Civil Procedures Outline 2011 - Simmons
ADVICE TO CLIENT DURING TRIAL:
1) General pre-trial advice:
Tell client order of trial and how it will progress.
Rule 12-5: Order of speeches, when cross-examinations will be, which witnesses will be cross-examined.
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How material facts will be proved, what will happen to the exhibits and documents being used at trial.
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Whether they want experts to give evidence, exhibits
Does an injunction need to be set?
Look at payment options – can client afford costs of trial
Determine whether case will be in Provincial court or Supreme Court – consider factors
Ensure no limitation periods have passed.
Case planning conference: Not required, but can be requested, judge can make orders. If issue is about process rather than complex issue, may settle at CPC.
2) Examination for discovery: Preparing for examination:
Lawyer cannot advise their client during discovery. This is a rule of cross-examination: Client’s lawyer cannot advise their client about the evidence.
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So, must prepare in advance with your client, because you cannot help them during examination.
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Meet 1 week before, tell them exactly what will happen (I will sit here, there will be a court reporter who will transcribe the examination, the
purpose of examination is to get admissions and gather information about the case).
Prepare client for cross-examination: Only answer Qs asked, don’t be chatty, must tell the truth (under oath – ok to say you don’t know, but do not make up A)
Advise client that their conduce will be assessed during examination. Opposing side will see how persuasive they are as a witness at examination, and know
what kind of a witness they will be at trial.
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Answers may be used at trial to impeach them as a witness on the stand – so be careful of answers.
Scope: Pleadings provide a framework for what questions may be asked. Pleadings identify the matters at issue, and as per Rule 7-2(18) the scope of questions
are any questions regarding a matter that relates to a matter in question These matters are all set out in the pleadings.
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Advise client the scope of possible Qs that may be asked is very broad. Any matters in the pleadings are fair game for them to be questioned on.
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Advise client that they must answer the questions.
Examination is transcribed, so non-verbal answers will not show up – advise client not to nod but to answer “yes”.
Tell client about the type of objections that may be made.
Ensure client is informed of the issues – go through documents together. Tell client that the examination may be adjourned if they are not informed of the case
3) Costs/offers to settle:
General rule is that the successful party receives an order that the other party will pay costs, calculated according to a tariff.
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Costs are taxable costs + the costs of disbursements (not ALL costs)
Costs determined at the end of the trial after all other factors have been decided.
Successful party will not recover all costs of the litigation usually, successful party will recover 20% - 40% of total costs.
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Thus even if a party wins their case, they will end up at a loss.
Advise client to avoid reprehensible behaviour: don’t waste the court’s time or misbehave – court has discretion to change the usual outcome and award
special costs depending on the circumstances of litigation, the damages incurred, the behaviour of the party, etc. (Rule 9-1(6))
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Can change the usual outcome and award costs to the losing party (Blakes)
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So there is no guarantee to costs – even if the party succeeds, the court has discretion to change any order.
Even if a party is awarded costs, there is no guarantee the party will be awarded costs – must go through additional steps to collect costs.
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Not automatically awarded costs. Must collect.
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If worried about impecunious, can apply for a security.
Risk of not accepting an offer to settle: the other party may bring this to light at the end of trial and you may be deprived of any costs, or made to pay double
costs to the other party for all costs incurred after your offer was made (Rule 9-1(5)).
4) Should client apply for summary trial? Advice to client:
Summary trials are faster and cheaper than going through normal trial process. BUT this is only if the party is successful. If not, the party will have incurred
costs of summary application/trial, and then must also pay for cost of full trial.
Explain the risk to client that they may not succeed and they will have to bare the costs of this.
Decision for whether to apply usually during discovery process - are documents sufficient for the case to be decided based on documents alone? Postdiscovery, ask whether enough admissions have been made to present a case based on affidavit evidence?
Are issues are too complex to try by summary trial. If too many documents, or cross-examination of witness is necessary, a conventional trial may be best.
Strategic Advantage: if you bring application for summary trial, you will see all the other side’s materials and can see the strength of their case. Then if the
other side is very strong, you can elect not to proceed with summary trial
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BUT risk that the other side will say they still want to proceed with summary trial
5) Advice to a client who you knows needs help with funding: Options:
is there legal aid available? Right now, very hard to qualify
are you going to limit what you represent him for to reduce costs?
Are there other community services that could be an alternative? Fast track services possible to reduce cost?
COST of litigation is a factor for every client – driven in part by OUR procedure: What legal fees are you going to charge?
May apply for indigency application to avoid paying government fees to access courts
6) Advice to client on alternate dispute resolution: Ways to settle without going to court
Judicial settlement conference vs. mediation – JSC is free, lawyers MUST present option of settlement conference to client
Mediation more expensive, but mediator may be more skilled than judge in mediating.
Tell client that if JSC/mediation fails, the trial process will resume.
7) Trial by Jury or judge alone:
Role of jury is not to settle the law, but simply to find the facts and apply the law set by the judge
Lawyer must determine whether it would be beneficial to his client to have a jury determine these facts rather than the judge.
In deciding whether to require trial by jury, lawyer will ask: are the facts of this case such that they would benefit the client to have a jury?
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Juries tend to be more interested in issues of credibility
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No hard and fast conclusion that juries are swayed by emotion – need more facts than this.
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Expert evidence can be fascinating or dull: If a lot of dull expert evidence must relied on, may not want a jury having to sit through this? Will the trier
of fact be assisted by expert evidence?
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If lawyer has a “theme” that is consistent throughout the case, juries will be more able to follow
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TIME LIMITS
Limitation Act:

s.3(2) – two year limitation: economic loss from injury; damages for injury to person or property; defamation; false imprisonment; malicious
prosecution; and more…

s.3(5) – six year limitation: anything else not covered by other sections of the act

s.3(3) – ten year limitation: stuff to do with trusts

s.3(4) – no limitation period: possession of land; recovery of collateral; enforcement of injunction or restraining order; sexual assault

s.8 – ultimate limitation periods: ultimate limitation for all claims is generally 30 years under s.8(1)(c); medical claims have an ultimate limitation of 6
years.
Lifespan of a notice of civil claim: 12 months (Rule 3-2(1))
 Court has discretion to grant two 12-month renewals if notice has not yet been served, and application to renew is made before expiration of order.
Time limits for response are: (Rule 3-3(3))
 21 days if the person lives in Canada
 35 days if the person lives in the USA
 49 days if they live anywhere else
 Extension of time period allowed
Counterclaims: Must be filed on serve within same time limit for filling response (Rule 3-4(4))
Third Party Claims Rule 3-5:
Follows same time frame as Rule 3-7 (pleadings) (3) except:
Party may file third party notice at any time with leave of the court, or without leave of the court within 42 days after being served a notice o civil
claim or counterclaim (4).
Party must serve a copy of filed third party notice and a copy of the filed pleadings within 60 days after the date on which the third party notice is filed
(7)
Time frame for response to notice follows same time frame as response to notice of civil claim (21 days in Canada, 21 days in USA, 45 days outside)
(3).
Court can set aside third party notice at any time (8).
Discovery: Rule 7-1:
Parties must prepare their lists of documents within 35 days of the end of the pleading period, unless all parties of record agree to, or the court
orders, an extension. (1)
If one party requests additional documents, other party has 35 days to provide them or disclose why they won’t be provided. (12)
Examination for Discovery: Rule 7-2
Party who wishes to conduct examination for discovery must ensure that 7 days before the scheduled examination an appointment in Form 23 has
been served on the opposing lawyer witness fees are tendered (13).
Time limit of questioning is 7 hours, unless the person consents to longer (2).
Interrogatories: Rule 7-3
Party who is given an interrogatory must serve an answer on affidavit within 21 days (4).
Continuing obligation to answer if reply was incomplete/wrong
Witness List Rule 7-4:
Must disclose witness list within time set out in case plan order or, if none, 28 days prior to trial or TMC.
Continuing obligation to amend witness list before trial
Pre- Trial examination of witness Rule 7-5:
Notice of examination must be given by serving copies of the subpoena on all parties of the record at least 7 days before the date set for the
examination (4)
Examination of witness must not take more than 3 hours, unless the court otherwise orders (9)
Admissions: Rule 7-7:
If a party does not respond to a notice to admit within 14 days, they are deemed to have admitted the alleged facts. (2)
Extension must be specifically requested and there must be written agreement.
Depositions:
Court may impose time limit on the duration of the direct examination or cross-examination of a person under this rule (4)
Examining party must give notice of the examination by serving copies of the subpoena on all parties of record at least 7 days before the date
appointed for the examination. (13)
Time frame for all applications: Rule 8-1:
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Documents (copy of filed notice of application, copy of each filed affidavit referred to in the application) must be served at least 7 days before the
date set for the hearing of the application (8)
Application responses must be filed within 5 days of service (9)
Time estimate of hearings: Set for 9:45 am on a date the court hears applications, unless date is set for more than 2 hours – then date and time is
fixed by registrar (5,6)
Experts: Rule 11-6:
Expert report must be delivered to all parties 84 days (12 weeks) before trial (3)
Responding report must be submitted 42 days before trial (4)
If you object to the report, it must be done 21 days before the trial. (10)
Expert Opinion Evidence at Trial Rule 11-7:
If you want to examine an expert at trial, must give notice 21 days before trial
Case Planning Conference: Rule 5-1:
Must serve notice of case planning conference on other parties of record at least 35 days before the date set for the conference. If it’s not the first
conference, only 7 days notice is required. (1)
Within 14 days after the notice of the case planning conference, both parties must file their case plan proposal and serve it on all parties of record. (5)
Setting Trial date: Rule 12-1
Party must file notice of trial to set trial date – no set time limit to file trial date.
Promptly after notice of trial has been filed, plaintiff must serve a copy of the filed notice of trial on all parties of record (6).
If a party objects to the trial date set, they have 21 days to request a CPC or apply for rescheduling (7)
Trial Record/Trial Certificate: Rule 12-3/12-4
Filing party must file trial record at least 14 days, but no more than 28 days, before scheduled trial
Each party of record must file trial certificate with registry at least 14, but not more than 28, days before scheduled trial date.
Trial Management Conference Rule 12-2:
Must be scheduled and attended 28 days before start of trial (1)
Trial brief must be filed at least 7 days before TMC and serve on all parties of record (3).
Summary Trial
Summary trial application must be heard at least 42 days before scheduled trial date (4)
Notice: Application for summary trial must be served at least 14 days before the date set for the hearing (Rule 8-1(8))
Response: Person who wishes to respond to notice must file application response within 11 days of service (Rule 8-1(9))
Evidence at Trial Rule 12-5:
Notice to produce documents: party of record may file a notice at least 2 days before trial requiring any other party to bring any documents in the list
of physical object in their control. (8)
Exhibits: Opportunity to inspect exhibit: no exhibit can be introduced unless the other party has been given an opportunity to examine it at least 7
days before trial. (9)
Adverse party: a plaintiff may need to call an adverse witness (ie: the defendant) to make their case. If you're going to call them, you must serve a
notice on the party at least 7 days before trial date. (21).
Civil Jury Trial Rule 12-6:
Party may require trial by jury by filing and serving notice at least 28 days before trial (3)
Within 7 days of being served notice, other party may apply to the court for trial without jury (5).
Rules for cancelling: If notice filed but fees not paid, can cancel jury trial. BUT if fees paid, must apply under (5) to have no trial by jury.
Dismissal for want of prosecution: Rule 22-4(4):
if nothing happens for a year in an action and a party wants to continue, a notice of intention to proceed must be filed with the court and 28 days
must pass.
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Claim made under S. 22-7
Discontinuance and Withdrawal: (Rule 9-8)
Trial date not set: Plaintiff can drop proceedings by filling notice of discontinuance. But if trial date set, must obtain consent of all parties or leave of
the court.
Defendant can withdraw defence at any time (3).
No time frame once trial begins
No time frame to apply for judicial settlement conference (9-2), injunctions (10-4), preservation of property (10-1), offer to settle (9-1)
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Broad themes in course:
1. Professional responsibilities
2. Access to justice (costs, PC vs. SC, legal aid, etc.)
3. Toolbox of skills: transition from historic "warrior" lawyer to modern "negotiator" lawyer due to prevalence of settlements; solving a problem for a
client as the lawyer's priority (as opposed to winning a trial)  clients don't want to bear the burden of the costs or the stress of risk of loss of a trial
Rules of Court:
Organized into 16 parts, each dealing with a different subject matter
Organized in a way to take you from A to B in litigation: (Lifecycle of an Action)
1. Initiate Proceeding: Notice of Claim
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Client interview: Cause of action – limitation Periods? PC or SC? Notice or petition?
2. Pleadings: Serve the Notice of Claim on the defendant
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Personal service, or alternate form?
3. Responding to notice of civil claim (21 day limit)
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Counter claims?
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Third party notice?
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Response to counter claims?
4. Preliminary Outcomes
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Default judgment
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Reply
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Summary Judgment
5. Discovery - Pre-trial ascertaining of facts + Case planning
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Documents for discovery – exchange all documents relevant for examination
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Examination for discovery: Pre-trial cross-examination of other party on the documents.
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Experts
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Witnesses
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Admissions
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Interrogatories
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Depositions
6. Case Planning Conference
7. Trial Preparation
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Pre-Trial applications
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Narrow the issues
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Narrow the evidence
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Trial Management Conference
8. Alternative methods to trial
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Mediation, Arbitration, negotiation
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Judicial Settlement Conference
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Offers to settle
9. Trial
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Summary judgment
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Jury
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Conventional
10. Appeal
How Rules of Court are Made – Who makes the Rules?
Created by Rules Revision Committee – committee to judges and lawyers
Committee gets feedback from judges and lawyers, make recommendations to Attorney General.
Attorney General receives recommendations and pronounces changes, which are then put into Legislation
Court Rules Act: Outlines LG’s powers to make rules of court governing the Court of Appeal, the Supreme Court and the Provincial Court.
Supreme Court Civil Rules 1-3: Object of Rules
Object:
(1) Object of SC Civil Rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits.
Proportionality:
(2) Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding
in ways that are proportionate to
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(a) the amount involved in the proceeding,
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(b) the importance of the issue in the dispute, and
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(c) the complexity of the proceeding.
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INITIATING PROCEEDINGS
Jurisdiction of Different Court
Supreme Court: Established under Constitution Act; Federally appointed judges; system run by province (staffing, procedures).
Rules for Supreme Court set out in Supreme Court Act
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Province is divided into 9 judicial districts (Victoria, Nanaimo, Vancouver).
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Each judicial district has a court registry where legal claims are filed for court action. Must be a connection to the district to have your
claim filed in that district’s registry, but connection need not be substantial. A party may apply to have the case moved to a different
location if this is what is just, convenient, and meets the object of the rules (ex your lawyer is in this other jurisdiction)
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Supreme Court trials heard by judges. Also masters have been granted specific jurisdiction to hear pre-trial chambers applications in
Supreme Court.
Provincial Court: Limited authority over some matters (some civil and family matters, etc.)
Civil matters governed by Small Claims Act:
S. 2: Purpose:
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(1) To allow people who bring claims to the Provincial Court to have them resolved and to have enforcement proceedings concluded in a
just, speedy, inexpensive and simple manner.
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(2) In conducting a hearing the Provincial Court may make any order or give any direction it thinks necessary to achieve the purpose of this
Act and the rules.
Monetary cap of $25,000 for claims, and only certain kinds of claims can be heard in PC.
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PC has jurisdiction over family matters, traffic matters, certain criminal and youth matters
Filing a claim in Provincial Court: Small Claims Rules
Fees are involved in filing claims in Provincial Court
Small Claims Rules: Making a claim: Must fill out Notice of Claim and submit by registered claim (Rule 1) . Once filed, notice has lifespan of 12 months
(same as SC).
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Once served, defendant can choose to pay the money owed, admit to part or all of the claim, propose a payment schedule, oppose the
claim or make a counter claim (Rule 3)
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After form is filed, plaintiff must wait for court registry to send you a notice for the date of settlement conference
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Vs. SC: after form is filed, parties exchange documents. This does not happen in PC
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Rule 7: Settlement conference – all parties must attend and bring relevant documents, must be prepared. Judge can mediate and make
orders or can set a trial date if issue cannot be settled.
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Rule 7.2: Mandatory mediation for claims up to $10,000.

Party will receive notice of mediation with date. Third party mediator will help parties reach agreement.
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Access to justice problem: Mediators in PC often inexperienced. Outcome often depends on whether party is represented.

