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Civil  Procedure—LAW  469  [Spring  2019]    

Affidavits   Affidavits are documents, generally drafted by lawyers, that present evidence sworn or affirmed1 (and signed) by a deponent [22-2(4-5)]. They are rarely used in trials due to the hearsay rule but are required in almost all applications aside applications to strike pleadings under rule 9-5, which do not permit any evidence [9-5(2)]. Formally, affidavits must be expressed in the first person and must contain the name, address, and occupation of the person swearing or affirming it, indicating whether they’re a party or a representative [22-2(2)]. Exhibits can be attached to the affidavit, which have to be identified by the swearer [22-2(4)]. If they contain hearsay2, the affidavit should state the source of the information or belief [22-2(13)]. Generally speaking, the content of the affidavit should be guided by the legal test(s) of the thing you’re seeking. If the order requires the person to make an undertaking (i.e. if they’re seeking an injunction) make sure the deponent states their willingness to do so in the affidavit.

Rule Case Effect 22-2(6) Illiterate deponents have to affirm the statement was read to them 22-2(7) If interpretation’s needed, interpreter has to certify they’ve

interpreted the affidavit to the person. 22-2(9) Exhibits don’t have to be filed, but have to be made available to the

court and other parties 22-2(11) Can alter an affidavit by initialing changes 22-2(14) Court has discretion to use an affidavit whose form is defective

Affidavits carry some risks to the deponent:

§   Can be used to ground perjury charges §   Can be used to impeach credibility at trial §   Can make them subject to cross-examination in chambers proceedings

if the court wants to scrutinize their contents [22-1(4)] §   Info could amount to a waiver of privilege [note that waiving privilege

over part of a document waives it over all the document, S & K Processors]

§   Could be used in later litigation if the implied undertaking is waived

                                                                                                               1 They should clearly do one or the other. The statement “sworn (or affirmed)” won’t cut it: British Columbia v. Adamson, 2016 BCSC 584 at para. 19. 2 “Hearsay” in this context means information that is outside the personal knowledge of the deponent, not an out of court statement admitted for the truth of its contents.

 

 

 

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All of the above presents some professional risk to the drafting lawyer too, who could face professional negligence or misconduct proceedings down the road. The Code of Conduct provides some guidance in this respect. Most notably, it suggests that lawyers themselves should not provide material affidavit evidence unless permitted by law; the matter is formal or “uncontroverted”; or where it’s necessary in the interests of justice [5.2-1].3 Lawyers may be required to withdraw from a case they have themselves given evidence in [2.1-3(k)].4 On the other hand, chambers judges or masters may sometimes want lawyers to help explain or amplify information, in which case expediency rules [22-1(4)]. Practice Points:

ü   As an evidentiary matter, establish habits when drafting and swearing affidavits in case your actions are challenged later

ü   Headings and context are usually helpful for the reader

Professional Responsibility: A lawyer must not swear an affidavit or take a solemn declaration unless the person:

(a) is physically present before the lawyer (b) acknowledges that he or she is the deponent (c) understands or appears to understand the statement contained in the document (d) in the case of an affidavit, swears, declares or affirms that the contents of the

document are true (e) in the case of a solemn declaration, orally states that 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 made under oath

(f) signs the document, or if permitted by statute, swears that the signature on the document is that of the deponent.

[Code of Conduct, Appendix A, s. 1] Alternate  Dispute  Resolution  (ADR)   There are two main forms of ADR aside settlement negotiations: mediation and arbitration. a) Mediation5

v   Time: a) notice to mediate served (by either party) no earlier than 60 days after the first response is filed and no later than 120 days before the trial date [s. 5, Notice to Mediate Regulation]; b) a mediator has to be appointed within 14 days of notice, or within 21 days if there are more than 4 parties [s. 6]; c) a mediation session has to occur within 60 days

                                                                                                               3 One situation where a lawyer’s affidavit would be permitted is where one side challenges the other side’s claim to privilege. Lawyers may then be allowed to give affidavit evidence in support of the privilege claim (being careful to not divulge the privileged information itself): Keefer Laundry Ltd. v. Pellerin Milnor Corp. et al., 2006 BCSC 1180 at para. 85-88. See “Privilege” below. 4 Why can’t lawyers give affidavit evidence? Because it could (at the court’s discretion) subject them to cross-examination and puts their credibility at issue. Good luck effectively representing your client after getting torn to shreds by opposing counsel. 5 See also “Judicial Settlement Conferences” below.

 

 

 

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after the appointment of a mediator but not later than 7 days before the trial date unless agreed by all parties or ordered by the court [s. 24]; d) parties have to give the mediator a Statement of Facts and Issues in Form 2 at least6 14 days before mediation [s. 26]

Mediation is a one-time [s. 4], non-binding procedure that is without prejudice to any later position the parties might take. It can be initiated by either party by serving a Notice to Mediate on the other side in Form 1 [s. 3].

Rule Case/statute Effect ss. 7-8, Notice to Mediate Reg. A party can apply to a roster organization if they can’t agree over the

mediator. s. 29(2) Costs of mediation are equally split; unless parties agree otherwise

[29(3)] s. 36 Information acquired in connection with mediation is confidential;

unless all parties agree in writing [36(2)(a)]. Doesn’t apply to info that’s otherwise producible [37].

Note that the general regulation does not apply to family law, judicial review or physical or sexual abuse claims. Motor vehicle and residential construction actions have their own regulations. b) Arbitration Unlike mediation, arbitration only happens by consent (hence why it’s often embodied in contracts). An arbitrator can either be appointed by a court or agreed upon by the parties. Sometimes parties prefer the latter to ensure that the decision-maker has the requisite expertise. Practice Points (ADR):

ü   Can be a means of keeping the issues between the parties private7 ü   Can permit you to create your own cost-recovery regime ü   Mediators/arbitrators can be expensive (in range of $600/hour). Make sure the

client’s aware of this ü   Note that arbitrators’ decisions can be difficult to appeal ü   Consider using a special case [9-4] alongside this if you need a court finding

Amending  Pleadings  

v   Time: a) if other party’s served a response: have to ordinarily serve your amended pleadings within 7 days after filing it, they have to ordinarily serve an amended response within 14 days of getting it [6-1(4,5)]; b) if other party hasn’t served a response: have to personally serve your amended pleadings “promptly” and before any other step [6-1(4)].

Parties can amend part or all of their pleadings [6-1(1)]. They can do so once without leave if notice of trial hasn’t yet been served [6-1(1)(a)]. If notice of trial has been served, court leave or                                                                                                                6 Underlined time periods indicate that the period is counted differently than you’d expect. This one is counted in “clear days”, which excludes the first day and the reference day—a time period that’s “clear” of the landmark days. 7 Mention this if the fact pattern raises any kind of privacy or confidentiality considerations for your client.

 

 

 

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written consent is required [6-1(1)(b)], but it can be done at any time. As one might expect, parties are reluctant to consent to amendments that harm their position.

Ø   Test (for court permitting amendment): whether it will aid in the determination of the “real question and issues between the parties”, and is “just and convenient,” considering:

§   Extent of the delay §   Reasons for the delay §   Prejudice caused by the delay §   Extent of the connection between existing claims and the

proposed amendment(s) [Sommer v. Coast Capital Savings Credit Union]

Any added words have to be underlined and any deleted words have to be shown as struck out (6-1(3)).8 Practice Points:

ü   Consider how amendments might alter the parties’ discovery obligations (recall that these are ongoing)

ü   Consider if amendments give rise to inconsistent pleadings under 3-7(6) ü   Note that Rule 7-7(5) prevents a party from withdrawing admissions made

pursuant to a notice to admit without consent or court leave ü   Consider referring to Rule 1-3 (object of rules) if you need to seek leave for

an amendment Appeals  

v   Time: parties have 30 days to give a notice of appeal of a judge’s order at the BCCA unless the enactment provides otherwise [s. 14, Court of Appeal Act]. A master or registrar’s order can be appealed by filing Form 121 within 14 days and serving the notice at least 3 days before the appeal hearing [23-6(8-10)].

For real-world purposes, note that Rule 18-3 governs appeals to the BCSC (i.e. from the Provincial Court or an administrative tribunal). The SCC has its own rules, which aren’t relevant to this course. Case  Planning  Conference  

v   Time: a) Can be requested by either party following pleading period [5-1(1)]; b) Notice has to be served on other parties at least 35 days ahead of the date of the case planning conference [5-1(3)]. If you hold a second conference, you need to give at least 7 days prior notice [5-1(3)]. Both deadlines are subject to consent or court order; c) Applicant

                                                                                                               8 If the amendments amount to a total makeover of the pleadings, the registry might permit you to just draw a line down the side of the page rather than underlining and striking out everything. Note, again, that the new pleadings can’t be inconsistent with the old pleadings [3-7(6)].

 

 

 

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party has to serve a case plan proposal within 14 days of serving notice, respondent has 14 days to reply after getting the proposal [5-1(5)].

Case planning conferences are an optional means of dealing with pre-trial issues to make the process more efficient and avoid adjournments. The conferences take place between the lawyers and a master or judge [5-2(1)] with party participation if they’re unrepresented or if the court orders them to attend [5-2(2)]. The parties can apply to shorten the period by requisition in Form 17 [5-1(4)]. The conference will cover virtually every step in the process [5-1(6)]. In practice, conferences last about 30 minutes. They’re typically done in person [5-2(3)], though subsequent conferences can be done by phone [5-2(3)(b)]. The conference must be recorded [5-2(7)] but cannot be disclosed to either party absent a court order, which will only be granted on “reasonable—compelling—grounds” [Parti v. Pokorny]. Educational grounds alone are insufficient [Parti]. The judge or master hearing the conference has broad powers, including:

(a) setting a timetable for steps to be taken; (c) modifying deadlines; (d) amending pleadings; (f) orders respecting discovery; (g) orders respecting exams for discovery or inspections; (j) orders respecting witness lists; (k) orders respecting experts; (m) orders respecting offers to settle (o) requiring parties to attend mediation or other ADR (q) fixing the length of trial; (v) any other order [5-3(1)]

However, they cannot hear applications supported by affidavit evidence or make final orders [5-3(2)] except by consent or respecting non-compliance [5-3(6)]. If needed, parties can apply to amend a case plan under [5-4]. Practice Points:

ü   Especially helpful if a party isn’t cooperating because it allows you to set deadlines.

ü   Don’t confuse case planning conferences with trial management conferences [12-2]

Chambers   Chambers proceedings include petition hearings, requisitions set for hearing under 17-1(5)(b), and pre-and post-trial applications, including summary judgment and summary trial applications [22-1(1)]. Such proceedings can either take place before a judge or a master, each having distinct jurisdictions (see “Masters”).

 

 

 

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Generally speaking, chambers proceedings use affidavit evidence only, though the court has lots of tools for getting other evidence in [22-1(4)], including cross-and direct examination and appointing its own experts [22-1(7)(c)]. Chambers proceedings can lead to granting the order, refusing it in whole or in part, adjourning proceedings, or ordering a trial on all or given issues [22-1(7)]. Change  of  Lawyer   Lawyers and clients can dump each other. However, it’s easier for a client to dump a lawyer than vice versa—aside the adequacy of representation, changing representation has implications for both service and professional responsibility.

Rule Case Effect 22-6(1) A party can modify their representation, but other parties can

proceed as before until notice in Form 110 or 111 is filed and served.

22-6(3) If a lawyer withdraws and the party hasn’t served notice, the lawyer can apply to the court to declare they aren’t involved anymore

From a procedural standpoint, a lawyer who wants to withdraw without the cooperation of the client must follow a few steps:

§   Serve a notice of intention to withdraw in Form 112 on the client and other parties [22-6(4)] through personal service [4-3(1)(h)]

§   Parties get 7 days following service to file and serve an objection in Form 113 on the lawyer [22-6(5)]

§   If no objection, file and serve Form 114 on the parties and you’re free [22-6(6-7)] §   If there’s an objection, you can apply on notice to the parties who filed an objection for

an order under 22-6(3) declaring that you’re no longer involved [22-6(9)]

From a professional standpoint, the basic idea is that lawyers shouldn’t dump a client “except for good cause and on reasonable notice to the client” [3.7-1, Code of Conduct]. Good cause includes:

§   A “serious loss of confidence” with the client §   Non-payment of fees after reasonable notice9 §   Persistent instructions “to act contrary to professional ethics” §   A lack of competence to continue handling a matter

[3.7-2-3, 3.7-7, Code of Conduct] If you withdraw, you have a duty to “try to minimize expense and avoid prejudice to the client,” including facilitating an orderly handover to the replacement lawyer [3.7-8, Code of Conduct].

                                                                                                               9 You can also sue the client on the debt. The court may refer the legal services bill to the registrar for determination of whether the fees were reasonable: Legal Profession Act, SBC 1998, c 9, s. 70(6). A client can likewise challenge a legal bill under s. 70(1).

