies to a counterclaim or third party proceeding"
(5) Setting aside or varying summary judgment
- "A judgment given against a party who does not attend at the hearing of an application under
this rule may be set aside or varied by the court"
(6) Summary judgment for defendant
- "In an action in which an appearance has been entered, the defendant may, on the ground
there is no merit in the whole or part of the claim, apply to the court for judgment on an
affidavit setting out the facts verifying the defendant's contention that there is no merit in the
whole or part of the claim and stating that the deponent knows of no facts which would
substantiate the whole or part of the claim"
(7) Order for summary judgment for defendant
- "On the hearing of an application under subrule (6) the court may
(a) dismiss the action,
(b) make any order referred to in subrule (2), or
(c) grant any other order it thinks just"
Hughes v. Sharp (1969 BCCA)…Sets out what remains of the test for judgment under Rule 18
F: - P had promissory notes signed and guaranteed and sent to D
- P got judgment in Ohio, where an attorney filed an appearance for P, waived process of service, and
confessed judgment on D…on this, P got summary judgment here, and D appeals pursuant to R.18(1)
I; - Is there a bona fide triable issue?
94
J: - Yes, for D
A: - Approval of summary judgment is a discretionary order, but leave to defend must be given unless:
a) No real substantial issue to be tried
b) No dispute to facts or law that raise any reasonable doubt that P is entitled to judgment
- A master doesn't have the power to weigh the evidence
- However, as long as he is not actually trying the issue, can make a final order based on affidavits
- Here, CJ exceeded his proper function and decided questions of law and fact as if he were sitting
as a trial judge, instead of merely determining whether there was a bona fide triable issue
- Here, there were triable issues of both law and fact, such as:
- Did attorney have necessary authority from D to enter appearance in Ohio?
- Is an Ohio judgment a "final order" in BC?
- Did D voluntarily submit to Ohio's jurisdiction?
- Test: Is there a bona fide triable issue? Is it "manifestly clear" that there is no defence?
R: - A party will not succeed on an application for summary judgment unless it is manifestly clear
that there is no defence (if P applies) or that there is no merit to the claim (if D applies)
Progressive Constructive v. Newton (1980 BCSC)…Manifestly clear = beyond a reasonable doubt
F: - Companies were involved in land development and construction
- Newton (land) and Maddess (construction) were employees of P, but incorporated a separate land
development company (Margem Corp.) before leaving
- P sues Margem because it entered into an agreement to purchase land while the defendants were still
employees…claim this breached trust and took away a corporate opportunity from P
- D seeks summary judgment dismissing the action based on sworn affidavits
I: - Is there a claim that raises a bona fide triable issue?
J: - No, for P
A: - Court holds the onus of establishing that there is not a bona fide triable issue rests upon the applicant
- Must be carried to the point of making it "manifestly clear", which is essentially the equivalent
of beyond a reasonable doubt
- Where D applies for summary judgment, there may be circumstances where P must file an affidavit
as to the merits of his case to reply
- However, there are some circumstances where P need not file an affidavit
- Here, claim turns in what was in the minds of the defendant
- While an applicant for summary judgment should swear positively on the facts, there may be
situations where it would be unfair to impose the same rule on the respondent
- Here, D's affidavit, if stood alone, would establish P's action had no merits
- Cross-examination would raise some doubt for the court as to the validity of the facts in the
affidavit, thus court decides that perhaps a trial is necessary
R: - Onus is on the applicant to make it manifestly clear to the court, or beyond a reasonable doubt,
that there is no bona fide issue to be tried
______________________________________________________________________________________
2) SUMMARY TRIAL
- Rule 18A enacted in 1986 because rule 18 was ineffective due to having such a high standard
- In Rule 18A, the court decided the issues between the parties, while in Rule 18, the court simply
determines if the claim has no defence
- Over 50% of trials are done by way of Rule 18A rather than a conventional trial…so it's significant
- Often referred to as a paper trial…thus same as a conventional trial in that the CJ makes findings of
fact, but gets evidence from affidavits rather than live witnesses
- Process is similar to Rule 18...you submit your application and:
a) Submit Application
- Can ask for judgment either on one issue, several issues, or the whole of the case
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b) Serve materials
- Rule 52 applies governing procedures in Chambers
- Time for reply is 11 days, so when somebody is asking for judgement on the whole of the case, it
will go through unless both parties consent to forget it (ie: costs)
c) Have a hearing in Chambers…issues:
i) Preliminary directions as to conduct:
a) Preliminary directions
- R.18A(10) – Can apply for and obtain cross-examination on affidavits
- Can apply for adjournment until there has been more document production, more time
for examination for discovery, ect…can seek these things in advance or at the hearing
- Can be decided by a master
b) Suitability applications
- Under R.18A(8), most parties will argue in defence that a summary trial is not suitable
ii) Hearing
- Have a Chambers hearing, with Chambers record with affidavit info and the parties lay out
the most significant issues
- In the past, complexity was one reason why R.18A trials didn't occur, but now complexity is
not a bar to a summary trial
- Judges dislike summary trials, as it increases their workload
iii) Evidence
- Primarily rely on affidavits, but can rely on cross-examination on affidavits, extracts from
discovery (not the whole thing), admissions, expert evidence as long as notice is given, Rule
38 depositions (but not Rule 28 pre-trial examinations)
- This is a final judgment, so should not rely on information/belief, but if you meet exceptions
for hearsay rule (ie: witness is dead and testimony is crucial), it may be admitted
d) Final Judgment
- Same process for a judge as a conventional trial
- Difference is that the judge must make decisions based on consideration on whether it would
be unjust to decide the matter in a summary way…applies throughout the whole procedure
- R.18A(11) gives power to give judgment
- If the court refuses to give judgment, the court can:
i) Remit to trial
- Conventional trial with live witnesses begins
ii) Proceed with summary judgment subject to directions
- ie: more info, conflicting evidence from affidavits, ect…
- The key procedural issue coming from application of R.18A and its use is suitability
- Judges are reluctant to deal with suitability on a summary basis, and won't do it without the benefit of
all the evidence
- Although can be raised at preliminary stage, most often raised during hearing and dealt with at end
- However, a judge can make a suitability ruling at any time during the proceeding
- One big rule for summary trials:
a) Rule 18A — Summary Trial
(1) Application
- "A party may apply to the court for judgment, either on an issue or generally, in any of the
following:
(a) an action in which a defence has been filed;
(b) an originating application in respect of which a trial has been ordered under Rule 52
(11)(d);
(c) a contested family law proceeding;
(d) a third party proceeding in which a statement of defence to third party notice has
been filed;
(e) a proceeding by way of counterclaim in which a statement of defence to
counterclaim has been filed.
