Administrative law _ Crane_ spri

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Administrative law _ Crane_ spri Powered By Docstoc
					    Civil Procedure with Drafting, Kathryn Chapman & Wynn Lewis, Spring 2003
Good loose-leaf texts:
 Fraser and Horn, The Conduct of Civil Litigation in British Columbia
 McLachlin and Taylor, British Columbia Practice


                                                                     Contents
  Contents .....................................................................................................................................................1
  Cases / Statutes / Articles ...........................................................................................................................2
  Source, Interpretation, Irregularity, Time, Jurisdiction, Venue .................................................................7
    CRA: Diff rules each court, Rules are regs but must consult, force of law and can be substantive ......7
    R.1,2, IA: Interpretation, objectives, just terms, no rule if consent, irregularity not nullity ..................7
    R.3, IA: Computing time, holidays, after 4pm, extending periods, lateness to appointment, age .........8
    SCA: Jurisdiction of a Court (original, statutory, inherent), Supreme v. Provincial Court ...................8
    R.8,20,64, SCA: Venue, start anywhere, include in Statement of Claim, statute may set location .....11
  Commencing proceedings: file & serve writ/petition  file & deliver appearance ...............................11
    R.6,7,15: Naming parties, minors, mentally incomp, corps, partners, unincorp, dead, Crown, aka....11
    R.1: Originating process, two basic methods (R.8 writ or R.10 originating application), purposes ...12
    R.8: writ of summons with endorsement, either SofC or “concise statement” ....................................13
    R.10: originating application petition/praecipe, or can often choose an action for different process..14
    R.9: Expiry of a writ of summons or petition (12 months) and possible renewal if not served ..........15
    R.11,12,13: “Service” of originating process e.g. pers on indiv, substituted service, service ex juris 16
    R.14: Appearance, 7 days unless ex juris, can challenge originating process/service/jurisdiction .....17
    R.1,4,11: “Deliver” docs to “party of record”, address for delivery, restriction on fax, efective date 18
  Pleadings: SofC, SofD, Reply ..................................................................................................................18
    R.1: Pleadings are for actions (not originating applications), functions of pleadings, “delivery” .......18
    Timelines, actions issuanceserveappearanceSofCSofD & counterclaimreply, petitions .20
    R.19,20,21 Pleadings: brief as nature of case permits, state facts not evidence, not legal argument ..20
    R.19,20,21 Pleadings: not anticipate defence, alternative but not inconsistent, denials & relief reqd 22
    R.19: Particulars required in some actions, may request in writing then seek order ...........................23
    R.23: Reply, only for issues newly raised in statement of defence, generally pleadings then closed .24
    R.19(24): Attacking pleadings/endorsements/petitions: no reas claim/defence, frivolous, delay, etc 24
  Joinder of claims/parties, amending pleadings, adding party/claim ........................................................25
    R.5: Joinder of multiple claims to avoid multiplicity of proceedings, but court may separate ...........25
    R.5: Joinder of multiple parties (either multiple defendants and/or multiple plaintiffs) .....................26
    R.5: Consolidation of proceedings (unlike joinder since retains separate identity of each action) .....27
    R.24, LA.4: amending pleadings, one free, any with consent, rest at Court‟s discretion ....................28
    R.15: if amendment adds new party need Court order (3 ways: ought/necessary/just & convenient) 29
    R.15,LAs.4: Amending pleadings: adding new party/cause of action after limitation period expired 30
  Counterclaims, Set-off, Third party notice ..............................................................................................33
    R.21: Counterclaims (indep claim, if convenient, adding new party), Set-off (dependent claim) ......33
    R.22, NA: Third party notice if D claims contribution/indemnity, relief, or related question/issue ...35
  Representative and Class Proceedings .....................................................................................................36
    R.5(11): Representative proceedings limited, if one wins they all win, single measure of damages .36
    CPA: Class proceedings less limited, certification required, common issue of fact or law ...............37
  Limitation periods ....................................................................................................................................40
    Commence (i.e. originating process) before lim period expires, policy rationale and tension P v D ..40

                                                                                                                                                         1
     Steps: jurisdictions, specific statutes, s.3 periods, commencement, ultimate, meritorious excuse ......41
     LA s.3: 2 yrs (injury to person/property), 10 (payment judgement), none (land, sexual), 6 (basket) .42
     LA s.5,6,7: confirm some liability resets, postpone discoverable/legal disability (minor/incapable) .42
     LA s.8: Confirm/postpone/suspend all capped by ultimate lim periods 6, 30 (except none/minors) ..46
     LA s.4,9: expiry extinguishes, but can still commence/amend through subordinate proceedings .....47
  Discovery .................................................................................................................................................47
     Purposes of discovery: remove surprise, narrow facts/issues, promote settlement, reduce trial time .47
     R.26: discovery & inspection of docs, action only, always demand list, production or privilege .......48
     R.27: examination for discovery, action only, oral x-exam on oath any adverse party ......................50
     R.28: Pre-trial examination of witness (who is not party to action), requires application affidavits...52
     R.29: discovery by interrogatories, action only, on any party, narrower scope than oral discovery ...52
     R.30, 31: physical exam & inspection (medical of P for D and property), notice to admit .................53
  Interlocutory Chambers applications & Affidavits ..................................................................................54
     R.44: bringing an interlocutory application: usually notice of motion + affidavits, response, reply...54
     EA, R.51: affidavits: filed, sworn/affirmed+signed by deponent before other who signs jurat ........55
     R.51A: setting down application for hearing: notice of hearing, outlines and record (if >30 mins) ..56
     SAC, R.52,53: hearing the application, in Chambers, justice v. master .............................................56
  Dispositions without Trial: discontinuance, default, summary, settlement, etc.......................................57
     Various ways to dispose without conventional trial (generally in Chambers, see Rule 52 above) .....57
     R.36: discontinuance by plaintiff, withdrawal by defendant (and possible default proceedings) ......58
     R.17,25: default judgment against D (no appearance or SofD) or against P (no SofC), set aside ......58
     R.18,19: summary judgment if no defence or claim, different to 18A, striking out pleadings ...........59
     R.2,19: dismissal for want of prosecution (inexcusable & prejudicial delay) .....................................60
     R.31,33,34,39: summary of part. issues (on admissions, special case, point of law, one question) ...60
     R.35,37: offer to settle (costs implications), pre-trial conf, settlement conf, mini trial, case mngmnt 62
  Trial: summary (18A) and conventional (39) .........................................................................................64
     R.18A: Summary trial in Chambers if suitable & efficient, no judgment if can‟t find facts or unjust 64
     R.39 conventional trial: notice of trial, trial record & trial certificate, request for jury .....................67
     R.38,40,40A conventional trial: subpoena, oral v affidavit v deposition v transcript, expert witnes ..69
     R.40 conventional trial: other evidence, non-suit motion if no or insufficient ev. to make out case ..70
  Costs & Fees ............................................................................................................................................71
     R.57: costs follow event/in the cause, if sum within prov court no costs, class action special ...........71
     R.57, App.B: court order of costs, expenses/disbursements + ordinary, increased, or special costs ...72
     R.57: registrar assessment after court has ordered costs, with possible review by court ....................75
     LPA fees: not unreasonable, quantum meruit, hourly, fixed fee, or contingency (limitations) ..........75
     LPA fees: review if client disputes lawyer's bill or if lawyer seeking payment, & possible appeal....77
  Ethics ........................................................................................................................................................78
     Law Society, Legal Profession Act, Benchers, disciplinary and credentials process ..........................78
     Professional Conduct Handbook: duty to clients (competence, confidentiality), court & lawyers .....79
  Adversarial v. ADR ..................................................................................................................................80
     Adversarial v. ADR (v. inquisitorial), advantages/disadvantages, settlement in most cases...............80
     ADR: negotiation, mediation, arbitration, hybrid (e.g. med-arb, case evaluation, conf. listening) .....83
     Rules to encourage settlement, Notice to Mediate regulation (i.e. compel mediation in an action)....84



                                      Cases / Statutes / Articles
A & B Sound Ltd. v. Future Shop Ltd. (1996), 2 C.P.C. (4th) 373 at 379 ...................................................53


                                                                                                                                                           2
A.G. Canada v. Aluminium Co. of Canada Ltd. (1987), 10 B.C.L.R. (2d) 371 (C.A.) ...............................30
Abney v. Silcorp Ltd. (19 Oct 99) (B.C.S.C.)..............................................................................................34
AG Armenco Mines and Minerals v. PT Pukuafu Indah (2000), 77 B.C.L.R. (3d) 1 at 7 (C.A.) ...............17
Agala v. Agala, 1999 (B.C.S.C.) ..................................................................................................................62
Aintree Investments Ltd. v. The Corporation of the District of West Vancouver (No. 2) (1977), 5
  B.C.L.R. 216 (S.C.) ..................................................................................................................................50
Alcan Smelters and Chemical Ltd. v. Canada Association of Smelter and Allied Workers, Local 1. (1977),
  3 B.C.L.R. 163 at 165 (S.C.) ....................................................................................................................61
Alford v. Canada (Attorney General) (1997), 31 B.C.L.R. (3d) 228 (S.C.) ................................................20
Amon v. Raphael Tuck and Sons Ltd., [1956] 1 All E.R. 273 (Q.B.) .........................................................30
Arishenkoff v. Her Majesty the Queen, [2002] B.C.S.C. 951 .....................................................................46
ASM Capital Corp. v. Mercer International Inc., 1999 B.C.C.A. 353...................................................33, 48
B.C. Ministry of Forests v. Okanagan Indian Band, (2001) (B.C.C.A.) ......................................................72
Bank of Montreal v. Erickson (1984), 57 B.C.L.R. 72 (C.A.) .....................................................................59
Bank of Montreal v. Ricketts (1990), 44 B.C.L.R. (2d) 95 (C.A.) ..............................................................31
Barker v. Allanson, [1937] 1 All E.R. 75 (C.A.) .........................................................................................37
Bearhead v. Moorhouse (1977), 3 B.C.L.R. 81 (S.C.), affirmed (1978), 5 B.C.L.R. 380 (C.A.) ..........15, 16
Bell v. Smith, [1968] S.C.R. 644 .................................................................................................................48
Bera v. Marr (1986), 1 B.C.L.R. (2d) 1 (C.A.) ............................................................................................46
Bergen v. Goodwyn (1999), 35 C.P.C. (4th) 258 at para 8 (B.C.S.C.) .........................................................49
Bergeron v. B.C. (WCB), [2000] BCJ No. 2160 (S.C.) (QL) ......................................................................46
Borsato v. Basra (2000), 43 C.P.C. (4th) 96 at 101, paras. 20-23 (B.C.S.C.) ...............................................23
Bradshaw Construction Ltd. v. Bank of Nova Scotia (1991), 54 B.C.L.R. (2d) 309 (S.C.), aff‟d (1992), 73
  B.C.L.R. (2d) 212 (C.A.) ...................................................................................................................73, 74
Branch, Ward K., “Class Actions – Four Years Later” (May 2000) 58:3 The Advocate 351 .....................37
Braun Investment Group Inc. v. Emco Investment Corp. (1984), 58 B.C.L.R. 396 (S.C.), affirmed (1985)
  67 B.C.L.R. 247 (C.A.) ............................................................................................................................34
British Columbia Ferry Corporation v. B.C. Ferry and Marine Workers‟ Union (1979), 12 B.C.L.R. 20
  (C.A.) .......................................................................................................................................................10
British Columbia Lightweight Aggregate Ltd. v. Canada Cement LaFarge Ltd. (1977), 4 B.C.L.R. 259
  (C.A.) .......................................................................................................................................................53
British Columbia Lightweight Aggregate Ltd. v. Canada Cement LaFarge Ltd. (No.21) (1978), 7
  B.C.L.R. 108 (C.A.), rev'g (1978) 6 B.C.L.R. 74 (S.C.)..........................................................................50
Brito (Guardian Ad Litem of) v. Wooley (1997), 15 C.P.C. (4th) 255 (B.C.S.C.).......................................33
Brotherhood of Railway, Airline and Steamship Clerks v. Canadian Pacific Airlines, (1984), 55 B.C.L.R.
  18 ................................................................................................................................................................7
Brown v. Lolly, [2002] BCJ No. 2763 (SC) ................................................................................................27
Bukmeier v. Creyke (1998), 19 C.P.C. (4th) 31 (B.C.S.C.)..........................................................................31
Busse v. Robinson Morelli Chertkow (1999), 63 B.C.L.R. (3d) 174 (C.A.) ...............................................60
Calderbank v. Calderbank, [1975] 3 All E.R. 333 (C.A.) ............................................................................62
Can-Dive Services Ltd. v. Pacific Coast Energy Corp. (1993), 77 B.C.L.R. (2d) 128 at 133 (C.A.) .........61
Cansulex Ltd. v. Perry (March 18, 1982), Doc. Vancouver C785837 (B.C.C.A.) ......................................23
Cementation Company (Canada) Limited v. American Home Assurance Co. (1989), 37 B.C.L.R. (2d) 172
  at 179 (C.A.).............................................................................................................................................33
Central Trust v. Rafuse, [1986] 2 S.C.R. 180 ........................................................................................43, 80
Chace v. Crane Canada Inc. (1997), 44 B.C.L.R. (3d) 264 (C.A.) ........................................................25, 38
Chretien v. Jensen (1999), 58 B.C.L.R. (2d) 186 (C.A.) .............................................................................67
Clark v. Teamsters, Local 464 (1998), 157 D.L.R. (4th) 499 (B.C.S.C.) .....................................................27
Coast Wholesale Appliances Ltd. v. Armistead (1993), 77 B.C.L.R. (2d) 267 (C.A.)................................66

                                                                                                                                                              3
Cominco Ltd. v. Westinghouse Canada Ltd. (No. 2) (1978), 7 B.C.L.R. 305 (C.A.) .................................29
Cominco Ltd. v. Westinghouse of Canada Ltd. (No. 4) (1979), 11 B.C.L.R. 142 (C.A.), aff'g in part
   (1978), 9 B.C.L.R. 100 (S.C.) ..................................................................................................................51
Compaigne Financiere v. Peruvian Guard (1882), English QB ...................................................................48
Creber v. Franklin, Vancouver registry August 1996 ..................................................................................56
Credit Foncier Franco-Canadien v. McGuire (1979) 14 B.C.L.R. 281 (S.C.) .............................................17
Day v. Wilson (1996), 4 C.P.C. (4th) 251 (B.C.S.C.)...................................................................................10
Douglas Lake Cattle Co. v. Smith (1991), 54 B.C.L.R. (2d) 52 at 59 (C.A.) ..............................................15
Elloway v. B.C. Electric Railway Co. Ltd., (1956) 4 D.L.R. (2d) 734 (B.C.S.C.) ......................................13
Enterprise Realty Ltd. v. Barnes Lake Cattle Co. Ltd. (1979), 13 B.C.L.R. 239 (C.A.) .............................30
Eshelby v. Federated European Bank, (1932) 1 K.B. 254 ...........................................................................28
Euro Ceramics Tile v. T & C Ceramic Tile, [1992] 1 WWR 285 (B.C.C.A.) .............................................59
Evans v. Vancouver Port Corp. (1989), 42 B.C.L.R. (2d) 180 (C.A.) .........................................................45
F.G.M. Holdings Ltd. v. British Columbia (Workers‟ Compensation Board) (2000), 79 B.C.L.R. (3d) 271
   (S.C.) ........................................................................................................................................................21
Famous Players Canadian Corp. Ltd. v. JJ Turner and Sons Ltd., [1948] O.W.N. 221 (H.C.) ...................21
Findlay v. Briggs (1991), 55 B.C.L.R. (2d) 307 at 309 (S.C.) .....................................................................15
Finnegan (Guardian ad Litem of) v. Gronow (1998), 53 B.C.L.R. (3d) 356 (S.C.) ....................................11
Foote v. Foote (1986), 6 B.C.L.R. (2d) 237 (S.C.) ......................................................................................52
Frosh Construction Ltd. v. Volrich (1995), 7 B.C.L.R. (3d) 72 (C.A.) .......................................................45
Furlan v. Shell Oil Co (2000), 77 B.C.L.R. (3d) 35 at 38-40 (C.A.) ...........................................................17
G.W. L. Properties Ltd. v. W.R. Grace & Co. of Canada (1993), 79 B.C.L.R. (2d) 126 (S.C.) .................24
General Motors of Canada v. Naken (1983), 144 D.L.R. (3d) 385 (S.C.C.) ...............................................37
Glover v. Glover (No. 1) (1980), 29 O.R. (2d) 392 (C.A.) ............................................................................9
Gold v. The Toronto Dominion Bank (1998), 25 E.T.R. (2d) 99 (B.C.S.C.) ..............................................21
Guaranty Trust Company of Canada v. International Plaza Ltd. (1977), 4 B.C.L.R. 275 (S.C.) ................37
Gunderson v. Knudsen (1994), 91 B.C.L.R. (2d) 178 (Master, B.C.S.C.) ..................................................26
Halliday v. McCulloch (1986), 1 B.C.L.R. (2d) 194 (C.A.) ........................................................................49
Hama Lainen v. Sippola (1991), B.C.L.R. 2d 254 (C.A) ............................................................................49
Hamilton v. Sutherland (1992), 68 B.C.L.R. (2d) 115 (C.A.) .....................................................................66
Hayes v. B.C. Television Broadcasting System Ltd. (1990), 46 B.C.L.R. (2d) 339 (C.A.) ........................37
Hicks v. Beaver Lumber (1993), 98 B.C.L.R. (2d) 206 (C.A.) .............................................................13, 14
Hodgkinson v. Simms (1988), 33 B.C.L.R. (2d) 129 (C.A.) .......................................................................49
Hollick v. Toronto (City), 2001 SCC 68 ......................................................................................................38
Hoy v. Medtronic, Inc., [2001] B.C.J. No. 1968, 2001 BCSC 1343, paras. 19-20......................................38
Hughes v. Sharp (1969), 68 W.W.R. 706 (B.C.C.A.) ..................................................................................59
Hui v. First Avenue Marketplace (1997), 38 B.C.L.R. (3d) 52 (B.C.C.A.) .................................................30
Hunt v. Carey Canada (1990), 49 B.C.L.R. (2d) 273 (S.C.C.) ....................................................................24
Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d) 202 (C.A.) .65, 66,
   67
Institute of Law Research and Reform (Alberta, 1986) ...............................................................................41
Insurance Corp. of British Columbia v. Sam (1998), 6 C.C.L.I. (3d) 228 (B.C.S.C.) .................................27
International Forest Products Ltd. v. Moody (1997), 36 B.C.L.R. (3d) 257 (C.A.) ....................8, 13, 14, 15
Jordan v. Schatz (2000), 77 B.C.L.R. (3d) 134 at pp. 139-141 (C.A.) ..................................................17, 18
Justice Reform Committee, 1988 .....................................................................................................74, 75, 76
Kamloops v. Nielsen, [1984] 2 S.C.R. 2 ......................................................................................................43
Kanii Holdings Ltd. v. Musgrave, [1974] 2 W.W.R. 173 (S.C.) .................................................................25
Karsanjii Estate v. Rouge (1990), 43 B.C.L.R. (2d) 234 (C.A.) ..................................................................44
Kemp v. Mesner ...........................................................................................................................................45

                                                                                                                                                            4
Kent v. Waldock, [2000] 7 W.W.R. 10 (B.C.C.A.) .....................................................................................72
Kimpton v. A.G. Canada et al (January 2002) .............................................................................................38
Kripps v. Touche Ross & Co. (1992), 69 B.C.L.R. (2d) 62 (C.A.) .............................................................24
Kripps v. Touche, Ross & Co. (1986), 8 B.C.L.R. 105 (S.C.) .....................................................................37
Kulessa v. Borgman (1978), 6 B.C.L.R. 267 (S.C.).......................................................................................9
Kyuquot Logging Ltd. v. B.C. Forest Products Ltd. (1986), 1 B.C.L.R. (2d) 48 at 52 (S.C.).....................36
Leischner v. West Kootenay Power and Light Company (1983), 45 B.C.L.R. 204 (S.C.) ...................27, 36
Levitt v. Carr (1992), 66 B.C.L.R. (2d) 58 (C.A.) .......................................................................................45
Lindholm v. Pollen (1986), 3 B.C.L.R. (2d) 23 (S.C.) ................................................................................60
Lui v. West Granville Manor Ltd. (1985) 18 DLR 4th 391 (B.C.S.C.), affm (1987), 11 B.C.L.R. (2d) 273
  (C.A.) .......................................................................................................................................................32
Lui v. West Granville Manor Ltd. (1987), 11 B.C.L.R. (2d) 273 (C.A.) ...............................................36, 47
M. (K.) v.M. (H.), [1992] 3 S.C.R. 6 ...........................................................................................................41
M.(A.) v. Ryan (1997), 29 B.C.L.R. (3d) 133 (S.C.C.) ...............................................................................49
Mackinnon, F.B., “Contingent Fees for Legal Services” (1964) .................................................................76
Market & Co. Ltd. v. Knight S.S. Co. Ltd., [1910] 2 K.B. 1021 (C.A.) ......................................................37
Martin v. Tom (1996), 27 B.C.L.R. (3d) 268 (S.C.) ....................................................................................10
McNaughton v. Baker (1988) (C.A.) ...........................................................................................................35
Med Finance Co. v. Bank of Montreal (1993), 79 B.C.L.R. (2d) 222 (C.A.) ..............................................33
Memphis Rogues Ltd. v. Skalbania (1982), 38 B.C.L.R. 193 (C.A.) ..........................................................59
Merchey v. Cadillac (1998) (BCSC) ............................................................................................................65
Merritt v. Imasco Enterprises Inc. (1992), 2 C.P.C. (3d) 275 (B.C.S.C.) ..............................................27, 28
Mew, Law of Limitations (1991) ...........................................................................................................41, 43
Miracle Feeds v. D & H Enterprises (1979), 10 B.C.L.R. 58 (Co.Ct.) ........................................................59
Module Resources Inc. v. Sookochoff (1997), 41 B.C.L.R. (3d) 319 (S.C.) ...............................................35
Moore v. Castlegard & District Hospital (1995), 13 B.C.L.R. 31 (C.A.) ....................................................67
Morton, Limitation of Civil Actions, (1988), at 2........................................................................................46
Mussell v. Cronhelm (1994), 87 B.C.L.R. (2d) 197 (C.A.) .....................................................................8, 16
Nicolay v. George (1995), 16 C.P.C. (4th) 5 at 9 (B.C.S.C.)........................................................................53
Novak v. Bond, [1999] 1 S.C.R. 808 ...............................................................................................41, 44, 46
Peixeiro v. Haberman, [1997] 3 S.C.R. 549.................................................................................................41
Petersen v. Bannon (1993), 84 B.C.L.R. (2d) 350 (C.A.) ......................................................................22, 23
Placer Development v. Skyline Explorations (1985), 67 B.C.L.R. 366 (C.A.) .............................................7
Podovinikoff v. Montgomery (1984), 58 B.C.L.R. 204 (C.A.) ...................................................................43
Poole Construction Co. Ltd. v. Horst (1964), 47 D.L.R. (2d) 454 (Sask. C.A.) ..........................................37
Preus v. Miller (1986), 69 B.C.L.R. 104 at 108 (S.C.) ................................................................................52
Price v. Roberts & Muir, 25 C.P.C. (2d) 166 (B.C.C.A.) ............................................................................78
Prives Property Limited v. Canada (B.C.C.A.) ............................................................................................44
Public Trustee v. Guaranty Trust Co. and Edward Berry, [1980] 25 S.C.R. 93 ..........................................15
Re Braybrook (1916) 60 So. Jo. 307 (Ch) ...................................................................................................37
Re British Columbia Government Employees‟ Union v. B.C. (Attorney General), [1988] 2 S.C.R. 214 ....9
Re Edwards [1978] 1 W.W.R. 243 (B.C.S.C.).........................................................................................8, 15
Reichold Ltd. v. Van-City Cultured Marble Products (Nov 22, 1993), BCSC, Action C930067 ...............66
Roberge v. Huberman (1999), 62 B.C.L.R. (3d) 385 at p. 394 (C.A.) ........................................................71
Robitaille v. Vancouver Hockey Club Ltd. (1981), 30 B.C.L.R. 286 at 305-07 (C.A.) ..............................49
Royal Bank of Canada v. Johnson (1984), 54 B.C.L.R. 259 (S.C.) .............................................................68
Royal Bank v. Vista Homes Ltd. (1984), 54 B.C.L.R. 252 .........................................................................60
Royal Typewriter v. Perry (1928), 40 B.C.R. 222 (C.A.) ..............................................................................9
Rumley v. British Columbia (1998), 72 B.C.L.R. (3d) 1 (C.A.) .................................................................23

                                                                                                                                                          5
Rumley v. British Columbia, [2001] S.C.J. No. 39, 2001 SCC 69 ..............................................................38
Samos v. Pattison et. al ................................................................................................................................38
Sandbeck v. Glasner and Schwartz (1989), B.C.L.R. (2d) 69 (B.C.C.A.) ...................................................77
Sandes v. Brown (1979), 16 B.C.L.R. 341 (Co. Ct.) ...................................................................................23
Saunders v. Nelson (1994), 35 C.P.C. (3d) 168 at 173 (B.C.S.C.) ..............................................................50
Schmitke v. S. (1993) (B.C.S.C.) ...........................................................................................................42, 45
Seelig v. Schulli Estate (1992), 73 B.C.L.R. (2d) 279 (S.C.) ......................................................................70
Serban v. Casselman, [1995] B.C.J. No. 254 (C.A.) ..................................................................................7, 8
Serup v. School District No. 57 (1989), 54 B.C.L.R. (2d) 258 (C.A.) ........................................................59
Shah v. Bakken (1996), 20 B.C.L.R. (3d) 393 (S.C.) ..................................................................................27
Shaw v. Real Estate Board of Greater Vancouver, [1973] 4 W.W.R. 391 (B.C.C.A.) ................................37
Shewfelt v. Canada (1997), 28 B.C.L.R. (3d) 340 (S.C.) ............................................................................61
Silbernager v. Ritchie (1996), 20 B.C.L.R. (3d) 62 (S.C.) ..........................................................................67
Sinnott v. Westbridge Computer (1993), 78 B.C.L.R. (2d) 28 ....................................................................65
Skidmore v. Blackmore, [1995] B.C.J. No. 305 (C.A.) ...............................................................................72
Slavutych v. Baker, [1976] 1 S.C.R. 254 .....................................................................................................49
Soni v. Malik (1985), 61 B.C.L.R. 36 (S.C.) ...............................................................................................59
Teal Cedar Products (1977) Ltd. v. Dale Intermediaries Ltd. (1996), 19 B.C.L.R. (3d) 282 (C.A.) ....29, 30,
   32, 33
Tri-Line Expressways v. Ansari (1997), 143 D.L.R. (4th) 100 (B.C.C.A.)............................................30, 33
Tse-Ching v. Wesbild Holdings Ltd. (1994), 98 B.C.L.R. (2d) 92 (S.C.) .............................................23, 53
United Services Funds v. Richardson Greenshields of Canada Ltd. (1987), 16 B.C.L.R. (2d) 196 at 197
   (S.C.) ........................................................................................................................................................69
Usipuik v. Jensen, Mitchell & Company (1986), 3 B.C.L.R (2d) 283 (S.C.) ..............................................77
Visa International v. Block Brothers Realty (1983) (B.C.S.C.) ...................................................................48
Volhoffer v. Volhoffer, [1925] 2 W.W.R. 304 (B.C.C.A.) ............................................................................9
Watson, G.D., Canadian Civil Procedure, 5th ed. (Toronto: Emond Montgomery Publications Limited,
   1999) ........................................................................................................................................................40
Wells v. McBrine .........................................................................................................................................36
West Fraser Mills Ltd. v. Chouinard (1993), 79 B.C.L.R. (2d) 321 (C.A) ..................................................33
Westcoast Transmission Co. v. Interprovincial Steel and Pipe Corp. (1985), 59 B.C.L.R. 43 (S.C.) .........50
Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46 ............................................................38
Western Delta Lands Partnership v. 3557537 Canada Inc. (2000), 44 C.P.C. (4th) 382 (B.C.S.C.) ......52, 65
Whistler Mountain Ski Corp. v. Harbers (1997), 46 B.C.L.R. (3d) 307 (S.C.) ...........................................51
Wilder Estate v. Davis & Co. (1994), 92 B.C.L.R. (2d) 385 at 396 (C.A.) .................................................15
Wirtanen v. British Columbia (1994), 98 B.C.L.R. (2d) 335 (S.C.) ............................................................45
Wirtz v. Contantinie (1982), 137 D.L.R. (3d) 393 (B.C.S.C.) .....................................................................26
Wittman v. Emmott (1991), 53 B.C.L.R. (2d) 228 (C.A.) ...........................................................................46
Wolansky v. Davidson (1992) (B.C.S.C.) ....................................................................................................48
Wong v. Pettifer (1996), 22 B.C.L.R. (3d) 118 at 120 (C.A.) .....................................................................51
World Project Management Inc. v. Regan (1994), 93 B.C.L.R. (2d) 241 (S.C.) .........................................65
Yew Bon Tew v. Kenderann Bas Mara, [1983] 1 A.C. 553 at 563 (P.C.) ...................................................41
Young v. Young (1990), 50 B.C.L.R. (2d) 1 (C.A.) aff‟d [1993] 4 S.C.R. 3 ..............................................72
Yule v. City of Saskatoon ............................................................................................................................78
Zabolotniuk v. Tehcon Constructions Services Ltd. (1993), 79 B.C.L.R. (2d) 250 (S.C.)..........................51




                                                                                                                                                            6
                    Source, Interpretation, Irregularity, Time, Jurisdiction, Venue
CRA: Diff rules each court, Rules are regs but must consult, force of law and can be substantive
1) Each court (Prov.Ct., small claims court within Prov.Ct., B.C.S.C., B.C.C.A., and S.C.C.) all have
   their own rules
2) Court Rules Act R.S.B.C. 1996, c.80
   a) s.1: LG in C authorized to make rules by regulation (authorization to make rules also in or the
       Divorce Act, S.C. 1985, c.4, s.25(2)).
   b) s.6: LG in C must first get recommendation from A.G. after A.G. has consulted with chief
       justice/judge of the court in question
3) Serban v. Casselman, [1995] B.C.J. No. 254 (C.A.)
   a) Facts:
       i) P had already obtained judgement against D on the issue of liability concerning a motor
            vehicle accident, but quantum of damages remained to be set by a later trial.
       ii) There was significant delay (through no fault of D), and as a term of an adjournment of the
            trial, the judge ordered D to pay $10,000 as an advance payment on P‟s income loss.
       iii) D submits such an order is a substantive remedy and that the Rules of Court do not extend to
            such remedies, but rather only for procedures
   b) Issues:
       i) Does the B.C.S.C. have jurisdiction to order advance payments on damages?
       ii) If so, did the pre-trial judge err in exercising this discretion in the circumstances of this case?
   c) Decision:
       i) Based on Court Rules Act, s.1(1): “The Rules of Court have the force of law” and their
            interpretation is governed by s.8 of the B.C. Interpretation Act (Rule 1(6)).
       ii) Quoted Brotherhood of Railway, Airline and Steamship Clerks v. Canadian Pacific Airlines,
            (1984), 55 B.C.L.R. 18: “the Rules can create new substantive law”
       iii) Found the order here did not create new substantive law, but it was an order of substance,
            again acceptable since the Rules have the force of law.
       iv) The advance payment term was justified by Rule 1(12) which allow orders with terms the
            Court thinks just (and the order of adjournment itself was justified under Rule 35(3)).
       v) Thus the Rules, while procedural in nature, can alter substantive rights but it must be just
            (Rule 1(12)) and for the purposes outlined in Rule 1(5).
       vi) Advance payments of this kind should only be made in special circumstances and if the judge
            is completely satisfied that there is no possibility the final quantum of damages will be less.
       vii) In this particular case these conditions were met (e.g. the plaintiff desperately required money
            as a result of his injuries) so the pre-trial judge was justified.
R.1,2, IA: Interpretation, objectives, just terms, no rule if consent, irregularity not nullity
1) Rule 1(6) states that the Interpretation Act, R.S.B.C. 1996, c.238 (except where contrary intention)
   and the interpretation section of the Supreme Court Act apply to the Rules (e.g. recall that “person”
   includes a corporation under section 29 of the Interpretation Act).
2) Rule 1(7) states headings only for convenience
3) Rule 1(8) definitions of a number of terms used throughout the rules. E.g. “action” (commenced by
   writ of summons) v. “originating application” (commenced by petition or praecipe) and also note
   interlocutory applications (Rule 44).
4) Rule 1(5) states the objective of the Rules is to secure the just, speedy and inexpensive determination
   of every proceeding on its merits. This is a principle, or an aid to interpretation, that has application to
   all of the rules (see Placer Development v. Skyline Explorations (1985), 67 B.C.L.R. 366 (C.A.)).

                                                                                                          7
5) See also Interpretation Act, s.8.
6) Oft repeated phrase: Rules of Court are the servants and not the masters of the Court (e.g. see Mussell
    v. Cronhelm (1994), 87 B.C.L.R. (2d) 197 at 203 (C.A.)
7) Rule 1(12) reaffirms the court‟s inherent jurisdiction to impose such terms and conditions as it thinks
    just when making any order under the rules (see Serban v. Casselman, [1995] B.C.J. No. 254 (C.A.)
    above).
8) Rule 1(11) provides that if all parties to a proceeding agree, the court may order that any provision in
    the rules does not apply to that particular proceeding (e.g. counsel may agree that a time limitation can
    be missed, see also Rule 3(3)).
9) Rule 2(1) states that unless the court otherwise orders, a failure to comply with these rules shall be
    treated as an irregularity and does not nullify a proceeding
    a) The modern view is that non-compliance with the Rules gives rise to an irregularity, not a nullity,
        which the court can and should rectify so long as it does not give rise to an injustice. Technical
        matters are not to “drive a plaintiff from the judgment seat” (see Re Edwards [1978] 1 W.W.R.
        243 (B.C.S.C.), Mussell v. Cronhelm (1994), 87 B.C.L.R. (2d) 197 at 203 (C.A.) and
        International Forest Products Ltd. v. Moody (1997), 36 B.C.L.R. (3d) 257 at 261 (C.A.)).
10) Rule 2(2) for remedies when failure to comply, court can:
    a) Set aside proceeding
    b) Set aside any step or document in proceeding
    c) Allow an amendment under Rule 24
    d) Dismiss the proceeding, or strike out statement of defence and grant judgment
    e) Any order it thinks just
11) Rule 2(3): court shall not set aside proceeding because wrong originating process used
12) Rule 2(4): cannot apply for 2(2)(a), (b) or (d) if applying party has taken next step
13) Rule 2(5): specific consequences for specific non-compliance (a-c deals with failure to disclose info,
    f-g if plaintiff/petitioner court may dismiss, if defendant/respondent court may order to continue as if
    no appearance or statement of defence submitted, so Rule 25 default will apply)
R.3, IA: Computing time, holidays, after 4pm, extending periods, lateness to appointment, age
1) Rule 3
   a) 3(1) holidays not counted if period less than 7 days (note Saturdays are not “holidays” but
       Sundays are (Interpretation Act, s.29)) and after 4pm is next day
   b) 3(2) court may extend or shorten any time period (e.g. if logging is about to occur, court might
       shorten period)
   c) 3(3) can be extended by consent
   d) 3(6) can be up to ½ hour late and still sufficient attendance at appointment
2) Interpretation Act
   a) S.25(2) if expires on holiday (see s.29 definition) extended to next non-holiday day
   b) S.25(3) if act in business office expires when not regularly open, extends to next open day
   c) S.25(4) “clear days/weeks/months/years” or “at least” or “not less than”, first and last days
       excluded (e.g. if has 2 clear days till must reply, and serve on Monday, then can reply on Thursday
       prior to 4pm) – S.25(5) otherwise first day excluded, last day included
   d) S.25(6) if ends on day in month that has no date in that month, ends on last day of month
   e) S.25(7) time refers to Pacific Standard Time or Daylight Saving time (see also s.26)
   f) S.25(8) a person reaches a particular age at start of birthday (so can‟t be 45½)
   g) S.29 definitions of “holiday”, “month”, “year”
SCA: Jurisdiction of a Court (original, statutory, inherent), Supreme v. Provincial Court
1) In B.C. there are two levels of provincially administered courts of first instance: the Supreme Court
   (B.C.S.C.) and the Provincial Court.