 

 

 

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Class  Actions   A class action is an option where many people are affected by a common wrong in circumstances that would not justify separate trials. Courts can certify a class action under s. 2 of the BC Class Proceeding Act if it meets the criteria set out in s. 4:

Ø   Test: §   A cause of action; §   Affecting an identifiable class of 2 or more person; §   United by a common issue or issues; §   Whose resolution would be “fair and efficient” as a class; and §   There’s a representative plaintiff

[Class Proceedings Act, s. 4]

Rule Case/Statute Effect CPA, s. 3 A defendant subject to discrete actions can apply to unite them as a

class action. CPA, s. 32-33 Court can determine relative quanta due to each member when

assessing damages Commencing  Pleadings   Lawyers have some professional responsibility points to think about before agreeing to take on a case. These are summarized in the Code of Conduct and include:

Duty Rule Effect To the state 2.1-1(a) Shouldn’t “aid, counsel or assist” someone to break the law10 To courts and tribunals 2.1-2(a) Should act candidly, fairly, courteously and respectfully at all times 2.1-2(c) Shouldn’t try to deceive the court through false evidence or misstatements To the client 2.1-3(a) Should be informed about the facts and law before advising a client, and

should do so honestly, being wary of “bold and confident assurances.” 2.1-3(b) Shouldn’t act where you have a conflict of interest with the client or

between clients 2.1-3(e) Should try to procure any remedy or defence the client has in law 2.1-3(g) Shouldn’t acquire a pecuniary interest in the subject-matter or use client

confidences for personal gain. Can’t subsequently act against the client in the same or a related matter.

To other lawyers 2.1-4(a) Should behave with courtesy and act in good faith 2.1-4(c) Should avoid “sharp practice” or taking “paltry advantage” of a slip or

technicality. Should accede to all reasonable requests that don’t prejudice the client or the interests of justice.

To oneself 2.1-5(d) Shouldn’t render services or advice involving disloyalty to the state, disrespect to judicial office or corruption.

                                                                                                               10 Many cases involve determinations of what the law actually is. A rule like this is designed to prohibit lawyers from knowingly helping clients to break the law. It is not designed to punish lawyers who give reasonable legal advice that turns out to be offside of subsequent judgments. This same reasoning applies to the “future crimes” exception to solicitor-client privilege: Czech Republic v. Slyomovics, 2010 BCSC 1274 at para. 34-36.

 

 

 

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Admin of justice 5.1-2 Shouldn’t act for improper purposes, assist a client to do anything dishonest, knowingly misstate evidence or the law, withhold relevant law, misrepresent a party’s position etc.

5.1-2.1 Shouldn’t counsel or assist hiding, destroying or altering physical evidence 5.1-4 Should (barring confidentiality) disclose any errors you’ve made

Costs—Schedules  A-­‐C,  Tariff  

v   Time: post-judgment [14-1(9)], court can also make specific cost orders forthwith. The first consideration in any potential action is how much the action will cost and how much the client might recover. The default position is for the winner to get party-and-party costs in the cause (or following the event) [14-1(1)], which normally amounts to 25-30% of the client’s actual costs. The tariff in Appendix B (pgs. 768-770) outlines the various items that can be claimed as costs in matters of “ordinary difficulty” and the maximum “units” a party can claim under each. The schedules on pgs. 766-767 outline the value of each unit. Some disbursements (i.e. court filing fees) can be collected in full. One exception to this general rule is special costs, or “solicitor-client costs” [14-1(1)(b)], which can be awarded for reprehensible conduct (but not for merely having a weak case—Garcia v. Crestbrook). This will result in the party getting all reasonable costs they incurred.11 Costs, whether for applications [14-1(12)] or the proceedings as a whole, are ultimately within the judge’s discretion.12 Costs for applications will generally be awarded to the winner at trial if their applications were successful [14-1(12)].

Ø   When special costs might be awarded13:

Improper allegations of fraud

Improper conduct of the proceeding

Bringing proceedings for improper motives

Claims for draconian relief

Meritless proceedings

Applying undue economic pressure

SLAPP actions Contempt Abuse of process or witness tampering

Improper caution in ex parte proceedings

Attempting to deceive the court

Suppression of evidence

Malice Criminality Fraud and near fraud

Making improper allegations against professionals

Incivility Making inordinate use of the courts

Where the party was clearly warned about a special cost award.

Given the overlap between these categories and the grounds for striking pleadings under 9-5(1), it’s no surprise that Rule 9-5(1) explicitly permits special cost awards where an application to strike succeeds. Practice Points:

ü   Do a cost-benefit analysis with the client upfront and on an ongoing basis

                                                                                                               11 Rule 14-1(3)(b) sets out the factors relevant to a registrar’s assessment of special costs. 12 This makes them difficult to appeal. 13 See the case summaries in British Columbia Annual Practice.

 

 

 

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ü   Make sure the client is perfectly clear that in almost all cases their legal costs and disbursements will be much higher than any cost award they might get

ü   Encourage the parties to settle without unnecessary expenses and use offers to increase the other side’s risk (see “Offers”)

Costs—Procedure   Costs will generally be determined by the parties after the reasons for judgment. Usually, the winner will draft a bill of costs and disbursements using Scale B as the default [14-1(1)]. The exceptions to this practice include:

§   Where the parties consent to a specific amount §   Where the court orders special costs §   Where the court awards a lump sum [14-1(15)] §   Where the litigation was fast track, in which case the amounts in 15-

1(15-17) apply [15-1(1)].

If the parties disagree over the amounts, they may have to go back before a judge or master [14-1(7)], or a registrar to decide the issue, who will do so on the basis of what was “proper or reasonably necessary,” [14-1(2, 5)]. The loser will then try to carve off unreasonable expenses while the winner might try to get special costs if they’ve given the loser some prior warning of doing so. Note that if you’re a profligate slimeball who wastes others’ time or money, the court can cancel your client’s legal fees or order you to reimburse them [14-1(33)]. Practice Points:

ü   There may be room for argument over costs if the offers and the award were close (i.e. within 5% of one another).

Default  Judgment  

v   Time: after (i) 21 days following service in Canada; (ii) 35 days following service in US; (iii) 49 days following service elsewhere [3-8(1)]

If a defendant fails to file a response to a civil claim within the time limits, the plaintiff may apply for default judgment (which can be done before a master). The application requires filing [3-8(2)]:

(a) proof of service on the defendant (b) proof that the defendant failed to serve a response (c) a requisition endorsed by a registrar to the effect of (b) (d) a draft default judgment order in Form 8

If default judgment is granted, damages will be assessed either by trial [3-8(12)] or by application [3-8(13)] if they need to be ascertained. Damages that are clearly ascertainable, like a debt, can be granted right away [3-8(3)]. A registrar can award costs without appointment [14-1(26)]. Note that default judgment is an unusual measure that will generally only be successful if

 

 

 

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a plaintiff has given the other side fair warning. As in other rules, prejudice is a leading consideration. Practice Points:

ü   Give the other side ample warning before making this application ü   Consider code of conduct obligations before moving forward with this,

especially Rule 2.1-4(c) prohibiting “sharp practices” ü   If you’re the victim of a default judgment, consider using Rule 3-8(11), which

permits a court to set aside or vary default judgments. Will have to act fast. Depositions  

v   Time: “before or during trial”; notice of examination given by serving copies of the subpoena on all parties at least 7 days before the examination [7-8(13)]

Unlike examinations for discovery, which are done to see what witnesses will say at trial and to impeach their eventual testimony, depositions function as pre-recorded testimony and cross-examination that can be tendered in evidence at trial [12-5(40)]. They can be done by party consent or by court order [7-8(1)] and must be done with a court reporter present [7-8(2)].

Ø   Factors (for courts when considering permitting a deposition): (a) convenience of the examined person (b) possibility they’ll be unable to testify at trial due to “death, infirmity, sickness or absence” (c) possibility they’ll be outside the jurisdiction by trial (d) possibility and desirability of having them testify in trial by electronic means (e) expense of bringing the person to trial [7-8(3)]

The genuine availability of the examined person is really the key consideration. If it’s done by court order, parties can subpoena the witness(es) using Form 25 and require them to bring documentary or real evidence in their possession or control [7-8(5)]

Rule Case Effect 7-8(7) Absent court order or consent, default place of examination is within

30km of the registry nearest to the person’s residence. 7-8(8) Court can order the deposition in a place it considers appropriate. 7-8(10) Can request the assistance of the BC AG or External Affairs if an

int’l witness isn’t cooperating with a deposition. 7-8(12) If you get this ­, lawyer for requesting party has to make an

undertaking to pay for g’ts expenses. If a translator is required, then the translator will need to certify the transcript. If there’s an objection to a question, the examinee will answer the question and the parties will pause the tapes at the right moment in court to argue over it then [7-8(15)].

 

 

 

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The downsides of depositions are that it may be difficult for the court to assess credibility without the person present, and the nature of the objection procedure means that it may be difficult to adjust for objections that are eventually allowed. These provide strong reasons for preferring live video testimony where possible. On the other hand, because both sides plus a court reporter are present during depositions, they can be easier to control for interferences like feeding answers. Practice Points:

ü   If a key witness pulls out of the trial for availability reasons, depositions are the way to go, not affidavits

ü   Good idea to send foreign examinees the questions in advance Discontinuance/Withdrawal   A plaintiff can discontinue an action in whole or in part before trial by filing notice in Form 36 and serving it on all parties [9-8(1)]. They can do the same after a trial notice has been given but only with consent of the parties or with court leave. Defendants can withdraw part or all of a response using Form 37 through the same procedure as under 9-8(1) [9-8(3)]. If a party discontinues an action or withdraws a response to a civil claim, they owe the other party their costs to the date of the discontinuance or withdrawal [9-8(4)]. Discontinuance is no defence to a subsequent proceeding [9-8(8)].14 Practice points:

ü   This is helpful to plaintiffs who don’t have a solid case now but who want to try again later. Consent dismissal orders are for settlements, if you want to go that route instead.

ü   Consider the impact of this on any injunctions you might’ve gotten in the course of the proceedings—if the cause of action goes, so does the injunction.15

Discovery  

v   Time: Have to serve a document list in Form 22 on all parties within 35 days following pleadings [7-1(1)], which includes a brief description of each listed document [7-1(2)]. You likewise get 35 days to respond following a demand for more documents [7-1(13)].

Counsel has an ongoing duty [7-1(9)] to disclose relevant documents to the other side [7-1(1)]. “Document” is defined in Rule 1-1 to include “a photograph, film, recording of sound, any record of a permanent or semi-permanent character and any information recorded or stored by means of any device.” It includes posts on social media and other digital information [Fric v. Gershman].

                                                                                                               14 Put otherwise, discontinuance does not give rise to res judicata because it does not involve a court decision. 15 Note that pending injunction applications (like all applications) can be discontinued too.

 

 

 

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That said, the parties are not required to disclose everything that’s only potentially relevant to the other side [Dhugha v. Ukardi], as was the case under the old Peruvian Guano standard.

Ø   Test (for disclosure): All documents in your possession or control that could “be used by any party of record at trial to prove or disprove a material fact.”

[7-1(1)(i)] This standard includes documents that indirectly “assist in proving or disproving a material fact” [Biehl v. Strang]. A material fact is one that helps prove or disprove an issue in the action that advances a party’s case [Biehl].16 As elsewhere, proportionality is a key consideration [Edwards v. Ganzer]. You can claim privilege over documents but should give sufficient reason why [7-1(6-7)].

Ø   Test (for “control” over a document): documents outside your possession but which you have “an enforceable right to obtain.”

[Wolansky v. Davidson] This could include documents in the possession of a company the party has a majority interest in or documents held by a sibling company within a corporate structure [Sunnar v. U-Haul Co.]. It could also include things like doctors’ notes. Privacy concerns may restrict access to some third-party records [Kaladjian v. Jose, where merely pleading a pre-existing condition was insufficient to disclose MSP records], including social media documents [Fric v. Gershman]. The document list serves as a basis for the other side to request access for inspection and copying [7-1(15)]. Disputes between the parties can be resolved at a case planning conference [Dhugha v. Ukardi]. Typically, disputes can be resolved through amending the document list to give fuller descriptions of the privilege, submitting affidavits in support of the privilege or having the court examine the impugned documents themselves [7-1(20)].17 In rare circumstances, Courts can also require a party to verify their list of documents by affidavit [7-1(8)] where the party’s omitted material documents without adequate explanation or shown a “dilatory and casual attitude to production of documents leading to an inference that relevant documents may be hidden,” though this will not be strictly applied where there are a large volume of documents at issue [Gardner v. Viridis Energy Inc.].

Rule Case Effect 7-1(3) Have to disclose insurance policies that make an insurer liable to satisfy

all or part of a judgment. 7-1(10) Can make a written request for omitted material documents with reasons. 7-1(11) Can request documents that fall outside relevance test if explaining why

it’s necessary. 7-1(16) Have to provide a copy of permitted documents if other side requests it. 7-1(17) Court can order documents produced for inspection and copying. 7-1(18) Court can order production and copying of a material document in

neither party’s possession or control.

                                                                                                               16 The “material facts” of the case will be determined by the pleadings. 17 Courts have said they will only examine documents themselves if the affidavit evidence leaves them in doubt: Soprema Inc. v. Wolrige Mahon LLP, 2016 BCSC 813 at para. 95, rev’d on other grounds 2016 BCCA 471.

 

 

 

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Kaladjian v. Jose ­ Parties have to give an explanation in writing for getting this. 7-1(21) If you fail to disclose a document, you can’t use it in the proceedings. Halliday v. McCulloch If privilege’s asserted over medical records in third-party control, the

court can order a list of documents plus an affidavit verifying it. All oral and hard-copy discovery is subject to an implied undertaking that the receiving party will not use it for purposes other than the proceeding at issue, with very narrow exceptions for emergencies and court orders. Breaches of this rule may be punishable by stays, dismissal of proceedings, striking a defence or contempt [Doucette v. Wee Watch Day Care Systems].18 Form 22 has four parts: 1) relevant documents; 2) other documents you intend to refer to at trial; 3) other documents requested by a party under 7-1(11) or by court order under 7-1(14); and 4) privileged documents. Practice Points:

ü   Note availability of rule 7-1(11) if you want another side’s documents but need to get around the relevance test.

