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Law 270B.002 Civil Procedure (Goulden)
COMMENCING PROCEEDINGS AND UNDEFENDED PROCEEDINGS........................................... 9
Professional Conduct Handbook (PCH) - chapter 1 [Canons of Legal Ethics] ........................................... 9
PCH – chapter 8 [Lawyer as Advocate] ..................................................................................................... 9
Interpretation ........................................................................................................................................... 9
Time .......................................................................................................................................................... 9
Rule 22-4 ............................................................................................................................................... 9
Tung Wise v Park Georgia Realty (1994) BCSC [Rule 22-4(2)] .............................................................. 9
Indigent Status .......................................................................................................................................... 9
Rule 20-5 ............................................................................................................................................... 9
Change of Lawyer...................................................................................................................................... 9
Rule 22-6 ............................................................................................................................................... 9
Professional Conduct Handbook – Ch. 10 “Withdrawal”.................................................................... 10
THE RULES OF COURT ............................................................................................. 10
Object of Rules ........................................................................................................................................ 10
Rule 1-3 ............................................................................................................................................... 10

McGauley v British Columbia ...................................................................................................... 10
Non-Compliance ..................................................................................................................................... 10
Rule 22-7 Effect of Non-Compliance .................................................................................................. 10
International Forest Products Ltd v Moody......................................................................................... 11
Want of Prosecution ............................................................................................................................... 11
Rule 22-4(5) ......................................................................................................................................... 11
Rule 22-7(7) ......................................................................................................................................... 11
PMC Builders & Developers Ltd v Country West Construction Ltd [Rule 22-7(7): Want of
Prosecution] ........................................................................................................................................ 11
PRELIMINARY CONSIDERATIONS................................................................................. 11
Concept of costs...................................................................................................................................... 12
Limitation Periods ................................................................................................................................... 12
Limitation Act ...................................................................................................................................... 12
Forum ...................................................................................................................................................... 12
Rule 2-1 choosing correct form of proceeding ................................................................................. 13
2-1(1) – NOCC is default pleading (= action)................................................................................... 13
2-1(2) – certain proceedings done by petition/requisition ............................................................ 13
DEFINING AN ACTION.............................................................................................. 13
Pleadings ................................................................................................................................................. 13
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Law 270B.002 Civil Procedure (Goulden)
Rule 3-7 pleadings generally ............................................................................................................ 13
Notice of Civil Claim [Form 1] ................................................................................................................ 14
Rule 3-1 Notice of Civil Claim ............................................................................................................. 14
Rule 3-2: Renewal of Notice ................................................................................................................... 14
Sutherland v McLeod – Rule 3-2 primarily concerned with rights of litigants and not conduct of
solicitors .............................................................................................................................................. 15
Mountain-West Resources Ltd v Fitzgerald ........................................................................................ 15
Service ..................................................................................................................................................... 15
Rule 4-1 Address for Service .............................................................................................................. 15
Rule 4-2 Ordinary Service (default method of service) ...................................................................... 15
Rule 4-3 Personal Service [limited circumstances where personal service required] ...................... 16
Rule 4-4 Alternative Methods of Service ........................................................................................... 16
Credit Foncier - substituted service only ordered when personal service can’t be effected or too
expensive ............................................................................................................................................ 16
Rule 4-5 How to serve D outside of BC .............................................................................................. 16
Rule 4-6 for proving service .............................................................................................................. 16
Rule 4-7 relief if service alleged to be ineffective ............................................................................. 16
Jurisdiction .............................................................................................................................................. 16
RESPONDING TO AN ACTION ..................................................................................... 17
Responding to Civil Claim [Form 2] ........................................................................................................ 17
Rule 3-3 responding to NOCC............................................................................................................ 17
Counterclaim [Form 3] ........................................................................................................................... 17
Rule 3-4 counterclaim ....................................................................................................................... 18
Default of Pleading (Ability to obtain Default Judgments) [Form 8] ..................................................... 18
Rule 3-8 Default Judgment................................................................................................................. 18
Professional Conduct Handbook – chap. 11 (Responsibility to Other Lawyers): s 12 Proceeding in
Default................................................................................................................................................. 19
Parties ..................................................................................................................................................... 19
Rule 6-2 Change of Parties ................................................................................................................. 19
Rule 20-1 Partnerships ....................................................................................................................... 20
Rule 20-2 Persons under disability (most commonly infants) ........................................................... 20
Multiple Claims ....................................................................................................................................... 20
Rule 22-5 Multiple claims and parties................................................................................................ 20
Shah v Bakken – Factors to consider in exercise of discretion under Rule 22-5(8) [consolidation] ... 21
Merritt v Imasco – Rule 22-5(8) Consolidation ................................................................................... 21
Hayes v BC Television Broadcasting – “Representative Proceeding” [Rule 20-3(1)] .......................... 21
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Rule 3-6 [Reply] ...................................................................................................................................... 21
Third Party Proceedings .......................................................................................................................... 21
Rule 3-5 Third Party Claims ............................................................................................................... 21
Particulars ............................................................................................................................................... 22
Rule 3-7 (18) – (24) Particulars........................................................................................................... 22
Hayes Heli-Log Services Ltd v Acro Aerospace Inc - order for particulars [Rule 3-7(22)] .................. 22
Scandalous, Frivolous or Vexatious Matters........................................................................................... 22
Rule 9-5 Striking Pleadings ................................................................................................................. 22
Odhavji Estate v Woodhouse – test for disclosing no reasonable cause of action = whether it is plain
and obvious that no reasonable cause of action is disclosed ............................................................. 23
Citizens for Foreign Aid Reform Inc v Canadian Jewish Congress – any doubt on “plain and obvious
test” resolved in favour of letting pleading stand .............................................................................. 23
Amending Pleadings [amendments liberally granted]........................................................................... 23
Rule 6-1 Amendment of Pleadings..................................................................................................... 23
Rule 9-8 [Discontinuance and Withdrawal] ........................................................................................... 23
DIFFERENT TYPES OF PROCEEDINGS ............................................................................ 24
Class Actions ........................................................................................................................................... 24
Petitions .................................................................................................................................................. 24
Rule 2-1(2) Commencing proceedings by petition ............................................................................. 24
Douglas Lake Cattle Co v Smith – deciding whether to make final determination in petition
proceeding or send to trial list ............................................................................................................ 24
Rule 16-1 Petitions – process for proceeding via petition ................................................................. 24
Rule 17-1 Requisitions [request court to enter consent order] ............................................................ 24
BUILDING THE CASE – DOCUMENTS ............................................................................ 25
Discovery and Inspection of Documents ................................................................................................ 25
Rule 7-1 Discovery and inspection of documents .............................................................................. 25
o
Wolansky v Davidson .................................................................................................................. 25
o
Sunnar v U-Haul Co (Canada) Ltd................................................................................................ 25
o
Babcock v Canada (Attorney General) ........................................................................................ 25
o
Leung v Hanna ............................................................................................................................ 25
Hunt v T&N plc – if you get docs produced to you in the course of litigation you can’t use them in
other matters ...................................................................................................................................... 26
Lists of Documents [Form 22] ................................................................................................................ 26
Privilege [Rule 7-1(16)]........................................................................................................................... 26
Hodgkinson v Simms – need for full disclosure will rarely displace privilege ..................................... 26
Non-Party Documents [Rule 7-1(18)]..................................................................................................... 26
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BUILDING THE CASE – TESTIMONY .............................................................................. 27
Examinations for Discovery..................................................................................................................... 27
Sutherland (Guardian ad litem of) v Lucas – only one XFD is contemplated ...................................... 27
Hanke v Francis – general rule: P should examine first when XFD of both parties scheduled at same
time by agreement.............................................................................................................................. 27
Rule 7-2 Examinations for Discovery ................................................................................................. 27
o
Rainbow Industrial Caterers v Canadian National Railway ........................................................ 28
o
Westcoast Transmission Co v Interprovincial Steel and Pipe Corp ............................................. 28
o
Fraser River Pile & Dredge Ltd v Can-Dive Services Ltd ............................................................... 28
o
Northwest Sports Enterprise Ltd v Griffiths................................................................................. 28
o
Whistler Mountain Ski Corp v Harbers ........................................................................................ 29
FILLING IN THE GAPS ............................................................................................... 29
Pre-Trial Examination of Witness............................................................................................................ 29
Rule 7-5 Pre Trial Examination of W ................................................................................................. 29
Sinclair v March – scope of inquiry under Rule 7-5 not limited to issues as defined in pleadings;
includes all that is generally relevant between the parties ................................................................ 29
Yemen Salt Mining Corp v Rhodes-Vaughn Steel Ltd – scope of inquiry broader under Rule 7-5 than
Rule 7-2 ............................................................................................................................................... 30
Interrogatories [Form 24] ...................................................................................................................... 30
Rule 7-3 Discovery by interrogatories ............................................................................................... 30
Tse-Ching v Wesbild Holdings Ltd - rules for interrogatories and appropriate use ........................... 30
Rule 7-6 Physical Examination and Inspection....................................................................................... 31
Notices to Admit [Form 26].................................................................................................................... 31
Rule 7-7 Admissions ........................................................................................................................... 31
o
Skillings v Seasons Development Corp ........................................................................................ 31
INTERLOCUTORY PROCEDURES................................................................................... 31
Rule 8: Interlocutory Applications .......................................................................................................... 31
Rule 8-1 How to bring and respond to applications .......................................................................... 31
o
Form 33 ....................................................................................................................................... 32
Rule 8-2 Place application is heard .................................................................................................... 32
Rule 8-3 Consent Applications – avoids having contested case in court ........................................... 32
Rule 8-4 Without Notice Applications................................................................................................ 32
Rule 8-5 Urgent Applications ............................................................................................................. 32
Rule 8-6 Applications by Written Submissions – provides for applications that don’t need oral
submissions (if order made at case planning conference) ................................................................. 33
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Case Planning Conference [CPC] ............................................................................................................ 33
Rule 5-1 Requesting CPC .................................................................................................................... 33
Rule 5-2 Conduct of CPC .................................................................................................................... 33
Rule 5-3 CPC Orders ........................................................................................................................... 34
Rule 5-4 Applications to amend CPC orders ...................................................................................... 34
Chambers ................................................................................................................................................ 34
Rule 22-1 Chambers proceedings ..................................................................................................... 34
Affidavits [see Form 109] ........................................................................................................................ 34
Rule 22-2 Affidavits ............................................................................................................................ 34
Professional Conduct Handbook, App. 1 [Affidavits and solemn declarations] ................................. 34
Masters, Registrars, Judges..................................................................................................................... 35
Rule 23-6 Masters, Registrars and Special Referees .......................................................................... 35
ORDERS AND INJUNCTIONS ....................................................................................... 35
Orders ..................................................................................................................................................... 35
Rule 13-1 Orders ................................................................................................................................. 35
Rule 13-2 Enforcement of Orders ...................................................................................................... 36
Rule 13-3 [Subpoena to debtor] and Rule 13-4 [Examinations in aid of execution] .......................... 36
Court Order Enforcement Act .............................................................................................................. 36
Interlocutory Injunctions ........................................................................................................................ 36
Rule 10-4 Injunctions ......................................................................................................................... 37
RJR MacDonald Inc v Canada (AG) – three part test for issuing an injunction................................... 37
Onkea Interactive Ltd v Smith – BCCA states test for injunction as two part test .............................. 37
Without Notice Orders [= ex parte] ........................................................................................................ 37
Professional Conduct Handbook [Chap. 8, s. 21] – in w/o notice proceeding lawyer must inform
court of all material facts he knows even if facts are adverse to his client’s interests ...................... 38
Rule 10-1 Detention, Preservation and Recovery of Property [a subset of injunctions] ....................... 38
Anton Piller Orders [= civil search and seizure warrant] – for gathering evidence you think will be
destroyed ............................................................................................................................................ 38

Celanese Canada Inc v Murray Demolition Corp......................................................................... 38
Mareva Injunctions ................................................................................................................................. 39

Traff v Evancic ............................................................................................................................. 39

Mooney v Orr (No 2) ................................................................................................................... 39

Tracy v Instaloans Financial Solutions Centres (BC) Ltd .............................................................. 39
SUMMARY PROCEEDINGS......................................................................................... 39
Rule 9-6 Summary Judgment [bring together with summary trial application (Rule 9-7)] .................. 39
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Skybridge Investments Ltd v Metro Motors Ltd .................................................................................. 39
Memphis Rogues Ltd v Skalbania – if there is any doubt that there is a triable issue application will
be dismissed........................................................................................................................................ 39
Summary Trial ......................................................................................................................................... 39
Rule 9-7 Summary Trial ...................................................................................................................... 40
o
Hunt v T&N plc ............................................................................................................................ 40
o
Kassam v Kassam ........................................................................................................................ 40
o
Inspiration Management Ltd v McDermid St Lawrence Ltd........................................................ 40
o
Colosimo v Geraci ........................................................................................................................ 40
o
Colosimo v Geraci ........................................................................................................................ 40
o
Western Delta Lands Partnership v 355537 Canada Inc ............................................................. 40
o
Raven v Kamloops ....................................................................................................................... 40
o
Foreman v Foster ........................................................................................................................ 40
Roynat Inc v Dunwoody & Co .............................................................................................................. 41
o
Hunt v T & N plc .......................................................................................................................... 41
Anglo Canadian Shipping Co v Pulp, Paper & Woodworkers of Canada, Local 8................................ 41
Rule 9-3 Special Case.............................................................................................................................. 41
o
BC (Minister of Forests) v Abitibi ................................................................................................. 41
o
Hunt v T&N plc ............................................................................................................................ 41
o
BC (Minister of Forests) v Abitibi ................................................................................................. 41
o
Xeni Gwet’in First Nations Government v BC .............................................................................. 41
Rule 9-4 Point of Law .............................................................................................................................. 41