                                                                                                        8
2) Prior to July 1990, there was also the County Court, which was merged with the Supreme Court under
   the Supreme Court Act, S.B.C. 1989, c.40, s.17.
3) The jurisdiction of a court means the limits that are imposed upon the power of a court to hear and
   determine particular issues between particular persons, and so is the authority of the court to decide a
   particular matter. The jurisdiction of a court may be limited by:
   a) the subject matter of the claim,
   b) the monetary value of the claim, or
   c) the territory where the claim arose.
4) Sources of a court‟s jurisdiction:
   a) Original – a concept exclusive to supreme or superior courts and refers to that jurisdiction
        originally exercised by superior courts in England, including law and equity.
   b) Statutory – that power given to either superior or inferior courts specifically by statute.
   c) Inherent – the inherent right of every superior court (though note Prov.Ct. nor B.C.C.A. have this
        jurisdiction) to inquire into and judge the regularity or abuse of its process or to do all that is
        „necessary to do justice between the parties‟ (see Glover v. Glover (No. 1) (1980), 29 O.R. (2d)
        392 (C.A.). I.e. Courts can „fill in the gaps‟. Examples of inherent jurisdiction include:
        i) In the absence of specific statutory authority, the development of judge made rules consistent
             with reason and justice in order to facilitate civil procedure (see Kulessa v. Borgman (1978),
             6 B.C.L.R. 267 (S.C.)).
        ii) The issuance by the court on its own motion of an injunction to prohibit the picketing of
             courthouses as contempt of court (see Re British Columbia Government Employees’ Union
             v. B.C. (Attorney General), [1988] 2 S.C.R. 214).
        iii) Control of an abuse of the court‟s process beyond the specific abuse of process power in Rule
             19(24)(d) (see Royal Typewriter v. Perry (1928), 40 B.C.R. 222 (C.A.).
        iv) The power to order security for costs.
5) Lawyers must be careful, since if go to the wrong court, will waste time, money, and possibly miss
   limitation periods in the proper court.
6) If a court having a limited jurisdiction mistakenly exercises a jurisdiction that does not belong to it,
   any order made may be a nullity (see Volhoffer v. Volhoffer, [1925] 2 W.W.R. 304 (B.C.C.A.)).
7) In some cases, there may be concurrent jurisdiction between two courts and in those cases the lawyer
   must choose which court will best serve the interests of his or her client.

              Supreme Court of B.C.                              Provincial Court of B.C.
 A superior court of record: Supreme Court Act,         An inferior court
 R.S.B.C. 1996, c. 443, s.3.

 Judges appointed federally (s.96 Constitution) to    Judges appointed provincially
 further impartiality. See Supreme Court Act, s.2 for
 number of judges and where they must live.




                                                                                                      9
A court of original jurisdiction in all civil and        Has only the statutory jurisdiction given to
criminal cases arising within the province (without      it by any provincial statute: Provincial
subject matter or monetary restrictions): Supreme        Court Act, R.S.B.C. 1996, c.379, s.2(2).
Court Act, s.9.                                          The most important such Act regarding civil
                                                         claims is the Small Claims Act, R.S.B.C.
Inherent jurisdiction is an aspect of original           1996, c.430 (s.3 of which limits jurisdiction:
jurisdiction and so is possessed by the Supreme          claims of up to $10,000, to civil claims
Court (see Supreme Court Act, s.9 and British            concerning debt or damages, the recovery of
Columbia Ferry Corporation v. B.C. Ferry and             personal property, and certain issues with
Marine Workers‟ Union (1979), 12 B.C.L.R. 20             respect to agreements regarding goods and
(C.A.)).                                                 services – there is no jurisdiction in matters
                                                         where title to land may come into question,
Provincial and federal statutes conferring exclusive     nor in relation to particular actions such as
jurisdiction upon other courts will limit jurisdiction   malicious prosecution, libel and slander).
of the Supreme Court (e.g. Federal Court Act gives
jurisdiction for certain cases involving actions         Also some family jurisdiction under the
against federal Crown).                                  Family Relations Act and the Child, Family
                                                         and Community Services Act
Whether a proceeding involving extra-provincial
elements is within the jurisdiction of the Court must    To make justice more accessible, the Small
be determined by applying “conflict of laws”             Claims Rules (which accompany the Act)
principles (while Rule 13 provides a list of matters     employ plain language, simplify procedures,
in which service of a process originating in the         providing a more expeditious and
B.C.S.C. may be made upon persons outside of             inexpensive process for resolving disputes,
B.C., that Rule is neither exhaustive, nor               and encourage settlement processes
determinative, of the question of jurisdiction).         For example:
                                                          Rule 7 requires a settlement conference
A person served with an originating process                   to occur in almost every case, in which
emanating from the Supreme Court can apply for a              the judge may engage in mediation and
declaration that the court has no jurisdiction in the         attempt to help the parties reach a
matter under Rule 14(6)                                       settlement)
                                                          Small Claims Act, s.16(1) states that the
                                                              court may admit as evidence any
                                                              credible or trustworthy oral or written
                                                              testimony or record (even though not
                                                              admissible as evidence in any other
                                                              court under the laws of evidence).
If P recovers only $10,000 or less (which is within      Small Claims Act, s.19(4) and Small Claims
the monetary jurisdiction of the Provincial Court        Rules, Rule 20 provide that the „loser‟ can
under the Small Claims Act, R.S.B.C. 1996, c.430),       be required to pay the reasonable expenses
P is not entitled to any costs other than                the „winner‟ has incurred in pursuing the
disbursements, unless the court finds there was a        litigation, but not for any legal fees (i.e.
sufficient reason for bringing the proceedings in the    counsel or solicitor's fees).
Supreme Court instead of the Provincial Court (see
Rule 57(10) and Day v. Wilson (1996), 4 C.P.C.
(4th) 251 (B.C.S.C.) and Martin v. Tom (1996), 27
B.C.L.R. (3d) 268 (S.C.)).



                                                                                                          10
                                               
 Supreme Court Act, s.15: a judge or master may transfer proceedings from Supreme Court to the
 Provincial Court upon application of a party if the proceedings are within the jurisdiction of the
 Small Claims Act and the judge or master thinks it appropriate to do so.

R.8,20,64, SCA: Venue, start anywhere, include in Statement of Claim, statute may set location
1) Venue is the particular geographical district in which a court with jurisdiction may hear and determine
   a case.
2) Supreme Court Act, s.8: in B.C. there are seven judicial districts of the Supreme Court, and each has
   one or more court locations with permanent registries.
3) Rule 8(8): proceedings may be commenced out of any registry of the Supreme Court.
4) Once a proceeding has been commenced out of a particular registry, generally speaking, all further
   proceedings must be taken in that registry, although Rule 64(13) provides that, on application, the
   court may order that the proceedings be transferred to any other registry of the court.
5) Rule 20(4): the plaintiff in an action must specify the place of trial in the statement of claim, and this
   may be a place other than the registry where the action was commenced. The trial will be held in that
   place unless the court orders that it be changed under Rule 39(7), or that it be heard partly in one place
   and partly in another.
6) A statute may determine the venue of a particular matter. E.g. s.21(2) of the Law and Equity Act,
   R.S.B.C. 1996, c.253 states that every foreclosure proceeding on a mortgage shall be commenced
   where the land that is the subject of the foreclosure proceeding is situated.
7) In Small Claims Matters under the Small Claims Act, Rule 1(2) of the Small Claims Rules specifies
   that a claimant must file a notice of claim at the Small Claims Registry nearest to either
   a) where the defendant lives or carries on business, or
   b) where the transaction or event that resulted in the claim took place.

          Commencing proceedings: file & serve writ/petition  file & deliver appearance
R.6,7,15: Naming parties, minors, mentally incomp, corps, partners, unincorp, dead, Crown, aka
1) When drafting ensure appropriate parties named correctly. E.g. for individual, use full legal names
   (avoid nicknames)
2) Rule 6(2): Minors (persons under age 19) and persons who are mentally incompetent are considered
   to be “under a legal disability”, and must commence or defend a proceeding via person who can give
   instructions to counsel on their behalf – this person is known as the litigation guardian (or guardian ad
   litem) (e.g. an adult family member, see Rule 6(5)).
   a) A minor must sue through his or her guardian ad litem [Rule 6(2)] who must engage a solicitor to
       conduct the litigation [Rule 6(4)] unless the guardian ad litem for the minor is the Public Guardian
       and Trustee, in which case the Public Guardian and Trustee may act directly [Rule 6(4)]
   b) For a person who is mentally incompetent
       i) If the court process under the Patients Property Act has been used to appoint a decision maker
           or guardian (“appointed committee”), that person shall be the guardian ad litem in any
           proceeding unless the court otherwise orders[Rule 6(6)].
       ii) Otherwise, an “ordinary”" guardian ad litem may act on behalf of the mentally incompetent
           person for the purposes of the litigation, without being appointed by the court [Rule 6(5)]
   c) Rule 6 is a complete code respecting the commencement and conduct of proceedings for persons
       under disability (see Finnegan (Guardian ad Litem of) v. Gronow (1998), 53 B.C.L.R. (3d) 356
       (S.C.) which defined disability as under 19 years or mentally incompetent)
   d) In any case where a guardian ad litem is to act for either a minor or a person who is mentally
       incompetent, and that guardian ad litem is not a guardian or decision maker or the Public Guardian

                                                                                                      11
         and Trustee, certain special documents must be filed in the Court by the counsel engaged to act for
         the person under a disability. These are: [Rule 6(8)]:
         i) a consent signed by the person who is to act as the guardian ad litem [Rule 6(7)] and
         ii) a certificate of fitness signed by the counsel indicating he or she believes the person in
              question is under a legal disability, setting out the grounds for that belief, and indicating that
              the proposed guardian ad litem has no interest in the proceeding that is adverse to the person
              under the disability.
         iii) In addition, where the person is a mentally incompetent person, the counsel must state his/her
              belief that a committee has not been appointed.
3) Of course, a party in a proceeding does not have to be a “human” party – you may sue a corporation in
    its correct corporate name – do a corporate search (recall that “person” includes a corporation under
    section 29 of the Interpretation Act, R.S.B.C. 1996, c.238).
4) Rule 7(1): for partnerships, partners may sue or be sued in the firm name (and can request names of all
    partners – Rule 7(4)).
5) Unincorporated associations cannot sue or be sued in the association name, so instead the individual
    members must be named.
6) Rule 15(1): When a party dies, goes bankrupt or is wound up, proceedings may be continued
    regardless (though ordinary limitation periods continue to apply)
7) With a deceased person:
    a) s.9 of the Estate Administration Act applies and the estate is named.
    b) If the estate is suing, this is done through the executor or the administrator who acts in the name of
         the estate (e.g. style of cause could be: “Mr. X, executor of will of Ms. Y, deceased” where will
         names executor, or “Mr. X, administrator of will of Ms. Y, deceased” where not named).
    c) See also ss.59, 60 of the Estate Administration Act e.g. for how to serve writ on person who died
         before proceedings (s.60), limit on limits on recovery (s.59(3)) such as loss of future earnings, and
         if dies during proceedings continue against administrator (s.59(6) and Rule 15).
    d) See also the Wills Variation Act s.8(13-14), for a list of people to include.
8) To sue the provincial Crown, you use, “Her Majesty, the Queen in Right of British Columbia” (see s.7
    of the Crown Proceedings Act, R.S.B.C. 1996).
9) If the defendant is known by more than one name all the variations of the names used should be
    included in the style of cause (use “A.K.A.”).
10) To correct the name of a party who has been misnamed, see “Amending Proceedings” below.
R.1: Originating process, two basic methods (R.8 writ or R.10 originating application), purposes
1) Rule 1(8): originating process defined as any document which commences a proceeding or adds a new
   party, such as a writ of summons, petition, (praecipe), or third party notice.
2) In the British Columbia Supreme Court there are two basic methods of commencing proceedings
   a) Rule 8: By a writ of summons (an action (definition in Rule 1(8)), with style of proceeding
       “Plaintiff v. Defendant”)
   b) Rule 10: By a petition or praecipe (an originating application, with style of proceeding “Petitioner
       v. Respondent”).
3) Whatever process is chosen, the purposes of the originating process / documents are to:
   a) Commence the proceeding
   b) Identify the date of commencement
   c) Identify the parties (and inform them of what steps they must take in response and the
       consequences for non-response – see Form 1 for writs, and Form 3 for petitions)
   d) Provide information respecting the claim being made and the relief sought.




                                                                                                         12
R.8: writ of summons with endorsement, either SofC or “concise statement”
1) Rule 8(1): Unless otherwise authorized every proceeding must be commenced by a writ of summons
   which (Rule 8(2)) must be endorsed either with a statement of claim (form 13) or with a concise
   statement of the nature of the claim made and the relief or remedy required.
2) It can be better to serve the statement of claim with the writ of summons to save time, since a trial date
   can be set once statement of defence is received.
3) If a statement of claim is not included, a concise statement of the nature of the claim must be.
   a) Case law has interpreted what is adequate to be a concise statement, but also consider:
        i) Rule 1(5) object of Rules is to secure just, speedy and inexpensive determinations of every
             proceeding
        ii) Rule 2(1) non-compliance is generally an irregularity and not a nullity
        iii) Rule 19(24) an endorsement can be struck out or amended if it discloses no reasonable claim
             (and the related Rule 19(27) that no other evidence can be considered in an application under
             19(24)(a))
   b) Elloway v. B.C. Electric Railway Co. Ltd., (1956) 4 D.L.R. (2d) 734 (B.C.S.C.)
        i) Facts: P endorsed writ with the words “The plaintiffs‟ claim is for damages” and nothing
             more (and no statement of claim was attached). A statement of claim was filed over 5 years
             later with no reason for the delay (and apparently only in response to a motion by D to have
             the action dismissed)
        ii) Issue:
             (1) Is the endorsement sufficient to meet Rule 8(2)?
             (2) If not, can it be remedied?
        iii) Decision:
             (1) The endorsement, because it does not contain a cause of action, is insufficient.
             (2) Distinguished between two types of errors:
                 (a) An irregularity (i.e. a defective endorsement) in which the endorsement inadequately
                      describes the cause of action but still sufficient to bring D‟s attention to the type of
                      case he would have to meet, in which case the writ could be corrected by a statement of
                      claim (giving further particulars)
                 (b) A nullity (i.e. no endorsement, found in this case because there was no identified cause
                      of action) in which case it could not be corrected by a statement of claim and no further
                      legal activity can be based on the writ
        iv) Comment:
             (1) Because the writ was struck out, and the limitation period had now passed, it was too late
                 to bring a fresh action
             (2) Warning: in International Forest Products Ltd. v. Moody (1997), 36 B.C.L.R. (3d) 257
                 (C.A.) it was said that “Elloway cannot be regarded as authoritative since the adoption of
                 Rule 2(1)” and so Rules do not apply as strictly anymore
   c) Hicks v. Beaver Lumber (1993), 98 B.C.L.R. (2d) 206 (C.A.)
        i) Facts: P filed a writ against D which contained an endorsement that “he was struck by a
             quantity of counter tops which toppled upon him in the display area”, plus the date, location
             and mention of injuries suffered
        ii) Issue: Does the endorsement conform with Rule 8(2)?
        iii) Decision (Lambert J.A.)
             (1) A “concise statement of the nature of the claim made” does not require specific wording to
                 link the concise statement of the facts to a particular cause or form of action
             (2) Although the endorsement did not specifically allege either negligence, or a breach of a
                 duty owed under the Occupier's Liability Act (which led the Chambers judge to rule the
                 writ a nullity) this case more closely fits the first type of error identified in Elloway above

                                                                                                         13
               than the second because if brings to the defendant‟s attention the type of case which it
               would have to meet
           (3) Must balance prejudice in the interests of justice when applying Rules:
               (a) D could not have been misled by this endorsement and suffered no prejudice,
               (b) Whereas striking out the writ would completely deprive P of the action (the limitation
                   period would have expired)
           (4) Thus endorsement sufficient since it briefly stated the facts, date and location
           (5) Even if Rule 8(2) was not complied with, could have otherwise used Rule 2(1) to treat this
               technical error as an irregularity rather than a nullity (as Goldie J.A. did)
       iv) Comment: this endorsement is about as brief as you could get away with
   d) International Forest Products Ltd. v. Moody (1997), 36 B.C.L.R. (3d) 257 (C.A.)
       i) Facts: P commenced action against D (such as interference with contractual relationships
           nuisance, conspiracy to harm the economic interests of P) to restrain environmental protesting
           which interfered with P‟s forestry operations, an interim injunction was granted, then P
           delivered their Statement of Claim. D applied to strike out writ on basis that endorsement was
           inadequate, namely that it didn‟t give particulars such as naming all defendants, giving a date,
           describing what the defendant‟s did, etc
       ii) Decision: application to strike writ denied:
           (1) Rule 8(2) is qualified by Rule 1(5) and Rule 2(1), which softens the old strict application
               of the Rules.
           (2) The date and location of the alleged acts are not always necessary (the Court in Hicks v.
               Beaver Lumber (1993), 98 B.C.L.R. (2d) 206 (C.A.) was not speaking exhaustively,
               rather they were looking at specific case before them and not any general statement of the
               law)
           (3) Here, P had cured the problem by delivering Statement of Claim
4) Rule 8(9)-(11): A writ comes to life (i.e. is “issued”) when dated and sealed (and filed) with the
   registrar (so must have it taken to the registry, either yourself or by, for example, Burns Registry
   Service). Thus leave or approval is not required to file a writ, and there is no way for defendant to
   prevent it.
5) Note that a Registry Service, such as Burns Registry Service, will keep up with changes at each
   registry and that the rules can differ from one registry to another and can answer your questions about
   forms, timelines, etc.
6) Rule 20(2): Where statement of claim is not served with the writ, it must be delivered within 21 days
   after the appearance.
R.10: originating application petition/praecipe, or can often choose an action for different process
1) Rule 10(1) lists the limited circumstances in which an originating application may be used. Rule 10
   was recently amended by B.C. Reg. 191/2000 and 367/2000. The amendments set out in the latter
   took effect on July 1, 2001.
2) Rule 10(2) if due to the nature of an originating application notice need not be given (applications by
   consent under Rule 41), a praecipe may be used (Form 2) to commence the originating application and
   the court may make the order without the application being spoken to.
3) Rule 10(3): Otherwise originating applications must be commenced by petition (using Form 3, and
   note it must include the order the petitioner applies for, the rule or enactment relied upon, the
   affidavits, and the brief facts) and served with supporting affidavits (Rule 10(4)).
4) Note Rule 19(24) which allows for a petition to be struck out if, for example, it discloses no
   reasonable claim. If writ of summons is deficient, Court can order dismissal under Rule 2(2)(a)
5) Some proceedings must be by originating application, such as:



                                                                                                     14
    a) Applications under the Rules (Rule 1(13), either by originating application or by interlocutory
        application)
    b) Foreclosure must be by petition (Rule 50(1)).
6) Most can be done under either writ of summons or originating application. Rule 10(1): states that for
    the matters listed an application may be made to proceed by originating application, so there‟s a
    choice of either proceeding by way of an originating application or an action, and this is important
    since they have significantly different procedures, such as (see Rules 10(4) – 10(8) and Rule 52):
    a) A petition is heard in Chambers and a party must put forward evidence in affidavit form (no oral
        testimony).
    b) Generally no opportunity to elicit evidence through cross-examination, although an application to
        cross-examine the deponent may be ordered under Rule 52(8)
    c) A party cannot, as of right, employ the various means of discovery available in an action and must
        make the case on the evidence already in possession;
    d) The court decides the matter based on the affidavit evidence and the oral arguments of counsel
    e) Originating applications may usually be completed more expeditiously than actions.
7) The originating application, then, is best suited when there are no disputed issues of fact and it is
    desirable to dispose of the matter quickly and inexpensively by placing evidence before the court in
    documentary form (can be heard in 2-7 days depending on region)
8) Under Rule 10(1) court has discretion in whether to allow proceeding by originating application. See
    Douglas Lake Cattle Co. v. Smith (1991), 54 B.C.L.R. (2d) 52 at 59 (C.A.) which review
    authorities, and should ask whether there is a dispute as to facts or law that requires a trial rather than
    chambers.
9) If there is a mistake in choosing the correct procedure, this does not render the proceeding a nullity
    but an irregularity that could be cured by an appropriate order (see, Rule 2(1), especially Rule 2(3)
    and Re Edwards [1978] 1 W.W.R. 243 (B.C.S.C.) and International Forest Products Ltd. v.
    Moody (1997), 36 B.C.L.R. (3d) 257 (C.A.)).
10) However, there is still an argument that the distinction between nullities and irregularities has only
    been abolished for “failure to comply with the rules”, whereas a “failure to comply with a procedural
    statute” might be regarded as a nullity (which, when discovered, could mean a limitation period for
    the action has expired). That said, the trend is strongly against the court treating defects as nullities
    (see Public Trustee v. Guaranty Trust Co. and Edward Berry, [1980] 25 S.C.R. 93).
R.9: Expiry of a writ of summons or petition (12 months) and possible renewal if not served
1) Once a proceeding has been commenced, the party initiating it has a duty to effect service promptly.
   However, Rules 9(1) and (5) provide that writs and petitions shall be in force for 12 months and
   should be served during their currency.
2) Calculation of time period starts day after writ comes to life (i.e. is “issued” when dated and sealed by
   the registrar – Rule 8(9)) and extends for 12 months to midnight (see Findlay v. Briggs (1991), 55
   B.C.L.R. (2d) 307 at 309 (S.C.)).
3) Rule 9(1): A plaintiff or petitioner may apply to the court to renew a writ of summons or petition if it
   has not been served, either before or after the expiry of the writ or petition, and the court may order
   renewal for up to an additional 12 months from the date of the order.
4) The court has discretion as to whether or not to allow the renewal. It must be exercised judicially and
   5 factors considered are (see Wilder Estate v. Davis & Co. (1994), 92 B.C.L.R. (2d) 385 at 396
   (C.A.) , applying Bearhead v. Moorhouse (1977), 3 B.C.L.R. 81 at 83-84 (S.C.), affirmed (1978), 5
   B.C.L.R. 380 (C.A.):
   a) Diligence on the part of the plaintiff e.g. was application to renew done promptly (if
       unreasonable, refuse)
   b) Whether the defendant had notice of the claim prior to expiry


                                                                                                         15
   c) Whether the defendant was prejudiced by the delay
   d) Whether the delay was contributed to by the defendant
   e) Whether the delay (i.e. failure to serve) was a deliberate act of the plaintiff
5) Rule 9(2): A renewed writ or renewed petition can be renewed again for up to an additional 12 months
   but the application must be made during the currency of the renewed document, although see Mussell
   v. Cronhelm (1994), 87 B.C.L.R. (2d) 197 (C.A.) where the court allowed the plaintiff to renew the
   writ of summons for a second time, even though the application to renew was not made during the
   currency of the first renewal (relying on Rule 3(2) allowing court to extend or shorten any period of
   time, Rule 2(1) non-compliance is irregularity not nullity, and Rule 1(5) object of rules is just, speedy
   and inexpensive determination).
6) The standard applied for such subsequent renewal is “what is necessary to see that justice is done?” If
   the refusal to renew the writ would do an obvious and substantial injustice to the plaintiff, while to
   permit the renewal will not be prejudicial to the defendant, then the writ should be renewed. See
   Bearhead v. Moorhouse (1977), 3 B.C.L.R. 81 (S.C.), affirmed (1978), 5 B.C.L.R. 380 (C.A.) ,
   applied in Mussell v. Cronhelm (1994), 87 B.C.L.R. (2d) 197 (C.A.). However, if the delay in
   seeking renewal is lengthy and there is no satisfactory explanation for the delay then the renewal may
   be denied because of the prejudice “that necessarily follows long delay”.
R.11,12,13: “Service” of originating process e.g. pers on indiv, substituted service, service ex juris
1) Originating process must be served on defendant to bring them before the court, as must certain other
   documents (e.g. see also rule 24(4) – service of amended originating process if original has been
   served and no appearance). One exception is Rule 11(3) deemed service: Writ of summons or petition
   deemed served if person files an appearance or attends the trial or hearing on the date that the person
   files or attends.
2) Rule 11 specifies the ordinary service and delivery of documents:
   a) Rule 11(1): Service of writ of summons is required. See also rules related to specific documents.
       E.g. Rule 10(4) requires petition and affidavits be served on all persons with interest, Rule 22(5)
       requires third party notice be served on each person named
   b) Generally, an individual must be served personally [Rule 11(2)(a)] and an affidavit of service or
       delivery is required (Rule 11(7)). If the person evades service, can be dropped at their feet, and it
       reaches that person whether or not they retain it.
3) Substituted service without a court order:
   a) Rule 12(4): If an attempt to serve a person personally has been “unsuccessful” the document may
       be served without a prior court order by leaving it with any adult at the person‟s place of residence
       and subsequently mailing the document to that residence by ordinary mail, or
   b) Rule 12(7): Again, without a prior court order by mailing it by ordinary or registered mail to the
       person‟s residential, business or postal address, in which case an acknowledgment of receipt is
       required [Rule 12(8)].
   c) In both cases the party serving by the substituted method must believe that the address in question
       is the address of the party [Rules 12(6), (9)].
   d) Neither method can be used for the documents specified in Rule 12(10), which includes family
       law matters, subpoenas, appointments to examine a person in aid of execution, or documents
       related to contempt proceedings.
4) Substituted service with a court order:
   a) Rule 12(1): If “impractical” to serve a document as specified in Rule 11 and the substituted
       service methods that can be used without a court order are not appropriate (for example because
       the person the plaintiff is seeking to serve does not have a known address), an application can be
       made to the court for an order granting substituted service.



                                                                                                     16
   b) The court has wide discretion and will generally grant the order for substituted service, provided
      that reasonable steps have been taken to try to serve as required in Rule 11 but such service cannot
      be effected or would be impractical – defined “impractical” as “not capable of being done usefully
      or is capable of being done but at too great a cost” (see Credit Foncier Franco-Canadien v.
      McGuire (1979) 14 B.C.L.R. 281 (S.C.)
   c) Rule 12(2): court will order how substituted service is to be done. E.g. may order publishing
      notice of the proceedings in a newspaper, personal service on a person with whom the person to be
      served can be expected to have contact, or delivery of the document to an address where the
      person to be served is thought to frequent. A combination of these can be ordered where the court
      finds it to be appropriate.
5) Service ex juris:
   a) Rule 13 governs situations in which parties who are outside British Columbia must be served.
   b) Rule 13(1): lists situations where such service can occur without a prior court order allowing it
      i) Rule 13(2) & Form 6 generally require grounds to be specified that person relies on to serve ex
          juris without leave.
   c) Rule 13(3): in other situations, court may order such service
   d) Note, however, the Court‟s jurisdiction to hear claims with extra-territorial elements, and
      questions relating to “enforceability” in other jurisdictions of a judgment obtained in British
      Columbia, are dependent on conflict of laws principles.
   e) There are also many practical considerations that must be taken into account when deciding
      whether to sue a person who is located outside the jurisdiction, including, most importantly, the
      question of where the assets of the person are located in the event that a judgment is obtained and
      enforcement of it is sought.
   f) Rule 13(10): A defendant who is served ex juris may, without entering an appearance, make an
      application to have the service set aside either on the ground that the British Columbia Supreme
      Court has no jurisdiction in the matter or that, even if it does, the court should exercise its
      discretion to refuse to assume jurisdiction because it is not “the forum conveniens” (the principles
      that are applicable in this regard are conflict of laws principles, see Furlan v. Shell Oil Co (2000),
      77 B.C.L.R. (3d) 35 at 38-40 (C.A.), AG Armenco Mines and Minerals v. PT Pukuafu Indah
      (2000), 77 B.C.L.R. (3d) 1 at 7 (C.A.) and Jordan v. Schatz (2000), 77 B.C.L.R. (3d) 134 at pp.
      139-141 (C.A.)). Also see Rule 14(6) discussed below.
   g) Rule 13(6): Parties served ex juris have more time to file appearance
R.14: Appearance, 7 days unless ex juris, can challenge originating process/service/jurisdiction
1) Rule 14(1): After being served with an originating process, an “appearance” is a document (Form 7 or
   8) that signifies an intention to defend in the matter.
   a) It also signifies that the defendant accepts the originating process (i.e. not invalid or expired) and
       its service [Rule 14(6)(a), (b)], and, generally speaking, has accepted (attorned to) the jurisdiction
       of the court (although see Rule 14(6)(c) below).
   b) Rule 14(1): Defendant / respondent must “file” the appearance (i.e. with the registry, see
       definition Rule 1(8)) and “deliver” (see below) to the plaintiff.
2) Rule 14(3): unless the Rules provide or a court orders otherwise, the defendant must file an
   “appearance” within 7 days from the service of the originating process
3) Rule 13(6): more time is allowed when the service is ex juris
4) Rule 14(1)(e), (f): may file appearance by fax but if received by the court registry after 4 p.m. is
   deemed to have been filed on the following day
5) Rule 14(6)(a)(b): A defendant who wishes to argue that the originating process is invalid or has
   expired, or that its purported service was invalid, should refrain from entering an appearance and
   instead bring an application to the court for a declaration to that effect.