Can apply for exemption for mediation with good reason.
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Rule 10: Trial – evidence must be sworn, rules for experts
Differences between PC and SC: Why would a client choose SC or PC
1) Notice of claim is much more simple that the Notice of Civil Claim required in Supreme Court
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PC is used more often then unrepresented parties, and so the claims are much more user-friendly
2) PC provides more easily accessible mechanism to enforce payment in Small Claims court – Rules for how payment will be made
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Vs. SC: must make another claim to enforce payment.
3) Cost of bringing claim: PC is much cheaper than bringing a claim in SC.
4) Costs awarded: PC – costs and reimbursements all set out. Set out how much each thing cost.
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Vs. SC: Tariffs that gives points.
5) Speed of process: Supreme Court is much quicker. For provincial court, waits are up to a year before your claim will go to court.
6) Access to justice problems in PC: Once given trial date in PC, date often postponed because there is no time to get through all scheduled trials.
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Vs. SC: much more efficient, trial dates upheld.
Claim for $40,000: SC or PC?
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If claimant is outside PC jurisdiction and wants to cut costs, can give up claim of $40,000 and sue for $25,000 to be in the jurisdiction of PC
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Would lose money but this must be weighed against added cost of making claim in SC.
 First matter to be determined at client meeting is which court to get involved in. This is often determined by the amount of money involved
Small Claims Act BC: If amount involved is $25,000 or less, you will bring a claim in Provincial Court (S. 3(1)(d)).
Small Claims Act S 3: Claims the court may hear
3 (1) The Provincial Court has jurisdiction in a claim for
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(a) debt or damages,
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(b) recovery of personal property,
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(c) specific performance of an agreement relating to personal property or services, or
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(d) relief from opposing claims to personal property if the amount claimed or the value of the personal property or services is equal to or
less than an amount that is prescribed by regulation, excluding interest and costs.
(2) The Provincial Court does not have jurisdiction in a claim for libel, slander or malicious prosecution.
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Right of appeal of provincial matters to the Supreme Court (S. 5). The SC can hear all matters.
Limitation Periods
Limitation Act, BC: Sets out time periods to bring actions to court.
Statute of General Application
Limitation periods show up in other statutes (Municipal Act) - must look to these acts as well determine the limitation periods to bring a case
Limitation period is the time within which a person has to bring an action to court. Once this time period has expired, the person can no longer bring
their court action. s
Reasons for limitation periods:
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Limitation periods exist in order to enable people to order their affairs an not live with looming threats of court action  must balancing
the right to give a person time to get a case together and the interest of not surprising a person with a case.
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Disadvantage to a party if the plaintiff has had an unlimited amount of time to accumulate evidence against the other party.
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Evidence becomes weaker over time as people die, forget details of what happened, and documents are lost over time. :
Must determine the incident that brought about the legal claim (determine the cause of action) to determine the limitation period:
Four steps to determine a limitation period under Limitations Act:
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1. Determine the cause of action (subject matter)
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2. Determine which limitation period applies to this
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3. Determine if your client is within the time period for the limitation period to bring an action
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4. Not within the time period? (time has expired)  expired limitation period can b used as a defence to dismiss the action: the action has
been brought outside the limitation period and must be dismissed.
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See if you can use S. 5 or 6 to argue that the limitation period had been extended/postponed
Limitation Act S. 3: Limitation Periods:
4 limitations period: 2 years, 4, years, 6 years, no limitation period. Act tells us which time limit applies to each cause of action.
S.3(2) – two year limitation: economic loss from injury; damages for injury to person or property (whether based on contract, tort, or breach of a
statutory duty); defamation; trespass; false imprisonment; malicious prosecution; and more.
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Most common cause of action – damage to person or property – has 2-year limitation period.
S.3(5) – six year limitation: anything else not covered by other sections of the act – any other action not mentioned in this act.
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Ex. Breach of contract with no damage to person or property
S.3(3) – ten year limitation: stuff to do with trusts
S.3(4) – no limitation period: possession of land; recovery of collateral; enforcement of injunction or restraining order; sexual assault
S.8 – ultimate limitation periods: ultimate limitation for all claims is generally 30 years under S.8(1)(c);
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Medical claims against a hospital or medical practitioner have an ultimate limitation of 6 years (S. 8(1)(a,b))
Methods to postpone/extend limitation period:
1) S. 5: Effect of confirming a cause of action
If a person confirms you have a cause of action against them, the limited period is renewed at this point (common in debts)
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If time has begun to run (but not yet expired), time will be restarted when the cause of action is confirmed
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Claim that limitation period has expired: Party can argue that time had not expired because the cause of action had been confirmed and
thus the limitation period was reset, and this new period has not yet expired.
S. 5(5): Acknowledgement must be made in writing and signed, directly to the person making the claim.
Confirmation can only occur before limitation period has expired to rest the limitation period.
2) S. 6: Running of time postponed
Running time of certain limitation periods can be postponed until the action is discovered.
S. 6(1)(a): Fraud: time does not begin to run unless the party is fully aware of the fraud
S. 6(4): Time does not being to run until the identity of the respondent is known to the claimant, the claimant knows that there is a cause of action
that would have a reasonable prospect of success, and that this person, in his own interest and taking his circumstances, is able to bring the action.
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3 criteria: (1) Identity of defendant must be known, (2) there must be sufficient facts that a reasonable person would conclude that there is
an action with a reasonable possibility of success, and (3) the claimant must have the ability to bring the action (Novak)
3) S. 4: Counterclaim or Other Claim
Once an action has been started, original limitation periods become moot and parties can be changed (another defendant may be added to the
claim).
Court may allow amendment of a pleading (ex to add a defendant, add a claim to indemnify a person, add a claim for estoppel) when it considers it
just, even if the limitation period for the current proceeding has ended.
Must obtain the court’s permission to add a defendant to your pleadings when the action has begun, but the limitation period has expired (Teal Cedar
Products)
Novak v Bond S. 6 Limitation Act: what must be shown to postpone the running of time:
Starting of time after postponement is when “in light of his or her own circumstances and interests, at what point could the plaintiff reasonably have
brought an action?” (not compulsion to bring, just ability)
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S. 4(b): Interests and circumstances: Plf might not be able to reasonably bring an action when the costs and strain of the litigation would be
overwhelming to him, the possible damage recoverable would be minimal at best, or other personal circumstances combine to make it
unfeasible to initiate an action.
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S.6(5): time doesn’t start running until a person has taken “appropriate advice;” (i.e. person doesn’t know they can bring an action until they have
consulted a lawyer to tell them so)
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This is a balance between giving the person who has a claim a chance to bring it forward with that of the person charged who’s trying to
manage their affairs, while giving weight to various factors with would postpone things.
Here: Action director affects plaintiff’s health (suing doctor). Plaintiff delayed action because he was focusing on his recovery. His concerns were so
serious, substantial and compelling that, in taking into account his interests and circumstances could not reasonably have commenced a suit at the
time the cause of action arose. S. 6(4) of Limitation Act thus postponed the running of time.
NOTE: Novak allows a lot of arguments to be made for what it means to have the ability to bring a cause of action
Teal Cedar Products: S. 4 Adding after Limitation Period: What must be proved to amend a pleading after limitation period has expired
Sets out what you must prove to the court in your evidence as to why you need to add defendants to your claim once the limitation period has
expired (i.e you began the cause of action against certain def’s within the appropriate time, but now you need to add more).
Chambers Judge must look at 5 factors:
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1. Extent of delay - how far outside of limitation period are you
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2. Reasons for delay – why wasn’t this application brought earlier, why wasn’t the investigation done earlier
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3. Explanation for the delay – why is the application being brought now at this stage
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4. Prejudice and degree of prejudice caused by that delay – what is degree of prejudice to defendant you wish to add
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5.Extent of connection between existing and proposed claim of action - Degree of connection between the new defendant you wish to add
and the existing def’s – does it make sense to add the new def’s to the existing ones.
Here: Plaintiff made insurance claim for collapsing bldg, seeks to add an adjuster to the original claim. Held: Amendment allowed, the issue was
important to the parties and of general importance.
Time: Rules for computation of time limits
Rules exist for time to serve a pleading (21 days for response), but this can be extended or shortened by the court or if all parties consent.
Rule 22-4: Time
Holidays are not counted as a day in the computation of time the computation of time for a period of less than 7 days (1)
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Friday is day 1, Saturday is day 2, Sunday is a holiday so it’s not counted, Wednesday is day 3, etc.
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Seven “days” would thus require more than 1 week
Court may extend or shorten any period of time, even if the time period has expired before the application is made (2)
Time period for service, filing, or amending a pleading or any other document may be extended by consent (3)
Interpretation Act: S. 25 and S. 29
Calculation of time and age: S 25(2-5) most important
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If time for expiration of an Act falls on a holiday, the expiration will be moved to the next day that is not a holiday as will.
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If the time for doing an act for a business falls on a day the office is not open, the time the act is due will fall to the following day.
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Calculation of time expressed as “clear days” “at least” or “not less than:” When counting the first day, the last day must be excluded.
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Ex. Time between serving application and hearing date is at least 2 days. If you served document on Monday, you don’t count
that day. You could Tuesday and Wednesday, so the earliest the hearing can be is the Thursday.
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If these words are not used, the first day is counted.
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Ex. Must be 4 days between date of service and hearing date: Served on Monday. The 4th day is Friday.
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If the calculation of time says the 31st of the month, but the month has 30 days, time expires the next day (the 1st)
S. 29 Definitions: Holiday: Includes Sunday and other statutory holidays (Christmas, Easter, Good Friday, Canada day)
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Sundays are considered to be holidays
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Any government provincial or federal holiday is a holiday
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How to Start a Legal Proceeding
There are 3 ways to start a legal proceeding:
All forms to bring your request to the court to obtain a remedy for your client are found in Appendix A of SC Civil Rules
1. Notice of Civil Claim
Method to start a court action – 3 basic parts:
Part 1: Statement of facts
Part 2: Legal basis for claim
Part 3: Relief Sought (remedy requested)
2. Petition to the court
Another method to have a claim adjudicated
Part 1: What order are you looking for from the Court
Part 2: Statement of Facts
Part 3: Legal Basis for claim
Part 4: Materials relied on
3. Requisition
Where form says “required,” the party filing the requisition tells the court what they want the court to do
Then the party lists the evidence they are relying on to say why the court should do this
Rule 1-2: Citation and Application – Which form to use to begin your claim
SC Civil Rule govern never proceeding in the Supreme Court unless (1) it is a family law case, or (2) an enactment says otherwise. (2)
If an enactment other than the Rules authorizes an application to the court, the application must be brought either by petition or requisition, or an
application under Part 8. (4)
Rule 2-1: Choosing the Correct Form of Proceeding
Unless an enactment or the Rules provide, every proceeding will be started by filing a notice of civil claim. (1)
o
Most cases, will be notice of civil claim unless an Act specifically says otherwise, or one of the following circumstances from the Rules
applies.
A petition (or requisition if Rule 17 applies) would be used to start a proceeding in the following circumstances:
o
Person starting the proceeding is the only person interested in having relief sought
o
Sole issue is the construction of an enactment, a deed, an oral or written contract. The only issue to the dispute is the meaning of a clause
in the contract.
o
Relief sought relates to land, and has to do with declarations of a beneficial interest, a charge on the land, or a claim for who has priority to
a charge on the land.
Part 17: Starting proceedings by requisition: this is very rare.
Notice of Civil Claim
Notice of Civil Claim and Response to Notice of Civil Claim together are called pleadings
Notice is completed in appropriate form, then filed at the appropriate registry
Form 1: Notice of Civil Claim
Style of cause and style of proceeding state who the plaintiff and the defendant are
Form sets out response times:
o
21 days if the respondent resides in Canada,
o
35 days if the respondent resides in the USA,
o
49 days if the respondent lives anywhere else after the date of service
Rule 22-3: Forms and Documents: various rules for what forms must look like
Must use forms set out in Appendix A
Every document must be in English, written legibly, on 8 ½ x 11 paper; style of cause consistent throughout; blank space (5x5 cm.) on top left corner
of every page (for SC stamp).
Rule 3-1: Notice of Civil Claim:
(2): Contents of Notice of Civil Claim
o
(a) Concise statement of the material facts giving rise to the claim;
o
(b) Relief sought by the plaintiff against each named defendant (Part 2);

Is plaintiff seeking damages, an injunction, costs

Multiple defendants: set up what you want against each defendant.

This goes in Part 2 of the notice of civil claim
o
(c) Concise summary of the legal basis for the relief sought;

Underlying legal claim: negligence, breach of contract, breach of fiduciary duty, remedy under a particular statute
o
(d) Proposed place of trial;
o
(e) If the plaintiff sues or a defendant is sued in a representative capacity, show in what capacity the plaintiff sues or the defendant is sued;
o
(f) Data collection information required in the appendix to the form;

check off boxes for what the complaint is – required that you do this
o
(g) Otherwise comply with Rule 3-7.
8
Court registry does not evaluate the merits of any claim or document; it's the defendant's lawyer's job to do so.
Rule 3-2: Serving and Renewing the Notice of Civil Claim:
Notice of civil claim only lasts for 12 months but court has discretion to grant two 12-month renewals if it hasn’t been served yet and application is
made before expiration of order (1)
o
I.e. plaintiff has 1 year to serve the notice of civil claim to the defendant
o
Plaintiff may apply for renewal of the notice – but must have very good reason for not having served the defendant
Time of renewal starts at date that order to renew is made (3)
Once the defendant is served, this time limit is no longer a concern
Sutherland v. McLeod: Rule 3-2: Factors for whether to grant a renewal of Notice of Civil Claim
In determining whether to grant an extension of time and renew and application, court will rely on 5 factors:
1. Whether application to renew writ was brought promptly
 When was the problem discovered, and when was the application to renew filed
2. Did defendant have any notice of claim?
3. Has defendant suffered prejudice?
 Would it be too difficult for the defendant to deal with issue after this time lapse, has plaintiff’s memory faded
4. Is failure to serve the document attributable to the defendant?
5. Is failure to serve the document attributable to the plaintiff?
Even with the five factors, the overriding purpose is to see that justice is done: if the reason for failure to serve the application is negligence of
lawyer, there will be a presumption that writ should be extended.
o
Key question: What is necessary to ensure that justice has been done?
Whether there is any prejudice to the defendant will be given weight as well.
NOTE: Most of the time, notices are filed immediately. Sometimes, such as in automobile accidents, there's a reason to wait (see if injuries crystallize in injured
person; ongoing discussion between lawyer and ICBC adjuster)
Service of Claims
 Once notice of civil claim has been filed, the defendant must be served
Rules for service set out in Part 4
 Notice of civil claim must be personally served (Rule 4-3) to the respondent’s accessible address for service (Rule 4-1). An alternate method of
service may be required if the respondent is avoiding service or can’t be found. If the document was served but the respondent can prove that he
did not receive notice of the service, he can obtain relief under Rule 4-7.
Rule 4-1: Address for Service:
Every party of record to a proceeding must have an accessible address for service (1)
o
Accessible address: unique and identifiable location which is accessible to the public for delivery of documents
If party has a lawyer: must be lawyer’s address, and must be accessible.
No lawyer, must be accessible address within 30 km of court registry
o
If party of record does not have an accessible address within 30 km of court registry, the party must have an accessible address and a postal
address in BC, a fax number or an e-mail address.
A party may have an additional postal address, fax number or email address (2).
Rule 4-2: Ordinary Service:
Subject to Rule 4-3, documents to be served under the Rules may be served by ordinary service, unless the court otherwise orders (1)
Ordinary service of a document is effective by leaving the document at the person’s address for service, by mailing by ordinary mail to the person’s
address for service, by fax or email (2)
When service is deemed to be complete: Documents deemed to be served if served before 4 PM on a day which isn't Saturday or a holiday. If that
condition isn’t met, it's deemed to be served on the next day. (3)
If served by mail, delivery is deemed to be one week later (or on the next business day) (4)
If served by fax or email: Document deemed to be served if transmitted before 4:00pm on a day not Saturday or a holiday. (6)
o
If served by fax less than 30 pages, may be served at any time, if more than 30 pages, must be served between 5pm-8am(5)
Rule 4-3: Personal Service:
Unless the court otherwise orders, certain documents must be personally served (i.e. not by mail, fax or email). Personal service is required for: (1)
o
Notice of civil claim, petition, a counterclaim, a third party notice, a subpoena to a witness, etc.
Personal service is effected by leaving a copy of a document with the person. If it's a corporation, leaving it with the president, chair, etc. is good. (2)
An agent may be served on behalf of a principal who resides outside BC, and the principal must be given notice of service. (3-5)
When personal service is deemed to be complete: Documents deemed to be served if served before 4 PM on a day which isn't Saturday or a
holiday. If that condition isn’t met, it's deemed to be served on the next day. (7)
Rule 4-4: Alternative Methods of Service:
If it is impractical to serve a document by person service, or if the person to be served cannot be found after a diligent search or is evading service,
the court may, on application without notice, order an alternative method of service (1)
o
Application without notice: do not need to provide notice to the respondent that an application for substitute service is being made.
Plaintiff goes to court to make application for why alternative method of service should be used (Wall v Lemire)
Service by advertisement: Must use Form 10 if publishing in newspaper. (3)
9
Rule 4-6: Proving Service:
Service is proved by filing an affidavit and swearing on affidavit that service is complete
Affidavit must provide details of service and a copy of the document served must be attached as an exhibit to the affidavit.
Rule 4-7: Relief: if defendant couldn't receive document or didn't receive service for any reason, relief may be granted (time extension; adjournment; other such
orders as necessary)
If document was served on the respondent, but the respondent can prove that the document did not come to his notice or came late to his notice (he
did not receive the document), or the document was incomplete or illegible, the court may grant relief (set aside an order or extend time or order
an adjournment. (1)
Wall v Lemire: Test for application under Rule 4-4 for substitute service
On application for substitute service, certain facts must be established before an order will be granted
Test for an application for substitute service to be met:
o
Court must be shown that personal service cannot be usefully effected or will involve too great a cost

Cost considered in the context of the claim
o
Applicant must show that reasonable steps have been taken to locate party to be served, and if located, that reasonable efforts have been
made to effect personal service.
o
What is reasonable will depend on the circumstances of each case considering the type of relief claimed; amount involved; the avenues
explored to locate the person and the steps taken to effect personal service.
An alternative method of service is an exception to the rule, not an automatic right to a more convenient method
Here: Service is $500, which is very little relative to the claim for 1 million. No attempt of personal service was made. Toyota Japan is easy to locate.
Held: application for substitute service denied.
DRAFTING AND CHALLENGING PLEADINGS
Substantive Rules for Drafting Pleadings  Material facts only.
Rule of general application to all pleadings (not just notice of civil claim)
3-7(1): Pleadings must not contain evidence: A pleading must just state facts alleged and not the evidence supporting what was alleged
o
Pleadings only deal with the facts, objectively stated. Say “X happened at X place” rather than “I was in an accident.”
o
Only material facts must be stated in pleadings  See Delaney for definition of material facts versus particulars
3-7(2): Documents and conversations: If a document or conversation is going to be relied upon, it must be stated briefly and the precise words must
not be stated except inasmuch as they're material
o
Ex. breach of term of a contract – only put relevant term in the pleadings, if it is material
o
Slander or defamation: Exact words that the defendant is being sued for saying are material, thus must be stated exactly.
3-7(3): don’t need to plead facts that are presumed to be true or burden is on other side to disprove
3-7(5): Matters that arise after the start of the proceeding (intervening events) may be included in respondent’s response to action, or plaintiff may
include them in a reply or file an amendment
o
If something happens that is relevant to the action after the claim has been brought, the party can add this to their pleading.
3-7(6): Inconsistent allegations: A party can't be inconsistent in what you're pleading in their facts or claims.
o
Previous documents or paragraphs cannot be inconsistent (Delaney)
3-7(7): Alternative allegations: you can make allegations "in the alternative"
o
This is not being inconsistent in the pleading if you say either X happened, or in the alternative, Y happened.
3-7(9): Conclusions of law can only be pleaded if material facts supporting them are also pleaded
3-7(10): Status admitted: If in response, the party does not specifically admit, deny, or comment on any of the facts and allegations, then admission
is deemed to have been made.
3-7(12): Pleadings after the notice of civil claim: Respondent must put his defence in the response (so that the other side isn't caught by surprise)
o
Defendant must (1) plead specifically any matter that the plaintiff has alleged by making a defence to this claim, and (2) must raise any new
issues or facts that will be used in his defence (ex. limitation period expired, specific pleadings for estoppel, counterclaims, defendant
states the plaintiff has failed to mitigate.)
3-7(13): General Relief: Party does not need to specifically ask for any other relief which court may deem just
o
No need to request “such further and other relief as the court will deem just.” Court will do this anyways.
3-7(14): General Damages must not be pleaded if general damages are claimed, the amount of the general damages must not be stated in the
pleading. Do not need to state actual monetary amount.
o
Debt action: But if you are owed a specific amount of money (i.e. claiming a specific amount), this must be stated in pleadings.
3-7(15): if a party denies an allegation of fact, they must include some substance to that allegation
Particulars of pleadings:
Particulars: More detailed information that just a summation of the material facts.
3-7(18): When Particulars Necessary: Must put particulars directly in pleadings for certain charges:
o
If party pleading relies on misrepresentation, fraud, breach of trust, willful default or undue influence, or if particulars may be necessary,
full particulars must be stated in the pleadings.

“Or if necessary:” Even if not within 5 causes of action, may still require particulars if necessary.
3-7(19): Lengthy Particulars: Must be served in a separate document with the pleading.
3-7(20): Further particulars: particulars must be pleaded to extent known; if more is learned later, inform the other side.
3-7(22): Order for Particulars: court may order for disclosure of better or further particulars
10
-
3-7(23): Demand for particulars: Must apply to obtain particulars from other party.  See Consulex
3-7(24): Demand for particulars not a stay of proceeding: a party may ask for more particulars and may ask for an extension pursuant to that
request (to make up for the time spent waiting for particulars to arrive).
Delaney v Radical: How to distinguish material facts from particulars (Rule 3-7(1))
Function of pleadings is to clearly define the issues of fact and law to be determined by the court. The plaintiff must state the material facts for each
cause of action, as well as the facts necessary to formulate the cause of action (what happened).
Facts may be classified under 3 parts, and all parts must be included in the pleading:
o
(1) The plaintiff’s rights or title
o
(2) The defendant’s wrongful act that violated the right or title
o
(3) The consequential damages, whether nominal or substantial
A material fact is one which is essential in order to formulate a complete cause of action: What must have happened in order to establish the claim
being made? If a material fact is omitted, a cause of action is not effectively pleaded.
o
Ex. Negligence claim: must show facts that establish all the elements of negligence to form a cause of action.

