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Civil Procedure Fall – 13’ James Wegener

Table of ContentsIntroduction.......................................................................................................................................12

Rationale...............................................................................................................................................12

Sources of Procedural Rules..................................................................................................................12

Initiating and Defining a Suit..............................................................................................................13

Rule 1-2(2): Application..............................................................................................................13

Rule 1-3(1): Object of Rules.........................................................................................................13

Rule 1-3(2): Proportionality........................................................................................................13

Rule 1-2(3): Waiver by Agreement..............................................................................................13

Rule 22-7: Effect on Non-Compliance..........................................................................................14

Discretion and Jurisdiction.....................................................................................................................15

Brophy v Hutchinson 2003 BCCA 21............................................................................................15

Rule 7-6(1)-(3): Physical or Mental Condition..............................................................................16

In Class Exercise.............................................................................................................................16

Bishop v. Minichiello 2010 BCSC 1502.........................................................................................16

Rule 13-1(19): Furthering Objectives or Rule...............................................................................17

Rule 20-2(3): Role of Litigation Guardian.....................................................................................17

Inherent Jurisdiction..............................................................................................................................17

R & J Siever Holdings Ltd. v Moldenhauer 2008 BCCA 59.............................................................17

Reconciling Bishop with Brophy.....................................................................................................17

Parties...............................................................................................................................................18

Standing and Capacity of Claimants and Petitioners.............................................................................18

Criteria for Public Interest Standing...............................................................................................18

Rule 20-36: Standing to Represent Interests................................................................................18

Standing of Defendants/Respondents...................................................................................................19

Rule 6-2(7): Adding, removing or substituting parties by order....................................................19

Rule 3-4: Counterclaims..............................................................................................................19

Intervenors............................................................................................................................................20

Two Types of Interventions...........................................................................................................20

Direct Interest Intervenor..............................................................................................................20

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Public Interest Interventions in BC Supreme Court.......................................................................20

Defining the “Matter”............................................................................................................................20

Multiple Parties.....................................................................................................................................21

Rule 3-4: Counterclaims..............................................................................................................21

Rule 3-5: Third Party Claims........................................................................................................22

Third Parties vs. Counterclaims......................................................................................................22

Rule 3-7(11): Set-Offs..................................................................................................................23

Counterclaims vs. Setoffs...............................................................................................................23

Rule 22-5: Multiple Claims and Parties........................................................................................23

Actions vs. Petitions...........................................................................................................................24

What is an Action?.................................................................................................................................24

What is a Proceeding by Petition?.........................................................................................................24

Platforms.......................................................................................................................................24

Proceedings for a Declaration........................................................................................................24

Beware of Form over Substance....................................................................................................24

What Can Be Brought by a Petition?..............................................................................................25

Rule 2-1(2): Main Categories of Claims Brought by Petition.........................................................25

Pleadings...........................................................................................................................................26

Purpose of Pleadings.............................................................................................................................26

Pleadings: The Way We Were........................................................................................................26

The Way We Are Now....................................................................................................................26

Definitions.............................................................................................................................................26

Notice of Civil Claim...............................................................................................................................27

Rule 3-1: Notice of Civil Claim (NOCC).........................................................................................27

What does a NoCC Contain?..........................................................................................................27

Benefits of Good Pleadings............................................................................................................27

Rule 3-7: Content of Pleadings....................................................................................................28

Pleading the “Material Facts”........................................................................................................28

The Usual Layout of Facts..............................................................................................................28

Particulars..............................................................................................................................................29

Pleading Facts vs. Pleading Evidence.............................................................................................29

Pleading Relief Sought...................................................................................................................29

2


Summary of Relief Sought.............................................................................................................29

Outline of the Legal Basis...............................................................................................................30

Response to NOCC.................................................................................................................................30

Rule 3-3(3): Timeline for Response to NOCC................................................................................30

Rule 3-3(2): Contents of Response..............................................................................................30

What is a “Tender of Amends”?....................................................................................................31

Defendants’ Facts..........................................................................................................................31

Response to Relief Sought.............................................................................................................31

Legal Basis of Response.................................................................................................................31

General Tips on Pleadings......................................................................................................................31

Pleading a Counterclaim or Third Party Claim.......................................................................................32

Amendments.........................................................................................................................................32

Rule 6-1: Amendments...............................................................................................................32

Process for Amendments...............................................................................................................32

Petitions............................................................................................................................................33

Rule 16-1: Petition Proceedings..................................................................................................33

Form 66 Petition............................................................................................................................33

Rule 16-1(4): Response to Petition..............................................................................................33

Rule 16-1(5): Contents of Response............................................................................................33

Rule 16-1(8) and (10): Setting Petition for Hearing......................................................................34

Petition Record......................................................................................................................................34

Rule 16-1(11): Contents of Record...............................................................................................34

Rule 6-2: Adding or Substituting Parties......................................................................................35

Striking Pleadings or Petitions............................................................................................................35

Rule 9-5: Applications to Strike...................................................................................................35

Rule 9-5(1)(a): Applications.........................................................................................................35

Breadth of Rule 9-5.....................................................................................................................35

Discovery...........................................................................................................................................36

Purposes of Discovery...........................................................................................................................36

Discovery of Documents........................................................................................................................37

Rule 7-1: List of Documents........................................................................................................37

What is a “Document”?.................................................................................................................37

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What is “Possession or Control”?..................................................................................................38

The Scope of Discovery..................................................................................................................38

Rule 7-1(18): Documents in Third-Party Control..........................................................................38

Rule 7-1(10) and (11): Demanding Documents............................................................................38

Privilege.................................................................................................................................................39

Privileged Documents....................................................................................................................39

Rule 7-1: Privileged Documents..................................................................................................39

Main Types of Privilege..................................................................................................................39

Solicitor-Client Privilege.................................................................................................................39

Solicitor’s Brief Privilege................................................................................................................39

Without Prejudice Communications..............................................................................................40

Confidentiality.......................................................................................................................................40

Confidentiality of Discovered Documents.....................................................................................40

Documents Sent in Error................................................................................................................40

Examination for Discovery.....................................................................................................................41

Purpose of Examination for Discovery...........................................................................................41

Rule 7-2: Examinations for Discovery..........................................................................................41

Examination of Representatives....................................................................................................41

Rule7-2(5): Examination of Corporations....................................................................................42

Re-examination..............................................................................................................................42

Physical Examinations....................................................................................................................42

Rule 7-2: Setting up an Examination for Discovery.......................................................................43

Rule 7-2(25): Objections to Questioning......................................................................................43

Types of Objections.......................................................................................................................43

Going “Off the Record”..................................................................................................................43

Interrogatories.......................................................................................................................................44

Rule 7-3(1): Serving Interrogatories............................................................................................44

Rule 7-3(4): Responding to Interrogatories..................................................................................44

Scope of Interrogatories................................................................................................................44

Notice to Admit.............................................................................................................................44

Interlocutory Matters.........................................................................................................................45

Chambers Practice.................................................................................................................................45

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Types of Chambers Applications....................................................................................................45

Jurisdiction of a Master.................................................................................................................45

Practice Directive PD-42..............................................................................................................46

Matters Included in Master’s Jurisdiction (non-exhaustive)..........................................................46

Rule 23-6(8): Appeals of Chambers Orders..................................................................................46

Evidence by Affidavit.............................................................................................................................47

What is an Affidavit?......................................................................................................................47

Why Are Affidavits Used?..............................................................................................................47

Rule 22-2: Affidavits....................................................................................................................47

Affidavit Practice............................................................................................................................48

Use of Affidavits.............................................................................................................................48

Some affidavit practice tips from CEJ and Master McDiarmid.......................................................48

Interlocutory Applications.....................................................................................................................49

Procedural Rules for Chambers.....................................................................................................49

How does it work?.........................................................................................................................49

The Notice of Application..............................................................................................................49

Rule 8-1(9) and (10): Response to Notice of Application..............................................................49

Reply by Applicant.........................................................................................................................50

Rule 8-1(15): Application Record.................................................................................................50

Rule 8-1(16): Written Argument..................................................................................................50

Chambers Proceedings..........................................................................................................................51

The Hearing...................................................................................................................................51

Rule 22-1(4): Evidence................................................................................................................51

Desk Orders...................................................................................................................................51

Short Leave Applications...............................................................................................................51

Interim Injunctions................................................................................................................................52

General Types of Injunctions.........................................................................................................52

The Test for Interlocutory Injunctions...........................................................................................52

Mareva Injunctions........................................................................................................................52