                                                                                                      17
6) Rule 14(6)(c): Defendant / respondent can argue court doesn‟t have or shouldn‟t exercise it‟s
   jurisdiction whether or not filed appearance:
   a) The test to be applied comes from conflict of laws principles and is whether there is a real and
        substantial connection between the court and either the defendant or the subject matter of the
        litigation (jurisdiction simpliciter). Once jurisdiction is established, the court may still decline
        jurisdiction if there is clearly a more convenient or appropriate forum. (e.g. perhaps defendant
        lives, was divorced and has assets all in Ontario). See Jordan v. Schatz (2000), 77 B.C.L.R. (3d)
        134 at pp. 139-141 (C.A.).
   b) See also Rule 13(10) on challenging service ex juris.
   c) Rule 14(8) specifically states that making this kind of application [under R14(6) or R13(10)] does
        not constitute acceptance of the jurisdiction of the court.
7) If the defendant refuses or chooses not to enter an appearance, and does not apply to the court under
   Rule 14(6), then the plaintiff may be permitted to take default proceedings against the defendant (see
   Rule 17 below)
R.1,4,11: “Deliver” docs to “party of record”, address for delivery, restriction on fax, efective date
1) Rule 1(8): a party of record includes someone who commenced a proceeding or filed an appearance.
2) Once become a party of record are entitled to documents e.g. Rule 24(6) amended documents must be
   sent to all parties of record
3) Rule 11(6): documents are “delivered” to a party of record by sending to an address for delivery
   provided under Rule 4.
4) Rule 4(6): the address for delivery of a plaintiff or petitioner must be specified in the originating
   process (e.g. a writ, petition, or third party notice, etc.) and the address for delivery of a defendant or
   respondent must be specified in the appearance.
   a) Rule 4(7): where a party is represented by a counsel, the address for delivery will be the office
       address of the counsel, and in addition to the office address of the solicitor, the solicitor‟s fax
       number can be specified as an address for delivery [Rule 4(8)].
   b) Rule 4(9): The address for delivery must be a place located in British Columbia.
5) Rule 11(6.1): how to deliver a document to an address for delivery: leaving at office or mailing or
   faxing using Form 9 as Fax cover sheet (if solicitor), leaving with adult or putting in mail slot or
   affixing to door (if residential or business), mailing (if postal address), or fax.
   a) Rule 11(6.2): time restrictions on long faxes
   b) Rule 11(6.3, 6.4): Effective date
6) Rule 4(2): will require translating into English
7) Rule 4(4): documents must be headed with style of cause and number of the proceeding

                                       Pleadings: SofC, SofD, Reply
R.1: Pleadings are for actions (not originating applications), functions of pleadings, “delivery”
1) Rule 1(8) definition: pleadings are written statements exchanged between parties to an action
   commenced by writ of summons, and include:
   a) Statement of Claim
   b) Statement of Defence
   c) Reply
   d) Counterclaim
   e) Statement of Defence to counterclaim
   f) Third Party Notice
   g) Statement of Defence to Third Party Notice
2) Originating application documents (praecipe, petition, affidavits) are not pleadings (although the
   functions of these documents are similar to the functions of pleadings)

                                                                                                        18
3) The functions of pleadings are (whether modern pleadings fulfill these functions or whether pressures
   of time, lack of investigation or careless practice result in little to define and narrow issues so as to
   assist the resolution of the dispute is an open question):
   a) To give fair notice by informing the defendant of the case against them and the plaintiff of
        defences that will be put forward by the defendant (so want to avoid surprise);
   b) To permit effective and efficient discovery and preparation for trial (recall Rule 1(5) objective of
        speedy and inexpensive) by defining precisely the facts and points of law which are at issue;
   c) To reduce the number of and clarify the issues which are thought to be in dispute and thus
        promote resolution of the litigation;
   d) To permit choice of the appropriate mode of resolution of the dispute. E.g. a ruling on a point of
        law, the trial of one issue before the others, a summary proceeding under Rule 18A based on
        affidavits, mediation, settlement, etc;
   e) To serve as a record as to what the issues litigated were, which may be important if a claim of res
        judicata (i.e. matter already decided by the court) is raised in a subsequent proceeding;
   f) To enable the Judge to identify the issues in advance of the trial and prepare accordingly.
4) E.g. in a statement of claim, set out the full facts (should not withhold relevant information) and
   precedents and how they fit together convincingly. As a lawyer, be careful not to jump on your
   client‟s bandwagon – rather, be objective and assess strengths and weaknesses – but ultimately it is
   the client‟s case.
5) In an adversary system, the pleadings are the only documents that the trial judge is allowed to look at
   before the case begins (judges, to be impartial, are expected to come to the courtroom without any
   other prior knowledge of the parties or evidence).
6) Note Rules 1,4,11 in relation to “delivering” documents to a “party of record” (see above)




                                                                                                      19
Timelines, actions issuanceserveappearanceSofCSofD & counterclaimreply, petitions


                            ACTION                      R.21(5) D has 14 days
  R.8 Issued:                                           from time limited for
                                                                                             SofD +
                                                        appearance
  Writ + SofC                                                                                counterclaim
                             Served          Appearance
  Writ (no SofC)                                                      SofC          R.21(5) D
                   R.9 P has          R.14(3) D                                     has 14 days
                                                        R.20(2) P
                   12 months          has 7 days        has 21 days                      R.23(2) P
                   (can renew         (R.14(4)                                           has 7 days
                   if not             extension)
                   served)                                        Reply (and SofD to counterclaim etc)

     Generally:
     R.1(5): Rules for just, speedy and inexpensive determination of all proceedings
     R.1(11) & 3(3): parties may agree these timelines do not apply
     R.1(12) when court makes order, it can impose terms it thinks just
     R.2(1): failure to comply with Rules is generally irregularity, not nullity
     R.3 and IA: for interpretation of times
     R.3(2): the court may extend or shorten any period of time
     But must take seriously e.g. R.25(2) if miss deadline for SofD P can seek default judgement

                          ORIGINATING APPLICATION (not pleadings)
       R.10(4)
       Petition and                                    Response by
                                                                                                  Reply
       affidavits                Appearance            R with
                      R.14(3) R             R.10(6) R                                             by P
       served by P                                     affidavits R.10(7) P has
       on R           has 7 days            has 8 days             until notice of
                      (R.14(4)                                     hearing
                      extension)                                   delivered

R.19,20,21 Pleadings: brief as nature of case permits, state facts not evidence, not legal argument
1) Obviously want all pleadings to be simple and clear. E.g. in statement of claim list out facts in
   chronological order, and statement of defence should be like opening argument at trial (put forward
   your version of facts, admit any allegations that will not hurt your client, and normally include general
   denial of all allegations not specifically denied). Generally, use headings and subheadings to organize
   / split up pleadings. Will often agree to request from opposing counsel for time extension when
   reasonable, since all parties want good pleadings.
2) Must be brief:
   a) Rule 19(1): a pleading shall be as brief as the nature of the case will permit. The purpose of this
       rule is to eliminate long-winded, tedious, prolix pleadings. Lawyers will be required to balance
       brevity with the need to be clear, informative and not obscure.
   b) There is no requirement in the Rules that the pleader identify the cause of action being advanced,
       but the statement of claim must set out the material facts relied upon [Rule 19(1)] and the relief
       sought [Rule 20(5)]. See Alford v. Canada (Attorney General) (1997), 31 B.C.L.R. (3d) 228 at
       235, paras. 10-15 (S.C.)
   c) The pitfalls of lengthy and loosely drawn pleadings include the following:

                                                                                                      20
      i) They are inconvenient to use – the drafter, opponents and Judge will find it difficult to check
           or to bear in mind a long pleading in the course of a law suit.
      ii) They may suggest that the cause of action or defence is obscure or that the solicitor pleading
           has but a hazy idea of his or her position, like a “scatter-gun” answer in evidence.
      iii) They take a long time for the drafter to prepare and check, and increase the chance of error and
           the need for amendments.
      iv) If replete with detailed facts they increase the information available to the opposite party and
           open avenues that opposing counsel may explore on discovery, thereby unnecessarily
           lengthening the lawsuit and making it more expensive.
   d) If they contain detailed recitations of facts rather than summaries they may contain irrelevant
      details to which the party pleading commits him/herself. If some of these facts later prove to be
      incorrect, amendments may be required.
3) Should state material facts, not evidence:
   a) Rule 19(1): pleadings must contain a statement in summary form of the material facts (i.e.
      essential to prove all elements of your cause of action) on which the party relies, but not the
      evidence by which the facts are to be proved (e.g. the letter and telephone call to prove that a
      contract was made).
   b) The distinction between material facts and evidence is not always easy to make – a material fact is
      a fact necessary to establish a cause of action or defence, whereas evidence is information
      necessary to prove a material fact. If in doubt, include it within reason (otherwise opposing party
      may attack your pleadings).
   c) E.g. in an action against a retailer for damages caused by a defective product, it will be necessary
      to establish the product was purchased from the retailer. It is not necessary, however to plead all
      the facts surrounding the purchase, such as the time of day, how the plaintiff went to the store and
      other such details. This information constitutes the evidence by which the material fact will
      ultimately be proved.
4) Should not plead legal argument but should mention legal consequences of pleaded material facts:
   a) Long or complex statements of law, detailed propositions, arguments of law or bold conclusions
      of law should not be pleaded.
   b) Rule 19(9.1): conclusions of law may only be pleaded if the material facts supporting them are
      pleaded. For example, in F.G.M. Holdings Ltd. v. British Columbia (Workers’ Compensation
      Board) (2000), 79 B.C.L.R. (3d) 271 at 277, paras. 16-18 (S.C.) the court held that a claim in
      negligence must be supported by pleading the material facts to support a conclusion that the
      defendant was negligent, starting with pleadings of the facts that gave rise to a duty of care.
   c) Thus, pleading the result for greater clarity is permissible. In fact, in Famous Players Canadian
      Corp. Ltd. v. JJ Turner and Sons Ltd., [1948] O.W.N. 221 at 221-22 (H.C.) (referred to by the
      B.C. Supreme Court in Gold v. The Toronto Dominion Bank (1998), 25 E.T.R. (2d) 99, paras.
      20-22 (B.C.S.C.)) the Ontario High Court said that it is objectionable to simply plead facts without
      mentioning the legal consequences that the party contends flows from the facts – otherwise the
      opposite party and court may be left under a complete misapprehension as to the outcome which
      the party pleading will seek. Thus, although no requirement to plead the conclusion of law, there
      is no prohibition against doing so provided that the material facts supporting that conclusion are
      also set out in the pleading.
   d) But if plead a legal result, not bound to it and can rely on any legal result coming from the pleaded
      facts.
   e) Rule 19(9): a party is entitled to plead an objection in point of law i.e. to plead the insufficiency
      of the facts pleaded by the adverse party in relation to the relief claimed or the defence raised.
   f) Rule 19(15): subsequent to a statement of claim, a party must plead any point of law or fact that
      may dispose of the whole action or take the other party by surprise if not pleaded.

                                                                                                    21
   g) Accordingly, while it is proper to plead points of law such as the negligence of the defendant, the
      expiry of a limitation period, or the applicability of the Statute of Frauds, it is improper to set out
      the legal arguments behind such points or to set out bare conclusions of law without reference to
      the supporting material facts.

R.19,20,21 Pleadings: not anticipate defence, alternative but not inconsistent, denials & relief reqd
1) Pleadings should not plead presumed facts and should not anticipate a defence:
   a) Rule 19(3): a party need not plead a fact if the burden of disproving it lies on the other side.
       Taken with Rule 19(1), this means it is inappropriate to anticipate a defence in a pleading.
   b) E.g. a plaintiff would not refer to her contributory negligence in a statement of claim – that would
       be a defence to be raised by the defendant in the statement of defence.
2) Pleadings may contain alternative, but not inconsistent, allegations:
   a) Rule 19(7) prohibits inconsistent pleadings with regard to facts or claims. However, it is often
       necessary to set out allegations that are made in the alternative and this is acceptable [Rule 19(8)].
   b) E.g. a defendant may first plead no liability and then plead, in the alternative, that if he was
       negligent then the plaintiff was contributorily negligent. A failure to plead in the alternative may
       mean that the issues cannot be raised at a later date without amending the pleading, which may be
       costly or not be permitted.
   c) However, exercise caution when pleading alternative allegations of fact. E.g. a defence which
       pleads “I did not enter the property” and “alternatively, if I did enter the property, it was by
       invitation” is permissible, but creates serious credibility problems if evidence is ultimately
       adduced on each alternative defence. This problem does not arise if the alternative allegations
       essentially involve points of law to be decided by the judge.
3) If not denied in pleadings deemed admitted, can use general denial but not evasive denial:
   a) Although the terminology has become obsolete, pleadings in defence can still be separated into:
       i) The traverse (i.e. denials – the most common)
       ii) The confession and avoidance (i.e. admitting allegations but making affirmative allegations
            that lead to a different conclusion)
       iii) The demurrer (i.e. admitting the allegations but arguing they do not constitute a cause of
            action).
   b) Rule 19(19): if an allegation is not denied, it is deemed to be admitted.
   c) Rule 19(20): in a Statement of Defence, the defendant can make a general denial of all allegations
       made in the Statement of Claim that are not admitted (i.e. state “every allegation not specifically
       denied is denied”). This allows the defendant to admit only specific allegations from the
       Statement of Claim and deny all others, without making specific reference to each and every
       allegation.
   d) Rule 21(4): states that no denial of damages claimed or their amount is necessary – they are
       deemed to be in issue in all cases, unless expressly admitted. But see below Petersen v. Bannon
       (1993), 84 B.C.L.R. (2d) 350 (C.A.) on the issue of mitigation of damages.
   e) Rule 19(20): If a party intends to prove material facts that differ from those pleaded by the
       opposing party, a denial is insufficient and that party must also plead his/her own statement of
       facts affirmatively. Furthermore, although a short blanket denial of all allegations in a statement
       of claim may technically satisfy the requirements of the Rules, it is inadequate as a complete
       response.
   f) Rule 19(21) prohibits evasive denials and must instead answer the point of substance. E.g. if the
       plaintiff alleges that “the defendant offered a bribe of $500” it is evasive to plead “the defendant
       denies he offered a bribe of $500”. The meaning of the denial is not clear: did he offer a bribe of
       only $200, or no bribe at all? The B.C. Supreme Court has recently held that a general statement
       denying the allegations in the statement of claim does not answer the “point of substance” and

                                                                                                        22
      does not satisfy the requirements of this rule (see Borsato v. Basra (2000), 43 C.P.C. (4th) 96 at
      101, paras. 20-23 (B.C.S.C.)).
4) Must plead specific relief claimed, not amount of general damages, damages need not be denied:
   a) Rule 20(5): the statement of claim must “state the specific relief which the plaintiff claims, and
      may ask for relief in the alternative”.
   b) Rule 19(28): It is, however, unnecessary to conclude by pleading general relief (such „prayer for
      relief‟ is typically worded: “Such further and other relief as to this Honorable Court may seem
      just”) but this is not prohibited and is done as a matter of practice. This rule apparently in conflict
      with From 13, and in Sandes v. Brown (1979), 16 B.C.L.R. 341 at 343 (Co. Ct.) should generally
      conclude with a prayer for relief.
   c) Rule 19(29): if there is a claim for amount of general damages shall not be specified, whereas
      special damages must be specifically claimed and proved.
   d) Rule 21(4): in the statement of defence, no denial of damages claimed, or their amount, is
      necessary. Rather damages are deemed to be put in issue in all cases unless admitted.
      i) Petersen v. Bannon (1993), 84 B.C.L.R. (2d) 350 (C.A.)
          (1) Facts: P claimed damages following a motor vehicle accident. The trial judge reduced the
               award on the basis that P failed to mitigate his damages as required by law. However, D
               did not claim that mitigation should have occurred in his statement of defence.
          (2) Issue: Can the judge independently reduce damages if such a reduction is not claimed in
               the pleadings?
          (3) Decision: for P
               (a) The purpose of pleadings is to allow the parties to meet the various allegations. Here,
                   the judge addressed an issue that had not been pleaded
               (b) Note that a general denial of damages does not raise the positive allegation of failure to
                   mitigate. Rather,
               (c) Rule 21(4): Damages are always deemed to be in issue unless expressly admitted – so,
                   it is not necessary to deny the allegation that the Plaintiff has suffered damages.
                   However, you do have to allege a failure to mitigate damages in pleadings.
          (4) Comment: Rule 19(15): in pleading subsequent to a statement of claim, party shall plead
               specifically any matter of fact or point of law that if not specifically pleaded, may take
               other party by surprise
R.19: Particulars required in some actions, may request in writing then seek order
1) Particulars are the details of the claim and may be demanded by either party.
2) The function / purpose of particulars (see Cansulex Ltd. v. Perry (March 18, 1982), Doc. Vancouver
   C785837 (B.C.C.A.) applied in Tse-Ching v. Wesbild Holdings Ltd. (1994), 98 B.C.L.R. (2d) 92 at
   100 (S.C.); Rumley v. British Columbia (1998), 72 B.C.L.R. (3d) 1 (C.A.)):
   a) To inform the other side of the case they have to meet
   b) To prevent the other side from being taken by surprise at trial
   c) To enable the other side to determine what evidence will be necessary
   d) To limit the generality of the pleadings
   e) To define the issues which will be tried
   f) Recall Rule 1(5): to make proceedings more efficient
3) Rule 2(2) for remedies when failure to comply with Rules (recall under Rule 2(1) such failure
   generally an irregularity rather than rendering proceeding a nullity): IF pleadings such as statement of
   claim or statement of defence is deficient, Defendant can request further / better particulars (Rule
   19(16), (17))




                                                                                                      23
4) The demand for particulars often creates a conflict between a party‟s right to proceed with an action
   (e.g. if the party has incomplete or inadequate knowledge of the matters in question it can narrow a
   claim substantially or prevent a claim from proceeding) and a party‟s right not to be surprised at trial.
5) Rules 19(11) and (11.1): in actions based on misrepresentation, fraud, breach of trust, willful default
   or undue influence, or, more generally, where particulars may be necessary, full particulars must be
   stated in the pleadings to the extent that they are known at the time of the pleading.
6) Rules 19(16) and (17): a party may first demand particulars in writing from the other party, after
   which the court may order a party to deliver “further and better particulars of a matter stated in a
   pleading”. The party has 10 days in which to respond [Rule 19(11.1)].
7) The granting of an order for particulars is discretionary and it is not always easy to predict. It has
   been held that discovery is not a substitute for particulars – the contention that what is demanded can
   be obtained on discovery is no reason to refuse an order for particulars properly sought. Further, if
   what is sought in a demand for particulars is best known to the party demanding it is no reason to
   refuse the order (see G.W. L. Properties Ltd. v. W.R. Grace & Co. of Canada (1993), 79 B.C.L.R.
   (2d) 126 (S.C.)).
R.23: Reply, only for issues newly raised in statement of defence, generally pleadings then closed
1) A reply by the plaintiff to the defendant‟s statement of defence is only to reply to issues newly raised
   in the statement of defence that were not in the statement of claim (otherwise, if you want to raise
   something you forgot in your statement of claim, or reword it, you need to follow the procedures for
   amending pleadings – see below)
2) Rule 23(2): Plaintiff has 7 days to reply after statement of defence delivered
3) Rule 23(3): leave of court is required for any subsequent pleadings
4) Rule 23(5), (6), (7): if no reply is delivered within time, pleadings are closed, and material statements
   of fact in the statement of defence are deemed to have been denied and put in issue i.e. joinder (so do
   not use a Reply to simply deny facts in statement of defence)
R.19(24): Attacking pleadings/endorsements/petitions: no reas claim/defence, frivolous, delay, etc
1) A plaintiff‟s pleadings must set out allegations of fact which, if true, would entitle him or her to the
   relief claimed. A defendant‟s pleadings must similarly plead facts that, if true, would defeat or abate
   the plaintiff's claim.
2) Rule 19(24): pleadings (and endorsement, petitions or other documents) may be attacked and a court
   may strike out or amend in whole or part the pleadings, on the grounds that:
   a) R.19(24)(a): They disclose no reasonable claim or defence
       i) For endorsements, see Rule 8(2) above.
       ii) Rule 19(27): In such an application, only the pleading itself is considered and no evidence, and
            the court acts on the assumption that all the facts in the impugned pleading are true
       iii) The “plain and obvious” test is used to determine if a statement of claim discloses no
            reasonable cause of action. Only if the action is certain to fail because it contains a radical
            defect should the action be struck. The court will ask itself whether there is a question fit to be
            tried regardless of its complexity or novelty or strength of defence (the common law is capable
            of development and taking new directions). Leading case is Hunt v. Carey Canada (1990),
            49 B.C.L.R. (2d) 273 (S.C.C.).
   b) R.19(24)(b): They are unnecessary, scandalous, frivolous or vexatious
       i) Allegations are “scandalous” if they are indecent or offensive or charge misconduct or bad
            faith and, in addition, would not be admissible in evidence to show the truth of other material
            allegations. See Kripps v. Touche Ross & Co. (1992), 69 B.C.L.R. (2d) 62 at p 68 (C.A.)
       ii) Allegations are “frivolous or vexatious” if obviously unsustainable or not brought in good
            faith.
   c) R.19(24)(c): They may prejudice, embarrass or delay a fair trial

                                                                                                        24
         i) A pleading is “embarrassing” if it sets out facts that would not be allowed to be proved (e.g.
             double hearsay)
         ii) However, allegations are not “embarrassing” if they are relevant to a particular cause of action
             no matter if the opposite party is perplexed, astonished, startled or annoyed.
     d) R.19(24)(d): They are otherwise an abuse of the court‟s process.
         i) A pleading is an ”abuse of process” if it is made in the knowledge that there is no cause of
             action or defence, or if it is made for some improper collateral purpose (e.g. extortion)
         ii) The Rules in this regard confirm the inherent jurisdiction of the British Columbia Supreme
             Court to prevent abuse of its process.
3)   Rule 19(24): court may strike out a pleading in whole or in part
4)   Rule 57(3),(4): Court can order special costs which will only include costs that were reasonably
     necessary, and registrar can consider the conduct of any party that tended to shorten or lengthen the
     proceeding
5)   Rule 2(2)(d): after a failure to comply with rules the court may dismiss the proceeding, or strike out a
     statement of defence and grant judgment
6)   Even if a pleading is successfully attacked, the result in many cases will be that the party will be
     permitted to amend the pleading, which is one of the remedies the court can order under Rule 19(24).

                   Joinder of claims/parties, amending pleadings, adding party/claim
R.5: Joinder of multiple claims to avoid multiplicity of proceedings, but court may separate
1) A claim is the assertion of a right to either a payment or an equitable remedy (regardless of whether
    the claim is disputed, has been reduced to judgment, liquidated or matured).
2) A cause of action is a claim in law and fact sufficient to demand judicial attention; the collection of
    facts necessary to give rise to the enforcement of a right (a right of action is the legal right to sue, and
    the cause of action is the set of facts that give rise to a right of action).
3) A single incident may give rise to several different claims. E.g. an accident in which a spouse is killed
    from using a defective product, may lead to compensation for the surviving spouse from the seller,
    either based on the contractual relationship between buyer and seller, or based on the grounds of
    negligence of the seller. E.g. automobile accident kills one spouse and injures the other, surviving
    spouse may have a claim in regard to his or her own personal injuries, as well as a claim based on loss
    of income support from the deceased.
4) Alternatively, a plaintiff may have a number of unrelated claims against the same defendant.
5) If multiple proceedings were taken, there would be potential for undue delay, increased expenses and
    inconsistent findings at trial.
6) Rule 5 provides for the joining of several claims in the same proceeding, to avoid a multiplicity of
    proceedings in regard to the same events or involving the same parties, by permitting joinder of
    multiple claims. See also Law and Equity Act, R.S.B.C. 1996, c.253, s.10 (avoidance of multiplicity
    of proceedings).
7) Rule 5 contains the more traditional rules for collecting a variety of claims into a single action –
    should also consider the Class Proceedings Act, which might provide a more effective procedure for
    trying issues (see Chace v. Crane Canada Inc. (1997), 44 B.C.L.R. (3d) 264 (C.A.)).
8) Rule 5(1): Joinder of claims is available as a general right – a party “may join several claims in the
    same proceeding”.
9) Rules regarding joinder are to be construed liberally, and the modern trend is to encourage joinder
    (see Kanii Holdings Ltd. v. Musgrave, [1974] 2 W.W.R. 173 (S.C.)).
10) Rule 5(6): Court may order separate trials or other orders it considers just where joinder of claims
    would unduly complicate or delay the trial or be otherwise inconvenient. There‟s no precise rule as to
    how the Court decides this, but the court will look for a connection between claims. E.g. the


                                                                                                         25
   complication of trying unrelated multiple claims together must be balanced against the delay or
   inconvenience that might occur by separate trials (see Wirtz v. Contantinie (1982), 137 D.L.R. (3d)
   393 (B.C.S.C.)).
R.5: Joinder of multiple parties (either multiple defendants and/or multiple plaintiffs)
1) It is desirable that all persons having an interest in the subject matter of a proceeding be joined either
   as plaintiff or petitioner, or as defendant or respondent, so that:
   a) All the issues may be appropriately decided between all parties potentially liable
   b) Multiplicity of proceedings is avoided
   c) Same question is not tried twice with possibly different results.
   d) Avoid separate actions where defendants may blame one another and result in inconsistent
        decisions, leaving a plaintiff without remedy, or a particular defendant with an inappropriate share
        of the blame
   e) Avoids subsequent actions between the defendants
   f) Avoids problems with res judicata which bars party from raising same issue a second time:
        i) Comes from interest to have matters decided finally
        ii) Individuals should not be subject to court proceedings again
        iii) Hence onus on plaintiff to have all issues and aspects of claim argued in one proceeding
2) Rule 5(2) provides that a proceeding can be commenced by or against 2 or more persons where:
   a) there are common questions of law or fact, or
   b) a right to relief arises out of the same transaction or series of transactions, or
   c) the court grants leave to do so.
3) Rule 5(6): Court may order separate trials or other orders it considers just where joinder of parties
   would unduly complicate or delay the trial or be otherwise inconvenient.
4) Some considerations with joinder of multiple plaintiffs:
   a) Rule 5(3): P must join all other parties who are jointly entitled to the relief claimed i.e. if
        necessary parties are not joined the court cannot effectively adjudicate. If the party consents, then
        he/she is joined as a plaintiff or petitioner; otherwise as a defendant or respondent. See also Rule
        5(9) below.
        i) Whether a person is jointly entitled with another depends on the substantive law applicable in
             each case. There may be joint entitlement with respect to rights arising under contract, statute,
             or tort e.g. where damage has been done to partnership property.
        ii) Other necessary parties include:
             (1) Rule 8(14) states that all beneficiaries under the testator‟s will whose interest may be
                 affected by the order sought shall be joined.
             (2) Rule 62(4) lists persons who must be joined in an administration of estate action.
   b) Normally co-plaintiffs must be represented by the same counsel, although conflicts of interest can
        easily arise when one counsel represents multiple parties in one proceeding (see Gunderson v.
        Knudsen (1994), 91 B.C.L.R. (2d) 178 (Master, B.C.S.C.)).
   c) If co-plaintiffs fail to make out their claim, they may be jointly liable for costs – if one cannot pay,
        the entire burden falls on the other, including any increased costs created by the joinder.
   d) Delay may result due to additional discovery proceedings, especially where they are prolonged in
        regard to one particular plaintiff. Delay may also result where counterclaim or third party
        proceedings are taken by one of several co-plaintiffs.
   e) In personal injury claims, one plaintiff may be ready for trial while the other is still undergoing
        treatment.
   f) Discovery evidence of one plaintiff may be embarrassing to the other, or recollections of plaintiffs
        may differ, presenting counsel with a difficult problem.
5) Some considerations with joinder of multiple defendants:


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   a) A plaintiff should normally join as defendants or respondents all persons against whom relief
       might be available. If in doubt as to which of several may be liable, a plaintiff should join all of
       them, making alternative claims. But lawyer must consider potentially higher liability for costs if
       lose
   b) E.g. house was represented as free of termites, when, in fact, it had a severe termite problem, the
       purchaser joined the real estate agent, the previous owner, and the inspector performing a pre-
       purchase evaluation.
   c) E.g. of rule 5(2): A‟s car is damaged when forced off the road by B‟s car, then A‟s car further
       damaged when negligently towed by C. A can join B and C in the same proceeding since there is
       a common question of fact (the damage done to A‟s car in each incident) even though the right to
       relief does not arise out of the same transaction.
   d) Rule 5(4):
       i) Where liability of two or more persons is joint and several, the plaintiff may elect which of
           them to sue
           (1) Negligence Act, R.S.B.C. 1996, c.333, s.4 provides that where 2 or more persons are found
                at fault in causing the plaintiff‟s loss or damages, they are jointly and severally liable to the
                plaintiff. However, where a plaintiff has been contributorily negligent, along with one or
                more defendants, the Negligence Act, s.1 restricts the right of recovery against each party
                to the degree each party is at fault (see Leischner v. West Kootenay Power and Light
                Company (1983), 45 B.C.L.R. 204 (S.C.). This clearly makes it very important for a
                plaintiff to join as defendants all parties who might be liable in any proportion for the
                plaintiff's injuries, if there is a possibility that the plaintiff may have been contributorily
                negligent.
           (2) The defendant cannot compel the plaintiff to join as defendants others who may be jointly
                and severally liable. However, the defendant may join such persons as third parties: Rule
                22.
       ii) Where jointly but not severally liable, the defendant may apply for a stay of proceedings until
           the plaintiff joins other persons who are jointly liable. However, proceedings may continue
           against the originally named defendant alone if the other person cannot be found or is beyond
           the jurisdiction of the court.
6) A party that has been joined can apply to have a separate trial pursuant to Rule 5(6) or can apply to be
   removed as a party under Rule 15(5)(a)(i).
7) Rule 5(9) provides that no proceeding shall be defeated by reason of the misjoinder or nonjoinder of a
   party.
   a) However, in a recent decision this sub-rule did not save or excuse the non-joinder of persons who
       “pretty clearly” fell within the terminology of “other person jointly entitled” to the relief claimed
       in the transaction (see Clark v. Teamsters, Local 464 (1998), 157 D.L.R. (4th) 499 (B.C.S.C.)).
8) See Rule 15(5) for adding and substituting parties.
R.5: Consolidation of proceedings (unlike joinder since retains separate identity of each action)
1) Rule 5(8) provides for consolidation of proceedings (distinguished from joinder as it does not destroy
   the separate identity of each action). Although „proceedings‟ includes actions commenced by writs of
   summons and originating applications commenced by petition, proceedings of two types should not be
   consolidated because of difference in procedure.
2) The factors to consider in the exercise of discretion under this rule are (see Shah v. Bakken (1996),
   20 B.C.L.R. (3d) 393 (S.C.), Merritt v. Imasco Enterprises Inc. (1992), 2 C.P.C. (3d) 275
   (B.C.S.C.), Insurance Corp. of British Columbia v. Sam (1998), 6 C.C.L.I. (3d) 228 (B.C.S.C.),
   Brown v. Lolly, [2002] BCJ No. 2763 (SC)):
   a) It is discretionary and its purpose is to avoid multiplicity of proceedings


                                                                                                          27
   b) Whether they are “so interwoven as to make separate trials at different times before different
       judges undesirable and fraught with problems and economic expense”
   c) whether there is a common question of law or fact so that it is desirable to dispose of both at the
       same time
   d) whether the order will create a savings in pre-trail procedures
   e) whether a real reduction in trial days will result
   f) whether there will be a real savings in experts‟ time and witness fees
   g) the potential for a party to be seriously inconvenienced by being required to attend a trial in which
       that party may have only a marginal interest
   h) whether one action is at a more advanced stage
   i) whether an order results in delay of trial and if so, whether will prejudice one party
   j) inconsistent results
3) As noted in Merritt v. Imasco Enterprises Inc. (1992), 2 C.P.C. (3d) 275 (B.C.S.C.) a decision to
   consolidate two proceedings need not be decided upon solely on the basis of pleadings at the time the
   application is made, since (unlike Rules 19(24) and 27(22)) it is not an examination at one moment in
   time, but must consider the upcoming pre-trial and trial processes. In that case, the Master ordered an
   adjournment of the application so that discovery and amendments to statements of claim and defence
   could continue, after which there would be a better understanding of whether consolidating the two
   actions would be appropriate.
R.24, LA.4: amending pleadings, one free, any with consent, rest at Court’s discretion
1) Reasons for amending pleadings:
   a) Rule 2(2)(c): If failure to comply with rules Court may order pleadings be amended under Rule 24
       (recall under Rule 2(1) such failure generally an irregularity rather than rendering proceeding a
       nullity)
   b) If pleadings successfully attacked by defendant under Rule 19(24), Court can order pleadings be
       struck or amended under that Rule
   c) A lawyer may also wish to amend a pleading if there has been an error or omission made by the
       draftsperson
2) Rule 24(3): amendments must be dated, identified and underlined (see the legal assistant‟s “bible” for
   good info on amendments)
3) Rule 24(1):
   a) A party gets one “free” amendment (leave of court and consent not required, recognizes it‟s
       difficult writing pleadings early on in proceedings before all the facts and arguments are apparent)
       to an originating process or pleading prior to delivery of a trial notice
   b) Party can amend at any time with written consent of parties.
   c) These are both subject to:
       i) Rule 15(5) (see adding new parties below) and
       ii) Rule 31(5) – a party is not entitled to withdraw an admission except by consent or with leave
           of the court
4) Rule 24(1): The more common situation is for the court to exercise its discretion to grant leave to
   amend a pleading upon the application of the party seeking to do so.
   a) Generally, amendments should be allowed if they can be made without injustice to the other side.
       There is no injustice if the other side can be compensated in costs. “[I]f the true points in issue are
       to be determined, and real justice to be done, the pleadings should not be too rigidly adhered to,
       and the Court should make amendments as are necessary in the proceedings for the real rights of
       the parties to be determined.” See Eshelby v. Federated European Bank, (1932) 1 K.B. 254 at
       259.



                                                                                                       28
   b) This general rule is supported by Rule 1(5) which states that the object of the Rules “is to secure
      the just, speedy and inexpensive determination of every proceeding on its merits”, and Rule 2(1)
      which states that failures to comply with the rules are irregularities which do not nullify
      proceedings unless a court so orders, and the Law and Equity Act s.10 which further encourages a
      final determination of all matters in controversy between the parties.
   c) Teal Cedar Products (1977) Ltd. v. Dale Intermediaries Ltd. (1996), 19 B.C.L.R. (3d) 282 at
      299-300 (C.A.)):
      i) Facts: P‟s lawyer advised him not to take major action (full recovery of damages under
          insurance policy) against D because he wouldn‟t win (it was thought P‟s building had
          structural design fault that led to damage to roof), so P brought lesser action. After a
          contractual limitation period had expired by about 10 months (insurance policy said all actions
          must be brought within one year), lawyer changed his opinion and so P applied under Rule
          24(1) to add a new claim (the major action originally considered) to his original lesser action.
      ii) Decision: for P – amendment allowed
          (1) Under Rule 24(1) discretion to permit amendments to pleadings is unfettered, subject only
              to the general rule that discretion must be exercised judicially (i.e. must be cogent, logical
              reasons for it)
          (2) Considerations the court will assess, whether the application is to amend generally or add
              new parties or new causes of action, are (and no single one is determinative):
              (a) Overriding question of what is just and convenient (these are relevant criteria as it is a
                  discretionary decision, even though those words are not found in Rule 24(1), but they
                  are found in Rule 15(5)(a)(iii) for adding a party and much case law on those words
                  under that Rule).
              (b) Limitation periods expired (if so, see below)
              (c) Prejudice to the other party (e.g. has party been misled by the pleadings, has right to
                  know the case they have to meet, how close to trial date is application to amend and
                  hence is there sufficient time to prepare, will plaintiff be unable to recover without
                  amendment)
              (d) Connection between existing claim and proposed new cause of action
R.15: if amendment adds new party need Court order (3 ways: ought/necessary/just & convenient)
1) If an amendment results in a new party being added or substituted, Rule 15(5) applies and a court
   order is always required.
2) Rule 15(5) permits the addition of a party at any stage of the proceedings in three circumstances:
   a) Rule 15(5)(a)(ii): Where such person “ought to have been joined as a party” (e.g. where employer
        is vicariously liable but you only named the employee).
        i) The meaning of this is not clear – it may refer to provisions which make joinder of certain
            parties mandatory and to the substantive law which determines whether the proceeding must
            fail in the absence of such party. Or it may simply refer to a person who might properly have
            been joined under Rule 5(2) in the first place and who ought, in order to save expense or a
            multiplicity of proceedings, now be added.
        ii) In Cominco Ltd. v. Westinghouse Canada Ltd. (No. 2) (1978), 7 B.C.L.R. 305 (C.A.) the
            plaintiffs sought to join as a defendant a party who recently discovered evidence suggested
            might be liable in negligence together with, or instead of, the existing defendants. The Court
            of Appeal held specifically that the proposed defendant was not a “necessary” party but
            nevertheless ordered his joinder on the basis that he “ought to have been joined had the
            plaintiff been aware of the facts of which it now has knowledge”. This finding suggests that
            the phrase “ought to have been joined” refers to convenience rather than to necessity.



