The Continuing Legal Education Society of BC
February 2005
Peter G. Voith, Q.C.
Jasmine L. MacAdam
AFFIDAVITS IN RULE 18A PROCEEDINGS
I.
INTRODUCTION
A.
Rule 51
Affidavits are governed by Rule 51.1
B.
Why affidavits matter
Although Rule 18A(3)2 allows discovery evidence or answers to interrogatories to be adduced as
evidence on a summary trial, the evidence before the judge is normally contained in affidavits.
The proper drafting of affidavits is crucial. A court relies on affidavit evidence in the same
manner as it relies on oral testimony. An order will not be made under Rule 18A where material
evidence has not been brought before the court. Rule 18A(5)(a) provides that if there is
insufficient evidence to determine a fact necessary to resolve an issue the court cannot decide the
1
2
See Appendix “A” for Rule 51 in its entirety.
See Appendix “B” for Rule 18A in its entirety.
matter on a summary trial application: Jam’s International Ventures Ltd. v. Westbank Holdings
Ltd., 2001 BCCA 121. Nor is it the responsibility of the trial judge to examine the affidavit and
sort out the admissible evidence from the inadmissible, and the trial judge may instead ignore
such an affidavit in its entirety: Kour Estate v. Bhandar (1996), 6 R.P.R. (3d) 173.
II.
DRAFTING AFFIDAVITS GENERALLY
A.
Relevance and Admissibility
It is the responsibility of counsel on an application under Rule 18A to present only admissible
and relevant affidavit evidence. Affidavits are therefore usually confined to statements of fact.
Halsbury’s (4th) Vol. 37 §453 defines an affidavit as follows:
An affidavit is a written document containing material and relevant facts or statements
relating to the matters in question or issue, sworn or affirmed and signed by the deponent
before a person or officer duly authorized to administer an oath or take an affidavit.
An affidavit should contain only what is material and relevant. If there is a question of
admissibility of the evidence wished to be deposed to (for example, a without prejudice
communication is sought to be tendered into evidence) consider whether that material should be
segregated in a separate affidavit.3
B.
Organization
Affidavits should be organized in logical sequence. One way of doing this is to break the
evidence down by the elements of the cause of action at issue. It may, for example, be
appropriate to break the applicant’s evidence down by subject headings as follows:
(1)
Background of relationship between the parties;
(2)
Nature of dispute between the parties;
The evidence
C.
(a)
cause of action
(b)
damages
Alterations
Rule 51(9) governs alterations:
Alterations to be initialled
(9) The person before whom an affidavit is made shall initial all alterations in the
affidavit, and unless so initialled the affidavit shall not be used in a proceeding
without leave of the court.
3
J. Brent MacLean “Content: Meaning is Utility”, Affidavits, Continuing Legal Education, December, 1992 at p.
2.1.07
If the text of an affidavit is to be altered prior to execution, the alteration is to be initialed.
Without the initialing, the affidavit is not to be used without leave of the court. Deletion of
sentences or words from an affidavit constitutes “alterations” requiring the initials of the person
before whom the affidavit is sworn: Langley Stainless Products Ltd. v. 2051 Invts. Ltd., [1986]
B.C.J. No. 2572 (S.C.).
D.
November 22, 2004 Practice Direction
On November 22, 2004, Chief Justice Brenner issued a Practice Direction stating that affidavits
prepared for filing in the Registry must include the name, legibly typed or written, of the
commissioner before whom the affidavit was sworn as part of the jurat (in addition to the
signature).
III.
HEARSAY
A.
Rule 51
Rule 51(10) governs the contents of an 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 Rules 40(52)(a) or 52(8)(e).
Affidavit material filed by both the applicant and the respondent must generally be based on
personal knowledge and not on information and belief: Adia S.A. v. MacLean (1985), 6 C.P.C.
(2d) 42 (B.C.S.C.). An application under Rule 18A is not an interlocutory application and the
differences in the admissibility of evidence must be considered by counsel in preparing their
materials (Sermeno v. Trejo, 2000 BCSC 846 at para. 2). Accordingly, the standard statement
regarding knowledge acquired by “information and belief” is usually not included in an affidavit
for a proceeding under Rule 18A.4
It is an open question whether Rule 51(10) specifically excludes hearsay where the application is
for a final order even where it would be admissible at trial. McLauglin and Taylor in B.C.