Ex. facts to show there was a duty of care, that it was breached, etc.
o
Ex. Claim for breach of contract: Must make it clear how the contract was made (written or oral), must say the terms that were breached.
Specific details such as dates are not necessary for a claim for specific performance.
Particulars: More detailed than a summation of the material facts. They are a request for more information that what is provided for in the pleading.
o
Particulars are intended to provide the def with sufficient detail of the case he needs to meet
o
Particular words, details, circumstances that the defendant must address.
How material facts are proved is a matter of evidence – this is not set out in pleadings
Demand for Particulars: Cansulex Ltd v Perry: Particulars
Particulars are intended to provide a party with sufficient detail to inform him of the cause he has to meet by disclosing what the pleader intends to
prove.
Demand for particulars must arise directly from the pleadings, and must tend to define the scope of the issue at trial – they may not be improper
requests for the evidence of proof that the party intends to put forward at trial.
Striking Pleadings
Rule 9-5: Striking Pleadings
At any stage of the proceeding, the court may order to strike pleadings in whole or in part for a number of grounds (1):
o
It discloses no reasonable claim or defence  i.e. not all material facts are laid out to make out a claim (Young)

Claim will only be struck if it is plain and obvious that the statement of claim discloses no reasonable cause of action. The action
must be certain to fail because it contains a radical defect (Young)
o
It is unnecessary, scandalous, frivolous or vexatious,

I.e. action is merely a new attempt to re-litigate an old claim without providing any new evidence (Young)
o
It may prejudice, embarrass or delay the fair trial
o
It is otherwise an abuse of the process of the court
o
 Very broad grounds to strike pleadings
To make a claim under Rule 9-5 (1)(a) (no reasonable claim), you cannot put in any evidence for why not. Your pleadings must only say that there is
no legal claim. (2). (Young v Boronzi)
Registrar has the power to submit a pleading to court for review if he believes there are grounds to strike the pleadings (3).
Reasons a party would bring an application to strike another party’s pleadings:
To avoid having to respond to a very lengthy/wordy claim (costly), so apply to have the claim shortened
Party does not understand the pleadings.
There is not cause of action/no legal claim, or all elements of the claim aren’t there
Allegations are embarrassing and you don’t want the claim to exist at all – may try to strike it
Young v Borzoni: Test for striking pleadings under Rule 9-5(1)(a)
Test for striking out a claim on the basis that it holds no reasonable claim (Rule 9-5(1)(a)): Assuming the facts can be proven, it must be “plain and
obvious” that the plaintiff's statement of claim discloses no reasonable cause of action.” Stringent test. If there is a chance that the plaintiff might
succeed, they should be allowed to try and prove their claim.
It is only if the action is certain to fail because it contains a radical defect should the relevant portions of a plaintiff's statement of claim be struck
out.
Here: Statements are “but speculation:” they are sweeping allegations, and not material facts to base a claim for negligence of breach of fiduciary
duty. Plaintiff is not able to show that a fiduciary relationship exists that would give rise to a duty. Must show the elements of the duty, then the
breach. Cannot just say that the duty was breached.
Delaney v Radical: Amending pleadings
If, under 9-5, certain parts of the claim are invalid, a request can be made to the court to strike certain sentences or even ask that the whole claim
would be dismissed.
Although there are deficiencies in the statement, the plaintiff can be given opportunity to amend the statement of claim to correct the deficiencies
and will provide further particulars to clarify, rather than strike down the claim entirely
11
Special Rules for Certain Parties
Rule 20-1: Partnerships
Partners may sue or be sued in the firm name (1)
Service is effected on firm by leaving a copy of the document with a partner or a person at the place of business who appears to manage or control
the business (2).
Rule 20-2: Persons Under Disability
An action involving a person with a legal disability must be brought/defended by their “litigation guardian;” (1)
Anything that would normally be done to the disabled party would be done to this guardian instead (ie: service) (2)
The guardian has to consent to having their name used in the proceeding unless they’ve been appointed by the court to that position.(7)
Certificate of fitness: Lawyer must file a certificate that (1) the person is an infant or mentally incompetent; and, (2) the guardian has no interest in
the proceedings which are adverse to the disabled party. (8)
No deals are binding on the disabled party without the approval of the court.
Rule 20-3: Representative Proceedings:
If numerous persons have the same interest in a proceeding, this proceeding may be started and continued by one or more of them representing all
of them (1)
RESPONDING TO A CIVIL CLAIM
Response to Notice of Civil Claim
Form 2: Response to a Civil Claim:
Style of cause is same as statement of civil claim.
Rule 3-3: Responding to a Notice of Civil Claim:
To respond to notice of civil claim, a person must, within the specified time, file a response to civil claim in For 2 and serve a copy of the filed
response on the plaintiff (1)
Response must admit, deny, or claim no knowledge of each fact alleged. (2)
o
If a fact is admitted, the fact need not be proved at trial.

Facts generally admitted: Names of parties, addresses, relationships, residence
o
If anything is denied, you must set out your own version of the fact and prove the fact at trial.

Respondent cannot merely deny fact. Must explain their version of the fact.
o
If any fact is not responded to, it is deemed to be outside respondent’s knowledge
o
Introductory paragraphs (names, addresses, etc.) typically admitted in a response
May set out any additional material facts which defendant believes would be relevant to matter
Judge has discretion to award costs to plaintiff if defendants spuriously denies all facts and force plaintiff to go through them all in court.
Relief: Must either consent to, oppose, or take no possession as to relief sought.
o
If relief is opposed, defendant must set out a summary of the legal basis for opposition.
Time limits for response are: (Rule 3-3(3)
o
21 days if the person lives in Canada
o
35 days if the person lives in the USA
o
49 days if they live anywhere else
Extension of time period allowed; must be requested from opposing counsel to plaintiff. Manner of professional courtesy to grant it.
Rule 3-6: Reply to response:
if there is any need to reply to what is in the response to the civil claim, plaintiff can file the document called a reply
Rare: Ex. if defendant puts in an additional material fact, plaintiff may wish to respond to this
Counterclaims
Rule 3-4: Counterclaim:
Defendant in an action may pursue a claim within that action against the plaintiff (1) or against a separate third party (2).
Counterclaim is considered a pleading and must follow Rule 3-7 (2)
Defendant must file and serve the counterclaim in Form 3 within the same time set out for filing of a response (21, 35 or 49 days). (2, 4)
Counterclaim must be served on all parties of the record by personal service (4)
o
If the defendant was not a party to the initial action (i.e. new third party being served), they must be served a copy of the notice of civil
claim as well (5)
Identifying parties in counterclaim: (3)
o
Original plaintiff is still called the plaintiff
o
Original defendant is still called the defendant
o
Any newly added defendant to the action is called “defendant by way of counterclaim”
Response to counterclaim in Form 4. Time limits for response to counterclaim is the same as if it were a response to a civil claim. (5).
Counterclaim can continue and exist regardless of the fate of the original claim (even if the original claim has been stayed, discontinued or dismissed.
(7)
If court deems it necessary, court can order that counterclaim be tried separately from original claim. (7.1)
Default Judgment
12
 If defendant does not serve a response before time expires, plaintiff can obtain a default judgment order where judge makes a final order.
Rule 3-8: Default Judgment:
If the defendant has not filed and served a response to civil claim within the time period for filing, the plaintiff can file a default judgment (1).
Filing requirements: In order to get default judgment, the plaintiff must provide court with four things: (2)
i.
Proof of service: Party that served the defendant needs to swear an affidavit that it was served along with the date and time.
ii.
Proof that defendant has failed to respond: Affidvit from plaintiff swearing that nothing has been received as of this date.
iii.
Requisition from the court (by the registrar) that no response has been received
iv.
Draft default judgment order in Form 8
When default judgment can be obtained: Recovery of money in specified/unspecified amount: (3)
o
Claim for a specified or ascertainable amount: If the claim is solely for recovery of money is a specified or ascertainable amount, the
plaintiff may obtain default judgment for this amount plus interest and expenses. .
o
Claim for damages to be assessed: If the plaintiff’s claim is solely for damages in an amount that is neither specified nor ascertainable, the
plaintiff may obtain default judgment for damages “to be assessed” with costs.

Judge will assess the amount and award the plaintiff with the amount he considers appropriate.
o
Plaintiff must obtain judgment in Form 8: Default Judgment Order
Registrar can sign off on default judgment (i.e. desk order) (8)
o
Registrar can sign off for a default judgment rather than a judge or master. Must give all necessary documents in (2) to registrar.
o
If registrar is unsure, he can give file to master or judge to make decision.
The default judgment is a final order. For that reason, it must be complete and correct.
The court is able to set aside or vary any default judgment which is obtained (11)
o
If the defendant can prove that he was never served, or that he attempted to serve a response and was unable to do so, the defendant can
apply to have a default judgment set aside (BMO v Erickson: TEST)
Bank of Montreal v. Erickson: Test to set aside default judgment order:
To succeed on an application to set aside a default judgment, the onus is on the applicant to prove that:
i.
Defendant must show that they did not wilfully or deliberately fail to file a response
ii.
Defendant made application to set aside default judgment as soon as reasonably possible after finding out about default or explain any
delay in bringing the application.
iii.
Defendant must show he had a meritorious defence, or at least a defence worthy of investigation
 Need not fully defend his claim, but must show there is a legal basis for why he did not submit his response.
 Ex. I was unaware of the claim, I tried to file it but was unable to, my husband just died.
13
GENERAL CONSIDERSATIONS FOR PLEADINGS:
Non-Compliance
 Court can set aside a proceeding/step in a proceeding if a party has failed to comply with Rules.
Rule 22-7: Effect of Non-Compliance:
Failing to follow the rules does not nullify the action (1)
However, it’s open to the other party to make an application to the court to set aside a proceeding or step in the proceeding or take other actions if
a party has failed to comply with the rules (2).
o
Party can claim that the entire pleading must be set aside if the defendant’s mistake is severe enough
An application for an order under this rule must be made within a reasonable amount of time. (4)
Powers of the court (5): f a person refuses without lawful excuse to do various things, the court can either:
o
(1) dismiss the proceedings if the non-compliant party is the plaintiff;
o
(2) order the proceeding to continue as if no response has been filed if the non-compliant party is the defendant. (i.e. make default
judgment against the defendant)
If a person refuses to comply with direction of the court, the court can make an order to cancel the pleading or make a default judgment (6)
If there is want of prosecution in a proceeding, defendant can apply to the court to have the proceeding dismissed (7)
Time Delay in action
Rule 22-4: Time:
Rule 22-4 gives Court authority to extend or shorten time periods in the Rules (2)
Time periods for serving, filing or amending a pleading or other document may be extended by the consent of both parties of record (3)
o
Can extend 21 day deadline for response to civil claim.
If no step in a proceeding has been taken in on year (and judgment has not been pronounced), no further steps can be taken by a party until a notice
of intention to proceed has been filed and 28 days have passed. (4)
o
28 day period allows the other party to get their files together after the 1 year wait.
Dismissal for want of prosecution (5): Despite this rule, a defendant may apply to have a proceeding dismissed for want of prosecution without
serving a notice of intention to proceed.
Dismissal for Want of Prosecution
Rule 22-4: If the plaintiff has taken too long to take a step in a proceeding, the defendant can apply to dismiss the proceeding.
Claim for dismissal for want of prosecution made under Rule 22-7 (non-compliance)
This is an application brought in chambers before a judge and the decision is a final order.
Aker Kvaemer Canada v. Twardowski Dismissal for Want of Prosecution
Factors to be considered in dismissal for wont of prosecution: TEST:
On application under Rule 22-7, judge must consider:
i.
Length of the delay and whether or not it was inordinate
 Must look at the last formal step taken and date application was brought
 Issues which impinge on a defendant's character and/or professional integrity should be brought quickly (ex. fraud, reputation
cases, breach of fiduciary allegations, injunctions)
ii.
Any reason for the delay which is either in evidence or may be gleaned from the evidence, including whether the delay was tactical,
intentional, negligent; whether delay is excusable, dependant on the circumstances
 Legitimate settlement discussions constitute a basis for excusing delay, but must show evidence of attempts to settle through
negotiation.
iii.
Whether the delay caused serious prejudice to the defendant in presenting a defence and a fair trial is not possible
 There is always prejudice involved in court case; must be serious enough that it affects the ability of the defendant to have a fair
trial, not just makes things more challenging.
 Must be substantial risk that a fair trial is not possible at the earliest date by which the action could be readied for trial
 Ex. loss of evidence which would support a defence, lack of an anticipated witness due to passage of time
 Alleged prejudice must be directly connected with whether the defendant can have a fair trial – stress does not apply
 If prejudice is a result of the defendant’s own failure to secure evidence when he initially learned about the claim, he cannot say
his evidence is no prejudiced.
iv.
Whether, on the balance, justice requires dismissal of the action

Limitation period: If action were dismissed but plf could commence a new lawsuit because the limitation period has not expired,
likely that the action will not be dismissed.

Even if other 3 steps met (yes inordinate delay, no excuse, yes serious prejudice), court may still determine that justice requires
the action be dismissed.
Amending Pleadings
Context: pleading and response have been filed, but further material facts arise. A party realizes that some things need to be added as part of a claim
or response.
Pleadings must state all material facts and the legal basis of the claim as this governs what sorts of documents are required and what questions can be
asked at trial.
Rule 6-1: Amendment of Pleadings:
When pleadings can be amended (1): Parties have one free amendment before the date of trial has been set or a CPC is held
14
o
o
-
-
Before the trial starts (no CPC, no notice of trial date), parties can amend pleadings without leave of the court one time. (1)
For any further amendments or for amendments after trial date set/CPC held, the party must either obtain written consent of all parties, or
obtain leave of the court
How amendments made (2): Party must amend the pleading, indicate on the amended pleading the date that the original version was filed, and the
file the amended pleading.
o
Must file a draft of the original pleading and make changes very clear (strike out things to be omitted)
If there is: (1) a new cause of action outside of limitation period; (2) the claim is not valid in law; or, (3) there is actual prejudice, the court will not
allow the amendment.
If a pleading has been amended, you can file a new response which only needs to address the changed part; if not, pleading already filed will be taken
and any new fact will be deemed to be outside the knowledge of the defendant.
Summary Judgment:
 Application for summary judgment: Instead of going to trial, a final order in court is made that there is no genuine issue to be tried. Parties go to court and
order is made without a trial occurring, because there is no contentious issue to argue.
Defendant’s application for summary judgment that there is no cause of action
Plaintiff’s application for summary judgment that there was no defence.
Rule 9-6: Application for Summary Judgment
Court can make a final judgment or dismiss a claim if satisfied there is no genuine issue to be tried  either no defence or no cause of action exists.
Defendant: Person who is served a claim may respond to the application for judgment by alleging that the plaintiff’s claim has no foundation (does
not raise a cause of action against the defendant) (3).
o
After serving a responding pleading, the party who was served may apply under Rule 9-6 to dismiss all or part of the claim (4).
Plaintiff: Alternatively, plaintiff may apply under Rule 9-6 on the basis that the defendant has no real defence
Process: Party makes application for summary judgment, sets out affidavit, serves application on all parties. Other party has the opportunity to put in
evidence to show that they do have a defence/cause of action, and that there is a genuine issue to be tried.
Rule 9-6(5): Court orders:
o
If the court is satisfied that there is NO genuine issue fro trial, court must make a judgment (if no real defence) or dismiss the claim (if no
real claim). (5)
o
If judge thinks the only genuine issue is regarding how much money is owed, the judge may order judgment based on accounting in the
registrar (5)(b))
o
If the only genuine issue is a question of law, the court may decide the issue on summary judgment, and make a judgment.
But if a genuine issue to be tried does exist, judge cannot make an order, and the trial must continue as planned.
If a summary judgment application is made and is unsuccessful, the court may make a determination as to costs related to the application.
Discontinuance and Withdrawal:
At some point of the proceedings, a party may decide to either drop the case (plaintiff) or drop the defense and acquiesce (defendant).
Discontinuance is usually a part of a settlement – notice of discontinuance is taken out, and it’s as if the claim never happened.
Rule 9-8: Discontinuance and Withdrawal:
As long notice of a trial date has not been filed, a plaintiff can drop the proceedings by filing a notice of discontinuance (Form 36) and serving it on all
parties of record. (1)
If a trial date has been set, the notice can be filed with consent of all parties or leave of the court. (2).
Common to discontinue an action against one of several defendants where there are multiple defendants.
Defendant can withdraw defense at any time (regardless of trial date set or not) by using Form 37 (3)
Cost rule: a person who wholly discontinues an action must pay the costs of the other party to the date of the serving of the notice of discontinuance.
o
If the plaintiff who is liable for costs starts the same or a substantially similar claim, the court may order that proceeding to be stayed until
the plaintiff has paid the costs from the first time around.
Interest
Court Order Enforcement Act has a table of interest rates to be paid on any judgments
Interest is usually claimed as part of relief in the notice of civil claim
Post-judgment rate is higher that pre-judgment interest rate because they want to encourage prompt payment.
Court rates will only be applied if there is no contractual agreement to the contrary
15
PRE-TRIAL PROCEDURES: GETTING INFORMATION
Part 7 SC Civil Rules: Modes of pre-trial examination/fact gathering
Most common methods: Documents (7-1) and examinations (7-2)
Other modes: Interrogatories, notice to admit, examination of a piece of land (physical examination and inspection), witnesses
Ascertaining Facts:
Rule 7-1: Discovery and Inspection of Documents
All parties must prepare a list of documents (in Form 22) within 35 days of the end of the pleading period that have been in their possession or
control which would be relevant to the trial (Rule 7-1(1)).
o
Must provide: (1) all documents used to prove a material fact; and,
o
(2) all other documents intended to be referred to at trial
Definition of documents is broad and includes emails, texts, photos, hard drives, etc.
Purpose of automatic disclosure requirement within 35 days is to speed up action by forcing both parties to release all their documents immediately.
Form 22: List for document: Style of proceeding at top, title of document, states who it is prepared for.
o
Each document is listed and numbered, brief description of each item on list: Ex. letter from X (2).
o
Ongoing obligation to continue disclosing documents as they are discovered. Add date that document was added to the list.
o
Divided into parts:

1) Documents that have been or are in parties control and could be used to prove or disprove a material fact at trial

2) Documents that a party intends to refer to at trial

Do not point to material fact, but you might refer to them at trial

3) Subsequent demands – documents which relate to the matter in question

Insurance policy: Insurance policy that relates to the action must be disclosed (ex. leaky condo dispute)

4) Documents from which privileged production is claimed (solicitor-client privilege, litigation privilege: created for lit’gn)

Description of privileged documents may be very brief (“letter”) (7).
Demand can be made of opposing party under (10) and (11) for additional documents
o
If a party thinks that there are documents not listed which should be and are within the listing party's possession, the party may, by written
demand which identifies the additional documents or classes of documents, require the listing party to add them to the list (10).
o
Under (12), other party has 35 days to either provide documents or disclose why they are not being made available.
o
If demand not complied with, under (13), you can go to court to get an order for production of any documents the other side has refused
to release.
Other party has right to inspect and copy, during normal business hours, the documents that are listed (15).
On inspection, other party may ask for copies of the documents to inspect. Copies must be served on the requesting party. (16).
Court can make an order for the production of a document for inspection and copying at any time and place and in the manner it sees fit  broad
discretion (17)
If other party disagrees with demand for additional documents, party must indicate, within =35 days, why the amended list of documents is not being
prepared and served (12)
Privileged documents:
o
Party who claims that a document is privileged must make this claim in the list of documents and must state the grounds of the privilege (6)
o
If party objects to opposing party’s claim for privilege, opposing party can apply to court for an order to determine whether documents are
privileged (20).
o
There must be some evidence as to why a document is claimed to be covered by privilege, not just a mere assertion of privilege (Benning)