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(1.1) When application must be heard
- "An application under subrule (1) must be heard at least 45 days before the date set for trial
in the proceeding"
(2) Setting application for hearing
- "Unless otherwise ordered, an application under subrule (1) must be set for hearing in
accordance with Rule 51A"
(3) Evidence on application
- "Unless the court otherwise orders, on an application under subrule (1), the applicant and
each other party of record may adduce evidence by any or all of the following:
(a) affidavit;
(b) an answer, or part of an answer, to interrogatories;
(c) any part of the evidence taken on an examination for discovery;
(d) an admission under Rule 31;
(e) a written statement setting out the opinion of an expert, if
(i) the statement conforms with Rule 40A (5), or
(ii) the court orders that the statement is admissible even though it does not conform
with Rule 40A (5)"
(5) Filings with application
- "A party who applies for judgment under subrule (1)
(a) must serve with the notice of motion and the other documents referred to in Rule 44
(5), every statement of expert opinion, not already filed, on which the party will rely,
and
(b) must not serve any further affidavits, statements of expert opinion or notices except
(i) to adduce evidence that would, at a trial, be admitted as rebuttal evidence,
(ii) in reply to a notice of motion filed and delivered by another party of record, or
(iii) with leave of the court"
(6) Notice of evidence to be used on application
- "Notice shall be given of the answers to interrogatories, the evidence taken on an
examination for discovery and the admissions on which a party seeks to rely"
(7) Time for giving notice
- "Notice under subrule (6) must be given
(a) by an applicant, in accordance with Rule 44 (5), and
(b) by a party who is not an applicant, in accordance with Rule 44 (6)"
(8) Ancillary orders and directions
- "On an application heard before or at the same time as the hearing of an application under
subrule (1), the court may
(a) adjourn the application under subrule (1), or
(b) dismiss the application under subrule (1) on the ground that
(i) the issues raised by the application under subrule (1) are not suitable for
disposition under this rule, or
(ii) the application under subrule (1) will not assist the efficient resolution of the
proceeding"
- Thus can be decided on a preliminary basis, either by a judge or a master
- While it contrasts with language of R.18A(11), both deal with suitability and R.18A(8)
doesn't expand R.18A(11) or create a two-pronged test
- R.18A(8) is from perspective of the court, and R.18A(11) is from perspective of the parties,
the court still can at any time stop proceedings, so there really is no difference between them
(10) Preliminary directions
- "On or before the hearing of an application under subrule (1), the court may order that
(a) a party file and deliver, within a fixed time, any of the following on which it intends
to rely:
(i) an affidavit;
(ii) a notice under subrule (6),
(b) a deponent or an expert whose statement is relied on attend for cross-examination,
either before the court or before another person as the court directs,
(c) cross-examinations on affidavits be completed within a fixed time,
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(d) no further evidence be adduced on the application after a fixed time, or
(e) a party file and deliver a brief, with such contents as the court may order, within a
fixed time"
- F: it's much better practice for a party asking for adjournment to do these things do this
before the hearing, not at the hearing
(11) Judgment
- "On the hearing of an application under subrule (1), the court may
(a) grant judgment in favour of any party, either on an issue or generally, unless
(i) the court is unable, on the whole of the evidence before the court on the
application, to find the facts necessary to decide the issues of fact or law, or
(ii) the court is of the opinion that it would be unjust to decide the issues on the
application,
(b) impose terms respecting enforcement of the judgment, including a stay of execution,
as it thinks just, and
(c) award costs"
- This subsection provides a safeguard protecting the summary process from abuse that isn't
necessary in a conventional trial
- Gives judge discretion to decline judgment based on suitability
- Inspiration: leading case on R.18A suitability
(12) No further application without leave
- "If the court does not grant judgment under subrule (11), the applicant may not make a
further application under subrule (1) without leave of the court"
(13) Directions
- "If the court is unable to grant judgment under subrule (11) and considers that the
proceeding ought to be expedited by giving directions, the court may order the trial of a
proceeding generally or on an issue and may order that
(a) the pleadings be amended or closed within a fixed time,
(b) a party file and deliver, within a fixed time, to each party as specified by the court, a
list of documents or an affidavit verifying a list of documents in accordance with the
directions that the court may give,
(c) interlocutory applications be brought within a fixed time,
(d) a general application for directions be brought within a fixed time,
(e) a statement of agreed facts be filed within a fixed time,
(f) all procedures for discovery be conducted in accordance with a schedule and plan
directed by the court, and the plan may set limitations on those discovery procedures,
(g) the obligation to pay conduct money to any of the parties or persons to be examined
be allocated in the manner specified in the order,
(h) an examination for discovery or a pre-trial examination of a witness be of limited
duration,
(i) a party deliver a written summary of the proposed evidence of a witness within a
fixed time,
(j) the evidence in chief of a witness be of limited duration,
(k) the evidence in chief of a witness be given in whole or part by the production of a
written statement,
(l) experts who have been retained by the parties meet, on a without prejudice basis, to
determine those matters on which they agree and to identify those matters on which
they do not agree,
(m) evidence be adduced in a manner provided by Rule 40 (44) and (52),
(n) a party deliver a written summary of the whole or part of the party's argument within
a fixed time,
(o) all or any part of the submissions of counsel be in writing or of limited length,
(p) a pre-trial conference be held at a time and place to be fixed at which any of the
orders in this subrule may be made, and
(q) with the approval of the Chief Justice, the proceeding be set for trial on a particular
date or on a particular trial list"
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(15) Right to vary or set aside order
- "A court may, before or at trial, vary or set aside order made under subrules (10) and (13)"
(16) Order if jury notice filed
- "A party may apply to the court for judgment under subrule (1) notwithstanding the fact that
a party may have filed a notice under Rule 39 (26) requiring trial by jury"
Inspiration Management v. McDermid (1989 BCCA)…Leading case on determining when R.18A is used
F: - P's borrowed money from broker (D) to make investments
- Security given in the form of shares which were held in P's name but controlled by D
- Market crashes and the broker sold the shares to cover the loan…problem is that P says the broker
was not authorized to sell Dragoon shares, but only the Geostar shares
- Dragoon shares were more valuable and P wants damages for the shares that were sold
- D claims that all shares of P in all accounts were to be available to secure the loan
- SOD was a 4 line denial of all allegations, so P applied for summary judgment under R.18A
- Thus CJ left with classic conflict on affidavits…used old test regarding suitability on whether a
conventional trial would produce the same result…decided it wouldn't, and motion denied
I: - What was agreed to be posted as collateral? What is the test for judgment under R.18A?
J: - For P, just to proceed by summary trial
A: - The main difference with Rule 18A is that the court can weigh evidence in determining whether or
not to grant judgment which is drastically different from Rule 18
- This is the main reason why Masters can't do R.18A applications
- Problem with R.18 is that artful pleaders are usually able to set up an arguable claim or defence and
any affidavit that raises any contested question of fact or law is enough to defeat a motion for judgment
- Rule 18 was often ineffective in avoiding unjust delay or in avoiding unnecessary expense in
the determination of many case
- There are substantial differences between an application under RR.18 and 18A
- Under the former, summary judgment should not be given if “there is a bona fide triable issue.”
- Under R.18A, on the other hand, the court actually tries the issues raised by the pleadings on
affidavits…the hearing of a R.18A application has been called a summary trial
- This a useful way to illustrate the distinction between the 2 rules although court would have
preferred to reserve the term summary trial for expedited proceedings under R.18A(13)
- For convenience, court is content to describe the various proceedings under RR.18, 18A and
18(A)(5) as summary judgment, summary trial and expedited trial respectively
- The important point, however, is that the raising of a triable issue or arguable defence will not
always defeat an application under R.18A, for the court is authorized under that rule to conduct a
summary trial of that issue or defence
- The court’s function is described in R.18A(11), which provides that on such an application the
court “… may grant judgment … unless:
a) the court is unable on the whole of the evidence [ie. affidavits] … to find the facts
necessary to decide the issues of fact or law …“ or unless
b) it is unjust to do so
- While the court must always be careful in exercising this new jurisdiction, it is clearly the intention
and expectation of the rule that cases will be decided summarily if the court is able to find the facts
necessary for that purpose, even though there may be disputed issues of fact and law
- Not only limited to simple cases either
- In summary, the rule is a means whereby the general principles stated by R.1(5) may be attained
- The rule must, however, be applied only where it is possible to do justice between the parties in
accordance with the requirements of the rule itself and in accordance with the general principles
which govern judges in their daily task of ensuring that justice is done
- When deciding whether it would be unjust to proceed by summary trial, consider:
a) The amount involved
- ie: is it worth as much as the trial would cost?
b) Complexity of the matter
- In the past, courts were reluctant to deal with complex matters under R.18A
- Nowadays, complexity will not be a factor as a general rule (unless really complex)
- Simplicity of the case will influence whether a judge will proceed by a summary trial
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c) Urgency and prejudice from delay
- If court can achieve justice from a quick resolution, it will proceed
d) Cost of taking the matter forward to a full trial relative to the amount involved
e) Any other matter
- Thus list is not exhaustive
- Most commonly, a significant conflict between evidence given by both parties not
capable of being resolved, and summary trial is inadequate to determine the credibility of
witnesses and evidence
- Other reasons to go to conventional trial include:
- Whether litigant is self-represented
- Serious allegations with large subjective elements…ie: fraud
- 'Yes' answers to Lambert J.A.'s 2 Q's
- Whether SJ will result in any real benefit (real trial may be shorter/cheaper)
- There are multiple parties where issues will have to be canvassed at trial at any event
- Presence of counterclaims or jury notices
- Novel issues don't preclude a R.18A claim, but if issue is raised for first time, red flag
- Excessive materials put on Chambers Judge
- To resolve conflicts of evidence, CJ can:
- Order adjournment and order cross-examination of witnesses to resolve conflict (Inspiration)
- Judge can use correlative evidence that is sufficient to resolve the conflict (Orangeville)
- Here, CJ applied the old test – that a conventional trial could not possibly make any difference
- However, here Lambert J.A. concludes that the unresolved issues of fact are within sufficiently
narrow compass to make judgment under Rule 18A suitable
- Lambert J.A. – Judgment under R.18A should not be given without asking two questions:
a) Has any party been denied an opportunity to produce relevant testimony?
b) Is there a conflict in the evidence, which the judge cannot readily resolve, on a point of fact
which could affect the result?