Practice note that Rule 51(10) does not expressly exclude hearsay but merely provides that an
affidavit “may state only what a deponent would be permitted to state in evidence at a trial”.
Hearsay may be admissible in an affidavit in support of a final order if it satisfies the necessity
and reliability requirements for admission of hearsay evidence at trial, as set out in R v. Khan,
[1990] 1 S.C.R. 531.5
B.
Exceptions to the hearsay rule
If statements on information and belief are not tendered for the truth of their contents, but rather
to show that the statements relied upon were made, they do not offend the hearsay rule and may
be included in affidavits in applications for final orders: Chamberlain v. School District No. 36
(Surrey) (1998) 60 B.C.L.R. (3d) 311 (S.C.) at para. 20, varied 2000 BCCA 519, affirmed on
other grounds 2002 SCC 86. However, if the source of the deponent’s statement on information
and belief is not given, the statements in question or the entire affidavit, will be disregarded:
Chamberlain, supra at para. 26.
A respondent may also adduce hearsay evidence on jurisdictional or suitability issues, for
example in “averring that there may be witnesses available to support the respondent’s case from
whom it has not yet been able to get affidavit material” such that it would be unjust to grant
4
M. Lynn McBride “Evidence: Affidavits”, Rule 18A Applications,(Continuing Legal Education, October, 2004) by
at 3.1.07.
5
On recent developments in the law of hearsay as it relates to the necessity and reliability criteria, see Murray B.
Blok, “An Update on the Law Governing Hearsay, Part I” (2003) 61 The Advocate 497 and Murray B. Blok, “An
Update on the Law Governing Hearsay, Part II” (2003) 61 The Advocate 675.).
judgment before the respondent may obtain its evidence (Fomo v. Solkan (1986), 4 B.C.L.R. (2d)
264 at 267-68 (C.A.)).
Affidavits containing statements as to the deponent’s information and belief can also be relied
upon (if the source of the information is given) with leave of the court. Such leave, however,
should be given only in a few and exceptional circumstances (Sermeno, supra, at para. 11).
V.
EXHIBITS
A.
Rule 51
Rule 51(7) requires that an exhibit referred to in an affidavit 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].”
Rule 51(8) stipulates that while an exhibit referred to in an affidavit need not be filed, it must be
made available for the use of the court and for the prior inspection of a party to the proceeding.
Copies of documentary exhibits not exceeding 5 pages must be attached to the affidavit and to all
copies served or delivered.
Rule 51(8.1) requires that each page of the documentary exhibits referred to in an affidavit, other
than an affidavit of service or of delivery, be numbered sequentially, beginning with the first
page of the first exhibit and ending with the last page of the last exhibit.
B.
Describing exhibits
When attaching documents as exhibits, ensure that the witness’s affidavit adequately identifies,
describes and explains each document. If you were introducing that document as an exhibit at
trial, what information would you ask the witness to provide about that document during his or
her testimony? M. Lynn McBride has identified the type of information you might need to
include in an affidavit in relation to an exhibit:
C.
(1)
Who prepared the document, when, and for what purpose?
(2)
Was the document prepared all at one time, or were different sections completed
by different people at different times? If so, the sequence and timing may be
important and relevant and thus require explanation in the body of the affidavit.
(3)
Are there any signatures on the document that need to be identified by the
deponent in the affidavit?
(4)
Are there any terms and/or abbreviations in the document that need to be defined
or explained?
(5)
Is there any handwriting on the document that might not be legible to the judge,
and which, therefore, needs to be set out in type in the body of the affidavit?6
Importance of exhibits
Evidence attached as an exhibit can be crucial to the outcome of a case. Notwithstanding the
general rule that where there is a direct conflict in affidavit evidence, a summary trial may not be
appropriate (see, e.g., Jutt v. Doehring (1993), 82 B.C.L.R. (2d) 223 (C.A.)), the courts have
granted judgment in favour of one party where additional documentary evidence is available to
assist the court in resolving conflicts in the evidence: Orangeville Raceway Ltd. v. Wood Gundy
Inc. (1995), 6 B.C.L.R. (3d) 391 (C.A.).
6
McBride, supra, at 3.1.04
V.
LANGUAGE
A.
Rule 51
Rule 51(2) stipulates as follows:
(2)
FORM AND CONTENT OF AFFIDAVIT
An affidavit
(a)
must be expressed in the first person and show the name, address and
occupation of the deponent,
(b)
if the deponent is a party or the solicitor, agent, director, officer or
employee of a party, must state that fact,
(c)
must be divided into paragraphs numbered consecutively, and
(d)
may be in Form 60.