Limited description is sufficient: court need not look at document to determine whether it is privileged, but can make a decision
based on the description and the affidavit that sets out why document is privileged (Benning)
o
Onus of establishing privilege rests with the party asserting it. Must establish that the privilege applies to the documents. To do so, must
describe the nature of the document in a manner that, without revealing information that is privileged, will enable other parties to assess
the validity of the claim for privilege.  must provide explanation in affidavit of why document was created and why it is privileged
through description of document. (Benning)
If a party fails to produce a document for discovery, they cannot use this document at trial or use it for the purpose of examination or crossexamination (21).
Documents held by Third Parties: (18)
o
If document is in possession of a person who is not a party of record, the court can make an order to produce these documnets
Biehl v. Strang: Documents for discovery – only those that prove/disprove a material fact
Old rules for discovery was that the demand may be made for documents related to any matter in question in the action. This was a very broad test
which led to massive volumes of documents.
New Rule 7-1  only documents that prove or disprove a material fact must be produced. (i.e. necessary to prove a fact in issue)
o
If the opposing party thinks they need more disclosure, they may make an order for further disclosure.
New Rule 7-1 designed with proportionality in mind in order to limit volume of initial disclosure of documents to relevant matters
Here: Contract party oral/by conduct, so issue of determining facts important. Def alleges plf’s drug use impaired his memory, and obtained doctor’s
report htat drugs affect memory. Is this information material? Memory not a “material fact?” Held: Yes material fact – ability of plf to remember is
relevant to prove reliability of plf’s assertion that an oral contract exists. If evidence is not reliable, this is a material fact.
16
Benning v Trustees of the IWA: Privilege (Rule 7-1)
Onus of establishing privilege rests with the party asserting it. Must establish that the privilege applies to the documents.
Hodgkinson is still the rule in BC for litigation privilege – when a lawyer, exercising legal skill and knowledge from the industry, has assembled
documents for his brief for the purpose of advising on or conducting anticipated or pending litigation he is required to claim privilege for such
collection and to refuse production.
Here: Def objected to producing certain documents on grounds of litigation privilege, but some of the documents predated litigation. Held: Def had
satisfied onus of establishing privilege – his listing of documents was adequate, and the accompanying affidavit explained that the documents arose
from the investigator’s skill, knowledge and judgment.
Law Society of BC Professional Conduct Handbook, Chapter 5: Confidential Information
Duty of confidentiality: (1-2): Lawyers have duty to maintain complete confidentiality of all information disclosed by client, and to take steps to
safeguard client’s privacy, even if it's publicly known. Must preserve confidentiality even after termination of the retainer.
Lawyer must not use confidential information for his own or a 3P’s benefit, or for the disadvantage of the client (5), or disclose the information to
another client (7).
Government information: Lawyer employed by gov’t who knows confidential gov’t info must not represent a party adverse in interest (9)
Lawyer may disclose client’s confidential information with express or implied consent from client (11) or if necessary to prevent a crime (12), or if
necessary to prevent the client’s interest and the client is incapable of instructing the lawyer himself regarding disclosure (16).
o
Lawyer who is required b law or court order to disclose client’s info must not divulge more than necessary (13), and must claim privilege if
possible if information is privileged. (14).
S. 15:Use of opponent’s documents:
o
A lawyer who acquires opposing party’s document that they're not supposed to see (intended for another party, you know it is privileged)
must return it after either not reading it at all or cease to read immediately and disclose what was read to and what they intend to do with
the information.
Sandbar Construction Ltd V Howon Industries Ltd: Implied Undertaking to use documents only for the purpose for which they were obtained
Party’s lawyer is bound by an implied undertaking to the court not to use the documents of his client’s adversary for any propose other than the
proper conduct of the action on behalf of this client – cannot use the other party’s document for discovery for a collateral purpose (such as a separate
action) without that party’s permission or leave of the court.
Must obtain permission from the other party or a court order to use documents for a collateral purpose
Breach of an implied obligation to the court (can give rise to contempt proceedings.
Here: Counsel for plf used def’s discovery of documents to commence a separate fraud action against the def. Held: Counsel guilty of comtepmt –
counsel bound by implied duty of confidentiality. Counsel should have obtained def’s permission, or leave of the court to use documents for a
collateral purpose.
17
Examination for Discovery:
Occurs after you have looked at documents, formed questions, consulted client.
Cases typically settle after discovery: litigation process is used to gather facts, which are then used to negotiation, settle, and evaluate your position.
Time limit for questioning emphasizes principle that counsel should be focused an not waste time on questions that will not advance the purpose of
the investigating the case – goes toward objective of Rules for just and speedy resolution. (Kendall v Sun Life)
o
Undue objections and interference by other party’s counsel may undermine the purpose of discovery (the ability to cross-examine) and the
purpose of the Rules.
Purposes for examinations for discovery:
1) Gain admissions from the other side that will help your client’s case
2) Gather information about the entire case
Everything at discovery is recorded by court reporter and can be used at trial.
Rule 7-2: Examination for Discovery
Notice: 7 days before examination takes place the party wishing to conduct the examination for discovery must serve on the opposing party’s lawyer
an appointment in Form 23, and must ensure that witness fees (listed in Appendix C, Schedule 3) have been tendered (13).
o
Plaintiff will normally be the one to request examination for discovery. Plaintiff’s lawyer takes out an “appointment” Form 23 and serves it
to other party’s lawyer.

Appointment: Date is agree to, party books a room in court and books a reporter
o
The person served must then attend and submit to the examination for discover (14), and must produce all documents in his control
relating to a matter in question in the action (16).
Each party to an action make himself available to be examined (Rule 7-2(1))
Examination for discovery is an oral examination done under oath (4).
Examination is in the nature of a cross-examination. Person may be re-examined after examination on his own behalf (i.e. by his own lawyer) in
relation to any matter respecting which he has been examined (i.e. to clarify any matter – this is rare). (17).
Time limit for examination for discover is 7 hours, unless the person to be examined consents to a longer period (2)
o
Continuation for discovery – party may apply for extension of time limit for discovery.
Who is examined: Rule 7-2(5-10): Rules for infant, assignor, mentally incompetent, corporations, trustee in bankruptcy, a person for whose
immediate benefit the action is brought.
Where: Discovery occurs where the parties to be examined reside. (11).
Scope of examination: Person must answer any question regarding any matter relating to a matter in question (18)
o
 Scope of discovery is very broad – can ask person questions on a broad range of topics, who must answer – any issue that touches on a
matter in issue can be asked.
Party being examined is compellable to give the names and addresses of all persons who reasonably might be expected to have knowledge relating to
any matter in question in the action (18).
All parties who will be examined must inform themselves of the case before the examination occurs so that they can properly answer questions. If
the person fails to do so, the court may adjourn the trial so that the person can inform himself (22) OR the court can request the person provide the
response by letter after having informed himself of the case. (23).
o
If letter provided, the questions set out in the letter and the answers given are deemed to be questions asked and answered under oath in
the examination for discovery (24).
Objections: If a person objects to answering a question, the court will decide if the objection is valid and continue with the examination. (25)
o
Objections may be regarding relevance of a question, that a question has already been asked and answered, the information is privileged,
question is regarding credibility (this cannot be asked), cannot ask questions about expert opinion evidence obtaine by the opposing party.
Court reporter records entire examination (26)
Special Issues:
o
If translation is required, the time needed for examination will likely be greater.

Interpreter must be someone who is accepted as a court interpreter at trial.
o
Failure to appear: If a party orders discovery and the other side doesn’t show up:

Wait 15 minutes

Obtain a certificate of non-attendance from court reporter

Go to court under provisions for non-compliance and request that the plf’s claim be struck because she failed to attend
examination for discovery.

Open to the court to strike the claim, or more likely, to make an order that the plf attend a new examination for discovery within
a certain time period.
o
If party has not shown up multiple times, can ask for an order for contempt and can ask for costs.
Transcript and follow up to discovery:
o
At the end of discovery, a transcript may be prepared and ordered (cost - $700 - $2000).

If one party orders transcript, the other party can order a copy of this at a reduced rate.
o
Transcript cannot be used outside the current court action, unless you have permission from the other party or a court order.
o
Assessment of discovery: Lawyer will write a follow-up report to the client detailing the admissions they got, the lawyer’s view on what is
the theory of the case, and the parties’ positions going into trial.
18
Use of transcript of examination for discovery at trial:
Counsel for plaintiff may bring in questions and answer from the transcript of the examination where the defendant made admissions that form a part
of your case. Can use these to strengthen your case.
Counsel for defendant can use transcript to impeach the plaintiff when he testifies.
o
If the plaintiff makes a statement at trial, but at discovery said something different, lawyer can put up the other statement from the
transcript, show there are 2 opposing statements and make plaintiff clarity ambiguity
Cannot give entire transcript for discovery to judge – can use it in limited ways at trial.
Kendall v. Sun Life Insurance: Scope of questioning at examination for discovery (Rule 7-2(18))
Counsel for the party should not interfere with the cross-examination (with objections) unless: (1) it's clearly necessary to avoid ambiguity in the
question; or, (2) to avoid injustice (i.e question is outside permissible scope, has already been asked)
Scope of questions that may be asked is very broad (determined by pleadings). Multiple objections does not aid the trial process because most
questions will be admissible.
Any intervention must not suggest to the witness what the answer should be.
By continually objecting, opposing counsel attempts to derail authority of counsel and causes witness to be less forthright: this is bad.
Court will rarely enforce a continuation of an examination for discovery (i.e. after 7 hour time limit has expired) on behalf of the party which “walked
out” (as it was his unilateral decision to terminate the examination) but is willing to do so where the purpose of the examination was being thwarted
because the client has been deprived of the right to cross examine. .
Advice to lawyer conducting examination for discovery:
Outline the questions you are going to ask – this will allow questions to stay on track and you will be more likely to gain admissions from the other
side to help your client’s case.
Lawyer must know the theory of the client’s case (what they are trying to prove) to guide questions, must know what admissions you want to obtain.
Large scope of questions that may be asked – can ask a question as long as it touches on a matter in issue
o
Cannot ask a question regarding credibility, expert opinion evidence obtained by the other side, question must be relevant.
Even if you already know facts of case, you may want evidence of this fact recorded as a statement under oath  so know what you need to prove as
facts at issue so that you can ask questions about this.
Chronological order: Discovery usually conducted in chronological order – start with the beginning of what you understand happened, go
chronologically.
Typical to start with easy, relevant Qs (What’s your name, how long were you in the business)
Transcript of all Qs, so much be able to put all documents into words – describe document. “if you can look at the top left hand corner under the date
of the document, (be wordy) – what is the number on the document”.
Interrogatories:
Rule 7-3: Discovery by Interrogatories
Interrogatories are a series of questions, in writing, which are delivered to the other party to answer in Form 24. They reply in writing, under oath.
Party of record can only serve interrogatories if the other party consents or if the court grants leave (Rule 7-3(1)).
Form 24 is used: sets out a series of numbered questions, then name of the party being questioned
Interrogatories are rarely used: Replies can be shaped and crafted by lawyers to benefit the party giving the answers. Direct questions made at
examination for discovery must be answered immediately, and are thus more likely to be honest answers that are not shaped by lawyers.
Interrogatories used when
o
It is impractical to travel to parties because they are far away/in remote location.
o
Very specific and direct Qs: One of the parties is a financial institution, and you have a specific question relating to documentation from the
bank manager that is in their records.
Powers of court to grant terms and conditions to the interrogatories regarding the number or length of interrogatories, the matters they may cover,
the timing of any response, and the notification to be given to parties on record (3).
Time limit: Party who is given an interrogatory must serve an answer on affidavit within 21 days (4).
Objections: Person answering interrogatory can object to answering in an affidavit in answer (must swear an affidavit declining to answer and stating
why (“ex. I decline to answer because the info is irrelevant) (6).
o
Grounds: privilege, does not relate to a matter in the action
Interrogatories can be struck out on the grounds that it will not further the object of the Rules. Party must apply to court to strike the interrogatory
(8).
Continuing obligation to answer (11): If a person learns that their answer was inaccurate or incomplete, they must promptly send an affidavit to the
party who served the interrogatory stating the correct or complete information.
o
Versus discovery: if you say a wrong answer at discovery, you don’t have an obligation to tell the other party this
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Witnesses
Rule 7-4: Witness List
Parties must disclose their witnesses, except for expert witnesses and adverse witnesses (1)
List must be filed and served on parties of record at either a time set out in a case plan order or 28 days before trial or trial management conference
(1).
List must include full name and address of each witness (2).
If list is incomplete, inaccurate, or you want to add someone, you must amend the list and re-file it, and the serve a copy of the filed amended list on
all parties of record  Continuing obligation to list witnesses after service (3).
Witnesses on witness list are not required to be called as witnesses at trial (4).
Once witness list is received: Pre-trial interviews allowed:
Once you have the witness list from the other side, you can interview these witnesses prior to trial so that you can find out what information they
have about the case.
o
Informal: Phone witness, informal interview.
Witness is not compelled to talk to the opposing lawyer, but professional courtesy dictates that lawyers cannot tell their witness not to talk to the
other side (“no property for witnesses”)
However, lawyer may tell their client’s witness that they have the choice whether to answer the other lawyer’s questions, and can ask the witness to
tell them what they talked about if they do talk to the other lawyer.
Rule 7-5: Pre-trial examination of witnesses:
Pre-trial exam given to a witness who is not a party to the action, but a party wants to obtain a statement from/interview this person under oath
before trial (and then transcript of the statement that can be used at trial).
If a person who is not a party of record to an action may have material evidence relating to a matter in question, the court may order this person to
be examined under oath on the matters in question in the action. (1)
o
Person CANNOT be an expert witness who is providing evidence in the case, or an adverse witness
An application for an order must be supported by affidavit setting out the matter in question that the applicant believes the proposed witness has
material evidence on (i.e. why it is necessary to compel the witness to a pre-trial exam) (2) and must be served on the proposed witness (4)
o
Application is necessary even when parties agree
o
Application may be denied: party must convince the judge why the evidence of the propose witness is material to obtain pre-trial.
Must issue subpoena: Party being examined may be required to bring any document or physical object in their possession relating to a matter in
question (5)
Notice of the examination must be given by serving copies of the subpoena on all parties of record at least 7 days before the date for this
examination.
Witness may the be cross-examined by the party who obtained the order, and then may be cross examined by any other party of record
o
Both parties may cross-examine the witness under oath.
o
Transcript is created  Parties may use transcript at trial to impeach the witness.
Examination of witness may not take more than 3 hours, unless court otherwise orders (9).
Most rules for the examination of discovery also apply to pre-trial examinations.
NOTE: Adverse witness: If witness is potentially adverse, may requires pre-trial examination to determine if you want to use this witness at trial.
Rule 7-6: Physical Examination and Inspection:
If the physical or mental condition of a person is at issue in an action, the court may order that person to submit to an examination by a medical
expert. (1) Court can also make orders with respect to the costs of that examination and that the results must be made available to all interested
parties (1).
o
 Order for the physical examination of a person: Ex. Personal injury case – plaintiff has been examined by his own doctor and declared
injured, but defendant wants the plaintiff to be examined by the defendant’s doctor. Def would apply under Rule 7-6.
Court may order a further examination (2)
Court may order production, inspection, or preservation of any property and authorize samples to be taken or experiments to be performed (4).
o
 Order for inspection of property: Ex. claim that there is a defect in property, defendant can apply to obtain their own inspection of the
property under this Rule.
Court can authorize person to enter land or building (5)
Court will look at why this needs to happen, what issue it relates to, and evidence of some effort made before application to get the other side to
agree.
Admissions
Admissions made pre-trial can be used at trial to further the plaintiff’s case or to impeach a witness at trial
When are admissions made:
o
Defendant admits facts in the pleadings (in the response to the notice of civil claim)
o
Parties admit facts at the examination for discovery
o
Rule 7-7: Party can serve a notice to admit requesting the other party to admit the truth of a fact or a document.
Purpose: get the admissions in advance of trial so that you don't have to prove the facts at trial.
Rule 7-7: Admissions:
Party of record may serve notice to admit (Form 26) requiring any party to admit truth of a fact or authenticity of a document (1).
o
Notice to admit Form 26: Addressed to party, sets out a series of facts. Party must admit to or deny the truth of the facts.
20
o
-
-
For documents, Form 26 must list all documents to be admitted and a copy of each document specified in the notice must be attached to
the notice of admit when it is served (3).
o
Normally served after examination for discovery, but before trial
Effect: The truth of the fact/authenticity of the document will be deemed to be admitted for the purposes of the action unless, within 14 days of
receiving the notice to admit, unless the party has (a) specifically denied the truth/authenticity, (b) set out in detail the reasons why the party cannot
make the admission, or (c) states that the refusal to admit is based on privilege or that the request is improper (i.e. irrelevant) (and reasons for why it
is privileged or improper). (2)
o
If no reply to notice within 14 days, document will be deemed to have been admitted.
o
Extension to admission must be specifically requested and there must be written agreement.
Admission of Documents: Party admits that the document is the same one sent and received on X date. Party does not admit to the truth of
its contents.
If party unreasonably refuses to admit or denies the truth of the fact, they will have to pay the costs of proving the truth/authenticity, and the court
may award a penalty of additional costs. (4).
Party is not entitled to withdraw an admission or any deemed admission unless they have consent from other parties (which is rare) or leave of the
court (5)
o
TEST to withdraw admissions: below
Weiss v. Koenig: Test for Withdrawal of Admissions (Rule 7-7(5))
Where failure to reply to notice to admit is not intentional and application to withdraw admission is timely (immediate after discovery of problem),
the court may consider withdrawing a deemed admission.
Test for withdrawal of admission: is there a triable issue which in the interests of justice should be determined on its merits (i.e. determined at trial
and not be disposed of by a deemed admission)? If fact is true, than withdrawal will not be allowed; if it’s open to dispute, it will be.
To determine whether there is a issue which should be determined on its merits at trial, Court will consider:
1. That the admission has been made inadvertently, hastily, or without knowledge of the facts
2. That the fact admitted was not within the knowledge of the party making the admission.
3. That the fact admitted is not true.
4. That the fact admitted is one of mixed fact and law.
5. That the withdrawal of the admission would not prejudice a party.
6. That there has been no delay in applying to withdraw the admission.
If the applicant can establish that an admission was made inadvertently, hastily, without knowledge of the facts, or where the facts came to the
attention of the court only after the admission was made, an application to withdraw an admission will be decided on the balance of prejudice and
considerations of the interest of justice.
Here: Party did not purposefully fail to respond; rather this was a case of true inadvertence. Application to withdraw admission was timely because it
was made as soon as the party became aware of the deemed admission. Admission withdrawn.
Depositions:
Rule 7-8: Depositions
Transcript or video recording of an examination done outside of court can be given in evidence at trial
Person may be examined under oath before or during trial, and the record of the examination will be available to be tendered as evidence at trial (1).
Grounds for an order: In determining whether to order an examination of a person under Rule 7-8(1), court will consider:
o
The convenience of the person sought to be examined (i.e. whether they would have to travel a far distance)
o
The possibility that the person may be unavailable to testify at trial by reason of death, infirmity, or absence, or will be outside the
jurisdiction at the time of trial.
o
Desirability of having the person testify at trial by video conference or other electronic means
o
The expense of bringing the person to trial.
Examiner must serve on all persons to be examined a subpoena in form 25 and require that person to bring to the exam any documents that relate to
the matter in question, any physical objects that could be an exhibit. (5)
Notice of examination must be given by serving copies of the subpoena on all parties of the record at least 7 days before the date set for the
examination (4)
Applications:
Pre-trial applications to go before the court and have a decision made without going through the trial process, must make application that follows the
requirements of Part 8.
Applications then heard in chambers
Applications generally made after the action has begun but before trial.
Evidence goes before court via affidavits.
Types of applications all governed by Part 8. Unusual applications:
o
1) Consent applications (Rule 8-3): If all parties agree to an order, parties need only submit a requisition form, a draft of order form 34, and
evidence that the application is consented to (1).

Registrar can either refer the application to a judge or make the order himself (8-3(2))
o
2) Applications of which notice is not required (Rule 8-4): Some applications don’t need notice to be served on the other party (and there
is no need to attend court)

Ex Application to renew a notice of claim where you have been unable to serve the defendant - do not need to serve notice on
the defendant because he cannot be found.

Application may be made by filing a requisition form, a draf of the proposed order, and an affidavit to support the application (1).
o
3) Urgent Applications (Rule 8-5): Short leave applications – provides mechanism to speed up court process. Time limits an notice
requirements do not apply (3), court can fix dates for application to be heard and documents to be served (4).
21
Jurisdiction of Masters: Practice Direction PD-14: Master’s Jurisdiction
First must determine whether a master or a judge has jurisdiction to make the order  this must be stated in notice of application
Part A: Where master does not have jurisdiction:
o
A statue or a rule says “a judge must decide, a judge order” (versus “court must decide” could be judge or master)
o
Cannot dispose of an appeal
o
Where a party is under legal disability and has agreed to consent judgment, must go before judge (ex an infant)
o
Criminal proceedings and contempt orders
o
Cannot grant injunctions
o
Can’t vary an order of a judge
o
Cannot conduct Trial Management Conferences
o
 Master cannot make FINAL orders that will end the litigation
Part B: Where master does have jurisdiction:
o
Interlocutory applications/ any pre-trial applications under Rules
o
Family law issues
o
Master can make final orders with respect to:

Orders for summary judgment (where there is no triable issue)

Judgment for default (party does not show up)

The parties consent to the master

Judgment for estates
Most pre-trial issues will go before a master, whereas most final orders must go before a judge
Procedure for Application: Usual way of brining an application before the court
Rule 8-1: How to Bring and Respond to Applications
o
All applications are started by the document in Form 32.
o
Person served the notice of application then has 5 business day to respond in Form 33.
File notice of application and every affidavit and document with the court (Rule 8-1(3))
o
Must file the original application, additional copies, copies of exhibits, and every document that will be used at the hearing (Rule 8-1(4))
Contents of notice of application: Must be in form 32, must not exceed 10 pages, must include all parts, time estimate, jurisdiction, place for hearing
(4).
Form 32: Notice of Application: four parts
Style of cause: who are the parties
Four parts:
1. Specific order that you're seeking

Exact wording of what you want the court to do is put in this section.