ü   Look carefully at privilege and waiver of privilege (and see section below). ü   Think about how you create documents too. It’s a good idea to try to create

them in a way that will ground a solid privilege claim later. ü   Make sure clients are aware that even the bad stuff has to come out.

Evidence   The essence of a trial is getting evidence in front of a judge. Rule 12-5 lays out the rules that apply to evidence at normal trials. The subsections do not apply to summary trials under 9-7 except as provided therein [12-5(1)]. At the close of the plaintiff’s case, the defendant may have an opportunity to move to dismiss on a no evidence or insufficient evidence application:

Rule Case Effect 12-5(4) At close of P’s case, D can apply to dismiss on grounds there’s no

evidence to support P’s claim [no need to elect whether to call evidence or not, 12-5(5))

12-5(6) At close of P’s case, D can apply to dismiss on grounds there’s insufficient evidence to make out P’s claim [can only do so after D’s elected to not call evidence, 12-5(7)]

Rules 12-5(8-18) govern documents and other exhibits. Ideally, when counsel on both sides are cooperative, they will agree on a book of evidence beforehand. If not, parties can get the other side to bring listed documents to court by serving Form 43 on them at least 2 days prior to trial [12-5(8)]. All documents and real evidence, including experts’ reports must be entered as exhibits.

                                                                                                               18 The rule really requires litigious parties to compartmentalize. If person X and person Y have an ongoing family claim and person X brings a civil claim against person Y, person X cannot use documents obtained in the context of the family claim for use in their civil claim.

 

 

 

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Rule Case Effect 12-5(10) Unless court orders or parties agree, can’t introduce exhibits unless

other side has had chance to examine them at least 7 days before trial. 12-5(12) Can get the exhibits back after the period for appeal, or disposition of

any appeals, whichever is later. Under [12-5(13)] can get them sooner by consent or court order.

Rules 12-5(19-26) govern adverse witnesses, a category that includes parties adverse in interest to you and people associated through a business to a party adverse in interest [12-5(20)].

Rule Case Effect 12-5(21) Have to serve notice in Form 45 on an adverse witness at least 7 days

before calling them, unless they’re in attendance at trial [12-5(22)] 12-5(23) Person served can challenge the notice if they can’t procure attendance

of the person, person’s evidence is unnecessary, would “work a hardship” on that person or the person isn’t associated with an adverse party through a business.

12-5(25) If an adverse witness doesn’t cooperate, court can grant judgment for other party, adjourn, make cost orders, or any other order

12-5(26) Can cross-examine an adverse witness that you’ve called19 Other witnesses fall under Rules 12-5(27-39). The default is that witnesses will testify orally in court [12-5(27)].

Rule Case Effect 12-5(28) Can’t lead evidence from a witness unless they’re on the witness list. 12-5(29) Court can permit leading questions, referring the witnesses to prior

statements, and questions on their interests or relationships. 12-5(31) Can subpoena witnesses [in Form 25 without filing, 12-5(32-33)];

paying them their witness fees [12-5(35)]. 12-5(36) Can subpoena a witness to bring documents/objects to trial 12-5(38) If proven that the subpoena was served, that proper witness fees were

paid, and that the person’s presence is “material to the ends of justice,” court can order a witness who doesn’t attend apprehended and brought before the court.

12-5(39) Person can apply to set subpoena aside if their presence is unnecessary or would cause them hardship.

Practice Points:

ü   Subpoena your witnesses (ensures they’ll be there and helps them get out of other commitments)

Depositions are covered by rules 12-5(40-45) and are addressed in a separate section above. The only particular things to note are that video depositions become entered as exhibits at trial [12-5(44)] and that you can call the person deposed to testify orally if they’re around [12-5(40)]. Rules 12-5(46-53) discuss evidence from examinations for discovery, which generally are only used to impeach the credibility of the other side’s witnesses.

                                                                                                               19 This is an exception to the rule against asking leading questions to a witness you’ve called.

 

 

 

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Rule Case Effect 12-5(46) If otherwise admissible, exam for discovery evidence can be used but

only against the adverse party examined or a member of a class in a class proceeding.

12-5(49, 53)

Court can order more of a transcript entered if they want more context.

12-5(52) Can introduce exam for discovery evidence to impeach testimony or if evidence can’t come in in another way (i.e. they’re unavailable)

Rules 12-5(59-65) cover affidavit evidence. The default is that affidavit evidence is not permitted at trial but can be permitted on application [12-5(59)].

Rule Case Effect 12-5(60) Affidavit evidence has to be served on all parties at least 28 days

before an application to have it entered 12-5(61) Can cross a witness on their affidavit evidence if you give other side at

least 14 days’ notice after getting the affidavit 12-5(63) Affidavit evidence can’t enter hearsay evidence at trial

Finally, rule 12-5(72) sets out the order of speeches: P’s opening address; D’s opening address; P’s closing address; D’s closing address; P’s reply; D’s reply; D’s address re: the other D(s). Examinations  for  Discovery  

v   Time: have to serve an appointment in Form 23 plus witness fees (appendix C, Schedule 3) on the party to be examined at least 7 days ahead of time and serve notice on other parties in same time frame [7-2(13)].

There are many goals in an examination for discovery (“XFD”): to get as much information from an adverse party as possible; to test witness credibility; to dispel your own client’s misunderstandings about the case; to inquire about and authenticate documents; to test out theories and pathways for questioning; to narrow issues for trial; and to assess the merits of settlement. They are basically meant to harm the examinee’s case as much as possible. They are not to be confused with pre-trial examination of witnesses [7-5]. XFDs are subject to the implied undertaking to not use the materials in other proceedings. Who can be examined? All parties on record who are adverse in interest to you [7-2(1)], unless they lack capacity due to age [7-2(8)] or mental incompetence [7-2(8)], in which cases a guardian can be examined in their place. In the case of businesses or other organizations, the examiner can examine a representative who is knowledgeable of matters in issue nominated by the party to be examined [7-2(5)]. If the examiner objects to the nominee, they can nominate their own so long as the replacement is or has been a “director, officer, employee, agent or external auditor” of the party [7-2(5)]. Courts have the discretion to override this choice if fairness and balance so requires [Rainbow Industrial Caterers v. Canadian National Railway].

 

 

 

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Rule Case Effect Rogers v. Bank of Montreal Can examine a second representative if required in the

circumstances, considering: responsiveness of first witness, nature and relevance of the evidence sought and expediency.

Westcoast Transmission Co. v. Interprovincial Steel and Pipe Corp. ­

If you choose a representative on the other side, this may prevent you from examining a second representative.

Garnder v. Viridis Energy Inc. Representatives aren’t parties and have no obligation to disclose documents.

Rogers v. Bank of Montreal External legal counsel isn’t examinable as an agent or officer. Dann v. Dhaliwal If multiple parties to an action share common interests, they’re

generally restricted to examining a single representative. If there are two actions arising out of a similar matter, the respective plaintiffs can only examine a single representative, but can do so at different times.

Conduct: XFDs generally take place in a court room during court hours with an adjournment for lunch, but they can theoretically occur anywhere. They’re done under oath, like trial testimony [7-2(4)], where the oath is administered by the court reporter [7-2(12)]. They can be done via telecommunications if a person is distant, but this carries some disadvantages: the inability to show them documents, difficulty in evaluating their demeanour, and the difficulty in controlling the environment and preventing the examinee from being fed answers.

Rule Case Effect 7-2(2) XFDs can’t last more than 7 hours w/o their consent20 7-2(3) If examinee delays in some way, court can permit a time extension. 7-2(18) Questioning has to relate to an issue in the action broadly understood. 7-2(22) Examinees have to inform themselves and examination can be

adjourned to permit this. 7-2(23) Examiner can request a response in writing (deemed sworn). ­ Gardner v. Viridis Energy Duty to inform oneself involves making reasonable preparations

considering the nature of the case, amount involved, importance of issues in dispute, complexity of proceedings, time and expense. ­

7-2(25) If a party objects to answering a question, objection can be recorded by reporter and resolved later by a judge if necessary.

Nwachukwu v. Ferreira Objections generally discouraged on proportionality principle. Shouldn’t be accompanied by anything but the reason for objection. ­

Transcripts of the examination will go to the questioner only, though are often shared between co-counsel on a given side. Parties can be present at another party’s examination, except where evidence covers the same ground and credibility is in issue [Rogers v. BMO]. The transcript is useful as a means of contradicting witness testimony at trial and may occasionally be introduced

                                                                                                               20 It’s common for XFDs to be spread out over time, i.e. four hours in February, three hours in April, with much of the content arising through requests for information that are answered later. An XFD is not necessarily a single event.

 

 

 

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into evidence if the witness adopts or accepts the truth of the information [Westcoast Transmission]. They can also be expensive, so be sure it’s necessary.21 Conferring with clients: Counsel are able to speak with examinees during adjournments, subject to some basic rules: a) if discovery lasts a single day, counsel shouldn’t discuss the evidence or facts of the case during breaks; b) if discovery lasts longer than a day, counsel can discuss any issues relating to the case at the end of the day, provided they advise the other side of their intent to do so; c) counsel can’t seek adjournments during examination to discuss the evidence [Fraser River Pile & Dredge Ltd. v. Can-Dive Services]. If opposing counsel asks whether counsel has discussed the evidence with the examinee during breaks, this question should be objected to, as it infringes solicitor-client privilege [Shields & Shapray]. The Shields & Shapray article sets out a series of basic guidelines. See the appendix below if it’s relevant on the exam. Practice Points:

ü   Recall that Rule 12-5(46) permits using exam for discovery evidence at trial against the examinee if it’s “otherwise admissible.” Rule 9-7(5)(c) permits its use at summary trial subject to the same restrictions. Look to see what you might be able to read in as a plaintiff.

ü   If you need written responses, try to reserve some of the 7 hours to examine them on those.

ü   Interrogatories under Rule 7-3 could be another option for getting answers from a corporate party.

Experts’  Reports  

v   Time: except for court experts, expert reports have to be served at least 84 days before trial [11-6(3)]. Responding reports have to be served at least 42 days before trial [11-6(4)].

Experts are frequently used to prove complex facts at trials.22 They are considered to not be an advocate for a particular side and have to swear to this [11-2(1-2)]. The parties themselves can consent, or get a court order, for the appointment of a joint expert [11-3]. The court itself can appoint an expert if it feels the need [11-5]. The default is for the report to speak for itself, assuming that it complies with the formal requirements set out in 11-6(1). However, there are some exceptions:

Rule Case Effect 11-7(1) Experts have to initially provide a report, unless court orders otherwise

                                                                                                               21 Non-examining parties will typically take their own notes of the examination as a substitute. The court reporter will ask them if they’d like a transcript at the end of a session, at which point they can decide what they want. 22 Because expert reports must be rendered before facts are proven in trial, expert reports have to operate on the basis of assumptions. These have to be identified in the report [11-6(1)(f)(i)]. The ability to support the facts relied on by your expert then becomes critical. If possible, try to get the underlying evidence in under an exception to the hearsay rule, for instance the business records exception.

 

 

 

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11-7(2-3) Adverse party can apply to cross-examine an expert within 21 days of receiving the report, in which case the report won’t be accepted as evidence until the party calls them at trial.

11-7(5) Can’t call your own expert as a witness unless necessary to clarify matters in the report

11-6(6) Expert has to prepare a supplementary report if they change their mind in a material way, which has to be “promptly” served on the parties of record.

11-6(10) Can challenge the admissibility of expert evidence within 21 days pre-trial.

Ø   Test (for permitting expert evidence):

§   Relevance §   Necessity §   Absence of an exclusionary rule §   Proper Qualification §   Reliable underlying science (in case of “novel” science); and §   Probative/Prejudicial balance

[White Burgess Langile Inman v. Abbott & Haliburton]

Note that if a case planning conference has been held, the expert evidence must have been addressed in it, otherwise it can’t be used [11-1(2)]. Practice Points:

ü   Consider whether a joint expert report might serve the same function as a special case (giving you a better assessment of the case’s merits ahead of time.)

Fast  Track  and  Expedited  Litigation  

v   Time: XFDs have to be completed at least 14 days before trial, unless the other party consents otherwise [15-1(12)]

Parties to an action can apply in Form 61 for fast track litigation where the amounts at issue are less than $100,000 and the trial could be completed within three days [15-1(1)]. It can be done by consent or court order [15-1(1)]. If approved, the court will set a trial date within 4 months upon application [15-1(13)].

Rule Case Effect 15-1(3) Court can still award damages greater than $100,000 15-1(4) Doesn’t apply to class proceedings 15-1(6) Court or a party can move to terminate a fast-track 15-1(7) Can’t make interim applications aside 9-5, 9-6 or 9-7, changing

parties or terminating the fast-track prior to a case planning or trial management conference

15-1(10) Can use juries 15-1(11) Examinations for discovery limited to 2 hours unless they consent 15-1(15) Fixed cost awards, depending on the length of the trial

 

 

 

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Practice Points: ü   Could be used where the facts are not overly complex, i.e. in wrongful

dismissal cases. The fact pattern on the exam will likely preclude this. Form  of  Proceeding   The default form of proceeding is a notice of civil claim [2-1(1)] (an “action”), filed in Form 1.