Rule 51(2)(a) requires that affidavits are written in the first person. Language appropriate to the
deponent should thus be used.
Rule 51(2)(a) also requires that the deponent’s relationship to the action be described. This
allows the court to put the evidence contained in the affidavit into context.
B.
Style and structure
Most applications are decided on the facts, not the law. The manner in which the facts are
presented is therefore all important. It is often said that there should be an element of advocacy
in affidavits. This does not meant that an affidavit should be untrue, misleading or
argumentative but simply that it should be compelling. By reading the affidavit, the master or
judge should be able to determine what the facts and issues are. Ideally, he or she should be able
to form at least a preliminary conclusion in your favour.
Begin with an understanding of the nature of the order you seek and the things which you must
prove to obtain that order. Organize the facts so as to set out each of the elements necessary to
your application. Consider the following checklist for preparing an affidavit:
(1)
make a list of the issues which you must address to obtain the order;
(2)
make a list of the facts which bear on those issues;
(3)
organize the facts in a logical way (according to issue or using a chronological
narrative structure, wherein each point flows logically from the last);
(4)
confine each paragraph in the affidavit to a topic;
(5)
confirm that the affidavit contains neither irrelevant nor “scandalous” material;
(6)
be organized, concise, and thorough;
(8)
define terms and use them consistently.
VI.
ARGUMENT
A.
Rule 51
An affidavit which states argument rather than evidence offends Rule 51(10) and is irrelevant:
East Kootenay Realty Ltd. v. Gestas Inc. (1986), 12 C.P.C. (2d) 95 (B.C.S.C.). Affidavits
establish facts. They should not be used to make arguments or submissions. Again, as per Kour
Estate, supra, where an affidavit contains argument, the court can ignore that affidavit in its
entirety.
VII.
LAY WITNESSES AND PARTIES
A.
Language
Again, counsel should try to ensure that affidavits are in the words of the witness and not in the
words of counsel. It may be useful for counsel to ask themselves “what [they] would have been
obliged to ask [their] client had [their] client given evidence in chief” and then draft the affidavit
in narrative form giving their client’s answers to those questions (Cotton v. Wellesby (1991), 50
C.P.C. (2d) 138 at 151 (B.C.C.A.). Southin J.A. in the Cotton case offered this summary:
Had this action gone to trial in the traditional way, the defendant would not have given
her evidence in chief in the terms of this affidavit. She would have given, in response to
questions from her counsel, chapter and verse of what took place between her and the
plaintiffs. Affidavits used on applications under Rule 18A should be in the words of the
witness -- not the words of counsel. Counsel in drafting such an affidavit should ask
himself what he would have been obliged to ask his client had his client given evidence
in chief. That evidence should then, in narrative form, be contained in the affidavit.
I cannot emphasize too strongly that Rule 18A is a rule for trial. A trial, whether
traditional or summary, must be conducted in an orderly way with due regard to the rules
of pleading and evidence. Judges proceeding under Rule 18A are not to think of
themselves as cadis under palm trees.
If a summary trial is not successful, and the action proceeds to trial, Rule 18A affidavits can be
used as prior inconsistent statements. Additionally, if an 18A application is made prior to
examinations for discovery and a deponent has already sworn affidavit for the 18A application,
the affidavit evidence may be put to the deponent at discovery. These are other reasons why the
deponent must understand and be absolutely comfortable with both the content and the language
of her affidavit.
B.
Who must swear an affidavit
The absence of an affidavit from “a principal player in the piece, unless its absence is adequately
explained, may cause the judge to conclude either that he cannot find the facts necessary to
decide the issues, or that it would be unjust to do so” (Inspiration Management Ltd. v. McDermid
St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d) 202 (C.A.) per McEachern C.J.B.C.).
C.
Lawyers should avoid swearing affidavits
Lawyers appearing as counsel in the proceedings in which the affidavit is to be used should not
swear affidavits for those proceedings. The Law Society of British Columbia Professional
Conduct Handbook 1993, Chapter 8, Rules 9 and 10 deal with the issue of the lawyer as witness
as follows:
9.
Unless the evidence relates to a purely formal or uncontroverted matter, a lawyer
who gives viva voce or affidavit evidence in a proceeding shall not thereafter act as
counsel in that proceeding unless it is necessary in the interests of justice.