Larsen v Larsen ............................................................................................................................ 41

Okanagan Indian Band v Bonneau.............................................................................................. 41

BC Teachers’ Federation v BC ...................................................................................................... 41

Alcan Smelters & Chemicals Ltd .................................................................................................. 41

Can-Dive ...................................................................................................................................... 41
ALTERNATIVES BEFORE TRIAL .................................................................................... 42
Offers to Settle ........................................................................................................................................ 42
Rule 9-1 Offers to Settle ...................................................................................................................... 42
Judicial Settlement Conference .............................................................................................................. 42
Rule 9-2 Settlement Conferences – basically mediation before judge (don’t have to pay judge to
mediate); only if parties agree or court orders .................................................................................. 42
Alternative Dispute Resolution ............................................................................................................... 43
Mediation ............................................................................................................................................ 43
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Arbitration........................................................................................................................................... 43
HEADED TO TRIAL .................................................................................................. 43
Depositions ............................................................................................................................................. 43
Rule 7-8 Depositions ........................................................................................................................... 43
trial Procedures ....................................................................................................................................... 44
Rule 12-1 Set trial for hearing ............................................................................................................. 44
Rule 12-2 Trial management conference............................................................................................ 44
Rule 12-3 Trial record.......................................................................................................................... 44
Rule 12-4 Trial certificate .................................................................................................................... 44
Rule 12-5 Evidence and procedure at trial.......................................................................................... 44
Rule 12-6 Jury trials – not very common in civil litigation (mostly used in personal injury) ................. 46
Experts’ Reports ...................................................................................................................................... 46
R v Mohan [preliminary admissibility issues of expert evidence] ...................................................... 46
Rule 11-1 Application of Rule 11 ......................................................................................................... 46

Vancouver Community College v Parratt .................................................................................... 46
Rule 11-2 Duty of Expert Ws .............................................................................................................. 46
Rule 11-3 Appointment of Joint Experts [usually where only one expert in a particular area]......... 46
Rule 11-4 Appointment of Own Experts ............................................................................................. 47
Rule 11-5 Appointment of Court’s own Expert................................................................................... 47
Rule 11-6 Expert Reports [technical requirements of expert reports] .............................................. 47
Rule 11-7 Expert Opinion Evidence at Trial - default rule: unless cross examination, report =
evidence .............................................................................................................................................. 48
Fast Track and Expedited Litigation ........................................................................................................ 48
Rule 15-1 Fast Track Litigation ........................................................................................................... 48
Procedure for Costs [don’t forget effects of offers] .............................................................................. 49
Rule 14-1 Costs.................................................................................................................................... 50
o
Lee v Richmond Hospital Society ................................................................................................. 50
o
Bradshaw Construction Ltd ......................................................................................................... 50
o
Garcia v Crestbrook ..................................................................................................................... 50
Appendix B .......................................................................................................................................... 51
Security for Costs ................................................................................................................................ 51
APPEALS AND REVIEW OF DECISIONS .......................................................................... 51
Rule 23-6 Masters, Registrars and Special Referees [appealing decision of Master/Registrar] ....... 51
Court of Appeal Act, ss 6 and 7 [appealing decision of Judge] .......................................................... 52
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Commencing Proceedings and Undefended Proceedings
PROFESSIONAL CONDUCT HANDBOOK (PCH) - CHAPTER 1 [CANONS OF LEGAL ETHICS]

5 competing duties:
o To the state
o To courts and tribunals
o To the client
o To other lawyers
o To oneself
PCH – CHAPTER 8 [LAWYER AS ADVOCATE]

(12) – there is no property in a witness; no lawyer has ownership over a W
o Subject to exception when W is represented by a lawyer (12.1)
INTERPRETATION

Start with Rule 1-1 then look at Interpretation Act
TIME
Rule 22-4
(1) period of less than 7 days doesn’t include holidays
(2) court can extend time even if application to extend is made after time expired
(3) time periods may be extended by consent
 In BCSC system lawyers guide the process – for many of the Rules, parties are in control and can
make changes to timing
 If you can’t extend time by consent you can apply to court to extend time period [22-4(2)]
(4) “want of prosecution”
 In proceeding where no steps taken in one year, can’t proceed until:
 (a) serve notice (Form 44) of intention to proceed, and wait until 28 days after service
 (b) file copy of notice to proceed and proof of its service
Tung Wise v Park Georgia Realty (1994) BCSC [Rule 22-4(2)]
 Applicant must support application with evidence of circumstances which justify an extension of
time
 For any extension when both parties won’t consent – have to provide evidence to justify why
you can’t work within the provided time period
INDIGENT STATUS
Rule 20-5
(1) if court finds person is indigent, may order no fee is payable by that person in relation to proceedings
unless court considers the claim or defence:
(a) discloses no reasonable claim or defence
(b) is scandalous, frivolous or vexations, or
(c) is otherwise an abuse of the process of the court
 Allows person to apply for and obtain the ability to waive costs – allows person to still advance
their case
CHANGE OF LAWYER
Rule 22-6
 Technical requirements for withdrawing as counsel
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Law 270B.002 Civil Procedure (Goulden)

Also consider Professional Obligations
Professional Conduct Handbook – Ch. 10 “Withdrawal”
 When withdrawing as counsel, must fulfill technical requirements of Rule 22-6 and consider
Professional Obligations
Required to Withdraw (ch 10 s 1)
(a) if discharged by client
(b) instructed by client to do something inconsistent with professional responsibility
(c) client takes position only to harass or maliciously injure another
(d) lawyer’s involvement = conflict of interest
(e) lawyer is not competent to handle the matter
Optional Withdrawal (ch 10 s 2) – allowed, but not required, to withdraw if serious loss of confidence
between lawyer and client
Residual Right to Withdraw (ch 10 ss 3, 4, 5)
(3) if don’t fit in ss 1 and 2 – may only withdraw if not:
(a) unfair to client
(b) done for improper purpose
(4) “Unfairness” depends on circumstances but consider whether withdrawal would:
(a) occur at stage requiring client to retain another lawyer to do same work, or part of it
(b) leave client with insufficient time to retain another lawyer and
(c) give replacement lawyer insufficient time to prepare to represent the client
(5) “Impropriety” includes withdrawal in order to:
(a) delay court proceedings or
(b) assist the client in effecting an improper purpose
The Rules of Court
OBJECT OF RULES
Rule 1-3
(1) Object - to secure the just, speedy and inexpensive determination of every proceeding on its merits
 Focus on merits of the case not on the technical issues
 McGauley v British Columbia – rules should not act as obstacles to just and expeditious
resolution of a case
(2) Proportionality – proportionate to:
(a) the amount involved in the proceeding
(b) the importance of the issues in dispute, and
(c) the complexity of the proceeding
NON-COMPLIANCE



Courts want to decide things on their merits – high threshold for getting things dismissed for
non-compliance
Courts are not technical based
Dismissal for case (not on merits) is last resort
Rule 22-7 Effect of Non-Compliance
(1) Non-compliance with Rules – non-compliance does not nullify a proceeding, step taken in a
proceeding, or order made in the proceeding
 Generally require multiple non-compliance to get rights under this Rule
 One offs likely just get costs or chastising by court
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(2) Powers of court – if failure to comply with the Rules, court may set aside a proceeding or step in the
proceeding, allow an amendment, dismiss the proceeding, or make any order it considers will further
the object of the Rules
(3) court cannot set aside because the proceeding was started by the wrong originating pleading
(4) Application under (2) won’t be granted unless made within a reasonable time and before the
applicant has taken a fresh step after knowledge of the irregularity
(5) Consequences of certain non-compliance – if person:
 Refuses to obey a subpoena or attend his XFD
 Refuses to be sworn or answer questions
 Refuses to produce, allow inspection of a document or other property
 Refuses to answer interrogatories or make discovery of documents
 Refuses to attend medical examination
 22-7(5)(f) If plaintiff or petitioner = court may dismiss proceeding
 22-7(5)(g) If defendant, respondent or third party = court may order proceeding to continue as if
no response to civil claim/petition had been filed
 22-7(6) refuses to comply with direction of the court
(7) Want of prosecution – court may dismiss proceeding if there is want of prosecution
 Court will often look at why there was delay before dismissing for want of prosecution
International Forest Products Ltd v Moody
 Non-compliance with Rules = irregularity, not a nullity
 Court can and should rectify irregularity – as long as it doesn’t give rise to injustice
 Technical matters are not to “drive a P from the judgment seat”
WANT OF PROSECUTION
Rule 22-4(5)
D or R can apply to have dismissed for want of prosecution without serving notice of intention to
proceed in Form 44
**See also Rule 22-4(4) and Rule 22-7(7)**
Rule 22-7(7)
PMC Builders & Developers Ltd v Country West Construction Ltd [Rule 22-7(7): Want of Prosecution]
 Ultimate question in exercising discretion under non-compliance Rules = what are the interests
of justice?
 D must establish: there has been inordinate and inexcusable delay
o Will require some affidavit evidence
o [usually – dismissal for want of prosecution after 5 or more years]
 Dismissing for want of prosecution – contrary to idea of hearing case on its
merits (therefore usually require fairly long delay)
 Rebuttable presumption of prejudice arises
 Onus shifts to P: prove on BoP that Ds have not suffered prejudice OR justice demands that the
action not be dismissed
 Nature of action and evidence are significant considerations
Preliminary Considerations
Consider:
Costs
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Law 270B.002 Civil Procedure (Goulden)
Limitation periods
Forum – is BC appropriate jurisdiction?
Enforcement – does the other side have money to pay if you win?
What form to take – action or proceeding
CONCEPT OF COSTS




Costs drive litigation
Costs also considered in proportionality (costs being spent versus potential outcome)
Default Rule: costs generally awarded to successful party
o Resolution of costs usually done at end of proceeding
o [may award costs to one party re: an application because other side took ridiculous
position]
Costs = legal costs and disbursements
LIMITATION PERIODS


File to get within limitation period – and remember that amendments will be liberally granted
later on
Preliminary limitation periods under Limitation Act – but know that there are others in other
legislation
Limitation Act
s 3(2) – 2 year limitation period for certain actions (mainly where damages to person or property)
s 3(4) – proceedings not governed by limitation period (mostly land and possession of land)
s 3(5) and (6) – 6 year limitation period (dealing with commercial disputes and contract cases)
s 4(1) – commencing an action may reactivate someone else’s old claim against you
s 5(1) – confirmation (certain action after event that confirms – extends limitation period)
confirmation by person against whom action lies
confirmation = acknowledge cause of action or make payment related to cause of action
s 6(4) – postponement of time
 Time doesn’t start running against P until:
o Identity of D is known to P and facts seen as showing reasonable possibility of success
o Not necessarily when incident occurs – when you should reasonably know it happened
and who did it
s 7 – limitation periods have different application where party has disability
 Minors – time doesn’t begin to run until person turns 16
 Postpones running of time (can choose to go forward with claim earlier, but don’t have to)
s 8 – ultimate limitation period of 30 years (from time cause of action arose)
FORUM
Three main types of proceedings:
1. NOCC [Action] = default
All tools in pre-trial process are available
Used when more contested issues
Takes longer and culminates in trial (cost, time, complexity are greater)
2. Petition
Less dispute
Deciding legal questions rather than question of fact
Where things to be done exclusively in writing
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Ends with hearing of petition (sets out issues, uncontested facts and gets determination –
quicker, cheaper)
3. Requisition
Doc that asks court to do something – simple things you need court to do
Rule 2-1 choosing correct form of proceeding
2-1(1) – NOCC is default pleading (= action)
 every proceeding must be started by filing NOCC (unless otherwise provided)
2-1(2) – certain proceedings done by petition/requisition
 Petition: less dispute, legal question (not fact), generally done through writing
 Requisition: to ask court to do something simple
o Can be used where all persons affected consent OR proceeding doesn’t require notice
Defining an Action
Rule 1-1 Interpretation:
 “proceeding” – an action, petition proceeding and requisition proceeding
o Covers three main ways to commence law suit
 “action” – proceeding started by NOCC
PLEADINGS