Ø   Notice of Civil Claim must contain [3-1(2)]: (a)  A “concise statement of the material facts” (b)  The relief sought against named defendants (c)  A “concise summary of the legal basis for the relief sought” (d)  The proposed place of trial (e)  The capacity of the parties if relevant (f)   Data collection information in appendix (g)  Otherwise complies with Rule 3-7 [pleadings]

In some proceedings, a person must file a petition rather than a notice of civil claim. They are generally used for interpretation issues only, where the facts are not in dispute [Strata Plan No. 1086 v. Coulter], and damages generally aren’t available. Petitions generally use affidavit evidence only [Strata Plan] and result in a chambers proceeding hearing rather than a trial [22-1(1)(a)], although courts have the power to use trial-like procedures [16-1(18)]. Where evidentiary issues arise, courts may try to deal with them on the face of the petition documents. Note that the court can also order cross-examination on an affidavit or order a party or witness examined [22-1(4)], and can obtain the assistance of experts [22-1(7)(c)].

Ø   When you file a petition [2-1(2)]: (a)  Petitioner’s the only party (b)  When it’s required by statute (c)  Sole or principal question is the interpretation of something (d)  Dealing with management of a trust (e)  Dealing with maintenance, guardianship or property of people lacking

capacity (f)   Relief sought is for payment into or out of court (g)  Relates to land, specifically declarations of beneficial interest or

priority of interest, orders cancelling a certificate of title or making it subject to an interest and orders for partition or sale

(h)  Claims of solicitor-client privilege Practice Points:

ü   Can be a defence strategy to challenge facts laid out in plaintiff’s affidavits and argue that the issues require a full trial ¯

 

 

 

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Ø   Test (for converting a petition into an action) [22-1(7)(d)]: §   “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” [Douglas Lake Cattle Co. v. Smith]

A third form of proceeding is a requisition, which is rarely used to initiate proceedings. It can be brought under Rule 17-1(1) if the parties affected by the proposed order all consent, or if the nature of the proceeding is such that no notice is required. Practice points:

ü   Entering a consent order by requisition under 17-1(1) can be better than a settlement agreement because it’s immediately enforceable.

Indigent  Status   What can clients do if court fees (in Schedule 1, Appendix C, pgs. 780-781) are a barrier to access?

Ø   Test (for waiving court fees) [20-5(1)(b)]: whether the person can pay court fees without undue hardship, a concept including the “working poor”

[Trial Lawyers Association of BC v. BC]

Rule Case Effect 20-5(1)(a) Court can waive fees if person is receiving EI or disability 20-5(1)(c-e)

Person’s out of luck if their claim or defence discloses no reasonable claim, is scandalous, frivolous, vexations, or is an abuse of process.

20-5(2) Fee waivers can apply to part or all of a proceeding 20-5(4) Judges can vary or rescind fee waivers

Injunctions   Rule 10-4 permits parties to seek interim [10-4(2)] and permanent [10-4(6)] injunctions to prohibit or mandate an action by the other party. Usually an application will be filed at the same time that the notice of civil claim is filed.

Rule Case Effect 10-4(3) Interim injunctions can be obtained ex parte 10-4(5) Applicant required to make undertaking as to damages Equustek Solutions Inc. v. Jack Injunctions can be ordered against non-parties resident abroad

 

 

 

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Ø   Test (interlocutory injunctions) §   Serious issue to be tried (strong prima facie case if seeking a mandatory

injunction) §   Irreparable harm23

•   Harm that can’t be quantified (i.e. permanent market or goodwill loss) or can’t be compensated [Onkea Interactive Ltd. v. Smith]

•   Harm of sufficient magnitude could be irreparable [Edward Jones v. Voldeng]

§   Balance of convenience favours granting the injunction •   Factors: adequacy of damages, likelihood of satisfying award,

preserving property, irreparable harm, which party’s altered the status quo, strength of applicant’s case, public interest and other factors [CBC v. CKPG Television] [RJR-MacDonald Inc. v. Canada (AG) (for prohibitive injunctions)] [R. v. Canadian Broadcasting Corporation (for mandatory injunctions)]

Ø   Test (permanent injunctions)

§   “just and convenient” to issue it? Interlocutory  Applications24  

v   Time: a) have to serve a copy of the application in Form 32 plus any supporting documentation they don’t already have on all parties at least 8 business days [defined as court business days in 8-1(1)] before the date of the hearing [8-1(7-8)]; b) If you’re served with this, you can file and serve a response within 5 business days [8-1(9)] in Form 33; c) you can reply to any documents in a response until one full business day prior to the hearing [8-1(13)].

Interlocutory applications are used to get a court order forcing someone to do or refrain from doing something prior to trial or a petition hearing. An applicant must fill out the notice of application in Form 32 with the following in 10 pages or less (excluding supporting documents):

(a) the order sought or a draft order; (b) brief summary of the factual basis for the application; (c) legal basis for the application; (d) a list of affidavits and other supporting documents; (e) a time estimate for the hearing;

                                                                                                               23 This aspect of the test has traditionally been rolled into the balance of convenience stage in B.C.: British Columbia (Attorney General) v. Wale, [1986] B.C.J. No. 1395 (B.C. C.A.). It makes no difference how the test is divided up so long as all the factors are addressed. 24 Note that the term “interlocutory” can sometimes be misleading. While applications are typically brought in the midst of proceedings, they may occasionally be the main form of relief sought by a party: i.e. where a declaration or injunction would give the party everything they want.

 

 

 

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(f, g) the date and time of the hearing [see 8-1(5-6)] (h) data collection info in the form appendix. [8-1(4)]

The supporting documents must be originals of everything the party will use in support of the application [8-1(3)]. Date and time are usually up to the applicant unless the application will take more than two hours, in which case the registrar will set the date and time [8-1(6)]. The filing needs to be served not only on the parties of record, but also all others “who may be affected by the orders sought” [8-1(7)].25 Responses use Form 33 and contain similar information, setting out whether they consent to, oppose or take no position on the order. The applicant then has a chance to file and serve response affidavits in the reply [8-1(13)]. Unlike general procedure at trial, parties can generally use hearsay evidence on interlocutory motions. Not all motions are adversarial. Parties can enter a consent order by filing:

(a) a requisition in Form 31; (b) a draft of the proposed order in Form 34; (c) evidence that the parties consent to it [per 13-1(10)] … [8-3(1)]

Parties also sometimes have to act ex parte in urgent situations by bringing a requisition in Form 17.1 without notice [8-5(2)]. The court can then hear the application and make an order without the other side present [8-5(6)].

v   Time: can apply for short notice at any time [8-5(3)]. If granted, all other time periods for applications will be suspended [8-5(5)] and courts will determine what time periods apply [8-5(4)]. Have to serve the entered order “promptly” on the other side if granted [8-5(7)].

Parties bringing urgent ex parte applications are under an obligation to faithfully represent both sides of the argument, an obligation that dovetails with several professional responsibility requirements, including not misrepresenting the other side’s case or evidence [Ch. 5.1, Code of Conduct]. An order is not effective until notice has to be given to the party against whom the order was granted [8-5(7)]. Generally ex parte orders will be short-term, to reduce the risk to the defendant. Defendants can apply to have it set aside [8-5(8)]. Less controversially, sometimes applications are ex parte because no notice is required to the other side (i.e. default judgment). Such applications involve:

(a) a requisition in Form 31; (b) a draft of the proposed order in Form 35; (c) supporting affidavits and evidence

[8-4(1)]                                                                                                                25 It’s not totally clear how far this obligation extends—the closest thing to a “test” in the case law asks whether the person who may need notice has “an arguable right which should entitle him to his day in court”: Evans v. Silicon Valley IPO Network, 2003 BCSC 954 at para. 72.

 

 

 

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Finally, Rule 8-6 permits parties to make applications by written submissions alone if they are permitted to do so by the case planning conference judge or master. Practice Points:

ü   Look at the tests you have to meet when drafting your supporting affidavits. Interrogatories  

v   Time: person interrogated has to respond by affidavit within 21 days or another period the court dictates, either answering the questions or objecting [7-3(4), 7-3(6) for objecting]

Interrogatories are used to “obtain admissions of fact [from a witness] and provide a foundation upon which cross-examination may proceed when examinations for discovery are held” [Credential Securities Inc. v. Qtrade Canada Inc.]. They are a form of discovery allowing a party to serve questions in Form 24 upon another party of record or a “director, officer, partner, agent, employee or external auditor” of a party with their consent or by court order [7-3(1)]. They are often used with corporations where a specific person may not have all the answers you need. Credential Securities sets out some guidelines:

§   Has to be relevant to a matter in issue §   Can’t be in the nature of cross-examination §   Shouldn’t include a demand for discovery of documents §   Shouldn’t duplicate particulars §   Shouldn’t be used to obtain names of witnesses [except maybe if the

identity of a witness is a material fact] §   Narrower in scope than examinations for discovery

[Credential Securities Inc. v. Qtrade Canada Inc.] If the person consents or is ordered to answer, they can be subject to further duties. If they give insufficient answers the court can direct further answers [7-3(7)]. Their obligation to answer is also continuing, so if they realize the information they gave is incorrect they have to serve an affidavit correcting their answers [7-3(11)]. Practice Points:

ü   An easy way to save yourself some trouble (and expense) tracking down facts. Judicial  Settlement  Conference  

v   Time: any time pre-judgment A judicial settlement conference is a kind of court-supervised mediation between the parties that is without prejudice and non-binding.26 The parties can jointly request this at any stage in an

                                                                                                               26 See also the section on mediation under “Alternative Dispute Resolution” above.

 

 

 

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action by filling out a requisition in Form 17, or it can be ordered by a judge or master [9-2(1)]. The conference is recorded in case of later disagreements over its substance, though the recording can’t be used or accessed without a court order [9-2(2)]. Jurisdiction  

v   Time (for filing an application or pleading to stay on jurisdictional grounds): within 30 days after filing a jurisdictional response in Form 108 [21-8(5)]

A notice of civil claim should set out where the parties live for jurisdictional purposes. Jurisdictional determinations involve two steps: a) does BC have jurisdiction?; and b) if so, should they decline to exercise it under forum non conveniens?

Ø   When BC courts have jurisdiction over a party: (a)  The party’s the plaintiff (b)  The person submits to the court’s jurisdiction (c)  The parties agree that the court has jurisdiction27 (d)  The person’s ordinarily resident in BC when the proceedings start (e)  There’s a “real and substantial connection” between BC and the facts

[Court Jurisdiction and Proceedings Transfer Act, s. 3]

Ø   When there’s a “real and substantial connection” to BC: §   The thing at issue is in BC §   Concerns actions in BC (including a tort committed and business

carried on in BC) §   A contract says BC’s the jurisdiction §   Concerns a dead person who was ordinarily resident in BC

[Court Jurisidcition and Proceedings Transfer Act, s. 10] Note that even if these criteria aren’t met, BC courts can nevertheless take jurisdiction if it considers there’s no court outside BC where the plaintiff can begin proceedings or commencing proceedings outside BC can’t reasonably be required [s. 6].

Ø   Test (for forum non conveniens): another court’s a [clearly]28 “more appropriate forum in which to hear the proceeding,” considering:

§   Comparative convenience and expense for the parties §   Law to be applied §   Desirability of avoiding multiplicity of proceedings §   Desirability of avoiding conflicting decisions §   Enforcement of an eventual judgment §   Fair and efficient working of the Canadian legal system as a whole

[Court Jurisdiction and Proceedings Transfer Act, s. 11]                                                                                                                27 i.e. in a contract. 28 Courts have read the word “clearly” into this section: Garcia v. Tahoe Resources Inc., 2017 BCCA 39 at para. 32, citing Club Resorts Ltd. v. Van Breda, 2012 SCC 17 at paras. 103, 108 and 110.

 

 

 

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A party served with an originating pleading or petition can, after filing a jurisdictional response in Form 108, apply (or allege in pleadings) to strike, dismiss or stay the proceeding on jurisdictional grounds [21-8(1)]. Note that if they take other steps in the proceeding besides the above, a person may be found to have submitted to the court’s jurisdiction. However, substantive steps taken to defend one’s position or obey court orders while challenging the court’s jurisdiction won’t do it [21-8(5)]. Practice Points:

ü   If you’re going to challenge the jurisdiction that should be your first step in the proceedings

Jury  Trials  

v   Time: a) file and serve notice of a jury trial within 21 days after service of notice of trial and at least 45 days before trial; b) pay sheriff sufficient sum at least 45 days before trial [12-6(3)]

Although the default in civil trials is to conduct the trial by judge alone [12-6(1)], any party can request a jury trial [12-6(3)]. Since a jury is also a trier of fact, it’s assumed that juries are as competent as judges in deciding matters [Jackson v. Yusishen]. Except in defamation, false imprisonment and malicious prosecution cases, the other side can challenge a jury trial within 7 days after service [12-6(5)].

Ø   Grounds for challenging a jury trial: (a) the issues “require prolonged examination of documents or accounts of

a scientific or local investigation” that can’t conveniently be addressed with a jury;

(b) the issues “are of an intricate or complex character”; o   i.e. it would “overwhelm” them [Jackson v. Yushishen]

(c) the extra time and cost of a jury trial would be disproportionate to the amount involved

[12-6(5)]

Rule Case Effect 12-6(7) Retrial if jury answers are inconsistent or absent (in whole or part) 12-6(8) If answers are incomplete, court can pronounce judgment on some

claims and leave rest for retrial 12-6(9) Retrial if no jury verdict.