Anton Piller Order..........................................................................................................................52

Process for Anton Piller Order.......................................................................................................52

Disposition Before Trial......................................................................................................................53

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Default Judgment..................................................................................................................................53

Rule 3-8: Default Judgement.......................................................................................................53

Types of Default Judgments...........................................................................................................53

Rule 3-8(3) Final Money Judgment..............................................................................................54

Rule 3-8(5): Judgment for Damages to be Assessed.....................................................................54

Rule 3-8(6): Claim for Detention of Goods...................................................................................54

Rule 22-7(2) and (5): Motions for Non-Compliance......................................................................54

Motions to Strike Pleadings...................................................................................................................55

Rule 9-5: Motion to Strike Pleadings...........................................................................................55

Standard for Striking Pleadings as Disclosing no Action or Defence:.............................................55

Some Softening of the Approach...................................................................................................56

Carten v. HMTQ 2008 BCSC 7......................................................................................................56

Rose v. UBC et al., 2008 BCSC 166...............................................................................................56

Summary Judgments.............................................................................................................................57

Rule 9-6(2): Summary Judgment Application by Plaintiff.............................................................57

Rule 9-6(4): Summary Judgment Application by Defendant.........................................................57

Summary Judgment vs. Summary Trial..........................................................................................57

Summary Trial........................................................................................................................................58

Rule 9-7(5): Evidence in Summary Trial.......................................................................................58

Evidentiary Disputes......................................................................................................................58

Rule 9-7(12): Judge May Order Cross-Examination......................................................................59

Assuming the Facts can be found:.................................................................................................59

Rule 9-7(11): Proceeding by way of Summary Trial is Opposed....................................................59

Rule 9-7(16) and (17): If Application Unsuccessful.......................................................................59

Settlements...........................................................................................................................................60

Rule 9-2(1): Settlement Conferences...........................................................................................60

Rule 9-1: Formal Offers to Settle.................................................................................................61

Preparation for Trial...........................................................................................................................62

Setting a Matter for Trial.......................................................................................................................62

Rule 12-1(2): Setting a Matter for Trial........................................................................................62

Rule 12-3: Trial Record................................................................................................................62

Rule 12-4: Trial Certificate...........................................................................................................62

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Judge vs. Jury Trial.................................................................................................................................63

Rule 12-6(2): When Not Allowed to Select Jury Trial....................................................................63

Rule 12-6(3): Selecting Trial by Jury............................................................................................63

Can More than One Party File Notice?..........................................................................................63

Rule 12-6(5): Considerations to Deny Jury Trial...........................................................................64

Partial Jury Trials............................................................................................................................64

Organizing the Case for Trial..................................................................................................................64

Focus on Evidentiary Requirements..............................................................................................64

Case Planning Conferences....................................................................................................................65

Rule 5-1(4)-(6): Application for Case Planning Conference...........................................................65

Who Has Jurisdiction?....................................................................................................................65

Rule 5-2: Who Must Attend CPC..................................................................................................65

Rule 5-3: Case Planning Orders...................................................................................................66

Case Planning vs. Case Management.............................................................................................66

Availability Assessed Case-by-Case................................................................................................66

Procedure......................................................................................................................................66

Where a Trial Judge is Assigned.....................................................................................................66

Criteria for Early Assignment / Case Management........................................................................67

Fast Track Litigation...............................................................................................................................67

Rule 15-1: Fast Track Litigation...................................................................................................67

Features of Fast Track....................................................................................................................67

Expert Witness Reports.........................................................................................................................68

Rule 11-2: Role and Duty of Expert Witnesses.............................................................................68

Rule 11-6(1): Contents of Expert Report......................................................................................68

Rule 11-6(3): Service Time Constraints........................................................................................69

Other Considerations.....................................................................................................................69

The Trial Management Conference.......................................................................................................69

Letters to the Court.....................................................................................................................69

Differentiating Conferences...................................................................................................................70

Trial Planning Conference..............................................................................................................70

Case Planning Conference.............................................................................................................70

Case Management Conference......................................................................................................70

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Civil Trial............................................................................................................................................71

A Brief History of the Trial Process........................................................................................................71

Purpose of the Trial.......................................................................................................................71

Early Trials by Jury.........................................................................................................................71

The Courts of Equity......................................................................................................................72

The Modern Civil Trial....................................................................................................................72

Jury........................................................................................................................................................73

Who may/must serve?...................................................................................................................73

Jury Selection.................................................................................................................................74

Jury Verdict....................................................................................................................................74

Opening Submissions.............................................................................................................................75

Rule 12-5(72): Order of Argument...............................................................................................75

Content of Opening Submissions...................................................................................................75

Evidence at Trial....................................................................................................................................76

Evidence at Trial: The Rules...........................................................................................................76

Evidence at Trial: Process..............................................................................................................76

Reading in Examinations for Discovery..........................................................................................76

Use of Transcripts to Impeach.......................................................................................................76

Deposition Evidence......................................................................................................................77

Pre-Trial Examination....................................................................................................................77

Interrogatories...............................................................................................................................77

Evidence from Previous Proceedings.............................................................................................77

Telephone or Video Evidence........................................................................................................78

“Real” Evidence.............................................................................................................................78

Documentary Evidence..................................................................................................................78

The Lay Witness.............................................................................................................................79

Subpoena to a Witness..................................................................................................................79

Failure of witness to attend, etc....................................................................................................79

Order of Witnesses........................................................................................................................80

Direct Examination........................................................................................................................80

Cross-Examination.........................................................................................................................80

Re-Examination..............................................................................................................................80

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“Re-cross-examination”.................................................................................................................81

Discussions with Witnesses During Breaks – Per McEachern CJBC................................................81

Experts...........................................................................................................................................81

Preparation to Cross-Examine Experts...........................................................................................81

Other Evidence..............................................................................................................................82

Objections......................................................................................................................................82

Berger’s Thoughts on Hearsay Objections.....................................................................................82

No Evidence and Insufficient Evidence Motions............................................................................83

The Tests........................................................................................................................................83

Rebuttal Evidence..........................................................................................................................83

Practice Points.......................................................................................................................................84

Closing Submissions.......................................................................................................................84

Rule 22-8: Contempt...................................................................................................................84

How it Works.................................................................................................................................84

Dealing With Judges......................................................................................................................85

Dress and Deportment..................................................................................................................85

Rule 16-1: Adjudication of Petitions............................................................................................85

Judgments, Costs, Interest.................................................................................................................86

Judgments, Reasons and Orders............................................................................................................86

Oral Judgments..............................................................................................................................86

Written Judgments........................................................................................................................86

The Order..............................................................................................................................................87

PD-26.........................................................................................................................................87

Drafting and Entering.....................................................................................................................87

Jones’s practice guidance:.............................................................................................................87

Settling Terms of an Order.............................................................................................................88

Reopening......................................................................................................................................88

Appeals..........................................................................................................................................88

Interest..................................................................................................................................................88

Prejudgment Interest.....................................................................................................................88

Postjudgment Interest...................................................................................................................88

Costs......................................................................................................................................................89

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Why Cost-Shifting?........................................................................................................................89

Some Common Costs Terms and Their Meaning...........................................................................90

Rule 14-1(15): Costs Generally....................................................................................................90

Rule 14-1(9): Who Gets Costs from Whom..................................................................................91

What if the Judgment is Silent on Costs?.......................................................................................91

Costs are Discretionary..................................................................................................................91

Some Main Exceptions to Cost Shifting..........................................................................................91

Costs for Self-Represented Litigants..............................................................................................92

Rule 14-1(10): Recovery is in Small Claims Jurisdiction................................................................92

Rule 15-1(15): Costs in Fast Track Litigation.................................................................................92

Ordinary Costs...............................................................................................................................92

Rule 14-1(5): Disbursements.......................................................................................................93

Reasonable and Proper Disbursements.........................................................................................93

Increased Costs..............................................................................................................................93

Process for Obtaining Costs...........................................................................................................93

Security for Costs...........................................................................................................................94

Special Costs..................................................................................................................................94

Claiming Special Costs...................................................................................................................94

Costs on Judicial Review and NCQ.................................................................................................94

Costs Against Non-Party................................................................................................................95

Practice Tips...........................................................................................................................................95

Class Action........................................................................................................................................96

What is a Class Action?..........................................................................................................................96

The Purposes of a Class Action – “According to Jones”.........................................................................96

How it Works.................................................................................................................................96

Economic Theory of Tort Deterrence.............................................................................................96