First documents court looks at – sometimes only ones they look at
Throughout process keep amending – pleadings should be actual case
Rule 1-1: “pleading” – NOCC, RCC, reply, counterclaim, response to counterclaim, 3rd party notice,
response to 3rd party notice
Four Functions of Pleadings:
1. Clearly and precisely define issues in dispute which need to be determined by the court
2. Give fair notice to other side of case they have to meet
3. Inform the court of events giving rise to litigation – sets limits on what court will deal with
4. Provide permanent record of the issue (which can help determine precedential value)
Rule 3-7 pleadings generally
 Applies to all pleadings
 Drafting pleadings – start off broad and then cut down to what is material
(1) – must not contain evidence
 Pleading facts – not evidence for proving facts
(2) – don’t quote directly (can summarize) unless words are material (ex. defamation)
(3) – Don’t plead fact if: (a) presumed in law to be true, or (b) burden of disproving lies on other party
(4) – don’t plead condition precedent unless other party denied it
(5) – may plead matter that comes up after proceeding has started
(6) – can’t plead something inconsistent with previous pleading
 Must be internally consistent
 See Rule 3-7(7)
(7) – can plead in alternative or amend pleading
 Rule 3-7(6) and (7): Make sure document is internally consistent or say it is an alternative
pleading (“in the alternative...”)
 Courts liberally allow amendments – recognize you might not have all facts at the start
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(8) – may raise objection of law (ex. limitation period expired)
(9) – only plead conclusions of law if material facts supporting them are pleaded
(11) – confirms D’s right to plead set off or counterclaim in RCC
(14) – don’t plead amount of general damages
 court will calculate it
 can provide an amount for special damages
(16) – bare denial of K alleged = denial of fact of existence of K
 not a denial of legality of K – ie. if alleging no consideration have to plead those aspects (want
other side to be informed of case to meet)
NOTICE OF CIVIL CLAIM [FORM 1]
Every NOCC should have:
1. identification of parties
2. status of parties
3. show why court has jurisdiction to hear this matter (ex. why BC?)
4. what, when, where, how
Once parties are identified – background, how dispute arose, what is the dispute
5. relief you are seeking
Rule 3-1 Notice of Civil Claim
Rule 3-1(1) – start proceeding by filing NOCC
Rule 3-1(2) – NOCC must:
 (a) set out concisely the material facts
o Only material facts you think you can prove
o If you include it in NOCC expectation is you will provide evidence to prove it
o If you don’t need it to prove your case don’t include in NOCC
o If it isn’t material don’t include in NOCC
o If it is evidence don’t include in NOCC
o If extra things in NOCC – can be application to remove them
 (b) set out relief P wants against each D
 (c) set out legal basis for relief sought
o Include legal principles, statutory provisions relying on
 (d) set out proposed trial location
 (g) otherwise comply with Rule 3-7
RULE 3-2: RENEWAL OF NOTICE
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(1) Renewal of original NOCC
o Original NOCC in force for 12 mos (original NOCC valid for 12 mos after filed with
registry)
o If D hasn’t been served, P can apply for court to order NOCC renewed for up to 12 mos
 Application by P may be before or after first 12 mos expired
(2) further renewal of NOCC
o If renewed NOCC not served on D
o P make application before renewed NOCC expires (within 12 mos renewal)
o Court may order further renewal of NOCC – for up to 12 mos more
(3) renewal period begins – unless otherwise ordered, on date of order
(4) after renewal of NOCC
o Copy of renewal order must be served with renewed NOCC
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Renewed NOCC is in force – prevents application of limitation periods
Sutherland v McLeod – Rule 3-2 primarily concerned with rights of litigants and not conduct of solicitors
 Overarching objective = see that justice is done
Mountain-West Resources Ltd v Fitzgerald – Factors to consider in deciding whether to renew:
 Whether application was brought promptly
 Whether D had notice from other sources
o PROF: if everyone knows it has been filed court will grant renewal
 Whether D had suffered prejudice
o Prejudice presumed from passage of time
o D doesn’t have to prove particular prejudice
o PROF: courts liberal in granting extensions unless prejudice arises
 Whether failure to serve attributable to action of D
 Whether P or his solicitor is at fault
 Merits of action
 PROF: courts will also consider whether you are still within limitation period and could just start
again
SERVICE
Rule 4-1 Address for Service
 (1) party must have address for service
o (a) if represented by lawyer = office address of lawyer
o (b) if unrepresented = accessible address within 30km of registry
 Or accessible address and postal address in BC, fax or email
 Rule 1-1 “accessible address” – unique and identifiable location in BC,
accessible to public during normal business hours for delivery of docs
 (2) additional addresses – in addition to address in Rule 4-1(1) can also have postal address, fax
number and/or email address for service
 (3) change of address – party of record can change address by filing and serving on other parties
a Form 9
Rule 4-2 Ordinary Service (default method of service)
 (1) ordinary service is default method (subject to Rule 4-3(1))
 (2) methods of ordinary service:
o (a) leaving at address for service
o (b) ordinary mail
o (c) faxing (see Rule 4-2(5)
o (d) email
 (3) service deemed delivered:
o (a) on day of service – if left at address at/before 4pm and not on Saturday or holiday
o (b) next day that isn’t Saturday or holiday – if left at address after 4pm or on Saturday,
holiday
 (4) service by mail deemed delivered – one week later on same day of week as day mailed (if
that’s Saturday or holiday: on next day that isn’t Saturday or holiday)
 (7) if no address for service – and personal service not required
o (a) mail to lawyer (if has one) or last known address
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Rule 4-2(4) applies
Rule 4-3 Personal Service [limited circumstances where personal service required]
 Once claim is started rarely have to do personal service during course of claim
 (1) Documents that have to be personally served:
o Main ones: NOCC, petition, third party claims on someone not on record, subpoenas
o Also: notice of lawyer intention to withdraw, application for order of contempt
 (2) How to serve by personal service
Rule 4-4 Alternative Methods of Service
 (1) if can’t serve by personal service or person can’t be found or is evading service
o Without notice application asking court to substitute service
o Alternative service available – but have to have some justification why you can’t comply
with the Rules
 (2) if alternative service allowed – copy of substituted service order must be served with docs
Credit Foncier - substituted service only ordered when personal service can’t be effected or too
expensive
 Requires proof of reasonable steps to locate party and then serve
 “Reasonable” – depends on circumstances including:
o Type of relief claimed
o Amount involved
o Avenues explored to locate
o Steps taken to effect service
Rule 4-5 How to serve D outside of BC
 (1) without leave – ie. don’t need a court order:
o In circumstances listed in Court Jurisdiction and Proceedings Transfer Act s 10
 Where a real and substantial connection between BC and facts on which
proceeding is based
 (2) served without leave – must have endorsement in Form 11
o State circumstances in CJPTA s 10 that you’re relying on
 (3) other than under Rule 4-5(1) – leave of court required to serve outside BC
o Usually try to bring it under s 10 of the CJPTA
 (11) proof of service outside BC
o either the law in BC, the law in the other jurisdiction, or the Convention
Rule 4-6 for proving service
Rule 4-7 relief if service alleged to be ineffective
JURISDICTION
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P has to determine where they want to fight case (forum)
D can contest jurisdiction that P has chosen
Jurisdiction simpliciter or territorial competence – basic jurisdiction; justification at law to be in
this jurisdiction?
o CJPTA s 3 – territorial competence: is this a convenient, best forum for dealing with this
matter?
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CJPTA s 11 – deciding whether matter should be heard in BC: must consider
circumstances relevant to proceeding including:
 Comparative convenience and expense for parties and Ws
 Law to be applied in proceeding
 Avoiding multiplicity of proceedings
 Avoiding conflicting decisions
 Enforcement of judgment (ie. collecting money)
 Fair and efficient working of Canadian legal system as a whole
Responding to an Action
RESPONDING TO CIVIL CLAIM [FORM 2]
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Should be stand alone document – to understand case D is making out (not just denials)
Drafting:
o Part 1: Response to Notice of Civil Claim Facts
 Division 1 – Defendant’s Response to Facts
 Can admit some facts – but be careful difficult to withdraw admission
 Division 2 – Defendant’s Version of Facts
 Sets out who P and D are
 How they came to be in the relationship
 What happened/went wrong
 Division 3 – Additional Facts
o Part 2: Response to Relief Sought
 Indicate whether you oppose or accept certain relief
o Part 3: Legal Basis
 Position on legal issues should be clear
Rule 3-3 responding to NOCC
 (1) to respond to NOCC – file RCC (Form 2) and serve copy of RCC on P
 (2) contents of response to civil claim
o (a) must indicate whether facts in NOCC are admitted, denied or outside knowledge of D
 If denied – concisely set out D’s version of that fact
 Set out any additional material facts
o (b) indicate whether D consents to, opposes, or takes no position on granting relief
sought against D
o (c) if D opposes relief – set out summary of legal basis for opposition
o (d) otherwise comply with Rule 3-7
 (3) time for filing RCC – if filing on person resident in Canada = 21 days after served with NOCC
o Deadlines are often extended – parties can consent to extension
o Extensions liberally granted
o If dealing with unrepresented P – make sure to file within deadline
 (8) if fact in NOCC isn’t addressed in RCC – deemed outside knowledge of D
COUNTERCLAIM [FORM 3]
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Almost same as NOCC – claim you are making as the D
Filing counterclaim may resuscitate claims that are outside limitation periods
No limitations on what counterclaim can be – can file one about something outside of P’s
original claim
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Rule 3-4 counterclaim
 (1) must file within RCC deadline (ie. 21 days)
o If bringing after deadline:
 Ask other side to consent
 Apply to court – court pretty liberal in granting later filing
 Usually allow for efficiency
 (2) may join third parties to counterclaim
 (3) identification of parties:
o (a) plaintiff against whom CC is brought = “plaintiff”
o (b) defendant against whom CC is brought and D bringing counterclaim = “defendant”
o (c) any other person against whom CC is brought = “defendant by way of counterclaim”
 (4) service
o (a) must serve on all parties within RCC deadline (21 days)
o (b) serving on person not yet a party – personal service, within 60 days after filing CC
 (5) response to counterclaim [Form 4]
 (7) D’s counterclaim may proceed even if P’s claim stayed, discontinued or dismissed
o CC is a separate claim – can proceed independently of original claim
 (8) if set-off or CC of D establishes defence to P’s claim – court may grant judgment in favour of
D for any balance or other relief court considers appropriate
o If CC is baseless – can result in special costs against you
o Set off = always connected to P’s claim, only use if P’s claim going forward
 Saying you don’t owe all – something should reduce amount owed
 Include under “Legal Basis” of RCC
o Counterclaim = claim against P that is independent of what their claim is against D
DEFAULT OF PLEADING (ABILITY TO OBTAIN DEFAULT JUDGMENTS) [FORM 8]
** Don’t forget ethical obligations – even if you can get it under Rules ** [PCH ch 11]
[available for counterclaims as well as NOCC]
Rule 3-8 Default Judgment
 (1) P can proceed with default judgment against D if
o (a) D hasn’t filed and served RCC and
o (b) period for filing and serving RCC has expired
 (2) to proceed under this rule P must file:
o (a) proof of service of NOCC
o (b) proof that D didn’t serve RCC
o (c) registrar confirm that no RCC was filed by D
o (d) draft default judgment order in Form 8
 liquidated (ie. ascertainable amount) versus non-liquidated claims:
o If claiming for ascertainable amount – include in facts of NOCC
 Should be able to do calculation objectively on pleadings
 Easier for court to give default judgment where liquidated claim
 (3) if P’s claim solely for specified or ascertainable amount
o (a) obtain judgment in Form 8 for amount not more than total of:
 (i) total claimed
 (ii) interest P is entitled to
 (iii) costs
o (b) and can proceed with action against any other D
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(4) Interest - claim is for ascertainable amount even though
o (a) part of claim for interest accruing after date of NOCC
o (b) interest to be computed from date of NOCC to date judgment granted
(5) default judgment where sum not ascertainable
o (a) may obtain judgment in Form 8 for damages to be assessed and costs
 Court’s only involvement then is assessing damages
 May have to go to court to prove damages
o (b) may proceed against any other D
(6) judgment for detention of goods = delivery of goods or value of goods to be assessed
(7) can get default judgment for one of multiple claims
o Then can proceed against D in respect of other claims
(8) registrar may refuse to grant judgment and P may apply to judge or master for default
judgment
(9) where P not seeking damages – P may apply for judgment under Rule 9-6
o Seeking something outside (3) to (6) [ex. declaration] – have to go through trial process
(11) court may set aside or vary any judgment granted under Rule 3-8
o Court often sets aside default judgments – want to decide case on merits
o If default judgment because of lawyer’s negligence – almost always overturn judgment
o Court will make D pay some costs for what P incurred to get default judgment; then
proceed with case
o Court less likely to overturn default judgment if you had told other counsel you would
be insisting on 21 days (to file and serve RCC)
Professional Conduct Handbook – chap. 11 (Responsibility to Other Lawyers): s 12 Proceeding in
Default
 Lawyer who knows another lawyer has been consulted in a matter must not proceed by default
without inquiry and reasonable notice
o ie. must provide notice to other side before proceeding under Rule 3-8 (even if RCC
hasn’t been filed)
PARTIES
Rule 6-2 Change of Parties
 obligated as soon as reasonable to get other parties that should be P or D involved
o courts generally do it because they want right parties involved
 (1) claim may survive death - proceeding may continue if a party dies
 (2) if party dies between verdict or finding of fact and entry of judgment – judgment entered
despite death
 (3) proceeding can be transferred with estate
 (7) adding, removing or substituting parties by order – any person can apply any time to be
added as a party
o On application at any time, by any person court may
 (a) order that person cease to be party
 (b) order person be added or substituted as a party – if ought to have been
joined as party or participation necessary to ensure matters effectually
adjudicated on
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(c) order person be added – if there is issue between person and any party to
proceeding about relief claimed or subject matter of proceeding (if court thinks
it would be just and convenient to determine between person and party)
(8) procedure if party added, removed or substituted
o (a) amend pleadings
o (b) serve the person with amended pleading and copy of order adding them
o (c) person added may apply within 21 days to vary/discharge order
(10) person must not be added or substituted as P or petitioner without their consent
Rule 20-1 Partnerships
 (1) can sue or be sued in name of partnership
 (7) can enforce order against a partner even if not a named party
Rule 20-2 Persons under disability (most commonly infants)
 (2) proceeding must be started or defended by litigation guardian
 (3) litigation guardian acts on party’s behalf – both doing and having things invoked against
 (4) litigation guardian must act by a lawyer
 (5) can be litigation guardian if ordinarily resident in BC (don’t need to be appointed by court)
 (7) person has to consent to being litigation guardian – unless appointed by court
MULTIPLE CLAIMS
Rule 22-5 Multiple claims and parties
 Joint and several liability:
o When D is “joint and severally liable” - can be held for entire amount or portion of the
judgment
o Ds pursue appropriate allocation amongst Ds
 Joint liability – joint acts
o Would same evidence support an action against each of the parties
 Severable liability – separate acts, but same damage
 (1) can join several claims in one proceeding
 (2) proceeding by/against 2 or more people in any of the circumstances:
o (a) if separate proceedings were brought a common question of law or fact would arise
in all proceedings
o (b) right to relief claimed arises out of same transaction(s)
o (c) the court grants leave
 (3) if other persons jointly entitled to relief claimed – P must join those people as P (if they
don’t consent – join them as D)
 (4) don’t have to make all jointly liable persons parties – but court may stay proceeding until
other people who may be liable are added as parties
 (6) if joinder would complicate or delay proceedings – court may order separate trials
 (8) consolidation – court may order consolidation at any time OR may order proceedings be
tried at same time or on same day
o Allows for more efficient and effective adjudication
o Consolidation = become one proceeding (evidence applies to all)
o Tried at same time = still separate proceedings, separate evidence
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Shah v Bakken – Factors to consider in exercise of discretion under Rule 22-5(8) [consolidation]
 Factors:
o Key factor: whether there is a common question of law or fact so it is desirable to
dispose of both at same time
o Avoidance of multiplicity of proceedings
o Savings of time and expense
o Inconvenience to parties
o Whether one action is at a more advanced stage
o Whether an order results in delay of trial and causes prejudice to one party
Merritt v Imasco – Rule 22-5(8) Consolidation
 Two questions to ask:
o 1. Do common claims, disputes and relationships exist between the parties?
 Look to pleadings to determine
o 2. Are they so interwoven as to make separate trials undesirable and unnecessarily
expensive?
 Look to pleadings and matters outside pleadings – ex. savings in pre-trial
procedures, reduction in trial days, inconvenience to parties, saving in W time
and fees
Hayes v BC Television Broadcasting – “Representative Proceeding” [Rule 20-3(1)]
 Representative proceeding available if multiple Ps – rarely used (usually use class proceeding)
 Test for appropriateness:
o (a) class capable of clear and finite definition
o (b) principal issues of fact and law are the same across members
 If P wins do the other people he says he represents win too?
o (c) single measure of damages applicable to all members
RULE 3-6 [REPLY]
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(1) within 7 days after RCC served – P may file and serve on all parties a reply [Form 7]
(2) no pleadings filed after reply – unless court gives leave
(3) if no reply to RCC served – joinder of issues on RCC is implied