                                                                                                      29
      iii) However, in Enterprise Realty Ltd. v. Barnes Lake Cattle Co. Ltd. (1979), 13 B.C.L.R.
           239 (C.A.) the same Court of Appeal referred with approval to the judgment of Devlin J. in
           Amon v. Raphael Tuck and Sons Ltd., [1956] 1 All E.R. 273 (Q.B.) in which, following an
           historical analysis of the jurisprudence, the learned judge concluded that the primary object of
           the Rule was to replace the old “plea in abatement” and that the phrase “ought to have been
           joined” relates to the common law practice of joining only necessary parties. That is, parties
           without whose presence in the proceeding the claim must fail (such as joint contractors).
   b) Rule 15(5)(a)(ii): Where the participation of such person “is necessary to ensure that all matters in
      the proceeding may be effectually adjudicated upon”
      i) In considering whether the joinder of the person is “necessary” it has been held that the
           presence of the party in the action must be shown to be essential to the resolution of the issues
           between the existing parties in the litigation and that it is not enough simply to show that it
           would be convenient to try an issue by or against such person at the same time as existing
           issues
   c) Rule 15(5)(a)(iii): Where there may exist between such person and any party to the proceeding a
      question or issue relating to or connected with
       any relief or remedy claimed in the proceeding, or
       with the subject matter of a proceeding,
      which in the opinion of the court it would be just and convenient to determine as between such
      person and that party.
      i) Added in 1980, goes a long way to equating the test for the initial joinder of a party with that
           of a subsequent joinder (and see also its relationship to third party joinder).
      ii) The test of what is “just and convenient” is a broad one. All relevant factors should be
           considered and no single factor is determinative.
      iii) However, where the addition of a party would raise new and complex issues offsetting any
           saving in time or money gained, the addition may not be just and convenient. See A.G.
           Canada v. Aluminium Co. of Canada Ltd. (1987), 10 B.C.L.R. (2d) 371 (C.A.), Tri-Line
           Expressways v. Ansari (1997), 143 D.L.R. (4th) 100 at 106-07 (B.C.C.A.) and Hui v. First
           Avenue Marketplace (1997), 38 B.C.L.R. (3d) 52 at p. 59 (B.C.C.A.).
R.15,LAs.4: Amending pleadings: adding new party/cause of action after limitation period expired
1) Limitation Act s.4: (see also below under Limitation periods)
   a) s.4(1): once an action has been commenced, limitation periods do not apply to bar the following
      claims if related or connected to the subject matter of the original action:
      (a) counterclaims (including adding a new party as defendant by counterclaim)
      (b) third party proceedings
      (c) claims by way of set off
      (d) adding or substituting a new party as plaintiff or defendant
   b) s.4(2): subsection 1 doesn‟t apply if the original action was outside limitation periods
   c) s.4(3): all judicial discretion unrelated to the lapse of time remains
   d) s.4(4): court may, as its considers just, allow amendment that contains a fresh cause of action
      even if that cause of action became barred by lapse of time after issue of writ but before date of
      amendment
2) Teal Cedar Products (1977) Ltd. v. Dale Intermediaries Ltd. (1996), 19 B.C.L.R. (3d) 282 at 299-
   300 (C.A.)):
   a) Facts: P‟s lawyer advised him not to take major action (full recovery of damages under insurance
      policy) against D because he wouldn‟t win (it was thought P‟s building had structural design fault
      that led to damage to roof), so P brought lesser action. After a contractual limitation period had
      expired by about 10 months (insurance policy said all actions must be brought within one year),


                                                                                                     30
      lawyer changed his opinion and so P applied under Rule 24(1) to add a new claim (the major
      action originally considered) to his original lesser action.
   b) Decision: for P – amendment allowed
      i) For purposes of discretion under Rule 24(1) and s.4(4) of Limitation Act, considerations the
           court will assess are (and no single one is determinative):
           (1) Overriding question of what is just and convenient (these are relevant criteria as it is a
               discretionary decision, even though those words are not found in Rule 24(1), but they are
               found in Rule 15(5)(a)(iii) for adding a party and much case law on those words under that
               Rule).
           (2) The length of delay (generally want to protect D‟s right to feel secure and arrange their
               affairs after limitation periods have expired, so longer the delay after limitation period then
               more favours not allowing amendment – here only a “few months”)
           (3) Reasons for the delay (e.g. was it excusable in some way, perhaps due to facts not being
               available or due to honest mistaken opinion of lawyer as here (i.e. some „culpability‟ can
               be excused) – leave to add a new cause of action should not be refused solely because the
               plaintiff‟s conduct was a deliberate decision to not add cause of action earlier i.e.
               voluntarily tardy – or was it due to purposeful causing of delays to gain time)
           (4) Prejudice to the other party (e.g. has party been misled by the pleadings, has right to know
               the case they have to meet, how close to trial date is application to amend and hence is
               there sufficient time to prepare, will plaintiff be unable to recover without amendment)
           (5) Connection between existing claim and proposed new cause of action
3) Bukmeier v. Creyke (1998), 19 C.P.C. (4th) 31 (B.C.S.C.):
   a) Facts: P alleged she was injured when car she was in was hit by a police car. Under the Police
      Act, the police officer had to be grossly negligent to be personally liable. P only claimed
      negligence originally and only against the police office.
      i) After limitation period had expired, P amended her statement of claim to add gross negligence
           in the alternative, and D challenged this saying it constituted a new cause of action which is
           barred by the Limitation Act.
      ii) P also sought to join Her Majesty so that if found to be ordinary negligence, the Crown will be
           vicariously liable for damages. Such new cause of action would, on its own, be barred by the
           Limitation Act.
   b) Decision:
      i) Court agreed amendment to add “gross” not really necessary, since Court would have had to
           characterize any found negligence anyway
      ii) The Court agreed to join the Crown, and stated: the expiration of a limitation period is not
           necessarily a bar to adding a party under Rule 15(5) if it is just and convenient to do so.
      iii) In deciding such matters, the court should consider the following 5 factors to determine
           discretion (and no one is determinative):
           (1) The length of delay
           (2) Reasons for delay (i.e. is it excusable in some way, e.g. counsel wasn‟t aware of need to
               join or perhaps didn‟t join on purpose, or perhaps lack of funds to bring the case)
           (3) Expiry of a limitation period
           (4) Prejudice to the parties (in this case, if the Crown is not joined and only ordinary
               negligence is found, then P will recover nothing, but where a limitation period has expired
               prejudice must be presumed, but is the defendant really in any worse position than prior to
               limitation period expiring e.g. was any opportunity to investigate lost)
           (5) Degree of connection between the existing claim and the proposed new cause of action
               (very great here)
4) Bank of Montreal v. Ricketts (1990), 44 B.C.L.R. (2d) 95 (C.A.)

                                                                                                       31
   a) Facts: The roof of a building collapsed. Within the limitation period, in the original writ P
      brought action against the engineering firm that employed D. The engineering company filed a
      statement of defence as a company despite having been struck off the corporate register which was
      known to D at the time. P found out and deliberately decided not to add D‟s until after the
      limitation period lapsed, when it then applied to amend and join the individual engineers
      personally under Rule 15. D challenged the amendment.
   b) Decision: for D
      i) Under Rule 15(5)(a), a party may be added where it is just and convenient.
      ii) Locke J.A.:
           (1) Here it was convenient, but not just because the decision not to join the individual
               engineers earlier was made deliberately with knowledge by P i.e. P acted voluntarily in
               this case to not name the engineers before the limitation period ran out
           (2) The policy behind Limitation Act s.4 (allows the addition of a party after the expiry of a
               limitation period) is not to authorize luxury or change of mind.
      iii) Gibbs J.A.:
           (1) P did not adequately account for the long delay in adding the employees in the pleadings.
           (2) P also failed to rebut prejudice to D, namely the inevitable deterioration of the evidence,
               and D‟s interest in being secure in knowledge that limitation period has passed so they can
               order their affairs accordingly
      iv) Dissent – MacEachern C.J.:
           (1) Action began against company in allowable time and the engineers as its principals had
               timely notice of the action.
           (2) They also contributed to the delay by purporting to represent a company that had been
               struck from the Alberta registry.
      v) Warning: the idea that amendment should not be allowed simply because decision was
           deliberately taken not to add party beforehand (which might be for innocent wrong opinion)
           was rejected in Teal Cedar Products (1977) Ltd. v. Dale Intermediaries Ltd. (1996), 19
           B.C.L.R. (3d) 282 at 299-300 (C.A.)
5) Lui v. West Granville Manor Ltd. (1985) 18 DLR 4th 391 (B.C.S.C.), affm (1987), 11 B.C.L.R. (2d)
   273 (C.A.)
   a) Facts: P brought an action for damages caused to their building which subsided due to foundation
      excavations in the neighbouring lot owned by D. The claim was settled between P and D. Over 2
      years after the subsidence, D initiated 3rd party proceedings against an engineering firm and
      contractor who did the work, and as well as claiming for indemnity or contribution for damages
      owed by D to P, D also claimed separate damages for damage to their land.
   b) Issue: Was this latter claim simply D trying to piggyback a new action on the original action – the
      two third parties claimed it should not be allowed since past limitation period.
   c) Decision:
      i) C.A. stated that no limitation defence can apply to a third party proceeding under s.4(1) unless:
           (1) Started after limitation period
           (2) Capable of standing alone
           (3) No real and substantial connection to original action such that:
               (a) Third party proceeding to some degree is dependent on original action and
               (b) Failure to take steps within the time limit was explained by that dependence
      ii) C.A. later added that generally, if no new party added, no limitation defence for a subordinate
           proceeding under s.4(1), but if a new party is added, court can consider limitation defence (and
           see Rules 15(5), 21(13), 22(1) & (4)).
      iii) However, the court can still decide whether to permit s.4 proceedings. The legislative purpose
           of s.4 is to prevent writs from being served at the last moment before a limitation period

                                                                                                    32
           expires, making it impracticable for any counterclaim or 3rd party proceeding to be brought in
           time. But one cannot bring proceedings which are truly independent by using bogus
           subordinate status to original action to avoid an otherwise applicable limitation period.
      iv) Thus, to determine whether a 3rd party proceeding can stand alone, there must be some real and
           substantive connection and dependency between the 3rd party proceedings and the original
           action. This connection must also operate to explain why the 3rd party proceedings were not
           brought as an independent action. There must be some degree of dependence by the 3rd party
           proceedings on the original action before they can be piggybacked over the limitation period
      v) Must balance the interests of justice and convenience in relation to all the parties. Look at
           explanation of the party seeking to use s.4 and the prejudice to the 3rd party.
6) ASM Capital Corp. v. Mercer International Inc., 1999 B.C.C.A. 353
   a) Facts: Over two years after action commenced, D wanted to amend their statement of defence and
      counter-claim to add two new claims against P (breach of trust and breach of fiduciary duty),
      which would otherwise be statute-barred. P opposes amendment.
   b) Decision: for P – amendment not allowed
      i) s.4(1) (a) through (d) is for the commencement of those proceedings, not their subsequent
           amendment (since otherwise there would be no need for s.4(4), and would create procedural
           unfairness and impracticality because you could be amending counterclaims for example
           forever, whereas plaintiff would not have such freedom)
      ii) s.4(4) gives courts the discretion to grant such amendments (and applies here, to amend a
           counterclaim to allege a new cause of action that was not statute barred at time plaintiff
           commenced action but has now become so). Such discretion will be exercised by considering
           3 factors:
           (1) Relative prejudice to the parties (and traditionally there is a presumption of prejudice in
               favour of the party opposing the amendment – see Med Finance Co. v. Bank of Montreal
               (1993), 79 B.C.L.R. (2d) 222 (C.A.), though this has been questioned in more recent
               decisions – see Teal Cedar Products (1977) Ltd. v. Dale Intermediaries Ltd. (1996), 19
               B.C.L.R. (3d) 282 at 299-300 (C.A.) and Tri-Line Expressways v. Ansari (1997), 143
               D.L.R. (4th) 100 at 106-07 (B.C.C.A.)).
           (2) Length of the delay in seeking the amendment
           (3) D‟s explanation of the delay
      iii) In this case, much of the new cause of action in the amended counterclaim was already statute
           barred at the time the plaintiff commenced the action, and so those amendments not permitted.
           As to the others, the above factors favour P: P would lose a limitation defence and trial date
           and have increased costs (since it would have to conduct further discovery, interviews with
           witnesses whose memories are fading, longer trial, etc), and D did not explain why they didn‟t
           being the counterclaim earlier (it was known to them). Hence amendments disallowed.
      iv) Although not really relevant (since it is s.4(4) that applies), found that the new counterclaims
           were unrelated to the original action (other than involving the same parties) and noted s.4(1)
           requires connection to the subject matter of the original matter (not just to the parties)
7) See also Cementation Company (Canada) Limited v. American Home Assurance Co. (1989), 37
   B.C.L.R. (2d) 172 at 179 (C.A.), Brito (Guardian Ad Litem of) v. Wooley (1997), 15 C.P.C. (4th)
   255 (B.C.S.C.)), West Fraser Mills Ltd. v. Chouinard (1993), 79 B.C.L.R. (2d) 321 (C.A), and.

                              Counterclaims, Set-off, Third party notice
R.21: Counterclaims (indep claim, if convenient, adding new party), Set-off (dependent claim)
1) A counterclaim is an independent cross-action or claim made by the defendant against a plaintiff (or a
   plaintiff and another person) that, because of the identity of the parties, can conveniently be raised


                                                                                                   33
    within the pending action. As an independent action, the counterclaim has its own life, and so a court
    may hear the counterclaim even if the original action is dismissed or discontinued. It usually, but not
    always, involves a cause of action arising from the same set of facts involved in the original action.
    The defendant may also raise in a counterclaim a cause of action that is unrelated to the plaintiff's
    claim.
2) E.g. in a two-car collision, the plaintiff alleges liability on the part of the defendant and sues for
    damages. The defendant may not only deny liability, but may claim the actual cause of the accident
    was the plaintiff's negligence and counterclaim for the personal injury he/she (the defendant) suffered
    as a result.
3) E.g. on the basis of a supply contract, plaintiff may sue for non-payment of an account for materials
    supplied. However, the defendant may counterclaim for extra costs he/she incurred due to the
    inadequacy or substandard nature of the materials.
4) E.g. in a wills variation action, other party may claim with their own suggested variation.
5) Rule 21(6): must use Form 15 for counterclaim, but can include with statement of defence
6) When the claim and the counterclaim are heard together and both succeed, two judgments could
    result. Usually the amounts recovered in each judgment are offset and judgment is given for the
    balance (see Rule 21(15)).
7) Rule 21(13): a counterclaim will be struck out or tried separately unless it can conveniently be tried at
    the same time as the plaintiff's claim. A counterclaim should only be struck where it is plain and
    obvious that it cannot succeed. See Braun Investment Group Inc. v. Emco Investment Corp.
    (1984), 58 B.C.L.R. 396 (S.C.), affirmed (1985) 67 B.C.L.R. 247 (C.A.)
8) Rule 21(14): a counterclaim may continue even though the plaintiff's claim is stayed, discontinued, or
    dismissed.
9) Rule 21(8), (9): if defendant making claim against plaintiff and another, defendant may join that other
    party and (if not a party to the original action) will be known as “defendant by counterclaim”.
10) Rule 21(10), (11), (12) the new party becomes a party with same rights and obligations as a defendant
    to a writ
11) Rule 21(7): parties to original action are called by their original names (plaintiff, defendant).
12) The term counterclaim implies a reflexive action, one that comes back upon the original claimant. A
    counterclaim may be filed against the original claimant and others, but not against others alone. See
    Abney v. Silcorp Ltd. (19 Oct 99) (B.C.S.C.)
13) Limitation Act s.4:
    a) s.4(1): once an action has been commenced, limitation periods do not apply to bar the following
         claims if related or connected to the original action:
         (a) counterclaims (including adding a new party as defendant by counterclaim)
         (c) claims by way of set off
14) Set-off, unlike a counterclaim, is a defence used by the defendant to cancel or diminish the amount of
    any judgment or claim of the plaintiff. It is a dependent action, which cannot survive on its own, and
    is raised solely in response to the claim raised by the plaintiff, so that withdrawal of the plaintiff's
    claim, for example, would also end the claim for set-off.
15) Set-off usually is not a direct dispute of the plaintiff's claim, but a claim that, from some other cause
    between the two parties, the plaintiff owes a debt to the defendant that reduces the amount payable, in
    the event of a judgment favourable to the plaintiff.
16) E.g. a plaintiff supplying material to a construction company sues the construction company for an
    unpaid account – the defendant company may claim set-off in regard to a monies owed by the plaintiff
    for renovations made to the plaintiff's premises.
17) Rule 21(15): Set-off may reduce the plaintiff's claim to zero, and it may provide an award to the
    defendant for any balance in his or her favour.


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R.22, NA: Third party notice if D claims contribution/indemnity, relief, or related question/issue
1) When a plaintiff has initiated a claim against a defendant, the defendant may consider another party to
   be legally responsible for the plaintiff's claim, in whole or in part.
   a) E.g. a party sued in regard to a vehicle accident may consider the mechanic who failed to
       adequately repair his brakes as liable for any damages suffered by the plaintiff.
   b) E.g. doctor sued for medical malpractice by patient may allege the lab made the mistake
2) Rule 22: a defendant may claim against a third party (bringing them into the existing action if not
   already there) by filing and serving a third party notice (an originating process – see definition in Rule
   1(8)).
3) The purposes of providing for third party joinder is to:
   a) Ensure the issues between the defendant and the third party be considered along with the issues of
       the original action thus avoiding multiple actions and inconsistent decisions
   b) allow the third party to defend against the plaintiff‟s claim
   c) ensure the third party claim may be decided before the defendant is required to pay the principal
       claim.
4) The third party may or may not already be a party to the action.
   a) E.g. (where already a party): a consumer may sue both a manufacturer and a retailer in a products
       liability case. The retailer may issue third party notice to the manufacturer if she or he considers
       the manufacturer to be wholly responsible for the plaintiff‟s claim.
   b) E.g. (where not already a party): a building purchaser may sue a seller in regard to a structural
       deficiency. The seller may issue a third party notice against the architect as the responsible party.
5) Rule 22(1) (which was changed in 1996) establishes three categories of third party actions (so your
   third party action must be one of these):
   a) The defendant claims contribution or indemnity from the third party (usually arises by express or
       implied contract or operation of law. E.g. co-guarantors by contract or operation of law agree to
       contribute their share if one guarantor is required to pay on a guarantee).
   b) The defendant is entitled to any relief or remedy relating to or connected with the original subject
       matter of the action (arises where defendant hopes to pass on liability to a third party. E.g. retailer
       alleges the manufacturer is ultimately responsible for damages caused by a defective product), or
   c) A question or issue relating to or connected with either
       i) any relief claimed in the action or
       ii) the original subject matter of the action
       is substantially the same as some question or issue between the party and the third party, and the
       question or the issue satisfying this “substantially the same” test should properly be determined in
       the action (thus can bring in a separate action, and this third option envisages less connection
       between the third party proceeding and the original action – see Module Resources Inc. v.
       Sookochoff (1997), 41 B.C.L.R. (3d) 319 (S.C.)).
6) Rule 22(3)(b): do not require leave to file a third party notice before a notice of trial is delivered or, if
   it has, at least 120 days before the scheduled trial date
7) Rule 22(5): must file third party notice then serve on each third party (together with all other
   pleadings if third party not already a party to the action) and deliver to each party of record
8) Rule 22(6): on application, the court may strike / set aside a third party notice if:
   a) Where it does not fall within one of the three sub-categories found in R.22(1).
   b) Where the material facts pleaded (see Rule 19(24) and McNaughton v. Baker (1988) (C.A.)):
       i) Clearly do not disclose a reasonable cause of action
       ii) Are unnecessary, scandalous, frivolous or vexatious
       iii) May prejudice, embarrass or delay the fair trial
       iv) Are otherwise an abuse of the process of the court.


                                                                                                         35
    c) Other factors to be considered include (see Lui v. West Granville Manor Ltd. (1987), 11
        B.C.L.R. (2d) 273 (C.A.))
        i) Expiry of a limitation period
        ii) Delay
        iii) The degree of real and substantive connection between the third party claim and the original
             claim
    d) Other grounds for setting aside a third party notice include the following:
        i) The third party issue is too complicated to be tried with the original action
        ii) The plaintiff would be prejudiced
        iii) The grounds set out in the third party notice do not establish a legal right to the relief claimed.
9) Rule 22(7), (8), (10), (13): A third party may file an appearance (can be default otherwise) and a
    statement of defence to the third party notice, and may also file and deliver a statement of defence to
    the plaintiff‟s statement of claim.
10) Rule 22(19) gives the court the discretion as to what time to hear the issue between the defendant and
    the third party which could be prior to the hearing of the original action of the plaintiff against the
    defendant (see Kyuquot Logging Ltd. v. B.C. Forest Products Ltd. (1986), 1 B.C.L.R. (2d) 48 at 52
    (S.C.)).
11) However, a third party is not directly liable to the plaintiff for judgment unless the plaintiff has
    directly sued the third party (i.e. by making the party a defendant in the action). See Leischner v.
    West Kootenay Power and Light Company (1983), 45 B.C.L.R. 204 (S.C.), affirmed on this issue
    at 70 B.C.L.R. 145 (C.A.)
12) Concerning the Negligence Act:
    a) NA s.1: contributory negligence by plaintiff – if damage caused by 2 or more persons, liability is
        in proportion to degree of fault
        i) E.g. if some contributory negligence, e.g. P 10%, and then two D‟s 45% each, but one D has
             no money, can only get 45% from other D
        ii) Rule 22(14): where D claims contribution or indemnity under the Negligence Act must use
             counterclaim (rather than third party notice) if the person is a P
    b) NA s.4: court apportioned between D‟s – if damage caused by 2 or more persons, they are jointly
        and severally liable to plaintiff, and liable to contribute to and indemnify each other to the degree
        the are at fault
        i) E.g. if no contributory negligence but two D‟s 50% at fault each, go after both or just the one
             with deep pockets (who would pay 100%)
        ii) See Wells v. McBrine.
        iii) Rule 22(15): where D claims apportionment of liability under the Negligence Act must claim
             it in statement of defence.

                                  Representative and Class Proceedings
R.5(11): Representative proceedings limited, if one wins they all win, single measure of damages
1) Recall that there can be multiple plaintiffs in one trial, and multiple defendants.
2) A class action is a special procedure by which one or more may sue as representatives of the class.
3) Purposes:
   a) Avoid a multiplicity of suits in regard to the same matter
   b) Allow orderly disposition of litigation in a convenient and efficient manner and to provide an
       inexpensive means to prevent the frustration of justice by costly and piecemeal litigation.
4) E.g. chemical spill injures many residents of a city, an air crash kills hundreds, a consumer product
   damages many of its users in the same way.



                                                                                                         36
5) Until 1995 in BC, “class actions” could only be brought under Rule 5(11) as “representative
   proceedings” and, as indicated below, the limitations inherent in that Rule meant that the opportunity
   for bringing such actions was very limited.
6) Rule 5(11) requires that there be “numerous persons” with the “same interest” in a proceeding.
7) Representative Plaintiffs:
   a) What “numerous persons” means depends on the facts of the case. E.g. 5 not “numerous” unless
       the amount involved were small or the court was satisfied that all persons interested wished the
       matter to proceed (see Re Braybrook (1916) 60 So. Jo. 307 (Ch)).
   b) Historically the test of “same interest” was equated with “common interest” i.e. had to be a
       common origin (cause of action) or entitlement to relief out of a common fund, so similar claims
       arising out of a number of different contracts were not the appropriate subject of a representative
       action (see Market & Co. Ltd. v. Knight S.S. Co. Ltd., [1910] 2 K.B. 1021 (C.A.). A more
       modern statement is that a common interest has been held to arise where, if the plaintiff wins, the
       others represented also win and become entitled to relief (see Shaw v. Real Estate Board of
       Greater Vancouver, [1973] 4 W.W.R. 391 (B.C.C.A.)
   c) Supreme Court of Canada has limited application of rules like Rule 5(11). Where each member of
       the class would have to establish his or her individual cause of action to establish their identity as
       a member of the class, such as where each member had an individual contract subject to variation,
       a representative action would be inappropriate: (see General Motors of Canada v. Naken (1983),
       144 D.L.R. (3d) 385 (S.C.C.)).
   d) A three-part test has been developed to determine whether a representative action is appropriate
       (see Hayes v. B.C. Television Broadcasting System Ltd. (1990), 46 B.C.L.R. (2d) 339 (C.A.),
       applying Kripps v. Touche, Ross & Co. (1986), 8 B.C.L.R. 105 (S.C.):
       i) Is the purported class capable of clear and finite definition
       ii) Are the principal issues of fact and law essentially the same with regard to all members, and
       iii) Assuming liability, is there a single measure of damages applicable to all the members?
8) Representative Defendants:
   a) A plaintiff may sue persons as representatives of a class of defendants, but must satisfy the court
       that the persons selected should be recognized as proper representatives (see Poole Construction
       Co. Ltd. v. Horst (1964), 47 D.L.R. (2d) 454 (Sask. C.A.)).
   b) Rule 5(12): a plaintiff may obtain a representation order confirming the individual defendants
       named are appropriate representatives of the class against whom the claim is brought. The
       principles governing the making of an order under Rule 5(12) are the same as in Rule 5(11) (see
       Guaranty Trust Company of Canada v. International Plaza Ltd. (1977), 4 B.C.L.R. 275
       (S.C.)) i.e. Court must be satisfied the representative defendants and the persons they represent
       have a common interest. If separate defences are available to different members of the group, they
       will not be considered to have the “same interest” (see Barker v. Allanson, [1937] 1 All E.R. 75
       (C.A.)).
   c) The defendant may challenge the propriety of the representative action by an application to strike
       by Rule 19(24).
CPA: Class proceedings less limited, certification required, common issue of fact or law
1) The deficiencies in Rule 5(11) led to the enactment of the Class Proceedings Act, R.S.B.C. 1996, c.
   50 (enacted in 1995). Now have class action legislation in ON, QB, SK, MB, Nfld, and AB
   considering it.
2) See Branch, Ward K., “Class Actions – Four Years Later” (May 2000) 58:3 The Advocate 351, Class
   Proceedings Act Annotated (Maczko, 2nd ed), and A guide to the British Columbia Class Proceedings
   Act (Sullivan).



                                                                                                      37
3) The Class Proceedings Act was designed for multiple plaintiff claims because of the difficulty in
    prosecuting such claims under the Rules. Avoids the courts having to adjudicate dozens (if not
    hundreds or thousands) of individual trials.
4) The three main objectives of the legislation are (see Hoy v. Medtronic, Inc., [2001] B.C.J. No. 1968,
    2001 BCSC 1343, paras. 19-20, and Chace v. Crane Canada Inc. (1997), 44 B.C.L.R. (3d) 264 at
    para. 29 (C.A.)):
    a) Judicial economy, or the efficient handling of potentially complex cases of mass wrongs
    b) Improved access to the courts for those whose actions might not otherwise be asserted. E.g. a
        plaintiff‟s claim might have merit but the legal costs of proceeding may outweight the amount of
        the claim (a „negative-value‟ claim, which a class proceeding can turn into a „positive-value‟
        claim)
    c) Modification of behaviour of actual or potential wrong-doers who might otherwise be tempted to
        ignore their public obligations.
5) S.2(1): one person may commence a proposed class proceeding
6) S.2(2): court approval (called certification) required before the proceeding obtains formal class action
    status.
7) S.2(3): must generally proceed to certification within 90 days of statement of defence (though in
    practice often only proceeds to a pre-certification hearing within that time)
8) Discovery prior to certification is difficult because common issues not yet determined, but certain
    classes of documents are needed and with the “air of reality” test (see below) may need to tender
    significant body of evidence to justify certification. See Kimpton v. A.G. Canada et al (January
    2002) leaky condo class action for pre hearing discovery, particulars, etc.
9) In Hollick (under Ontario legislation) created potential requirement of “air of reality” test i.e. need to
    show rational basis between proposed class, common issues and preferability of class action
10) S.4(1): must certify if meet five statutory requirements (see, for example, Samos v. Pattison et. al
    (most recent), Rumley v. British Columbia, [2001] S.C.J. No. 39, 2001 SCC 69, Hoy v. Medtronic,
    Inc., [2001] B.C.J. No. 1968, 2001 BCSC 1343, paras. 19-20, Chace v. Crane Canada Inc. (1997),
    44 B.C.L.R. (3d) 264 at para. 29 (C.A.), Hollick v. Toronto (City), 2001 SCC 68, Western
    Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46):
    a) The claim must disclose a cause of action
    b) There must be an identifiable class of two or more persons
        i) E.g. all persons who suffered damage due to cracking toilet tank (Chace)
        ii) E.g. all persons in Canada fitted with a particular cardiac pacemaker (Hoy)
        iii) E.g. all students at the school between 1950 and 1992 who claim injury due to misconduct of a
             sexual nature at the school (Rumley)
    c) There must be issues of fact or law common to all class members, whether or not those common
        issues predominate over issues affecting only individual members
        i) See s.1 which defines common issues
        ii) Class action most amendable to mass tort claims:
             (1) E.g. was D negligent in manufacture of toilet tanks (Chace)
             (2) E.g. issues of duty of care, standard of care, breach of the duty, punitive damages, but not
                 limitations issues due to differing times for individuals nor damages (Hoy)
             (3) E.g. was D negligent or in breach of fiduciary duty to the students (Rumley)
        iii) Note in US with Rule 23 of Federal Court Rules, must show common issues predominate
        iv) The common elements are “necessary to the resolution of each class member‟s claim”
             (Rumley)
        v) “Whether allowing the suit to proceed as a [class action] will avoid duplication of fact-finding
             or legal analysis”, but should avoid framing common issues in overly broad terms since such
             an action will ultimately break down into individual proceedings (Rumley).

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        vi) Just because member‟s claims over a long period of time and the law may have changed
             during that period does not stop certification, but rather just requires a more nuanced answer
             e.g. subclasses can be used for discrete subperiods of time (Rumley)
        vii) Common issues do not have to be determinative of liability, need only move the litigation
             forward / advance claims to an appreciable extent (Chace) i.e. class action litigation need not
             necessarily result in actual judgment for the parties.
        viii) Rejected idea that unpleaded limitation defences, which would be different for each
             plaintiff, should prevent certification (Chace). Causation and limitation issues can be resolved
             at the individual claims stage (Hoy)
        ix) “Class proceeding seems particularly well-suited for the hearing of a claim for punitive
             damages” (Chace). Also considered common issue in Hoy and Rumley.
    d) The court must find that a class action would be the preferable procedure for resolving the
        common issues.
        i) This is often the key and only genuine issue before the court
        ii) Need only be the preferable procedure for resolving the common issues, not the whole
             controversy (Chace).
        iii) In general, ask two questions (Rumley):
             (1) if class proceeding would be fair, efficient, and manageable method of advancing the claim
             (2) if preferable to other procedures
        iv) See s.4(2) for five factors (considered in Rumley):
             (a): Do common issues predominate
             (b), (c): Whether class action will force complainants into a passive role (Rumley)
             (d): Other means less practical / efficient
             (e): Would class proceeding create greater difficulties (in Rumley the fact that the students
             were deaf or blind led to conclusion that class proceedings better since it would allow for the
             expertise to overcome the plaintiff‟s communications barriers).
    e) The proposed representative plaintiff must be appropriate, present a reasonable plan and have no
        conflicts with other class members
        i) Note in US with Rule 23 of Federal Court Rules, must show plaintiff is „typical‟ of the class
        ii) Adequacy of plaintiffs litigation plan cannot be truly assessed until later, when size of class is
             know (Hoy)
11) S.7: court must not refuse certification for certain reasons, such as:
    a) damagers would require individual assessment
    b) different remedies are sought
    c) number or identity of class members unknown (applied in Hoy)
12) S.8: certification order must describe class and set out common issues
13) S.8(3): court may amend certification order at any time e.g. if it become apparent the action is in
    danger of degenerating into an unmanageable number of individual actions, judge can decertify or
    restrict the common issues (Chace)
14) S.11: common issues are determined together, whereas individual issues are determined individually
15) Once certified, the statute creates numerous benefits for class members:
    a) Class members need do nothing further to participate in the action – they are deemed to be part of
        the lawsuit unless they opt out
    b) S.37: Neither class members nor the representative plaintiff are responsible for costs in relation to
        the determination of common issues unless vexatious, improper, exceptional circumstances, etc.
        (as part of the Civil Liability Review in BC, the A.G. has included the question of whether to
        impose a „loser pay‟ system)
    c) Limitation periods are extended for all class members
    d) The court can make an aggregate award to the entire class

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   e) The court can use statistical evidence to determine the level of the aggregate award
   f) The court is directed to simplify the proof of any remaining individual issues once the common
      issues trial is complete.

                                            Limitation periods
Commence (i.e. originating process) before lim period expires, policy rationale and tension P v D
1) For overview, see Watson, G.D., Canadian Civil Procedure, 5th ed. (Toronto: Emond Montgomery
   Publications Limited, 1999) at 294.
2) A limitation period is a stated period of time, the expiry of which extinguishes a party‟s right to
   commence legal proceedings in order to claim a legal remedy or vindicate a legal right, in which case
   the action becomes statute barred (in BC the cause of action is extinguished and not just procedurally
   barred).
3) So a limitations period does not mean that the action must be tried or completed with the limitations
   period, but rather must be commenced and it is the issue of the originating process (e.g. writ, Rule
   8(9)) that marks the commencement of the proceeding.
4) Limitations defence: non-compliance with a limitation period is a defence that must be pleaded
   specifically by the defendant, and if not raised in the statement of defence, defendant will not be able
   to rely on the statute – although of course defendants rarely fail to plead a limitation defence where it
   will defeat the plaintiff's claim. Defendants will often make application to Chambers judge to have
   action dismissed to avoid having to prepare/argue substantive merits of case.
5) Note that missing limitation periods is one of the main ways lawyers get negligence actions against
   them (if you make a mistake, call insurance fund and law society immediately). Three most common
   ways to miss a limitation period:
   a) Failure to add parties or cause of action
   b) Failure to look beyond the Limitations Act (i.e. to other jurisdictions, other statutes)
   c) Missed dates for indemnity under insurance policy (generally just 1 year)
6) There is a loose leaf book called: “Table of Statutory Limitations” that lists out many of the
   limitations periods in different statutes
7) Policy rationale underlying limitation periods / defence:
   a) Plaintiffs cannot “sleep on their rights” but must instead file timely claims in the interests of
       fairness, efficiency, and accuracy.
   b) In Watson, G.D., Canadian Civil Procedure, 5th ed. (Toronto: Emond Montgomery Publications
       Limited, 1999) at 293, outlines two rationales:
       i) Fairness for the defendant:
           (1) A defendant ought not to be forever under the threat of an ancient claim, and the
               economical and psychological disruptions associated with it.
           (2) There has to come a time when defendants can order their affairs secure in the knowledge
               that the past is beyond inquiry.
           (3) If a person has to defend an action, he or she should be assured of a reasonably timely
               notice so that there is an opportunity to preserve and marshal the evidence needed at the
               hearing.
       ii) Disputed fact resolution should be efficient and accurate, and so regarded by litigants and the
           community:
           (1) Court cannot effectively resolve factual disputes if it has to decide what happened in the
               remote past after memories have faded, witnesses are dead or have disappeared, and
               documents are lost or have been destroyed.
           (2) Surmise and speculation should not be allowed to substitute for findings enlightened by
               positive information.