- If the answer is 'yes' to either question, then the case is probably not ready for judgment
R: - The test for R.18A is the same as on a trial, as if the chambers judge is satisfied that the claim
or defence has been established according to the appropriate onus of proof, he must give
judgment according to the law unless he has the opinion that it will be unjust to do so
Orangeville Raceway Ltd. v. Wood Gundy Inc. (1995 BCCA)…Rule 18A permissible where credibility
F: - P sold bonds and bought mortgage-backed securities through D and its employee
- P now claims D owes money for profits on shares which D bought and sold, as P thought D was
acting as agent and that remuneration would be in the form of commission…D claims it was acting as
principal on its own and should get to keep the profits
- Chambers judge held an R.18A summary trial and dismissed the action…evidence was on credibility
- CJ held that the material was sufficient to determine the case, and that P was ignorant of the nature of
the transaction, therefore it was unnecessary for him to consider whether there was a duty to warn
- P appeals, stating that D failed to notify him of its true role in the transaction
I: - Was it proper to try the matter as a summary trial?
J: - Yes, for D
A: - Burden on appellant is to show that the chambers judge reached a conclusion that cannot be
reasonably supported
- The onus on an appellant in an appeal against a summary trial made without oral testimony under
R.18A cannot be merely to persuade the appeal court to a different view of the evidence
- Thus this is a heavier burden than merely to establish that the appeal court would have made
different findings, or have drawn different inferences
- Here, CJ found that it was not credible for P to assert he never noticed inscription of "AS
PRINCIPLES" on the confirmation notices
- Thus, CJ used corrobative evidence to resolve conflicting evidence
- BCCA upheld this finding by the CJ, as there was evidence to support his findings
R: - While credibility may be a factor when deciding whether a summary trial is not appropriate, it
is not always the case that R.18A is not appropriate when credibility is the decisive issue
______________________________________________________________________________________
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3) INTERLOCUTORY APPEALS
- Appeals from the decision of a master are governed by R.53(6) to R.53(9)
- Time limit to appeal from a master is 14 days, while appeal from a judge is 30 days
- An appeal lies as of right to a judge of the BCSC, not the BCCA
- No stay of the proceeding during the appeal unless it is ordered
- Rule is located in Rule 53:
a) Rule 53 — Masters, Registrars and Special Referees
(6) Appeal from master, registrar or special referee
- "A person affected by an order or decision of a master, registrar or special referee may
appeal the order or the decision to the court"
- Provides for a right to appeal as a right from a Master to a Supreme Court Judge
- Don't need to seek leave
(7) Idem
- "The appeal may be by way of summary reference from the master, registrar or special
referee at the request of a party or by filing a notice of appeal in Form 61 within 14 days
after the order or decision complained of"
- Thus two ways an appeal can arise: either by way of summary reference from the
master (almost never happens), or file notice of appeal within 14 days (most common)
(8) Notice
- "Unless otherwise ordered, there shall be at least 2 days between the service of the notice
and the hearing"
(9) Appeal not to act as stay
- "An appeal from the decision of a master or registrar is not a stay of proceeding unless so
ordered by the court or the master"
- There are also rules regarding an appeal of Judge's orders in the Court of Appeal Act:
a) Section 6 – Appellate Jurisdiction
6(1) - "An appeal lies to the court
(a) from an order of the Supreme Court or an order of a judge of that court, and
(b) in any matter where jurisdiction is given to it under an enactment of British
Columbia or Canada"
- Thus very broad right of appeal from BCSC…however, s.6(2) and s.7 limits it
6(2) - "If another enactment of British Columbia or Canada provides that there is no appeal, or a
limited right of appeal, from an order referred to in subsection (1), that enactment prevails"
- Don’t need to worry about this…know s.7 instead
b) Section 7 – Leave to appeal
7(1) - "In this section, "interlocutory order" includes
(a) an interim order made under the Family Relations Act, and
(b) an order made under the Supreme Court Rules on a matter of practice or
procedure"
- This definition is inclusive, not exhaustive, and cases often turn on whether the
order is interlocutory or not
7(2) - "Despite section 6(1), an appeal does not lie to the court from
(a) an interlocutory order,
(b) an order respecting costs only, or
(c) an order or determination under Rule 50 of the Supreme Court Rules
without leave of a justice"
- Thus, if you want to appeal an interlocutory matter from the Supreme Court,
you must obtain leave to do so
7(3) - "In an order granting leave to appeal under this or any other Act, a justice may limit the
grounds of appeal"
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- Next case deals with appeals from a Master that go to BCSC
Abermin Corporation v. Granges Exploration Ltd. (1990 BCSC)…Exception to general rule of review
F: - P sued D for fraud and misrepresentation based out of a joint venture mining project with D
- D sought motion for security of costs when P went bankrupt…now P moves to adjourn the motion for
security of costs based on a letter from the trustee in bankruptcy giving their undertaking to be
responsible for all costs flowing from trial post-bankruptcy
- D argues that the trustee should accept costs at the start of the action, not the start of bankruptcy
- Motion for security of costs was granted by a master on the condition that examinations for
discoveries did not proceed during adjournment period, and now P appeals to a Supreme Court judge
- P claims that the Master could not make the adjournment subject to the condition
I: - Can Supreme Court Judges hear appeals from Master's orders? What are the standards of appeal?
J: - It depends, but here, yes
A: - Appeal from a purely "interlocutory matter" will succeed only if the Master was clearly wrong
- Conflict in law on other matters whether review where the master must be clearly wrong, or if the
review was a hearing de novo, but court takes the "middle ground" on these orders:
a) Questions vital to the final issues in a case, or
b) Is a final order which is one that a master is permitted to make
- Thus, in these cases, a rehearing is the appropriate form of review
- However, this review process under R.53(6) is not a hearing de novo
- Unless an order for the production of fresh evidence is make, this rehearing will proceed on the basis
of the material which was before the master
- In these latter situations, even where the exercise of discretion is involved, the judge appealed to
may quite properly substitute his own view for that of the master
- Here, the court held that the master had been correct to impose the condition on adjournment
R: - An appeal from a master's order in a purely interlocutory matter should not be entertained
unless the order was clearly wrong…however, where the ruling of the master raises questions
which are vital to the final issue in the case, or results in one of those final orders which a master
is permitted to make, a rehearing is the appropriate form of appeal
- Next case deals with appeals from a decision of a judge of BCSC that goes to the BCCA by way of s.6 of
the Court of Appeal Act
Rahmatian v. HFH Video Biz Inc. (1991 BCCA)…Evidentiary rulings cannot be appealed until after trial
F: - D made motion for nonsuit to have P's action dismissed…P objects by stating that the court doesn't
have jurisdiction to hear the application because there has been no formal order to appeal to yet
- CJ agreed and disposed of the motion, to which D appeals
I: - Is a motion for nonsuit made during the course of a trial an order, interlocutory order, or a ruling?
Could the dismissal of the application be appealed prior to the completion of trial?
J: - For P, it's a ruling on a nonuit on which the court has no jurisdiction to hear the appeal
A: - McEachern J. starts with principle that "the trial judge must be master of proceedings from the
commencement until the conclusion of a trial"
- He is required to make decisions on numerous questions arising in the course of the trial which
may be the basis of an appeal against the judgment rendered in the action
- However, rulings on evidence which are part of the trial process are not appealable until after the
trial has been completed
- Here, the court holds the dismissal is neither an interlocutory order, nor an order on a matter of
practice and procedure…rather, it is merely an evidentiary ruling
- Evidentiary rulings include whether a question is leading, whether an expert can give evidence,
whether questions are relevant, whether documents are admissible, hearsay, ect…
R: - A litigant has no immediate right to appeal evidentiary rulings during the course of a trial,
although the decision may constitute a basis for an appeal against the judgment in the case
- Next case demonstrates what a litigant needs to show in order to get leave to appeal an interlocutory order
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Power Consolidated (China) Pulp Inc. v. BC Resources Inv. Corp. (1988 BCCA)…Liberal approach
F: - D apply for leave to appeal, holding that disclosure on discovery on part of a letter written by counsel
for P did not abrogate the privilege which attached to the remainder of the letter
I: - What are the factors when deciding whether to grant leave to appeal for an interlocutory order?