An Economic Model of Class Action...............................................................................................96

Settlement in a Single Claim..........................................................................................................97

In a Multiple Claims Tried Individully, Defendants Have Advantage..............................................97

Brief History of Class Action...................................................................................................................98

Naken v. General Motors...............................................................................................................98

1982 Report OLRC..........................................................................................................................98

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The 1993 Ontario Act.....................................................................................................................98

Bringing a Class Action...........................................................................................................................99

How it Works.................................................................................................................................99

Test for Certification......................................................................................................................99

Cause of Action on the Pleadings.................................................................................................100

Identifiable Class of Two or More Persons..................................................................................100

A Sample Class Definition............................................................................................................100

Common Issues............................................................................................................................100

Preferable Procedure...................................................................................................................101

Representative Plaintiff...............................................................................................................101

Summary of Advantages of Class Actions............................................................................................101

Jones’ View of Class Action..................................................................................................................102

The Public Law Model of Class Actions – “Jones’ Position”.........................................................102

Class Action as Public Law............................................................................................................102

Four Central Themes of Public Law Model..................................................................................102

Implications of the Public Law Model..........................................................................................103

Practice Advice.................................................................................................................................104

Principles of Good Advocacy: Scalia & Garner, Making Your Case......................................................104

Step One: Research Your Case.....................................................................................................104

Step 2: Establish the Claim Within the Court’s Jurisdiction.........................................................104

Types of Objections:............................................................................................................................105

Improper Objections:...........................................................................................................................105

PLTC Practice Advice............................................................................................................................106

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Introduction

Legal Ethics & Professionalism: Characteristic common for great lawyers: trust and dignity. The essence of a successful lawyer is trust; if you can be trusted by clients and colleagues.

Characteristics of Great Barrister: Superbly prepared; excellent written work and filed documents; even-handed in presentation of

the law; flexible and able to improvise on the spot; good empathetic skills (other perspectives); broad knowledge of substantive law; scrupulously fair.

Some Preliminary Questions Why do we need rules in civil litigation? Can we determine what is the “core” and “periphery” of a rule of civil procedure?

o Often the periphery is the area of judicial discretion What is the zone of judicial discretion?

Rationale It is important to remember, whether it be procedural or substantial law, why the law or rule is

in place. “All rules have a rationale” – F. Shauer, Thinking like a Lawyer. In the rules we will be dealing with, the rationale really matters. At the end of the day knowing

the spirit of the rules means more than being able to regurgitate them. Matters because there are rationales under the rules that may or may NOT apply in your given case.

A well planned civil action has a forest of rules; but what you are concerned about is the ones on your path and then you need to determine whether those rules are facilitating or hindering that process.

Sources of Procedural Rules Constitution: establishes jurisdiction of superior courts and powers (i.e. inherent jurisdiction). Legislation: establishes or continues courts; sometimes includes procedural rules itself.

Provincial evidentiary statutes – determine how discovery evidence presented etc. Rules of Court: introduced through regulation with authority of the courts. Forms: appended to the rules; contain within them sub-rules. Practice Directives Annotated Guides: writers have discretion on putting cases in which often become the law. Rules of Professional Responsibility Conventions: very important and steer day to day practice as much as the rules do.

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Initiating and Defining a Suit Rules found across multiple parts

Rule 1-2(2): Application(2) These Supreme Court Civil rules govern every proceeding the Supreme Court unless

(a) the proceeding is a family law case, in which case the Supreme Court Family Rules apply, or

(b) an enactment otherwise provides.

Rule 1-3(1): Object of Rules (1) The object of these Supreme Court Civil Rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits.

Many would argue that this object was never met, but was partially reconciled in the 2010 rules Is civil litigation always speedy and inexpensive? Just (fair proceedings)?

Rule 1-3(2): Proportionality(2) Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in way that are proportionate to

(a) the amount involved in the proceeding,

(b) the importance of the issues in dispute, and

(c) the complexity of the proceeding.

Rule 1-2(3): Waiver by Agreement(3) On application, and if all parties to a proceeding agree, the court may order that any provision of these Supreme Court Civil Rules does not apply to the proceedings.

13


Rule 22-7: Effect on Non-Compliance(1) Unless the court otherwise orders, a failure to comply with these Supreme Court Civil Rules must be treated as an irregularity and does not nullify

(a) a proceeding

(b) a step taken in the proceeding, or

(c) any document or order made in the proceeding.

HOWEVER…, the court may - see (2)

Powers of Court

(2) Subject to subrules (3) and (4), if there has been a failure to comply with these Supreme Court Civil Rules, the court may

(a) set aside a proceeding, either wholly or in part,

(b) set aside any step taken in the proceeding, or a document or order made in the proceeding,

(c) allow an amendment to be made under Rule 6-1,

(d) dismiss the proceeding or strike out the response to civil claim and pronounce judgement, or

(e) make any other order it considers will further the object of these Supreme Court Civil Rules.

BUT, it is qualified by (3) An application can be made to set aside, for (a),(b), or (d), but must meet requirements in (4)

Proceeding must not be set aside for incorrect originating pleading

(3) the court must not wholly set aside a proceeding on the ground that the proceeding was required to be started by an originating pleading other than the one employed.

Application to Set Aside Irregularity

(4) An application for an order under subrule (2)(a), (b) or (d) must not be granted unless the application is made

(a) within a reasonable time, and

14


(b) before the applicant has taken a fresh step after knowledge of the irregularity.

15


Discretion and Jurisdiction

Brophy v Hutchinson 2003 BCCA 21Facts:

Rules provide that defence must wait for end of plaintiff’s case before opening statements Rules say this can be dispensed with on order of the Court and by consent Plaintiff did not object to altered sequence, but no explicit consent Defendant made inflammatory and improper argument

Issue: Did the judge have the authority to dispense the rules on order?Rule: Judge can only dispense with order when consent is made by both partiesAnalysis:

Plaintiff has huge advantage by having first word, and stating all the evidence that will be given in light of their word

Plaintiff has onus to prove the case This dispense of the order, without consent, removed the plaintiff’s advantage and effected the

jury’s frame of mind

Conclusion:

New trial ordered, costs against the defendant (respondent) Very expensive outcome for the defendant

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Rule 7-6(1)-(3): Physical or Mental Condition(1) If the physical or mental condition of a person is in issue in an action, the court may order that the person submit to examination by a medical practitioner or other qualified person, and if the court makes an order under this subrule, the court may also make (a) an order respecting any expenses connected with the examination, and

(b) an order that the result of the examination be put in writing and that copies be made available to interested parties of record.

(2) the court may order a further examination under this rule.(3) A person who is making an examination under this rule may ask any relevant question concerning the medical condition or history of the person being examined.

In Class ExerciseFacts:

The case involves a claim for damages arising out of a motor vehicle accident that occurred on July 23, 2005. It concerns BB, who was born March 18, 1988 and was 17 years old at the time of the accident. Because he was under 19 when legal process issued on May 1, 2006, his mother, CB, signed a Certificate of Fitness as the proposed litigation guardian setting out BB’s infant status. The Writ was then issued on behalf of the plaintiff “by his Litigation Guardian, CB”.

Order Sought:

The litigation guardian, CB, shall attend at all independent medical examinations of the plaintiff, BB, including those ordered on June 23, 2010, and respond to any relevant question concerning the medical condition or history of the plaintiff, Brendon Bishop, where the plaintiff is alleged to be unable or unwilling to provide a complete and accurate response to the same. The defendant shall pay all reasonable expenses incurred by the litigation guardian in attending at the said examinations.

Does the Court have authority to make the Order Sought?

BB was 17 at time of accident, 19 when legal process issued The rules do not talk to this situation – there is a void It speaks to other situations This is actually a case – see Bishop below Also see rules 13-1(19) and 20-2(3) below

Bishop v. Minichiello 2010 BCSC 1502 Wong(guardian ad litem) v Wong [2006]

o established that the court may, in the interests of justice make ancillary orders to give effect to the purpose of the Rules, found in Rule 1(5) [now Rule 1-3].

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Rule 13-1(19): Furthering Objectives or Rule(19) When making an order under these Supreme Court Civil Rules, the court may impose terms and conditions and give directions it considers will further the object of these Supreme Court Civil Rules.

Rule 20-2(3): Role of Litigation Guardian(3) Unless a rule otherwise provides, anything that is required or authorized by these Supreme Court Civil Rules to be done by or invoked against a party under disability must:

(b) be invoked against the party by invoking the same against the party’s litigation guardian.