10.
A lawyer who was a witness in proceedings shall not appear as advocate in any
appeal from the decision in those proceedings, when the lawyer’s evidence may
reasonably be expected to be an issue on the appeal.
Moreover, when a solicitor swears an affidavit on his client’s behalf on a matter of substance,
there is law that solicitor-client privilege has been waived, rendering the solicitor’s file
producible: Mannix Resources Inc., Re., 2004 BCSC 1315.
VIII. EXPERT OPINION
A.
Rule 18A
Since 1999, Rule 18A(3)(e) has allowed for the introduction of a written statement containing
the opinion of an expert to be adduced in evidence if the statement conforms to Rule 18A(5)
(which Rule governs the form of the statement), or if the court orders that the statement is
otherwise admissible.
B.
Setting out qualifications and basis for opinion
Rule 40A(6) (which provides that the assertions of qualifications of an expert in the expert
statement is prima facie proof of them) and Rule 40A(7)(a) (which provides that if a statement
does not comply with Rule 40A(5) it is inadmissible) also apply to Rule 18A (see Rule
18A(4.1)). It is crucial that the expert’s qualifications be set out. If they are not, the opinion
may be afforded no weight.
If the factual basis underlying an expert’s opinion is not proven elsewhere, then the opinion is
based on hearsay and will be ruled inadmissible.
C.
Notice
However, the balance of Rule 40A does not apply (see Rule 40A(1)). Reports do not have to be
delivered to every party of record at least 60 days before the statement is tendered in evidence.
However, in Pushee (Guardian ad Litem of) v. Roland, 2003 BCSC 149 at para. 15, the summary
trial judge held that although the notice provisions of Rule 40A had not been incorporated into
Rule 18A, reasonable notice should be given both of objections to expert reports and of the use at
the summary trial of expert report. Reasonable notice in that case was considered to be 30 days.
D.
Cross examination on expert reports
The Court has the power under Rule 18A(10)(b) to order cross-examination on an expert report
in statement form. However, parties must provide “reasonable notice” of their objections and
must make timely demands for attendance for cross-examination. See Pushee v. Roland, supra,
for consideration of what qualifies as “reasonable notice”.
E.
Affidavits by experts
Although Rule 18A does not require an affidavit from the expert, there are still instances where
filing an affidavit from an expert may be appropriate. An expert’s report may deal with a
number of different issues but a pending Rule 18A application may focus on only certain issues.
An expert report may require explanation best set out in an affidavit. An expert’s affidavit may
also comment upon and respond to an expert opinion tendered by an opposing party.
IV.
CROSS EXAMINATION ON AFFIDAVITS
A.
Rule 18A
Rule 18A(10)(b) allows the court to order that a deponent attend for cross-examination. Crossexamination on an affidavit may also occur by consent. Again, accuracy is therefore crucial.
Note that where a witness is cross examined on an affidavit, the transcript of the crossexamination then becomes admissible as evidence on behalf of either party: Placer Development
Ltd v. Skyline Explorations Ltd (1985), 67 B.C.L.R. 366 at 384 (C.A.) at para. 56.
A court may also, instead of ordering cross-examination on affidavits, remit the matter to trial for
cross-examination there: Foreman v. Foster 2001 BCCA 26 (C.A.) at para. 9. Accordingly, an
application for cross-examination ought not to be made lightly.
B.
Opposing an application for cross-examination
If an affidavit filed for a summary trial is uncontradicted, it is appropriate for the court to refuse
to order cross-examination of the deponent and to proceed with the hearing of the summary trial:
Cadboro Investments Ltd. v. Canada West Insurance Company (1987), 19 B.C.L.R. (2d) 352 at
359 (C.A.).
It is not sufficient for an applicant for cross-examination on affidavits under Rule 18A, to
speculate that something might be learned as a result. The court can refuse to order crossexamination on affidavits for a summary trial where “there is no material to suggest that . . .
cross-examination . . . would likely produce some evidence to support the . . . case” of the party
seeking the cross-examination: American Pyramid Resources Inc. (1987), 42 B.C.L.R. (2d)
xxxviii.
V.
COSTS
Improperly drafted affidavits may justify an award of costs. Consider whether all of the abovecited restrictions on the form and content of affidavits have been adhered to. If an unnecessary
affidavit has been filed, if documentary exhibits more than 5 pages in length have been attached,
if legal argument or hearsay have been improperly included, or if scandalous, frivolous,
unnecessary or vexatious material has been included, an award of costs can be sought.