Generally, you're lifting out exactly what the rules of court say you can do.

Very important that you ask for costs on the application
2. Factual basis for that order

Facts relied on to obtain the order

Facts set out in numbered paragraphs.

This is a summary. It's a legal document, not an affidavit.
3. Legal basis for the order

Quote the Rule that gives the right to bring the application (Rule 7-1)

Brief summary of the legal arguments. If appropriate, include citations of appropriate cases.
4. Materials relied on

Set out the information (written evidence, affidavits, etc.) that you will rely on.

Everything must be on the list; if it's not in the list, you can't use it when your application is heard.
Must give a time estimate for how long you think it will take to hear the entire application.
o
Important because chambers is divided into matters more or less than 20 minutes.
o
If time estimate is more than 2 hours, it must be scheduled like any other trial. (6)
o
Whichever party gives longer time estimate (application or response) will have their estimate accepted.
o
Time estimate will be confirmed when parties show up in court.
Must state whether or not the matter is within the jurisdiction of a master.
-
Applicant must serve all this material to each party on record, even if not party to proceeding (7)
o
Must serve: a copy of the filed notice of application, a copy of each filed affidavit and document
Must serve application at least 7 days before the date set for hearing, or 14 days if it is for a final order. (8)
Other parties have 5 business days to file response after being served (short, so common to ask for extension) (9)
o
Must file the response, the original of every affidavit and document referred to (9).
Contents of application response: Must be in form 33, must not exceed 10 pages, must indicate whether the party consents/opposes/takes no
position on the order, and summarize the facts/legal basis. Set out time estimate and listof affidavits and documents (10).
o
Respondent must serve on application 2 copies of everything that will be relied on (12).
22
Form 33: Application Response:
Respondent may consent to certain orders on conditions – must set out the conditions
Respondent must state why they do not consent in facts/legal basis
Parts:
1. Orders consented to
2. Orders opposed
3. Orders on which no position is taken
4. Factual Basis
5. Legal Basis
6. Material to be relied upon
Time estimate
-
-
Once response has been received, applicant has opportunity to file further evidence by serving a responding affidavit (13)
Unless all parties consent, a party must not serve additional affidavits other than those already served or those under Rule 8-1(13). (14).
Application Record: Applicant must provide to the registry an application record as follows: (Rule 8-1(15)):
o
3 ring binder with tabs and an index that contains all the required information:

all lawyers identified in title page

copy of filed application and filed response

all evidence that will be relied on:

copy of every filed affidavit and pleading that will be relied on

draft of the proposed order

written argument  but only if estimated to take 2+ hours (16)

written authority

draft bill of costs
o
Don’t need to put in affidavits of service, case law, copies of authorities
o
Only need to use what you will rely on.
Unless application is estimated to take more than 2 hours, parties cannot submit a written argument in addition to the application or the
application’s response. (16)
Applicant must send an index to all parties on record (17)
At conclusion of hearing, your application record will be returned (19).
Rule 8-2: Where application is heard
Application usually heard in Court registry where you started your court action
Can apply for order to hear application somewhere else, or to make application be telephone
Chambers Proceedings:
Rule 22-1: Chambers Proceedings:
After successful notice of application (or through petition or requisition), parties appear in front of a master to ask the court to make a pre-trial decision
(Usually regarding procedural matters – ex. regarding documents and discovery, matters to be disposed of other than trial, application to set aside a judgment,
application to renew a writ, application to renew or change an order of a master, dismissal for want of prosecution (i.e. plf has taken to long to start case)
Applies to petitions, requisition, and applications to the court (1).
If a party doesn’t show up, the court can continue the hearing if it thinks it appropriate (2); any orders made can be reconsidered if the failure to
attend was not due to wilful delay or default (3).
Evidence in a chambers proceeding is to be given by affidavit, but court may order cross-examination of person who gave affidavit, examination of
either party or a witness, directions for discovery of documents, or receive other forms of evidence. (4).
Chambers proceedings occur in public, in open court. (5)
Court has power to: (1) grant or refuse relief in whole or part; (2) adjourn proceedings; (3) obtain expert assistance; (4) order a trial either generally
or on a specific issue. (7)
If notice wasn’t served on a party, the court may dismiss or adjourn the proceeding, or make any other order (8)
Registrar must attend and take notes at chambers hearings (11).
Procedure:
o
Check in with court clerk
o
First hearing matters: matters that are estimated to take fewer than 20 minutes
o
On. Second hearing matters: matters estimated to take more than 20 minutes
o
Applicant speaks first, then respondent, then applicant has a right to reply
o
Introduction, then presentation of facts and legal basis, conclusion.
23
Affidavits:
Definition: Written statement of fact, signed by the author, and sworn to be true before someone authorized to administer an oath. Legal matters
must be sworn of affidavit. The deponent signs the affidavit to show that his statement was made under oath and thus is verified as true.
Affidavit goes along and is submitted with the application and swears that all the information is true.
Affidavits are evidence, and there are rules with respect to how you present them in court
Form 15: Affidavit of Personal Service:
o
Affidavits must be presented in Form 15
o
Style of proceedings at top (parties)
o
A series of statements sworn to in numbered paragraphs set out facts
o
Affidavit is affirmed and signed
o
On one side is a place for the jurat (commissioner for taking affidavits) who signs and says that they administered the oath in his presence.

All lawyers and notaries are commissioners.
Affidavit sets out facts: Include brief summary of claim and outline of action to date – do not make arguments as to why facts are true.
o
Argument goes into application under legal basis.
Figure out what you need your witness or client to say and then state it as clearly and plainly as possible. Lawyer will review affidavit with the client,
who will then sign it.
o
Generally lawyers cannot sign an affidavit. By signing, lawyer becomes a witness, and one cannot be an witness and an advocate.
o
Exception: When the application deals with purely procedural matters (ex. changing a trial date), and the client is unavailable or is unable to
swear on affidavit, the lawyer may sign the affidavit.
Rule 22-2: Affidavits:
Affidavit must state only what the person swearing or affirming the affidavit may state at trial (12)
o
Cannot contain opinion evidence, can only state real, observable facts. Cannot say what you think the facts mean.
o
Exception: Affidavit may contain statements as to the information of belief of the person swearing the affidavit if the source of the
information is given, and the application is not for a final order. (13)
o
Hearsay generally not allowed, but if this is a pre-trial application and the source is given (i.e. “I have been informed by X, and I believe it to
be a fact that X did this”), then this can be admissible. (Kennedy v Kennedy)
Counsel is responsible to guide information that goes into an affidavit and it must be pure fact (no hearsay, unfounded allegations, opinion, etc.)
(Kennedy v Kennedy – see below)
Court can strike inadmissible portions from the affidavit, strike the entire affidavit if inadmissible portions are too intertwined throughout, OR court
may elect to merely ignore asserts of fact in the affidavit which offend the rule. (Kennedy v Kennedy)
Process:
Affidavit used in a proceeding must be filed (1)
Must be set out in first person (I…) (2)
Must show name, address, occupation of person swearing affidavit (2)
If you're an agent for a party, that should be stated in the affidavit. (2)
Must be divided into consecutively numbered paragraphs. (2)
May be in Form 109 (2)
Must set out in right hand corner name of person, sequence number, date (for identification). (3)
An affidavit is made when the affidavit is signed and the jurat is filled in.(4)
Rules exist for people who cannot read or see their affidavit, or who don't know English (6,7)
Exhibits: To attach documents to an affidavit to get them before the court, they are attached as an exhibit.(8)
o
Each exhibit is marked with letter “Exhibit A, B…”
o
Each attached exhibit must be identified in the affidavit, and the person making the affidavit must sign each exhibit
o
All exhibits must have numbered pages (10).
Every single exhibit referred to in the affidavit need not be filed, but must be made available for the use of the court and for prior inspection. Say
“the whole document of Exhibit B is not attached and is available at counsel's office for viewing”. (9)
Affidavit must state only what the person swearing or affirming the affidavit may state at trial (12)
Can make an affidavit to be used in a proceeding, even if the proceeding hasn't already started (15)
Kennedy v. Kennedy: Affidavits must only contain what could be stated at trial (Rule 22-2(12)).
Affidavits should state the facts only, and not opinions or descriptions of the facts, or opinions about the conduct of the other party or the party’s
views.
Objectionable portions of affidavits must be expunged for being:
o
Double hearsay: Hearsay upon hearsay – “Keith hold Kim that he loved Amy”
o
Irrelevant
o
Inadmissible opinion
o
Adjectival descriptions (adjectives to describe facts)
o
Subjective descriptions of reactions (“I was shocked”)
o
Unidentified witnesses
o
Opinions regarding motives
o
Arguments
Hearsay only admissible on interlocutory (non-final) application or by leave of the court as an exception to the hearsay rule.. If hearsay permitted,
the source of the info must be precisely set out.
24
-
Court can strike inadmissible portions from affidavits, or, where admissible and inadmissible portions are interwoven, to strike the whole affidavit.
OR, the court may elect to merely ignore asserts of fact in the affidavit which offend the rule.
Here: Application for summary trial (i.e. final decision based on affidavit evidence). Affidavit does not comply with evidentiary requirements for
application. Full of objectionable features such as double hearsay. Offending portions can be ignored – divorce order granted.
U (LM) v U (LR) (aka Ulrich v Ulrich) (2004, BCSC) – Affidavits – court provides guidance re: hearsay and contested issues in affidavits.
SCC provides guidance of presenting affidavit evidence that complies with SC rules and acknowledges difficulties parties have shown in presenting
evidence.
1. Affidavits filed in support of an interlocutory application may contain oral and written hearsay evidence.
a. Affidavit sworn on the belief of hearsay must reveal the source of the information and the deponent's belief that the facts contained in the
statement are true, and must state the relevant purpose of the information
2. Contested issues between parties:
a. If there are seriously contested issues of fact between the parties that depends upon credibility issues, parties may have to settle the issue
in trial and not be affidavit evidence.
b. If the facts as to the terms of a settlement agreement are not in serious dispute and the only issue is the agreement's legal validity, a
court apparently has the authority to decide the issue by way of a motion in the action based upon affidavit evidence.
Orders:
Order Made After Application: Form 35
After application, parties receive an order of the court
One counsel will draft the order and submit it to the court with the agreement of opposing counsel  all parties must approve the Form of the order
by signing the order.
Registrar receives the Form 35 and the reasons for judgment given. If they match, the registrar will sign the order.
Consent Order: Form 34
Consent order is made without a hearing and by consent– all parties sign the order, and the order is made.
Consent order can be submitted as application for an order made by consent.
o
Used for settlements, interim child support orders, orders to obtain documents
Signature of parties says not only do parties approve of the form of the order but that they consent to it on behalf of their parties.
Rule 13-1: Orders:
Order of court may be drawn up by any party (1).
o
Usually, it will be drafted by the successfully party (i.e. the party obtaining the order)
If the (draft) order is approved by the master or judge, the signatures of the other parties aren't necessary (2)
Order must be made in Form 34 for consent order, Form 48 if after trial, or Form 35 for any other order (3).
Order made by a single judge or maser is an order of tehe court (7).
Date of order is date when the order was pronounced, not the date of the hearing, and it takes effect immediately on that same date, not some
time in the future (8)
o
Order does not to be filed before it is valid.
Settlement rules (11-14): Party can file an appointment in Form 49 to settle an order, and must serve a copy of the filed appointment and a draft
order on all parties (12). An order must be settled by a registrar (11), and the court may vary the order as settled (14).
“Slip rule" –Rule 13-1(17: Court may at any time fix an order which contains a clerical error (ie: a minor technical error such as the number was
wrong in order, but it was right in court) if you resubmit the corrected order with a letter/promise explaining what went sideways.
o
This avoids having to go back to court, withdraw the order, ad put in a new order. Applies to
Opinions, advice and directions of the court: Courts typically give orders, but they may sometimes give direction or advice to parties termed “judicial
opinion/direction/advice”. These things have less weight than an order, but sometimes need to be documented. (18).
o
Judicial direction for is filed: instead of saying “the court order”, the form will say “the court directs”
Rule 13-2: Enforcement:
Often, people won't comply (immediately) with orders that are made. Order alone may not be enough if order is not complied with.
Rule 13-2 outlines the additional steps that may be taken to get enforcement of the order.
Rule 13-3: Subpoena to Debtor:
Another enforcement method where a party is supposed to pay money.
Subpoena: order of the court which requires a person to be present at a certain place or time, or suffer a penalty
Court can issue a subpoena to the debtor who owes the party money, and the debtor must attend an examination for discovery.
At examination for discovery, court will find out what assets the person might have so that they other party can collect the money.
25
EXPERTS
Part 11: Experts
Experts may be needed to give their opinions to the court if there is an issue at trial on which the court needs to be educated, and this education
requires specialized expert knowledge. Expert information must be necessary for the trier of fact to arrive at a conclusion  expert appointed to
assist the court by providing information that the trier of fact would otherwise not have at their disposal.
Expert must be qualified as an expert in the area in order to give their opinion.
Expert must not be an advocate for a particular party (no dueling experts). Duty to assist the court.
Versus Consultant: Do not need to comply with Rules to appoint a consultant.
Rule 11-2: Duty of expert witnesses:
(1) Expert had duty to assist the court through the provision of technical information, but must not be an advocate for any party.
(2) Any expert before the court must be aware of and in compliance with the duty placed upon them to be unbiased as an expert
o
Expert must sign certificate acknowledging that they are neutral and they have a duty to be objective.
Jayetileke v Blake (2010) – Expert not advocate (Rule 11-2)
Where expert violates his duty and becomes an advocate to one side, their testimony will be rejected as unreliable and is not credible. Experts must
respect their role of the court to assist the court.
If a party is aware that an expert has been branded as an advocate in prior cases and has a history of his evidence being rejected and his objectivity
being called into question, but calls the expert anyways, the party may be liable to pay costs incurred.
Expert was really an advocate for the defendant disguised as an expert:
o
Not qualified to give opinion evidence: not aware of his duties to assist the court, but is an advocate for ICBC.
o
Consistently discredited by the court
o
Expert report full of advocacy – it is an attempt to neutralize any opinions that support the plf’s claim rather than provide an objective
medical opinion, contains opinions beyond his expertise
o
Information is inaccurate, incomplete – so unreliable
o
Expert was argumentative, defensive, prone to rambling that was not relevant to the Qs
Appointment of Experts (3 ways)
1) Rule 11-3: Appoint of Joint experts:
o
Parties agree to appoint one expert to give evidence on a specific topic.

Issue is essential to the case, but cannot be a controversial issue (ex. valuation of property)
o
Not mandatory to have joint experts, but preferred by courts over other methods of appointment.
o
(1) Parties must settle certain matters before the joint expert is appointed (identity of expert, the issues to be resolved by the expert, the
facts and assumption, questions to be asked of expert, fees, etc.)
o
(3) If parties cannot agree on the matters in (1), the parties can apply for the court to settle the terms of the expert’s appointment.
2) Rule 11-4: Appointment of Own Expert:
o
Each party may appoint one expert to address each issue/question
3) Rule 11-5: Appointment of Court’s Own Expert
o
(1) Court can appoint their own expert where think they need an expert opinion to resolve an issue
o
(9) Court can charge the expert to the parties, even though the court requested the expert.
Expert Report: Rule 11-6
Expert must tender a report as evidence as trial.
(1) Report must be signed, must include certification required under Rule 11-2(2), and must include:
o
(1) Expert’s name, address, area of expertise;
o
(2) Qualifications and experience of expert;
o
(3) Instructions provided to expert;
o
(4) Nature of opinion sought and issues to which opinion relates;
o
(5) Expert’s opinion;
o
(6) Reasons for their opinion (i.e factual assumptions made, description of research done, list of any documents relied on)
Report must be delivered to all parties 84 days before the scheduled trial (3)
o
Parties must mutually exchange reports on an issue at the same time
Responding report to an expert report must be submitted to Court 42 days before trial (4)
If expert changes his opinion in a material way, expert must prepare a supplementary report and this must be served on all parties of record. (5, 6)
Expert must produce documents: Once a party has obtained the expert report, the party has a right to ask the other party for a written statement of
facts on which the expert opinion is based, results of any tests, data complied by the expert. This information must be made available to the
requesting party within 14 days. (8)
o
Ex. If expert’s opinion is based on tests can ask for the test results of the tests and the data.
o
Terms of reference: Questions the lawyer will ask the expert. Can be determinative of the expert’s answer by prompting responses.
Notice of the trial date must be given to the expert (9).
If a party objects to an expert report, the party must give notice of the objection 21 days before the date of trial (10)
26
927966 Ontario Ltd v Cogenix Development Corp (2000) – Expert Report
Fact that expert evidence was served in accordance with the Rules does not automatically ensure the report will be admissible.
R v Mohan  all expert reports must meet this criteria: Criteria to assess admissibility of expert evidence:
o
1. Relevance of opinion

Must be so related to a fact in issue that it tends to establish the fact
o
2. Must be necessary to assist the trier of fact to draw correct inferences – not merely helpful.