J: - For D
A: - A Court of Appeal judge should take into account the following factors when deciding whether or not
to grant leave for an interlocutory order:
a) Whether the point on appeal is of significance to the practice (ie: lawyers in general)
b) Whether the point raised is of significance to the action itself
c) Whether the appeal is prima facie meritorious, or, on the other hand, whether it is frivolous
d) Whether the appeal will unduly hinder the progress of the action
- Here, leave is granted because:
- The privilege question may be of some significance to the practice
- The court is not familiar with the ction to say there is significance to the action, but there may be
- The appeal is not without merit, so not frivolous (easy hurdle)
- No issue that the appeal would not hinder the action
R: - The court will give a liberal application to the four flexible criteria a litigant must show in
order to get leave to appeal an interlocutory order to the Court of Appeal
- Next case gives some different criteria (more of a rephrasing, actually) and takes a much more restrictive
approach when applying the factors when deciding whether to grant leave to appeal
Watson v. Imperial Financial Services Ltd. (1992 BCCA)…More restrictive approach to granting leave
F: - P seeks injunction to preserve access to proceeds from sale of a hotel to satisfy a judgment in the
event that P is successful at trial…wants to restrain D from distributing proceeds
- Injunction application was denied (interlocutory application), was denied, and now they ask for leave
to appeal to the BCCA
I: - Since this was an appeal from a discretionary interlocutory order, is there enough material where the
CA could infer that the CJ's discretion to refuse the application was exercised on a wrong principle or
that such refusal would result in an injustice?
J: - No, for D
A: - Here, CJ was not finally disposing of the rights of the parties to the litigation, and thus was not a final
order…it was an interlocutory appeal where applicant must get leave to appeal
- Since court notes that injunction decision was discretionary, the standard on appeal would be that the
BCCA would not interfere with CJ's decision unless:
a) Exercise of discretion was clearly wrong, or
b) It worked a substantial injustice
- In addition to the discretionary nature of the CJ's order, court will consider whether the application
satisfied other criteria for granting leave to appeal, and doesn't grant leave to appeal here:
a) The importance of the question to be decided on the appeal to the particular application
or of general importance
- Here, question of the right to distribute the money has little, if any, significance to the
specific issues raised in the action itself
- Additionally, decision to grant or refuse injunction for prejudgment execution of the funds in
the possession of D has no general significance
b) Merits of the proposed appeal
- Here, P must show as having merit the prejudgment execution of funds held by D
- Accordingly, the principles applicable to the judicial discretion to grant an injunction
become relevant (ie: irreparable harm, balance of convenience)
- After reviewing the test for an injunction, it implies, without concluding, that the claim is
not strong on its merits, but not so meritless as to be frivolous
c) Is the appeal frivolous or vexatious, or simply made to delay the proceedings?
- Here, not brought for any improper purpose, only to preserve proceeds of the sale of the
hotel to satisfy a possible future judgment for damages
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d) Did the order appealed from decide any element in a final way and what are the effects of
the order on the parties?
- Injunction order left al of the issues raised in the action unresolved and thus had no effect on
the final outcome of the litigation
e) Was the trial judge clearly wrong in making his ruling?
- Here, TJ considered the Aetna principles regarding injunctions
- None of these factors are determinative except for 'c', but here, the applicant failed every factor
R: - The court takes a much more stringent approach to similar factors than in Power Consolidated
when dealing with extraordinary and discretionary remedies such as an injunction application
______________________________________________________________________________________
II. TRIAL PROCEDURE, NOTICES TO ADMIT, & EXPERTS' REPORTS
1) NOTICES TO ADMIT
- Rule 31 is the important one here:
a) Rule 31 — Admissions
(1) Notice to admit
- "In a proceeding in which a statement of defence, answer or answer and counter petition has
been filed, a party may, by delivery of a notice to admit in Form 23, request any party of
record to admit, for the purposes of the proceeding only, the truth of a fact or the
authenticity of a document specified in the notice"
- Thus this permits a Notice to Admit to be delivered once a statement of defence filed
- In the Notice to Admit, a party may requist another party to admit for the purposes of
the proceeding only:
i) The truth of a fact, or (remember fact v. evidence from pleadings notes)
ii) The authenticity of a document
(2) Effect of notice to admit
- "Unless the court otherwise orders, the truth of a fact or the authenticity of a document
specified in the notice to admit shall be deemed to be admitted, for the purposes of the
proceeding only, UNLESS, within 14 days, the party receiving the notice delivers to the
party giving the notice a written statement that
(a) specifically denies the truth of that fact or the authenticity of that document,
(b) sets forth in detail the reasons why the party cannot make the admission, OR
(c) states that the refusal to admit the truth of that fact or the authenticity of that
document is made on the grounds of privilege or irrelevancy or that the request is
otherwise improper, and sets forth in detail the reasons for the refusal"
- Thus can refuse either because:
i) Party provides notice in writing that it denies the admission sought; or
ii) Provides the grounds for the refusal with detailed reasons, or objection
- If a party leaves a Notice to Admit without any response, all specified in the
Notice are deemed to be admitted…thus active duty to admit/refuse
(3) Copy of document to be attached
- "Unless the court otherwise orders, a copy of a document specified in a notice to admit shall
be attached to the notice when it is delivered"
- If you want other party to admit the authenticity of a document, you must include it with
the Notice to Admit
- Admission of the authenticity of the document is just that it is what it appears to be, not
the truth of its contents
(4) Unreasonable refusal to admit
- "Where a party unreasonably denies or refuses to admit the truth of a fact or the authenticity
of a document, the court may order the party to pay the costs of proving the truth of the fact or
the authenticity of the document and may award as a penalty additional costs, or deprive a
party of costs, as the court thinks just"
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(5) Withdrawal of admission
- "A party is not entitled to withdraw
(a) an admission made in response to a notice to admit,
(b) a deemed admission under subrule (2), or
(c) an admission made in a pleading
except by consent or with leave of the court"
- Thus even if admissions are deemed to have been made for non-response to the Notice
to Admit, you must get leave of the court (see Skillings)
(6) Application for order on admissions
- "An application for judgment or any other application may be made to the court using as
evidence
(a) admissions of the truth of a fact or the authenticity of a document made
(i) in an affidavit or pleading filed by a party,
(ii) in an examination for discovery of a party or a person examined for discovery
on behalf of a party, or
(iii) in response to a notice to admit, or
(b) admissions of the truth of a fact or the authenticity of a document deemed to be
made under subrule (2)
and the court may, without waiting for the determination of any other question between the
parties, make any order it thinks just"
Skillings v. Seasons Development Corporation (1992 BCSC)…Blanket refusal to admit not sufficient
F: - P suffered loss from withdrawal of lateral support when neighbours were doing excavations
- P sent notice to admit to D requesting that the engineers admit they were responsible, which included
a long list of 24 items and also notice to admit authenticity of 5 documents
- D's solicitors provided a blanket refusal to admit, instead revealing that their "client is unable to
admit the requested facts at this time"
- P replies, stating that blanket refusal is not a specific denial under R.31(2), and thus D is deemed
under R.31(2) to be admitting the facts stated, and that if D doesn't at least admit the documents, then P
will bring application and seek costs for it
- D didn't reply within 14 days specified in R.31(2), so P applied for J under R.31(6)(b) which allows P
to use deemed admissions under R.31(2) as evidence (could also use with R.18 or R.18A conceivably)
I: - Is P entitled to judgment?
J: - Yes, for P
A: - Court holds that D didn't give a proper response to a notice to admit, so P is entitled to J because if all
the facts are true, it would constitute proof of the claim in negligence against D
- D's blanket refusal didn't deny the truth of any fact sought to be admitted, nor did it "set
forth in detail the reasons" why defendants to whom it was directed cannot make the admissions
- Court has no choice, as R.31(2) states "shall be deemed to be admitted", which makes such
deeming mandatory
R: - A reply to the notice to admit is improper and inadequate if it does not deny the truth of the
facts sought to be admitted nor set out reasons in detail for not making the admissions…in such
circumstances, it is mandatory that the facts are deemed admitted
- In the next case, the court considers when it's permitted to withdraw admissions
Skillings v. Seasons Development Corporation #2 (1992 BCSC)…Test for withdrawing deemed admission
F: - D now applies for a motion for the order to be set aside
- Claims that the denial letter was an irregularity only under R.2(1), or in the alternative, want court to
grant leave to withdraw D's deemed admissions under R.31(5)
I: - Should the application to withdraw the admissions be allowed?