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   c) The Institute of Law Research and Reform (Alberta, 1986) set out four policy grounds:
       i) Peace and repose:
            (1) At some point after the occurrence of conduct that might be actionable, a defendant should
                be entitled to peace of mind and security and courts should not be called upon to adjudicate
                stale disputes.
            (2) A potential defendant should be able to assume that he is no longer at risk from a stale
                claim, and so can part with his papers if they exist and discard any proofs of witnesses
                which have been taken, discharge his solicitor if he has been retained, and order his affairs
                on the basis that his potential liability has gone (see Yew Bon Tew v. Kenderann Bas
                Mara, [1983] 1 A.C. 553 at 563 (P.C.)).
       ii) Evidentiary concerns:
            (1) With the passage of time the quality and availability of the evidence will diminish,
                memories fade, witnesses die or move away, documents and other records get destroyed.
            (2) If a point in time is reached when evidence becomes too unreliable to form a sound basis
                for adjudication, a limitation period should prevent the claim from being adjudicated at all.
       iii) Economic considerations:
            (1) A potential defendant faced with possible liability of a magnitude unknown may be unable
                or unwilling to enter into other business transactions.
            (2) The cost of maintaining records for many years (e.g. medical records need only be kept for
                7 years since limitations period is 6 years) and obtaining adequate liability insurance is
                ultimately passed on to the consumer.
            (3) “Peace” denied can become excessive cost incurred, for the cost burden on the entire
                society is too high relative to any benefits which might be conferred on a tiny group of
                claimants by keeping defendants exposed to claims.
       iv) Judgmental reasons:
            (1) If a claim is not adjudicated until many years after the events that give rise to it, different
                values and standards from those prevailing at the time the events occurred may be used in
                determining fault. Because of changes in cultural values, scientific knowledge, and
                societal interests, injustice may result. For example, would the standard at which a
                reasonable person would be held in 1950 be the same as today? (cited in Mew, Law of
                Limitations, 1991, at 7).
   d) For Supreme Court of Canada comments on the policy rationale underlying limitations statutes,
       see Novak v. Bond, [1999] 1 S.C.R. 808 at para. 67, M. (K.) v.M. (H.), [1992] 3 S.C.R. 6,
       Peixeiro v. Haberman, [1997] 3 S.C.R. 549.
8) Note inherent tension underlying these policy considerations: fairness and justice also requires that
   injured parties should have a right to seek redress and great injustice can result for the plaintiff when
   statute-barred by the expiry of a limitation period. Thus a fair limitations system must balance the
   conflicting interests of plaintiffs in securing redress for their injuries, against the interests of
   defendants in certainty, finality, and in not being required to defend stale claims.
Steps: jurisdictions, specific statutes, s.3 periods, commencement, ultimate, meritorious excuse
1) When meet with client, must quickly get to consideration of limitation periods. Note may face two or
   three limitations periods e.g. a special (and likely shorter) medical limitation and a (likely longer)
   general limitation periods
2) To determine when becomes statute barred, consider the following steps in turn:
   a) Different limitation periods from other jurisdictions may apply if cause of action arises elsewhere
       (each province has its own general statute).




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   b) Specific limitation periods are set in many specific statutes applicable to a wide variety of causes
      of action (e.g. Crown Proceedings Act sets a 30 day period that trumps the general ones in the
      Limitation Act, 6 months for action against municipality under Local Government Act).
   c) BC Limitation Act, R.S.B.C. 1996, c.266, s.3 for specific limitation period
   d) Determine when the “right to bring the action arises” i.e. when does time start running – usually
      when cause of action accrues, but there is:
      i) Confirmation resets time back to start
      ii) Postponement for discoverability
      iii) Postponement and suspensions for legal disability
   e) Consider ultimate limitation period (which, apart from actions such as sexual assault with no
      limitation period and that time doesn‟t start for minors till reach age of majority,
   f) Even if outside period, consider any meritorious excuse / justice argument
LA s.3: 2 yrs (injury to person/property), 10 (payment judgement), none (land, sexual), 6 (basket)
1) There are a number of definite / specific limitation periods from when right to bring an action arises:
2) S.3(2): general 2 year limitation period for a variety of actions including those Based on:
   a) Trespass
   b) Defamation
   c) false imprisonment
   d) Damages in respect of injury to persons or property, including economic loss arising from the
       injury, whether based on contract, tort or statutory duty.
3) S.3(3): 10 year limitation period for certain kinds of actions against, for example:
   a) Trustees
   b) administrators or executors of estates
   c) Actions on a judgment for the payment of money or the return of personal property. E.g.
       Schmitke v. S. (1993) (B.C.S.C.) found child support payments to be a judgement for the payment
       of money
4) S.3(4): situations where persons are not governed by any limitation period, including certain kinds of
   actions relating to:
   a) The possession of land
   b) Easements
   c) Enforcement of injunctions
   d) Declarations of personal status
   e) All actions based on sexual assault or any kind of misconduct of a sexual nature (including sexual
       assault) which occurred when plaintiff was a minor (under amendments made in 1994, see
       ss.3(4)(k) and 3(4)(l))
5) S.3(5) “basket clause”: actions not expressly referred to in the Limitation Act or any other Act are
   subject to a limitation period of 6 years.
LA s.5,6,7: confirm some liability resets, postpone discoverable/legal disability (minor/incapable)
1) Confirmations:
   a) To provide flexibility to allow for justice in striking a balance between the rights of plaintiffs and
       defendants, ss.5-7 of the Act enhance judicial discretion in applying the statute and allow for the
       suspension, extension, or postponement of limitation periods in certain cases
   b) S.5: where a defendant confirms a cause of action exists after a limitation period has commenced
       to run but before it has expired (i.e. a confirmation cannot revive an extinguished claim), the
       limitation period is “reset” and starts to run again from the time of such a “confirmation”
       i) S.5(2)(a) can confirm by acknowledging the cause of action, right, or title of another or
           making a payment in respect of a cause of action, right or title
       ii) S.5(5) acknowledgement must be in writing and signed by the maker

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      iii) S.5(6) confirmation must be made to person who claims (or to person through whom person
           claims)
      iv) A confirmation need not be an admission of absolute liability – mere acknowledgment of some
           liability is sufficient (see Podovinikoff v. Montgomery (1984), 58 B.C.L.R. 204 (C.A.)
           (where writ was issued 26 months after accident) wording of letter from insurance firm
           adjustor to the injured person said: “we would ask that you contact the writer at your earliest
           convenience in regard to settlement of your personal injury claim”, and that did not contain the
           special words “without prejudice”, was considered an acknowledgement of some liability, and
           also noted that “the question is not what the writer of the document intended or meant but what
           a reasonable man reading the document would understand it to mean” – i.e. an objective test)
2) Postponement due to discoverability:
   a) Mew, Law of Limitations (1991) at p.30,
      i) E.g. in an automobile accident where the negligent act and the injuries of the plaintiff are
           virtually contemporaneous and obvious, obviously starts right away. But how about the
           following:
      ii) E.g. the walls of a building are negligently constructed and 10 years later the building
           collapses, and an action is brought by the owner of the building (who contracted for its
           construction) and by an injured passerby?
      iii) E.g. a lawyer is negligent in closing a real estate transaction. As a result the client obtains a
           defective title, but this only becomes apparent when he attempts to sell the land 12 years later?
      iv) E.g. a doctor negligently performs an operation but the patient‟s injuries only manifest
           themselves 3 years later, and it is a further 5 years before the cause of the injury is identified as
           a negligently performed operation?
      v) E.g. patient gets AIDS from tainted blood, AIDS generally manifests itself six months to five
           years after infection, so a one year limitation period (say) will bar the suit before the person
           knows of his injury if it starts to run at the time of infection
   b) Different elements are required to complete a tort as compared to a breach of contract and so the
      starting points for the limitation periods based on these two causes of action may vary, even
      though the transaction or event that gave rise to them is the same.
      i) E.g. where the cause of action is founded in negligence, there must be damage before the cause
           of action can be said to have accrued.
      ii) An action for breach of contract, however, does not require that a plaintiff sustain damages
           before he or she can sue – the breach is sufficient to give rise to a cause of action.
   c) Traditionally a limitation period began to run when the cause of action accrues i.e. when all the
      material facts necessary to prove the suit exist in fact, regardless of whether or not they are known
      about
   d) The central common law concept that now underlies this area of limitations law is the principle of
      discoverability: “a cause of action arises for purposes of a limitation period when the material
      facts on which it is based have been discovered or ought to have been discovered by the plaintiff
      by the exercise of reasonable diligence” (principle first endorsed as a general principle for the
      interpretation of limitations legislation in Kamloops v. Nielsen, [1984] 2 S.C.R. 2, general rule
      just quoted from Central Trust v. Rafuse, [1986] 2 S.C.R. 180)
   e) E.g. for tort cases at least, where an injury is inherently latent, the limitation period does not begin
      to run until the injured party becomes aware of the problem (or, as at least one court has ruled that
      a cause of action in tort does not accrue until damage manifests itself). Note there is case-law that
      holds that the “discoverability” rule may not apply to special medical limitation periods – these
      statutes are usually designed so as to have the limitation period commence running upon the
      discharge of the patient from treatment. In the case of the AIDS patient infected from tainted
      blood it may well be that the plaintiff has lost his case before it could have begun.

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f) Note this common law principle of discoverability can be displaced by express statutory language.
   In BC, s.6 of the Limitation Act expressly incorporates a very specific and detailed kind of
   statutory discoverability principle that differs somewhat from the general principle stated in
   Kamloops v. Nielsen and Central Trust v. Rafuse, and it is s.6 that applies to the actions
   identified in that section.
g) S.6(1), 6(2): running of time for fraud or to recover from trustee converted property postponed
   until beneficiary fully aware, and burden of proof on trustee.
h) S.6(3), 6(4): limitation period for various actions including:
   i) personal injury
   ii) property damage
        (1) Does not apply to pure economic loss (see Prives Property Limited v. Canada
            (B.C.C.A.) which involved asbestos used in construction. Court found it was pure
            economic loss, not injury to property, therefore governed by section 3 and not section 6 of
            Limitation Act, therefore no postponement available so limitation period expired etc.)
   iii) professional negligence
   iv) fraud
   v) actions under the Family Compensation Act
   is postponed, and time does not commence to run, until two factors occur:
   vi) The plaintiff knows the identity of the defendant (note must be reasonably diligent in trying to
        find out), and
   vii) The facts within the plaintiff‟s means of knowledge (i.e. those facts that would have been
        discoverable if had taken reasonable steps – Karsanjii Estate v. Rouge (1990), 43 B.C.L.R.
        (2d) 234 (C.A.)) are such that a reasonable person, knowing those facts (see definition 6(5),
        includes existence of duty), and having taken the appropriate advice (i.e. suitable in the
        circumstances, and see definition 6(5) where competent does not necessarily mean certified)
        that a reasonable person would seek in light of those facts, would regard those facts as
        showing both
        (1) That an action would have a reasonable prospect of success (subsequent legal decisions
            may affect such prospect – e.g. consider Haida land claim, only reasonable prospect of
            success after Sparrow and/or Delgamuukw), and
        (2) S.6(4)(b): That the plaintiff ought, in his/her own interests and taking his/her
            circumstances into account, to be able to bring an action.
            (a) This was considered in Novak v. Bond, [1999] 1 S.C.R. 808, in 4-3 decision:
                 (i) Has long been a source of confusion. Considered the word “ought” to imply an
                      objective standard, and “his/her own interests” and “circumstances” to be
                      subjective, so something of a contradictory mix.
                 (ii) “The reasonable person would only consider that the plaintiff could not have
                      brought an action at the time the right to do so first arose if the plaintiff‟s own
                      interests and circumstances were serious, significant, and compelling”.
                 (iii)“They should not be compelled to sue when to do so runs counter to a vital interest,
                      such as the need to maintain their health in the face of a life-threatening disease”.
                      This was the case here, where plaintiff did not bring suit against doctor who
                      misdiagnosed her, during period she was focusing on getting well from cancer
                      which was found reasonable and proceeding would have required her to prove the
                      likely recurrence of the very cancer she was trying so desperately to eradicate (but
                      cancer then later reappeared, so she sued, but no beyond 2 year period set by
                      s.3(2)(a))
                 (iv) Can consider costs and strain of litigation being overwhelming, possible damages
                      recoverable being minimal or speculative, and other personal circumstances making

                                                                                                    44
                       it unfeasible to initiate an action. E.g. if a more serious medical consequence only
                       diagnosed at a later time, running of time delayed till then
                   (v) “Purely tactical concerns have no place in this analysis”.
               (b) Comment: now appears to be lots of room for bringing an argument for postponement
                   e.g. where litigation might threaten a relationship, such as between parent and child.
               (c) “bring an action” means issuance of a writ in Rules 1(8), 8(1), 8(9) (see Kemp v.
                   Mesner where an original writ was issue but not served and expired, then a new one
                   was issued and served but court found it outside limitation period and not saved by
                   postponement because party had already been able to “bring an action” previously)
   i) S.6 was also considered by the British Columbia Court of Appeal in, for e.g., Evans v.
      Vancouver Port Corp. (1989), 42 B.C.L.R. (2d) 180 (C.A.), Levitt v. Carr (1992), 66 B.C.L.R.
      (2d) 58 (C.A.) and Frosh Construction Ltd. v. Volrich (1995), 7 B.C.L.R. (3d) 72 (C.A.). These
      cases demonstrate that the application of section 6 is not an easy matter.
3) Suspensions / postponement due to legal disability (minor or incapable on managing own affairs):
   a) Rationale of s.7 is to recognize that fairness and justice require some relief against time bars for
      those who, because of incapacity due to infancy or infirmity, could otherwise lose their right to
      compensation for wrongs done to them
   b) S.7(1): defines a person with legal disability, meaning minors or other parties deemed incapable
      of managing their own affairs. This include substantially impeded in managing own affairs.
      i) May include physical or mental illness, a lengthy period of coma following a serious accident,
           temporary loss of memory, or some form of exterior constraints such as shipwreck or
           incarceration in a foreign prison with all communications denied
      ii) E.g. Schmitke v. S. (1993) (B.C.S.C.)
           (1) Facts: father in arrears on child support payments for many years
           (2) Issue: father argues any claims for payments prior to 6 years ago (the limitation period)
               are extinguished
           (3) Decision: the applicable limitation period is 10 years (since child support payments were
               from judgement for the payment of money, s.3(3)(f)). Further, by s.7 time doesn‟t start to
               run until child reaches age of majority since child support payments are the right of the
               child, and the fact that they are paid to the parent only recognizes the child is unable to
               manage their affairs
      iii) E.g. Wirtanen v. British Columbia (1994), 98 B.C.L.R. (2d) 335 (S.C.) where the court
           considered a number of factors to determine whether the plaintiff, who suffered a severe
           traumatic brain injury in a motor vehicle accident, was disabled).
   c) S.7(2): if, at the time the right to bring an action arises, a person is under a disability, the running
      of time of the limitation period is postponed for so long as that person remains under a disability.
   d) S.7(3): generally can‟t be longer than 6 years after disability ceases
   e) S.7(4): if a person comes under a disability while time is running (i.e. after time has commenced
      to run but before the expiration of the limitation period) the running of time will be suspended as
      long as that person is under a disability.
   f) S.7(5): as with 7(3), some limits on 7(4).
   g) S.7(6), (7), (8): so long as a disabled person has a guardian, a prospective defendant can deliver a
      notice to proceed to the guardian ad litem of a person under a current disability and to the Public
      Guardian and Trustee and time will start running on the date of delivery of that notice (this gives
      the prospective defendant a means to avoid the prejudice that could be caused if an action is not
      brought until a minor plaintiff reaches the age of majority). Note under s.7(10) a notice to proceed
      is not a confirmation nor an admission.



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LA s.8: Confirm/postpone/suspend all capped by ultimate lim periods 6, 30 (except none/minors)
1) Ultimate Limitation Periods (place “cap” on the maximum possible length of confirmations,
   postponements, and suspensions):
2) S.8(1): subject to
   a) s.3(4) (which provides that there is no limitation period in certain kinds of cases) and
   b) s.8(2) (which carves out an important exception for minor plaintiffs – time doesn‟t start to run till
       they reach age of majority, and note this protection does not extend to persons who are under a
       disability for reasons other than the fact that they are minors – unless a Notice to Proceed has been
       delivered by a defendant pursuant to s.7(6))
   there are two ultimate limitation periods that operate notwithstanding any confirmations under section
   5, postponements under section 6, or suspensions under section 7:
   c) S.8(1)(a) and (b) establish a 6 year ultimate limitation period for certain actions (negligence,
       professional negligence, or malpractice) against hospitals, hospital employees (acting in course of
       their employment) and medical practitioners.
       i) This is somewhat controversial, and perhaps based more on a protection of special interests
            than on a concern for the general public (see Morton, Limitation of Civil Actions, (1988), at
            2).
       ii) Until 1994 this was absolute (i.e. it was not subject to exception for minor plaintiffs and so the
            time limit could not be postponed or suspended beyond 6 years by either sections 6 or 7 which
            could be harsh with respect to latent injuries caused to infant plaintiffs by medical or hospital
            negligence – see, for e.g. Wittman v. Emmott (1991), 53 B.C.L.R. (2d) 228 (C.A.)).
       iii) The 1994 amendment was expressly made retroactive, and purports to revive causes of action
            (if the right accrued after June 30, 1975) that would have been barred under the Act before the
            amendment (see Limitation Amendment Act, 1994).
   d) S.8(1)(c) in all other cases, 30 years ultimate limitation period.
3) In BC, because of the overall scheme of the Limitations Act and, more specifically, the statutory
   codification of discoverability principles in section 6 and the adoption of the ultimate time periods in
   section 8, the statutory time limits notionally begin to run at the moment that all elements of the action
   are present (i.e. date of accrual of cause of action), regardless of the discoverability of those elements,
   since an ultimate time period can expire before the cause of action was reasonably discoverable (see
   Bera v. Marr (1986), 1 B.C.L.R. (2d) 1 (C.A.); Wittman v. Emmott (1991), 53 B.C.L.R. (2d) 228
   (C.A.)). E.g. Arishenkoff v. Her Majesty the Queen, [2002] B.C.S.C. 951
   a) Facts: 49 plaintiffs suing Crown for apprehension and confinement (false imprisonment) during
       1950‟s because they were children of Dukhabors
   b) Issue: e.g. for one plaintiff, released in 1956, in 1965 reached age of majority, no misconduct of
       sexual nature, but didn‟t seek legal action till after Ombudsman report in 1999. Is this action now
       statute barred
   c) Decision: yes, statute barred since start date for running of ultimate limitation period would have
       started at later of alleged acts (1956) or reached age of majority (so 1965 here), thus 1995 would
       have been the latest to bring such a claim.
   d) Appeal: note this is under appeal since a number of the plaintiffs will be statute barred otherwise
4) “Only upon the expiration of the relevant ultimate limitation period can the potential defendant truly
   be assured that no plaintiff may bring an action against him or her” Novak v. Bond, [1999] 1 S.C.R.
   808 at para. 70. Thus the ultimate limitation periods are part of striking the balance between fairness
   to the plaintiff and defendant.
5) Similarly, see Bergeron v. B.C. (WCB), [2000] BCJ No. 2160 (S.C.) (QL) which said the ultimate
   limitation period precludes all actions, even where there were hidden facts only recently discovered.



                                                                                                       46
LA s.4,9: expiry extinguishes, but can still commence/amend through subordinate proceedings
1) Effect of Expiry of the Limitation Period:
   a) S.9(1): once a limitation period is deemed to have expired the right of the person formerly having
       the cause of action is extinguished i.e. it is dead and cannot be revived.
   b) This is apparently unique to B.C. (others just put a procedural bar after period run out)
   c) The commencement of an action after the expiry of a limitation period is not automatically
       dismissed, but rather the limitation defence must be specifically pleaded by the defendant (i.e.
       defendant must still file appearance and plead limitation period has expired) A defendant who
       does not raise it in the statement of defence, will not be able to rely on the statute as a defence.
2) Limitation Periods and Subordinate Proceedings (also see above):
   a) Subordinate proceedings are after an action has commenced:
       i) Third party proceedings under Rule 22
       ii) Counterclaim
       iii) Set off
       iv) Addition or substitution of a new party by plaintiff or defendant
   b) S.4(1): where an action has been commenced, the lapse of time limited for bringing an action is
       no bar to subordinate proceedings with respect to any claims relating to or connected with the
       subject matter of the original action (note wording “subject matter” and not “parties”). See above
       Lui v. West Granville Manor Ltd. (1987), 11 B.C.L.R. (2d) 273 (C.A.).

                                                Discovery
Purposes of discovery: remove surprise, narrow facts/issues, promote settlement, reduce trial time
1) Discovery is extension of general purpose of pleadings, but pleadings do not give a full set of
   evidence and info
2) Discovery processes are pre-trial processes and fulfill the following purposes:
   a) Generally secure the just, speedy and inexpensive determination of a proceeding on its merits
       (recall R.1(5))
   b) Promote justice by removing the element of surprise (trial by ambush not fair)
   c) Find out the case you have to meet
   d) Obtain facts and information about the other side‟s case.
   e) Understand and document one‟s own case
   f) Put the parties on an equal footing
   g) Narrow the facts and issues
   h) Improve quality of evidence by having witnesses testify while events still fresh in their minds
   i) Obtain admissions (especially on oral examination for discovery), which can dispense with formal
       proof at trial and aid in rebutting the opposing case
   j) Better define the relative positions and merits (i.e. strengths and weaknesses) of both sides
   k) Determine whether the case should go to trial
   l) Provide a basis for considering and negotiating an appropriate settlement, and promote settlement
       before trial
   m) Where matters go to trial, assist in cross-examination (possibly allowing impeachment of witness
       from prior inconsistent statement) and reduce trial time
   n) Ensure all relevant evidence comes before the court at trial
3) Over 90% of civil actions settle rather than go to trial, and discovery can significantly affect success
   and amount of settlement
4) Failure to discover important evidentiary document or inadequate examination of a party or witness
   may lose an action that is in fact meritorious.



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R.26: discovery & inspection of docs, action only, always demand list, production or privilege
1) Rule 26 describes the procedure required for mutual disclosure and production of documents relevant
   to the litigation.
2) Documents can be key, especially if issues took place some time ago and memories have faded, as in
   ASM Capital Corp. v. Mercer International Inc., 1999 B.C.C.A. 353
3) Documents can reveal the existence of other documents you were not aware of, and good to see
   documents damaging to your case to evaluate merits and prepare argument.
4) R.26(1): if deliver demand in an action (so not petition unless court grants discovery procedures
   under its inherent jurisdiction) to any other party (so not necessarily adverse or opposite in interest)
   must deliver a list of all documents within 21 day that are or have been in the party‟s possession or
   control relating to every matter in question in the action
   a) It is imperative to always demand a list of docs, and often included with writ & SofC or SofD.
   b) This rule derives from Compaigne Financiere v. Peruvian Guard (1882), English QB
   c) Peruvian relevancy test: document is relevant to a matter in question if the document may,
       directly or indirectly:
       i) Advance the case of the party seeking disclosure
       ii) Damage the other side‟s case, or
       iii) Lead to a path of inquiry that may do either.
       However, only the relevant part of a document need be produced.
   d) “possession or control” includes having custody or access and “control” means having an
       enforceable right to inspect docs and gain possession of them. See Wolansky v. Davidson (1992)
       (B.C.S.C.)
   e) R.1(8): definition of document includes all records of a permanent or semi-permanent character
       regardless of the form they take e.g. tape recordings and films and emails
   f) Known as a “list of documents” here in BC – elsewhere called an “affidavit of production” or
       “affidavit of documents”.
   g) Significant responsibility on counsel to get their client to disclose all relevant non-privileged
       documents to other side (which they may be reluctant to do if damaging to their case. See Code of
       Professional Conduct, chapter 8, rule 1 (must not knowingly participate in giving false
       information). See also Visa International v. Block Brothers Realty (1983) (B.C.S.C.) which
       commented at para. 5 on duty, diligence and integrity of counsel to seek out documents from
       client.
5) The rules set no specific time period for the delivery of a demand for discovery. However, the best
   time is after the SofD and before the examination for discovery.
6) 26(1.1): court may order delivery of list of documents within a party‟s power even though not in the
   party‟s possession or control
   a) A party has “power” over a document if it is able to obtain and produce copies of the document
7) 26(3), (4): court can order affidavit verifying a list, and if you think there are more undisclosed
   documents can apply to court for such affidavit
8) 26(2), (2.1): claims for privilege from production must be made in the list of documents, although the
   nature of the document and grounds for privilege must be sufficiently described so that other parties
   can assess validity of the claim to privilege. Privileges include:
   a) Solicitor-client privilege belongs to the client to allow client to speak in confidence to lawyer and
       get legal advice, so a solicitor is under a duty to not to divulge a privileged communication
       without the consent of the client. See Bell v. Smith, [1968] S.C.R. 644.
   b) Litigation or “solicitor‟s brief” privilege i.e. where a lawyer, exercising legal knowledge, skill,
       judgment and industry, has assembled a collection of relevant documents for his brief for the
       purpose of advising on or conducting anticipated or pending litigation. The lawyer is entitled and,
       indeed, required, unless the client consents, to claim privilege for such a collection and to refuse

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        production. For example, see Hodgkinson v. Simms (1988), 33 B.C.L.R. (2d) 129 (C.A.) and
        Hama Lainen v. Sippola (1991), B.C.L.R. 2d 254 (C.A) where court set out 2 prong test:
        i) Litigation must be in reasonable prospect at the time the document was produced (i.e. a
             reasonable person would conclude that the claim for loss could not be resolved without
             litigation)
        ii) Dominant purpose for production of the document was for litigation
        See “Halliday order” below under R.26(11) where litigation privilege was argued to avoid
        disclosure of medical records
    c) Crown privilege
    d) Matrimonial privilege
    e) Communications made with a view to settlement.
    f) Privilege can also be recognized on a case by case basis under the principles established in
        Slavutych v. Baker, [1976] 1 S.C.R. 254.
    g) The law of privilege continues to evolve to “reflect the social and legal realities of our time”:
        M.(A.) v. Ryan (1997), 29 B.C.L.R. (3d) 133 at 142 (S.C.C.) - see below under R.26(11). Also
        see Bergen v. Goodwyn (1999), 35 C.P.C. (4th) 258 at para 8 (B.C.S.C.).
9) 26(12): court may inspect document to determine if claim of privilege is valid
10) 26(7): unless privilege claimed, once delivered list of documents must allow other party to inspect
    and copy those documents within possession or control
    a) Must produce entire documents in absence of a court order
11) 26(10): court may order production of documents for inspection and copy
12) 26(11): court can order production of a document in possession or control of a third party
    a) e.g. hospital records – their production is often sought by defence counsel in personal injury
        claims to assess the plaintiff‟s personal injury.
    b) If privilege is claimed for any hospital records, the appropriate procedure is set out in Halliday v.
        McCulloch (1986), 1 B.C.L.R. (2d) 194 (C.A.) (known as a “Halliday order”) – see Annual
        Practice page SC-154
    c) M.(A.) v. Ryan (1997), 29 B.C.L.R. (3d) 133 (S.C.C.) plaintiff patient sued her doctor for sexual
        acts and gross indecency towards her, and application by defendant doctor for disclose of notes
        from psychiatric care she later received. Court ruled that to determine if confidential medical
        notes privileged must ask:
        i) Did communication originate in confidence?
        ii) Was the element of confidence essential to the patient-psychiatrist relationship?
        iii) Was the need for this patient-psychiatrist relationship of transcendant public importance?
        iv) Does the interest served by preventing disclosure outweigh the pursuit of truth and avoidance
             to unjust verdict by disclosure?
        Disclose ordered can be partial.
13) 26(13): continuing duty after delivering a list of documents to deliver forthwith a supplementary list
    if party becomes aware its original list was inaccurate or incomplete, or if new documents come under
    that party‟s possession or control.
    a) This may be required more than once, and is subject to appropriate claims for privilege being
        made.
    b) See also R.29(10)
14) R.26(14): an undisclosed document may not be used as evidence, unless the court otherwise orders.
    a) Factors in the court‟s discretion include the relevance of the document to the issues and the
        opportunity for the opponent to investigate questions raised by the document. See, Robitaille v.
        Vancouver Hockey Club Ltd. (1981), 30 B.C.L.R. 286 at 305-07 (C.A.).
15) R.2(5)(c), (d): for the consequence of a failure to comply:
    a) 2(5)(f): if P failed to comply, court can dismiss proceeding

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   b) 2(5)(g): if D failed to comply, court can order default as if no appearance entered
   c) Note both of these are unlikely to be ordered – court more likely to order response within certain
      time limit under R.26(10), and if party still fails to comply can be in contempt under R.56(4).
R.27: examination for discovery, action only, oral x-exam on oath any adverse party
1) Will generally request list of documents under R.26 before examination for discovery so can ask the
    right questions, although discovery of documents will usually continue during examination
2) This Rule contemplates only one examination for discovery and there is a heavy onus to justify a
    further examination.
3) An effective examination for discovery can lead to early settlement and so examinations require
    extensive preparation of your witnesses and for questioning other parties witnesses, similar to before a
    trial.
4) Rule 27(1): examination for discovery does not require leave of the court (i.e. it is a matter of right),
    and may occur up to 14 days prior to trial
5) 27(2): it is an oral examination on oath
6) 27(13): timing: P may examine after expiry of time of SofD, and D may examine after SofD
    delivered
7) Who can be examined:
    a) 27(3): party to an action (so not for originating applications or under Small Claims Act) may
         examine for discovery any party adverse in interest
    b) 27(8): may examine for discovery the person for whose immediate benefit an action (again, note
         only in action) is brought or defended
    c) See Rule 28 for examining others not in the action
8) For corporations, representatives, employees, directors, etc:
    a) 27(6): choice of the person to be examined as the representative of a corporate party is that of the
         examining party, despite Rule 27(6) – this sub-rule merely provides a means of forcing a corporate
         party to disclose the name of an appropriate examinee. See British Columbia Lightweight
         Aggregate Ltd. v. Canada Cement LaFarge Ltd. (No.21) (1978), 7 B.C.L.R. 108 (C.A.), rev'g
         (1978) 6 B.C.L.R. 74 (S.C.). But see Westcoast Transmission Co. v. Interprovincial Steel and
         Pipe Corp. (1985), 59 B.C.L.R. 43 (S.C.).
    b) 27(4): the right of the party to choose the person to be examined is qualified by, for directors,
         officers, employees, agents and external auditors, the the person chosen can apply for an order that
         another person be examined (and this may be so ordered in the interests of justice and fairness).
    c) The examining party may generally examine only one person as a matter of right. Therefore, Rule
         27(23) states that the person being examined may be required to inform themselves appropriately
         from others and the examination may be adjourned for that purpose. The general rule is that an
         opposite party will not be granted an order allowing examination of a second representative unless
         he or she can show that the desired information cannot be obtained from the first representative,
         either from his own knowledge, or by informing himself. See Westcoast Transmission Co. v.
         Interprovincial Steel and Pipe Corp. (1985), 59 B.C.L.R. 43 (S.C.) and Aintree Investments
         Ltd. v. The Corporation of the District of West Vancouver (No. 2) (1977), 5 B.C.L.R. 216
         (S.C.) . Also see Saunders v. Nelson (1994), 35 C.P.C. (3d) 168 at 173 (B.C.S.C.)
9) The Crown in Right of the Province of British Columbia is subject to discovery by virtue of the
    Crown Proceedings Act, s.9 (1), and may be examined in the same manner as if the Crown were a
    corporation.
10) 27(10): Where an infant is a party, the infant, his or her guardian and his or her guardian ad litem may
    be examined for discovery




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11) 27(11): Where a mentally incompetent person is a party, his or her guardian ad litem and his or her
    committee (guardian or decision maker) may be examined, but the mentally incompetent person may
    not be examined without leave of the court
12) 27(15): takes place before an official reporter who is empowered to administer the oath
13) 27(16): if entitled to examine a person, that person must attend and submit to examination provided
    that they were personally served with a notice of appointment at least 2 days beforehand or, if a party
    to the action with a solicitor, at least 7 days beforehand to the solicitor.
14) 27(17): notice of appointment must be delivered to all parties of record
15) 27(20): person being examined shall produce all documents in their possession and control that are
    not privileged relating to matters in question
16) Broad scope of questioning allowed:
    a) 27(21): examination is in the nature of cross-examination, and can be followed by re-examination
        on their own behalf or non-adverse party, which can be followed by additional cross-examination
        i) So note adversarial nature, and witness need not offer information unless asked for it (unlike
            discovery of documents under R.26 where other party must list all documents)
    b) 27(22): : person being examined shall answer any question within their means of knowledge if
        not privileged and if relating to matters in question, and must give names and addresses of all
        persons reasonably expected to have such knowledge
        i) Rules of evidence do not apply, including the hearsay rule (what might be admissible at the
            trial, however, is another matter). See Cominco Ltd. v. Westinghouse of Canada Ltd. (No.
            4) (1979), 11 B.C.L.R. 142 (C.A.), aff'g in part (1978), 9 B.C.L.R. 100 (S.C.) and Wong v.
            Pettifer (1996), 22 B.C.L.R. (3d) 118 at 120 (C.A.).
        ii) The test for relevancy is that a question at a discovery is only inappropriate where it is plain
            that the answer cannot be relevant to an issue raised in the action as defined by the pleadings.
            See Cominco, directly above. Also see Whistler Mountain Ski Corp. v. Harbers (1997), 46
            B.C.L.R. (3d) 307 (S.C.). See also the Peruvian relevancy test under R.26(1).
17) 27(24): if person being examined objects to answering a question (e.g. based on irrelevancy,
    privilege, or improper cross-examination techniques such as repetitious or misleading questions, but
    not hearsay since rules of evidence do not apply), court can determine validity of the objection and
    may order person to submit to further examination
18) 27(25): the transcript of Q‟s and A‟s can be obtained by any party of record, person examined, or
    other as court may permit
19) Use at trial:
    a) R.40(27)(a). Subject to judicial discretion, and if otherwise admissible, evidence given by a party
        on an examination for discovery, or by a person (other than a party) examined pursuant to Rule
        27(4) to (12), may be given in evidence at trial against an adverse party. I.e. can read in parts of
        certified transcript, e.g. to impeach credibility of witness with prior inconsistent statement
    b) R.40(28): However, if at the time of an examination for discovery, the person examined was an
        infant or mentally incompetent, the examination cannot be given in evidence at trial unless the trial
        judge determines that the person was competent to give evidence at the time he or she was
        examined.
    c) Objections may be made at trial to the admissibility of any question and answer from the
        examination that the other party seeks to enter at trial even though no objection was made at the
        examination
20) R.2(5)(a),(b): for the consequence of a failure to comply with an examination (e.g. doesn‟t attend,
    refuses to be sworn or to answer questions, etc.). Each party has the right to proceed with
    examinations on the date set out in his or her appointment, unless a party served can show some real
    prejudice. See Zabolotniuk v. Tehcon Constructions Services Ltd. (1993), 79 B.C.L.R. (2d) 250
    (S.C.).