(4) don’t file or serve reply that is just joinder of issue – it is implied
o Replies aren’t used very often – only use where new issue raised in RCC
o Not obligated to reply
THIRD PARTY PROCEEDINGS
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Most often used to get contribution or indemnity
o If you want relief against another person (whether a party or not) have to third party
the action
If you want to get discovery
Rule 3-5 Third Party Claims
 (1) D (including P as D in counterclaim – Rule 3-5(1.1)) can pursue third party claim against any
person
 Three ways to bring in a third party:
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(a) if D is entitled to contribution or indemnity from that person in relation to relief
sought against D in the action [D seeking contribution from other Ds needs to file third
party claim against them]
 Contribution – part of the amount
 Indemnity – whole amount
o (b) D is entitled to relief (that is connected with subject matter of action) against the
person
o (c) question between D and person is substantially same as question that is connected
with relief claimed in action or subject matter of action and should properly be
determined in the action
(2) third party claim can be against anyone – doesn’t have to be party to action
(3) file third party notice in Form 5 to pursue third party claim
(4) no leave required – (b) if file within 42 days after served with NOCC or counterclaim;
otherwise (a) leave required
o (6) serve application for leave on third party and all parties of record (within 60 days –
Rule 3-5(7))
PARTICULARS
Rule 3-7 (18) – (24) Particulars
 (18) if particulars are necessary – full particulars must be stated in the pleading
 (19) if particulars required under (18) are lengthy – can serve in separate doc instead of pleading
 (20) particulars only pleaded to extent known – further particulars served after they become
known and within 10 days after demand in writing
 (21) particulars in libel or slander
 (22) court may order party to serve further and better particulars
 (23) before applying to court – you must demand in writing, particulars from other party
 (24) demand for particulars is not an extension – may apply for extension on ground you can’t
answer originating pleadings until you get particulars
o Time is still running on RCC deadline even if particulars haven’t been provided
o Apply to court or get consent from other party to make demand act as stay
Hayes Heli-Log Services Ltd v Acro Aerospace Inc - order for particulars [Rule 3-7(22)]
 Different from discovery – particulars are not for obtaining information about how an issue
will be proven
 Purpose of particulars:
o Inform other side of nature of case it has to meet
o Prevent surprise at trial
o Enable other side to determine what evidence is necessary to prepare for trial
o Limit generality of pleadings
o Limit and decide issues for discovery and trial
o Tie hands of party providing particulars
SCANDALOUS, FRIVOLOUS OR VEXATIOUS MATTERS
Rule 9-5 Striking Pleadings
 (1) court may order struck out or amended, whole or part of pleading if:
o (a) discloses no reasonable claim or defence
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(b) unnecessary, scandalous, frivolous or vexatious
 High threshold
 Something that doesn’t disclose a claim – ex. don’t have material facts, asking
for something that doesn’t exist in the law
o (c) may prejudice, embarrass or delay fair trial
o (d) is otherwise an abuse of process of the court
If dealing with unrepresented litigant – court will almost certainly give chance to restate case
(2) no evidence admissible on application under Rule 9-5(1)
o Court won’t consider evidence – make sure material facts in pleading to support claim
(otherwise open door to being struck)
o Court accepts as true material facts plead – for determining these applications
Odhavji Estate v Woodhouse – test for disclosing no reasonable cause of action = whether it is plain and
obvious that no reasonable cause of action is disclosed
Citizens for Foreign Aid Reform Inc v Canadian Jewish Congress – any doubt on “plain and obvious test”
resolved in favour of letting pleading stand
 Court proceeds on assumption all facts pleaded are true
 Weakness of case is not ground to strike
 Sole question: whether P presents a question fit to be tried
AMENDING PLEADINGS [AMENDMENTS LIBERALLY GRANTED]
Rule 6-1 Amendment of Pleadings
 (1)(a) – can amend once without leave, any time before:
o Service of notice of trial or date case planning conference held
 (1)(b) – can amend after these dates only with leave or written consent of parties
o Court will often grant amendments during course of process
o Amendments are granted liberally
 (3) – any deleted wording shown as struck out; new wording underlined
 (5) – if served with amended pleading you can amend your filed pleadings (only with respect to
matter raised by amendments)
 (6) – if you don’t file amended responding pleading (Rule 6-1(5))
o (a) pleading filed in response to original version of primary pleading is deemed to be
filed in response to amended pleading
o (b) any new facts in amended pleading – deemed “outside knowledge of D”
 (8) – if amendment granted during trial – don’t need order and don’t need to file/serve
RULE 9-8 [DISCONTINUANCE AND WITHDRAWAL]
Discontinuance = by claimant
Withdrawal = by defendant
Under discontinuance/withdrawal – difficult but could revive claim (hasn’t been decided; not res
judicata)
Dismissal = res judicata – has been decided, can’t bring claim again
 (1) P can discontinue before notice of trial without consent [file/serve Form 36]
 (2) after notice of trial – discontinue with consent
 (3) D can withdraw [file/serve Form 37]
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(4) person discontinuing or withdrawing must pay costs of other party up to date notice is
served
o If P, court may order you to pay these costs before bringing substantially same claim
again
o PROF: under new rules discovery obligations flow from service
 ie. if you start a claim other party incurring costs almost immediately
 practically – rarely will you discontinue without an agreement about costs
(8) discontinuance is not a defence – not a defence to subsequent proceeding for same or
substantially same cause of action
Different Types of Proceedings
CLASS ACTIONS
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Way of dealing with multiple claims with some commonality
Draft NOCC the same way
Follow Class Proceedings Act with respect to common issues and damages
o It is not a class action until certified
CPA s 4 Test for certification:
o 1. Pleadings disclose cause of action
o 2. Identifiable class of 2 or more persons
o 3. Claims of class members raise common issues
o 4. Class proceeding preferable for fair and efficient resolution
o 5. There is a representative P
PETITIONS
Rule 2-1(2) Commencing proceedings by petition
 Start proceeding by petition where:
o Person starting proceeding is only person interested in relief claimed, or no person
against whom relief sought
o Principal question is one of construction of written contract or other document
o Relief sought = payment of funds into or out of court
o Relief sought relates to interest in, title of, or sale of land
o Issue relates to determination of claim of solicitor and client privilege
 PROF: usually bring petition when you have evidence you need and are permitted by law
o ie. don’t need to go through discovery process , facts aren’t controversial, etc.
Douglas Lake Cattle Co v Smith – deciding whether to make final determination in petition proceeding
or send to trial list
 chambers judge should ask: whether there is a dispute as to facts or law which raises a
reasonable doubt or which suggests that there is a defence that deserves to be tried
Rule 16-1 Petitions – process for proceeding via petition
 Petition is done by way of a hearing
 (2) When you file a petition – also file evidence in support (affidavit in support of petition)
RULE 17-1 REQUISITIONS [REQUEST COURT TO ENTER CONSENT ORDER]
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(1) applies where parties agree or it is proceeding which doesn’t need notice
(2) file: Form 31, draft of proposed order
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Building the Case – Documents
DISCOVERY AND INSPECTION OF DOCUMENTS
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First main tool available for use
Old Rule: all parties on record required to produce relevant docs (or lead to train of inquiry);
onus on each party to disclose and cost obligations were on disclosing parties
New Rule: much more narrow, only docs that could be used to argue material fact and all other
docs party intends to refer to at trial; less onerous and hopefully less expensive
Rule 7-1 Discovery and inspection of documents
 (1) within 35 days after end of period for filing responding pleading to most recently filed
pleading – each party must prepare and serve a list of documents [Form 22]
o Include: all docs that are or have been in your possession or control and that could be
used by any party of record
 All other docs that you intend to refer to at trial
o Wolansky v Davidson – “control” means an enforceable right to obtain docs from a
person who has possession
o Sunnar v U-Haul Co (Canada) Ltd – party only held to have docs within its power or
possession and control if it holds majority interest in a company
 “power” (broader than “control”) – includes right of access to docs of a sibling
company
 (2) list of docs must include brief description of each doc listed
 (6) if claiming doc is privileged – make claim in doc list and state grounds of the privilege
o (7) nature of privileged doc must be described – in way that allows other parties to
assess validity of privilege claim (without revealing privileged info)
o Babcock v Canada (Attorney General) – amount of info included in description of doc
varies according to the doc – must be sufficiently described so it may be considered by
a judge in chambers if challenged
o Leung v Hanna – must separately list each doc for which privilege is claimed
 Requirement that privileged info not be revealed remains paramount – so docs
should be described in way that doesn’t reveal privileged info
 If party considers docs inadequately described relief may be obtained under
Rule 7-1(20)
 (9) continue to amend doc list throughout proceeding – where you come into possession of doc
that could be used by any party at trial to prove/disprove material fact or any other doc you will
refer to at trial
 (10) can demand docs under this Rule – if you think list omits docs that should have been
disclosed; may by written demand require party to [seeking docs that should have been
disclosed in the first place]:
o Amend list of docs and make the newly listed docs available
 (11) may demand additional docs
o If you think list should include docs that are in listing party’s possession, power, control,
relate to matter in question and are additional to docs required under Rule 7-1(1) and
Rule 7-1(9)
o Send written demand that identifies additional docs with reasonable specificity and says
why they should be disclosed
o Can require listing party amend list of docs and produce newly listed docs
o PROF: not a lot of law on what threshold is for additional doc list
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Asker for broader production than general rule – will have to meet higher onus; have
to show court why they should go beyond Rule 7-1(1)
(12) response to demand for docs – within 35 days of receipt: comply in whole or part, or
indicate why the demanded docs are not being made available
(13) if you don’t comply within 35 days – demanding party can apply for court order requiring
compliance with demand
(15) must allow party to inspect and copy the listed docs except those listing party objects to
producing
(17) court may order production of doc for inspection and copying by any party or the court
(18) Non Party Documents - where docs in possession of person not party to action – can make
application for production inspection and copying of doc and/or preparation of certified copy
that may be used instead of original
o Most commonly includes bank docs and medical records
(20) court may inspect to decide if objection that it is privileged is valid
o See Leung v Hanna [under Rule 7-1(7)]
(21) if you don’t produce docs are required by this Rule – can’t put doc in evidence in the
proceeding or use it for examination/cross examination
Hunt v T&N plc – if you get docs produced to you in the course of litigation you can’t use them in other
matters
 There is implied confidentiality in docs produced in litigation process
LISTS OF DOCUMENTS [FORM 22]
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Part 1: docs that are or have been in the listing party’s possession or control and could be used
by any party at trial to prove or disprove a material fact
Part 2: other docs to which listing party intends to refer at trial
Part 3: docs that relate to a matter in question in the action
Part 4: docs for which privilege from production is claimed
PRIVILEGE [RULE 7-1(16)]
Hodgkinson v Simms – need for full disclosure will rarely displace privilege
 Copies of docs that were created for dominant purpose of litigation may be privileged even
though originals may not be
o Where lawyer has assembled collection of relevant copy docs for litigation = entitled to
claim privilege and refuse production
NON-PARTY DOCUMENTS [RULE 7-1(18)]
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If doc in possession of person not party of record – bring application under Rule 8-1
Court may make order for:
o (a) production, inspection and copying of doc
o (b) preparation of certified copy that may be used instead of original
PROF: most commonly used with bank records and medical records
Rule 7-1(19) – order under (18) can be made by consent
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Building the Case – Testimony
EXAMINATIONS FOR DISCOVERY
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Uses:
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Second main tool available for use
Generally in BC – 1 XFD per party
Usually conducted pre-trial (can be done during trial)
o After document disclosure process concluded
Only person who gets benefit of XFD is the examining party
One way process – trying to get admissions from other side
o Can be open and closed Qs – tied to pleadings (must relate to something pled)
If someone doesn’t show up to XFD can apply to have claim or response struck – have to skip a
few (not just one)
o Have to wait 30 mins before you can have party noted for not attending
Read in answers from XFD as evidence against other side
Impeaching W
Can be used as evidence at summary trial
Understand other side’s case
Sutherland (Guardian ad litem of) v Lucas – only one XFD is contemplated
 Heavy onus to justify more than one XFD
 Examiner must show:
o 1. Examinee failed to give examiner the discovery to which he is entitled OR
o 2. The complexion of the case has materially changed as a result of passage of time, new
heads of damage, or intervening events which materially alter examiner’s case
Hanke v Francis – general rule: P should examine first when XFD of both parties scheduled at same time
by agreement
Rule 7-2 Examinations for Discovery
 (1) examination of parties – each party to action must
o Make himself or representative under (5) to (10) available for XFD by parties of record
who are adverse in interest
 Usually P examines D and D examines P
 PROF: if Ds are adverse in interest one D can examine the other
 (2) limitations – every XFD of a party of record by an adverse party can’t be longer than 7 hours
(unless they consent or court orders)
 (3) application to extend XFD [under (2)] – court must consider:
o (a) conduct of person being examined – includes: unresponsiveness, failure to provide
complete answers, evasive, irrelevant, unresponsive or unduly lengthy answers
o (b) denial or refusal to admit anything that should have been admitted
o (c) conduct of examining party
o (d) whether it was reasonably practicable to complete XFD in time limit
o (e) number of parties and XFDs
 (4) XFD = oral examination under oath
 (5) XFD of party that is not an individual – may examine one representative
o Party to be examined nominates a representative – who is knowledgeable about
matters in question
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o
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Examining party must examine nominated rep or someone they think is appropriate
(and who is/was a director, officer, employer, agent, external auditor)
 PROF: may be more expensive to bring in one person than the other – you get
to nominate someone, but P gets to choose
o Rainbow Industrial Caterers v Canadian National Railway – court has discretion to
override prima facie right to examine a representative of choice in order to achieve
fairness and a balance between parties
o Westcoast Transmission Co v Interprovincial Steel and Pipe Corp – nomination of rep
by corporate party doesn’t remove adverse party’s privilege to examine rep of its choice
 But if adverse party picks a rep – may prevent it from examining another rep
later if the first one they picked is unsatisfactory
(6) person for whose benefit action brought or defended – may be XFD
(8) party to be examined is infant – can examine infant, his guardian and litigation guardian
(9) can’t examine mentally incompetent person without leave of court
(11) XFD must take place within 30kms of registry nearest where person being examined
resides
(12) XFD must be done before official reporter
(13) party examining must:
o If person examined is party/has lawyer – 7 days before XFD:
 Serve lawyer with appointment in Form 23
 Tender W fees (amount under Schedule 3 Appendix C) to lawyer
 PROF: “conduct money” – money necessary to secure W’s attendance
o if no lawyer – same as above but directly to person being examined
(17) XFD is in nature of cross examination – can be re-examined on own behalf or behalf of not
adverse party
o Fraser River Pile & Dredge Ltd v Can-Dive Services Ltd – suggested limitations on right
of lawyer to talk to his W:
 If discovery lasts one day = no discussion with W
 If longer than one day = can discuss everything about case at end of day (if you
have advised other side of intention to do so)
 No adjournment during XFD to discuss evidence given by W
 Once XFD over – can discuss, go over transcript, etc
(18) scope of XFD – person being examined:
o (a) must answer any questions within his knowledge or means of knowledge about any
matter that relates to a matter in question
o (b) can be compelled to give names/addresses of people who might have knowledge
o Northwest Sports Enterprise Ltd v Griffiths – “means of knowledge” must be based on
reasonableness
 Consider: difficulty of process of obtaining information
 Cost in terms of time, energy and money
 Relevance of information
 Amount involved in litigation
 Whether informant is D’s agent
(22) person being examined might be required to inform himself – XFD may be adjourned for
this purpose
(23) if required to inform himself – examining party can request responses by letter
(24) letter under (23) – responses deemed under oath
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
(25) if person examined objects to question – reporter records Q and objection
o Court may decide validity of objection and order person to submit to further
examination
 Common objections:
 Irrelevant
 Privilege
 Opinion – not supposed to be giving opinion unless they are expert
 Speculation
 Misleading questions
 Vagueness
o Articulate your objections on the record – say what they are and the basis for them
o Whistler Mountain Ski Corp v Harbers – Rule 7-2(25) requires objections be voiced and
placed on record at XFD
 Doesn’t prevent party from raising objection after XFD – but court will be
reluctant to permit it unless objections are substantive
Filling in the Gaps
PRE-TRIAL EXAMINATION OF WITNESS