J: - Yes, for D and for justice!...while J set aside, D must pay the P's costs thrown away since D didn't
properly respond to the Notice to Admit in the first place, so only rememdy was in costs
A: - Irregularity argument under R.2(1) not pushed, but court holds that it would probably stretch
discretion too far anyways "and impart to the rules an undue elasticity"
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- Instead, court uses test under R.31(5):
- "Measure the advantage obtained already by the plaintiffs against the interests of justice
generally…such interests require, if it is at all possible, a trial on the merits"
- Generally, court will prefer a trial on the merits for the interest of justice (R.1(5))
- Better result for all parties if there is a full weighing of the facts
- Here, whether or not D were negligent or otherwise at fault is a triable issue in this case, and it would
be unjust for them to be denied their opportunity to defend the matter on its merits
- There, it's in the interests of justice that D should be allowed to withdraw deemed admissions
R: - A party may get leave of the court to withdraw their deemed admissions under R.31(5) if it
would be unjust for them to be denied their opportunity to defend the matter on its merits
______________________________________________________________________________________
2) EXPERT REPORTS
- Expert evidence is principally governed by R.40A and the common law
- Witnesses are generally limited to testifying as to facts
- Expert opinions are an exception to that general evidentiary rule
- Expert opinions are admissible in order to provide a trier of fact with technical or scientific
information outside of his or her ordinary experience
- Common law rules:
- Matters that are within general knowledge or ordinary experience may not be the subject of experts
- Experts must be appropriately qualified to give opinion evidence…therefore expertise must relate to
the specific evidence being given
- Experts may not give evidence that usurps the role of the trier of fact, and the expert cannot give
opinion on the final question to be decided
- Instead, an expert may be given an opinion based on:
a) Assumptions about facts, which then have to be proven at trial, or
b) A hypothetical set of facts
- Experts must be independent, objective, and impartial, not an advocate for a party
- The opinion must not be argument disguised as opinion
- Retaining and dealings with an expert are privileged as part of the solicitor's brief
- However, once the expert is called to give evidence, privilege is deemed to be waived over material
the expert has in possession, or has seen, including:
- Instruction letters;
- Fee arrangements;
- Feedback on drafts, or the drafts themselves
- Any other material the expert reviewed when producing the report
- Counsel may consult and discuss the report with an expert while the report is being prepared,
including with respect to the facts and issues to be covered in the report
- However, counsel may not make suggestions or influence the substance of the report
- Important rule is Rule 40:
a) Rule 40A — Evidence of Experts
(1) Application
- "This rule does not apply to summary trials under Rule 18A, except as provided in that rule"
- However, extent that you can provide notice in a Rule 40A, you should still be careful
with Rule 18A (in practice, not needed for exam)
(2) Admissibility of written statements of expert opinion
- "A written statement setting out the opinion of an expert is admissible at trial, without
proof of the expert's signature, if a copy of the statement is furnished to every party of
record at least 60 days before the statement is tendered in evidence"
- Thus not 60 days prior to trial, but 60 days prior to being put into evidence
106
(3) Admissibility of oral testimony of expert opinion
- "An expert may give oral opinion evidence if a written statement of the opinion has been
delivered to every party of record at least 60 days before the expert testifies"
(4) Idem
- "The statement also may be tendered in evidence"
- Thus expert can testify and the written statement can be tendered in evidence
(5) Form of statement
- "The statement shall set out or be accompanied by a supplementary statement setting out:
(a) the qualifications of the expert;
(b) the facts and assumptions on which the opinion is based;
- This is the most challenging hurdle, but is an important pre-condition
(c) the name of the person primarily responsible for the content of the statement"
(6) Proof of qualifications
- "The assertion of qualifications of an expert is prima facie proof of them"
(7) Admissibility of evidence
- "If a statement that does not conform to subrule (5) has been delivered
(a) it is inadmissible under subrules (2) and (4), and
(b) the testimony of the witness under subrule (3) is inadmissible
unless the court otherwise orders"
- Thus R.40A(5) and (7) give technical requirements to be admissible opinion evidence
(8) Notice of trial date to expert
- "A party who delivers a statement shall, on delivery or when a trial date has been obtained,
whichever is later, inform the expert of the trial date and that the expert may be required to
attend at trial for cross-examination"
(9) Demand to cross-examine
- "A party to whom a statement has been delivered under subrule (2) and who is adverse in
interest to the party delivering the statement may, by demand to that party, require the
attendance of the expert at trial for cross-examination"
(10) Idem
- "The expert need not attend at trial unless the demand is made within a reasonable time
after delivery of the statement"
- "Reasonable time" hasn't been defined yet…se (11)
(11) Idem
- "The convenience and other commitments of the expert shall be taken into account in
determining whether the demand has been made within a reasonable time"
(12) Costs of cross-examination
- "If an expert has been required to attend for cross-examination and the court is of the
opinion that the cross examination was not of assistance, the court may order the party who
required the attendance of the expert to pay, as costs, a sum the court considers appropriate"
- Thus there must be some reason to call the expert for cross-examination or you will pay
(13) Notice of objection to expert evidence
- "A party who receives a written statement under subrule (2) or (3) shall notify the party
delivering the statement of any objection to the admissibility of the evidence that the party
receiving the statement intends to raise at trial"
- Thus notice of objections ot the admissibility of opinion evidence must be given in
advance of trial, or the objection will not be permitted (along with R.40A(14))
(14) Idem
- "No objection under subrule (13) of which reasonable notice could have been given, but was
not, shall be permitted at trial unless the court otherwise orders"
(15) Dispensing with statement
- "At trial, the court may dispense with the requirement of delivery of a statement"
(16) Idem
- "Without limiting the generality of subrule (15), the court may dispense with the
requirement of delivery of a statement on one or more of the following grounds:
(a) where facts have come to the knowledge of the party tendering the witness after
the delivery of the statement of that witness's evidence, that could not, with due
107
diligence, have been learned in time to be reduced to a further statement and
delivered within the time required by this rule;
(b) where the non-delivery is unlikely to cause prejudice
(i) by reason of an inability to prepare for cross-examination, or
(ii) by depriving the party against whom the evidence is tendered of a reasonable
opportunity to present evidence in response;
(c) where the interests of justice require it"
(17) Time
- "Before or at trial, the court may extend or abridge the time limits set out in this rule"
- Thus, from (15) to (17), court has the discretion to dispense with the technical
requirements to deliver a report or vary the time to do so
Delgamuukw v. British Columbia (1988 BCSC)…Disclosure on matters of substance or credibility
F: - P wants to establish the scientific date of a landslide and compare it with the general history of the
Gitksan people to affirm they were there when a supernatural grizzly bear crashed through the woods
- Experts' files were disclosed, but some documents contained in the files of the experts were blacked
out for solicitor's brief privilege…D seek disclosure of clear copies of all the documents in the files
I: - What level of disclosure is appropriate between experts and lawyers regarding information shared
between them?
J: - Some…matters of substance can't be blacked out
A: - Present law requires expert witnesses, who are called to testify at trial, to produce all documents
which are or have been in his possession
- This includes draft reports and other communications which are or may be relevant to matters
of substance in his evidence or to his credibility unless it would be unfair to require production
- It is a presumption of law that solicitor's privilege is waived in respect to such matters of
substance when the witness is called to give evidence at trial
- Thus only waiver of privilege in respect of matters of substance
- However, P claims that their strategy may be disclosed by documents finding their way into the file
of the witness, or which relate to the report of the witness but rest in the file of the lawyer
- Thus P claims solicitor's privilege will be seriously compromised if principle is applied literally
- Court agrees, holding that solicitor's brief privilege should be preserved to the greatest
extent possible, but not at the expense of the integrity of the trial process
- Thus McEachern CJSC gives guidelines for determining privilege:
a) Default position is that all documents and communications which may relate to the
substance of the evidence OR to the credibility of the witness must be disclosed when expert
enters witness box
- "Relevant to credibility" must be given a narrow construction, as "almost anything might
relate to credibility"
b) If counsel wishes to maintain a claim to solicitor's privilege, it must be done by furnishing a
reasonable description of the document or an edited copy
- Also done by making a specific oral or written claim to privilege which in rare cases might
have to be supported by affidavit
c) If cross-examining counsel does not accept claim to privilege, then no alternative to the
judge examining the document pursuant to R.26(12) and deciding the question that way
d) Counsel must produce all documents which the witness has seen
- If privilege claimed, must have documents in court room
e) Expert may also be asked about oral communications
- If privilege is claimed, then may need to conduct a voir dire
- After, court goes through and applies this test to the various blacked out portions of the documents
- Here, court determines that material that must be disclosed include:
- Letters of instruction, fee agreements, written communications from the party or its agents or
lawyers relating to the assignment, memoranda and drafts, suggestions from others, and any other
written material which has or might have been considered by the witness in preparing the report
R: - Documents or communications in an experts' file that relate to the substance of the evidence or
credibility must be disclosed, but solicitor's brief privilege applies to other communications
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- The next case deals with notice provisions in a pre-Rule 40A legal scenario
Pedersen v. Degelder (1985 BCSC)…Expert oral evidence may not go beyond written statement/report
F: - D admits liability in MVA, but parties set for trial based on quantum of damages
- P wants expert to give viva voce evidence in addition to doctor's medical reports
I: - Do s.10 and s.11 of the Evidence Act or Rule 40 preclude P from allowing the expert to adduce new
evidence in addition to the medical report already in evidence?