Note that juries will be unavailable in some cases [12-6(2)]. This is generally due to complexity concerns. In addition to fast-track actions [12-6(5)(b)], such cases include:

a) estate administration of a dead person

b) dissolving a partnership

c) redemption or foreclosure of a mortgage

d) sale and distribution of secured property

e) execution of trusts

f) modification or cancellation of a written instrument

g) specific performance of a contract

h) partition or sale of real estate

i) custody or guardianship of a child

j) petition or requisition proceedings

 

 

 

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Limitation  Periods  

v   Time: claim has to be commenced within 2 years post-discovery29 [Limitation Act, s. 6]. Judgments have to be enforced within 10 years [ibid., s. 7].

In addition to costs, limitation periods should be an initial concern in any action. Note that there are various exceptions to these rules in particular enactments. In particular, a party may bring a third party claim or counter-claim outside the 2-year window if those claims are attached to a claim within the window [Limitation Act, s. 22].

Ø   Test (for when a claim is “discovered”): the first day the person knew or ought reasonably to have known that:

§   Injury, loss or damage occurred; §   That was caused by an act or omission; §   By the person claimed against; and which §   Merits a court proceeding

[Limitation Act, s. 8] Mareva  Injunctions   Mareva injunctions operate on roughly the same principles as other injunctions under Rule 10-4.30 They are used to freeze assets and income in BC in cases where you fear that the other side will remove assets from the jurisdiction to make themselves judgment-proof. As the above suggests, Mareva injunctions issued in BC do not operate outside the province. Undertakings as to damages are especially critical in such cases due to the serious consequences they can cause, especially for a business. Given their nature, they are usually done ex parte under 10-4(3).

Ø   Test (applicant must): §   Make full and frank disclosure of all material matters §   Give particulars of the claim, grounds for it, and amount §   Fairly state points made against the claim by the defendant §   Show grounds for belief that the defendant has assets in the jurisdiction §   Show grounds for belief there’s a risk they’ll remove them pre-judgment §   Give an undertaking as to damages

[Sekisui House Kabushiki Kaisha v. Nagashima]

Rule Case Effect Maclaghlan v. Nadeau Mareva injunctions can be dissolved for material non-disclosure, but the

judge can also order the same injunction following a de novo hearing.

                                                                                                               29 That is, discovery that the person has a cause of action. 30 One difference is that you will typically want to serve a copy of the Mareva injunction on the target’s bank (or whatever institution is holding their assets).

 

 

 

27  

Masters  and  Appeals  from  Masters   Masters are court officials who deal with procedural applications. Per s. 11(7) of the Supreme Court Act, Masters have the same jurisdiction as a judge in chambers except as limited by s. 96 of the Constitution Act and by the Chief Justice’s directions. Their statutory nature means that they lack equitable jurisdiction. Per Practice Direction #50:

Can Can’t Make consent orders Grant relief where power’s expressly conferred on a

judge by a rule or statute Make non-compliance orders under 22-7 Dispose of appeals (or applications in nature of an

appeal) on their merits Make summary judgment orders under 9-6 where there’s no triable issue

Deal with criminal proceedings

Grant default judgment Make orders holding people in contempt Enforce orders made by ADMs Grant injunctive relief, except in family proceedings Make judicial review orders under JRPA Change a judge’s order except to amend time on an

order that masters have the jurisdiction to make In addition, Rule 23-6(1) grants masters the powers to:

Rule Case Effect 8-5(6) Make orders without notice in case of urgency31 8-5(8) Change or set aside urgent orders on application of person affected 22-1(2-8) General powers of chambers proceedings

Registrars can also deal with issues relating to orders, such as costs. They have more limited procedural powers under 23-6(4) that relate to timing and the absence of parties at hearings. If a party wants to appeal a decision by a master or registrar:

Rule Case Effect 23-6(8) A party can appeal their decision as of right to the BCSC 23-6(9) Appeals have to be filed within 14 days of the decision in Form 121 23-6(11) Appeals will not operate as a stay of proceedings

Note that although it’s easy to appeal a master’s or registrar’s decision, the likelihood of success is fairly low, since masters’ and registrars’ decisions are discretionary. Multiple  Claims  and  Parties  

v   Time: court can consolidate proceedings at any time, or try them at the same time or day if they want [22-5(8)]

A party can join several claims together in a proceeding [22-5(1)] or proceed against multiple parties [22-5(2)] where:                                                                                                                31 Note that although Masters can’t grant injunctive relief, they could be used to get an order permitting you to bring an injunction application on short leave under 8-5(1).

 

 

 

28  

(a) there’s a “common question of law or fact” (b) relief sought relates to the “same transaction or series of transactions” (c) where the court grants leave.

[22-5(2)] A court can also order consolidation of proceedings under 22-5(8)

Ø   Test (for court consolidating proceedings): a) “do common claims, disputes and relationships exist between the parties?”; b) “are they so interwoven as to make separate trials…undesirable and fraught with economic expense?”

[Merritt v. Imasco Enterprises Inc.] Considering:

§   Whether there’s a common question of law or fact §   Avoiding multiple proceedings §   Saving time and expense §   Inconvenience to parties §   Relative advancement of proceedings §   Whether delay will result §   Prejudice

[Shah v. Bakken] A court can also separate claims or parties from proceedings [22-5(6)] or separate a counterclaim or third party claim [22-5(7)]:

Ø   Test (for separating claims or parties): whether not doing so “may unduly complicate or delay the trial or hearing of the proceeding or is otherwise inconvenient” [22-5(6)]

Non-­‐Compliance  

v   Time [for 22-7(2)(a, b, d)]: application within a “reasonable time” and before you’ve “taken a fresh step after knowledge of the irregularity” [22-7(4)]

Courts prefer to try cases on their merits where possible [Breberin v. Santos]. As such, the default position, under Rule 22-7(1), is to regard non-compliance with the rules as a mere irregularity and not as a basis for nullifying proceedings or any part of them, unless it would result in injustice [International Forest Products Ltd. v. Moody]. That said, the court has broad powers to affect a party’s substantive rights where their conduct in the proceedings is egregious [Breberin v. Santos]:

Ø   Options [22-7(2)]: (a)  Set aside a proceeding in whole or part (b)  Set aside any step in a proceeding, or a document or order (c)  Permit an amendment under 6-1 (amending pleadings)

 

 

 

29  

(d)  Dismiss a proceeding or strike a response and pronounce judgment (e)  Any other order

22-7(5) sets out circumstances where a proceeding can be dismissed, or a response struck:

(a)  Refusing or neglecting to obey a subpoena or appear for examination for discovery

(b)  Refusing to be sworn or answering questions (c)  Refusing or neglecting to produce or permit inspection of a document

or other property (d)  Refusing or neglecting to answer interrogatories or make discovery of

documents (e)  Refusing or neglecting to attend or submit to medical examination

The same can happen if the party refuses or neglects to obey an order or direction of the court without lawful excuse, [22-7(6)]. A lawful excuse is one “worthy of acceptance” [Nayyar v. Performance Realty]. If mere neglect is at issue, the degree of negligence should be more than moderate before the person gets punished for it [Nayyar]. Practice Points:

ü   Writing a letter to the other side demanding that they comply is a good start. ü   Consider your other options: orders,32 case planning conference, and, in

extreme cases, contempt33 ü   Recall duty to avoid “sharp practice” and taking “paltry advantage” of slips or

technicalities [2.1-4(c), Code of Conduct] Notices  to  Admit  

v   Time: recipient has to answer within 14 days following service, or the facts will be deemed true [7-7(2)]

After a response to a civil claim has been filed, any party of record can serve a notice to admit in Form 26 that asks another party of record to admit a fact or a document’s authenticity [7-7(1)], if the party attaches a copy of the document to the notice [7-7(3)]. This usually occurs after discovery, when facts not in the pleadings are no longer disputed. The responding party can, in serving their response, deny the facts or a document’s authenticity, set out in detail why they can’t make the admissions or claim privilege, irrelevancy, or impropriety [7-7(2)]. If they fail to do this in their response the court can deem the facts admitted [Skillings v. Seasons Development Corp.]. If the person unreasonably refuses to admit, the court can order they pay the costs of

                                                                                                               32 See “Orders” below for non-compliance with a monetary award. 33 Be careful with this one, since contempt is a quasi-criminal remedy that could lead to imprisonment: see, e.g., Stoneman v. Denman Island Local Trust Committee, 2016 BCSC 1939 at para. 14, citing Peel Financial Holdings Ltd. v. Western Delta Lands Partnership, 2003 BCCA 551 at para. 18. If it comes up at all in the exam make sure to hedge it in qualifications (i.e. “if person x persists in flagrantly violating the terms of order y then we might, if all else fails, consider seeking contempt…”). Treat it like it’s the nuclear option.

 

 

 

30  

proving the facts [7-7(4)]. Note that withdrawing an admission can only be done by consent or court leave [7-7(5)], which may be difficult to obtain.

Ø   Test (for withdrawing an admission): “whether there is a triable issue which, in the interests of justice, should be determined on the merits and not disposed of by an admission of fact,” considering:

•   Whether the admission was made “inadvertently, hastily, or without knowledge of the facts”

•   Whether the admission was within the knowledge of the admitting party

•   Whether the admission is true •   Whether the admission is mixed fact and law •   Whether the withdrawal would prejudice a party •   Whether there’s been delay in applying to withdraw

[Hamilton v. Ahmed] Practice Points:

ü   Be on the lookout for loaded questions or proposed admissions, while recognizing there could be cost consequences if you don’t admit something you should have.

ü   Note the professional obligation to “accede to reasonable requests that do not prejudice the rights of the client or the interests of justice” [2.1-4(c), Code of Conduct]

Object  of  Rules   The object of the rules is “to secure the just, speedy and inexpensive determination of every proceeding on its merits [emphasis added]” [1-3(1)]. Establishing proportionality between the amount involved, importance of the issues, and complexity of the proceedings has long been a kind of overarching principle in the interpretation of the rules [Kim v. Lin]. Specifically, proportionality means:

Rule Case Effect Hryniak v. Mauldin The best forum for a dispute isn’t always the one with the most

process Boss Power Corp. v. BC High value claims don’t necessarily require more process, but

economic concerns may be relevant where the value of the claim is low. Complex facts and law doesn’t necessarily require more process

Stapleton v. Charambidis Parties should seek ways to avoid litigation overlays Burnaby v. Mobilecom Radio

Co. Courts should be “careful but courageous” in trying to help parties resolve an action without trial if possible “without injustice”

Note that these principles are just interpretive guides, not a basis to override the plain wording of the rules [Lawson Lundell LLP v. 4-J Holding Co.].

 

 

 

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Practice Points: ü   Read the definitions ü   Start with the text of the rules and only consider this where there’s ambiguity ü   Don’t use this section for every problem and recognize when the rules are

strict (i.e. time for examination for discovery) Offers  to  Settle  

v   Time: any time pre-judgment (earlier is better) Most cases will typically involve at least one offer to settle,34 most of which are without prejudice. In addition to saving time and expense, offers can be a means of creating risk for the other side because they can have significant cost consequences, even where the parties go to trial. The defaults are as follows: Situation Outcome, 9-1(5) P offers less than they win at trial ® Double costs from offer onward P offers more than they win at trial ® — D offers more than P wins at trial ® D gets costs from offer onward (despite

losing) D offers less than P wins at trial ® —

These rules are intended to “promote settlement by providing certainty…as to what to expect” when a party considers an offer [E.A. v. J.D.W.], to deter parties from pressing litigation when there’s a reasonable offer on the table [Giles v. Westminster Savings Credit Union] and to provide precision in court orders [Ward v. Klaus]. The extra cost awards listed above are a kind of punitive measure where an offer should have been accepted [Hartshorne v. Hartshorne]. As might be expected, these considerations only arise after trial, and the parties cannot bring up offers before a judge or jury prior to that point [9-1(2)]. However, cost awards remain discretionary [9-1(4)]. Courts will consider, from the perspective of the offeree [Ward v. Klaus]:

Ø   Factors (for awarding costs): §   Whether the offer ought reasonably to have been accepted then or later,

i.e. whether the offeree had to “grapple with the problem of accepting or not” [Gilens v. Westminster Savings]

§   Relationship between the offer and the final judgment §   Relative financial circumstances of the parties §   Any other appropriate factor (could include whether the other side had

time to consider the offer, whether it was pre-discovery and premature, whether a party needed a decision, whether the party tried to take

                                                                                                               34 See Rule 9-1(1)(c) for the formalities of offers: must be made in writing, served on all parties and carry the outlined incantation reserving the right to bring the offer to the court’s attention after judgment.