Inherent Jurisdiction

R & J Siever Holdings Ltd. v Moldenhauer 2008 BCCA 59The inherent jurisdiction of the court may be exercised in any given case, notwithstanding that there are Rules of Court governing the circumstances of such case. The powers conferred by the Rules of Court are, generally speaking, additional to, and not in substitution of, powers arising out of the inherent jurisdiction of the court.

[16] The Rules do not, properly speaking, confer jurisdiction. To the extent that they reflect a consensus of the Judiciary (and the Bar) as to the presumptions, or expectations, or shifts in onus that will contribute to the just and expedient conduct of litigation, they are useful in bringing predictability and stability to civil procedure. To the extent that they do not reflect such a consensus, they cannot be regarded as mandatory impediments to doing the right thing in any particular case.

[17] The silence of Rule 7-6 on the question of ordering the litigation guardian to attend an independent medical examination, does not, in and of itself, preclude the making of such an order, if it otherwise makes sense to do so in order to advance the speedy, just and inexpensive determination of the proceeding on its merits.

Reconciling Bishop with Brophy Brophy: the Court concluded that there was no discretion to depart from the rules Bishop: the Court found that departure was appropriate Both provided that, in certain circumstances, a Court “may order” something In Brophy the provision was exhaustive, in Bishop it was not What is the difference?

o Look at the outcome, look at what was lying underneath

18


Parties Rules found across multiple parts

Standing and Capacity of Claimants and Petitioners Usually standing determined by whether party has a substantive claim against the opposite

party. Kitimat v. Alcan Inc. 2005 BCSC 44. Exception to general standing rules (or requirement for a cause of action): “Public interest

standing” can be pursued in claims against the government where no legal interest exists.

Criteria for Public Interest Standing Brand new decision Canada (Attorney General) v. Downtown Eastside Sex Workers United

Against Violence Society, 2012 SCC 45:

courts must consider three factors:

i) whether the case raises a serious justiciable issue; ii) whether the party bringing the case has a real stake in the proceedings or is

engaged with the issues that it raises; and iii) whether the proposed suit is, in all of the circumstances and in light of a

number of considerations, a reasonable and effective means to bring the case to court.

A party seeking public interest standing must persuade the court that these factors, applied purposively and flexibly, favor granting standing. All of the other relevant considerations being equal, a party with standing as of right will generally be preferred.

Rule 20-36: Standing to Represent InterestsRepresentation of interested person who cannot be ascertained (6) In a proceeding concerning

(a) the administration of the estate of a deceased person,(b) property subject to a trust, or(c) the construction of a written instrument, including an enactment,

the court may appoint one or more persons to represent a person, including(d) an unborn or unascertained person, or(e) the members of a class of persons who have a present, future, contingent or unascertained interest in, or who may be affected by, the proceeding, and who, or some of whom, cannot readily be ascertained or found.

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Standing of Defendants/Respondents The defendant to a Notice of Civil Claim or named respondent to a petition would never be

challenged on the basis of standing. However, sometimes a person requests to be added as a responding party, such as in BCTF v.

British Columbia 2008 BCSC 1599. Adding or substituting parties is governed by Rule 6-2.

Rule 6-2(7): Adding, removing or substituting parties by order (7) At any stage of a proceeding, the court, on application by any person, may, subject to subrules (9) and (10),

(a) order that a person cease to be party if that person is not, or has ceased to be, a proper or necessary party,(b) order that a person be added or substituted as a party if

(i) that person ought to have been joined as a party, or(ii) that person's participation in the proceeding is necessary to ensure that all matters in the proceeding may be effectually adjudicated on, and

(c) order that a person be added as a party if there may exist, between the person and any party to the proceeding, a question or issue relating to or connected with

(i) any relief claimed in the proceeding, or(ii) the subject matter of the proceeding

that, in the opinion of the court, it would be just and convenient to determine as between the person and that party.

Rule 3-4: Counterclaims Counterclaim

(1) A defendant in an action who wishes to pursue a claim within that action against the plaintiff must, within the time set out for the filing of a response to civil claim under Rule 3-3 (3), file a counterclaim in Form 3 that accords with Rule 3-7.

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Intervenors In the Court of Appeal, applications are determined under section 36. In the BC Supreme Court, no rule governing intervention, so applications are made pursuant to

the inherent jurisdiction of the Court.

Two Types of Interventions Direct Interest Intervenor, also by way of “added party” under Rule 6-2(7).

o The person seeking to be added must have a direct interest in the precise outcome of the lis.

Public Interest Intervenor – (usually) an organization seeking to make submissions on public interest aspects of a (usually) public law case.

Direct Interest Intervenor Must show that the decision of the Court will impact on its legal rights, not simply that the

precedent will affect it (that is indirect interest).

Public Interest Interventions in BC Supreme Court Historically rare, but increasing. Some problems and concerns:

o “piling on”o Taking the “lis” away from the partieso Practical problems, such as: Should intervenors be allowed to introduce evidence?

Cross examine witnesses?

Defining the “Matter” Work backwards from the relief sought to the cause of action or claim asserted. This will frame the action, and identify the necessary parties. As responding party, consider whether third parties need be named or counterclaims

asserted. Remember that you may be time-limited in asserting such claims.

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Multiple Parties

Rule 3-4: Counterclaims Counterclaim

(1) A defendant in an action who wishes to pursue a claim within that action against the plaintiff must, within the time set out for the filing of a response to civil claim under Rule 3-3 (3), file a counterclaim in Form 3 that accords with Rule 3-7.

(2)

Counterclaim against another person

(2) If the counterclaim referred to in subrule (1) raises questions between the defendant bringing the counterclaim and a person other than the plaintiff, the defendant may join that other person as a party against whom the counterclaim is brought.

Identification of parties

(3) In a counterclaim,

(a) the plaintiff against whom the counterclaim is brought must be identified as the "plaintiff",

(b) each defendant against whom the counterclaim is brought must, along with the defendant bringing the counterclaim, be identified as a “defendant”, and

(c) any other person against whom the counterclaim is brought must be identified as a "defendant by way of counterclaim".

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Rule 3-5: Third Party ClaimsMaking a third party claim

(1) A party against whom relief is sought in an action may, if that party is not a plaintiff in the action, pursue a third party claim against any person if the party alleges that

(a) the party is entitled to contribution or indemnity from the person in relation to any relief that is being sought against the party in the action,

(b) the party is entitled to relief against the person and that relief relates to or is connected with the subject matter of the action, or

(c) a question or issue between the party and the person

(i) is substantially the same as a question or issue that relates to or is connected with

(A) relief claimed in the action, or

(B) the subject matter of the action, and

(ii) should properly be determined in the action.

Plaintiff as defendant to counterclaim

(1.1) Subrule (1) does not preclude a plaintiff from pursuing a third party claim in his or her capacity as a defendant to a counterclaim. [en. B.C. Reg. 119/2010, Sch. A, s. 5 (a).]

Third party need not be party to original action

(2) A third party claim may be pursued against a person, whether or not that person is a party to the action.

Third Parties vs. Counterclaims A counterclaim is launched by a defendant against the plaintiff. If third parties are brought in,

it is because they are co-defendants to the counterclaim. A Third Party claim is a more separate claim, and is not premised on a claim against a plaintiff.

It must be related and it must makes sense to determine the third party claim at the same time as the action.

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Rule 3-7(11): Set-OffsSet-off or counterclaim

(11) A defendant in an action may set off or set up by way of counterclaim any right or claim, whether the set-off or counterclaim is for damages or not, so as to enable the court to pronounce a final judgment on all claims in the same action.

Counterclaims vs. Setoffs Closely related concepts. A counterclaim is an independent claim for damages. A set-off amount is invoked by a defendant to reduce the liability of the defendant by a

certain amount or extinguish it altogether, whether or not there is an independent cause of action; i.e., a pre-existing debt may be claimed to set off damages award. There is also “equitable set off”.

Rule 22-5: Multiple Claims and Parties Knowing the various permutations of this rule not necessary. Important takeaway is that Courts

have an abundant jurisdiction to join, combine or split proceedings. Under some circumstances, joinder is (almost) mandatory:

(3) Subject to any enactment or these Supreme Court Civil Rules or unless the court otherwise orders, a plaintiff or petitioner who claims relief to which any other person is jointly entitled must join as parties to the proceeding all persons so entitled, and any of them who do not consent to be joined as a plaintiff or petitioner must be made a defendant or respondent.