Must be specialized knowledge that the ordinary powers would not know that is necessary for the ordinary person to understand
the circumstances.
o
3. Absence of any exclusionary rule; and
o
4. Requisite qualifications of the proposed expert witness

Must be qualified expert.
o
Prejudicial effect must be outweighed by its probative value – consider if evidence is misleading, involves inordinate delay which is not
commensurate with its value.
Facts: Def applied to introduce new expert evidence after the trial had begun.
Held: Defendant can NOT lead the proposed opinion evidence:
o
Trial had already been delayed by 6 years, evidence only marginally relevant (not necessary), admitting new evidence in midst of
proceedings would undo pre-trial decisions and would allow def to manipulate and interfere with the trial process. No prejudice to the
defendant by excluding evidence.
Homolka v Harris: Experts
Expert’s qualifications and opinions should be narrow and specific
If an expert report is not necessary, it should not be omitted.
Here: Court of Appeal overturns TJ’s decision to admit engineer’s report. No clear if engineer has qualifications to make these expert determinations,
information is such that the judge could figure out own his own = it was common sense, and not necessary.
Rule 11-7: Expert Opinion Evidence at Trial
(1) Expert’s evidence will not be admitted unless an expert report that complies with Rule 11-6 has been submitted, and any supplementary info has
been prepared and served in accordance with these rules
o
(2) Must give notice within 21 days of receiving report that you want the expert who made the report to be examined at trial.
(3) Either party can demand that an expert whose report has been served uattend trial for cross-examination
o
Must convince other party or the corut to agree if you want to give less notice
(4) Costs: If expert was demanded to attend trial under (3) but the court determines that the cross-examination was not of assistance, the party that
requested the expert must pay the costs of the expert’s attendance.
(6) Court may allow expert to provide evidence even though the requirements have not been followed (i.e. notice not given within time period, report
not served in accordance to Rule 11-6) if new facts have been discovered, there is no prejudice in doing so, or if justice requires it  Court has
discretion to allow an expert to testify.
27
MANAGING THE CASE TO AND THROUGH TRIAL
CPC, Setting Trial Date, TMC, Trial Procedure
Case Planning Conference: Part 5
Gives client an idea of how the case is going to work and what the timing of the procedure will be by setting a timeline. Forces counsel to think
through the trial ahead of time – who the witnesses will be, where the evidence will come from, etc.
Not mandatory to have CPC.
CPCs are recorded, and the court can give a party a transcript of the CPC if there is no compelling reason not to and the other party does not object.
(Shen v Klasse)
When CPC’s used:
o
If disagreement is about process of trial, may settle with CPC.
o
Very complex case with many parties – CPC helps organize process and set out timelines and rules for the case.
o
If parties plan to deviate from the Rules (ex party knows they will need more than 7 days for discovery), hold CPC to plan for this.
Outcome of CPC: Judge will make an order to facilitate trial that is often based on client’s case plan proposal for how trial will proceed.
Rule 5:1: Requesting a Case Planning Conference
A party of record, after the pleading period has expired, can request a CPC (Rule 5-1(1)) or the court may order one (Rule 5-1(2)).
Party must serve notice of CPC on other parties of record at least 35 days before the date set for the conference. If it’s not the first conference, only 7
days notice is required (3).
Within 14 days after the notice of the case planning conference, both parties must file their case plan proposal and serve it on all parties of record
(5).
Contents of case plan proposal: Must contain: (6)
o
(1) List of discovery documents;
o
(2) Who will conduct examinations for discovery;
o
(3) Which dispute resolution procedures is desirable(usually negotiation);
o
(4) List of expert witnesses;
o
(5) Witness lists;
o
(6) Trial type, estimated length, and preferred dates.
When a CPC is requested, parties must set out in a case planning proposal everything that will happen during the course of the action (when pleadings
occurs dates for discovery). Dates are set for each matter – this simplifies the trial.
Rule 5-2: Conduct of Case Planning Conference:
Conference conducted by judge or master (1).
o
If judge is seized of the matter (is in charge of entire case), judge will hold the case planning conference.
Who attends: Each lawyer representing the party of record, or the party of record if the party is not represented or the court demands it, must attend
the first CPC in person (2)
Subsequent CPCs can be held by phone or in person (3)
If a party fails to attend a CPC when they were required to attend, the judge or master can proceed without that person,
Rule 5-3: Case Planning Conference Orders
At conclusion of CPC, judge or master must make a case plan order (Form 21) (4).
Judge/master can make many types of orders that facilitate and simplifies the trial process
o
Judge may set a timetable for steps to be taken, set a trial date, trial place
o
Amend a previous order or pleading to provide details of the facts
o
Make an order respecting the pleadings, discovery, production, exchange of documents, witness lists, offers to settle, etc.
Prohibited orders: Judge/master CANNOT make final order for judgment, cannot hear an application supported by affidavit evidence (2)
o
Except under (6) - failure to comply with the Rules, then court can make final order
Order usually is based on the CP proposal.
A party may have more than one CPC
Trial Management Conference Rule 12-2
Purpose: To narrow the issues between parties by setting them out in the Trial brief, to give the parties an idea of how prepared they are. Important
to determine who much days of trial will be required for trial and ensures there will be no surprises.
Must be scheduled and attended at least 28 days before scheduled trial date (1)
Conducted by judge, preferably the judge who will preside at the trial (2).
Trial brief must be filed at least 7 days before the TMC and served to all parties of record (3).
o
Form 41 filed at TMC goes to trial judge. Form sets out issues, witness list, list of documents and exhibits that will be relied on and
tendered at trial, list of expert reports to be relied on, case authorities, time required to cross-examine each witness, the order you intend
to proceed at trial
o
Issues in dispute are summarized and client’s position on each issue is stated.
o
Witness list: A party cannot add witnesses to the witness list unless notice has been given to the other side ( Rule 7-4)
o
Documents: A party should notify the other side if additional documents or exhibits are being relied on, but this is not required.
Who must attend: (4)
o
Each lawyer representing the party
o
Each party of record
28

-
-
(5) Exception: Party of record need not attend TMC in person if represented by a lawyer and is available by telephone during the
TMC.
Failure to attend: If a person required to attend a TMC fails to attend, the judge may proceed without that person, adjourn the TMC or order that
person to pay costs (7).
Orders: Rule 12-2(9) is list of orders judge may make – broad power
o
Many of these orders are procedural in nature and can be based on the representation of counsel without requiring evidence

Amending pleadings: Can be done at TMC, can also be done at trial. Party must provide a draft of the amendments specifying
how the notice of civil claim will be amended.
o
May make orders regarding how the trial will be conducted – granting access to documents, determining whether evidence can be given by
affidavit, making a plan for how the trial is conducted, admitting a fact, imposing time limits, directing
o
Any other matter to make the trial more efficient and to aid the resolution of the proceeding, and further the object of the Rules
Prohibited orders: TMC judge cannot hear an application for which affidavit evidence is required, or make an order for final judgment (11)
o
Issues requiring evidence by affidavit must be settled at a separate chambers application
o
If TMC begins and it is discovered that the application does require evidence by affidavit, but the affidavit had not been filed, the Judge
cannot hear the application at the TMC – application will be dismissed (Vernon v BC)
Joint Book of Documents
Counsel agrees which documents would go before court and one counsel puts them together in a book – each document must be agreed to
Need two copies of the documents: one for the judge to have in front of them, one for the witnesses to have in front of them.
After trial brief Form 41, both parties know which documents will be called/used.
Must put reasons for which document is in (ie: agreeing that documents are authentic; agreeing that documents are true)
Options when witness says that they will be unavailable/isn’t going to show up to your trial:
1. Ask for adjournment of a trial – if witness so important that they are necessary for trial
2. Release the person from the subpoena – find a different way to get the evidence in, or forego the evidence
3. Insist that the witness attend trial
Important to determine witnesses pre-trial at TMC so parties can make arrangements if witness won’t be there
Getting to Trial
Rule 12-1: How to set a Trial:
Notice of trial: Either party can file the notice of trial in Form 40 to set a proceeding for trial (Rule 12-1(2)).
o
Notice must include the date set for trial. If date not set in case plan order for trial from TMC, trial date must be obtained from registry (3).
o
Get from court registry available dates for trial. Then get in touch with the other side to see what dates work for them and fill out the form.
Once date is agreed up, file notice.
o
If a party has made reasonable efforts to get in touch with the other side to set a date but there has been no agreement, nothing prevents
a party from unilaterally obtaining a trial date.
o
Party who files notice must pay hearing fees.
Once filed, notice must be served to all parties of the record (Rule 12-1(6))
If a party objects to a trial date, that party has 21 days to either request case planning conference or make application to court to reschedule the trial
(Rule 12-1(7)).
Court has authority to adjourn the trial, or fix a trial date for the entire proceeding or an issue in the proceeding (Rule 12-1(9)).
If parties settle or something affecting the length of the trial changes, the registry must be notified (Rule 12-1-10)).
Rule 12-3: Trial Record:
Party which files notice of trial must file a trial record which contains: the pleadings, particulars served, case plan order; any order related to the trial;
any document required by registrar (1).
o
Trial record will be bound book with tabs and indexes, and will state the pleadings for every stage.
Filing party must file the trial record at least 14 days before but not more than 28 days before the trial date, and provide a copy to all other parties of
record (3).
Rule 12-4: Trial Certificate:
Each party of record must file trial certificate with registry at least 14, but not more than 28, days before scheduled trial date (1,2)
o
If both parties fail to file trial certificate, the trial is removed from the trial list and parties lose the trial date (5).

NOTE: Can get around having to apply for an adjournment by having both parties fail to file if parties wish to do so.
o
If only one party files, the trial proceeds.
Certificate must contain four statements: (3)
o
(1) that the party filing will be ready to proceed as scheduled;
o
(2) that the party has completed all examinations for discovery they intend to conduct;
o
(3) party’s current estimate of the length of the trial;
o
(4) statement that the trial management conference has been conducted.
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Rule 12-5: Evidence and Procedure at Trial:
No evidence/insufficient evidence motions:
Failure to prove a material fact at trial (Rule 12-5(3)):
o
If a party omits or fails to prove a material fact to their case (no evidence/insufficient evidence), following delivery of the verdict, the judge
may re-open the case, hear further evidence and make findings of fact in order to prevent a miscarriage of justice.
o
Party who applies for permission to introduce new evidence after a trial has closed must show that the new evidence came to the
knowledge of himself or his lawyer for the first time AFTER the trial was over, and that with reasonable diligence it could not have been
discovered sooner, and evidence must be such that if it had been brought up at trial it probably might have altered the judgment.
No evidence application (Rule 12-5(4)): At end of plaintiff's case, defendant may apply to have the action dismissed on the grounds that there is no
evidence to support the plaintiff’s case.
o
Judge must not evaluate the quality of the evidence, but must determine if there is a lack of any evidence that addresses the legal issues
and to satisfy a jury that the facts sought to be proven are established (Roberge)
o
Defendant does not need to call his own evidence to make a no evidence application.
o
Plaintiff has failed to call evidence on an essential ingredient of the case such that any judgment would be wrong in law

Ex. Negligence case – plf has failed to prove one of the essential steps to prove negligence. (Roberge v Huberman)
Insufficient evidence motion (Rule 12-5(6)): At close of plf’s case, def may apply to have the application dismissed on grounds that the evidence is
insufficient to make out the plf’s case. There is some evidence, but not enough for the plaintiff to succeed.
o
Defendant must elect not to call evidence to apply under Rule 12-5(6) (7).
o
Test for whether there is sufficient evidence for plaintiff to succeed: In response to motion, plf must prove: (Robinson v Robinson)

1. The establishment of a legally required rebuttable presumption

2. Plf has produced enough evidence to allow the fact trier to infer the fact at issue and rule in the party’s favour
o
Court must weight the evidence to determine if there is sufficient evidence to establish a prima facie case on the facts (Robinson)
Evidence used at trial:
Notice to produce documents: Party of record may file a notice at least 2 days before trial requiring any other party to bring any documents in the list
of physical object in their control to the trial. (Rule 12-5(8)).
Exhibits: If a document is tendered as an exhibit, each page must be numbered sequentially. (9).
o
No exhibit can be introduced unless the other party has been given the opportunity to examine it at least 7 days before trial (10).
o
Exhibits are documents from the book of documents that have been put into evidence as trial – it is then listed as an exhibit.
o
At trial, lawyer will ask witness on the stand to identify a document. Document will then be introduced as an exhibit.
o
Court will keep exhibits until the end of the appeal period. At that point, the court will send you a notice letting you know that you can
come pick up the exhibits (12).
Disposition Evidence: Transcript or video recording of a disposition can be used as evidence as trial, and the witness may be required to testify orally
at the trial. (40 – 45)
Discovery Evidence: Party can use exerts from the examination for discovery – can “read in” key points to help prove client’s case at trial (46)
o
Evidence given at the examination for discovery can be tendered as evidence at trial. Any person whose evidence was taken at discovery
may be required to attend trial (48), and the court may consider the entire examination for discovery as evidence (49).
Pre-trial examinations (52):
o
Can use evidence from pre-trial examination to impeach or contradict the witness, or if necessary in the interests of justice because the
person is dead, sick, out of jurisdiction (unable to attend trial) (52)
o
Cannot use this evidence for the truth of its contents – only to impeach or contradict
Affidavit evidence: (59): Evidence may be given by affidavit. If a party seeks to rely on affidavit evidence, he should make an application prior to trial.
o
Any party may call al witness for cross-examination at trial on the affidavit evidence (61), and this cross-examination is not limited to
matters contained in the affidavit (64).
Witnesses:
Adverse witness:
o
A plaintiff may need to call an adverse witness (ie: the defendant) to make their case. If you're going to call them, you must serve a notice
on the party at least 7 days before trial date (Rule 12-5(21)).

S. 20 can be used not only where the evidence cannot be proven in any other way, but also where an adverse party would be an
effective way to prove a party’s case, and counsel should not be deprived of this option (Dawson v Tolko).
o
Recipient may make motion to set notice aside on the grounds that the adverse party is unable to attend, their evidence is unnecessary, it
would cause hardship on the adverse party to attend trial (23).
o
Court may make an order to set aside notice if defendant makes a case under Rule 12-5(23) (24).
o
Once adverse witness is on stand, adverse party may be cross-examined immediately without asking preliminary questions and without an
examination in chief. Entitled to cross examine the witness generally on one or more issues (26)
All witnesses must be on the witness list – party cannot lead evidence unless the witness is listed (28)
All witnesses must testify orally in open court (27)
Subpoena rules (31): A party of record may prepare a subpoena and serve it on any person, and this person will be compelled to testify as a witness
at trial
o
An order of the court is not necessary to file a subpoena (33)
o
A person served with a subpoena may apply to the court to set it aside (39)
In examining witnesses, you may (29)
o
Use leading questions
o
Refer witness to previous statement they made
30
o
o
Ask witnesses as to their interests in the outcome of the proceedings
Ask questions about relationship between witness and a party
Trial Procedure
Trial of one question before others: The court may order 1 or more Qs to be tried or determined before the other Qs (67)
o
Sometimes one issue must be decided to decide the next issue. Ex personal injury case – must decide who is liable, then must decide
quantum of damages flowed.
o
Must be exceptional and compelling reason to depart from general practice of trying all issues at once. Must be more than convenient.
Different modes of trial: (68): Different facts can be determined by different modes of trials in the same action (ex 1 judge alone, judge and jury)
Evidence of particular facts: Court may order that evidence of a fact or document be presented in any manner (under oath, by document, by copies
of document (71).
Order of speeches (72): Rules for order of speeches: Party on whom the onus of proof lies opens the case, opposing party may then open his case, at
the close of the evidence, the party who began may address the jury, and then opposite may then address the jury, etc.
o
In a case with a shifting burden of proof (plf has initial burden, the def has burden regarding the question to be tried), must consider trial
fairness and convenience in determining which party will begin (Vernon v BC)
o
Normally the plaintiff will begin – fairness normally demands this, plaintiff normally has onus.
Failure to attend:
o
If no party is in attendance when the trial is called (nobody shows up), the action is struck off the trial list (75)
o
If one party is there, the court may proceed with the trial in the absence of that party (76).
o
Court can set aside a verdict if the party does not attend trial if the party can show why they were unable to attend (77).
Jury Trials Rule 12-6  Party may require trial by jury, see below
COSTS
Purpose of costs:
1. Indemnify parties from legal expenses
2. Encourage settlement (by awarded greater costs if party refuses to accept offer to settle)
3. Control conduct – awarded special costs if party misbehaves, encourages good behaviour.
Rule 14-1: Costs
(9) Costs must be awarded to the successful party unless the court orders otherwise
General Rule: Whoever wins the case will be awarded costs – other party must pay the winning party
Costs = taxable costs + disbursements (for expert reports, filing fees)
2 types of costs:
1. Party and Party Costs: Costs as between parties as set out in the tariff as calculated in Appendix B
o
(1) How costs are assessed: Costs are assessed as party and party costs in accordance with appendix B

Amount of money to be paid is determined according to a tariff set out in Appendix B of SC Rules. Each matter/item of the
litigation is given a number of units (1-10) based on the amount of time this matter took. The fixed number of units is multiplied
by a dollar value, and this is the amount the client will recover for costs.

Costs may include units for correspondence, investigations made before the proceedings, entire litigation process.

More units will be claimed depending on the time spent and the value of the claim, the amount of documents for the
matter (ex. more units for a motor vehicle injury claim if a brain injury is involved than a routine prosecution).

Normal way to calculate costs
2) Special Costs: One’s actual legal expenses – the actual cost of the litigation is paid for
o
(3) Special Costs: On assessment of special costs, a registrar must (a) allow those fees that were proper to conduct the proceeding, and (b)
consider all the circumstances:

Complexity of the proceeding, skill of the lawyer, the time spend conducting the proceeding,

Importance of the proceeding, Benefit to the party,

Conduct of the parties taken to shorten the proceeding,

Rule 1-3 (i.e. the importance of a just and speedy litigation
o
Parties agree to an award of costs. If unable to agree, the registrar will calculate the costs considering all the circumstances
o
Court will consider whether there has been any “reprehensible” conduct in assessing whether to award special costs

If fraud, lawyer’ dishonesty, client has wasted court’s time through overly lengthy speeches and by calling unnecessary witnesses,
Court may award special costs to the other party.

If a party wastes the court’s time, the party will be ordered to pay special costs (Blake)
o
Court may award costs when a party misbehaves to penalize an unreasonable litigant: If a party wastes the court’s time, the party will be
ordered to pay special costs (Blake)
o
Where very serious bad conduct is alleged, if the plaintiff loses, special costs will be awarded (Blakes)

Ex If party is sued for fraud but no fraud is proven, that party will likely be awarded special costs (serious false allegation)
o
Registrar will award costs on Scale A, B or C, depending on the circumstances.
o
Special costs in certain kinds of litigation:

(16) In estate litigation, these are to be assessed as special costs.
Costs may arise from an improper act or omission by a party. If a party acted improperly or unnecessarily, the court may order that this party is not
allowed costs relating to their act or omission, or that this party pay the costs incurred by the other party from the act or omission (14).
Disbursements: (5): Party can include disbursements in their claim as part of the costs (i.e. the amount the party paid to file the claim)
Party may make a claim for taxes to be added to costs
Court has discretion to change the amount of costs awarded, or to order that neither party receive costs.
Small Claims Litigation: Rule 14-10: If plf brings a proceeding in the Supreme Court when it should have been brought in Provincial Small Claims Court,
the plaintiff will not be entitled to recover costs other than disbursements.
31
o
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-
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UNLESS the court finds there is sufficient reason for bringing the claim in the Supreme Court.

Ex. Plf honestly believed they had a larger claim for more money but in the end the claim was for less

Ex. Plf went to SC because it would be faster than having to wait for PC ((may be sufficient argumen)
Costs are payable at the conclusion of the proceeding unless the court otherwise orders (13).
o
Once trial is finished, party will make demand for costs.
o
Costs are supposed to be paid immediately, but this often does not occur.
Payment of costs:
o
The party who is entitled to the costs puts together a “bill of costs” – Form 62 (20)

All tariff items, number of units claimed, disbursements, taxes
o
Bill of costs is sent to the other party, who will examine it
o
If parties consent to the amount due under the bill, the bill is filed in the court registry and it becomes part of the judgment. (28)