For non-parties (XFD and interrogatories are for parties of record)
Rule 7-5 Pre Trial Examination of W
 (1) if person who isn’t party of record may have material evidence court may order them to be
examined on oath
 (2) can’t examine other party’s expert under this Rule – unless you can’t get facts and opinions
on same subject by other means
 (3) application under Rule 7-5(1) must be supported by affidavit
o Set out the issue the W may have material evidence about, that you can’t obtain facts
and opinions by other means (if other party’s expert), and that proposed W has refused
to give statement or has given conflicting statements
o PROF: purely information – to permit examination of uncooperative W (not to record
evidence or provide admissions) – use to decide if you want to call them at trial (the
can subpoena for trial)
 (5) can serve subpoena on W [Form 25] – to require them to bring to XFD any doc in their
possession or control relating to subject, and any physical object in their possession or control
that you want to tender at trial
o (6) subpoena under (5) – doesn’t need to identify docs, MUST identify any object
 (8) mode of examination – W must be cross examined by party who obtained order
o Then can be cross examined by any other party of record
o Then may be cross examined more by party who obtained order
 (9) these examinations cannot exceed 3 hours
Sinclair v March – scope of inquiry under Rule 7-5 not limited to issues as defined in pleadings; includes
all that is generally relevant between the parties
 Expert not retained by any party who has material evidence – may be examined as to facts and
opinions
o Examination limited to previously formed opinions and knowledge
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o
No expectation of out-of-court preparation or research – except review
Yemen Salt Mining Corp v Rhodes-Vaughn Steel Ltd – scope of inquiry broader under Rule 7-5 than Rule
7-2
 Not limited to matters in issue between parties in question
 Covers all that is relevant to all parties in the action (including other Ds or third parties)
INTERROGATORIES [FORM 24]
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Not automatic – unlike docs and XFD
o Discretionary tool – need court order or other side consent
Written questions directed from one party to the other
o Response to interrogatories is under oath
o Should be directed to a particular individual
o Can make several requests
o Narrower in scope than XFD
Can be used as evidence at trial
o General rule is trial should be oral evidence – exceptions: interrogatories, XFD transcript
Rule 7-3 Discovery by interrogatories
 (1) can serve interrogatories – only with consent or leave
 (3) court may set terms and conditions on interrogatories – including number, length, matters
covered, timing of response, notification given to other parties of record
 (4) have to answer (serve on affidavit) within 21 days
 (6) objection to answering – may make objection in an affidavit in answer (objection for
privilege or Q doesn’t relate to matter in question)
 (8) can apply to court to strike out interrogatories if they won’t further the object of the Rules
– court must consider any offer by party to make admissions, produce docs or give oral
discovery
 (11) continuing obligation to answer – if later learn answer was incomplete or inaccurate must
promptly serve an affidavit deposing accurate or complete answer
Tse-Ching v Wesbild Holdings Ltd - rules for interrogatories and appropriate use
 Interpret Rule 7-3 in accordance with general purpose to secure just, speedy and inexpensive
determination of proceeding on its merits
 Requirements and limitations on interrogatories:
o Only use is to obtain admissions of fact that are necessary to prove in order to establish
one’s case and provide foundation for cross-examination at discovery
o Must be relevant
o Must not be in nature of cross-examination
 Must be relatively straightforward, open questions
o Should not include demand for discover of docs
 No outstanding doc requests allowed
o Should not duplicate particulars
 If looking for particulars do that through Rule 3-7(18) to (24)
o Should not be used to obtain names of Ws
o Narrower in scope than XFD
o As only one means of discovery, court may allow responses to be deferred until after
XFD
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RULE 7-6 PHYSICAL EXAMINATION AND INSPECTION
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(1) may be ordered to submit to medical examination
(2) court may order further examination under this Rule
(3) person making examination can ask any Qs relevant to medical condition or history
(4) court may order production, inspection and preservation of any property – if considered
necessary or expedient for obtaining full information or evidence
(5) court may authorize a person to enter on any land or building
NOTICES TO ADMIT [FORM 26]