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Actions vs. Petitions Part 2 is on Choosing the Correct Form of Proceeding

What is an Action? Traditional form of proceeding, beginning with pleadings and ending with trial and judgment. Preferred for matters where it is expected that disputed facts will be at issue. Evidence is vive voce , by default. More procedural rights, particularly discovery.

What is a Proceeding by Petition? Evidence is by affidavits, by default. NO “pleadings” in the formal sense (i.e. “pleadings” has never contained petitions). Preferred where facts are not (or no longer) in dispute.

Platforms Every “matter” needs a platform. The filing of a NOCC or Petition creates “platform”. An interlocutory application is an application brought for an order that relates to an ongoing

proceeding, BUT does NOT finally dispose of the issue between the parties (ex. Interim injunction).

An interlocutory application CANNOT create, or be, a platform on its own. An interlocutory application CANNOT be filed unless a proceeding is already underway.

Proceedings for a Declaration Can you have a proceeding for a declaration proceed by Petition? See Rule 20-4. East Kootney Realty Ltd v Gestas Inc (1986) BCSC:

o basically, if there are facts in dispute, it should be converted to an action and proceed to trial.

Beware of Form over Substance Be aware that choosing the wrong form is NOT necessarily fatal to a proceeding. The Supreme

Court has discretion to transform a JR to an Action, or vice versa, and other aspects of division between the two forms are blurring (for instances damages are now available in JRs).

The SCC has recently confirmed that it will be reluctant to reject a claim brought under the wrong form, in the interest of preserving litigative efficiencies.

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What Can Be Brought by a Petition? Default position is an action:

o Rule 2-1(1) UNLESS an enactment or these Supreme Court Civil Rules otherwise provide, every proceeding must be started by the filing of a Notice of Civil Claim under Part 3.

Rule 2-1(2): Main Categories of Claims Brought by PetitionTo start a proceeding in the following circumstances, a person MUST file a petition or, if Rule 17-1 applies, a requisition:

(a) the person starting the proceeding is the ONLY person who is interested in the relief claimed, or there is NO person against whom relief is sought;

(b) the proceeding is brought in respect of an application that is authorized by an enactment to be made to the court;

(c) the sole or principal question at issue is alleged to be one of construction of an enactment, will, deed, oral or written contract or other document;

(d) the relief, advice or direction sought relates to a question arising in the administration of an estate of a deceased person or the execution of a trust , or the performance of an act by a person in the person's capacity as executor, administrator or trustee, or the determination of the persons entitled as creditors or otherwise to the estate or trust property;

(e) the relief, advice or direction sought relates to the maintenance, guardianship or property of infants or other persons under disability;

(f) the relief sought is for payment of funds into or out of court;(g) the relief sought relates to land and is for

(i) a declaration of a beneficial interest in or a charge on land and of the character and extent of the interest or charge,

(ii) a declaration that settles the priority between interests or charges,(iii) an order that cancels a certificate of title or making a title subject to an interest or

charge, or an order of partition or sale;(h) the relief, advice or direction sought relates to the determination of a claim of solicitor and

client privilege.

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Pleadings

Purpose of Pleadings Define the issues, prevent “expansion” Give notice to other side of the case that has to be met Provide reference of issues for purposes of appeal

Pleadings: The Way We Were New Rules introduced 2010, changed pleadings practice in British Columbia It is important that you understand both the old system and the new one, because most

jurisprudence built prior to new rules Under the old system, an action was initiated by the filing of a writ with a statement of claim.

However, they sometimes were filed years apart, as the Writ preserved the limitation period and the statement of claim provided the pleading per se.

The Way We Are Now Action initiated and pleaded by a single document, the Notice of Civil Claim (NCC or, sometimes,

NOCC). The use of the form is mandatory. Irregularities will be forgiven but substantive deviation will

not.

Definitions "pleading" means a notice of civil claim, a response to civil claim, a reply, a counterclaim, a

response to counterclaim, a third party notice or a response to third party noticeo A petition is NOT a “pleading”

"proceeding" means an action, a petition proceeding and a requisition proceeding, and includes any other suit, cause, matter, stated case under Rule 18-2 or appeal

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Notice of Civil Claim Replaced the old Writ/Statement of Claim Part 3 is on Notice of Civil Claim

Rule 3-1: Notice of Civil Claim (NOCC)(2) A notice of civil claim must do the following:

(a) set out a concise statement of the material facts giving rise to the claim;(b) set out the relief sought by the plaintiff against each named defendant;(c) set out a concise summary of the legal basis for the relief sought;(d) set out the proposed place of trial;(e) if the plaintiff sues or a defendant is sued in a representative capacity, show in what capacity the plaintiff sues or the defendant is sued; (f) provide the data collection information required in the appendix to the form;(g) otherwise comply with Rule 3-7.

What does a NoCC Contain? Style of Cause Boilerplate Instructions to Defendant(s) Part 1: Statement of Facts Part 2: Relief Sought Part 3: Legal Basis

Benefits of Good Pleadings Provides “road map” of issues and the facts related to them Allows a methodical approach to trial preparation and the assembly of evidence

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Rule 3-7: Content of PleadingsThis rule governs the content of Pleadings, and you should familiarize yourself with its provisions. Some examples:

(1) A pleading must not contain the evidence by which the facts alleged in it are to be proved. (2) The effect of any document or the purport of any conversation referred to in a pleading, if material, must be stated briefly and the precise words of the documents or conversation must not be stated, except insofar as those words are themselves material. (4) A party need not plead the performance of a condition precedent necessary for the party's case unless the other party has specifically denied it in the other party's pleadings. (6) A party must not plead an allegation of fact or a new ground or claim inconsistent with the party's previous pleading. (7) Subrule (6) does not affect the right of a party to make allegations in the alternative or to amend or apply for leave to amend a pleading. (14) If general damages are claimed, the amount of the general damages claimed must not be stated in any pleading. (15) If a party in a pleading denies an allegation of fact in the previous pleading of the opposite party, the party must not do so evasively but must answer the point of substance. (17) It is sufficient to allege malice, fraudulent intention, knowledge or other condition of the mind of a person as a fact, without setting out the circumstances from which it is to be inferred.

Pleading the “Material Facts” Must include all the facts necessary to establish cause of action (and, usually, damages) or to

establish defence to the claim. Some claims require higher degree of particularity than others. Evidence should not be pleaded, as discussed below.

The Usual Layout of Facts Identify Parties and (if appropriate) their legal capacity Identify relationships among the parties and with any property or events in question Set out narrative of events giving rise to the claim Set out injuries or other sources for damages claim or other relief

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Particulars Subrules (17) through (24) govern “particulars” – that is, situations in which facts must be

pleaded with more detail Several subrules of 3(7) address the level of particularity for the following:

o misrepresentation, fraud, breach of trust, wilful default or undue influence (18)o Debt and damages (19)o Libel and slander (21)

Subrules 22-24 govern demands or orders for particulars.

Pleading Facts vs. Pleading Evidence Example of Pleading a fact (proper):

o “The defendant entered the intersection without first stopping, and struck the plaintiff in the crosswalk.”

Example of Pleading Evidence (Improper):o “Mr. Smith observed the defendant entering the intersection without first stopping”; oro “Skid-mark analysis and accident reconstruction indicates that the defendant entered

the intersection without first stopping”.

Pleading Relief Sought Common forms of Relief:

o General Damageso Special Damageso Exemplary/Punitive Damageso Injunctive Reliefo Declaratory Reliefo Don’t forget to plead costs and interest.

Summary of Relief Sought What do you want? Damages (set out what kind, general, non-pecuniary, punitive, etc.) Injunctive relief? Plead both interlocutory or interim and permanent injunctions if you need

immediate orders. Specific relief (such as a retraction for libellous statements, specific performance of a contract,

etc.)

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Declaratory relief? A declaration should be a statement of the parties’ rights, not a declaration that past conduct was wrong.

Outline of the Legal Basis This is a new requirement, so pay attention. Prior to new rules, no requirement in BC to disclose legal basis, only facts. New rule requires “a concise summary of the legal bases on which the plaintiff intends to rely

in support of the relief sought.” Now MUST list any Rule or enactment relied upon (see Form 1).

Response to NOCC

Rule 3-3(3): Timeline for Response to NOCC Like NCC, Response must be filed then served within the following time periods:

o 21 days if served within Canada;o 35 days if served in the USA;o 49 days if served anywhere but Canada and USA.

Time limits can be extended by the Court, and this is usually done with consent, particularly in complex cases. Only one copy need be served for all Plaintiffs, through their collective counsel.