Appendix “A”: Rule 51
Rule 51 – Affidavits
[en. B.C. Reg. 55/93, s. 19.]
Affidavit to be filed
(1) An affidavit used in a proceeding must be filed.
Form and content of affidavit
(2) An affidavit must
(a) must be expressed in the first person and show the name, address and
occupation of the deponent,
(b) if the deponent is a party or the solicitor, agent, director, officer or employee
of a party, must state that fact,
(c) must be divided into paragraphs numbered consecutively, and
(d) may be in Form 60.
Identifying affidavits
(2.1) An affidavit, other than an affidavit of service or of delivery, must be endorsed, in
the top right hand corner of the title page, with
(a) the initials and surname of the deponent,
(b) the sequential number of the affidavit made by that deponent in the same
proceeding, and
(c) the date on which the affidavit was made,
as in the following example:
J. Doe #3
July 24, 2000.
[en. B.C. Reg. 191/2000, s. 11.]
Making affidavit
(3) An affidavit is made when
(a) the affidavit is sworn or affirmed by the deponent,
(b) the deponent
(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.
Reference to oath in affidavit or exhibit
(4) In an affidavit or in a certificate placed on an exhibit, the word "sworn" shall be
deemed to include the word "affirmed".
Jurat where deponent unable to read
(5) Where it appears to a person before whom an affidavit is made that a deponent is
unable to read it, he or she shall certify in the jurat that the affidavit was read in his or her
presence to the deponent who seemed to understand it.
Interpretation to deponent who
does not understand English
(6) Where it appears to a person before whom an affidavit is to be made that the deponent
does not understand the English language, the affidavit shall be interpreted to the
deponent by a competent interpreter who shall certify by endorsement in Form 60 on the
affidavit that he or she has interpreted the affidavit to the deponent.
Exhibit to be marked
(7) 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].
Copies of documentary exhibits
(8) An exhibit referred to in an affidavit need not be filed, but must be made available for
the use of the court and for the prior inspection of a party to the proceeding and, in the
case of a documentary exhibit not exceeding 5 pages, a true reproduction must be
attached to the affidavit and to all copies served or delivered.
Numbering exhibit pages
(8.1) Each page of the documentary exhibits referred to in an affidavit, other than an
affidavit of service or of delivery, must be numbered sequentially, beginning with the
first page of the first exhibit and ending with the last page of the last exhibit,
(a) on the original exhibits and on all copies that are served or delivered, and
(b) even though one or more of those exhibits is not attached to the affidavit.
[en. B.C. Reg. 191/2000, s. 11.]
Alterations to be initialled
(9) The person before whom an affidavit is made shall initial all alterations in the
affidavit, and unless so initialled the affidavit shall not be used in a proceeding without
leave of the court.
Contents of affidavit
(10) 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).
Use of defective affidavit
(11) With leave of the court an affidavit may be used in evidence notwithstanding an
irregularity in form.
Affidavit made before proceeding commenced
(12) An affidavit may be used in a proceeding notwithstanding that it was made before
the proceeding was commenced.
Affidavit of patient under the Patients Property Act
(13) If an affidavit is required for use in a proceeding and the proposed deponent is a
patient as defined in the Patients Property Act, the affidavit may be sworn, on
information and belief, by the litigation guardian of the patient.
[en. B.C. Reg. 161/98, s. 15; am. B.C. Reg. 83/2002, Sch. s. 1.]
Appendix “B”: Rule 18A
Rule 18A – Summary Trial
Application
(1) 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.
[en. B.C. Reg. 95/96, s. 7; am. B.C. Regs. 161/98, s. 9 (a); 149/99, s. 3 (a).]
When application must be heard
(1.1) An application under subrule (1) must be heard at least 45 days before the date set
for trial in the proceeding.
[en. B.C. Reg. 198/2003, s. 4 (a).]
Setting application for hearing
(2) Unless otherwise ordered, an application under subrule (1) must be set for hearing in
accordance with Rule 51A.
[en. B.C. Reg. 101/2001, s. 3 (a); am. B.C. Reg. 198/2003, s. 4 (b).]
Evidence on application
(3) 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).
[en. B.C. Reg. 95/96, s. 7; am. B.C. Regs. 149/99, s. 3 (b) and (c); 198/2003, s. 4
(c).]