Way to get oral evidence into trial without oral testimony by W at trial (other examples:
interrogatories, XFD transcript)
Rule 7-7 Admissions
 (1) in action where RCC has been filed – party of record may request any party admit for
purposes of action only: the truth of a fact or authenticity of a doc
o Not admitting truth of doc contents – just authenticity
 (2) effect of notice to admit - truth/authenticity specified in notice to admit deemed admitted
unless:
o 14 days to respond with written statement that:
 specifically denies truth/authenticity
 sets out detailed reasons why they can’t make admission OR
 states refusal to admit is made on grounds of privilege or irrelevancy or request
is improper and sets out details of reasons for refusal
o Skillings v Seasons Development Corp – reply to notice to admit is improper and
inadequate if it doesn’t deny truth of facts sought admitted or set out reasons in detail
for not making the admissions
 In such circumstances – mandatory that facts are deemed admitted
 (4) unreasonable refusal to admit – if you unreasonably refuse to admit court may award or
deprive you of costs
o Also may order you to pay costs of proving truth/authenticity you refuse to admit
o PROF: one of few cases where court specifically talks about penalty – may award
additional costs as penalty
 (5) not entitled to withdraw – admission made, deemed admission, admission made in pleading
– except by consent or with leave
o High threshold for court to approve withdrawal – default = once admitted you’re stuck
with it
 (6) application for judgment or any other application may be made by court using admissions
as evidence
Interlocutory Procedures
RULE 8: INTERLOCUTORY APPLICATIONS

Applications fighting about things along the way
o Resolve disputes about the rules but don’t decide results of trial
Rule 8-1 How to bring and respond to applications
 (3) applying for application must – file notice and affidavits/docs in support
 (4) Contents of Notice of Application – NOA must be in Form 32, can’t exceed 10 pages, must:
o Set out orders sought
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o Summarize factual basis for application – evidentiary basis for seeking order
o Set out legal arguments relied on for orders sought
o List affidavits and docs application intends to rely on at hearing of application
o Set out estimate of time application will take to hear
o Set out date and time of hearing
o Set out place for hearing
(6) if hearing will take more than 2 hours – registrar designates date (may take 2-3 mos)
o If less than 2 hours – go to Chambers
(8) time for service – application materials served
o At least 8 days before date set for hearing
o If summary trial application – at least 12 days before date set for hearing
(9) responding to application – file within 5 days (8 days for application under Rule 9-7)
(10) application response must be in Form 33, not longer than 10 pages – indicate whether you
consent, oppose or take no position on each order sought
o If opposing relief sought – summarize factual and legal basis, list docs intended to rely
on at hearing and estimate time application hearing will take
o Form 33:
 Part 1: orders consented to
 Part 2: orders opposed
 Part 3: orders on which no position taken
 Part 4: factual basis
 Part 5: legal basis
 Part 6: material to be relied on
(13) responding to response materials (9) – file and serve responding affidavits before 4 pm one
day before date of hearing
(14) can’t serve additional affidavits without consent [outside of (7), (9) and (13)]
(15) must provide application record to registry where hearing taking place (no later than 4 pm
on day that is one full day before date set)
(16) no written argument – unless application will take more than 2 hours
Rule 8-2 Place application is heard
Rule 8-3 Consent Applications – avoids having contested case in court
 Application for order by consent made by filing:
o Requisition [Form 31]
o Draft of proposed order [Form 34]
o Evidence that application is consented to
Rule 8-4 Without Notice Applications
 Application which doesn’t require notice – made by filing:
o Requisition [Form 31]
o Draft of proposed order [Form 35]
o And affidavit/evidence in support of application
Rule 8-5 Urgent Applications
Most common use: injunctions
 (1) if you want to bring application on less notice than normally required – make application
for short notice
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(2) short notice application – Form 17, without notice, in summary way
(3) normal time and notice rules don’t apply – to short notice application
(4) on short notice application, court may:
o Order main application heard on short notice
o Fix date and time for main application to be heard
o Fix date and time limit for service of docs related to main application
o Give any directions it considers will further object of these Rules
(5) if order made under (4) – time limit and notice requirements don’t apply to main
application
(6) court may make order without notice in case of urgency
(7) party who obtained order without notice must promptly serve on persons affected
(8) person affected by order without notice may apply to court to change or set aside order
Rule 8-6 Applications by Written Submissions – provides for applications that don’t need oral
submissions (if order made at case planning conference)
CASE PLANNING CONFERENCE [CPC]
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Only available for actions (if NOCC used)
KEY POINT: CPC is not automatic or mandatory – but once a party applies for CPC it is
mandatory to attend the first CPC [Rule 5-1(1); Rule 5-2(3)]
o Court may also order a CPC be held [Rule 5-1(2)]
Rule 5-1 Requesting CPC
 (1) any party of record can request CPC – after pleading period ends
 (2) court can also direct CPC take place – after pleading period ends
 (3) requesting CPC – must file notice on other parties
o If first CPC for that action = at least 35 days before date set for CPC
o If not first CPC = at least 7 days before date set for CPC
 (5) if CPC orders – parties must file case plan proposals
o P = within 14 days after notice of CPC was served on P
o Any other party = within 14 days after receipt of P’s case plan proposal
 (6) case plan proposal [Form 20] must deal with:
o Discovery of docs
o XFD
o Dispute resolution procedures
o Expert Ws
o Witness lists
o Trial type, estimated trial length and preferred periods for trial date
Rule 5-2 Conduct of CPC
 (1) CPC can be heard by judge or master
 (3) have to attend first CPC in person – subsequent ones can be by phone or other method
 (5) if application for exemption – court will consider:
o If it is reasonably possible for the person to attend – given distance and cost of travel
o If health or compassionate grounds require exemption
o Other extraordinary circumstances exist that justify the order
 (6) if person required to attend doesn’t show up – can proceed without them, adjourn CPC,
order that person pay costs to one or more other parties
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
(7) CPC proceedings recorded – but transcript can’t be made available or used without court
order
Rule 5-3 CPC Orders
 (1) types of orders judge/master can make in CPC
 (2) at CPC judge/master can’t – hear or make an order about contested matters (anything
supported by affidavit evidence)
Rule 5-4 Applications to amend CPC orders
CHAMBERS