Rule 3-3(2): Contents of Response(2) A response to civil claim under subrule (1)

(a) must(i) indicate, for each fact set out in Part 1 of the notice of civil claim, whether that fact is

(A) admitted,(B) denied, or(C) outside the knowledge of the defendant,

(ii) for any fact set out in Part 1 of the notice of civil claim that is denied, concisely set out the defendant's version of that fact, and (iii) set out, in a concise statement, any additional material facts that the defendant believes relate to the matters raised by the notice of civil claim,

(b) must indicate whether the defendant consents to, opposes or takes no position on the granting of the relief sought against that defendant in the notice of civil claim, (c) must, if the defendant opposes any of the relief referred to in paragraph (b) of this subrule, set out a concise summary of the legal basis for that opposition, and (d) must otherwise comply with Rule 3-7.

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What is a “Tender of Amends”? Rules provide for payment of money into Court Doing so might have some costs advantages over use of ‘offer to settle’ in Rule 9-1 I am unaware of any case so far in which this has been done Rules extend the defence to defamation actions: query whether Rules can establish substantive

rights.

Defendants’ Facts Now broken into two sections:

o In the first, the defendant will clarify which facts of the Plaintiff are admitted, denied or outside the Defendant’s knowledge

o In the second, the Defendant will set out those additional facts that are material to defending the claim.

If the Defendant does not admit, deny or plead lack of knowledge, then the Defendant will be deemed to plead that it is outside its knowledge (Subrule (8)). This is new.

Response to Relief Sought Sets out whether the defendant consents to, opposes, or takes no position on the Plaintiff’s

relief. This is almost always opposed.

Legal Basis of Response Will set out the legal basis. Often it will be that the facts as pleaded by the Defendant require

that the claim be dismissed. Must list any statute or Rule relied on (i.e. defences in Limitation Act, Libel and Slander Act,

etc.)

General Tips on Pleadings The new rules do NOT do away with the requirements that some causes of action and defences

require certain elements and particularity Be very familiar with the pleading requirements of the case you are presenting In cases with a high public profile, consider drafting your pleadings with a view toward

intelligibility by laypeople.

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Pleading a Counterclaim or Third Party Claim Counterclaim must be filed within the time for Response to NCC (Rule 3-4(1)). Third Party Claim may be filed without leave within 42 days of being served with claim or

counterclaim, or with leave at any time (Rule 3-5(4)).

Amendments

Rule 6-1: Amendments(1) Subject to Rules 6-2 (7) and (10) and 7-7 (5), a party may amend the whole or any part of a pleading filed by the party

(a) once without leave of the court, at any time before the earlier of the following:(i) the date of service of the notice of trial, and(ii) the date a case planning conference is held, or

(b) after the earlier of the dates referred to in paragraph (a) of this subrule, only with(i) leave of the court, or(ii) written consent of the parties of record.

Process for Amendments Amended pleadings will have strikethroughs and underlining to indicate changes Must be served on all parties and others served with the original version The other party will have the usual time period to respond, but may respond only to the

amended portions of the pleading

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Petitions Part 16 is on Petition Proceeds

Rule 16-1: Petition Proceedings(2) A person wishing to bring a proceeding referred to in Rule 2-1 (2) by filing a petition must file a petition in Form 66 and each affidavit in support. (3) Unless these Supreme Court Civil Rules otherwise provide or the court otherwise orders, a copy of the filed petition and of each filed affidavit in support must be served by personal service on all persons whose interests may be affected by the order sought.

Form 66 Petition Order(s) sought, Factual Basis and Legal Basis, Material to be relied on

Rule 16-1(4): Response to Petition(4) A person who has been served with a copy of a filed petition under subrule (3) of this rule must, if the person wishes to receive notice of the time and date of the hearing of the petition, do the following:

(a) file a response to petition in accordance with subrule (5);(b) file, with the response to petition, all affidavits that have not already been filed and on which the person intends to rely at the hearing of the petition; (c) unless the court otherwise orders, serve on the petitioner 2 copies and on every other party of record one copy of each document filed under paragraph (a) or (b) as follows:

(i) if the petition respondent was served with the petition anywhere in Canada, within 21 days after that service;(ii) if the petition respondent was served with the petition anywhere in the United States of America, within 35 days after that service; (iii) if the petition respondent was served with the petition anywhere else, within 49 days after that service.

Rule 16-1(5): Contents of Response(5) A response to petition must be in Form 67 and must

(a) indicate, for each order sought, whether the petition respondent consents to, opposes or takes no position on the order, and (b) if the petition respondent wishes to oppose any of the relief sought in the petition,

(i) briefly summarize the factual and legal bases on which the orders sought should not be granted,(ii) list the affidavits and other documents on which the petition respondent intends to rely at the hearing of the petition, and

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(iii) set out the petition respondent's estimate of the time the petition will take for hearing.

Rule 16-1(8) and (10): Setting Petition for Hearing(8) A petitioner wishing to set a petition down for hearing must,

(a) in the case of a petition to which no response to petition has been served under subrule (4c), file a notice of hearing in Form 68 at any time before the hearing of the petition, or (b) in the case of a petition to which a response to petition has been filed and served under subrule (4) (c), file a notice of hearing in Form 68, and serve a copy of the filed notice of hearing on each petition respondent, at least 7 days before the date set for the hearing of the petition.

(10) If the estimate, set out in the petition, of the time that the hearing of the petition will take is more than 2 hours, the date and time of hearing must be fixed by a registrar.

Petition Record At least a day before the hearing, the Petitioner will provide to the registry a petition record,

which is a binder containing all the relevant documents and evidence in the proceeding. The Petitioner will serve on other parties a copy of the petition record index (so that they may

make their own binders)

Rule 16-1(11): Contents of Record(b) the petition record must contain, in consecutively numbered pages, or separated by tabs, the following documents in the following order:

(i) a title page bearing the style of proceeding and the names of the lawyers, if any, for the petitioner and the petition respondents; (ii) an index;(iii) a copy of the filed petition;(iv) a copy of each filed response to petition;(v) a copy of each filed affidavit that is to be referred to at the hearing;

(c) the petition record may contain(i) a draft of the proposed order,(ii) a written argument,(iii) a list of authorities, and(iv) a draft bill of costs;

(d) the petition record must not contain(i) affidavits of service,(ii) copies of authorities, including case law, legislation, legal articles or excerpts from text books, or(iii) any other documents unless they are included with the consent of all the parties.

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Rule 6-2: Adding or Substituting Parties (7) At any stage of a proceeding, the court, on application by any person, may, subject to subrules (9) and (10),

(a) order that a person cease to be party if that person is not, or has ceased to be, a proper or necessary party,(b) order that a person be added or substituted as a party if

(i) that person ought to have been joined as a party, or(ii) that person's participation in the proceeding is necessary to ensure that all matters in the proceeding may be effectually adjudicated on, and

(c) order that a person be added as a party if there may exist, between the person and any party to the proceeding, a question or issue relating to or connected with

(i) any relief claimed in the proceeding, or(ii) the subject matter of the proceeding

that, in the opinion of the court, it would be just and convenient to determine as between the person and that party.

Striking Pleadings or Petitions

Rule 9-5: Applications to Strike (1) At any stage of a proceeding, the court may order to be struck out or amended the whole or any part of a pleading, petition or other document on the ground that

(a) it discloses no reasonable claim or defence, as the case may be,(b) it is unnecessary, scandalous, frivolous or vexatious,(c) it may prejudice, embarrass or delay the fair trial or hearing of the proceeding, or(d) it is otherwise an abuse of the process of the court,and the court may pronounce judgment or order the proceeding to be stayed or dismissed and may order the costs of the application to be paid as special costs.

Rule 9-5(1)(a): Applications No evidence is admissible – the analysis is conducted on the pleadings Must be “plain and obvious” that the cause of action or defence cannot succeed. A claim should not be dismissed under this rule simply because it is “novel”

Breadth of Rule 9-5 9-5 permits the Court to strike “the whole or any part of a pleading, petition or other

document…” Can be used against applications (including Petitions), responses, and even affidavits presented

as evidence.