Bill is then like a court order that can be collected.
o
If arties cannot agree as to costs, the registrar will determine what is reasonable, and make an order as to an amount of costs payable. Bill
then filed in the court registry, party given a certificate of costs (27).
Client still must claim the costs after order is made. Part paying costs may not have the money readily available – so might cost you more costs to
collect costs.
Security: During the course of litigation, if a party suspects the other party may not have enough money to pay you costs if you succeed (they are
impecunious), the party can make an application for security of costs (Rule 14)
o
Court will order that party to post a certain amount in a trust account until the end of the proceeding, and that party will be unable to take
further steps in the litigation until they post the security. Court may dismiss the action if party fails to post security.
o
This way, when proceeding is finished, the party who wins will at least get the security if they win.
o
Court must balance right to access to justice with party’s right to payment
 Be able to explain to client what it means to get your costs, how you figure this out, what it means to get costs if you are successful (don’t get
everything paid for even if you win)
Rule 9-1(c): Offer to Settle
(1): Any offer to settle may be brought to the attention of the court in determining costs; (4) court may make special order for costs in light of a
rejected offer to settle.
o
At the end of trial (not during), a party can state that they had made a previous offer to settle that was rejected, and so now they deserve a
greater award for costs because they attempted to avoid the litigation.
(5): Cost options: Court can deprive a party of any or all costs and disbursements; court can award double costs for the steps taken in the proceeding
by the party who offered to settle after they made the offer to settle
Rule 9-1(6): Court has board discretion to consider many factors in making order with respect to costs – discretion to accept why costs should differ
from usual amount. (whether the offer to settle was reasonable, the relationship between the offer and the final judgment, the financial
circumstances of the parties, any other factors)
o
Blakes: Court considered defendant’s behaviour and awarded costs to plaintiff even though defendant was successful party (wasted court’s
time, brought in an expert branded as an advocate).
(7): Costs for settlement in Small Claims Court: Plf who accepts an offer to settle for a sum within PC Small Claims Court jurisdiction is not entitled to
costs other than disbursements.
Advice to client re costs/offers to settle: See above
Jayetileke v Blake (2010)
Special costs may be awarded where, in a proceeding, a party misbehaves in a manner that deserves reproof or rebuke
When party receives an award of damages less than a previous offer to settle, the other party can make a claim for more costs due to the
increased expense from their rejection of the superior previous offer
Even though the defendant would be entitled to costs because he had offered to settle for more than the final judgment, special costs awarded to plf
because of def’s conduct in calling expert:  liable for costs incurred because he called the expert anyways, despite having been branded as an
advocate – Party wasted court’s time.
Aschenbrenner v. Yahemech: When costs exceed the award
Where there is sufficient reason for a claim to be in the Supreme Court, the fact that it was brought in Provincial Court will not bar recovery of
costs greater than disbursements.
o
Here: Sufficient reason to go to SC because an defamation/injunction claim can only be brought in SC, so the plf is entitled to costs for SC as
well.
A party receives costs when they were “substantially” successful in their action. While trial judge has absolute discretion over costs, he should try to
keep in line with this policy: generally, see if party was 75% successful as standard for “substantial”
Where costs exceed the award, the court will look at various factors including hardship, earning capacity, conduct to decide whether to grant them.
ALTERNATE DISPUTE RESOLUTION PROCESS
Methods to settle disputes short of trial: Summary trial, Judicial Settlement Conference, Mediation, Arbitration, Negotiation, Offer to Settle
Summary judgment and default judgment settle issue by having judge make judgment or dismiss a claim
ADR mechanisms are applied with the object of the Rules in mind – goal of achieving resolution as quickly and inexpensively as possible, but still
ensuring justice.
Rule 15-1: Fast Track Litigation:
May use fast track litigation if: (1) the only claim in the action is money less than $100,000; (2) trial will take less than 3 days; (3) parties consent
(5): these rules apply over any others, in case of conflict
32
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(11): Examination for discovery may not exceed two hours (parties must coordinate).
No notices of application can be filed unless there's been a trial management or CPC
(9): Judge can relieve requirement of a case planning conference if a party has urgent circumstances or it would be unfair or impracticable to do so.
(13): if party to fast-track action applies for trial date within 4 months of rule being applicable to motion, the registry is supposed to give a trial date
not more than 4 months later than when you apply.
All actions must go through trial management conference in advance of a trial. If the judge at this conference decides the trial will take more than 3
days, judge can adjourn trial to a different date.
(15): Maximum costs are set based on length of hearing
How to obtain judgment from court without a conventional trial
Default judgment, summary judgment, and summary trial: all result in judgment, but do not require trial with witnesses.
1) Default judgment:
Rule 3-8: Plaintiff may apply for default judgment if the other party does not file a response to the notice of civil claim. Plaintiff is thus uncontested.
2 preconditions:
o
1) No response has been filed to notice of civil claim
o
2) Time limit has expired for filing response to notice of civil claim
If claim is only for the recovery of money (debt), can obtain default judgment.
May ask for default judgment with damages to be assessed if it is contentious as to how much money is owed. Will have to go to second appearance
to assess damages.
2) Summary Judgment:
Rule 9-6: Summary Judgment
See above
3) Summary Trials
Rule 9-7: Rule with respect to summary trials:
Alternative to conventional trial with trial conducted based on affidavit evidence. No witnesses give evidence on the stand – all evidence is in written
form. Yes issues to be tried, but a party feels that the trial/issue can be decided on affidavit evidence without requiring witnesses.
Evidence gets in via: (1) affidavit; (2) answers to interrogatories; (3) evidence taken from examination for discovery; (4) admission under Rule 7-7; (5)
expert report (Rule 9-7(5))
Case may be heard by summary judgment if the case is:
o
Contested matter – a response to the civil claim has been filed
o
Third party proceeding where a response has been filed
o
An action by way of counterclaim
Either party must apply to the court for summary judgment on an issue or generally via notice of application (2). Application follows same rules as
rules for bringing a notice of application (4).
o
Applicant must also serve every document that will be relied on that has not already been filed (8).
Summary trial application must be heard at least 42 days before scheduled trial date (3)
Adjournment or dismissal (11): On hearing the application court may: (1) adjourn summary trial application; or, (2) dismiss application on grounds
that (a) issues raised are not suitable for disposition under rule or (b) because application will not assist efficient resolution of the proceeding.
o
Court will consider whether this case is suitable for disposition under Rule 9-7 by asking how this will help for the speedy and efficient
resolution of the trial.
On or before the hearing: Possible to request cross-examination of an affidavit (12).
o
Judge/master make an order to allow parties to file and serve additional affidavits to rely on, or may require a party to prepare a brief (13).
This judge/master is not then required to hear the evidence of the subsequent application (14).
On hearing summary trial application, court has 3 options (in addition to adjourning under (11) (Rule 9-7(15)):
o
(a) Can grant judgment in favour of the party UNLESS

(i) the court is unable to find the facts necessary to decide the issue based on the evidence or

(ii) it would be unjust to decide this issue based on summary application
(b) Impose terms on how to enforce the judgment – when payment must be made, etc
(c) Award costs
If court does not grant judgment under summary trial, the applicant may not apply again. (16) must either go to conventional trial or any other
alternative dispute resolutions.
o
Court can order that the parties attend a CPC, that an order be made under Rule 5-3(1), or make any other rder to further the object of the
Rules (speedy and efficient trial) (Rule 9-7(17)).
If summary trial is successful, a conventional trial may be avoided
Credibility of written evidence: If there is a conflict in the evidence between both parties on the facts (issue of credibility), the application can still be
heard by summary trial if the judge can look to other evidence (discovery, affidavits) to find the facts necessary to determine the facts.
o
But if judge is unable to resolve issue based on other written documents, must not proceed with summary trial
33
Chu v. Chan: Problems with summary trial – no access to justice; rules set for summary trials
 Judge give his views on how a summary trial cannot replace a conventional (i.e. perfect) trial, sets rules for when a summary trial is reasonable.
Judge says that trials used to be must more efficient in the 1970/80s, but now the process is very long with long gaps between the trial application
and the trial occurring and bumping of trial dates.
o
Written decisions used to be much shorter, cases were less complex
Summery trials provide a faster alternative to the conventional trial.
Judge discusses problems with summary trials: access to justice
o
Summary trial not perfect trial – no cross-examination of affidavits and no built in way of testing evidence, no formal ruling for whether
affidavit is admissible (all affidavits are admitted). Affidavits do not properly reflect the deponent’s own words, but rather are the drafter’s
interpretation and may include hearsay.
o
Conventional trial: evidence comes in issue by issue, so judge can question and assess each witness. Summary trial deprives the judge of
these important safeguards to reach a just result f.
o
More work for judge to decide matter under summary trial – more filtering through affidavits, more shifting through evidence to determine
if there is hearsay.
Judge says that the same result as a conventional trial cannot be obtained by summary trial, and that it is wrong to offer a second-rate trial to the
public.
Here: Summary trial proceeding, but 800 pages of material for the judge to shift through. Application dismissed because this case is unsuitable for
determination by summary trial due to large volume of material.
o
Would be unjust to try such a complex issue by summary trial – witnesses must be cross-examined, conventional trial thus necessary.
Judge sets rules for summary trials:
Not absolute rule; but guideline for counsel to decide whether to apply for summary trial. Average page limit at 75 pages is more reasonable.

Pleadings should be no more tan 5 pages

Affidavits and exhibits should be max 20 pages per party

Outlines no more than 10 pages per party

Photocopies of rules/cases should be no more tan 30 pages per party
Inspiration Management Ltd v McDermid: Factors considered by chambers judge to allow summary trial – yes justice can be achieved
 Summary trials contain sufficient safeguard to allow justice to occur despite imperfections
Summary trial is a matter of shortcutting: we need a quicker way to dole out justice which may be imperfect
o
While every effort must be made to ensure a just result, the volume of trials and the urgency of applications will not always permit the
luxury of a conventional trial.
Summary trial is not intended to be a full trial with all the same rights and safeguards. Intention is to have a speedy and inexpensive trial, and this
comes at the cost of a loss of perfect justice (cannot test evidence, etc).
o
Despite being imperfect, summary trials have sufficient substitute safeguards for justice to allow a fair trial, such as the requirement to
give notice and the fact that the chambers judge will not give judgment if there is not sufficient evidence to determine the facts or the law.
o
Judge’s common sense will ensure justice occurs.
Chambers judge can decide whether it would be unjust to give judgment based on considerations of:
o
Amount of money involved,
o
Complexity of the matter,
o
Urgency of the matter,
o
Prejudice likely to arise by reason of delay,
o
Cost of taking the case forward to a conventional trial in relation to the amount involved,
o
Course of the proceedings and any other matters which arise for consideration on this important question.
Both parties need not agree that a summary trial is appropriate for application for summary trial to be made
Counsel must bring an appropriate measure of skill to substance and form to documents
o
Counsel must be able to take judge through all the information
o
Serial affidavits should be avoided
o
Inappropriate to throw up volumes of applications that the judge would have to shift through
NOTE: Ways to obtain settlement without civil procedure (i.e. without jury trial):
1. Mediation: find mediator under regulations (below)
2. Judicial Settlement Conference: Call trial coordinator and ask fro list of JSC.
3. Party may offer to settle, other side accepts
4. Arbitration
5. Negotiation between parties – direct talk
Judicial Settlement Conferences
Rule 9-2: Settlement Conferences
At any stage in the action (usually before trial), a judges may direct parties to attend a settlement conference, and the parties must attend before a
judge or master who must, in private and without hearing witnesses, explore all possibilities of settlement of the issues (1)
Judge acts as mediator - clients and lawyers attend, go through mediation process and explore possibilities of settlement.
JSC is free, versus mediation which is expensive.
Any party may request a settlement conference.
Judge will consider how close the issues are to being settled in determining whether to order a settlement conference. If there is no chance of
resolution, will not order.
34
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o
Will also consider the will of the parties to settle, the skill of the judge
Proceeding must be recorded – can be available to parties by court order (2)
Judge presiding at settlement conference must not preside at trial unless all parties consent (3)
If unsuccessful: Trial process will resume and trial date will continue to apply as set.
Lawyers must present the option of settlement conference to their client.
Mediation
Litigation  arbitration  mediation negotiation
BATNA: Best alternative to a negotiation agreement – if parties unable to negotiate, must always ask whether the mediation is an appropriate
mechanism, if the timing is right
Timing: Mediation used to occur right before trial, now they occur earlier if sufficient evidence is available. Resolving case by early date will save client
time and money.
Mediation goes to Rule 1-3: Just and speedy determination of the issue
5 features/devices a skilled mediator will use:
1. Go to the balcony: Take a break before you react if you have an immediate responsive reaction. Reflect; maintain intellectual control, do not fall
into responses that are triggered by anger.
2. Step to their side: Put yourself in the other party’s shoes, acknowledge their problem, and at the same side protect your client’s interest
(acknowledge problem but do not acquiesce)
3. Reframe: After carefully listening to other party, restate what they said and try to describe it in a way that composes a concept of the problem that
they accept. Discuss issues with other party without saying they’re wrong.
4. Build them a “golden bridge:” Build bridge for other party with options and alternative designed specifically for them, hope they will cross bridge.
5. Use power to educate: once other party is on the bridge, you have established a level of power.
Notice to Mediate: Procedure to obtain mediator without civil procedure:
Regulations of the Law and Equity Act
o
Look at regulations to find a mediator. Determine available dates, how much he charges, tell him the details of the issues of the case and
the names of the parties and lawyers.

Add mediator to list of proposed mediators to the other side.
Specific regulations for family, construction as well as general
Sets out how to compel parties to mediator, select mediator, timelines etc.
Offer to Settle:
Rule 9-1: Offer to Settle
Offer to settle: Is made in writing, served on all parties of the record, and contains the sentence “The parties reserve the right to bring this offer to the
attention of the court for consideration in relation to costs after the court has pronounced judgment ton all other issues in this proceeding” (1)
Fact that offer to settle has been made must to be disclosed to the court or jury until after all issues in the proceeding, other than costs, have been
determined (2).
Costs: Court may consider offer to settle when exercising its discretion in relation to costs (4). (see costs)
Injunctions:
Rule 10-1: Detention, Preservation and Recovery of Property
Can obtain order to recover or preserve property (1)
Court may authorize a person to enter onto any land or building to carry out the order (1)
Party can bring application for preservation of property, and court can order that the property be taken into custody.
Process:
o
Applicant must file notice of application, set out facts and legal basis of claim. Bring affidavit and evidence.
o
Must convince judge that this remedy should be granted to your client.
o
If successful, you will get an order that says who the supervising solicitor will be, what happens to anything that is seized, how they can get
it back etc
Court order will include right to go in to property and who will retrieve property
o
Ex if information is in a computer, would get a forensic computer specialist to search through the home to locate computers/discs
Once order is obtained, party can go obtain the property/information from someone else’s home
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Rule 10-4: Injunctions:
Order of the court to prevent a party from doing something that they are doing. Can be made as separate application for injunction, or can be
included as part of notice of civil claim (and will be in main part of action). Usually comes up at initial client meeting.
Application for pre-trial injunction may be made regardless of whether an injunction is included in the relief claimed. (1)
Injunction can arise at any time during proceeding:
o
Application for pre-trial injunction may be made before the start of a proceeding, and an injunction may be granted on terms providing for
the start of the proceeding (2)
o
Application for pre-trial injunction may be made without notice, and the court may grant an interim injunction (3)
o
Application may be made after judgment to restrain another party from the repetition of the wrongful act (6)
Injunction may be imposed by order of the court (4).
To get an injunction, applicant must make an undertaking to abide by any order the court may make to pay damages (include it with the affidavit) (5).
NOTE: Must be strong evidence to receive a pre-trial injunction: asking for order to have a party stop what they are doing when the trial for this hasn’t
occurred yet is basically deciding the case before trial.
CBC v CKPG: Test for granting pre-trial injunctions:
2-prong test for court to grant an interim (i.e. pre-trial) injunction:
o
1) Applicant must prove there is a fair question to be tried
o
2) Must establish that a balance of convenience favours granting the injunction
Consider and find the ultimate balance between a variety of factors (balance of convenience test):
o
Adequacy of damages as a remedy – why prevent somebody from doing something if you can quantify the damages in a monetary amount
o
Likelihood that if damages are awarded they will actually be paid
o
Preservation of contested property
o
Whether harm from refusing to grant injunction would be irreparable – ie, damages not adequate because reputation will be harmed.
o
Who was the party who altered the balance of the relationship
o
Strength of applicant’s case
o
Factors affecting public interest – ex. Protest on sidewalk prevents people form using space freely
o
Other factors affecting the balance of justice and convenience
Assess all the relevant factors in one unified context to reach an overall conclusion in the balance of convenience test for where the balance of
convenience lies (not checklist, may be other factors).
Consider previously decided cases as a guide for whether injection should be granted, but there is no one set of prescribed circumstances, and rules
must be flexible.
NOTE: AG BC v Gitan: 3 prong test to grant interim injunction including “is there irreparable harm”.
o
This often included in balance of convenience test.
o
Clear proof of irreparable harm not required – simple doubt as to the adequacy of damages is enough.
Third Party Claims – Method for defendant to relieve himself from liability by make 3P liable.
Rule 3-5: Third Party Claims
Pleading of the court
Usually arises in three different circumstances:
o
1) Defendant says they didn't cause the problem but it was the fault of a party not yet part of the litigation, who should be liable instead.
o
2) Defendant accepts liability but claims right to indemnity from third party.
o
3) Motor vehicle personal injury matters: defendant does not have insurance and ICBC steps in to provide coverage to plaintiff.
Process: After defendant has filed a response to plaintiff’s notice of civil claim, the defendant files a third party notice in form 5, which sets out the
claim against the third party. Third party then files a response.
o
Third party need not be party to the original action to be pursued (2).
Defendant may file third party notice at any time with leave of the court, or without leave of the court within 42 days after being served a notice o
civil claim or counterclaim (4).
o
Party must serve a copy of filed third party notice and a copy of the filed pleadings within 60 days after the date on which the third party
notice is filed (7)
Time frame for response to notice follows same time frame as response to notice of civil claim (21 days in Canada, 21 days in USA, 45 days outside)
(3).
If the third party files no response, can apply for default judgment.
Civil Jury Trials
Ethical issues: Civil lawyers have duties to their client, other lawyers, and the court:
Duty to their client to be advocates to the client
Duty to other lawyers to act in a decent manner, avoid sharp practice, be courteous
Duty to court as an officer of the court - honesty, accurate in descriptions of facts and the law
NOTE: Factors to consider in deciding whether to require trial by jury or judge alone:
Having a jury trial requires two parts: filing notice and paying fees.
If you don't want to have a jury and you haven't paid your fees, you are not locked in to trial by jury and can cancel
BUT, If you've paid, you must apply under Rule 12-6(5) to prove why the trial should be heard without a jury.
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So be careful about decision, because after fees are paid, it’s hard to take back!
Rule 12-6: Jury Trials:
 Civil jury trials governed by Rule 12-6)
Jury trial Prohibited: Trial must be heard by the court without a jury If the trial relates to certain matters (2)
o
Ex. Administration of the estate of a deceased person, the dissolution of a partnership, mortgage foreclosure, the execution of trusts,
specific performance of a contact, the custody of an infant
o
Mandatory provisions for trial without jury apply only to the issue to be tried (must be the central issue of the case). Otherwise, jury trial is
allowed.
Commencing a civil action by trial by jury trial: Cause of action and deadlines the same as for trial without jury
o
Difference for jury trial: Must say you want trial by jury
Filing Jury Notice: Party may require that the trial be heard by jury by filing and serving a notice at least 28 days before trial (3).
o
Use Form 47 to file notice for trial by jury, and must serve a copy of the iled notice on all parties of record at least 28 days before trial.
o
Deadlines for this are strictly adhered to
Court may refuse jury trial: Within 7 days of being served notice for a trial by jury, the other party may apply to the court to have the trial heard
without a jury (5).
o
Grounds to challenge jury notice: The issues require prolonged examination of documents or scientific facts that can’t be made
conveniently with a jury, the issues are too complex, the extra time and cost involved in requiring a jury is disproportionate to the benefits.
o
Cases which have set jury notice aside:

McPherson: Onus of proving complexity is on the party applying to set aside the jury notice. This is not a test easily satisfied –
must show high level of complexity.

Today, there is a narrow window to strike jury notice based on complexity because juries may be just as able as judges
an lawyers to decide complex issues.