Applications in action process or hearing petitions is done in chambers
Rule 22-1 Chambers proceedings
 (1) chambers proceedings – include petition proceeding, requisition proceeding and
applications
 (3) order made if party not present won’t be reconsidered if court thinks they were wilfully
delaying
 (4) on chambers application evidence given by affidavit
 (5) chambers hearings are public
 (7) powers of court: grant/refuse relief, adjourn proceeding, get expert opinions, order trial of
the issue(s)
o (d) can transfer proceeding to trial list
 (8) if notice not given – court can dismiss, adjourn, direct that order made be served on that
person
AFFIDAVITS [SEE FORM 109]
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Sworn document – if you lie you may be subject to contempt or perjury
Affidavits may only contain evidence – they aren’t for argument, speculation, or expression of
emotion
Don’t need to directly address every paragraph of other side’s affidavit – put a paragraph saying:
“My counsel has advised me that paragraphs 3, 5, 12, and 17 are irrelevant/inadmissible etc and
I will therefore not respond, but reserve my right to do so in the event the court disagrees.”
Rule 22-2 Affidavits
 (1) affidavit must be filed
 (12) affidavit must only state what a person swearing or affirming the affidavit would be
permitted to state in evidence at trial (ie. no hearsay)
 (13) exception to (12) – affidavits in support of applications for interlocutory matters can
contain hearsay
o (a) If using hearsay – state source of hearsay
Professional Conduct Handbook, App. 1 [Affidavits and solemn declarations]
Lawyer must not swear an affidavit or take a solemn declaration unless the deponent:
(a) is physically present
(b) acknowledges that he/she is the deponent
(c) understands or appears to understand the statement contained in the doc
(d) affidavit – swears, declares or affirms that the contents of the doc are true
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(e) solemn declaration – orally states the deponent makes the solemn declaration
conscientiously believing it to be true and knowing that it is of the same legal force and effect as
if under oath
(f) signs the doc
MASTERS, REGISTRARS, JUDGES
Rule 23-6 Masters, Registrars and Special Referees
 Registrars – deal with technical issues
 Masters – are appointed
o Have lesser jurisdiction, more limited authority
o Can do everything except: final orders or matters that require inherent jurisdiction of
court
 Judges – federal appointees
o Full authority to make any decisions in civil litigation process
o Only judges can deal with final decisions at trial
o Only judge can deal with summary trial proceedings
o Usually only judges can hear petitions
o Injunctions almost always heard by judges – in the inherent jurisdiction of court
Orders and Injunctions
ORDERS
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Court makes order but counsel responsible for drawing it up (but see Rule 13-1(15))
When drawing up an order it should reflect the application and the disposition made:
o Order should address each thing set out in application
o If court doesn’t order all things address that in the order – ex. application to produce
financial statements from Ds is dismissed
o If item adjourned – order should reflect this
o Be specific about costs – if court hasn’t stated anything about costs ASK
When appealing – don’t appeal from reasons, appeal from decision as written in the order
Rule 13-1 Orders
 (1) an order may be drawn up by any party (usually party making application)
o Must be circulated to all parties and endorsed (if order without notice – don’t have to
circulate)
o Then sent to registry
 (3) form of order:
o Form 34 – order made without hearing and by consent
o Form 48 – order made after a trial
o Form 35 – any other order
 (4) if order made in substantially same terms as requested – court can endorse doc and that can
be filed instead of drawing up orders
o Used in situations like injunction – where time sensitive
 (6) if order granted on condition and fail to comply with condition – deemed to abandon order
 (8) date order on date which it was pronounced – order takes effect on the day of its date
 (11) orders settled by registrar
o Registrar has power to make order as to costs – if judge hasn’t
 (14) court may review and vary order as settled
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(15) registrar may draw up order – PROF has never seen this happen
(17) court has inherent jurisdiction to cure slips or omissions
Rule 13-2 Enforcement of Orders
 (1) writ of seizure and sale – for order to pay money to a person
 (2) writ of sequestration – for payment of money into court
 (3) writ of possession – for recovery/delivery of possession of land
 (4) writ of delivery – any property other than land
o Make sure property being seized is clearly defined in the order
 (6) person who is not a party but gets an order – can enforce as if a party
o And an order against non party can be enforced as if they are party
 if you think there is another party – make note in your application
 make it clear that if you deliver this order to some unnamed person it will apply
to them and not just the D
 (13) before writ issued – proof that order was served and has not been complied with must be
filed with registrar
 (22) party entitled to enforce order is entitled to costs of enforcement
Rule 13-3 [Subpoena to debtor] and Rule 13-4 [Examinations in aid of execution]
 If you have a party that doesn’t pay:
o Can have party attend for examination before court or court reporter [Rule 13-4(2)]
o Can ask them why they haven’t paid; what other payments they’ve made; what assets
they have [Rule 13-3(4); Rule 13-4(2)]
o Opportunity to explore targets for execution
Court Order Enforcement Act
 Pre-judgment garnishing order (s 3(2)) – where amount claimed is liquidated damages
o Can lead to settlement
o Court loathe to give this – have to establish there is a liquidated damages claim and you
know where their assets are
o Be very careful – these orders are easily set aside if Act not followed exactly
 Post-judgment garnishing orders (s 3(2)) – there are rules and limits to how much can be held
o Organizations that receive garnishing order are required to hold funds – can be liable if
they don’t
INTERLOCUTORY INJUNCTIONS
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Equitable remedy coming out of the common law- court’s jurisdiction on this basis
o Often used to preserve meaningfulness of full trial at the end of the day
“Injunction” – court order commanding (mandatory) or preventing (prohibitory) action
Can seek injunction from any point after incident until you get to trial
o Can seek injunction before commencing action [Rule 10-4(2)]
Longer you wait to seek injunction more difficult it is to receive – court will say you’ve
acquiesced (if it was really that important you should have started earlier)
In interlocutory injunction applications can rely on hearsay – specify who told you
Three Main Types:
1. Interim injunctions – short, defined period of time
2. Interlocutory – some point between commencement and trial (can have concurrently with interim)
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3. Permanent injunction – issued after full hearing or trial; sometimes seek injunctive relief as part of
relief sought at trial
Rule 10-4 Injunctions
 (4) injunction must be imposed by order of court – equitable remedy in inherent jurisdiction
 (5) application for pre-trial injunction may have to include undertaking to pay damages court
awards
o Undertaking that you will pay damages arising out of issuance of injunction
o Undertaking creates a cause of action against you – doesn’t guarantee you’ll pay
damages later, you’ll fight about it in court (court will do further hearing)
 (6) can get after judgment injunction to prevent continuing act court found was wrongful
RJR MacDonald Inc v Canada (AG) – three part test for issuing an injunction
 1. Prima facie case
o aka: “is there a serious case to be tried”
o Establish in injunction application that you have prima facie case – considered relatively
low threshold
o If seeking mandatory injunction – threshold likely higher
 2. Irreparable harm
o Will applicant suffer irreparable harm if injunction not issued
o “irreparable harm” – refers to nature of harm, not magnitude
 Harm which can’t be quantified with money or can’t be cured (usually because
one party can’t collect damages from the other)
o Often tough criteria to meet – easier to meet when talking about health and safety
o Has to be clear evidence of irreparable harm – not inferred
 3. Balance of convenience [in BC irreparable harm is considered in this step]
o Some factors considered:
 Adequacy of damages
 What is nature of harm
 Likelihood of damages being paid (if not may grant injunction to prevent P from
being deprived of a remedy)
 Court will act to preserve contested property
 Strength of applicant’s case
 Factors affecting public interest – health and safety, enforcing statutes, bylaws,
etc
 Which party has acted to alter relationship or status quo
o Anything affecting balance of justice and convenience
Onkea Interactive Ltd v Smith – BCCA states test for injunction as two part test
 1. Prima facie case
 2. Balance of convenience – includes irreparable harm in this part of the test
Seeking an injunction – bring both tests to court
If responding to injunction bring up RJR because “irreparable harm” is difficult to show
WITHOUT NOTICE ORDERS [= EX PARTE]
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Limited circumstances where you should go before court without other side present
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Have obligation to make full and frank disclosure of relevant facts or arguments other side
would raise
o If you don’t court will strike down injunction
o When making submissions turn court’s attention to material which may not help your
client’s interest – so court knows you have raised it
Professional Conduct Handbook [Chap. 8, s. 21] – in w/o notice proceeding lawyer must inform court of
all material facts he knows even if facts are adverse to his client’s interests
RULE 10-1 DETENTION, PRESERVATION AND RECOVERY OF PROPERTY [A SUBSET OF INJUNCTIONS]
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(1) court can make order to preserve property in question – and can authorize a person to enter
on any land or building to carry out the order
(2) if dispute about fund – court can order fund paid into court
(3) if property in dispute and court thinks it is more than sufficient to answer claims to it – court
can order income from property paid to party with interest in it or order property transferred to
that party
(4) if claim for specific property (not land) court can order it given up to the party
(5) if order made under (4) – must contain undertaking to comply with other orders (including
damages)
Anton Piller Orders [= civil search and seizure warrant] – for gathering evidence you think will be
destroyed
 To get AP order have to show:
o Extremely strong prima facie case
o Clear evidence of possession
o Likelihood of destruction (can’t be speculative)
o Serious potential for or actual damage if there is destruction
 Often have independent counsel execute AP order – if not in hands of either party there can’t be
allegations of tampering (especially where item to be used as evidence)
 Becoming more common – but at least 50% are set aside because of material non disclosure or
faulty execution
 Celanese Canada Inc v Murray Demolition Corp – Anton Piller orders (made ex parte and
interlocutory) are like private search warrants
o “targets” of AP orders are exposed to contempt if permission to enter refused
o Parties AP orders made against need to be protected in 3 ways:
 Ensuring the orders identify the things to be seized and provide safeguards for
dealing with privileged docs
 Requiring appointment of independent lawyers to supervise execution of order
 Expecting parties executing order to show self-restraint
o Lawyers who secure AP orders should – “conform to a very high standard of
professional diligence”
o AP order should only be made if:
 Strong prima facie case shown
 Damage applicant will suffer is “serious”
 “convincing evidence” that target possesses incriminating docs or things
 “real possibility” target may destroy docs or things before discovery process can
do work
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MAREVA INJUNCTIONS
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Freezes assets – don’t require a liquidated amount
Requires evidence of a real risk for court to grant
Traff v Evancic - Mareva injunction is extraordinary pre-trial remedy
o Must show at least (1) strong prima facie case and (2) genuine risk of removal of assets
from BC or dissipation beyond ordinary course of business or living
Mooney v Orr (No 2) – two part test:
o Strong prima facie or good arguable case on the merits
o Prove at least that there is a real risk respondent will dispose or dissipate assets which
would render judgment useless
Tracy v Instaloans Financial Solutions Centres (BC) Ltd – Mareva injunctions are species of
interlocutory injunction with special requirements
o Court must be careful not to sanction litigious blackmail or bullying
Summary Proceedings
RULE 9-6 SUMMARY JUDGMENT [BRING TOGETHER WITH SUMMARY TRIAL APPLICATION (RULE 9-7)]
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(2) if you started the action you can apply for judgment against the other party on all or part of
the originating claim – claiming there is no bona fide triable issue [PROF: bona fide triable issue
is not a high threshold to meet]
(3) other party can argue there is a genuine issue for trial – must set out specific facts showing
this
(4) answering party can apply for judgment dismissing all or part of claim (after RCC served)
(5) Court looks only at pleadings to decide - court can
o (a) if no genuine issue for trial - pronounce judgment or dismiss claim
o (b) if only issue is amount entitled – order trial of that issue
o (c) if only issue is question of law – determine question and pronounce judgment
(6) summary judgment against one party doesn’t preclude action against other parties
(7) if your application is unsuccessful – court may fix costs of other party
o Court may not fix costs if unsuccessful application was nevertheless reasonable (8)
Skybridge Investments Ltd v Metro Motors Ltd
 Test under 9-6(2) and 9-6(4) is: whether there is a bona fide triable issue of fact or law
o 9-6(2) question = whether claim was bound to succeed
o 9-6(4) question = whether claim was bound to fail
 If any doubt – applications dismissed
Memphis Rogues Ltd v Skalbania – if there is any doubt that there is a triable issue application will be
dismissed
SUMMARY TRIAL
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Almost every tool available for normal trial is available, except:
o No oral evidence – trial done on docs
o Evidence given on examination by non-party W is not available – must get them to give
you an affidavit to be used in summary trial
Decision is a final decision
Trying to avoid summary trial – say you can’t get evidence of key W
Courts prefer to decide whole case on summary trial – rather than just an issue
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Rule 9-7 Summary Trial
 (2) can apply for summary trial if:
o (a) action where RCC has been filed
o (b) proceeding transferred to trial list under Rule 22-1(7)
o (c) 3rd party proceeding – where response to counterclaim filed
o (d) Action by counterclaim where response to counterclaim filed
o Hunt v T&N plc – once a party starts a summary trial application they can’t complain if
judgment goes against them
o Kassam v Kassam – once you file a motion you aren’t allowed to withdraw without
leave
o Inspiration Management Ltd v McDermid St Lawrence Ltd – even though both parties
don’t agree to summary trial it may still proceed
 Some issues can be decided there and others sent to trial
 If chambers judge can find the facts as he would at trial – must give judgment
(unless this would be unjust) ie. if you can decide on summary trial you should
 (3) summary trial heard at least 42 days before scheduled trial date
 (5) all parties tender evidence with summary trial application; can include:
o Affidavit (can’t be hearsay), answer to interrogatories, evidence taken on XFD,
admission under Rule 7-7, report setting out expert opinion
 (11) summary trial application may be dismissed or adjourned if – issues raised aren’t suitable
for summary trial or summary trial won’t assist efficient resolution of proceeding
o Colosimo v Geraci – if testimony would substantially affect the facts then matter is not
suitable for disposition under Rule 9-7 (9-7(11)(b)(i))
o Colosimo v Geraci - Application that will take almost as long as the trial will not assist in
efficient resolution of the matter – and will be dismissed [9-7(11)(b)(ii)]
o Western Delta Lands Partnership v 355537 Canada Inc – use summary trial process only
where it will be more cost efficient than conventional trial of the issues [9-7(11)(b)(ii)]
 (13) judge or master may decide if issues are appropriate for summary trial
o Raven v Kamloops – said it was not appropriate for Master to decide if issue was
appropriate for summary trial
 Overruled by Rule 9-7(13)
 (15) court may
o (a)grant judgment (in whole or part) in favour of either party; unless:
 Evidence before court doesn’t contain the facts necessary to decide issues or it
would be unjust to decide the issues on the application
o Foreman v Foster – 9-7(15)(a)(i) and 9-7(11) combined give court discretion to refuse
application if:
 Issues not suitable for disposition
 Application won’t assist efficient resolution of proceeding
 On whole of evidence court is unable to find facts necessary to decide issues of
fact or law
 It would be unjust to decide the issues – especially w/o cross examination
o (b) impose terms about enforcement of judgment
o (c) award costs
o PROF: generally where contested key facts court won’t decide on docs – want to see
Ws, assess credibility
 (16) if court doesn’t grant judgment – you can’t apply again without leave
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(17) if unable to grant judgment but thinks proceeding should be expedited court can make
orders – to attend CPC, etc.
Roynat Inc v Dunwoody & Co
 summary trial application doesn’t act as stay of proceedings
o Hunt v T & N plc – if order for docs or discovery is outstanding against you, you can’t
apply to stay proceedings
Anglo Canadian Shipping Co v Pulp, Paper & Woodworkers of Canada, Local 8
 if given reasonable notice of summary trial – opposing party must take every reasonable step to
complete as many pre-trial procedures as necessary to gather facts and evidence
RULE 9-3 SPECIAL CASE
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(1) parties may concur in stating question of law or fact in form or special case
o Court provides opinion on particular aspect of case (law or fact)
o BC (Minister of Forests) v Abitibi – question of law must be unambiguous and must be
supported by an unambiguous statement of facts
(2) court may order question be stated in a special case
o Hunt v T&N plc – before ordering an opinion court will consider whether order would
result in saving of expense or time
o BC (Minister of Forests) v Abitibi – court has discretion to decline to give an opinion if it
wouldn’t save expense for parties or time for court
(3) Form of special case
o Xeni Gwet’in First Nations Government v BC – every material fact must be included;
court should not entertain special case based on assumed facts
(5) Unless parties agree specific relief is flowing – it is an opinion, no relief results
RULE 9-4 POINT OF LAW
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(1) point of law arising from pleadings may be heard and disposed of before trial – by consent
(2) if decision on point of law disposes of substantially the whole action – court may dismiss
action
Larsen v Larsen – rule designed to eliminate claims that have no hope of success
Okanagan Indian Band v Bonneau – Rules 9-3 and 9-4 are not interchangeable
o Can’t decide point of law on assumed facts
BC Teachers’ Federation v BC – order under this rule is discretionary
o Purpose of rule is – allow determination of question of law that is central to the action
without deciding issues of fact raised by pleadings
Alcan Smelters & Chemicals Ltd – observe following principles in application under rule 9-4:
o Point of law must be raised and clearly defined in pleadings
o Only use in cases where question arises about whether allegations raised and supported
a claim or defence in law
o Facts relating to point of law not in dispute – can resolve point of law w/o hearing
evidence
o Discretionary – only decide question where it would be decisive to litigation or a
substantial issue raised in it
o Consider whether effect of decision would shorten trial or result in substantial saving of
cost
Can-Dive – assuming there is a basis for what you are saying, does that make a claim of action
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Alternatives Before Trial
OFFERS TO SETTLE
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In every case – consider whether you should make an offer to settle
Offers are about creating risk
Default – party that wins gets their costs (offer rules change this)
New Rules are more permissive of what court can do – but Old Rules will provide framework
o Old Rules – automatic, New Rules - permissive
Rule 9-1 Offers to Settle
 (1)(c) if you want to create risks must closely follow rules:
o Offer to settle must be made in writing, be served on all parties, and contain “The
[parties], [names of parties], reserve(s) the right to bring this offer to the attention of
the court for consideration in relation to costs after the court has pronounced judgment
on all other issues in this proceeding.”
 (2) don’t tell court there was offer made until after everything has been dealt with except costs
 (3) offer to settle is not an admission
 (4) court can consider offers in determining costs
 (5) where offer to settle has been made court can:
o Deprive party of costs which they would otherwise get – after date offer made
o Award double costs – after offer made [especially likely if big gap between offer and
final award]
o Award costs which you would have been entitled to anyway – after offer made [ie.
ignore offer]
o If offer by D and judgment awarded to P not higher than offer – award D their costs
after offer date
 (6) court may consider:
o Whether offer was one that should reasonably have been accepted
o Relationship between terms of settlement and final judgment of court – how similar is
offer to what they got?
o Relative financial circumstances of parties
 (7) if P accepts offer within jurisdiction of Small Claims Act – not entitled to costs other than
disbursements (unless there was good reason for bring proceeding to Supreme Court instead of
Provincial Court)
o Small Claims jurisdiction = $25,000 or less
o Don’t get tariff costs if you settle for $25,000 or less
o Also if court awards $25,000 or less – don’t get tariff costs
o If issue could only be brought in Supreme Court – you will get tariff costs (ex.
defamation)
 (8) offer to settle doesn’t expire because counter offer made
JUDICIAL SETTLEMENT CONFERENCE
Rule 9-2 Settlement Conferences – basically mediation before judge (don’t have to pay judge to
mediate); only if parties agree or court orders
 (1) court can order you to settlement conference – attend before judge/master and explore
possibilities of settlement
o No witnesses heard
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o Can apply for settlement conference to get the order to go
(2) settlement conference recorded but not made available or for use – matter is private
(3) judge who presides over settlement conference can’t preside over trial – unless parties
consent
ALTERNATIVE DISPUTE RESOLUTION
Mediation
 Used to be voluntary process – under Notice to Mediate Regulations (s 3) can force other party
to mediation
o Mediation initiated just by delivering Notice to Mediate
o s 15 – party who received Notice to Mediate must show up and engage in mediation
o s 29 – costs of mediation must be split by both parties
 have to pay mediator (unlike judge in settlement conference)
 Without prejudice discussion between parties – mediated by unrelated 3rd party
 Whatever goes on in mediation can’t be used in litigation process (s 36)
o Mediator can’t be called to give evidence in court
 Not required to settle; no decision made by mediator – no settlement unless parties agree
Arbitration