 

 

 

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advantage of its financial strength [P.C. v. RBC] etc., though having insurance is not a factor [P.C. v. RBC])

[9-1(6)]

Hartshorne v. Hartshorne provides a gloss on reasonable acceptance, noting that the evaluation should be determined at the time the offer was open for acceptance, and could look at:

Ø   Factors (for whether an offer ought to have been accepted): §   Timing §   Whether the offer was a “nuisance offer” or was related to the claim §   Whether the offeree could easily have evaluated the offer §   Whether the offeror gave a rationale for the offer

[Hartshorne v. Hartshorne]

Note that costs are unavailable for claims within small claims jurisdiction [9-1(7)] and that counter offers do not rescind the other side’s offer [9-1(8)], unlike in contract law. In other words, both sides can have outstanding offers on the table. You’ll need court leave if seeking a settlement with a person under a legal disability [20-2(17)]. Note, finally, that lawyers themselves are obliged to advise clients to settle where there’s a “fair settlement” on the table [2.1-3(c), Code of Conduct]. Practice Points:

ü   Make offers ü   Make them early35 ü   Be as reasonable as possible and explain why it’s reasonable in the offer,

since reasonableness is relevant to cost awards ü   Recognize the default outcomes and court discretion ü   If the client doesn’t want to settle, you can try to make an offer just below

what you think the other side will accept (sometimes they’ll accept) Orders  

v   Time: if applying for registrar to settle an order issue, have to serve a filed appointment and draft order on the other side at least 1 day before the appointment [13-1(12)]

Though the court has the power to direct a registrar to draw up an order [13-1(15)], the general procedure is for the winning party to draw up the order [13-1(1)(a)]. That order then needs to be signed by the other side [13-1(1)(b)] and stamped in the registry [13-1(1)(d)], unless the other side didn’t show up or the proceedings were ex parte [13-1(1)(c)]. If a party is being

                                                                                                               35 Another benefit of this is that it forces the other side to weigh all their decisions in the litigation against an alternative you’ve given them. Even if they don’t accept right away they may become increasingly tempted to accept this “escape hatch” as the trial dates approach. On the other hand, if you later gain the upper hand in the litigation (their facts collapse, a new decision strengthens your position etc.) you may rue the day you made the offer. Make sure it’s at a figure your client is comfortable with no matter what happens and act fast if you need to withdraw or modify it.

 

 

 

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uncooperative, then the presiding judge or master can sign the order instead of the other party [13-1(2)]. The order confirms the ruling and is effective upon pronouncement [13-1(8)]. As the judge makes their ruling, try to note it down verbatim, using the proper form: Form 34 for consent orders, Form 48 for post-trial orders and Form 35 for all others [13-1(3)]. If there’s any disagreement over what the judge ruled, you can seek to get the clerk’s notes or in rare cases the audio recordings. If that fails, the default is to get a registrar to decide the issue, filing an appointment in Form 49 [13-1(11-12)]. In normal cases, the losing party simply satisfies the award and moves on. Rule 13-2, however, gives winning parties certain powers to claim awards that the other side won’t satisfy:

Rule Case Effect 13-2(1) Court can order sale and seizure of property in Form 50 13-2(7) You or an independent party can make mandatory or specific

performance of an order at losing party’s expense 13-2(22) Entitled to cost of enforcement if you get a 13-2 remedy.

Practice Points:

ü   If the order is on an uncontroversial point, draft it in advance and have it pre-vetted by the registry for formatting to save time.

ü   If the judge modifies your draft order, note the modifications and re-draft it.

Particulars  

v   Time: further particulars (after pleading) must be served as they become known or within 10 days after a written demand for them [3-7(20)]

Particulars are intended to clarify and delineate the scope of the claims, so that everybody knows the claims that have to be met [Andrus v. Sihata]. For this end, courts have the power under 3-7(22) to order further particulars when it’s necessary to delineate the issues between the parties [Hayes Heli-Log Services Ltd. v. Acro Aerospace Inc.]. Parties have to ask the other side in writing for particulars before applying to the court for them [3-7(23)]. Some claims always require particulars in the pleadings:

§   Misrepresentation §   Fraud §   Breach of trust §   Wilful default or undue influence §   “or if particulars may be necessary”

[3-7(18)]

And in defamation claims where: §   The plaintiff alleges innuendo or non-literal meaning §   The defendant relies on a justification or fair comment defence

[3-7(21)]

 

 

 

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Typically, the defendant will ask the plaintiff for particulars after filing a response, but plaintiffs can ask for them too. If the other side fails to provide particulars when required, one option is to move to strike under 9-5(1). Parties can apply for a time extension if further particulars are required [3-7(24)]. Practice Points:

ü   Particulars can be a tool for determining whether a claim has substance ü   It can also be used for stalling, but it won’t operate as an automatic extension

of response time.

Parties   Usually the parties to an action are straightforward, but issues can arise when there’s capacity or agency problems. Parties may also need to be added or removed from a proceeding as it progresses.

Rule Case/Statute Effect 6-2(1) Proceedings can continue despite a party ceasing to exist (i.e. death,

bankruptcy, corporate winding up or other reason corporation ceases to exist)

6-2(4) If an interest/liability is transferred or a new relevant party comes into existence, court can order proceedings continued between them

6-2(7) Court can modify parties at any point if “just and convenient”, which may require amending pleadings [6-2(8)]

20-1(1) Partners can sue or be sued in the name of the partnership 20-2(10) Court has to appoint a litigation guardian for a party who becomes

incompetent unless they have one already 20-2(11) Court can remove, appoint or substitute a litigation guardian if in party’s

interests 20-2(12) A person attaining the age of majority can proceed without a litigation

guardian by filing and serving an affidavit in Form 78. Note that court approval is required if you take a step in default against a party under a disability [20-2(14)] and likewise for making any settlement with them [20-2(17)]. Practice Points:

ü   Get the parties right (cost consequences if you get it wrong) Physical  Examination36   Courts can order the physical examination of a person by a medical practitioner if their physical or mental condition “is in issue in an action” [7-6(1)]. They can likewise order the production, inspection and preservation of any property (which could include documents) or permit samples or experimentation on it where “necessary or expedient for the purpose of obtaining full

                                                                                                               36 When might this be relevant? Personal injury or insurance, where you need to undertake a kind of physical discovery of the person; toxic torts, where you need to examine a physical site; etc.

 

 

 

35  

information or evidence” [7-6(4)]. They can authorize a person to enter any land or building in doing so [7-6(5)]. Pleadings   “Pleadings” include the notice of civil claim, the response to civil claim, any counter-claims, third party notices and responses, and replies by the plaintiff. The general purposes of pleadings are to set out the issues, give notice to the other side, inform the court about the issues and the limits of the action, and to produce a permanent record of the claim, all of which is aimed at providing certainty and efficiency in proceedings [Canadian Bar Assn. v. BC]. It is the dynamic “skeleton” of a case.

Ø   Notice of Civil Claim must contain: (a)  A “concise statement of the material facts”37

a.   List the parties b.   Where they live c.   When, where, what d.   Why it’s the defendant’s fault (concisely) e.   What the outcome is for the plaintiff

(b)  The relief sought against named defendants (c)  A “concise summary of the legal basis for the relief sought” (d)  The proposed place of trial (e)  The capacity of the parties if relevant (f)   Data collection information in appendix (g)  Otherwise complies with Rule 3-7 [pleadings]

[3-1(2)] Material facts are different from particulars, the latter being for the purpose of further informing the defendant of the case they need to meet [Delaney & Friends].

Ø   Test (for materiality): reference to the “ultimate issue” of the claim, or facts “necessary for…formulating a complete cause of action”

[Jones v. Donaghey; Delaney & Friends Cartoon Productions Ltd. v. Radical Entertainment Inc.]

Rule 3-7 and the case law set out more specific rules about what can and can’t be included. Can Can’t Alternative allegations [3-7(7)] Evidence [3-7(1)] Facts that aren’t strictly material but which contribute to the narrative, unless irrelevant or designed to confuse [Camp Development Corp. v. Greater Vancouver]

Inconsistent allegations [3-7(6)]

Legal conclusions w/o the material facts to support them [3-7(9)]

An amount of general damages, unless they’re liquidated damages [3-7(14)]

                                                                                                               37 Though you don’t necessarily need a formal chronology, pleadings should contain something of the sort.

 

 

 

36  

Though pleadings shouldn’t include evidence, counsel should obviously be prepared to offer proof of anything they assert in their pleadings, a requirement that can require amendments as new facts emerge. Practice Points:

ü   Avoid mixing controversial and non-controversial facts in the same paragraph. This is because the defendant(s) will have to indicate the paragraphs they agree or disagree with in their response and mixing facts together could cause confusion. Better to stick to one fact per paragraph.

The material facts in the pleadings have to disclose a complete cause of action, and the legal basis has to include the cause itself or the relevant statute [Sahyoun v. Ho]. If the other side doesn’t comply with this, i.e. by missing elements of the test they have to meet, you can apply to strike a pleading and dismiss a claim under 9-5(1)(a).38

Ø   Test (for striking a pleading and dismissing a claim): where it (a)  Discloses “no reasonable claim or defence”

a.   Or, it’s “plain and obvious that the claim cannot succeed because it does not raise a triable issue” [Camp Development Corp. v. Greater Vancouver]

[Rule 9-5(1)]

Note, however, that mere sloppy drafting will not be a basis for striking a claim or parts of it [Rhodes v. All Pro Building Maintenance]. Point  of  Law  

v   Time: any time before trial The parties to an action can, with consent, put a point of law arising from the pleadings to the court for a decision through filing a requisition in Form 17 [9-4(1)]. The court itself can order the same [9-4(1)]. If the court believes the decision “substantially disposes” of the action, defence, etc., then it can dismiss the action or make other orders it considers appropriate [9-4(2)].

Ø   Test for permitting a point of law application:

§   Point of law was raised and clearly defined in the pleadings §   Assuming the facts are correct, there’s a question about whether the

allegations raise and support a claim or defence in law §   Facts relating to the dispute aren’t contested and the point of law can

be resolved without hearing evidence

                                                                                                               38 The other bases for striking under 9-5(1)(b-d) require some form of improper behaviour. See “Striking Pleadings” below.

 

 

 

37  

§   Determination of the question should be decisive of the litigation or a substantial issue in it

§   Procedure should “immeasurably” shorten the trial or save costs [Alcan Smelters & Chemicals Ltd. v. Canada Assoc. of Smelter & Allied Workers, Local 1]

Pre-­‐Judgment  Garnishing  Orders   Pre-judgment garnishing allows the applicant plaintiff in an action to secure debts owed to the other side pre-trial to satisfy a potential judgment of a liquidated amount [s. 3(2), Court Order Enforcement Act]. The supporting affidavit will have to identify the pending action and the amount due, state that the third-party garnishee is indebted to the defendant and identify the garnishee’s place of residence [s. 3(2)]. Potential garnishees could include a bank but can’t include an employer since wages can’t be garnished pre-trial [s. 3(4)]. The order will be effective once served on the garnishee [s. 9(1)] and has to be served “at once” on the defendant [s. 9(2)]. Pre-­‐Trial  Examination  of  Witnesses  

v   Time: application for this has to be served at least 8 business days before application hearing [7-5(4)]. A copy of the subpoena has to be served on all parties of record at least 7 days before the examination [7-5(7)]

In rare circumstances, you can seek an order for an examination of uncooperative non-party witnesses39 for informational purposes [7-5(1)]. The affidavit supporting the application should contain: (a) the person’s belief that the witness’ evidence “may be material” (b) if dealing with another party’s expert, that the evidence can’t be obtained in any other way (c) the witness has refused or neglected to respond to queries about their knowledge of the matter or has given conflicting statements about it a. their willingness to answer written questions isn’t necessarily a bar, nor is their claim that they have no recollection of a matter [Coates v. Triance] [7-5(3)] This isn’t a replacement for trial evidence. Usually the other side will apply at the same time to determine the scope of the questioning. The scope isn’t limited to the issues in the pleadings. It can include anything that is “generally relevant between the parties” [Sinclair v. March]. It’s not limited to issues the party didn’t get a responsive answer to [Coates]. The other side will get a chance to question the witness too. Unlike XFDs, these examinations can’t last more than 3 hours [7-5(9)]. Rule 7-5(10) incorporates certain procedures from examinations for discovery,

                                                                                                               39 Note that the meaning of “witness” here excludes experts unless absolutely necessary: 7-4(2); excludes witnesses resident outside of the jurisdiction: Rintoul v. Granger, 2008 BCSC 1852 at para. 18; and only includes natural persons: Cansulex v. Perry (1982), 37 B.C.L.R. 397 (B.C. S.C.).

 

 

 

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however: an official reporter will be present and administer an oath, witness is compellable to answer questions, objections can be ruled on later by the court and the witness has a duty to inform themselves. Privilege   A party can claim that certain otherwise material documents are privileged for the purposes of discovery. To do so, they will list the documents in part 4 of their document list, stating the ground of the privilege in sufficient detail to allow the other party to assess the validity of the claim [7-1(6-7)]. A court has the power to assess the validity of the privilege themselves upon challenge [7-1(20)], whereupon they’ll generally proceed by affidavit evidence rather than going document-by-document [Gardner v. Viridis Energy].40 The party claiming privilege bears the onus of proving it [Gardner]. There are several forms of privilege41:

§   Solicitor-client privilege: protects confidential oral or written communications between solicitor and client (and their agents), the dominant purpose of which was giving and receiving legal advice.

§   Litigation privilege: protects documents whose dominant purpose was for preparing for ongoing or reasonably apprehended litigation, including solicitor communications with third parties for that purpose [Blank v. Canada]. Could include legal memos, litigator’s notes and copies of documents even if the originals would not be protected [Hodgkinson v. Simms].

§   Common interest privilege: protects privileged documents that a party shares with somebody who shares a common interest with them, where they do not evince an intention to waive the privilege. This could be a co-defendant or other parties to a transaction.

§   Without prejudice privilege: protects documents that a party shows to the other side during negotiations, while indicating that they do so “without prejudice” to claiming privilege later during any litigation.