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Discovery

One of the most important aspects of civil litigation Governed by Part 7 of the Civil Rules

Four main forms of Discovery:◦ Discovery of Documents◦ Examination for Discovery◦ Interrogatories◦ Physical or psychiatric examinations

Purposes of Discovery Ensures the arguments at trial are meaningful with respect to the evidence Ensures fairness

“Discovery” is the legal process by which each party is able to find out what the other’s case is about: it allows disclosure of evidence on which a party is going to rely at trial before that evidence is given at trial. Each party has an opportunity to ascertain facts using procedures ranging from the production and examination of documents to oral examinations of the parties and witnesses held outside court and on oath. (from LSBC Materials)

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Discovery of Documents In British Columbia, the parties to a civil action are required to prepare a list of all documents

in their possession that may be used by any party of record (with some exceptions and qualifications, see §2.02, §2.03 in PLTC).

Very tedious, but extremely important Mistakes can be embarrassing, A mistake can lead to adjournments and allegations of professional misconduct

Rule 7-1: List of Documents7 (1) Unless all parties of record consent or the court otherwise orders, each party of record to an action MUST, within 35 days after the end of the pleading period,

(a) prepare a list of documents in Form 22 that lists(i) all documents that are or have been in the party's possession or control and that

could, if available, be used by any party of record at trial to prove or disprove a material fact, and

(ii) all other documents to which the party intends to refer at trial, and(b) serve the list on all parties of record (i.e. what kind of service will be required? – Ordinary

All the documents that your side can use All the documents that the other side can use Very stringent, ethical requirement of lawyers that they supervise their client and make sure

disclosure is complete After lists are exchanged, the parties can request copies of the items listed

o Usually the lawyer’s sit in a boardroom sifting through documents and choosing which ones they want copies of

What is a “Document”? “Document” is defined in Rule1-1(1):

“document” has an extended meaning and includes a photograph, film, recording of sound, any record of a permanent or semi-permanent character and any information recorded or stored by means of any device.

Data stored on computers and other electronic devices falls squarely within this definition: Bishop (Litigation Guardian of) v. Minichello, 2009 BCSC 358.

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What is “Possession or Control”? Basically the question is legal custody – whether the discovered party has a legal right to access

and deal with the document. Therefore information in the custody of a company’s subsidiary may be discoverable.

If you are or have been in possession or control If you can, with reasonable diligence, gain access to the documents then you are required to

o If you have a legal right to access the documents, you have possession or control

The Scope of Discovery Previous rule known as Peruvian Guano, required production of all documents that could fairly

have led to a “train of inquiry” that either advanced the adversary's case or damaged one’s own.

New Rule is more restrictive. With technology advancing communications and increasing the number of them, the old rule became unmanageable.

However, the court may order a broader scope of disclosure under Rule7-1(11) to (14), i.e., documents that relate to any or all matters in question in the action (SCCR 7-1(11)(b)).

That is what you have to list There are exceptions: privileged documents

Rule 7-1(18): Documents in Third-Party Control Under sub-rule (18). MUST be of “real relevance to the litigation” (i.e. threshold question). Protected from further use. Medical records are subject to the process of the “Halliday Order” (see Seckel at 144): Are documents within possession of related corporate entities considered to be within the

“power” of a party to produce? Many courts have determined that documents in control of an entity that is majority owned by a party are discoverable (i.e. subsidiary companies etc).

Rule 7-1(10) and (11): Demanding DocumentsAdditional documents can be demanded under sub-rule (10) or (11).

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Privilege

Privileged Documents Even a privileged document must be included in the list of documents (Cominco Ltd. v.

Westinghouse Canada Ltd. (1978), 9 B.C.L.R. 100 (S.C.), decided under former Rule 26(10)). Note that the usual practice has been not to list these documents individually but as a class.

The parties would describe documents in classes, not the individual document

Rule 7-1: Privileged Documents The party must state the ground upon which privilege is claimed in the list of documents

(SCCR 7-1(6) and (7). The party against whom privilege is claimed may apply to the court for an order for

production (SCCR 7-1(17)). On such an application, the court may inspect the document for the purpose of deciding how

valid the objection is (SCCR 7-1(20)). (PLTC Materials)

Main Types of Privilege Solicitor-Client Privilege Legal Brief Privilege (also known as “solicitor’s brief” or “litigation privilege”) “Without prejudice” communications (also known as “settlement privilege” )

There are more privileges (i.e. spousal privilege) Will be discussed in more detail in the ethical lawyering class, evidence, etc…

Solicitor-Client Privilege Protects almost all communications between lawyer and client. There are exceptions carved out of this privilege, but these are not crucial to this course and will

be addressed in the Ethical Lawyering class. This privilege lasts forever – outlives the client and the lawyer

Solicitor’s Brief Privilege (also called “legal privilege” or “litigation privilege”)

Litigation privilege protects documents brought into existence for the dominant purpose of using its contents in the conduct of litigation then in existence or reasonably anticipated.

See: Hodgkinson v. Simms (1988), 33 B.C.L.R. (2d) 129 (C.A.) and Benning v. The Trustees of IWA, 2010 BCSC 1422;Voth Bros. Construction (1974) Ltd. v. North Vancouver School District No. 44 (1981), 29 B.C.L.R. 114 (C.A.)).

This privilege expires with the conclusion of the case and any related litigation.

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Without Prejudice Communications Protects documents created in furtherance of settlement or compromise. Purpose is to encourage frank settlement discussions and genuine attempts to resolve

disputes short of Court. *greater social utility in this There is NO magic in the words “without prejudice”. Courts will examine the context and

content of the communications to determine if the privilege applies.

Confidentiality

Confidentiality of Discovered Documents There is an implied undertaking of confidentiality over discovery documents. According to PLTC

materials, they “may be used for a purpose outside of the litigation in which they were produced only if the owner of the documents gives permission or the court is approached for leave.

The documents may be shown to potential witnesses (including experts) to permit them to prepare their evidence.

They may be shown also to the client to obtain instructions. Finally, they can be used on oral discovery or trial if they meet the test of relevance.”

An undertaking, in a legal sense, is a sworn promise from a lawyer – it is a legally binding commitment (i.e. I undertake to get my client to bring forth these documents)

This undertaking is automatic If it becomes impossible to perform the undertaking then you must be released from the

undertaking by the party the undertaking is made to (party must be reasonable)

Documents Sent in Error A lawyer has an ethical duty to return, unread and uncopied, documents belonging to an

opposing party that have mistakenly ended up in a lawyer’s hands (Rule 7.2-10 of the BC Code). If the document was read before the mistake was recognized, a lawyer must advise the other party of the extent to which the lawyer is aware of the contents, and of how the lawyer intends to use its contents (Rule 7.2-10(c)). (PLTC Materials)

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Examination for Discovery The parties to a civil action are required to attend and be examined orally, under oath, as to

the matters in issue (see §2.05 of PLTC)

Purpose of Examination for DiscoveryThe purpose of XFD is set out in the PLTC Materials:

By an effective examination for discovery, counsel should be able to:1. to obtain admissions from the person being examined which will assist the

examining party’s case;2. to determine the strengths and weaknesses of the opponent’s case in order to

determine how strong that case really is; and3. to allow counsel to prepare to counter the opponent’s case at trial.

Examination for Discovery is like cross examinationo You can use leading questionso Only admissible against the party that was subject to the examination

Regular examination: examining your own witnesso “examination in chief”o No leading questions allowed

Cross examination: examining the other party’s witnesso Leading questions allowed

Rule 7-2: Examinations for Discovery Any party of record can examine any other party “adverse in interest” (Rule 7-2(1)).

o Opposing party is always adverse in interesto Co-defendants may be adverse in interest to one another

Rights of multiple examinations might be restricted, and examinations may be combined. Only parties and counsel are permitted to attend. New: Unless by consent or order, examinations for discovery must not exceed, in total, 7

hours. *2 hours for Fastrack Litigation

Examination of Representatives Representative plaintiffs under the Civil Rules or the Class Proceeding Act may be discovered. Discoveries of non-parties can be permitted by order of the court. In exceptional cases, the

courts may permit an “equitable bill of discovery” against a person in advance of proceedings, in order ascertain the identity of a defendant.

If the party to be examined is an infant, counsel is entitled to examine the infant, his or her guardian, and his or her litigation guardian (Rule 7-2(8)).

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Rule7-2(5): Examination of Corporations Corporations must provide a person knowledgeable concerning the matters at issue in the

case. Examining counsel may reject corporate nominee and select a person more appropriate, subject to some restrictions.

(5) UNLESS the court otherwise orders, if a party to be examined for discovery is NOT an individual, (a) the examining party may examine one representative of the party to be examined,(b) the party to be examined MUST nominate as its representative an individual, who is

knowledgeable concerning the matters in question in the action, to be examined on behalf of that party, and

(c) the examining party may examine(i) the representative nominated under paragraph (b), or

(ii) any other person the examining party considers appropriate and who is or has been a director, officer, employee, agent or external auditor of the party to be examined.