Salem: where there have been conclusive findings of fact by a court (i.e. at summary trial), in order to avoid embarrassment of
jury making contrary findings, that would be a procedural reason sufficient to do so.
Fees: Party requiring jury must pay fees to sheriffs so that they call up the jurors and get them to show up.
o
Can cancel jury prior to paying fees.
If party has filed notice but not yet paid fees, they are NOT locked into having a trial by jury. BUT if fees have been paid, in order to cancel trial by
jury, you must apply to court under Rule 12-6(5) and prove that the matter is too complex, would take up too much extra time, etc.
o
Iskum v BadaliI – no opting out of jury trial once you have paid the feel – you are bound
o
Folk v Halcrow: He who files the jury notice must pay – the party who files must also pay (other party cannot pay and thus bound them to
jury trial)
Jury Act, ss. 14-23: Deals with Civil Juries
Selection of the array
Counsel can challenge some of the jurors. There is a limit. However, the court can adjust that number.
o
Counsel given 4 pre-emptive challenges (can challenge for any reason whatsoever)
Juror excuses: Jurors can be excused for genuine employment or health issues
Challenges for Cause: If there are reasons of familiarity with a person such that the juror cannot serve (relationship with counsel; involved in previous
action which involved juror), there's an obligation to be honest to the court about why they cannot sit.
Jurors select their own foreperson
Privacy issues for jurors: Trial is recorded, it is public. Bare essentials of identity (name, address, occupation) are exposed to the court.
o
Question of what obligation we have to jurors to ensure ongoing privacy for them; do we have an obligation to ensure that we don't
mention their names to anyone (in connection with trial?)
Conducting Trial by Jury
Opening instruction from the Judge
Opening address from counsel: Lawyer gives opening address at the start of his case
o
Ethical issue: Obligation of officers of the court become vital/important at opening address: opportunity to lay out case in a brief, accurate
summary, not an opportunity to give opinion of what the judge should do or tear down the other party
o
Brofee v Hutchinson: If opening address goes beyond parameters of what it should be, lawyer will be guilty of a mistrial
o
Theatre or advocacy: Jury trials are more like theatre, but must be in the context of appropriate advocacy – must present case in a
professional manner
Adducing evidence with juries is a different matter than with judge alone: want a minimum burden
o
Only want evidence that will convince jury of your case
o
Should have good organization of documents: put documents in order before submitting them to jury
Speaking to jury during trial
o
Lawyers do NOT speak to jury – they are there to try the evidence, lawyer is there to put evidence forward
o
Must remain somewhat aloof but separate
Jury questions: formulated by parties with assistance of the court
Jury deliberations done in secret, lawyers are not allowed to ask what they based their decisions on
Verdict: Judge generally wants a unanimous decision, but will sometimes take a majority
o
Deliberations in private room, 8 juries given 3 hours, then asked by judge to come up with verdict
o
If no decision is made but 75% has come to verdict, court can accept this
o
If no agreement – judge can order mistrial and It’s done all over again.
o
If some aspects haven’t been decided on, but there is a verdict on some matters, judge can continue the trial to clarify these and can take
the verdict for the decided matters.
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ACCESS TO JUSTICE
BC Civil Justice Reform Working Group  A Wish List
In response to problems with the civil justice system (too formal, too time consuming, unpredictable, impersonal), people increasingly representing
themselves and trying to avoid the civil justice system.
BC Justice Review Task Force put together to figure out ways to improve legal process/system. Found that current civil justice system is too
expensive, too complex and too slow with high levels of public dissatisfaction.
Report put together a wish list of how the current legal system should be reformed.
Three major recommendations:
1. People need more information to be able to use the litigation system. There should be a central “hub:” A single place where people can go to get the
information, advice, guidance and services they required to take legal action.
o
Hub will promote existing legal-related services, provide legal info, access to legal advice and representation, provide non- legal services
(counseling).
2. Parties to Supreme Court actions must personally attend a case planning conference to address settlement possibilities and processes and to narrow
the issues. Before starting the claim, should be sitting down with a judge to talk about whether the claim can be settled, and to come up with a plan
to resolve the dispute.
3. Rules of court should be completely revised. An overall objective that proceedings would be dealt with justly and in accordance of the principles of
proportionality. Create new ways to get out of the process (in order to lead to settlement) and allow judges to make different orders along the way.
Limit amount of time spent on determining facts and calling experts.
5 key principles form the underlying basis of the vision:
1. Proportionality: The amount of process (procedures, money, time spent) used mustbe proportional to the value, complexity and importance of the
case
2. Flexibility and matching: The process used must be designed to fit the needs of the case and the parties.
3. Opportunities for judicial intervention: Judges and masters must be more active in the management and resolution of cases.
4. Expanded role for lawyers: Cannot ignore case until they go to court. Must be more hands-on from the beginning rather than just before trial.
5. Preservation of the rule of law: New system must support and be guided by Rule of Law
In reality: Rules re-wrote in 2010. Changes have been made, but do not meet the “wish list” of the Report.
No hubs have been created;
Changes in presentation of facts (new rules for discovery and what can be admitted), but not to the extent intended;
o
Now: Only documents that relate to a matter at issue can be admitted (not that touch on any matter); only material facts must go into
Application of Claim  attempt to reduce time of process.
Increased judicial role is nowhere as far reaching as the report recommended. Yes mandatory TCM, but CPC not mandatory.
Access to Justice
Cost: Payment methods and fees; lawyer’s duty to disclose fees and not charge too much:
Lawyers typically bill on an hourly rate based on how much time it takes to do things, though things can be done on a flat rate (ie: wills) or a
percentage basis (ie: corporate financing)
o
Difficult to estimate from the outset how much a client will be charged as this depends on the complexity of the case, and the lawyer won’t
know this until they have had the chance to look through the file.
Frustrating to clients who would like to pre-assess costs to determine whether they can afford the lawyer and to organize their affairs.
Contingency fees: Lawyer only receives compensation of the party succeeds, and lawyer’s fee will be a percentage of the money is obtained by the
client. If client gets nothing, doesn’t have to pay lawyer, but the more the client wins, the more the lawyer gets paid.
o
Client still must pay disbursement fees (fees to file claim, photocopying, etc) whether or not he wins
o
This arrangement supposedly gives lawyer incentive to do better
Always good idea to set out a retainer agreement for how much will be paid. Set out the services you are retained to perform and your hourly rate.
Set out disbursement fees and taxes that the client will have to pay = no surprises.
Law Society Rules, Part 8 deals with lawyers' fees
Contingency fees agreements must be set out in writing, must explicitly set out the arrangement for payment. Court can review agreement to make
sure that it's actually fair and the remuneration provided for is reasonable.
Rule 8-2: The maximum contingency fee that lawyers can be charged is 33% for person injury arising from car accident claims, can charge 40% of
amount recovered for any other personal injury claim
If you have a pro-bono arrangement, you can't start charging money.
Professional Conduct Handbook, Part 9: Fees
 As part of their code of ethics, lawyers have a duty to be fair and reasonable regarding fees.
Lawyers cannot charge excessive fees
o
Ex. lawyer cannot prepare an inflated account for work already done, cannot charge personal disbursements because they work from
home.
o
Court will look at lawyer’s experience, complexity of case to determine if fees were “excessive” or appropriate
Lawyer must not pay referral fees (i.e. pay a person in exchange for referring a client to their services)
A lawyer who accepts a client based on a prepaid legal service plan must advise client as to the scope of the work that will be done under that plan
(and what will be extra, at extra cost)
Lawyers can't split a client's fee with any other person, except another lawyer.
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Lawyer must fully disclose fees – no hidden fees.
Costs: Access to justice problems:
Going to court, especially in Supreme Court, is very expensive
Lawyer’s fees can get very expensive and the average person finds it very difficult to fund.
Result: More self represented people in court
o
May be uneven if one side is represented and one is not
o
Difficult when people are unsophisticated of the law
o
New Rules make it easier for a self-represented party to understand the system, but still difficult
There are options for people who cannot afford a lawyer
How to deal with costs when you can't afford a lawyer?
o
Legal Aid: Legal Services Society of BC
o
Pro-bono work
o
Unbundling of legal work: To save costs, lawyers can be retained for only certain aspects of the case, and the client takes care of the rest.
Must specify in a retainer agreement the exact scope of lawyer’s duties. Difficult to set in and out of lawyer role.
Legal Aid – not perfect system for access to justice (because difficult to get, low quality work)
Legal aid lawyer does everything for the client rather than hiring a lawyer for certain tasks. Low threshold for quality of legal aid work.
Legal aid has income thresholds which you must fall under in order to get it… thresholds are very low – so difficult to get
Facilitates access to justice. Funding provided by Law Foundation and the Provincial Government.
Cuts to funding in Legal Aid since 2002 has decreased the scope of what will be covered by Legal Aid
o
To qualify for legal aid, a person must be denied access to justice on an ongoing basis, a child must be at risk, or there must be a risk that a
child will be taken from province
o
Child support, spousal support cases etc do NOT qualify for legal aid
o
Even if someone meets the low income threshold, it is still difficult to qualify
Public Commission on Legal Aid:
Funded by CBA, Law Society, Law Foundation – Groups funded a commission to make inquiry of what was happening to legal aid services in BC and
what should be done - Hearings held in 11 locations in BC f
Issues:
o
What legal issues should be provided by legal aid?
o
How should it be funded?
o
What should priorities of legal aid system in BC be (which cases should receive fundning)?
Commission engaged public through open call for written submissions and to speak at public hearings – public asked to respond to questions
Lawyer came to represent low income clients who didn’t’ qualify for legal aid (made too much, or didn’t qualify)
Report of the Public Commission on Legal Aid: Foundation for a Change (response of Public Commission)
Report held that legal aid is an essential public service that must be provided for
9 recommendations:
1) Recognize legal aid as an essential public service
o
Along with education, health, social services – legal aid (4 legged chair))
o
Recognize where individuals have a legal problem that puts them into jeopardy of their own family’s security and no meaningful ability to
pay for legal services.
2) Develop new approach to define who has priority to services based on fundamental interests of the most disadvantaged clients
o
Must address most disadvantaged clients first – where need is most pressing and the benefit is the greatest
3) Must expand financial availability to that more people qualify for legal aid
o
Financial eligibility criteria should be modified so more needy individuals qualify
o
Legal aid should be available to “working poor” (who earn 200% of poverty aid) though a sliding scale contribution system
o
Basic legal aid (basic legal advice) should be available to ALL persons in BC, once first priority groups’ needs are met
4) Establish regional legal aid centres and innovative service delivery to reach more people and increase access to services
o
Establish Regional Legal Aid Centres across province to serve as a point of entry hub of legal aid service delivery for all core services to
facility early intervention and resolve legal problems
o
Mobile outreach services to those who can’t access centres due to geographic, cultural or other barriers
5) Expand public engagement and political dialogue
o
Continue to take steps to expand public engagement and political dialogue on the need to renew the legal aid system in BC
6) Increase long-term, stable funding for legal aid
o
Stable funding from government, not just charitable contributions from Law Foundation, or pro bono efforts of legal profession
7) Legal aid system must be proactive, dynamic, strategic
o
Must have support such as research polity development, must monitor and evaluate progress
8) Greater collaboration between public and private legal aid service providers
9) Provide more support to legal aid providers
o
Promote community advocates, paralegals, and lawyers who provide aid and ensure the high quality of these services.
NOTE: These recommendations haven’t been done yet – still limited access to the justice system. No “central hub” of information, many people still do not
qualify for legal and there are unable to fund legal costs, and there are not sufficient community advocates to cover their needs.
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Indigent Persons and Fees: Indigency Application
Rule 20-5: Persons who are indigent:
Anyone who says that they cannot afford fees charged by government to access courts can make application under this section to not pay those fees
Court can order that no fee is payable by the person to the government under Schedule 1 of Appendix C in relation to the proceeding.
Meant to prevent access to court from being limited/prevented due to the fees
If there's no real claim or defence, then the request will not be granted
Application can be made by requisition rather than notice of application
Appendix C: Fees:
Cots oc Court: Filing fees, serving fees, etc.
All the fees in this appendix are disbursements which are out of pocket costs. They are all claimed under the bill of costs when you win your case
NOTE: 18 months ago hearing fees were in the news: people didn't think it was fair that you had to pay to get into the court room and access justice.
Government changed the fees in response: now, there's no cost for the first 3 days but the cost afterwards is still there.
Professional Conduct
Lawyers as a self-governing profession:
Lawyers are self governing, gain authority of self-government through Legal Professions Act: Provincial Gov’t statute creates the Law Society
Law society governs members in the best interest of the public.
Legal Professions Act:
Object and duty to law society (S. 3): To uphold and protect the public interest in the administration of justice  Noble intentions for the society.
Act sets out structure of Law Society:
o
Attempt to regulate from public perspective, and not perspective of what is in the best interest of members
o
Public is well served by our support for ourselves and the professions.
Only lawyers can practice law (S. 15)  This allows Law Society to retain control of the profession
s. 14(2): all members of law society are officers of the court of BC (S. 14(2))
Society has statutory authority to make rules. Rules found in Professional Conduct Handbook (S. 11)
Governance of Law Society: Discipline:
Lawyer can be disciplined for breaching the Rules found in the Professional Conduct Handbook
Complaint driven process  initiated by complaints of third parties (members of public, clients, opposing parties complaining about other side’s
lawyer, judiciary complaining about conduct of a lawyer in the court before him)
Investigative process for complaints
Discipline committee will determine range of options that the Law Society should take for this complaint such as: penalties, disbarment, suspension,
fines, reprimands, orders for costs, criminal sanctions, conduct reviews, conduct meetings, reprimands in letter form. Citation = criminal hearing will
occur.
o
Law Society discipline committee have broad power to discipline a member for breaching the Code
Courts have separate authority to control the conduct of lawyers as before the court
Court's determination of a lawyer's misconduct is not binding on law society, which makes its own determination
In considering lawyer conduct, courts will give considerable weight/consideration to the rules of the law society
Judges do not have a separate code for lawyer’s conduct in court. Court disciplines lawyers though contempt orders, or by requiring lawyers to pay
costs.
Courts reluctant to be too prescriptive in regulating conduct of members – court has responsibility to render a correct and just decision, and in order
to do this, cannot be distracted by disputes from members.
o
Result: lawyers before the courts get away with too much from the perspective of the Law Society
Public Perception of Lawyers: Professional Responsibility
Public perception of lawyers important as it is a self-governing profession with fiduciary obligations to its clients.
Lawyer’s professional responsibility includes duty to the court, duties in handbook.
Every Law Society has a Legal Professions Act that governs how lawyers act
Professional Conduct Handbook is part of Legal Professions Act:
Canons of legal ethics: Duties that lawyers owe to the state, other lawyers, the court, the client
o
Canons are a general guide. A lawyer is an officer of the courts, a client’s advocate, and a member of an ancient and honourable profession.
o
It is a lawyer’s duty to promote the interests of the state, serve the cause of justice, maintain the authority and dignity of the courts, be
faithful to clients, be candid and courteous to other lawyers, and demonstrate personal integrity.
Professional Conduct Handbook Part of Legal Professions Act
Binding rules under which lawyers operate, and under which lawyers can be disciplined for a breach.
Rules are a roadmap to guide members, not a cohesive code. Must be interpreted with care an caution.
Rules must be applied to facts, which is difficult when rules are very general.
How to use the rules? Don't try to interpret them yourself; get input from others for help (other lawyers, your principal, look at parallel codes of
conduct such as CBA code)
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Chapter 1: Canons of Legal Ethics:
o
Rules of general application, platitudes, etc. Not specific, so difficult to interpret to particular fact patterns
1. Lawyer owes a duty to the state to maintain its integrity and its law.
o
Lawyers should not aid or counsel any person to act in a way contrary to the law.
o
Primary duty as prosecutor is not to seek a conviction but to see that justice is done whether this means guilt or innocence
o
Lawyer should accept without hesitation the cause of any person assigned to them, and exert every effort on behalf of that person.
2. Lawyer owes a duty to the courts to be fair, courteous and respectful and to insists of similar conduct on the parts of clients
o
Judges cannot defend themselves and are entitled to receive the support of the legal profession against unjust criticism/complaint
o
Lawyer must not deceive a court by offering false evidence or misstating facts
o
Lawyer must not seek privately to influence a court or jury in his favour.
3. Duty to the client:
o
To obtain sufficient knowledge of the relevant facts and to give adequate consideration of the law before advising the client
o
To disclose to the client any conflict of interest
o
Lawyer should treat adverse witnesses and counsel fairly and courteously.
o
A lawyer should try to obtain for a client the benefit of any and every remedy and defence which is authorized by law.
o
A lawyer is entitled to reasonable compensation for services, but should avoid charges which are unreasonably high or low.
o
Lawyer should avoid controversies with clients regarding compensation.
4. Duty to other lawyers to act courteously and in good faith. Any ill feeling should not influence lawyers’ conduct towards each other.
o
Lawyer should fulfill every request and undertaking given.
o
Avoid all sharp practices.
5. Duty to oneself to maintain the honour and integrity of the legal profession, to expose unprofessional or dishonest conduct by any other lawyer,
and to accept without hesitation a retainer against any lawyer who has allegedly wronged a client.
o
A lawyer should make legal services available to the public in an efficient and convenient manner that will command respect and
confidence.
Chapter 3: Competence, Quality of Service and Relationship to Clients
1. Lawyer must maintain knowledge of the law, the procedures, and the skills to represent the client effectively
2. Lawyer must be satisfied he has the ability and capacity to deal with any legal matter to be undertaken before accepting a retainer.
3. Quality of Service: A lawyer shall serve each client in a conscientious, diligent and efficient manner
4. Seeking Assistance: Lawyer shall recognize any lack of competence and either decline to act or obtain client’s permission to consult another lawyer
or expert if appropriate.
5. Lawyer shall make all reasonable efforts to provide prompt service to each client
Chapter 8: Lawyer as Advocate – lawyer’s duty as advocate to the client and to the court
(1) lawyer can't abuse process of court by instigating malicious proceedings.
o
Prohibited conduct = conduct that cause malice, any conduct that assists client to act dishonestly or dishonorably
(2) if a client offers to give false testimony, the lawyer has to tell them that they'll withdraw if they do. If the client does give false testimony, the
lawyer must withdraw.
(9) Lawyer cannot be a witness at client’s trial. May occur for purely procedural matters if necessary. If lawyer must be witness, withdraw and get
another lawyer for your client.
(14) lawyer may not ask other party's expert questions about privileged matters.
(23) lawyer should not make public comments as to validity or probable outcome of legal proceeding or state publicly that they speak on behalf of the
profession
Chapter 10: Withdrawal
Getting out of the solicitor/client relationship
(1) Obligatory withdrawal if instructed to do anything inconsistent with lawyer’s responsibility and duty to the court.
Permitted, not required to withdraw if loss of confidence with client.
Right to withdraw if not getting paid.
Chapter 11
"every single communication [with another lawyer/party] you write is written with the intention of being read by the judge"
o
Maintain distance through tone and content of emails and letters
Basically, don't be a jerk and treat it all seriously.
Closing advice: read and re-read the rules throughout your career. Do it once a year!
Julie Macfarlane: “Evolution of the new lawyer”:
 Legal system is moving towards settlement more than fighting, and towards more collaborative methods of dispute resolution. However, law
schools are having trouble adapting to these changes and do not prepare students for these new approaches.
Effective negotiating and settlement skills becoming increasingly central to the practice of law – most civil cases are settled, increased use of
negotiating, mediation, and collaboration to resolve lawsuits
Growling reluctance to spend lots of time and money on litigation provided impetus for justice reform – mandatory settlement processes introduced
into civil courts in the form of mediation and settlement conferences.
This has altered role of counsel:
o
Moving away from giving narrow technical advice and strategies that center or litigation and fighting
o
Moving towards a holistic approach to conflict resolution. Role of assisting clients to identify what they really need, and role of developing
the best possible outcome for her client using communication, persuasion and relationship building (not arguing and puffing up the case)
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“Warrior lawyer:” 3 key beliefs must be reconsidered (1) Strategies based on “rights” are always the most effective, (2) Image of justice as process
rather than outcomes, and (3) that the lawyer is “in charge” in the lawyer-client relationship
Conflict Resolution Advocacy: rather than adversarial, new conception of advocacy arising from widespread mediation and negotiation. Goal is a fair
a just resolution wherever possible.
o
Role of lawyers is partnership with the client (rather than “lawyer in charge”) to come to jointly agreed outcomes.

No power imbalance, clients have more responsibility for choices and outcomes, take an active role in planning and strategy
formation in collaborative law.

Must prepare client for mediation by giving them the information they need for increased client participation.
o
Lawyer retains client loyalty – still has responsibility to achieve the best possible outcome for his client.
o
Fact gathering: Expanded types of information used that will help understand the client’s needs and entitlements.
o
Outcome: More than just obtaining “ideal” outcome/winning is considered. Costs are a factor in planning conflict resolution strategies,
recognition of future relationships, business expansion, justice, and emotional closure.
Lawyers must have knowledge and skills for effective negotiating  this must be taught in school (more classes on mediation, negotiation)
Future for the New Lawyer: Modified client service model for the new lawyer who is responsive to the changing conditions of legal disputing in the
21st century.
Changes in Lawyers role with introduction of new Rules with new Object:
Negotiation and mediation skills more important with increased avoidance of litigation process - Lawyers must have skills to be effective in mediation,
b/c more skills means that more claims are settled this way
Clients now have more knowledge of process – must engage more with client to describe entire process, ensure there is no surprise (an issue they
thought was very important is not), ensure they know what they’re getting into (may not get costs even If they win, long process).
Clients more involved in process, so must ensure they are prepared in each stage (prepared for mediation) and that they know their options (whether
they want a CPC, offer to settle, etc).
Judges: Now more opportunities to see judges in informal contexts– case planning conference
o
Benefit of formal atmosphere: Easier to keep emotions in check, formality enforces respect and control
o
Why would judge want less formality: More self-represented litigants may find less formal setting more accessible (less formal legal terms,
more user friendly). Becomes more meaningful if parties feel that the judge understands their problems – important since judge decides
outcome.
Versus “warrior lawyer” viewpoint: Must facilitate advocacy, lawyer must fight for outcome – successful outcome means justice has been achieved.
Lawyer is in charge. Arguments must be based on “rights” of the party and trying to get their rights. Litigation is the best way to achieve justice and
resolve disputes. .
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