Unlike solicitor-client privilege, which is ongoing, litigation privilege ends when all related litigation ends [Blank]. This is because they serve different interests: upholding a system of “full, free and frank communication between those who need legal advice and those who are best able to provide it” in the case of solicitor-client privilege and ensuring the “efficacy of the adversarial process” in the case of litigation privilege [Blank]. Any type of privilege can be waived by the client (but not by the solicitor) in two circumstances:

                                                                                                               40 Another option is to order an amendment of the document list. Lawyers may swear the affidavits in these circumstances: Keefer Laundry Ltd. v. Pellerin Milnor Corp. et al., 2006 BCSC 1180 at para. 85-88, and see “Affidavits” above. 41 Privilege is a complex topic and this isn’t a course on evidence. For the purposes of the exam all you’ll likely be required to do is to identify when these types of privilege might apply, that is, issue-spot.

 

 

 

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Ø   Test (for waiving privilege): §   They a) know “of the existence of the privilege” and b) “voluntarily

evince…an intention to waive that privilege” §   Where “fairness and consistency so require”

[S & K Processors Ltd. v. Campbell Ave. Herring Producers] The latter possibility exists where a party has disclosed part of a document and wants to claim privilege in respect of the rest. Per S & K Processors, this will usually not be permitted. Note, finally, that any documents produced in discovery are subject to an undertaking that they will not be used outside of the specific proceedings they were procured in. Recovery  or  Preservation  of  Property  Orders   In extraordinary cases, parties can seek Anton Piller orders against the other side granting something akin to a civil search and seizure power without the right of forcible entry.42 Rule 10-1(1) permits the court to order the “detention, custody or preservation” of property that’s the subject matter of a proceeding; and permission for a person to enter “any land or building” to do so. 10-1(2) permits the court to order that funds in dispute be paid into the court or otherwise secured, though parties may also wish to get the court to appoint an independent overseer of their choice, paid for by the plaintiff. The court can order the recovery of specific property pending the outcome of the proceedings [10-1(4)].

Ø   Test (Anton Piller Orders) §   Strong prima facie case; §   Applicant will suffer “serious” damage from alleged misconduct; §   “Convincing evidence” that the target possesses “incriminating documents

or things”; and §   “Real possibility” they’ll be destroyed before discovery [or removed,

hidden etc., see Anton Piller v. Manufacturing Processes Ltd.] [Celanese Canada Inc. v. Murray Demolition Corp.]

Celanese sets out a number of guidelines for the actual execution of the order:

Basic Protections Conduct of Search Post-Search Appoint an independent supervising solicitor

Should be during normal business hours

Supervisor’s responsibilities extend post-search

Plaintiff gives an undertaking or security

Defendant or responsible employee should be present

Supervisor should file a report with the court within a time limit

Terms set out procedure for confidential materials

Should specify who’s authorized to conduct the search

Plaintiff may be required to serve a motion for review of the report.

Defendant gets about 2 hours to gather materials and hand them to supervisor to determine privilege

Plaintiff’s counsel should serve the order and statement of claim, explaining its effect

                                                                                                               42 While they don’t grant a right of forcible entry they offer something of an analogue—after all, the person subject to the order can go to jail (for contempt) if they refuse permission to enter. It’s a bizarre solution but preferable to authorizing vigilante justice.

 

 

 

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Search should be expeditious Defendants get reasonable time to consult with counsel before the search

Order should have a limited use clause

Detailed list of seized evidence should be made and provided to defendant

Order should be clear that defendant can try to discharge the order or vary the security

Where a list isn’t practical, seized evidence should be placed with supervisor and defendant given chance to look for privilege claims

Should provide for expeditious return of materials

Things should be in supervisor or defendant counsel’s safekeeping where ownership is disputed

Renewal  of  Notice   Sometimes parties will delay after filing a notice of civil claim in the hopes of solving the problem outside of court. However, a notice of civil claim expires if the plaintiffs don’t personally serve the defendants within a year [3-2(1)], subject to the court’s discretion to renew a notice for up to a year on the plaintiff’s application [3-2(2)] and to renew again if they apply again within the extended period [3-2(3)]. Renewal will defeat statutory limitations [3-2(4)].

Ø   Factors (for renewing notice): •   Whether the application was promptly made;

o   Considered from when the plaintiff discovered that the claim hadn’t been served

•   Whether the defendant had notice of the claim before expiry o   If so, only a “compelling case of prejudice” or egregious

behaviour should defeat renewal •   Whether the defendant was prejudiced •   Whether failure to serve was due to the defendant’s acts •   Whether the plaintiff rather than their solicitor was at fault

[Imperial Oil v. Michelin North America] The main focus of the renewal inquiry is on the rights of litigants rather than the conduct of the lawyers, the overarching objective being to see justice done [Sutherland v. McLeod]. Reply  

v   Time: plaintiff has to file and serve this within 7 days after the response to civil claim

has been served [3-6(1)] A plaintiff may reply to a response to a civil claim using Form 7 [3-6(1)]. This is generally only done if the matters raised by the defendant in their response to civil claim are central to the case. Practice Points:

ü   Although clients will be inclined to file one of these, let them know it isn’t necessary

 

 

 

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Response  to  Civil  Claim  and  Counterclaim  

v   Time (for both): (i) if within Canada, within 21 days (after service) [3-3(a)]; (ii) if in the US, within 35 days; (iii) if elsewhere, within 49 days [3-4(4)(a)]43

Responses to civil claims use Form 2 [3-3(1)(a)] and only require ordinary service. They have to:

§   Indicate in Part 1 which facts are admitted, denied or outside the defendant’s knowledge [3-3(2)(a)]. If this isn’t done, the facts will be deemed to be outside their knowledge [3-3(8)]

§   Concisely set out their version of facts denied [3-3(2)(a)(i)] §   Present any additional material facts [3-3(2)(a)(ii)] §   Indicate whether they consent, oppose or take no position toward the relief

sought [3-3(2)(b)]—usually opposed, otherwise they’re liable §   If they oppose the relief, set out the legal basis [3-3(2)(c)]

This represents the “confession and avoidance” style of reply, which requires a defendant to not simply deny the plaintiff’s facts. If they do so they risk having their pleading struck [Royal Bank of Canada v. Pisani]. Defendants may amend their response as more facts emerge or become clarified. Counterclaims use Form 3 [3-4(1)]. Counterclaims permit a defendant to plead in “defendants by way of counterclaim” [3-4 (2)], who must be served personally with both the original claim and counterclaim [3-4(4)(b)]. Responses to counterclaims operate like responses to civil claims and have to be ordinarily served on all parties already of record [3-4(5-6)]. The same time limits apply to responses to counterclaims [3-4(6)]. A counterclaim will persist even if the original claim is stayed, discontinued or dismissed [3-4(7)]. Practice Points:

ü   Counterclaims can be used as leverage in negotiations with the other party, but they have drawbacks too, namely having to assume the role of a plaintiff.

Security  for  Costs  

v   Time: any point in the proceedings At common law a defendant may ask the court to force the plaintiff to put up money ahead of time for the defendant’s costs in case the plaintiff’s claim is unsuccessful. The same is codified for BC corporate plaintiffs in s. 236 of the Business Corporations Act. This is a rare measure, but one that can be useful where it’s unclear, due to residency or a lack of means, whether a plaintiff could satisfy court-awarded costs. It can also be used to deter vexatious litigation. Courts can direct plaintiffs to put up any amount they choose [Kropp v. Swaneset Bay Golf Course]. A mere inability to pay will generally not itself be grounds for posting security for costs. As might be

                                                                                                               43 These time limits are some of the easiest to extend (absent some sort of prejudice to the plaintiff).

 

 

 

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expected, it cannot be used “as an instrument of oppression to stifle a legitimate claim” [Kropp v. Swaneset].

Ø   Test: court will look at all the circumstances, including §   (most especially) the “interests of justice” §   Prejudice

[Kropp v. Swaneset] §   Prima facie merits of the case

[Fat Mel’s Restaurant Ltd. v. Canadian Northern Shield Insurance Co.]

Service   Service is intended to give parties formal notice of the proceedings against them. There are two forms of serving notice on a party: ordinary service and personal service. Personal service is required when a person is providing notice of a notice of civil claim, petition, or counterclaim, or when they are issuing a subpoena to a non-party witness [4-3(1)]. Personal service has to be done via hand delivery on the person in the case of individual parties [4-3(2)(a)]. In the case of a corporation:

§   President, chair, mayor or other chief officer §   City clerk or municipal clerk §   Manager, cashier, superintendent, treasurer, secretary, clerk or agent of

the corporation or any branch or agency of the corporation in BC §   Per Business Corporations Act—on registered office in corporate

registry [s. 9(1)] or delivery address or attorney for an extraprovincial corporation [9(2)]

[4-3(2)] Service on partnerships can be done on a partner or their place of business [20-1(2)]. Ordinary service is used during the course of proceedings and is done by sending the documents to a physical or digital address the party has provided for service [4-2(2)]. The court can order a form of alternative service if a party is unable to serve a document by personal service [4-4]. This may be available in causes of action that take place online, where the defendant(s) may be using an alias. In such cases, athecourt may order that service be done through the online platform used by the defendant(s) [Burke v. John Doe].

Ø   Test (for alternative service) [4-4(1)]: (1) “impracticable to serve a document by personal service or (a) person “cannot be found after a diligent search” (b) “is evading service of the document”

You can serve anyone inside or outside of BC if there’s a “real and substantial” connection to the jurisdiction, as defined in s. 10 of the Court Jurisdiction and Proceedings Transfer Act [4-5(1)], if you include Form 11 setting out the jurisdictional basis in the service [4-5(2)]. Alternatively, a

 

 

 

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party can seek leave to serve outside BC [4-5(3)]. The form and manner of service abroad is otherwise identical to service in BC except that the person has the option of serving in accordance with the law of the jurisdiction, if that assures reasonable notice [4-5(10-11)]. Practice Points:

ü   Get evidence of personal service (affidavit from the person doing the service). This is required for applying for default judgment.

Special  Case   A special case is a procedure that is rarely used, but which can result in a court opinion on an unclear (legal, factual or mixed) issue. It can be raised by consent [9-3(1)] or by court order [9-3(2)]. It takes the form of a statement signed by the parties setting out material, non-assumed facts [Xeni Gwet’in First Nations Government v. BC] and documents required to decide the issue [9-3(3)]. It can result in specific relief or a judgment with the parties’ consent [9-3(5)]. The decision, in other words, is non-binding unless the parties make it so. In deciding whether to hear a special case, the court will consider whether this procedure will save time and expenses [Hunt v. T & N plc] and whether the facts and legal question are unambiguous [BC v. Cie. Abitibi]. Practice Points:

ü   Could look at using this alongside ADR, to get a better sense of the case’s merits.

Striking  Proceedings  

v   Time: can apply to strike at any stage in proceedings [9-5(1)]; if your pleadings, petition or other document gets struck by the court upon you filing it, you can apply within 7 days to vary or rescind the order [9-5(4)].

Courts have the power, per 9-5(1) to strike or amend pleadings, petitions or other documents. This can be done where:

(a) it discloses “no reasonable claim or defence,” in the sense that it’s “plain and obvious” that the action is sure to fail due to some radical defect [Odhavji Estate v. Woodhouse]

(b) it’s “unnecessary, scandalous, frivolous or vexatious” (c) it “may prejudice, embarrass or delay the fair trial or hearing of the

proceeding” (d) it’s “otherwise an abuse of the process of the court” (i.e. suing for the same

thing twice, bringing duplicative proceedings etc.) [9-5(1)]

 

 

 

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These could include pleadings that are:

§   “unintelligible, confusing and difficult to understand,” §   “oppressive and are designed to cause the defendants anxiety, trouble

and expense” §   “brought for an improper purpose, particularly the harassment and

oppression of the defendants” [Gateway Building Management Ltd. v. Randhawa]

Mere weakness of the case won’t suffice to strike or amend pleadings, and any doubts are to be resolved in favour of permitting the pleading to stand [Citizens for Foreign Aid Reform Inc. v. Canadian Jewish Congress]. A successful motion under 9-5(1) can result in the court pronouncing judgment, staying proceedings, or dismissing them. This motion is usually brought early in the proceedings because it has to be done with reference to the face of the pleadings alone, that is, without evidence [9-5(2)]. Practice Points:

ü   A good way of avoiding (some or all) extra process if the other side’s out to lunch or being Machiavellian

ü   Note that 9-5(1) specifically permits courts to order special costs for the cost of an application. The nature of the application is such that special costs will often be awarded if it’s granted, so ask for it.

Summary  Judgment  

v   Time: Can apply after the responding pleading has been served [9-6(2,4)] Summary judgment is available to plaintiffs [9-6(2)] and defendants [9-6(4)] in actions which seem to be resolvable in whole or in part on the face of the documents without weighing facts [Drummond v. Drummond]. As a rule of thumb, you can consider using this where the other side’s position is “bound to lose.”

Ø   Test (for granting summary judgment) : whether there’s a “bona fide triable issue”

[Drummond]

It is relevant in three main circumstances:

(a) there’s “no genuine issue for trial with respect to a claim or defence” - i.e they are factually without merit [Drummond]

(b) the “only genuine issue is the amount to which the claiming party is entitled”; (c) the “only genuine issue is a question of law”

[(9-6(5)(a-c)] Affidavit evidence is generally required in the application [International Taoist Church; Drummond]. To defend against a summary judgment application, you can either show that the

 

 

 

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other side’s pleadings don’t support the remedy or show on the basis of affidavit evidence that there’s a genuine issue for trial [9-6(3)]. The court will consider whether a claim or defence can be amended before granting the application [International Taoist Church]. Ordinary costs [9-6(7)] and special costs [9-6(9)] are available upon judgment. Note that summary trial [9-7], a special case [9-3] or a point of law motion [9-4] may be more appropriate for novel points of law where the only real issue is a legal one. Courts may prefer summary trials to be able to assess the legal point within a more robust factual record. There is also some overlap between summary judgment and striking pleadings [9-5], although the latter is reserved for cases where there’s a legal flaw in the action or defence [Drummond]. Practice Points:

ü   A good first step when considering summary judgment is to approach the other side and see what they say. If you’re lucky, they’ll drop their claim or defence. If they proceed anyway, your correspondence could serve as a basis for a special cost award later [9-6(9)].