J: - Yes, for D
A: - Court holds purpose of requiring advanced notice of expert opinion is:
a) Permit experts such as doctors to practice their trade by having evidence admitted in writing
b) Avoid surprise and the need to be briefed by an expert in order to properly cross-examine
- Evidence Act here has two relevant sections (nowadays R.40(3)):
a) Section 10 – Expert Written Statement
- This allows the doctor to give a written statement instead of actually testifying, as long as
they furnish a copy to adverse party 14 days before the statement is given in evidence
- Good for P's, as jury can take a copy of the report to the jury room instead of the usual case
of the jury forgetting half of the evidence
- Where one party files a written statement as an exhibit, the opposite party may require the
attendance of the expert for the purpose of cross-examination…but will be hit with costs if the
cross-examination adds nothing of substance
- While it doesn't prohibit P from calling the expert for cross-examination, the expert cannot
say anything new without contravening the 14-day rule
- Expert thus limited to what's in the written statement
b) Section 11 – Expert Oral Testimony
- This requires 14 days notice for use of expert testimony when written statement not tendered
in evidence
- It contains the option for the expert to testify on new matters at trial (s.10 does not), so if no
s.11 notice is given, then the expert can only testify on what's in the report under s.10
- Therefore, when P needs expert to give oral testimony, they're confined to s.11
- However, oral opinion evidence must remain within the framework of the written statement
for which notice is given, unless the court permits new opinion
- Exception: no written notice required for rebuttals or replies, but must be a true reply/rebuttal and not
an independent opinion
- Here, P can't call doctor to testify beyond words of the written statement filed as an exhibit, as P
elected to file written statements of the doctor pursuant to s.10 of the Evidence Act
- Testimony would be redundant except to explain any ambiguities in the report
- Also, P can't introduce evidence of the spinal column model because 7 days notice in writing was
not given to D pursuant to R.40(10)
R: - Viva voce evidence from an expert whose opinion has been set out in a written statement is
redundant unless the evidence is required for the purpose of explaining any ambiguity in his
written statement OR explaining any technical terms in the statement that are not readily
understandable
- The next case is a good example of what counsel should not do in preparing an expert's report
Vancouver Community College v. Phillips Barratt (1988 BCSC)…Counsel can't substantially re-write
F: - VCC sues D, engineers and architects, for over $9 million in damages for professional negligence and
breach of K due to a $1.7 million cost overrun, a space shortfall of 30,000 ft., and other deficiencies
- D claims it did a satisfactory job and that all compromises were agreed to, and issues a counterclaim
for $400,000 in unpaid fees
- P claims that pre-contractual representations by D gave them additional duties of care, and therefore
created tort liability in addition to contractual liability
- P heavily relies on expert evidence to establish standard of care for architects, and called 4 experts by
filing their reports and calling them to testify orally…D has contradicting experts
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- P's case based on one expert in particular (Atkins), whose report was revised on 10 occasions with
"considerable advice" from counsel
I: - Did D fulfill their duties to P?
J: - Yes, for D
A: - Court holds that VCC failed to prove negligent misrepresentation, as none of the representations
referred to had the effect of modifying the contract
- Thus scope was limited to any duties D had as defined in the contract
- Here, P relied on opinion evidence, but one big problem with Mr. Atkins' evidence
- His report was found to be "partisan, argumentative, and not objective"
- Report revised 10 times…not in and of itself a problem, as experts may revise their reports, and
counsel may consult with experts during the drafting of reports
- However, these modifications crossed the boundaries as it was done with too much advice from
"round table discussions" with VCC counsel…expert must remain independent and objective
- Counsel's suggestions went to the substance, not form, of the report, and the "suggested
changes were all one way"
- Criticisms of P were removed and criticisms of D were amplified
- Thus revisions went beyond mere clarification and was "substantially re-written by
counsel"…OK for expert to re-draft report, but can't re-write it solely at the suggestion of counsel
- All of P's other expert witness were equally unsatisfactory, as all of their evidence was tainted by
Atkins' evidence, or from reliance upon some aspect of his report
- All also generally suffer from similar unacceptable participation by VCC counsel in preparation
- Evidence would have been rejected even if hadn't been contradicted by other evidence
R: - Expert opinions will be rendered inadmissible when they are nothing more than the reworking
of the argument of counsel participating in the case
- The next case frames matters in a positive way, stating what counsel can do when preparing expert reports
Surrey Credit Union v. Wilson (1990 BCSC)…Expert must leave legal Q's to the judge as to what facts are
F: - P purchased debentures in Northland Bank after relying on D's financial audit, but Northland
"collapsed" a few months later and P lost out on its investment
- P claims the audits were negligent in that it failed to adhere to generally accepted auditing standards
within the accounting profession
- P used expert evidence of Rosen as to the appropriate standards of practice of chartered accountants
when conducting an audit…ruled qualified and competent to testify, so D attacks the report itself
I: - Is the report admissible?
J: - No, for D, report is inadmissible, but has some merit and should be re-written
A: - The defendants objected to the report of the expert witness on the basis that:
a) It contains opinion evidence outside the expertise or qualifications of the expert
- Report must be limited to what expert's expertise actually is
b) It is largely argument rather than opinion and is not limited to the scope of what the expert
should be able to testify on
c) It contains conclusions of fact based on assessments of the evidence and thus usurps the role of
the trier of fact
d) It contains large passages which are irrelevant, superfluous, or are simply of no assistance to
the trial judge and touch upon areas referred to in 'c' above
e) It contains passages which are neither comments or opinions on the standard of care or auditors
- D also argues that the 200 page report also makes conclusions of law concerning negligence of D
- Court holds that evidence of an accepted standard within a profession is technical information that
would be of assistance in support of what counsel would like a judge to conclude is a standard of care
- However, expert can't say "the standard of care in a profession is…"…"D is negligent b/c…"
- Court also holds that expert evidence can take two forms:
a) Statement of opinion based on hypothetical facts
b) Statement of opinion regarding facts or assumptions of facts concerning the case which have
been communicated to him
- In either case, he is bound to communicate to D the sources of those facts or assumptions
- They need not be part of the opinion itself
110
- What the expert cannot do is make findings of fact…that is the exclusive role of the TJ
- Thus expert can't give an opinion on the legal duty for preparing auditing reports generally
- Here, the report is too long, obscure and filled with irrelevant material…has some merit, but must
be cut down and made to not usurp the role of the TJ…helpfully for P, the court gives some
guidelines to the expert in this case to provide an opinion as to the industry standards, and what
conduct might be regarded as a departure on a hypothetical/assumed set of facts from the standards:
a) May give evidence of standards of his profession
b) When he has been given facts, assumptions or hypotheticals – he can offer opinion on whether
they conform to the standards he gave evidence of
c) Must disclose the facts with which he works
d) Explain the basis of assumptions
e) Can explain why his views are better than those of the other experts in the case
f) May not make conclusive findings of fact or offer opinions of law
g) May not give opinions on the merits of the P’s case
- If only an excludable portion of an expert's report is objectionable, and parties agree, it can be taken
out…however, if there are defects throughout an expert's report, the whole report may be thrown out
R: - While evidence of an accepted standard within a profession is technical information that would
be of assistance to the trier of fact, an expert cannot give an opinion on the legal duty or make
conclusion of fact or law
Kroll v. Eli Lilly Inc. (1995 BCSC)…Pedersen law on response/rebuttal expert evidence applies to R.40A
F: - P sues for medical negligence, where P objects to oral testimony of D's expert witness commenting
upon the opinion evidence of P's expert witness
- P claims that this is opinion evidence of which notice must be given under R.40A
- Rule 40A(3) states that an expert can give expert opinion evidence if a written statement of that
evidence is shared 60 days before the expert testifies
I: - Is the opinion evidence of D's expert regarding P's expert evidence admissible despite the lack of a 60
day warning?