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R.28: Pre-trial examination of witness (who is not party to action), requires application affidavits
1) General notion here is that there is no property in a witness and want all parties to be able to question
   them so as to be on an equal footing
2) 28(1): may apply to court for an order that a person, not a party to an action, be examined under oath
   if they may have material evidence relating to a matter in question
   a) Again, only for actions commenced by writ, so cannot be used in proceedings commenced by
        petition. See Foote v. Foote (1986), 6 B.C.L.R. (2d) 237 (S.C.)
   b) This rule is discretionary. An applicant must satisfy the court that the information sought may
        relate to matters in issue, that it is not a “fishing expedition”, that there are no compelling reasons
        why the order should not be made, and that it is based on the probative value of the evidence as
        opposed to any embarrassment or adverse effect that may be caused. See Preus v. Miller (1986),
        69 B.C.L.R. 104 at 108 (S.C.).
3) 28(3) requires affidavits from applicant showing:
   a) 28(3)(a): applicant believes evidence may be material
   b) 28(2) & 28(3)(b): if expert of other party for litigation or trial preparation, applicant must swear
        cannot obtain facts/opinions on the same subject matter by other means
        i) As there is usually available more than one expert in a field, there will rarely be a situation
            where a party has no means to obtain expert opinions on a subject other than by an
            examination of the expert engaged by an adverse party. Thus, 28(2) will most likely be used
            where the expert retained by the other party has made an investigation that allowed her or him
            to observe facts which may not be otherwise discovered or where the examination of the
            expert destroyed the matter examined
   c) 28(3)(c): applicant must show either a refusal by the person to provide information or that he/she
        has given conflicting statements
4) 28(8): rule 27(22) is incorporated (see above, thus must answer and includes Peruvian relevancy test)
5) R.40(30): a party may give in evidence at the trial all or part of the examination of a person taken
   under Rule 28 in only two circumstances:
   a) to contradict or impeach the witness examined when he/she testifies at the trial.
   b) where the witness is dead or unable to attend the trial due to infirmity, illness, imprisonment or
        absence from the jurisdiction, and it is necessary in the interests of justice to admit the testimony
        taken under the Rule 28 examination.
6) In Western Delta Lands Partnership v. 3557537 Canada Inc. (2000), 44 C.P.C. (4th) 382 at 389,
   para. 24 (B.C.S.C.) noted 18A(3) doesn‟t include evidence from Rule 28
7) Thus the examination is to inform counsel and assist in preparation of the case, not to record evidence
   or provide admissions to be read in at trial
R.29: discovery by interrogatories, action only, on any party, narrower scope than oral discovery
1) Interrogatories are typically used as a supplemental technique to other methods of discovery e.g. to
   obtain info and admissions for use at trial that are clerical, lengthy, technical, or otherwise more
   appropriate for written responses than oral discovery (e.g. tax returns) or if too expensive to get person
   to travel to oral examination
2) Otherwise can be inferior to oral discovery since answers often drafted by lawyers and no spontaneous
   follow up questions.
3) 29(1): may serve written interrogatories (without court order) relating to matters in question in the
   action which must be answered on affidavit within 21 days, and first party must inform all other
   parties of record.
   a) Note right to serve interrogatories not restricted to parties adverse in interest, as is examination for
        discovery



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    b) The scope of interrogatories is limited and is narrower in scope than examination for discovery.
        See British Columbia Lightweight Aggregate Ltd. v. Canada Cement LaFarge Ltd. (1977), 4
        B.C.L.R. 259 (C.A.) and Tse-Ching v. Wesbild Holdings Ltd. (1994), 98 B.C.L.R. (2d) 92 at 97-
        98 (S.C.) where lengthy and burdensome interrogatories were struck out but particulars ordered:
        i) Rule 29 (rule for interrogatories) must be interpreted in accordance with Rule 1(5) (just,
             speedy, inexpensive determination of matter) – court can encourage use of most appropriate
             form of pre-trial proceeding
        ii) They must be relevant to a matter in question in the action (see also the Peruvian relevancy
             test under R.26(1)).
        iii) They can only be used to obtain admissions of fact that are necessary to establish one‟s case
             and provide a foundation for cross-examination at discovery;
        iv) They cannot be in the nature of cross-examination;
        v) They should not include a demand for discovery of documents;
        vi) They should not duplicate particulars;
        vii) They cannot be used to obtain the names of witnesses
        viii) Interrogatory should be in the form of a question, not an order
        ix) Average litigant should be able to understand and respond to the interrogatories in the form
             posed without immediate and constant assistance from counsel
        x) As only one means of discovery and not substitute for oral discovery, the court may allow
             responses to be deferred until after examination for discovery
    c) But for broader scope see:
        i) Nicolay v. George (1995), 16 C.P.C. (4th) 5 at 9 (B.C.S.C.) where the court held that the scope
             of interrogatories is not limited to proof of facts necessary to establish one‟s own case but may
             be directed to the strengths and weaknesses of the other party‟s case.
        ii) A & B Sound Ltd. v. Future Shop Ltd. (1996), 2 C.P.C. (4th) 373 at 379 which holds that
             interrogatories may be used to obtain the names of witnesses if the identity is related to a
             material fact
4) 29(3): P may serve after expiry of time of SofD, and D may serve after SofD delivered
    a) Thus interrogatories may be used before or after an oral examination for discovery.
5) 29(6): can apply to court to order further answer if original answer insufficient
6) 29(10): continuing duty after answered interrogatories if later learn answer was inaccurate or
    incomplete
    a) See also R.26(13).
7) 29(5): if object to answering based on privilege or irrelevancy can object in an affidavit
8) 29(7): if object to questions as not necessary for disposing fairly of the action or that costs to answer
    would be unreasonable, can apply to court to have interrogatory struck out
9) R.2(5)(d): for the consequence of a failure to comply
10) R.40(33): Subject to some limitations, a party may give in evidence at trial an answer to
    interrogatories
R.30, 31: physical exam & inspection (medical of P for D and property), notice to admit
1) Rule 30 is a rule of discovery designed to overcome the plaintiff‟s advantage in obtaining expert
   opinions as to his or her medical condition by providing the defendant with access to the plaintiff prior
   to trial. The Rule extends to the examination of physical objects.
   a) Counsel can agree by consent order or correspondence to have medical exam, otherwise need to
        get court order:
   b) R.30(1): where the physical or mental condition of a person is in issue, court may order they
        submit to a medical examination



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       i) Court appoints examining expert usually based on nomination by defendant (unless plaintiff
           objects e.g. in case where plaintiff feels uncomfortable with nominated psychiatrist)
   c) Results typically considered part of defendants solicitor brief privilege, but under 30(1)(b) court
       can order results in writing be sent to interested parties so all on equal footing
   d) R.30(2): court may order further examination
       i) Defendant has burden to convince court original examination unsatisfactory (e.g. expert will
           be unavailable for trial, or plaintiff‟s condition has changed materially), and court will
           consider nature / location of the examination, the sex / inappropriate behavior of the examiner
   e) R.30(4): court may order, if it considers it necessary or expedient for the purposes of obtaining
       full information or evidence, any property to be produced / inspected / preserved, samples taken,
       observation to be made, or experiments conducted
   f) R.30(5): court may by order authorize a person to enter upon any land or building for the purpose
       of enabling an inspection under this rule
   g) R.2(5)(c),(e): for the consequence of a failure to comply
2) R.31(1): party may deliver a notice to admit requesting any party to admit truth of a fact or
   authenticity of a document
   a) R.31(2): after notice to admit, shall be deemed admitted if other party does not respond within 14
       days

                           Interlocutory Chambers applications & Affidavits
R.44: bringing an interlocutory application: usually notice of motion + affidavits, response, reply
1) After originating process (and appearance) but before ultimate court hearing, interlocutory motions
   (a.k.a. interlocutory applications) are used to:
   a) Resolve questions by a court order (which, for example, allows a party to enforce the rules of civil
       procedure)
   b) May be an application to dispose of matter without trial
   c) 44(1): to take a step that can only be accomplished with the leave of the court (e.g. application to
       amend SofC under 24(1)(a), for substituted service, application for particulars, or to have an old
       and frail witness deposed such as giving evidence by video under 38(1))
2) When in Chambers there is limited time, so don‟t spend too much time going through the law, rather
   explain how it applied to the particular case
3) Distinguish an interlocutory order (that gives direction with respect to the conduct of an action) from a
   final order (which determines the rights of a party). Note however that, e.g. application to amend
   SofC, is an interlocutory order even though it has final effect (i.e. the decision will not be revisited at
   some later date)
4) Rule 44 governs interlocutory applications and was revised as of July 1, 2001 (B.C. Reg. 367/2000) to
   dovetail with the new procedures for Chambers applications (Rule 51A).
5) R.44(3): interlocutory application shall be brought by filing a notice of motion (Form 55)
   a) Requires that the applicant specify any rule or other enactment relied upon in support of the
       application (Form 55). E.g. might mention Rules 18A44, 57 and 51A. Otherwise justice or
       master will ask “where do I get the jurisdiction to make the order you seek”.
   b) Will often include “and such further and other materials as counsel later includes” in case
       additional issues/evidence appears before hearing
   c) Need to state whether the application is contentious or by consent
   d) Must be filed at or before filing of notice of hearing under R.51A
   e) See also Practice Direction Re Changes to Civil Chambers, issued by Chief Justice Brenner on
       April 19, 2001, clarifying points not fully addressed in the Rules of Court.



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   f) The solicitor setting down the application must indicate a time estimate in his or her Notice of
       Motion (Form 55) which should include time for questions and decision by judge/master.
   g) 44(11): must state place at which application will be heard
   h) Don‟t forget to request costs
   i) Note all documents filed with court should have a „backer‟ page (i.e. faces outwards) to identify
       the document
6) R.44(5): a copy of the notice of motion and supporting affidavits (see R.51) must be delivered to all
   parties of record and served on all others whose interests may be affected by the order sought
   a) R.51A(4), (9), 52(12.1): if the court is satisfied that no notice is necessary, or that the matter is
       urgent, an ex parte application and order may be made i.e. “without notice”.
7) R.44(6) and (7) for time deadlines: a person who wishes to receive notice of time/date of hearing or
   who wishes to respond to the motion must file a response (Form 124) indicating whether or not the
   motion is opposed and they may file and deliver affidavits against the order and appear in Chambers
   to argue against it being made.
8) R.44(8): applicant can reply to such response by delivering affidavit evidence
EA, R.51: affidavits: filed, sworn/affirmed+signed by deponent before other who signs jurat
1) An affidavit is a sworn or affirmed written statement relied upon in same way as oral testimony by
    court (unlike pleadings which are not sworn/affirmed)
2) Draft in a similar way to SofC e.g. organize either chronologically or by issue and limit to material
    facts
3) Get in good habits for swearing affidavits (so if later challenged on it can say always follow the same
    procudure):
    a) Always get id to prove their identity
    b) Make sure they read it, and ask if they have read and understand it
    c) Ask them if they swear or affirm it is true
4) Generally begin with style of cause, action number, and start: “I, Jane Doe of 123 Main St and
    employee of ABC, make oath and say that …” (see Form 60). Don‟t use words for monetary
    amounts, and use “A or B or both” rather than “A and/or B”.
5) Affidavits have 3 basic uses:
    a) R.10(1) for originating application
    b) R.44 and 51A for interlocutory application
    c) R.18A for summary trial
    In both forms of application oral evidence is rare, and chambers judge/master relied on affidavits
6) 51(1): affidavits used in a proceeding must be filed (i.e. in court registry – see definition R.1(8))
7) 51(2): affidavits must be in the first person, show names, address and occupation of deponent, state
    relationship to the action (i.e. whether deponent is a party, solicitor or employee of a party, etc),
    numbered paragraphs, in Form 60
8) 51(3): affidavits must be sworn or affirmed and signed by deponent and have the “jurat” signed by
    the person before whom it was sworn or affirmed (see Form 60)
9) 51(7), (8): exhibit can be attached to affidavit and must be identified with special wording in 51(7)
    and signed, though only documents 5 pages or less must be attached
10) 51(9): alterations to an affidavit must be initialed by person before whom it is made
11) 51(10): affidavit can generally only contain what would be permitted at trial except may contain
    statements as to deponent‟s “information and belief” provided the source of the information is given
    (therefore can say “to the best of my knowledge and belief …” and can say “I was told by John Smith
    that …” i.e. can include hearsay if source given)
    a) Only including what is allowed at trial is especially important if seeking a final order such as an
        order to dismiss (so don‟t include hearsay for example)


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    b) Creber v. Franklin, Vancouver registry August 1996: deponents should state facts only, not their
       descriptive opinions of those facts, and not larded with adjectives such as surprise or shock about
       conduct of others (creates more ill feeling between parties, wastes courts time, and leave trier of
       fact to form their own opinions)
12) Evidence Act s.67: irregularity does not prevent its reception by court (see also R.2)
R.51A: setting down application for hearing: notice of hearing, outlines and record (if >30 mins)
1) Rule 51A came into force on July 1, 2001, and sets the procedure for setting down applications for
   hearing in Chambers:
2) 51A(1): Rule 51A applies to both originating and interlocutory applications
3) 51A(3): applicant wishing to set an application down for hearing must file a notice of hearing (Form
   126) and the original notice of motion.
4) 51A(5): hearing must be set for 9:45am (gives 15 minutes for counsel to discuss time estimate before
   court starts at 10am)
5) 51A(6): if estimated to take over 2 hours, registrar will set date and time
6) 51A(8): must deliver notice of hearing to each respondent, and length of notice that must be given
   depends upon the estimated length of time of the hearing: if likely more than 30 minutes notice of
   hearing must be delivered to the opposing party 7 clear days before the date set or hearing, otherwise
   at least 2 clear days notice must be given.
7) 51A(10): if by consent, unopposed, or 30 minutes or less, applicant must file with notice of hearing
   original of every affidavit and copy of every response & response affidavit
8) 51A(11): if opposed, respondent must file original affidavits
9) 51A(12): if opposed and over 30 minutes, applicant and each respondent must prepare and deliver
   outline (Form 125) and applicant must compile a chambers record (contains outlines, reponses,
   affidavits, draft order, list of authorities, etc) which must be filed in the Court Registry and a copy
   delivered to opposing counsel
   a) Although the Rules of Court do not require the presentation of a outline (a.k.a. written or
        chambers brief) of argument for applications under 30 minutes in length, it is prudent practice to
        do so.
   b) The brief or outline should describe the nature of the litigation and the application and should
        include a statement of facts, issues and the remedy sought. It should also list any rule, statute or
        case relied upon.
SAC, R.52,53: hearing the application, in Chambers, justice v. master
1) R.52(1) (the Chambers Rule): all originating applications and, unless made in the course of trial, all
   interlocutory applications shall be heard and disposed of by the court in Chambers.
2) R.52(2): list of matters that must be heard in Chambers, including:
   a) Appeals from master or registrar
   b) Applications for judgment under R.18A
   c) Applications to vary or set aside a judgment
3) R.44(2): if all parties of record consent to an order, it is possible to have the order granted by the
   court without the application being spoken to.
4) Presided over by justice or master. Master empowered under Supreme Court Act s.11, Rule 53 and
   practice directives with the idea of freeing up justices time to work on trials:
   a) SCA s.11(7): master has same jurisdiction as judge in chambers unless Chief Justice gives a
       direction that master if not to exercise certain jurisdiction
   b) 53(1): master has powers set out in 52(4) to 52(12) i.e. to preside and decide over Chambers
       applications and 53(2) as registrar
   c) Practice Directives:


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         i) Extent of Jurisdiction (page SC-564): e.g. master may hear all interlocutory applications and
              make certain final orders such as under R.2 (such as set aside proceeding where ongoing and
              willful breaking of the rules), dispositions without trial such as summary judgment under R.18
              and grant judgment in default under R.17, etc.
         ii) Restrictions on Jurisdiction (page SC-565/6): e.g. master may not e.g. grant relief where
              statute or rule expressly confers it on a judge, hear any matter in criminal proceedings, any
              matter relating to contempt, or vary or set aside an order of a judge.
         iii) Masters – Mode of Address (page SC-574): “Your honour”
    d) 53(5): master may refer a matter to a judge if appropriate
    e) 53(6) and 52(2)(a): appeal from a masters order is to a judge of the B.C.S.C. but if get the order
         from a judge then must appeal it to the B.C.C.A. which can be more delay/cost (so often want to
         have interlocutory motion heard before a master rather than a judge)
5) 52(4): if party fails to attend court may proceed
6) R.52(7) as amended by B.C. Reg. 367/2000: each application is put on a Chambers list prepared by
    the Registry
    a) Recall the solicitor setting down the application must indicate a time estimate in the Notice of
         Motion (Form 55).
    b) First reading list is short and uncontested motions, second reading list is called based on length of
         time estimate
    c) “First readings” are consent orders, followed by “second readings” (contentious applications)
7) R.52(8): although evidence must be presented by affidavit, the court may order cross-examination of
    the deponent of an affidavit (e.g. if credibility in question or if affidavit confusing) or the examination
    of a party or witness, or may permit other forms of evidence to be adduced.
8) 52(9): Applications heard in Chambers are open to the public, except in the case of urgency (notice
    may not be needed in such cases under 52(12.1) and they can even be heard over the telephone under
    R.59(3)) or where the court directs that they be held privately i.e. in camera
9) 52(14): registrar shall attend and make notes of chambers proceedings
10) If forget to argue something, can go back into chambers and speak to it (e.g. if forget to argue for
    costs)
11) Usually “judgment” will be given immediately, but may be reserved
12) R.41(8): After judgment given, a formal order must be drawn up (see Forms 42, 43) formalizing the
    decision and entered or filed at the Court Registry.
    a) Either party may draw up the formal order, though it is generally the party that made the
         application.
    b) Don‟t forget to include costs if ordered
    c) Unless the court orders otherwise, the order must be approved in writing by all parties or their
         counsel before it is filed in the Court Registry.
    d) Either the judge/master or the registrar will confirm and sign it

            Dispositions without Trial: discontinuance, default, summary, settlement, etc
Various ways to dispose without conventional trial (generally in Chambers, see Rule 52 above)
1) Approximately 90-95% of all actions commenced are disposed of without a trial.
2) The procedures that can result in the disposition of a case without trial include:
   a) Plaintiff discontinues or defendant withdraws – Rule 36
   b) Default judgment – Rules 17 and 25
   c) Summary judgment – Rule 18
   d) Dismissal for want of prosecution – Rule 2(7)
   e) Striking writ or pleadings – Rule 19(24)


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   f) Summary Disposition of Issues – Rules 31(6), 33, 34
   g) Settlements: offers to settle, pre-trial conferences, mini trials, settlement conferences and case
       management
3) Generally these matters are disposed of in Chambers and the rules governing Chambers practice apply
   (see Rule 52).
4) See ADR and Notice to Mediate regulation below
R.36: discontinuance by plaintiff, withdrawal by defendant (and possible default proceedings)
1) R.36(1): at any time before the action is set down for trial, a plaintiff may discontinue it, in whole or
   in part, by filing and delivering a notice of discontinuance to each party of record.
2) R.36(2): after an action has been set down for trial, the plaintiff may only discontinue it with the
   consent of all parties of record, or by leave of the court
3) R.36(8): specifies that, unless a court otherwise orders, the discontinuance of an action does not
   create a defence to a subsequent proceeding for the same cause of action.
   a) In other words, discontinuance is not a resolution of the action on its merits and it does not create
       a res judicata. Therefore the plaintiff may recommence an action unless it has become time-
       barred.
4) R.36(3): defendant may withdraw his or her defence, or any part of it, by filing a notice of withdrawal
   and delivering a copy of it to each party of record
   a) R.36(7): This enables the plaintiff to proceed under Rule 25 for default proceedings (see below).
5) R.36(4): costs:
   a) A plaintiff who discontinues an action against a party must pay the costs of that party to the date
       of delivery of the notice of discontinuance.
   b) Similarly, a defendant who withdraws a defence must pay the costs of the plaintiff to the date of
       the delivery of the notice of withdrawal
R.17,25: default judgment against D (no appearance or SofD) or against P (no SofC), set aside
1) Generally, note ethical issues: don‟t apply for default judgment until making inquiries, giving
   warning to other parties, unless expressly instructed by client to do so (in which case tell the other
   side)
2) Default against defendant:
   a) A defendant may be in default because of:
       i) R.17(1): a failure to enter an appearance to a writ of summons within the time allowed by
           Rule 14(3) (7 days)
           (1) R.17(2): plaintiff must file proof of service of the writ and a praecipe endorsed by registrar
                stating no appearance filed by defendant
       ii) R.25(2): a failure to file and deliver a statement of defence within the time allowed by Rule
           21(5) (14 days from the time limited for appearance or from the delivery of the statement of
           claim, whichever is later). Note must make application before statement of defence filed, even
           if it‟s filed late.
   b) In either case, depending on the nature of the claim, judgment may be entered against the
       defendant. (Rules 17 and 25).
   c) The default procedures vary depending on the nature of the plaintiff's claim. For example:
       i) R.17(3), 25(4): if the plaintiff's claim is solely for recovery of a debt or liquidated demand, the
           plaintiff may enter final judgment against the defendant – no application for judgment is made
           to the court but judgment is entered by the Registrar on praecipe application.
       ii) R.17(6), 25(7): if the plaintiff‟s claim relates solely to the detention of goods
   d) R.17(9), 25(12): In other situations, the plaintiff may proceed against the defendant by applying
       for judgment under Rule 18 (see 18(1)).
3) Default against plaintiff:

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   a) R.25(1): a plaintiff may be in default because of a failure to file and deliver a statement of claim
       within the time stated (see R.20(2), so assuming writ had only general endorsement) and if so, the
       defendant may apply for an order that the action be dismissed
4) Note Master may make final orders granting judgment in default (see P.D. p. SC-565)
5) R.17(12), 25(15): while default judgments are commonly obtained, it is possible for such judgments
   to be set aside upon application to the court.
   a) This is based on the fundamental principle that unless the court has pronounced judgment on the
       merits of an action, it has the power to revoke the judgment.
   b) Master cannot set aside an order (see Euro Ceramics Tile v. T & C Ceramic Tile, [1992] 1
       WWR 285 (B.C.C.A.))
   c) The party applying to set aside a default judgment must file an affidavit explaining the reasons for
       the default and any delay in making the application, and setting out facts that will enable the court
       to determine whether the judgment should be set aside or varied. The test is three-fold (see
       Miracle Feeds v. D & H Enterprises (1979), 10 B.C.L.R. 58 (Co.Ct.) adopted in Bank of
       Montreal v. Erickson (1984), 57 B.C.L.R. 72 (C.A.)) – the defendant must demonstrate, through
       affidavit evidence, that he/she
       i) Did not willfully or deliberately fail to file the required document
       ii) Made application to set aside the default judgment as soon as reasonably possible; and
       iii) Has a meritorious defence or at least a defence worthy of investigating.
       iv) All of these established by affidavit material filed with court
R.18,19: summary judgment if no defence or claim, different to 18A, striking out pleadings
1) The purpose of Rule 18 is to provide for speedy disposition of actions where there is no real contest
   (recall R.1(5)).
2) Either a master or judge can hear R.18.
3) Can be used in conjunction with R.17(9), 25(12).
4) R.18(1): an application for summary judgment may be brought by the plaintiff, on the ground that
   there is no defence to the whole or part of a claim (i.e. bound to succeed), or no defence except as to
   amount
5) R.18(6): an application for summary judgment may be brought by the defendant, on the ground that
   there is no merit to the whole or part of the claim (i.e. bound to fail).
6) Summary judgment, whether for plaintiff or defendant, is only appropriate where liability, or a
   defence to a claim for liability, is plain and obvious. It is not for weighing evidence or resolving
   disputed facts. An application for summary judgment, therefore, ought not to be made where facts as
   to liability are in dispute or are of a complicated or difficult character.
7) A proceeding for summary judgment is not a trial by affidavit (see 18A below for that). The court
   does not try issues under Rule 18 but rather determines whether there are any issues to be tried.
8) (from Hughes v. Sharp (1969), 68 W.W.R. 706 (B.C.C.A.), Memphis Rogues Ltd. v. Skalbania
   (1982), 38 B.C.L.R. 193 (C.A.)): on a Rule 18 application the test is not whether the case will
   succeed but rather, whether there is:
   a) a “triable issue”
   b) an “arguable case” or
   c) “a real and substantial question to be tried”.
9) The distinction between Rule 18 and 18A was described by Chief Justice McEachern in Soni v. Malik
   (1985), 61 B.C.L.R. 36 (S.C.) as follows:
   a) There are substantial differences between an application under Rules 18 and 18A. Under the
        former, summary judgment should not be given if there is a bona fide triable issue: Memphis
        Rogues Ltd. v. Skalbania (1982), 38 B.C.L.R. 193 (C.A.) at 202 [also stated in Serup v. School
        District No. 57 (1989), 54 B.C.L.R. (2d) 258 (C.A.) where school initially successful under R.18


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        in getting summary judgment to dismiss a claim by a parent that she had a Charter right to inspect
        books in school library, but C.A. overturned saying it was a “bona fide triable issue”] …
    b) Under Rule 18A on the other hand, the court actually tries the issues raised by the pleadings on
        affidavits. The hearing of a R.18A application has been called a summary trial...
    c) This is a useful way to illustrate the distinction between the two rules although I would have
        preferred to reserve the term summary trial for expedited proceedings under Rule 18A(5) [now
        Rule 18A(13)]. For convenience, I am content to describe the various proceedings under RR.18,
        18A and 18A(5) [now R.18A(11)] as summary judgment, summary trial and expedited trial.
    d) The important point, however, is that the raising of a triable issue or arguable defence will not
        defeat an application under R.18A, for the court is authorized under that rule to conduct a
        summary trial of that issue or defence. The court‟s function is described in R.18A(5) [now
        18A(11)] which provides that on such an application the court “...may grant judgment...unless (a)
        the court is unable on the whole of the evidence [i.e. as it can be presented on an 18(A)
        application] ... to find the facts necessary to decide the issues of fact or law” ... or unless it would
        be unjust to do so: Royal Bank v. Vista Homes Ltd. (1984), 54 B.C.L.R. 252.
10) R.18(2),18(7),52(8): court has discretion to make a variety of orders on a Rule 18 application other
    than simply granting judgment for the plaintiff or dismissing the plaintiff's claim. The broad range of
    remedies include allowing the defendant to defend part of the claim unconditionally or on terms,
    ordering the examination of a deponent, party or witness, ordering discovery or making any other
    order the court thinks fit.
11) See also Rule 19(24) for applications to strike out pleadings.
    a) See 19(24)(a) above for striking pleadings if disclose no reasonable claim or defence
    b) See 19(24)(b) above if unnecessary, scandalous, frivolous or vexatious.
    c) See 19(24)(d) above for abuse of process
    d) If SofC struck ends the action, if SofD struck can get default judgment giving relief sought,
        though in either case more likely to allow amendments
R.2,19: dismissal for want of prosecution (inexcusable & prejudicial delay)
12) R.2(7): court has power to dismiss a proceeding where there is want of prosecution by the plaintiff.
    This application is brought by a defendant. The order is discretionary.
13) In deciding whether to dismiss for want of prosecution the court will consider three questions (see
    Busse v. Robinson Morelli Chertkow (1999), 63 B.C.L.R. (3d) 174 (C.A.) (burden is on defendant
    to show these):
    a) Whether has been inordinate delay (burden is on defendant to show this)
    b) If so, was the inordinate delay inexcusable (burden is on defendant to show this)
    c) Is the defendant likely to be prejudiced by the delay?
        i) Burden is on plaintiff to show, because undue delay after the expiry of a relevant limitation
            period will give rise to a presumption that there is prejudice against the defendant (see
            Lindholm v. Pollen (1986), 3 B.C.L.R. (2d) 23 (S.C.))
R.31,33,34,39: summary of part. issues (on admissions, special case, point of law, one question)
1) In addition to Rules 18, 18A and 19(24), which provide summary procedures for disposing of an
   action, the Rules contain several procedures that allow parties to isolate and try issues separately.
   These can be issues of fact or law. Often the disposition of one or more such issues can be
   determinative of the entire proceeding or can promote settlement discussion.
2) Rules that operate in this way interrupt the normal litigation process and are designed to promote the
   fundamental goals referred to in Rule 1(5): the just, speedy and inexpensive determination of every
   proceeding on its merits.
3) R.31(6) – judgment on admissions


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   a) Rule 31 provides a formal process for seeking and obtaining admissions (in addition to other ways
      such as in pleadings, on oral discovery, etc.)
   b) R.31(1): by delivery of a “notice to admit” a party may request any other party to admit the truth
      of a fact or the authenticity of a document.
   c) R.31(2): the truth of a fact or the authenticity of a document shall be deemed to be admitted
      unless, within 14 days, the other party:
      i) denies the fact or the authenticity, or
      ii) sets forth the reasons why he/she cannot make the admission, or
      iii) expressly refuses to admit on the grounds of privilege or irrelevancy
   d) R.31(5): Admissions may be withdrawn by consent or with leave of the court. The rule
      concerning withdrawal of admissions applies not just to admissions made in response to a notice
      to admit, but also admissions made in a pleading.
   e) R.31(6): admissions of the truth of a fact, or the authenticity of a document, may be used as
      evidence on an application for judgment based on admissions. Admissions may also be used in a
      Rule 18A summary trial or at a conventional trial.
   f) Suitable where – see Shewfelt v. Canada (1997), 28 B.C.L.R. (3d) 340 (S.C.)) (point of law
      clearly defined in the pleadings, facts not in dispute in pleadings, will be determinative, save
      substantial costs in narrowing issues)
4) R.33 – stating a special case
   a) Rule 33 allows parties to agree on stating a question of law or fact or mixed question of law and
      fact in the form of a special case, court will review the question and give its opinion.
   b) On a special case, counsel must provide the court with an agreed statement of facts. Consistent
      with the principle that the court must act judicially and not in an advisory or consultative capacity,
      the court will not consider hypothetical questions in the form of a special case. The facts assumed
      by the court need not, however, be admitted by any party. If the matter goes to trial, those facts
      will still have to be proven.
   c) With the consent of the parties, once the question has been answered, the court may grant specific
      relief or order judgment to be entered (the court may also order a question to be stated as a special
      case of its own motion.)
5) R.34 – setting down a point of law
   a) R.34(1): at any time before trial, a point of law arising from the pleadings may be set down for
      hearing and disposed of by the court.
   b) R.34(2): if, in the opinion of the court, the decision on the point of law substantially disposes of
      the whole action or any part of it, the court may dismiss the action or make any order it thinks just.
   c) The primary difference between Rule 34 and a special case (R.33) is that Rule 34 is limited to
      legal issues arising from the pleadings.
   d) The following principles must be observed in considering an application under Rule 34 (see Alcan
      Smelters and Chemical Ltd. v. Canada Association of Smelter and Allied Workers, Local 1.
      (1977), 3 B.C.L.R. 163 at 165 (S.C.), which was described by the Court of Appeal as the “leading
      authority” in Can-Dive Services Ltd. v. Pacific Coast Energy Corp. (1993), 77 B.C.L.R. (2d)
      128 at 133 (C.A.)):
      i) The point of law to be decided must be raised and clearly defined in the pleadings.
      ii) Only appropriate where, assuming allegations in a pleading of an opposite party are true, a
           question arises as to whether such allegations raise and support a claim or defence in law.
      iii) The facts relating to the point of law must not be in dispute and the point of law must be
           capable of being resolved without hearing evidence.
      iv) Whether a point of law ought to be decided before the trial of the action is discretionary, and it
           must appear that the determination of the question will be decisive of the litigation or a
           substantial issue raised in it.

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       v) In deciding whether the question is one that ought to be determined before trial, the court will
           consider whether the effect of such a decision will immeasurably shorten the trial, or result in a
           substantial saving of cost.
6) R.39(29) – trial of one question before another
   a) R.39(29): one or more questions of fact or law may be tried and determined before the others, and
       upon that determination, a party may move for judgment.
   b) Application of this sub-rule should be limited to extraordinary and exceptional cases. Where
       questions are quite separate and are not interwoven with issues arising from other claims, an order
       for a separate trial is appropriate.
7) More than one of the four procedures outlined above may be open to a party. While these procedures
   are designed to expedite matters, they may also result in lengthy delays, especially when the decisions
   made are appealed and are reversed on appeal.
R.35,37: offer to settle (costs implications), pre-trial conf, settlement conf, mini trial, case mngmnt
1) In addition to leaving room for private settlement negotiations and ADR processes to help bring about
   settlements, the Rules provide procedures to encourage or assist the negotiated resolution of civil
   litigation.
2) Most civil procedure rules operate in some general way to encourage settlement, for example:
   a) by narrowing and clarifying the issues
   b) by providing disclosure and discovery of information
   c) by imposing costs on the “losing” party
3) Always remember “without prejudice” in any offer to settle so it can‟t be used against you in court,
   and write in “except as to costs” (see Calderbank v. Calderbank, [1975] 3 All E.R. 333 (C.A.), and
   Agala v. Agala, 1999 (B.C.S.C.)).
4) The Rules also provide more specific incentives or aids to settlement, under Rules 35 and 37.
5) Offers to settle under Rule 37:
   a) R.37(2): at any time before a trial commences, a party may deliver to another party, a written
        offer to settle in Form 64.
   b) R.37(6): an offer to settle may be delivered at any time before the trial commences.
   c) R.37(8): Offers to settle can be revoked before acceptance by delivering a notice of withdrawal in
        Form 65.
   d) R.37(9): offers to settle can be made conditional on acceptance by a specific time
   e) R.37(13): if not time limited or withdrawn, offer can be accepted at any time before trial
        commences
   f) R.37(14): at any time before the trial begins, an offer may be accepted by delivery of written
        notice in Form 65A
   g) R.37(16): acceptance operates as a stay of further proceedings except for costs recovery and
        judgment enforcement
   h) R.37(17): offers to settle can be made conditional on the settlement sum being paid into court or
        to a named trustee
   i) R.37(20): if a party has accepted a conditional offer and then fails to meet the specified condition
        (e.g. such as payment into court) the other party may apply for an order in the terms of the
        accepted offer or may elect to continue the proceedings as if there had been no acceptance
   j) R.37(30), (31) and (32): Specific provisions apply in relation to offers made in cases where there
        are multiple plaintiffs or defendants, or where there are counterclaims or third party claims.
   k) A party under a disability may make, accept or withdraw offers to settle but the acceptance of an
        offer to settle by a person under a disability must be approved by the court under Rule 6(14). See
        also section 40 of the Infants Act.