Application of Rule 40
(4) Rule 40 (27) (a) and (d), (28), (29) and (31) to (33) applies to subrule (3).
[en. B.C. Reg. 95/96, s. 7.]
Application of Rule 40A
(4.1) Rule 40A (6) and (7) (a) applies to an application under subrule (1).
[en. B.C. Reg. 149/99, s. 3 (d); am. B.C. Reg. 198/2003, s. 4 (d).]
Filings with application
(5) 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.
[en. B.C. Reg. 95/96, s. 7; am. B.C. Regs. 149/99, s. 3 (e) and (f); 101/2001, s. 3 (b) and
(c); 198/2003, s. 4 (e).]
Notice of evidence to be used on application
(6) 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.
[en. B.C. Reg. 95/96, s. 7.]
Time for giving notice
(7) 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).
[en. B.C. Reg. 101/2001, s. 3 (d).]
Ancillary orders and directions
(8) 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.
[en. B.C. Reg. 198/2003, s. 4 (f).]
(9) Repealed. [B.C. Reg. 198/2003, s. 4 (f).]
Preliminary directions
(10) 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,
(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.
[en. B.C. Reg. 95/96, s. 7; am. B.C. Regs. 149/99, s. 3 (g); 198/2003, s. 4 (c).]
Ancillary or preliminary orders and directions
may be made at or before application
(10.1) An order under subrule (8) or (10) may be made by a judge or by a master, and
may be made before or at the same time as an application under subrule (1).
[en. B.C. Reg. 198/2003, s. 4 (g).]
Judge not seized of application
(10.2) A judge who makes an order under subrule (8) or (10) in relation to an application
under subrule (1) is not seized of the application under subrule (1) unless the judge
otherwise orders.
[en. B.C. Reg. 198/2003, s. 4 (g).]
Judgment
(11) 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.
[en. B.C. Reg. 95/96, s. 7; am. B.C. Reg. 198/2003, s. 4 (b).]
No further application without leave
(12) 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.
[en. B.C. Reg. 95/96, s. 7.]
Directions
(13) 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.
[en. B.C. Reg. 95/96, s. 7; am. B.C. Reg. 165/97, s. 7.]
(14) Repealed. [B.C. Reg. 161/98, s. 9 (b).]
Right to vary or set aside order
(15) A court may, before or at trial, vary or set aside an order made under subrules (10)
and (13).
[en. B.C. Reg. 95/96, s. 7.]
Order if jury notice filed
(16) 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 that the trial of the
action be heard with a jury.
[en. B.C. Reg. 95/96, s. 7; am. B.C. Reg. 198/2003, s. 4 (e).]
Appendix “C”: Rule 40A
Rule 40A – Evidence of Experts
[en. B.C. Reg. 55/93, s. 14, eff. Aug. 30, 1993]
Application
(1) This rule does not apply to summary trials under Rule 18A, except as provided in that
rule.
Admissibility of written statements of expert opinion
(2) 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.
Admissibility of oral testimony of expert opinion
(3) 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.
Idem
(4) The statement also may be tendered in evidence.
Form of statement
(5) The statement shall set out or be accompanied by a supplementary statement setting
out the following:
(a) the qualifications of the expert;
(b) the facts and assumptions on which the opinion is based;
(c) the name of the person primarily responsible for the content of the
statement.
Proof of qualifications
(6) The assertion of qualifications of an expert is prima facie proof of them.
Admissibility of evidence
(7) 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.
Notice of trial date to expert
(8) 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.
Demand to cross-examine
(9) 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.
Idem
(10) The expert need not attend at trial unless the demand is made within a reasonable
time after delivery of the statement.
Idem
(11) 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.
Costs of cross-examination
(12) 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.
Notice of objection to expert evidence
(13) 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.
Idem
(14) 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.
Dispensing with statement
(15) At trial, the court may dispense with the requirement of delivery of a statement.
Idem
(16) 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 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.
Time
(17) Before or at trial, the court may extend or abridge the time limits set out in this rule.
Appendix “D”: Bibliography
Affidavits, Continuing Legal Education, December, 1992
Lisa A. Warren, Ludmila Herbst, and Christine Oberti, “Rule 18A Applications: Suggestions
for Effective Use” Rule 18A Applications, Continuing Legal Education, October, 2004
M. Lynn McBride, “Evidence: Affidavits” Rule 18A Applications, Continuing Legal Education,
October, 2004