 Can’t force someone to go to arbitration – must be by K or agreement
o Majority of Ks have arbitration clause
 Private process (as opposed to court which is public)
 Can choose adjudicator – can get someone with knowledge, expertise about the issue
 Can be quicker than court
 Parties split arbitration fee along the way (have to pay for adjudicator)
 Can provide for full cost recovery (instead of tariffs in civil litigation) – parties can agree to full
recovery
 Adjudicator’s decision is final – like court judgment
Headed to Trial
DEPOSITIONS
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Different than pre-trial examination of W [see Rule 7-5]
Evidence generally provided by: written transcript or video deposition
Default is that court wants W to come to court and testify – this is if you can’t get W to court
Rule 7-8 Depositions
 (1) By consent or order of court - may examine person under oath so record can be tendered at
trial
 (3) in deciding to order deposition – court will consider:
o Convenience of person going to be examined
o Possibility that person might be unavailable to testify at trial (death, sickness, absence)
o Possibility person will be beyond jurisdiction of court at time of trial
o Expense of bringing person to trial
 (5) can serve subpoena on the person to make them bring docs and physical objects related to
the action – that are in possession or control
 (9) and (10) – different forms if agree to testify (Form 27) and refuse to testify (Form 29)
 (13) notice of examination to all parties on record 7 days before date of examination
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(16) examination must be recorded in question/answer form or video recording [video is better]
TRIAL PROCEDURES
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Applies to actions
Rule 12-1 Set trial for hearing
 (2) to set proceeding for trial – file notice of trial [Form 40]
o Include in Form: place, date, time, estimate of reasonable time for hearing proceeding
(decided by parties together)
o (3) date = from case plan order, or obtained from registry
o (5) place = place named in NOCC or changed by court order
 (7) if trial date set in notice of trial is no good – have 21 days to request CPC or apply to have
trial rescheduled
 (10) if trial set - must notify registry w/o delay if proceeding settles or things come up that
would affect estimated length of trial
Rule 12-2 Trial management conference
 (1) takes place at least 28 days before scheduled trial date
 (2) TMC conducted by judge
 (3) file a trial brief at least 7 days before TMC
 (4) parties and/or their lawyers must attend (if your lawyer is going you just have to be
accessible by phone (5))
 (11) not dealing with substantive issues – focusing on procedural issues between lawyers
o No substantive orders – except with consent
Rule 12-3 Trial record
 (1) party who files notice of trial must file trial record containing:
o Pleadings
o Particulars served under demand (and demand made)
o Case plan order
o Any order relating to conduct of trial
o Any doc required by registrar (registrar can direct inclusion of any docs they think are
necessary; can reject a trial record if they think it doesn’t contain all required docs,
contains a not required doc, or is illegible Rule 12-3(2))
 (3) file trial record at least 14 days but not more than 28 days before scheduled trial date
Rule 12-4 Trial certificate
 (1) each party files trial certificate [Form 42]
 (2) file trial certificate at least 14 days before but not more than 28 days before scheduled trial
date
 (3) certificate must contain: statement that party will be ready to proceed on trial date,
statement certifying you’ve completed all XFDs that you intend to conduct, current estimate of
length of trial, statement that TMC has been conducted
 (5) if no party files a trial certificate – trial must be removed from trial list
 (6) if one party doesn’t file trial certificate – not allowed to make further applications w/o leave
Rule 12-5 Evidence and procedure at trial
 (1) doesn’t apply to summary trials
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(4) no evidence motion: at end of P’s case – D may apply for dismissal on ground there is no
evidence to support P’s case
o (5) if D makes no evidence motion and is unsuccessful – can still call evidence
(6) insufficient evidence motion: at end of P’s case – D may apply for dismissal on ground that
evidence insufficient to make out P’s case (ie. On BoP P hasn’t met their burden)
o (7) D can’t call evidence after making insufficient evidence motion (under (6))
(8) can serve notice on other party of record to bring docs or objects to trial
(10) no plan, photograph or object may be received in evidence unless parties have had chance
to inspect it (at least 7 days before start of trial)
(19) “Adverse Party” = party who is adverse in interest
o (21) have to give 7 days notice to adverse party if calling them as W (and W fees)
o (22) don’t have to pay W fee if person in attendance at trial
(25) if adverse W doesn’t show up – can get judgment in your favour, adjourn trial, get costs
(26) if you call an adverse W:
o (a) can cross examine
o (b) can only cross examine on stuff brought up in examination in chief
o (c) other parties can cross examine W generally
o (d) can only re-examine in relation to new matters brought out in cross examination
(27) Default = W at trial must testify orally in open court
(28) can’t bring in W that isn’t on W list – court doesn’t want surprises, everyone should know
who Ws are from W list
o Usually include how long you think their testimony will be too
(29) court may permit a party to
o (a) examine a W by using leading questions, referring W to prior statement (made under
oath or not), about interest of W in outcome of proceeding, about relationship between
W and a party
o (b) cross-examine a W
 If you subpoena a W they are your W – ie. no cross examination unless court
permits it
 On non controversial evidence – court will allow leading and cross
 On contested matters – court won’t allow leading or cross
 The “cleaner” the evidence goes in the more weight the court will give it (more
leading/cross = less weight)
(30) a party may contradict or impeach the testimony of any W
o Court frowns on impeaching your own W
(40) use of deposition evidence - can use transcript or video from deposition, and can still call
W to testify orally
(45) if deposition record given in evidence – must be presented in full (unless parties agree or
court orders otherwise)
o Discovery transcript – you can pick and choose what gets put into evidence
(49) if part of discovery is read in to evidence – court can consider the whole examination (and
can direct other parts be tendered as evidence)
o Practically – judges never read whole transcript
o If other side has issues with parts read in they have to bring it to court’s attention
(52) can tender in evidence all or part of examination of non-party W if they can’t attend
o Introduced to contradict or impeach other W, or if necessary to interests of justice
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RULE 12-6 JURY TRIALS – NOT VERY COMMON IN CIVIL LITIGATION (MOSTLY USED IN PERSONAL INJURY)
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Default is trial by judge (Rule 12-6(1))
Certain proceedings cannot be heard by jury (Rule 12-6(2))
You can require trial by jury: must file notice (Form 47; 21 days after notice of trial and 28 days
before trial) and pay sum to cover the jury (Rule 12-6(3))
Proceedings can still be transferred to Provincial Court (Rule 12-6(4))
Can apply for an order that the trial be heard without jury – apply within 7 days after service of
jury request (Rule 12-6(5)) – except if defamation, false imprisonment and malicious
prosecution
EXPERTS’ REPORTS
R v Mohan [preliminary admissibility issues of expert evidence]
1. is it relevant
2. is it necessary – provides information that is likely outside the experience and knowledge of the trier
of fact
3. is there an exclusionary rule prohibiting admission – certain categories of evidence that are
automatically not admissible
4. expert must be properly qualified to give the opinion
PROF: also think about:
5. does it approach ultimate issue in the case – courts less likely to accept expert evidence if it goes to
question judge is supposed to be deciding (should go to facts)
6. novel area of expertise – subject to more scrutiny (how long has this been around, subject to peer
review, etc)
7. independence of W
8. question of privilege over expert’s files – experts must be warned that files outside the report might
have to be produced too
Rule 11-1 Application of Rule 11
 (1) Rule 11 doesn’t apply to summary trials or W giving evidence if they are involved in the
action
 (2) if a CPC has been held – can’t tender expert opinion evidence unless provided for in case
plan order
 Vancouver Community College v Parratt – experts are there to assist the court; they are not
advocates
Rule 11-2 Duty of Expert Ws
 (1) expert has a duty to assist the court and is not an advocate for any party
 (2) in expert’s report he must certify that: he is aware of the duty, has made report in
conformity with duty, and will give testimony in conformity with that duty
o PROF: counsel can choose not to serve report but can’t change report
Rule 11-3 Appointment of Joint Experts [usually where only one expert in a particular area]
 (1) if parties adverse in interest want to or are ordered to jointly appoint an expert – must
settle:
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o
o
o
o
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(a) identity of expert
(b) issue in the action the expert evidence may help resolve
(c) any facts or assumptions of fact agreed by parties
(d) for each party – any assumptions of fact no included under (c) that the party wants
the expert to consider
o (e) questions expert to consider
o (f) when report must be prepared and given to parties
o (g) responsibility for fees and expenses payable to expert
(3) if can’t agree under (1) – party may apply to settle terms of expert’s appointment
o (5) if application under (3) – court can settle terms of appointment under (1), pick a the
person to be appointed as expert (and amend case plan order to reflect this)
(6) parties jointly appointing expert must enter into an agreement – signed by them and expert,
and served on every party of record who is not part of agreement
(7) where joint expert appointed – that expert is the only one who can give expert evidence
for those parties
(8) can apply to get another expert’s evidence (if subject to joint expert agreement) – within 21
days of receipt of joint expert’s report
o (9) court may grant leave for another expert – if satisfied the evidence of that additional
expert is necessary to ensure a fair trial
(10) all parties of record can cross examine a joint expert
Rule 11-4 Appointment of Own Experts
 (1) parties may each appoint their own experts
Rule 11-5 Appointment of Court’s own Expert
 (1) court can – at any time – appoint an expert if it thinks that would help in resolving an issue
 (2) in deciding whether to appoint an expert, court may: (a) ask each party to name someone
qualified to be an expert, (b) require each party state any connection to experts listed in (a) and
a party to the action, (c) receive material and make inquiries to help decide
 (3) court can appoint someone not named by a party under (2)
 (4) expert must consent to being appointed
 (5) can appoint an expert who has given a report to a party
 (6) all parties have right to cross examine court appointed expert
 (11) expert appointed must prepare a report
 (12) expert report must be tendered as evidence at trial
Rule 11-6 Expert Reports [technical requirements of expert reports]
 (1) contents of expert report: signed, include certification [Rule 11-2(2)], name, address, area of
expertise, qualifications, employment and educational experience in area of expertise, nature of
opinion sought, opinion, reasons for opinion
o PROF: default rule – unless called for cross examination, expert report = evidence
 (3) at least 84 days before trial date – expert report must be served on every party along with
written notice of what party(ies) intend to tender report at trial
 (4) if tendering expert report in response to other party’s expert report – serve responding
report at least 42 days before trial date
o PROF: times are default; parties can agree to shorten; if you serve late court will likely
adjourn – most common way to deal with people serving outside time limits
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(5 – joint/court appointed) and (6 – own appointed) if expert’s opinion changes in a material
way after service – expert must prepare supplementary report and it must be served on all
parties
(8) if you serve an expert report – must provide (if asked): (a) statement of facts on which
report is based, record of independent observations made by expert, data compiled by expert,
test results; (b) contents of expert’s file relating to preparation of opinion
o If it is requested – must provide this material at least 14 days before trial date
(9) must inform the expert of scheduled trial date and that they might be required to attend
trial for cross examination
(10) if objecting to admissibility of expert evidence – serve on every party a notice of objections
that you intend to raise at trial on earlier of date of TMC and 21 days before trial date
(11) if reasonable notice could have been given – can’t object at trial if that notice wasn’t given
Rule 11-7 Expert Opinion Evidence at Trial - default rule: unless cross examination, report = evidence
 (1) can’t tender report at trial if doesn’t accord with Rules
 (2)(a) – if demand that expert attend for cross examination is made w/in 21 days of receiving
report – report can’t be tendered as evidence unless appointing party calls expert at trial to be
cross examined
 (2)(b) – if no demand for cross examination, expert doesn’t have to attend, and the report (if
admissible) may be tendered and accepted as evidence
o If you have issues with report must demand cross – or report stands on its own
 (3) to demand that another party’s expert attend for cross examination (within 21 days):
o (a) if jointly/court appointed – any party can demand attendance
o (b) if appointed by a party – any party who is adverse can demand attendance
 (4) if you demand attendance and cross examination wasn’t helpful – court may order you to
pay costs of expert’s attendance
 (5) if you appoint your own an expert under Rule 11-3(9) or 11-4:
o (a) you can’t call the expert to give oral evidence – unless demanded by other party for
cross examination, or report has been served and you think testimony is required to
clarify terminology or make report more understandable – direct examination limited to
those matters
o (b) can’t cross examine your own expert
 (6) circumstances where court may allow expert to provide evidence even though requirements
of Rules not met
o (a) facts came to attention too late, (b) non compliance is unlikely to cause prejudice, (c)
interests of justice require it
FAST TRACK AND EXPEDITED LITIGATION
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Pros: cheaper, quicker
Cons: more restricted, fixed costs, may prevent you from dealing with a longer matter
Rule 15-1 Fast Track Litigation
 (1) applies to action if:
o (a) only claims are for: money, real property (ie. land), builder’s lien and/or personal
property – and total claimed for: pecuniary, non pecuniary loss and fair market value of
property = $100,000 or less
o (b) trial can be completed in 3 days
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o (c) parties to action consent
o (d) court orders fast track
(2) if this rule applies any party can file notice of fast track action [Form 61]
o Have to add “Subject to Rule 15-1” to style of proceeding below listed parties for all
docs filed after notice of fast track action filed
(3) court can still award damages over $100,000 to P
(4) rule doesn’t apply to class proceeding
(5) if conflict between rules in fast track action – this rule trumps
(7) can’t serve notice of application or affidavit in support of application – unless CPC or TMC
has been conducted
o (8) unless application to add, remove or substitute party, or by consent
(10) done w/o jury
(11) XFD limited to 2 hours unless person examined consents
(12) XFD must be completed at least 14 days before trial date
(13) if party to fast track applies for trial date within 4 mos after date rule starts to apply –
registrar must set date for trial not later than 4 mos after application for trial date
o PROF: setting trial date = one of biggest advantages to fast track
(14) if TMC judge thinks trial will take more than 3 days – trial date not required to be within 4
mos of application
(15) unless otherwise ordered, or consent – costs entitled to are restricted:
o (a) if trial is one day or less = $8,000
o (b) if trial is between 1 and 2 days = $9,500
o (c) if trial more than 2 days = $11,000
PROCEDURE FOR COSTS [DON’T FORGET EFFECTS OF OFFERS]
1. Legal Fees
2. Disbursements
General Rule: successful party gets their costs
 Party and Party Costs: get costs under a “tariff” – designed to be 50% recovery; generally less;
court doesn’t look at actual cost – just look at what was done (ex. how many documents
produced)
 Special costs: designed to be close to actual costs – “costs that reasonably competent solicitor
charges for reasonable pursuit of the case” [lawyers don’t actually charge a ‘reasonable cost’ so
you’ll still get less than you paid – usually about 80-90%]
o Start from actual costs (unlike tariff)
Court can award costs in 4 ways:
1. costs in the cause – no one gets costs on application; whoever wins at trial gets costs of application
2. costs to one of the parties in the cause – if that party wins they get costs of application, if they don’t
win no one gets those costs
3. costs to party in any event of the cause – regardless of who wins overall, whoever gets costs of
application get those costs
4. costs payable forthwith – court thinks you shouldn’t have brought application or defended it so
award costs and make you pay them now
Costs are those under tariff
Usually only where conduct that requires court to make a point of punishing someone
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Rule 14-1 Costs
 (1) costs (party and party costs) assessed under Appendix B
 (2) party and party costs under Appendix B – allowed fees that were proper or reasonably
necessary and consider Rule 1-3 and any case plan order
 (3) special costs – (a) allow proper or reasonably necessary fees and
o (b) consider:
 complexity of proceeding and difficulty of issues
 skill, specialized knowledge and responsibility of lawyer
 amount involved in proceeding
 time reasonably spent conducting proceeding
 conduct of any party that shortened or lengthened duration
 importance of proceeding and result obtained - to party whose bill is being
assessed
 benefit of services of lawyer - to party whose bill is being assessed
 Rule 1-3 and case plan order
o Lee v Richmond Hospital Society – special costs are intended to “resemble closely” the
reasonable fees charged by a lawyer to his or her own client
o Bradshaw Construction Ltd – special costs are meant to provide a much higher
indemnity that “ordinary” costs
 Not necessarily fees that solicitor for party entitled to costs could claim from his
client
 The fees that a reasonable client would have to pay a reasonably competent
solicitor to do the work for which the costs are claimed
 Special costs are an offshoot of solicitor and client costs – they are intended to
provide indemnity for all legal expenses reasonably incurred
o Garcia v Crestbrook – special costs may be ordered for reprehensible conduct falling
short of scandal or outrage
 Misconduct deserving rebuke is reprehensible
 Special costs may be ordered if improper allegations of fraud have been made, if
proceeding has been brought for improper motive or a proceeding has been
improperly conducted
 (4) registrar assesses costs
 (5) disbursements – allowed a reasonable amount for disbursements that have been necessarily
or properly incurred
 (7) can apply for directions from judge/master who made costs order – to direct that any item
be allowed or disallowed
o (c) the registrar is bound by any direction given by the judge/master
 (9) Costs to follow event [default] – costs awarded to successful party unless court orders
otherwise
 (10) Costs in small claims jurisdiction – P awarded $25,000 or less is not entitled to costs (other
than disbursements) unless sufficient reason to bring proceeding in Supreme Court
 (12) costs of applications [default]
o (a) if application granted – party who brought application entitled to costs of application
if they win at trial
 Party opposing action not entitled to costs even if awarded costs at trial
o (b) if application refused – party who brought application not entitled to costs even if
they win at trial
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 Party opposing application is entitled to costs if they win at trial
(13) costs are payable on conclusion of proceeding
(14) improper act or omissions can result in cost orders
(17) set off of costs – if party liable to receive costs owes another party costs: registrar may
adjust or delay receipt of costs until you pay costs you owe
(18) court may order one D to pay another – or order P to pay successful D and include that in
disbursement costs owed by unsuccessfully D
(20) Bill of costs in Form 62
(26) registrar may fix costs which P gets on signing default judgment
(33) disallowance of fees and costs – if court considers lawyer has caused or wasted costs
without reasonable cause, court may:
o (a) disallow fees and disbursements between lawyer and client
o (b) order lawyer indemnify client for costs paid to another party
o (c) order lawyer personally liable for cost to pay to other party
(35) can’t make an order under (33) unless lawyer is present or has notice
Appendix B
 Tariff costs:
o 1. Figure out what type of units you are entitled to
o 2. Figure out how many units you are entitled to
o 3. Multiply by the number for the scale you have been awarded
 Appendix B s 2(2) – Default = (b) Scale B
 Appendix B s 3(1) – value of units
o 4. Add tax (HST)
o = costs you are entitled to in the normal default course
 s 6 - Default judgment: level of costs reduced (see Schedule 1)
 s 4 – Daily rates: items in tariff assume one full day for that item
o s 4 – rates for less than a full day
Security for Costs
 Application available to D – to obtain security for costs they would be awarded if ultimately
successful in having P’s claim dismissed
o when faced with claim by P and D worried about recovering costs if they win
o have to establish a real risk that there will be no money at the end of the day [Fat Mel’s
Restaurant] – file an affidavit to show this
 Reasons:
o 1. Purpose of ordering security for costs – to provide a fund for payment of costs of
parties who succeed against impecunious opponents [Fat Mel’s Restaurant Ltd]
 Amount ordered as security should be determined having regard to all
circumstances
o 2. Make P think seriously about their case – creates risk for P; have to put money up
upfront
Appeals and Review of Decisions
Rule 23-6 Masters, Registrars and Special Referees [appealing decision of Master/Registrar]
 (8) appeal from master, registrar or special referee – may appeal to court
 (9) to appeal - file notice [Form 121] within 14 days after order/decision
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(10) must be at least 3 days between service of notice and hearing
(11) appeal from decision of master/registrar is not a stay of proceeding – unless ordered by
court or master
Appealing decision of master – judge doesn’t want to rehear entire decision:
o If question of fact; discretionary order of Master – reasonableness standard
o if true question of law – correctness standard
Court of Appeal Act, ss 6 and 7 [appealing decision of Judge]
 If non-final order = no automatic right of appeal [s 7]
o Go before 1 judge of CA and obtain leave to appeal
o CA looks at whether it is reasonable appeal and there is some basis for it
 Final order = automatic right of appeal
o At end of trial, summary trial, petition hearing
 In both cases – must file seeking leave to appeal – within 30 days [s 14]
 Final appeal to Supreme Court of Canada – apply within 60 days
o Seek leave before 3 judges of SCC
o Test:
 Is it of national importance
 Is it significant question of law or mixed fact and law
 Are there competing Court of Appeal decisions where they need to reconcile the
law
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