ü   Summary judgment results in res judicata, whereas striking pleadings [9-5] may not. Consider which route is most beneficial to the client.

Summary  Trial  

Ø   Time: must be heard at least 42 days before scheduled trial date [9-7(3)]. If you’re going to rely on exam for discovery, interrogatory or admission evidence, need to serve copies of them at least 12 business days (court days) ahead of the hearing [9-7(9-10)]. The other side then can file and serve a response within 8 business days (court days) [9-7(10)].

Summary trial is a trial conducted by way of documents rather than by viva voce evidence, unless the court orders otherwise [9-7(5)]. Since witnesses can’t be forced to produce an affidavit, witnesses cannot be compelled as they would be in a normal trial. Either party to an action can apply for this [9-7(2)], filing their affidavits with their application [9-7(8)]. Consent of both parties isn’t required [Inspiration Management v. McDermid St. Lawrence].

Ø   Permissible evidence in summary trial: (a) affidavit (b) answer (in whole or part) to interrogatories (c) evidence taken on examination for discovery, of the adverse party [9-7(6)] (d) admissions under 7-7 (e) expert reports if admissible per 11-6(1) or if court otherwise allows it [9-7(5)] (f) “other forms of evidence” [22-1(4)(e)]

Like trials, hearsay evidence in affidavits isn’t permitted without leave of the court [22-2(12-13)]. However, judges have the flexibility to order parties to submit various forms of evidence, including doing cross-examination [9-7(12)], such that they can be in a position to decide all the

 

 

 

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necessary facts [Springhill Farms]. They can also adjourn to require parties to organize their materials [Inspiration Management]. Note that the pre-trial examination of witness evidence is not an explicit option under this rule. Unlike in trials, parties don’t require leave to discontinue a summary trial application (though this may still raise cost consequences [Kassam v. Kassam]). Parties can divide cases up into issues and have those issues decided on summary trial, but courts generally aren’t inclined to allow this due to the diseconomy of doing so and the potential for inconsistent judgments. However, dividing up a case may be helpful where liability depends on relatively few points and damages could be assessed at trial.

Ø   When courts might dismiss an application (at any stage): o   Issues “are not suitable for disposition” at summary trial [9-7(11)(b)(i)] o   Application won’t “assist the efficient resolution of the proceeding” [9-

7(11)(b)(ii)] o   On whole of evidence, court can’t find the facts necessary to decide the issues

of fact or law [9-7(15)(a)(i)] o   Would be “unjust to decide the issues on the application” [9-7(15)(a)(ii)],

particularly where there’s no cross-examination [Foreman v. Foster] The outcome will either be an adjournment [9-7(11)(a)] or a decision [9-7(15)]. A party can’t apply for summary trial twice unless they get leave, so this should generally be done post-discovery when the facts become apparent (and the court can adjourn the summary trial to do so anyway) [9-7(16)]. Though sometimes characterized as “an important tool to improve access to justice” [Springhill Farms v. Nose], summary trials may impose another layer of litigation on the parties in situations where it ultimately can’t resolve the issues [Western Delta Lands Partnership v. 3557537 Canada]. Note also that the documentary nature of the proceedings may amount to something of a barrier for self-represented litigants who may better be able to explain their case orally. Practice Points:

ü   Consider how the Hyrniak v. Mauldin decision on proportionality and efficiency and Rule 1-3 might apply [Morin v. 0865580 BC says it’s especially apropos in summary trials].

ü   Consider how different forms of evidence might be able to get around conflicts on the affidavits (i.e. cross-examination, other documents resolving a disagreement etc.)

ü   Splitting up issues and dealing with some of them summarily might save time/cost

ü   This procedure carries an inherent risk: you might go through the process only to have a judge decide the procedure wasn’t suitable. Make sure clients are aware.

 

 

 

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Third-­‐Party  Proceedings  

v   Time: Can file a third-party notice within 42 days of being served with a claim or counter-claim, or later with court leave [3-5(4)]. Have to serve the notice on the third party within 60 days of filing [3-5(7)].

A defendant can plead in a third party [3-5(1)], and a plaintiff can do likewise when subject to a counter-claim [3-5(1.1)]. There are three main scenarios where this is possible: (a) claimant’s entitled to “contribution or indemnity” from the third-party; (b) claimant’s entitled to relief against the third-party relating to the underlying subject matter; (c) where the question or issue between the claimant and the third-party is “substantially the same” as the issue between the parties and should “properly be determined in the action.” [3-5(1)] Courts have a residual power to impose terms on third-party procedures to limit prejudice and delay that might be caused by adding a third wheel to the action [3-5(14)]. Time   Time periods set out in the rules are subject to various definitional and interpretive points. There is no aspect of the rules likely to cause as many headaches.

Rule Case/Statute Effect IA (BC), s. 29 “holiday” “Holidays” include Sundays (plus public holidays) 22-4(1) Time periods of less than 7 days do not include holidays, absent contrary

intention. IA (BC), s. 25(2)44 If the time for doing something ends on a holiday, extend it to the next

regular day IA (BC), s. 25(3) If the time for doing something in a business office ends on a day that isn’t

their regular business hours, extend it to the next day they’re open IA (BC), s. 25(4) If time’s expressed as a “clear day” or as “at least” or “not less than”,

exclude the first and last days. IA (BC), s. 25(5) When a time period’s expressed in ordinary days, exclude the first day but

not the last. IA (BC), s. 25(7) A time of day uses Pacific Standard time [for cross-border cases]

In accordance with the object of rules, courts will favour the substance of an action over its form when it comes to timing issues, except where defects in the form cause prejudice to a party. The rules give courts some mechanisms for flexibility with timing:

                                                                                                               44 Section 25 of the Interpretation Act has been amended as of 2019. Sections 25-25.4 now refer to “reference days.” In simple terms, if “reference day” = x, then read the time periods as: “at least 7 days before x”; “within 7 days following x” etc. Subsections 25.2(3), 25.3(2) and 25.4(2) deal with “clear days” by taking the ordinary period and pushing it one day forward or backward as the case may be.

 

 

 

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Rule Case Effect 22-4(2) Court can modify “any period of time” in the rules even if the

time period has expired. ­ Tung Wise v. Park Georgia

Realty Parties have to give the court evidence of circumstances justifying a modification to a time period.

22-4(3) Parties can consent to “extend” time for serving, filing or amending pleadings or other documents [presumably can shorten time too, but note that the headings in the book aren’t intended to be used for interpretation, per 1-1(3)]

There are two options if a proceeding has begun but nothing has been done for a year:

Rule Case Effect 22-4(4) Parties can proceed 28 days after they’ve served notice on all

parties using Form 44. 22-7(7) Proceeding dismissed for want of prosecution on application by a

party, no notice to other side required, per 22-4(5). Trial  Management  Conferences  

Ø   Time: a) conference has to be at least 28 days before the trial date, unless court orders otherwise [12-2(1)]; b) plaintiff has to file and serve a trial brief in Form 41 on all parties at least 28 days before the conference, unless court orders otherwise [12-2(3)]; c) other parties have to file and serve their trial brief no later than 21 days before the conference, unless court orders otherwise [12-2(3.1)]

Trial management conferences are generally conducted by the lawyers [12-2(5)] and a judge or master, preferably the judge who will preside at the trial [12-2(2)]. The parties can dispense with the conference by making an application for a consent order no later than 14 days ahead of the conference [12-2(3.4)], subject to the judge or master’s agreement [12-2(3.6)]. The trial briefs themselves should discuss whether you’ve tried to resolve the issue through settlement, mediation etc. and whether you need court orders pre-trial (i.e. respecting amending pleadings, disclosure etc.). They’re also the first time that you’ll be obliged to disclose your witnesses. The other side can then go contact the witnesses or ask the judge/master to order you to prepare a summary of the evidence you expect them to give. Rule 12-2(9) sets out the orders that the court can make following a conference. These include:

(a) a plan for trial conduct

(b) whether it’ll involve a jury

(c) amending pleadings

(d) admissions of fact

(e) admission of documents

(f) time limits for examination, cross, statements and submissions

(g) requiring a summary of evidence the party expects witnesses to give

(h) directing the use of affidavit evidence

(i) orders relation to the use of experts

(j) directing that opening and closing statements be in writing

(k) orders relating to 3rd party notice

(l) adjournment of trial

(m) changing trial dates

(n) directing parties to attend a settlement conference

(o) adjourning the trial management conference

 

 

 

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(p) directing a further trial management conference

(q)any other efficiency-related matter

(r) any other matter for resolving issues

(s) any other order

Trial management conferences cannot result in final judgment (absent consent) and cannot be used to hear any application for which affidavit evidence is required [12-2(11)]. If a party tenders unnecessary affidavit evidence, this will not preclude the judge/master from hearing the relevant application [Jurczak v. Mauro]. KAK describes them as “trial adjournment court” given the frequency with which parties miss the deadlines attached to the trial briefs. It is one area of the rules that courts are relatively inflexible about. Missing the trial brief deadline can result in having the trial removed from the trial list [12-2(3.3)] and getting a cost award against you [12-2(3.2)]. Note also, for real-world purposes, that pre-trial the party filing the notice of trial has to file and serve a trial record at least 14 days but no more than 28 days before trial [12-3], and each party has to file a trial certificate in Form 42 within the same time periods [12-4]. Practice Points:

ü   If either side misses a trial brief deadline, call the registry to hold your trial dates and begin the conference with an application for leave to file late [note you typically have to file the application 8 court business days ahead, 8-1(8) but can seek short leave].

ü   If you get the other side’s time estimates and they look like an adjournment will be necessary, call the registry and see if extra dates are available. Trial dates are at a premium.

Want  of  Prosecution   What if a plaintiff’s begun a proceeding against you and is twiddling their thumbs?

Rule Case Effect 22-7(7) Proceeding can be dismissed for want of prosecution on

application by a party, no notice to other side required, per 22-4(5).

Ø   Test (using the start of the action as the baseline):

§   Inordinate delay by the plaintiff; §   Without excuse; §   Causing or likely to cause serious prejudice; and §   Balance of justice requires a dismissal order

o   A claim has particular urgency if the allegations go to the defendant’s character and credit

o   Defence delay is a relevant consideration [Gemex Developments Corp. v. Sekora]

 

 

 

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APPENDIX   Shields & Shapray set out some guidelines for examinations for discovery under 7-2:

Rule Case Effect Robak No presumption that plaintiff gets first examination unless both set

examinations for the same date. Court can change order if it causes prejudice (may expose strategic considerations).

Bruessler v. Bruessler Can’t refuse examination on grounds the other side hasn’t given full disclosure or particulars, though some disclosure likely required.

— Can’t insist on finishing your examination before submitting to one. — Counsel should permit a “proper flow of the examination” without

superfluous objections. REC Holdings v. Thorne Counsel can’t restate examinee’s evidence under objections. REC Holdings v. Thorne No obligation for examiners to put a witness’ earlier discovery

evidence to them in questioning. Cominco Can’t instruct your client during examination not to guess or to

state they don’t remember. Client can state that the question’s difficult.

— Can’t answer for your client or correct an answer w/o other side’s consent.

— If client gives a wrong answer, can deal with it on re-examination or by notifying the other side asap with an explanation of the error.

Kudlak Can’t direct a witness to answer or direct them to not answer fully. Day Objections should be concise, can briefly state the reasons. Can’t be

phrased so as to suggest a desirable answer. Day Examiner can ask “general reliance” questions, i.e. about what facts

they’re aware of that support an allegation. — Shouldn’t leave even if genuinely aggrieved (courts will deal with

it later). Special costs can be awarded if transcript discloses misconduct.

The article also sets out, in general terms, when you can and can’t object. Note that the general preference is for permitting a free flow of questioning absent clarity issues or injustice [Day].

Can Can’t When helps counsel clarify [Cominco] On grounds there’s no foundation for the question Question’s vague, confusing, or overbroad On grounds questions aren’t in a particular order Question’s plainly irrelevant [Stewart v. Tse] On grounds evidence would be hearsay [Cominco] Question violates solicitor-client privilege (i.e. concerns privileged documents they’ve reviewed)

When questions ask what documents they used to prepare, absent privilege

Question’s unnecessary and repetitive amounting to intimidation [REC Holdings v. Thorne]

When questions ask for names and addresses of witnesses who might have knowledge of the issue, so long as focused on a particular matter [Cominco]

Question’s misleading Compound question can be stated individually Question goes solely to credibility and is unrelated to a matter in issue [Blue Line]

Question asks for phone numbers or what evidence witness’ know/will give at trial

Question presents evidence by 3rd parties and asks whether examinee contradicts them.

 

 

 

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Question asks to disclose names and addresses of people the other may call as witnesses.

Question asks about experts who have been retained. Question asks what evidence you’ll lead at trial. Question tries to compel opinion evidence Question tries to ask about statements of law or trial strategy

Questions about your efforts to disclose documents and whether the document list is accurate and complete [Ross]

Questions about examinee’s authorization to give evidence