J: - Yes, for D, opinion evidence will be heard
A: - Before R.40A, no notice had to be given for opinion evidence on cross-examination, but P says that
R.40A changed the law
- Argument is that parties may not know whether rebuttal or response evidence is required until
after the expert whose report is questioned is examined
- However, court holds that Rule 40A was not intended to prevent the court’s receipt of evidence from
expert evidence which is in response to the opinion of experts presented by other parties to the action
- While it is often desirable that notice of such evidence be provided to a party prior to the
commencement of trial, such notice is not required
- This exception to the requirement of advance written notice of the expert’s view is strictly
limited to true response evidence, and does not permit fresh opinion evidence to masquerade
as an answer to the other side’s reports
- Also, this confirms that law in Pedersen, that written notice requirement does not apply to
response or rebuttal expert evidence, has not been changed by the introduction of R.40A
R: - A defendant's expert may give oral evidence in reply to the opinion evidence of the plaintiff's
expert without the defendant's expert first giving written notice of his or her evidence to the
plaintiff
Yewdale v. ICBC (1995 BCSC)…4 principles applicable to the admissibility of expert evidence
F: - D in MVA was ruled to be 100% liable after hitting a motorcyclist with his car
- Since her insurance only covered $1 million, and quantum of damages was for $4.3 million, she was
forced to sell all of her assets to cover the judgment and is now bankrupt
- She now makes claims of negligence, breach of duty of good faith, and breach of K against ICBC and
her lawyers, seeking indemnification
- P has 5 expert reports regarding standard of care for lawyers, but D objects to all of the them
I: - What are the guidelines for admission of expert evidence, and are the reports of P's experts in this
case admissible?
111
J: - Most inadmissible, mostly for D
A: - The court gives 4 principles governing the use of expert evidence:
a) Opinion evidence is admissible only where it would be of assistance to the court in deciding
a question requiring long study or experience.
- Conversely, such evidence is not admissible with respect to matters that lie within the
ordinary experience of the trier of fact
b) If expert opinion is permitted, the expert must stay within his or her stated area of expertise;
c) Expert should state the facts he or she has assumed in the course of reaching the opinion, and if
possible, to avoid making findings of fact on issues in dispute
- The expert must not be permitted to displace the role of the trier of fact
d) Experts must be independent and not become advocates
- They must express their opinions as opinions and must leave for the court the required
conclusions of law
- Thus the expert should express his or her opinion in an objective and impartial manner, and
must not present argument in the guise of expert evidence
- These are not absolute rules, since their applicability will often depend on:
a) The particular nature and accessibility of the issues before the court
b) The extent to which industry or professional standards and practices can be formulated for the
court's assistance, AND
c) Even the manner in which the relevant questions have been posed for the expert
- Here, the reports are mostly rejected because they make conclusions that are for the court, or are
"self-evident" and of no assistance
R: - Litigants can only use expert opinion where it would be of assistance to the court and avoid
making findings of fact on issues in dispute, and not simply provide self-evident information
______________________________________________________________________________________
3) EXPEDITED TRIALS
- Rule 66 applies to matters which can be completed within 2 days
- The court has discretion to dispense with all or part of the Rule
- This is based on two rules:
a) Rule 66 — Fast Track Litigation
(1) Object
- "The object of this rule is to provide a speedier and less expensive determination of certain
actions the trial of which can be completed within 2 days"
(3) Exclusions from Rule 66
- "This rule does not apply to family law proceedings"
(4) This rule prevails in event of a conflict
- "In the event of a conflict between this rule and another rule, this rule applies"
(5) Court may dispense with this rule
- "The court may dispense with compliance with the whole or any part of this rule if the court
considers it just and convenient to do so"
- Thus a very discretionary set of rules
(6) Election to use fast track
- "Subject to subrule (3), this rule applies to an action if an endorsement in Form 137 is added
or attached to the statement of claim or a statement of defence filed in the action"
- Thus a party can trigger the rule by including an endorsement in its pleading that R.66
applies…just need to include in writ/SOC
(8) When rule ceases to apply
- "This rule ceases to apply to an action if
(a) the parties to the action file a consent order to that effect,
(b) the court, on its own motion or on the application of any party, so orders, or
(c) none of the parties to the action applies for a trial date within 4 months after the date
on which this rule becomes applicable to the action" (by default)
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(9) Considerations of court
- "In exercising its discretion under subrule (8) (b), the court must take into account
(a) the likelihood that a trial of the action will occupy more than 2 days, and
(b) whether it is reasonable in the circumstances to continue the action under this rule"
- Thus simple Q: if matter likely to be over 2 days, no R.66
(10) Style of proceeding for fast track proceeding
- "The style of a proceeding must include the words "Subject to Rule 66" immediately below
the listed parties"
(11) List of documents
- "Each party must deliver, in accordance with subrule (12), a list, in Form 93, of the
documents that are or have been in the party’s possession or control relating to every matter in
question in the action, enumerating the documents in a convenient order with a short
description of the documents"
(12) Delivery of list of documents
- "A party (the "delivering party") must deliver the list of documents referred to in subrule
(11) to all other parties of record,
(a) if the delivering party added or attached an endorsement in Form 137 to a pleading,
with that pleading,
(b) if the delivering party is a plaintiff to whom the defendant has delivered a statement
of defence to which an endorsement in Form 137 has been added or attached, within
14 days after delivery of the statement of defence, or
(c) if the delivering party is a defendant to whom the plaintiff has delivered a statement
of claim to which an endorsement in Form 137 has been added or attached, within
the time limited for filing the statement of defence"
- Thus each party must deliver its list of documents on an expedited basis
- Party that triggers R.66 must delivery documents with the pleading
- If P receives SOD triggering R.66, P has 14 days to deliver list
(13) Duration of examinations for discovery
- "Subject to subrule (14), an examination for discovery must not exceed 2 hours in duration
unless the parties otherwise consent"
(14) Extension of time for examinations for discovery
- "On the application of a party made before or after the examination for discovery permitted
under this rule, the court may extend the time allowed for the examination for discovery"
(15) Considerations of court
- "In exercising its discretion under subrule (14), the court must take into account
(a) the issues identified in the pleadings,
(b) the number and nature of the documents disclosed by the parties,
(c) the subject areas to be canvassed,
(d) the parties' estimates of the time that will be required to complete the examination,
and
(e) any other circumstances relevant to the fair resolution of the dispute on its merits"
- These are factors when considering whether court will give more than 2 hours for discovery
(16) Applicant not obliged to reveal questions
- "An applicant under subrule (14) need not reveal, on that application, any questions to be
asked of the witness"
(17) Date for completion of examinations for discovery
- "Unless the court otherwise orders or the parties to the examination consent, an examination
for discovery must be completed at least 14 days before the date assigned for the trial"
(18) No interrogatories
- "Unless the court otherwise orders, no party is obliged to answer interrogatories"
(19) Trial without jury
- "A trial must be heard by the court without a jury"
(20) Trial date within 4 months
- "Subject to subrule (21), if a party to the action applies for a trial date within 4 months after
the date on which this rule becomes applicable to the action, the registrar must set a date for
the trial that is not later than 4 months after the application for the trial date"
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(21) Chief Justice may alter time to trial
- "The Chief Justice may, by practice direction, extend or reduce the time limit within which
the registrar must set a trial date under subrule (20)"
(22) Trial agenda
- "The parties must file a trial agenda in Form 139
(a) at least 2 clear days before trial, or,
(b) if the action is brought in a registry in which there is a calling of trial lists, on the day
preceding the calling of the list"
(23) What trial agenda must contain
- "The trial agenda must contain an estimate of the time required for each of the following:
(a) the opening statement by each party;
(b) the examination in chief of each expected witness;
(c) the cross-examination of each expected witness;
(d) the final submission by each party;
(e) any other matter that may affect the length of the trial.