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   l) Parties, of course, do not need this rule to make a settlement offer but the costs results stated in
       this rule only apply to formal offers made in accordance with it. The idea of these costs results is
       to act as an incentive to parties to attempt a pre-trial settlement and an inducement to treat pre-trial
       offers seriously.
       i) R.37(23): if offer to settle for a particular sum of money is made by a plaintiff, the defendant
            does not accept the offer, and the plaintiff at trial subsequently recovers an amount equal to or
            greater than the amount in the offer to settle, the plaintiff is entitled to costs up to the date the
            offer is delivered and to double costs for all steps taken after the date of the offer
       ii) R.37(24): if defendant makes an offer to settle for a specific monetary sum which the plaintiff
            does not accept:
            (1) If the plaintiff later wins judgment only for the amount offered or a lesser amount, the
                plaintiff is entitled to costs assessed only until the date the offer was delivered and the
                defendant is entitled to costs assessed for steps taken after that date.
            (2) If the action is dismissed, the defendant is entitled to costs to the date the offer was
                delivered and to double costs for steps taken after that date
       iii) R.37(25)-(29): similar rules apply to offers to settle for non-monetary relief, and in particular,
            costs penalties can be assessed for refusal to accept an offer that the trial reveals should have
            been accepted.
       iv) R.37(7): if it is delivered less than 7 days before the trial commences, then sub-rules (23) to
            (29) (the double costs incentives) do not apply
       v) Note that despite Rule 37, counsel can still privately negotiate settlements, but then costs
            implications of R.37 do not apply
   m) R.37(11): the fact that an offer to settle has been delivered must not be stated in the pleadings nor
       communicated to the court or jury until all questions of liability and the amount of the damages
       have been decided
   n) R.37(12): the delivery of an offer to settle does not constitute an admission by the party making it.
       In other words, an offer by a plaintiff is not an admission that the plaintiff's claim is limited to the
       sum specified; an offer by a defendant is not an admission of liability.
6) Pre-trial conferences under Rule 35:
   a) Pre-trial conferences are used extensively in B.C. and can be very effective in both enhancing the
       quality and efficiency of the eventual trial and in encouraging settlements.
   b) R.35(1),(2): any party to an action who has delivered or received a notice of trial may request, or
       the court on its own motion at any stage may direct, that a pre-trial conference be held.
   c) In BC, certain cases are mandatory to have a conference within 30 days of the trial date. As
       present these are:
       i) All cases estimated to be from 4 to 19 days in length (if under 4 days not considered complex
            enough to need one so optional, if over 19 have case management)
       ii) Priority trials and
       iii) Jury trials of any length.
   d) R.35(3): A pre-trial conference is a meeting held in Chambers attended by the solicitors and/or
       the parties themselves, and it is presided over by a judge or master. The purposes of a pre-trial
       conference are generally to encourage settlement and ensure counsel are on track for trial, and to
       consider matters such as:
       i) the simplification of the issues
       ii) the necessity/desirability of amending pleadings
       iii) the necessity/desirability of obtaining admissions
       iv) the quantum of damages
       v) fixing a date for the trial
       vi) any other matters that may aid in the disposition of the action or the attainment of justice

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   e) See “pre-trial conference report” at page SC-634 (and court will appreciate if counsel have
       discussed and agreed on this stuff)
   f) R.35(3.1): under a 1996 amendment to the Rules, interlocutory applications may be heard and
       decided at the conference – this can provide a convenient “one-stop shopping” mechanism with
       respect to preparing the case for trial.
   g) R.35(4): the judge or master who presides at the pre-trial conference has wide powers to expedite
       the pre-trial procedures and to ensure the matter is properly prepared for the trial.
       i) E.g. to amend pleadings, produce further documents, etc.
   h) R.35(4)(j): another important component of the pre-trial conference is to encourage the parties to
       consider the possibility of settlement – the pre-trial conference may result in an order requiring the
       parties and their counsel to attend a mini-trial or a settlement conference [note that an independent
       power to make such an order is also found in Rule 35(2)]
   i) The judge or master will ascertain whether the case is ready to proceed and whether it will likely
       run beyond its time estimate. If necessary, the judge or master may take the case off the trial list.
7) Settlement conferences and mini trials under Rule 35:
   a) Both mini-trials and settlement conferences take place in camera and no witnesses are heard.
   b) 35(2),(5),(6): can follow a pre-trial conference (which can, for example, turn into a settlement
       conference so be prepared) and can be ordered by judge or master, or requested by either party
   c) R.35(6): at a settlement conference the judge or master explores all the possibilities of settling the
       outstanding issues.
       i) If ordered to attend, must do so.
       ii) Similar to mediation.
       iii) Anything said is without prejudice (i.e. can‟t be used in court at a later date, similar to how
            would always write this on any settlement offer).
       iv) Notice to Profession, Nov 17 1997, Brian Williams: if settlement conference up to an hour,
            file brief setting out facts and law 4 days beforehand. If over an hour, judge/master will hold a
            pre-settlement conference to settle such things.
   d) R35(5): at a mini-trial, a judge or master gives a non-binding opinion of the probable outcome of
       the trial (to promote settlement)
       i) If ordered to attend, must do so.
       ii) Rarely used compared to settlement conferences
       iii) Most useful when case turns on inferences from undisputed facts, less useful if credibility at
            issue
   e) R.35(8): a judge who has heard a mini-trial or attended at a settlement conference shall not
       preside at the trial without the consent of all parties.
8) Case management:
   a) In February 1997, all civil actions estimated to run 11 days or longer became subject to
       management by a judge assigned to be the trial judge.
   b) As of December 1, 1998, that was changed to cases estimated to run 20 days or longer.
   c) The judge gives management directions, hears the interlocutory applications, assigns the trial date
       and requires counsel to prepare a trial plan setting out the issues, the witnesses and time estimates.
       The judge also ascertains whether a settlement is possible and will arrange for a settlement
       conference before another judge is that is warranted.

                              Trial: summary (18A) and conventional (39)
R.18A: Summary trial in Chambers if suitable & efficient, no judgment if can’t find facts or unjust
1) Rule 18A was introduced in 1983 and now account for a large proportion of cases heard by the BCSC



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2) Unlike a Rule 18 summary judgment, a Rule 18A trial allows judgment on the merits, the weighing of
   evidence, and the resolution of disputed facts, and are designed to have disputed issues of fact and law
   determined more expeditiously
3) R.52(2)(c): heard in Chambers by a judge (masters cannot hear 18A trials)
4) R.18A(1): a party may apply for judgment either upon just one issue (e.g. if defence thinks they have
   a limitations defence they may just bring that on 18A, leaving other issues for conventional trial) or on
   everything at issue:
   a) At any time after a statement of defence has been filed (in the case of an action) or
   b) After the trial of an issue has been ordered under Rule 52(11)(d) (in the case of an originating
       application).
5) Appropriateness of 18A trial:
   a) General principles (see, for example, Inspiration Management Ltd. v. McDermid St. Lawrence
       Ltd. (1989), 36 B.C.L.R. (2d) 202 (C.A.)):
       i) is not necessary that all parties agree to a summary trial
       ii) 18A may not provide perfect justice in every case, but neither do conventional trials
   b) Used to be conflicting case law on whether there can be a preliminary objection as a threshold
       issue to the appropriateness of an 18A trial Merchey v. Cadillac (1998) (BCSC) held not
       appropriate to raise preliminary objection, but Sinnott v. Westbridge Computer (1993), 78
       B.C.L.R. (2d) 28 said chambers judge had discretion of dealing with appropriateness of a
       summary trial as a threshold issue.
   c) Now it is clear with R.18A(8): a court may dismiss the application for summary trial if:
       i) Issues not suitable for summary trial (onus on applicant claiming 18A is inappropriate to show
           it is)
       ii) Will not assist the efficient resolution of the proceeding (want to short-circuit 18A trials
           doomed to failure)
   d) However, once the applicant file a motion for relief under this Rule, both parties should advise the
       court whether there is an issue as to the appropriateness of trying the action under this rule [see
       R.18A(8) and World Project Management Inc. v. Regan (1994), 93 B.C.L.R. (2d) 241 (S.C.) ].
   e) Problem: 18A(8) has potential to add another costly step to the process (and recall Rule 1(5)). If a
       preliminary motion is made opposing this process but fails to prevent it, and 18A summary trial
       goes ahead but judge decides cannot give judgment (see Rule 18A(11) below) but should instead
       go to conventional trial, the parties will have incurred far greater expense and delay than if they
       had directed their efforts to a conventional trial in the first place (though will have learned
       something about the case and opposing side)
   f) Western Delta Lands Partnership v. 3557537 Canada Inc. (2000), 44 C.P.C. (4th) 382 at 389,
       para. 24 (B.C.S.C.):
       i) A motion under 18A(8) that 18A trial is unsuitable will fail unless (i.e. the following lists
           when 18A summary trial is inappropriate):
           (1) Litigation is extensive so summary trial will take considerable time
           (2) Unsuitability of summary determination is obvious (e.g. if credibility is a big issue)
           (3) Clear that summary trial involves substantial risk of wasting time and effort and producing
                unnecessary complexity
           (4) Only some issues are sought to be determined by 18A and they are not determinative of the
                litigation
       ii) To determine appropriateness, also applied the factors from Inspiration Management Ltd. v.
           McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d) 202 (C.A.) (which described what to
           consider when deciding if a judgment can be granted under 18A(11) – see below):
           (1) the amount involved
           (2) the complexity of the matter

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              (3) its urgency
              (4) any prejudice likely to arise by reason of delay
              (5) the cost of taking the case forward to conventional trial in relation to the amount involved
              (6) stage of proceedings
         iii) Also noted that evidence from Rule 28 not included in 18A(3) and so, if such evidence is
              needed (as allowed under R.40(30)) then 18A summary trial inappropriate.
         iv) In this case, court ruled 18A was appropriate, and C.A. upheld this decision
6)   R.18A(2),(5): the hearing of a Rule 18A summary trial must be set in accordance with Rule 51A and
     Rule 44(5) procedures
7)   R.18A(3),(4),(6),(7): evidence is primarily given by affidavit. However, after notice, answers to
     interrogatories, admissions, and evidence taken in an examination for discovery can also be relied
     upon.
8)   R.18A(10): court may order cross-examination of a deponent or expert
9)   R.18A(11)(a): once heard, court may grant judgment in favour of any party (i.e. not just applicant for
     18A summary trial), either on an issue or generally, unless:
     a) R.18A(11)(a)(i): court unable on the whole of the evidence to find the necessary facts
         i) Recall affidavits given under oath, so if affidavits from either side conflict judge generally
              cannot see the people to determine credibility – thus, historically, justice would not grant
              judgment in such cases and instead remit it to trial list
         ii) Now, judgment may be given even though there are conflicting affidavits from different
              parties:
              (1) This became possible after Inspiration Management Ltd. v. McDermid St. Lawrence
                   Ltd. (1989), 36 B.C.L.R. (2d) 202 (C.A.) - should not decide solely on basis of conflicting
                   affidavits (even if one is preferable), but if other admissible evidence (such as exhibits
                   attached to affidavits) makes it possible to find the necessary facts can give judgment.
              (2) See also Hamilton v. Sutherland (1992), 68 B.C.L.R. (2d) 115 (C.A.), Coast Wholesale
                   Appliances Ltd. v. Armistead (1993), 77 B.C.L.R. (2d) 267 (C.A.).
         iii) If an affidavit is internally inconsistent (so suggesting it is not credible), see Reichold Ltd. v.
              Van-City Cultured Marble Products (Nov 22, 1993), BCSC, Action C930067. Spencer J.
              quoted 1980 English C.A. case: “justice is not bound to accept every statement made no matter
              how imprecise, unbelievable, or internally inconsistent – rather, justice has discretion to decide
              if statements in affidavits have sufficient prima-facie plausibility” (this in spite of the
              requirement in Inspiration Management and Coast Wholesale above that require other
              evidence to determine if affidavit is credible). In this case, Spencer J. concluded the
              defendant‟s affidavit (which was internally inconsistent) was not believable.
         iv) If justice cannot find the facts, may be able to use R.18A(10), such as ordering adjournment
              for cross-examination of a deponent.
         v) On affidavits, see also Rule 51.
     b) R.18A(11)(a)(ii): court thinks it would be unjust to give decision.
         i) In deciding whether it will be unjust to give judgment, a judge is entitled to consider (listed in
              Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d)
              202 (C.A.)):
              (1) the amount involved
              (2) the complexity of the matter
              (3) its urgency
              (4) any prejudice likely to arise by reason of delay
              (5) the cost of taking the case forward to conventional trial in relation to the amount involved
              (6) stage of proceedings


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         ii) In Moore v. Castlegard & District Hospital (1995), 13 B.C.L.R. 31 (C.A.) the issue of cause
             of injuries (was it the driving accident or the doctors) was taken to 18A trial, but there was
             conflicting medical opinion. 18A justice refused to give judgment and sent it to full trial since
             the accuracy, reliability and weight of the evidence was crucial to the issue of causation (and
             so would be unjust to determine in 18A trial).
10) Also see Chretien v. Jensen (1999), 58 B.C.L.R. (2d) 186 (C.A.) where the court set out the standard
    of review for R18A judgments.
11) Court in Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d)
    202 (C.A.) also commented that it is “unfair of counsel to scoop-shovel volumes of information on the
    Chambers justice and expect them to sift through it” – rather, professional responsibility on counsel to
    present material in organized fashion.
12) If judgment is not given on an application for summary trial, but the court considers that the
    proceeding ought to be expedited, Rule 18A(13) enables the court to make a wide variety of orders to
    expedite a particular issue or of the proceeding generally, such as:
    a) Orders setting time limits to close pleadings, deliver documents, bring interlocutory applications
         or conduct discoveries
    b) Orders imposing limits on an examination for discovery, limiting the evidence of witnesses, and
         requiring written summaries of arguments to be delivered within a fixed time
    c) Orders regarding how evidence is to be presented
    d) Orders providing for a pre-trial conference
13) 18A summary trials have been challenged under the Charter – e.g. Silbernager v. Ritchie (1996), 20
    B.C.L.R. (3d) 62 (S.C.) concerned a wrongful dismissal claim, justice found that 18A procedure did
    not violate Charter s.7 fundamental justice.
R.39 conventional trial: notice of trial, trial record & trial certificate, request for jury
1) Setting Down for Trial:
   a) R.39(2): A notice of trial (Form 35), setting out the place and date of trial, may be:
       i) Delivered by P after the time has expired for the delivery of a statement of defence, or
       ii) By either party after the close of pleadings
       iii) (though more usual to wait till after discovery since better chance of settlement and will have
            better idea of length of time required, witnesses required, availability of parties and witnesses,
            whether jury v. judge alone better, etc)
   b) The power of a defendant to deliver a notice of trial is relatively recent and prevents the plaintiff
       from sitting on the case for an indefinite period.
   c) R.39(6): must deliver notice of trial within certain time
   d) R.39(4): the court can also direct that an action be set down for trial at a particular time and place
       and that the notice of trial be issued by the registry. This is usually only done in very unusual
       cases since the court is supposed to remain passive and allow the parties to direct the pre-trial
       process.
   e) R.39(7): the place of trial (venue) shall be the place named in the statement of claim, but the court
       may order that the place of trial be changed.
   f) R.39(3): as required by Form 35, before a notice of trial can be delivered, a trial date must be
       assigned. A trial date can be obtained from the registry office where the trial is to be held.
       i) Rule of thumb in Victoria: will only be under a year delay if trial under 4 days
   g) R.39(11): the party who filed and delivered the notice of trial must also file for the court a trial
       record, which provides the background of the action.
       i) Must contain:
            (1) The pleadings
            (2) Any particulars that have been delivered pursuant to a demand for particulars


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            (3) Any interlocutory orders that have been made regarding the conduct of the trial
            (4) 39(11.1) any other document the registrar thinks necessary).
       ii) R.39(12): the trial record must be filed not more than 30 and not less than 14 days prior to the
            scheduled trial date.
   h) R.39(19): each party must also file a trial certificate, not more than 30 and not less than 14 days
       before the scheduled trial date, confirming that they are ready to proceed.
       i) R.39(20): this trial certificate must contain:
            (1) A statement that the party is ready to proceed on the scheduled trial date
            (2) The current estimate of trial length
            (3) A statement certifying that the party has completed all examinations for discovery.
       ii) R.39(33): if all parties of record fail to file a trial certificate, the trial is removed from the trial
            list.
2) Pre-trial conference / case management etc.
   a) Once trial set, may have pre-trial conference or case management etc – see above.
3) Preparing for trial:
   a) Prepare a trial brief (see page SC-644) – improves your organization, identification of weaknesses,
       permits another lawyer to take over case if you cannot make the trial, gives client opportunity to
       review your preparation, etc.
   b) Should exchange trial brief with other side 30 days before trial and file with court
   c) When you go to trial, take:
       i) Pleadings binder (indexed affidavits, pleadings, notices, orders etc)
       ii) Your client document binder (counsel can agree to combine with next item)
       iii) Other parties document binder
       iv) Legal memo summarizing the law
       v) Book of documents you intend to enter as exhibits
       vi) Trial book, including: trial plan (theory and theme), opening statement, witness will-say
            statements, read-in material, outline of argument)
   d) Wear gowns in court, but not in chambers
   e) In Prov. Ct. “Your Honour” for both master and judge
   f) In BCSC “Your ladyship/lordship”.
4) Trial by jury:
   a) R.39(24): generally, civil trials are heard by the court sitting without a jury.
   b) R.39(25): a trial by the court without a jury is mandatory if the proceeding falls squarely within
       one or more of the subjects listed in.
       i) These are mostly proceedings where the court must exercise its equitable jurisdiction,
            including: the administration of an estate, the execution of trusts, and the custody or
            guardianship of an infant or the care of an infant's estate.
       ii) To determine if a proceeding falls within this rule, a court must consider what, in reality, is the
            nature of the proceeding to be tried in light of the central issues in the proceeding: Royal Bank
            of Canada v. Johnson (1984), 54 B.C.L.R. 259 (S.C.).
   c) R.39(26): otherwise, if the proceeding falls outside of Rule 39(25), a party may require a jury trial
       be held.
       i) Things to consider when deciding whether to request a jury trial:
            (1) Appeal to jury emotions, sympathy, etc. (e.g. good for personal injury)
            (2) Jury less predictable
            (3) Client‟s demeanor (e.g. if shy/nervous, jury may not be good)
            (4) Is the law very technical
            (5) Is the large volume of documents


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      ii) Such requests are made by filing and delivering to all parties of record, within 21 days after the
           delivery of the notice of trial, and not later than 30 days before trial, a notice requiring jury
           trial under
           (1) If not enough time, recall R.3(2) which allows court to extend or shorten times
      iii) R.39(27): except in cases of defamation, false imprisonment and malicious prosecution, a
           party who receives a notice of jury trial may oppose it and apply for an order that the trial be
           heard without a jury. The grounds on which such an order may be made are:
           (1) That the issues require prolonged examination of documents or accounts or a scientific or
                local investigation which cannot be conveniently tried with a jury
           (2) That the issues are of an intricate or complex character
           (3) That the trial relates to one of the matters listed in Rule 39(25).
      iv) If go ahead with a jury, empanel 8-member jury for civil cases under Jury Act s.20.
   d) It has been held that civil juries are intended for simple cases and the provision of a trial by jury is
      not a principle of fundamental justice within the meaning of s.7 of the Canadian Charter of Rights
      and Freedoms (see United Services Funds v. Richardson Greenshields of Canada Ltd. (1987),
      16 B.C.L.R. (2d) 196 at 197 (S.C.)
   e) R.39(30): the court may order that different questions of fact arising in an action be tried by
      different modes of trial.
R.38,40,40A conventional trial: subpoena, oral v affidavit v deposition v transcript, expert witnes
1) Preparing witnesses:
   a) Explain layout of courtroom, who is who
   b) Can‟t put words in their mouth, but good to prepare them
   c) Might need subpoena‟s (even if someone willing to give testimony, it may be easier for them if
       they are subpoena‟s e.g. if giving evidence against co-worker)
2) Testimony of Witnesses:
   a) R.40(1): this rule does not apply to summary trials
   b) R.40(2): generally a witness at a trial shall testify in open court, and unless the parties otherwise
       agree, the witness shall testify orally.
   c) R.40(35): in order to compel the attendance of a witness at trial a subpoena may be prepared and
       served on the witnesses.
       i) R.40(38): a person served with a subpoena is entitled to receive the proper fees at the time of
            the service
       ii) R.40(41): the court can issue a bench warrant for the failure of a witness to attend after he or
            she has been properly subpoenaed and may order that the witness pay the costs arising from
            his or her failure to attend
       iii) R.40(42): however, a person served with a subpoena may apply to the court for an order
            setting aside the subpoena on the grounds that compliance with it is unnecessary or that it
            would work hardship
   d) As an alternative to having a witness testify orally, a court may order that his or her evidence be
       given by:
       i) R.40(44): affidavit
            (1) R.40(44) to (51): only if the deponent can be subjected to cross-examination at the trial
       ii) R.38(1): deposition
            (1) As with examination for discovery, this is under oath (and so an offence to lie)
            (2) R.38(1): a deposition pursuant is used to obtain testimony of a witness prior to trial
                intended to be used at trial. The parties can agree to a deposition or it can be granted by an
                order of the court.
            (3) R.38(2): in exercising its discretion to order a deposition the court considers:


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               (a) The convenience of the person sought to be examined
               (b) Whether the witness may be unavailable to testify at trial because of death, infirmity,
                   sickness, absence
               (c) Whether the witness may be beyond the jurisdiction of the court
               (d) Whether it would be too expensive to bring the person to the trial.
           (4) R.38(1): the deposition is conducted under oath
           (5) R.38(11): it proceeds in a manner similar to the examination and cross-examination of a
               witness at trial.
           (6) R.38(13): it is tape-recorded and the testimony is then transcribed and the transcript can be
               admitted as evidence at trial. With today's technology, it is also possible to videotape the
               deposition proceedings and to have the video played at the trial.
      iii) R.40(4): transcript (i.e. evidence given under oath by that witness at another proceeding,
           hearing or inquiry)
           (1) R.40(4): a transcript of evidence given at another proceeding is only potentially
               admissible, with the court‟s leave, where the witness is dead or unable to attend the trial
               because of age, infirmity, sickness, imprisonment, or where he or she is beyond the court‟s
               jurisdiction, or where his or her attendance cannot be secured by subpoena for other
               reasons.
           (2) Unless the evidence is directly material to the case of the party seeking the order, the court
               may exercise its discretion to refuse such a request (given that granting it denies the other
               side the opportunity to cross-examine the witness).
           (3) Rule 40(4) does not authorize use of a transcript taken at an examination for discovery.
               See Seelig v. Schulli Estate (1992), 73 B.C.L.R. (2d) 279 (S.C.).
      iv) R.40(52): the court also retains an inherent jurisdiction to order that evidence of a fact or
           document be presented at trial in any manner.
3) Expert Testimony:
   a) Rule 40A came into effect in August 1993
   b) R.40A(1): rule 40A governs the admissibility of expert evidence in conventional trials. It also
      applies to Rule 18A trials as per Rule 18A(3)(e) and (4.1)
   c) R.40A(2): a written statement setting out an expert‟s opinion is admissible provided that all
      parties of record have received a copy of the statement at least 60 days prior to the trial.
      i) R.40A(5): a written statement by an expert must include reference to the expert‟s
           qualifications and any facts or assumptions on which the opinion is based:
   d) R.40A(3): the same requirements apply for the admissibility of expert oral testimony.
   e) R.40A(13): the party against whom the evidence is tendered may object to the admissibility of the
      evidence and must notify before trial
   f) R. 40A(9),(10),(11): the party against whom the evidence is tendered may require the expert to
      attend at the trial for cross-examination. The demand for such attendance must be made within a
      reasonable time after the delivery of the statement.
   g) R.40A(15),(16): the court has discretion to dispense with the requirement of delivery of an
      expert‟s statement 60 days before the trial if:
      i) Additional facts have been discovered shortly before trial
      ii) Non-delivery of the statement is unlikely to cause prejudice, or
      iii) Where justice otherwise requires it.
   h) Warn your experts not to put anything in writing until they have come to a firm conclusion, since
      other party can compel all drafts at trial)
R.40 conventional trial: other evidence, non-suit motion if no or insufficient ev. to make out case
1) Rules regarding use of other kinds of evidence at trial:


                                                                                                      70
   a) See R.40(12), (13), (39) relating to real and documentary evidence
   b) See R.40(27), (28) relating to evidence from examination for discovery (see R.27 above)
   c) See R.40(23)-(26) relating to deposition evidence (see R.38)
   d) See R.40(30) relating to pre-trial examination of witness (see R.28)
   e) See R.40(33) relating to interrogatories (see R.29)
   f) See R.40(44) relating to affidavits (see R.51)
   g) See R.19(19) for admissions in pleadings (recall if don‟t deny, deemed admitted)
   h) See R.31 on notices to admit
2) R.40(52) gives the court some leeway, e.g. to admit hearsay evidence
3) At the close of the plaintiff‟s case, the defendant may apply to have the action dismissed on two
   alternative grounds:
   a) R.40(8): that there is no evidence to support the plaintiff‟s case.
       i) A trial judge may not evaluate the evidence. He or she may determine only whether there was
           any evidence capable of supporting the plaintiff;s claim. See Roberge v. Huberman (1999),
           62 B.C.L.R. (3d) 385 at p. 394 (C.A.).
       ii) R.40(9): if the application is denied, the defendant can still call evidence
   b) R.40(10): that the evidence is insufficient to make out the plaintiff's case.
       i) R.40(11): if the application is denied, the defendant will not be permitted to call evidence
           unless the court otherwise orders.

                                               Costs & Fees
R.57: costs follow event/in the cause, if sum within prov court no costs, class action special
1) To allocate responsibility for litigation costs, the Anglo-Canadian system has opted for the general
   rule of indemnity i.e. costs follow the event i.e. costs reasonably incurred may be recovered by the
   successful litigant, provided that his or her conduct is not of a kind that should result in no
   entitlement.
2) The rationales behind this costs-follow-the-event rule are that:
   a) To (partially) indemnify successful litigants: the winning party should not be out of pocket to any
        great degree on account of the other side defending a losing claim or bringing an unsuccessful one
   b) To discourage frivolous or vexatious claims and defences (i.e. marginal litigation discouraged by
        possibility of paying own costs plus those of other side if lose claim or defence)
   c) Hence likely to promote reasonable out-of-court settlements
3) Problems with this costs rule are that 100% costs recovery to a successful party would discourage
   litigation of well-founded, novel and small amount claims for fear that the suit would be unsuccessful.
4) Also want to discourage unnecessary or improper steps to keep costs down (whether they win or lose)
5) Also want to penalize parties (or solicitors) for misconduct
6) The rules on costs attempt to balance the above rationales and problems: to fairly compensate the
   winning party without unduly discouraging access to civil courts, the rules in British Columbia with
   respect to the assessment of ordinary costs are generally intended to award the winner approximately
   50% of his or her actual and reasonable costs.
7) R.57(9): as a starting principle, the costs of and incidental to a proceeding shall follow the event, but
   costs are always in the discretion of the court:
   a) Court may refuse to make any order for costs
   b) Court may order that only partial costs be paid
   c) Court may even order that the “winner” must pay the “loser‟s” costs.
   d) E.g. in test cases, public interest litigation or Charter litigation, or where novel issues have been
        decided or where success is divided, or where the successful party has been guilty of some kind of
        misconduct


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    e) R.57(37): a solicitor for one of the parties involved in the litigation may be ordered to pay costs if
        it can be proved that costs were incurred or wasted as a result of the lawyer‟s reprehensible
        conduct, but would only be ordered in exceptional circumstances where the court finds it
        appropriate to punish a solicitor for his/her misconduct (see Young v. Young (1990), 50 B.C.L.R.
        (2d) 1 (C.A.) aff‟d [1993] 4 S.C.R. 3, Kent v. Waldock, [2000] 7 W.W.R. 10 (B.C.C.A.) at paras.
        19, 26, 38 and 45).
8) The court has a variety of orders:
    a) May order judgment with costs, o
    b) May make no order as to costs (so each party bears its own costs), or
    c) Costs thrown away (i.e. full indemnity, rare), or
    d) Costs in the cause
    e) Costs in any event
    f) Costs forthwith (i.e. paid immediately)
9) If public interest litigation(i.e. not for own self-interest), there may be policy considerations for
    special costs awards (e.g. see B.C. Ministry of Forests v. Okanagan Indian Band, (2001)
    (B.C.C.A.) which was a test case brought in good faith, being the first Aboriginal title case since
    Delgamukw, and an unusual advance costs award was given – generally, do not get until end of case)
10) Settlements usually also include costs
11) R.57(10): a party who recovers a sum within the jurisdiction of the Provincial Court under the Small
    Claims Act is not entitled to recover costs other than disbursements unless the court finds that the
    party had a sufficient reason to bring the proceeding in the Supreme Court.
12) Specific rules (e.g. R.37 offers to settle) authorize a departure from the usual “loser pays” rule.
13) The general rule in class actions under the Class Proceedings Act s.37 is that no orders for costs are to
    be made unless:
    a) There has been abusive, vexatious or frivolous conduct on the part of a party
    b) Improper or unnecessary steps have been taken in order to delay proceedings, increase costs, or
        achieve some other improper purpose; or
    c) The court otherwise considers, in an exceptional case, that it would be unjust to deprive a
        successful party of costs.
14) Because of their importance, costs issues should be discussed thoroughly with a client so that he/she
    fully understands the risks faced in that respect in initially deciding whether to litigate or to defend.
R.57, App.B: court order of costs, expenses/disbursements + ordinary, increased, or special costs
1) A costs award generally is made up of two components:
   a) A sum related to the legal fees reasonably incurred in conducting the litigation (see below), and
   b) R.57(4): A sum for out-of-pocket expenses and disbursements (100% of disbursements will be
       recouped if the amounts are “reasonable” and “were necessarily or properly incurred”)
2) If self represented, can get disbursements and legal fees (see Skidmore v. Blackmore, [1995] B.C.J.
   No. 305 (C.A.), overturned S.C. which said only disbursements, not legal fees)
3) On September 1, 1990, 3 (maybe now only 2) new methods of assessing the fees component of costs
   came into effect. In what will usually be an ascending order of amount, they are referred to as:
   a) Ordinary costs (about 50%):
       i) R.57(1): where costs are payable to a party under these rules they shall be assessed as party
            and party costs under Appendix B, unless the court orders that they be assessed as special costs
       ii) R.57(2): on an assessment of party and party costs, the register shall allow those fees under
            Appendix B that were proper and reasonably necessary to conduct the proceeding
       iii) Appendix B s.2(1): court is empowered to fix the scale of costs at levels ranging from a low
            of “1” to a high of “5” to reflect the difficulty of the litigation.