(24) Trial record
- "The trial record must be filed at the same time as the trial agenda"
(25) Confirmation of estimates
- "At the commencement of a trial, the court may consult with the parties to
(a) verify the time estimates contained in the trial agenda, and
(b) determine the time that will be allowed for the items listed in subrule (23) (a) to (e)"
(26) Parties may be confined to time estimates
- "The court may limit the parties to the time limits verified or determined under subrule
(25), or may extend or shorten the time limits"
(27) Considerations of the court
- "In exercising its discretion under subrule (26), the court must take into account
(a) the object of this rule, and
(b) any other circumstances relevant to the fair resolution of the dispute on its merits"
(28) Trial may be adjourned
- "If, as a result of the consultation referred to in subrule (25), the court considers that the trial
will likely require more than 2 days, the judge who engaged in that consultation
(a) may adjourn the trial to a date to be fixed as if the action were not subject to this
rule, and
(b) is not seized of the action"
(29) Costs
- "Unless the court orders otherwise or the parties consent, and subject to Rule 57 (10), the
amount of costs, exclusive of disbursements, to which a party is entitled is as follows::
(a) if the time spent on the hearing of the trial is one day or less, $5 000;
(b) if the time spent on the hearing of the trial is more than one day, $6 600"
- Thus fixed costs unless a court rules otherwise
b) Rule 68 — Expedited Litigation Project Rule
- This is a pilot project which is the forerunner to significant rule changes to come
- Supposed to lay ground rules for proportionality principles
- However, litigants are reluctant to use it because it deprives them of things that other actions
allow them to do (ie: examination for discovery)
(2) Actions to which this rule applies
- "Subject to subrule (5), this rule applies to an action commenced in the Vancouver, Victoria,
Prince George or Nelson registry after September 1, 2005, and to every action commenced in
any registry after January 1, 2008, if
(a) the only claims in the action are for one or more of the following:
(i) money;
(ii) real property;
(iii) personal property, and
(b) the total of the following amounts is $100 000 or less, exclusive of interest and
costs:
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(i) the amount of any money claimed in the action by the plaintiff for pecuniary
loss;
(ii) the amount of any money to be claimed in the action by the plaintiff for nonpecuniary loss;
(iii) the fair market value, as at the date the action is commenced, of all real property,
all interests in real property, all personal property and all interests in personal
property claimed in the action by the plaintiff"
(4) No maximum recovery
- "Nothing in this rule prevents a court from awarding damages to a plaintiff in an expedited
action for an amount in excess of $100 000"
(5) Actions to which this rule does not apply
- "This rule does not apply to the following actions:
(a) a family law proceeding;
(b) a class proceeding within the meaning of the Class Proceedings Act"
(10) Limitation on interlocutory applications
- "Subject to subrule (11), a party to an expedited action must not deliver to another party a
notice of motion or affidavit in support of an interlocutory application unless a case
management conference or a trial management conference has been conducted in relation to
the action"
(11) Exceptions
- "Subrule (10) does not apply to an application made
(a) for an order under subrule (7) that this rule cease to apply to the action,
(b) to obtain leave to bring an application referred to in subrule (12),
(c) under Rule 18 or 19 (24),
(d) to add, remove or substitute a party, or
(e) by consent"
(12) Court may grant relief
- "On application by a party, a judge or master may relieve a party from the requirements of
subrule (10) if
(a) it is impracticable or unfair to require the party to comply with the requirements of
subrule (10), or
(b) the application referred to in subrule (10) is urgent"
(13) Proportionality
- "In considering any application under this rule, the court must consider what is
reasonable in relation to the amount at issue in the action"
- This is the "proportionality principle"
- G: adds potential for fights on what the proportionality principle is
(16) Disclosure of documents
- "Within 15 days after the close of pleadings or within 15 days after the action becomes an
expedited action, whichever is later, each party must
(a) prepare and deliver to every other party a list of
(i) all documents referred to in the party’s pleading,
(ii) all documents to which the party intends to refer at trial, and
(iii) all documents in the party’s control that could be used by any party at trial
to prove or disprove a material fact, and
- G: may lead to more disputes about what documents should be disclosed
(b) deliver to every other party a copy of each of the listed documents"
- This list is not based on the Peruvian Guano standard
(17) Continuing obligation to provide list
- "If a party who has provided a list or revised list of documents later learns that the list is
inaccurate or incomplete, the party is under a continuing obligation to
(a) add to the list any documents or class of documents that must be added to provide an
accurate and complete list of the documents of which disclosure is required under
subrule (16) (a),
(b) deliver to the other parties the revised list along with copies of the newly listed
documents, and
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(c) make the originals of the newly listed documents available for inspection in
accordance with subrule (18)"
(18) Inspection of documents
- "A party who has prepared or revised a list of documents under subrule (16) or (17) must, on
request, make the originals of the listed documents available for inspection at the address for
delivery of that party or at such other location as that party and the party requesting inspection
may agree"
(19) Party may request additional documents
- "If a party who has received a list of documents under subrule (16) or a revised list of
documents under subrule (17) believes that the list omits documents or a class of documents
that should have been disclosed under those subrules, the party may, by written demand,
require the party who prepared the list to
(a) add to the list the documents or class of documents referred to in the demand,
(b) deliver to the demanding party the revised list along with the newly listed
documents, and
(c) make the originals of the newly listed documents available for inspection in
accordance with subrule (18)"
(22) Considerations of court
- "Without limiting subrule (13), in considering an application under subrule (20), the court
must consider the difficulty or cost of finding and producing the documents"
(27) No examination without leave or consent
- "Unless the parties to the action consent or the court otherwise orders, no party to an
expedited action may conduct examinations for discovery"
- So default position is no discovery (concerning)
(28) Duration of examinations for discovery
- "An examination for discovery allowed under subrule (27) must not exceed 2 hours in
duration unless the parties otherwise consent"
(31) Witnesses
- "Within 90 days after the close of pleadings or within 90 days after the action becomes an
expedited action, whichever is later, each party to an expedited action must deliver to each
other party
(a) a list, in Form 141, of the witnesses that the party delivering the list proposes to call
at the trial of the expedited action, which list must
(i) include the party delivering the list, if that party intends to give evidence at
trial, and
(ii) exclude any expert witnesses referred to in subrule (33), and
(b) for each of the witnesses included in the list, a written summary of the evidence that
the party believes that witness will give at trial"
(35) When case management conference may be requested
- "A party must not file a requisition under subrule (34) until after
(a) the expiry of the time limited for the preparation and delivery of a list of documents
under subrule (16), and
(b) the party has complied with
(i) subrules (16) and (18), and
(ii) any orders made under subrule (21)"
(43) Joint experts
- "If the court gives a direction under subrule (41) (j) for a jointly-instructed expert to be
used"
(54) Contents
- "A party preparing a trial brief under subrule (53) must include in that trial brief, in
consecutively numbered pages, or separated by tabs, the following documents in the
following order:
(a) a title page bearing the style of proceeding and the names of counsel;
(b) an index;
(c) a summary of the issues and the party’s position on those issues;
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(d) a list of the witnesses, with names and addresses, whom the party intends to call at
trial;
(e) a summary of the evidence the party expects each witness to give and an estimate of
the time required for the witness to give direct evidence;
(f) a list of the expert reports the party intends to adduce at trial;
(g) a list of the witnesses known to the party whom the party intends to cross-examine
and an estimate of the time required for cross-examination;
(h) a list of the documents the party intends to introduce at trial;
(i) copies of any expert reports the party proposes to rely on at trial;
(j) an estimate of the time that party requires for an opening statement and final
submissions;
(k) the terms of the order the party will seek at trial;
(l) a list of any authorities the party intends to rely on at trial"
______________________________________________________________________________________
4) MEDIATION
- There are 2 regulations that permit parties to compel other parties to go to mediation:
a) Law and Equity Act, Notice to Mediate (General) Regulation
- Permits a party to compel a mediation of a BCSC matter
- The regulation applies to matters other than those enumerated in s.2 of the Regulation
- ie: family law, judicial review, physical or sexual abuse
- Mediation triggered by a party delivering a Notice to Mdiate
- Notice may be delivered 60 days after the first statement of defence is filed and no later than 120
lays before trial
- Only one mediation is mandatory, unless the court orders otherwise
- If there is no agreement there is a process for a mediator to be appointed
- If matter warrants is, a pre-mediation conference can be held
- A party can apply to the court to direct when and how the mediation should proceed, that it
should be adjourned, or it should be ended
- Mediation must occur within 60 days of the appointment of the mediator, and no later than 7
days before trial (s.24)
- Prior to the mediation, each party must deliver a statement of facts and issues setting out the
basis for the party's position (s.26)
- Attendance is mandatory
- If court finds there has been an unexcused default, court may adjourn, order defaulting party to
attend, order costs, ect…
b) Notice to Mediate Regulation
- This is the predecessor to the General Regulation
- The provisions are similar but apply expressly to a motor vehicle action (s.2(1))
- Pretty much identical to the General Regulation above