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        (1) Appendix B s.2(4): if no scale assigned by the court then costs shall be assessed under
            scale “3” unless a party applies for and obtains a court order that costs be assessed under
            another scale.
        (2) Appendix B s.2(2): in fixing the scale of costs the court shall have regard to the following
            principles (and value for each unit set in s.3(1)):
            (a) Scale 1 is for matters of little difficulty ($40 / unit)
            (b) Scale 2 is for matters of less than ordinary difficulty ($60 / unit)
            (c) Scale 3 is for matter of ordinary difficulty or importance ($80 / unit)
            (d) Scale 4 is for matters of more than ordinary difficulty or importance ($100 / unit)
            (e) Scale 5 is for matters of unusual difficulty or importance ($120 / unit)
        (3) Appendix B s.2(3): in fixing the appropriate scale under which costs will be assessed, the
            court may take into account the following:
            (a) whether a difficult issue of law, fact or construction is involved;
            (b) whether an issue is of importance to a class or body of persons, or is of general interest;
            (c) whether the result of the proceeding effectively determines the rights and obligations as
                 between the parties beyond the relief that was actually granted or denied.
   iv) Appendix B, Tariff (and s.3(2)): lists minimum and maximum (or set number of) units by
        activity
   v) Bouck J., in Bradshaw Construction Ltd. v. Bank of Nova Scotia (1991), 54 B.C.L.R. (2d)
        309 (S.C.), aff‟d (1992), 73 B.C.L.R. (2d) 212 (C.A.) made the following comments in regard
        to “ordinary costs” awards:
        (1) Importance and difficulty are the regulatory tests for deciding the scale of Ordinary Costs
            in Scale 1 to 5.... “Importance” means that the litigation must be important to the public at
            large or at least to other litigation of a similar nature.
        (2) “Difficulty” is another matter. There is no doubt the action was difficult in the sense it was
            hard to accomplish the ultimate result. The Bank fought the action with tenacity and vigor.
            Not much was conceded. There was extensive discoveries and two separate trials
            amounting to about 15 days. To get the judgment it did, the plaintiff had to appeal the
            liability finding to the Court of Appeal. It also defended an appeal on an interlocutory
            issue relating to discovery questions. Nothing was paid into court and the defendant
            strenuously argued the plaintiff suffered no damages.... Because of the wording of
            Appendix B, Section 2(2)(a) to (c), it is only necessary for the plaintiff to prove either
            “importance” or “difficulty”. It is not necessary to prove both.
        (3) To get an assessment out of the category of “ordinary” difficulty under Scale 3, into Scale
            4 or Scale 5, it is necessary to show a higher degree of difficulty.... The question is
            whether the collection and proof of the difficult facts were uncommon, remarkable or
            exceptional events?
b) Increased Costs (gone?):
   i) Appendix B s.7(1): where the court determines that for any reason there would be an unjust
        result if party and party costs were assessed under Scales 1 to 5, the court may, at any time
        before the assessment has been complete, order that costs be assessed as increased costs under
        s.7(2).
   ii) Appendix B s.7(2): where costs are ordered to be assessed as increased costs, the assessing
        officer shall fix the fees that would have been allowed if an order for special costs had been
        made under Rule 57(3), and shall then allow 1/2 of those fees, or a higher or lower proportion
        as the court may order, together with all proper expenses and disbursements.
   iii) Bouck J., in Bradshaw Construction Ltd. v. Bank of Nova Scotia (1991), 54 B.C.L.R. (2d)
        309 (S.C.), aff‟d (1992), 73 B.C.L.R. (2d) 212 (C.A.) made the following comments in regard
        to “increased costs” awards:

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           (1) Increased Costs can be ordered, despite the difficulty or importance of the litigation, if an
               award of Ordinary Costs under Scale 1 to Scale 5 would yield an unjust result. Thus, in
               some instances, a matter may be of more than ordinary difficulty or importance under
               Scale 4 but it may be unjust to assess the costs under Scale 4. Instead, they could be
               assessed as Increased Costs yielding a lower bill than if they were assessed under Scale
               4....
           (2) Similarly, a matter may not be capable of classification as one of unusual difficulty or
               importance under Ordinary Costs, Scale 5. Yet, it may still qualify for an award of
               Increased Costs yielding a higher bill than if it were taxed as Ordinary Costs under Scale 5.
               In the normal course of things, an award of Increased Costs will yield an assessment higher
               than Ordinary Costs.... By regulation, they are a minimum of 50% of a bill of costs
               assessed as Special Costs.
   c) Special Costs (about 80-90%):
       i) R.57(3): where the court order that costs be assessed as special costs, the registrar shall allow
           those fees that the registrar considers were proper or reasonably necessary to conduct the
           proceeding to which the fees relate. The tariff is not used, but in exercising that discretion, the
           registrar shall consider all of the circumstances, including:
           (1) the complexity of the proceeding and the difficulty or the novelty of the issues involved
           (2) the skill, specialized knowledge and responsibility required of the solicitor;
           (3) the amount involved in the proceeding;
           (4) the time reasonably expended in conducting the proceeding;
           (5) the conduct of any party that tended to shorten, or to unnecessarily lengthen, the duration
               of the proceeding;
           (6) the importance of the proceeding to the party whose bill is being assessed, and the result
               obtained;
           (7) the benefit to the party whose bill is being assessed of the services rendered by the
               solicitor.
       ii) Bouck J., in Bradshaw Construction Ltd. v. Bank of Nova Scotia (1991), 54 B.C.L.R. (2d)
           309 (S.C.), aff‟d (1992), 73 B.C.L.R. (2d) 212 (C.A.) made the following comments in regard
           to “special costs” awards:
           (1) As I understand the notion of Special Costs under Rule 57(3), they are meant to provide a
               much higher indemnity than Ordinary Costs where the circumstances warrant. They are
               assessed under paragraphs (a) to (g) of Rule 57 with a view to the relationship between the
               successful party and his or her own solicitor. But they are not necessarily the fees that the
               successful solicitor would recover from his or her client.
           (2) Special Costs are mostly reserved for those situations where the unsuccessful party has
               been guilty of gross misconduct or the like. They are assessed on an objective basis: what
               would a reasonably competent solicitor charge for the service rendered? They will usually
               result in about an 80% to 90% indemnity for fees assessed by the successful solicitor
               against the successful party under the Legal Profession Act.
4) Bouck J., in Bradshaw Construction Ltd. v. Bank of Nova Scotia (1991), 54 B.C.L.R. (2d) 309
   (S.C.), aff‟d (1992), 73 B.C.L.R. (2d) 212 (C.A.) reviewed the recommendations of the Justice
   Reform Committee, 1988 in regard to choosing between the three methods. This Committee adopted
   the idea that the indemnity for the fees payable by the successful party should be about 50%. In
   response to this, Bouck J. stated:
   a) While indemnity for 50% of the actual fees was perhaps the objective, I believe a somewhat
       different result is arrived at in the 1990 Rules. On an assessment of a bill taxed as Ordinary Costs,
       any indemnity comparison is gauged on an objective basis against the reasonable fees a reasonably
       competent lawyer would charge his or her client for the work performed as described in Rule

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      57(3) – Special Costs. It should not be compared to what the lawyer for the successful party might
      receive by way of actual fees on an assessment under the Legal Profession Act.
   b) Ultimately, Bouck J. held that an order of Ordinary Costs under Scale 3 would yield only a 28%
      indemnity in comparison to Special Costs and this would be an unjust result. He therefore ordered
      that costs be assessed as Increased Costs with an allowance of 60% of its Special Costs together
      with all proper expenses and disbursements.
R.57: registrar assessment after court has ordered costs, with possible review by court
1) R.57(29): after a court has ordered costs, the party awarded the costs shall file a bill of costs, obtain
   an appointment from the registrar, and deliver, at least 5 days before the assessment, a copy of the
   appointment to the party against whom costs are to be assessed.
2) R.57(32): on the conclusion of an assessment, the registrar shall certify the amount of costs awarded
   (has huge discretion), and the party assessing costs shall file the certificate.
3) R.57(33) provides that a party who is dissatisfied with a decision of the registrar on an assessment
   may, within 14 days after the registrar has certified the costs, apply to the court for a review of the
   assessment, and the court may make an order as it think just (often a Master will do this)
4) R.57(32): parties may agree to the amount of costs.
5) Appendix B, s.10: offers to settle the issue of costs can be made (which operates in a similar way to
   offers to settle under Rule 37.)
6) Carolyn Bouck (Victoria District Registrar) practical tips when before registrar for costs assessment:
   a) Have clear knowledge of what happened on the file e.g. disclosure of documents (bring list),
       pleadings, volume of correspondence (bring it)
   b) Explain how much time it should have taken (don‟t just use tariff maximums)
   c) See Continuing Legal Education text: “Practice before the Registrar”.
   d) In chronological order, add up the tariffs, then add in disbursements (need affidavits/invoices to
       prove them, such as for experts & witness travel expenses)
   e) Generally takes ½ to an hour, but can be days
   f) Lawyer who does the work will testify, and may be cross-examined
   g) On bill review, will generally not allow time for talking to other lawyer unless of benefit to client
   h) Bring a certificate with you it want to execute immediately
   i) Nothing gets recorded i.e. no clerks, recording device, but can ask registrar to provide summary
LPA fees: not unreasonable, quantum meruit, hourly, fixed fee, or contingency (limitations)
1) The Law Society of British Columbia‟s Professional Conduct Handbook advises that “No member
   shall charge unreasonable fees” and that members should try to avoid controversy with the client over
   fees and should be ready to explain the basis for charges, especially if the client is unsophisticated or
   uninformed about the proper basis and measurements for fees.
2) There are basically four methods of billing arrangements by lawyers:
   a) Quantum Meruit, meaning “as much as one deserves”. The fee is a reasonable amount for the
       work done and is based on skill, difficulty, time spent etc. This is the kind of assessment that
       applies when the Registrar reviews a lawyer‟s bill for fees under s.71 of the Legal Profession Act,
       S.B.C. 1998, c.9 (see below).
   b) Hourly Rates – this involves keeping meticulous track of time spent on a case and charging the
       client on an hourly basis. If the amount of time spent on a case is multiplied automatically by the
       hourly rate, without regard to any other factors, the result will often be unfair. The Report of the
       Justice Reform Committee, 1988 stated that, “Responsible lawyers who charge on the basis of an
       hourly rate do adjust their hours to take into account time that was spent unproductively and also
       their client‟s means and other relevant factors”. Hourly rates often reflect seniority of counsel.



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c) Fixed Fee Contract, meaning charging a fixed fee for certain work irrespective of the time actually
   spent on the work. This is more common with certain kinds of solicitor work such as real estate
   conveyances, some wills and estates matters, and some simple criminal matters.
d) Contingency Fees. The nature of such an agreement is usually that the lawyer agrees to act on the
   basis that if the client is successful the lawyer will take as a fee a certain percentage of the
   proceeds of the litigation, and in the event that the client is unsuccessful, the lawyer will make no
   charge for the services rendered.
   i) This is perhaps the most controversial form of charging fees. The major arguments against
        contingent fees are that such fees (see: Mackinnon, F.B., “Contingent Fees for Legal
        Services” (1964) in Watson, Canadian Civil Procedure at 255.)
        (1) Introduce a speculative attitude toward law practice which is inconsistent with the
            detachment essential to a profession;
        (2) Place an emphasis on winning which tends to reduce the lawyer‟s self-restraint in
            negotiation and trial advocacy;
        (3) Provide the prospect of financial rewards to the lawyer which may be so large as to
            encourage competitive solicitation of potential clients;
        (4) Provide the lawyer with an interest in the lawsuit that might come between her and her
            client, not only in relation to the amount of the fee but also in relation to such questions as
            whether to accept an offer of settlement;
        (5) Tend to motivate lawyers to stir up lawsuits, thus adding to the burdens of overcrowded
            courts and contributing to an undesirable litigious attitude in the community.
   ii) Arguments in support of contingent fees include:
        (1) They enlist the best efforts of the lawyer on behalf of her client;
        (2) They provide capable legal services to those unable to afford fees;
        (3) The lawyer usually does not receive an unjustifiable fee.
   iii) In the Report of the Justice Reform Committee, 1988, it is noted:
        (1) ICBC reports that approximately 66% of claims against it are worth less than $25,000.
            Most lawyers agree that at that level their fees on a contingency contract are less than they
            would be if they had billed on an hourly rate. Another 20% of writs issued involve cases
            between $25,000 and $100,000. At that level of award, the lawyer‟s contingency fee is
            probably slightly higher than the hourly rate would be only if the case does not have to go
            to trial. It is only in the remaining 14% of cases, involving more than $100,000 where
            contingency fees can be considerably higher than an hourly rate bill would be. The
            justification for the premium is that the lawyer takes the risk that he could be paid nothing,
            or very little, if the case is lost or if the award is small.
   iv) In British Columbia, contingency fees are allowed by virtue of s.66(1) of the Legal Profession
        Act, S.B.C. 1998, c.9. They are restricted both by the provisions of the Act and by rules made
        by the Law Society under the Act. More specifically:
        (1) The benchers of the Law Society have ruled that all contingent fee agreements must be in
            writing and must be fair and reasonable.
        (2) The benchers have also imposed maximum percentages for certain kinds of contingency
            fees. In the case of personal injury or wrongful death claims arising out of a motor vehicle
            accident a contingent fee cannot exceed 33 1/3%, and in all other personal injury claims
            such a fee cannot exceed 40% (see Law Society Rules, 8-4). In these instances, a lawyer
            who wishes to set a contingency fee at a higher rate may only do so with the consent of
            his/her client and with the specific approval of the court granted under ss.66(4) and (6) of
            the Legal Profession Act. Without such approval, a contingency fee agreement that
            exceeds the limits set by the benchers is void.


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           (3) In certain cases, the legislature has decided that contingency fees are rarely or never
                appropriate. Thus, s.67(3) of the Legal Profession Act provides that contingency fees for
                services relating to child custody or access are void. And, a contingency fee in a
                matrimonial dispute will similarly be void unless it has been specifically authorized by a
                Supreme Court Judge under s.67(4).
           (4) To further protect the public, s.68(2) of the Legal Profession Act provides that a client who
                has entered into a contingency fee agreement (or any other contract for the payment of
                fees) may apply to the registrar to have the agreement reviewed. On such a review, the
                registrar is charged to determine if the contract is “fair and reasonable” and if not, may
                modify or cancel the contract. “Fair and reasonable” means not only from the perspective
                at the time that they are entered into, but also must be reasonable under the circumstances
                existing at the time the lawyer‟s bill is actually prepared (i.e. the contingency fee must also
                be fair and reasonable when considered after the contingency has occurred and the lawyer
                claims his/her fee on the % agreed upon).
       v) In the case of Usipuik v. Jensen, Mitchell & Company (1986), 3 B.C.L.R (2d) 283 (S.C.) the
           court reviewed a contingency agreement which was entered into before the lawyer determined
           whether liability was in issue. The court held that this contract was not fair because it was
           founded on the lawyer‟s erroneous assessment of the complexity of the matter, the difficulty
           there would be in arriving at a proper settlement and the skill and labour required. Nor was the
           fee reasonable for the amount of skill and knowledge that had to be brought to this case.
       vi) In contrast, the case of Sandbeck v. Glasner and Schwartz (1989), B.C.L.R. (2d) 69
           (B.C.C.A.) involved a contingency fee agreement in a personal injury case in which I.C.B.C.
           initially took the position that it was going to refuse coverage. I.C.B.C. later agreed to settle
           for $1 million to cover all claims. The solicitors retained for the plaintiff charged $230,000 for
           about 300 hours work. The court held this to be fair and reasonable because the plaintiff had
           independent advice and was offered a choice of fee arrangements. The fee was not
           inordinately high because of the uncertainties in the case and the substantial risk of non-
           payment and the fact that the solicitors had achieved a very favorable result.
LPA fees: review if client disputes lawyer's bill or if lawyer seeking payment, & possible appeal
1) See above for disputes concerning contingency fee agreements.
2) If a client disputes a lawyer‟s bill for fees, charges or disbursements, he or she may apply under s.70
   of the Legal Profession Act to have the bill reviewed by a District Registrar of the Supreme Court.
   The review takes place at the courthouse and is usually informal. The procedure is essentially the
   same as that for the assessment of a bill of costs.
   a) On such a review, the criteria and considerations set out in s.71 of the Legal Profession Act are
        applied to determine whether the lawyer‟s bill should stand, or whether it should be reduced. The
        general duty of the Registrar is to allow the lawyer to recoup such fees, expenses, and
        disbursements for services rendered as were “reasonably necessary and proper to conduct the
        proceeding or business to which they relate”. In making this determination, the Registrar is
        directed to consider all the circumstances, including 8 factors listed in Legal Profession Act,
        s.71(4). These are:
        i) The complexity, difficulty or novelty of the issues involved,
        ii) The skill, specialized knowledge, and responsibility required of the member,
        iii) The member's character and standing in the profession,
        iv) The amount involved,
        v) The time reasonably spent,
        vi) If there has been an agreement between the lawyer and his or her client that sets a fee rate that
             is based on an amount per unit of time spent by the lawyer, whether the rate was reasonable,


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       vii) The importance of the matter to the client whose bill is being reviewed, and
       viii) The result obtained.
   b) These factors are almost identical to those identified in Yule v. City of Saskatoon, and are those
       typically applicable in a quantum meruit assessment. They are also very similar to the factors
       referred to in making an assessment for a special costs award under Rule 57(3).
   c) The discretion of the Registrar to determine what the appropriate charges should be for the
       services rendered is not limited by the terms of any agreement between the solicitor and the client.
   d) Legal Profession Act s.72(1): a member shall pay the costs of the review if 1/6 or more of the
       total amount of the bill is subtracted from it. However, if less than 1/6 of the total amount of the
       bill is subtracted from it, then the client shall pay the costs of the review.
   e) Legal Profession Act s.78: on the conclusion of a review, the Registrar may give a certificate for
       the amount the Registrar has allowed for fees, charges and disbursements.
   f) Legal Profession Act s.75(1) states that a party to the review may, within 14 days from the date of
       the certificate, appeal to the Supreme Court for a further review.
3) Legal Profession Act, s.76: this same assessment mechanism can be invoked by a lawyer as an
   alternative to bringing an action against a client for failure to pay an account. In such a case the
   lawyer must have delivered the bill to the client at least 30 days before giving the client notice of an
   appointment to have the bill reviewed. Once the review has been completed and the Registrar has
   rendered a certificate, the lawyer may file it in the Supreme Court registry. It is thereupon deemed to
   be a judgment of the Supreme Court and may be enforced as such.
4) A lawyer should try to give the client an early and fair estimate of fees and disbursements, pointing
   out any uncertainties involved, so that the client may be able to make an informed decision. It is
   important, however, for the lawyer to stress that estimates are just that, and that actual charges may be
   higher (get client to sign)
   a) In Price v. Roberts & Muir, 25 C.P.C. (2d) 166 (B.C.C.A.), an estimate of the full cost of the
       action was given and was expressed as not being a guarantee. The court held that the estimate was
       not a guarantee but that it nevertheless had contractual effect and could be relied on as an
       approximate limit.

                                                   Ethics
Law Society, Legal Profession Act, Benchers, disciplinary and credentials process
1) Lawyers in BC are self-governing by Law Society of B.C.:
   a) In conjunction with Continuing Legal Education (CLE), Law Society offers courses to update &
       upgrade knowledge of members
   b) If lawyers transgress rules in PCH, can be reported to the Law Society
   c) Law Society Website: www.lawsociety.bc.ca
2) Established by Legal Profession Act (LPA):
   a) S.3: Object & duty is to uphold public interest & admininstration of justice by:
       i) Preserving & protecting rights of all persons
       ii) Maintaining integrity of all members
       iii) Establishing education and admission criteria for would-be members
       iv) Primary objective is protection of the public: if Law Society fails in this mandate, it will be out
            of business as a self-governing body
3) Benchers:
   a) There are 31 Benchers in B.C., all volunteer except expenses (only VPs and president paid), 25
       elected by the counties, 2-year terms, can be elected to maximum of 4 terms, 6 lay-benchers
       appointed by government without input by Law Society
   b) LPA S.1: definition: person appointed or elected to serve as a governing member of the Society


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   c) LPA S.4: Empowers Benchers to govern affairs of society, and to take any actions necessary to
      promote the welfare etc. of the society
   d) LPA S.93: Authorizes Benchers to make Rules, which are known as the Law Society Rules and
      Rules operationalize Parts 1 – 10 of the Legal Profession Act
   e) Functions of Benchers:
      i) Set criteria for admission into the profession: Credentials Committee is responsible for
          administering the admissions process. Credential Committee process:
          (1) Application Form: includes disclosure requirement of past activities, including criminal
              convictions
          (2) Credentials hearing: where would-be member has onus to prove that they are of good
              character
          (3) Also hears re-applications from people who have resigned due to investigations by
              discipline committee
      ii) Define & enforce PCH and other Law Society rules: Discipline Committee is responsible for
          administering the complaints process of which about half are determined to be meritous (about
          half of committee are benchers, rest are lay-benchers and non-Benchers appointed to
          committee). Discipline Committee Process:
          (1) Review to ascertain it‟s in committee‟s jurisdiction
          (2) Staff send letter to lawyer outlining complaint and requesting response
          (3) Depending on lawyer‟s response, staff forward it on to discipline committee for review and
              further action
          (4) If committee agrees it‟s legitimate, have a range of sanctions and obligations:
              (a) Letter from the Chair: essentially a slap on the wrist, an acknowledgement that you
                  messed up and must be more careful in the future
              (b) Conduct Review: process where two benchers sit in room with member, review
                  problems, get member to admit misconduct and make them see the error of their ways
              (c) Citation: for more serious misconduct, or where Conduct Review is not satisfactory –
                  usually for when people steal things etc, results in a hearing before a 3-bencher panel,
                  run like a trial with the Law Society as prosecution, high rate of “conviction”, potential
                  outcomes: reprimand, find, period of suspension, or disbarment, usually only bring
                  citations with a high probability of success, disbarments not common, people often
                  resign before being disbarred (most disbarment and resignations due to
                  misappropriation of funds or obstruction of justice)
Professional Conduct Handbook: duty to clients (competence, confidentiality), court & lawyers
1) Part of the governing system, authored by Benchers, flows from both the legislation and the Rules
2) PCH emphasizes key duties, such as duty to the court as an officer, duty to profession, duty to clients
3) If unsure about what to do:
   a) Check PCH
   b) Check with a Bencher: good idea because it helps to cover you if problem arises later
4) What to do if a problem with a member:
   a) Report them (but time-consuming)
   b) Give time-limits, then report them if deadlines exceeded
   c) Draw member‟s attention to PCH without actually threatening to report them (this is what the Law
       Society itself does)
   d) PCH forbids threatening to report someone to the Law Society
5) Chapter 1: behaviour outside the practice of the law
6) Duty to clients:



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    a) Duty to be competent: lawyer undertakes to provide sufficient skill and knowledge, includes six
       components:
       i) Knowledge of substantive and procedural law in the areas practiced, how they related to
            clients‟ affairs, and ability to determine when the problems exceed the lawyer‟s ability
       ii) Legal skills, including reading, drafting, negotiation, advocacy, research, and problem-solving
       iii) Practice methods, including office management & file organization
       iv) Delivery of legal services, including client communications, interpersonal skills, & time
            management
       v) Professional responsibility & ethics
       vi) Intellectual, emotional, & physical capacity to carry out Nos. 1 – 5
    b) PCH Chapter 3: Sets out competency guidelines for lawyers
       i) Acquire & maintain adequate knowledge and legal skill in lawyer‟s area(s) of practice
            (1) In practice, impractical to maintain competency in all areas
            (2) Therefore, if lawyer outside area of competence, must either agree to consult a lawyer
                competent in that area, or refer client on to another lawyer
       ii) Quality of service: Must serve each client in a conscientious, efficient, and diligent manner,
            equal to that of a diligent lawyer in a similar situation
    c) PCH Chapters 8 & 1: Canons of Law
       i) Chapter 1 Rule 3(5): Must do everything one can to further client‟s cause of action
       ii) Chapter 8 Rule 1(A): Must not abuse system in trying to further client‟s cause of action
       iii) Rule 3: Cannot knowingly permit client to give false testimony or do something illegal
    d) PCH Chapter 5: Confidentiality:
       i) Shall not disclose client information and must not disclose even after retainer finished
       ii) However, may disclose under certain circumstances: Chapter 5 Rule 12: disclosure of
            confidential information to prevent a crime involving death or serious bodily harm to a person:
            Rule fraught with difficulties. Notice that it is discretionary and must involve potential harm
            to another person. Suicide is not included in this disclosure exception
       iii) Chapter 1 Rule 1: Duty to the estate not to divulge information and to represent fairly
    e) Liability to client:
       i) Breach of contractual duty – implied term of every retainer that you will exercise due care and
            diligence, skill and judgment in the delivery of legal service and advice
       ii) Negligence
       iii) Breach of fiduciary duty
       iv) Good illustration case on importance of duties to clients: Central Trust v. Rafuse, [1986] 2
            S.C.R. 180 (negligent lawyer can be exposed to liability concurrently in tort and contract)
7) PCH Chapter 1 Rule 2: Duty to the court:
    a) Conduct shall be characterized by candour and fairness (e.g. when in ex parte application must lay
       out all the information, for and against)
8) PCH Chapter 1 Rule 4: Duty to other lawyers:
    a) Treat with courtesy & respect, to avoid sharp practice, and to not take advantage of opposing
       counsel‟s slip
9) Chapters 6 & 7: Conflicts of Interest are the main area of interest to the Ethics Committee
10) Of course it can be tricky to balance all these competing duties e.g. duties to client v. duties to others

                                            Adversarial v. ADR
Adversarial v. ADR (v. inquisitorial), advantages/disadvantages, settlement in most cases
1) Inquisitorial system (where judge in charge of fact finding, like a Royal Commission).
2) Adversarial system is a procedural system and embodies a number of main concepts:


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     a) Party autonomy = parties (and not judges) have control over instigating, defining and disposing of
         their case
     b) Party prosecution = parties (and not judges) choose manner in which they will go forward with
         their case and how to present it (judges should be relatively passive adjudicator)
     c) Partisan representation = lawyers act for one side or the other, giving client “comforting strength
         of belonging to a coalition” (and Code of Professional Conduct requires lawyer to “fearlessly raise
         every issue, advance every argument, and ask every question however distasteful, which the
         lawyer thinks will help the client‟s case”, although lawyer has duties to the process as well)
3)   Adjudicative = method for settling disputes where decision maker applies law to the facts, in contrast
     to negotiation, mediation etc.
4)   Accusatorial = public proceeding in which accused‟s rights protected such as requiring proof beyond
     reasonable doubt
5)   The adversarial trial system has many problems – so always warn client and have an eye to settlement
     and ADR (alternative dispute resultion). Lawyer should think of themselves not as a litigator, but
     rather as a problem solver and use whichever is the best tool (instead of more usual legal education
     which encourages adversarial thinking in terms of opponents and competition)
6)   Lawyer should explain options, possible costs and strengths and weaknesses of the case to the client,
     but ultimately it is the client‟s decision as to what to do – it is their case.
7)   ADR can be viewed broadly as including litigation as one tool, and should perhaps be called
     appropriate dispute resolution, or BDR (better dispute resolution) or IDR (innovative dispute
     resolution).
8)   Most disputes are resolved and never reach lawyers. Even where a law suit is commenced, in the vast
     majority of cases (90-95%) a settlement will be reached before the matter ever proceeds to the final
     stage of adjudication by a judge (and hence misnomer in ADR of “alternative” since it‟s the norm)
     a) Note that settlement during litigation is more a truce than a true reconciliation (which ADR can
         help establish)
     b) Settlements not always fair due to imbalance in financial resources between parties (e.g. poorer
         party may need money now, may not be able to gather as much evidence, etc.)
9)   Advantages of adversarial system & trials:
     a) Truth finding – parties motivated by self-interest to find all facts beneficial to their side (hence
         truth more likely to come out with two opposing advocates competing), and notice and right to be
         heard with no surprises (one purpose of the Rules)
     b) Test adverse facts – opportunity to cross-examine other side to test their facts
     c) Protects individual rights – hence good for “test” cases
     d) Impartiality/ removes power differentials – have skilled counsel and impartial / relatively passive
         trier of fact gives appearance of impartiality (and avoids decision-maker bias, etc).
     e) Motivation – lawyers motivated to win for their client, and present best case for client who is self-
         interested
     f) Cathartic – courtroom duel substitutes for more direct hostility (and “justice” means more than
         just truth finding, but must feel satifying)
     g) Procedural fairness – one purpose of the Rules
     h) Public – open court, get to prove your case in front of the world
     i) Predictability and precedent setting – precedential value of cases makes law somewhat
         predictable, and precedent can serve as deterrent for others and formulate new law
     j) Reflects society hence acceptance – individualism (i.e. get to participate for own self-interest) &
         competition reflect basic ideas of liberal democratic capitalist society, and relatively passive role
         for judge reflects suspicion of state, hence with process mirroring society, decisions will be more
         legitimate/acceptable. Wrong decisions thus become acceptable, since it‟s not the state‟s fault but
         the losing party‟s fault for not presenting their case strongly enough

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    k) Decision binding, gives closure
10) Disadvantages of adversarial system & trials:
    a) May not uncover all facts / may conceal them – if parties are not equally motivated in outcome of
       the case or in bringing out all the facts (e.g. divorce case) then truth finding diminished –
       particular problem because encourages a party to not give evidence unfavourable to its case to the
       other party (though Rules, such as discovery, try to minimize this)
    b) Cross-examination can confuse – cross-examination can make reliable testimony look debatable,
       clear information look confused, and can humiliate witness (special problems with child witness)
    c) Expensive – costs limit access to courts (complex case can cost $50K-$100K) and costs to
       governments to run courts
    d) Other access to justice problems
    e) Time – trials take lots of time with much delay, which can be created tactically, which can
       increase expense and stress on litigants
    f) Complexity – process is complex and mystifying for lay person to understand (important for
       lawyer to explain to clients in plain language)
    g) Resource imbalances – resource imbalances between parties can deny fairness, such as lack of
       funds for investigation, experts, for good lawyers, etc. (though Rules try to reduce this). A party
       can misuse court system to create time delays and added costs in attempt to out-resource other
       side.
    h) Bias – in the laws and judges
    i) Emotional – emotional toil on clients
    j) Public – open court may re-victimize
    k) Divisive – often divisive, parties think of each other as enemies and the dispute as a battle that
       must be won, destroys respect, and conflict provoking resulting in relationship breakdown (e.g.
       between neighbors)
    l) Control – puts the problem into lawyers and judges hands
    m) Destructiveness – can damage the very thing being sought (e.g. in child custody battle)
    n) Encourages competitive mindset – preoccupation with gaining advantage can displace substantive
       communication, common sense, and problem solving orientation, and can even lead parties to
       fraud and deceit (though lawyers, interposed between litigant and the process, are meant to
       minimize this)
    o) Win-lose – can be poor at handling polycentric disputes that cannot easily be put into limited
       remedies (i.e. win-lose, limited compromise), though these are perhaps more a problem of
       adjudicative than adversarial system
    p) Dispute transformed – the dispute must be transformed, structured and narrowed into existing
       legal categories (perhaps missing what the dispute is really about), and limiting possible remedies
11) Advantages of ADR:
    a) Takes cases out of the court system
    b) Time & expense - can be quicker, cheaper
    a) Less divisive – if there are continuing relationships at stake (e.g. family, neighbour) can help
       preserve or even heal them (e.g. simply insisting on non-abusive and non-inflammatory language
       at a mediation can get the parties speaking again).
    b) Encourages voluntary solutions
    c) Mutual problem solving – encourages view of dispute as a mutual problem and need for
       collaborative approach to its solution
    d) Privacy, can keep confidential
    e) Community solidarity – relationships not broken down, and can include broader interests (not just
       plaintiffs and defendants and interveners)


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    f) Ethic of care – promotes willingness to truly apprehend the reality of the other party (as opposed
       to just understanding how to move/persuade/affect them)
    c) Empowerment / autonomy – ADR better empowers participants, who formulate the solution
       (rather than handing it off to lawyers and judges)
    d) Satisfaction – not the winner-take-all approach of courts, but can formulate a creative solution that
       is more mutually satisfactory / win-win.
    e) Public satisfaction – ADR can improve public satisfaction when power imbalances and
       „technicalities‟ not seen as driving decisions
12) Disadvantages of ADR:
    a) Settle for less – might end up with less than would have at trial
    b) Rights not upheld / no precedent – in ADR judges never get to pronounce on what is the law and
       what is fair, so doesn‟t state rights and set precedent for this case and for society (ADR can be
       seen as a regressive reaction to progressive legal rights victories, since it re-conceptualizes a
       person away from a carrier of rights to a subject with needs and problems)
    c) Imbalance – power or skill imbalance can lead to unfair outcome (e.g. bargaining strength)
    d) Pacification –can be seen as preserving the status quo with ADR being a coercive mechanism of
       pacification
    e) Social control – ADR casts a broader net and hence can further spread social control
ADR: negotiation, mediation, arbitration, hybrid (e.g. med-arb, case evaluation, conf. listening)
1) ADR gained popularity in 1970‟s, 80‟s due to dissatisfaction with litigation process
2) In any ADR process, will have to consider the real-world context, the identity, characteristics,
   economics, relative power and desires of the disputants, the broad social context, and the history of a
   dispute
3) ADR is inherently multidisciplinary, and will require skills & knowledge in sociology of disputing,
   psychology of human behaviour (e.g. anger arousal cycle), communication theories, history, social
   work, economics, etc. as well as skills in negotiation, legal, mediation, etc.
4) ADR can be thought of as an ideology in that it tells us what is natural, normal and good for resolving
   disputes
5) Skills required are good listener, rapport and trust-building skills, separate personalities from the
   problem, overcome assumptions, seek resolution of larger picture, commit necessary time to the
   process, commitment to mutually acceptable outcome, imaginative solutions
6) Negotiation / bargaining
   a) Parties themselves control process and solution
7) Mediation
   a) Parties voluntarily formulate solution themselves but with help of neutral third-party mediator
       (such as a retired judge), who has no power to impose solution i.e. effectively assisted negotiation
   b) Since parties formulated the solution, usually high satisfaction and likely to comply with terms of
       agreement
   c) Mediation is good for clients who are cooperative, conciliatory, desire to resolve and avoid costs,
       motivated to work together, etc.
   d) Can use mediation at any time, from early on to middle of trial, so long as parties are willing
   e) There is a roster of accredited mediators (see A.G. website) – don‟t have to be a lawyer to be a
       mediator (depending on type of dispute)
   f) Consider the style of an individual mediator when selecting one to refer client to e.g. skilled
       communicator, knowledge of legal issues, cultural/sexual aspects, etc
   g) Once referred to mediator, much preparation with client required, explain process to them (may be
       a pre-mediation interview with or without counsel), set ground rules, outline of story from each
       party, what is in dispute to clarify issues, identify issues to move away from different positions


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        and towards common ground, brainstorm about possibly acceptable solutions, and finally
        formalize agreement (each party should perhaps be encouraged to seek independent legal advice)
    h) E.g. Commission on Resources and Environment (CORE) in BC
    i) E.g. Notice to Mediate Regulation (see below)
8) Arbitration
    a) More formal than mediation but still less than judicial, arbitrator can make binding decision (and
        so is an “adjudicator”, like a private court) – still quasi-consensual (arbitrator will make binding
        decision if parties can‟t agree)
    b) Judgement/award is enforceable by court if filed
    c) Contracts often in clued Arbitration requirement in case of a dispute
    d) See the B.C. Commercial Arbitration Act which covers all arbitration in B.C. except international
        and that covered by other statutes
    e) Select arbitrator from BC Arbitration and Mediation Institute
    f) When attend arbitration, determine agreed facts, clarify issues, may agree to draft pleadings
        (though not required), may agree to discovery (though not required)
    g) Can cost as much as $15K
    h) Court has discretion to set aside arbitration award if improperly procured, though need consent of
        parties or leave of court
9) Med-Arb
    a) Will often try mediation first, and if unsuccessful, go to arbitration
    b) In med-arb, a mediator, unable to get agreement, then acts as an arbitrator
10) Private judging
    a) Neutral third party renders a binding decision
11) Mini-trial
    a) Parties combine negotiation and mediation in a non-binding adjudicative process
12) Advisory opinion, early or neutral case evaluation
    a) Parties get a non-binding opinion from a neutral third party
13) Confidential listening
    a) Neutral third party reviews confidential settlement positions of all parties to determine if there is
        an overlap range (and parties may agree beforehand to accept the midpoint of such range)
14) Ombudsman
    a) Independent officer investigates complaints (of government or other large institution)
15) Prevention
    a) Avoid disputes, build consensus (e.g. write ADR clauses into contracts)
16) Peaceful protest / civil disobedience
Rules to encourage settlement, Notice to Mediate regulation (i.e. compel mediation in an action)
1) Number of rules (see above) that encourage settlement, such as R.37 offers to settle, R.35 pre-trial
   conference & mini-trial & settlement conference – see also Judicial Alternate Dispute Resolution –
   Rule 35 – page SC-605.
2) In addition, the BC cabinet recently approved a Notice to Mediate (General Regulation), B.C. Reg.
   4/2001 under s.68 of the Law and Equity Act.
   a) The regulation came into force on February 15, 2001.
   b) Under this process, 60 days after pleadings closed, 120 days before trial any party to an action in
       the Supreme Court may compel all other parties to the action to mediate the matters in dispute
       (non-voluntary mediation can still be successful, though some concerns over power-imbalance in
       such cases)
   c) This process does not apply to originating applications.
   d) In addition, the following actions are excluded:


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       i) Family law proceedings
       ii) Actions brought under the Judicial Review Procedure Act
       iii) Claims for compensation for physical or sexual abuse
       iv) Actions to which the other Notice to Mediate Regulations apply.
   e) The Notice can be used at any time between 60 days after the filing of the first statement of
       defence and 120 days before the date of trial, unless the court orders that it can be used before or
       after this time frame.
   f) Choice of mediator can be critical depending on the problem e.g. someone to just to knock sense
       into the parties, or someone such as ex-judge to give idea of how trial might go
3) Older regulation was only for motor vehicle accidents (Reg 127/98 at page SC-647, Notice to Mediate
   Regulation s.2: in motor vehicle actions, any party can force the other parties to attend mediation,
   after pleadings and prior to trial)
4) Counsel accompany client at mediation, and you can also get onto the A.G. roster to be a mediator
   yourself (CLE provides training)




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