Re-examination This is an ‘examination in chief’ to clarify points or claw back concessions made. The PLTC Materials say that:

As a general rule, counsel should never re-examine on an examination for discovery. If the witness has stated something that counsel believes to be untrue or incomplete, counsel should discuss the matter with the witness in the privacy of the office when the discovery has been concluded. Any correction that is necessary can be made by sending a letter to the other side.

Physical Examinations In British Columbia, the parties to a civil action are required to: submit to a medical

examination where the physical or mental condition of a person is in issue. Examination conducted by medical practitioner or other qualified person. Usually done by consent without order, and reports and files of both sides’ expert are

exchanged.

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Rule 7-2: Setting up an Examination for Discovery An examination for discovery is arranged by taking out an appointment in Form 23. The appointment, along with witness fees (unless waived) is served on the party to be

examined, or his or her counsel (Rule7-2(13)), and notice is given to all other parties to the action (Rule7- 2(13)).

(17) Examination and re-examination – The examination for discovery of a person is in the nature of a cross-examination, and the person examined for discovery may be re-examined on his or her own behalf or on behalf of a party of record NOT adverse in interest to him or her in relation to any matter respecting which he or she has been examined.

(18) Scope of Examination – UNLESS the court otherwise orders, a person being examined for discovery

(a) MUST answer any question within his or her knowledge or means of knowledge regarding any matter, NOT privileged, relating to a matter in question in the action, and

(b) is compellable to give the names and addresses of all persons who reasonably might be expected to have knowledge relating to any matter in question in the action.

(22) Person must inform self – In order to comply with subrule (18) or (19), a person being examined for discovery may be required to inform himself or herself and the examination may be adjourned for that purpose.

Rule 7-2(25): Objections to Questioning A question is objectionable if it seeks information that is unrelated to the issues between the

parties to the examination, seeks privileged information, or if the question is not in proper form (for example, two questions in one) (Nwachukwu v. Ferreira, 2011 BCSC 1755).

The proper procedure for making an objection is for opposing counsel to state: “I object to that question and I advise the witness not to answer”. It is customary to give the ground at the objection, if requested. The witness will then state: “I refuse to answer the question”.

The court may later determine the validity of an objection and that court may order the witness to submit to a further examination for discovery (SCCR 7-2(25)). (PLTC Materials)

Types of Objections The PLTC Materials cite Discovery Practice in British Columbia (2011), by Lyle Harris, Q.C., for a

list of the most common objections (at §3.116). Also on page 105 of CAN.

Going “Off the Record” Can be a useful way of resolving objectionable questioning. Parties must consent to going off the record.

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Allows lawyers to work things out

Interrogatories Interrogatories are written questions put to the other party regarding any “matter in question”. May be served on party, or director, officer, partner, agent, employee or external auditor of a

party. Under the old rules, parties could serve interrogatories as of right, and the other side would

have to apply to have any improper requests set aside. Now, the parties to a civil action are required to answer written interrogatories concerning

the matters in issue only when leave of the court is obtained or when the parties consent (§2.04 in PLTC)

Rule 7-3(1): Serving Interrogatories Party may serve interrogatories by consent or with leave

(1) A party of record to an action may serve interrogatories in Form 24 on any other party of record, or on a director, officer, partner, agent, employee or external auditor of a party of record, if

(a) the party of record to be examined consents, or(b) the court grants leave.

Rule 7-3(4): Responding to Interrogatories Other side must respond in 21 days by filing affidavit Answered from “personal knowledge or reasonable inquiry”. Questions can probably cover the same sort of scope as in other forms of discovery.

Scope of Interrogatories directed only to facts that are within the deponent’s personal knowledge or that can be

ascertained on reasonable inquiry Ongoing obligation to correct/update information in response (Rule 7-3(11)).

Notice to Admit A party may serve a notice to admit in Form 26, requesting any party of record to admit to the

truth of a fact or the authenticity of a document set out in the notice (Rule7-7(1)). On receipt of a notice to admit, the adverse party is required to serve a written statement within

14 days, failing which the party is deemed to admit the matters requested (Rule7-7(2)). Receiving party must specifically deny the truth of the fact or the authenticity of the document,

set out in detail the reasons why the admission cannot be made, or set out in detail the reasons for the refusal to answer.

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In limited circumstances, admissions may be withdrawn or set aside.

Interlocutory Matters

Chambers Practice The term originates from a judge’s private room located near the courtroom. Straightforward matters could be disposed of with less formality in those “chambers”. Now, the term refers to a type of proceeding that is dealt with, usually in a fairly summary way. Chambers matters are dealt with by a Master or Justice of the Supreme Court.

Types of Chambers Applications Some definitions:

◦ “interlocutory applications” which are applications for orders made within otherwise-existing proceedings

◦ “originating applications” are applications (usually by Petition) that are self-contained proceedings in themselves

◦ “final orders” can dispose of a matter on a number of different grounds – they are orders that determine the rights or status of the parties

◦ “desk orders” are orders that can be granted without a hearing, usually on consent

Jurisdiction of a Master Section 11(7) of the Supreme Court Act provides:

A master has, subject to the limitations of section 96 of the Constitution Act, 1867, the same jurisdiction under any enactment or the Rules of Court as a judge in chambers unless, in respect of any matter, the Chief Justice has given a direction that a master is not to exercise that jurisdiction.

Generally, a master will hear:

(a) all interlocutory applications authorized by the Supreme Court Civil Rules, whether contested or not;(b) applications that will result in final orders where no determination of fact or law is required;(c) uncontested foreclosure petitions.

The Master does not have jurisdiction to deal with matters that require the inherent jurisdiction of the Court. In such a case, you must set the matter down before a Justice.

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Practice Directive PD-42 Pursuant to section 11 (7) of the Supreme Court Act, the Chief Justice directs that a master is not to exercise jurisdiction:

a. to grant relief where the power to do so is conferred expressly on a judge by a statute or rule b. to dispose of an appeal, or an application in the nature of an appeal, on the meritsc. to pronounce judgment by consent where any party in a proceedings is under a legal disabilityd. to grant court approval of a settlement, compromise, payment or acceptance of money into court on behalf of a person under a legal disability, or court approval of a sale of assets of a person under a legal disabilitye. in any matter relating to criminal proceedings or the liberty of the subject other than uncontested petitions under the Patients Property Actf. to make an order holding any person or entity in contemptg. to grant injunctive relief, other than as identified under paragraph 6 of this directionh. to make an order under the Judicial Review Procedure Act or for a prerogative writi. to grant a stay of proceedings where there is an arbitrationj. to make a declaration under the Survivorship and Presumption of Death Actk. to remove a suspension from the practice of a professionl. to set aside, vary or amend an order of a judge, other than:

i. to abridge or extend a time prescribed by an order where the original order was one that a master would have had the jurisdiction to makeii. to vary the interim orders identified under paragraph 2of this direction

Matters Included in Master’s Jurisdiction (non-exhaustive) Applications: a master has jurisdiction to hear most applications under the Rules of Court. Interim orders in family law cases (guardianship, parenting arrangements, interim restraining

orders, etc) Certain final orders (orders by consent, summary judgment, striking pleadings, default judgment,

etc). Enforcement of orders by statutory bodies.

Rule 23-6(8): Appeals of Chambers Orders An appeal lies as of right to a judge of the Supreme Court in chambers (SCCR 23-6(8)). An appeal also lies to the Court of Appeal, with leave, in the case of interlocutory orders of a

justice. Final orders may be appealed as of right to the Court of Appeal.

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Evidence by Affidavit

What is an Affidavit? A document setting out the testimony of a witness relevant to the matter or application

before the Court. Affidavits are used to permit the more efficient reception of evidence, particularly (but certainly

not always) of a routine or uncontroversial nature.

Why Are Affidavits Used? Affidavits have obvious advantages over live testimony, such as:

o Witnesses can give the evidence at their convenience;o Lawyers can limit the evidence to particular, discrete points;o Court time need not be scheduled for the reception of the evidence;

Evidence can accompany applications that they support, permitting the Court to receive and consider argument and evidence all at once in advance of a hearing, making matters more efficiently dealt with.

Rule 22-2: Affidavits(1) An affidavit used in a proceeding MUST be filed.

Form and content of affidavit(2) An affidavit:

(a) MUST be expressed in the first person and show the name, address and occupation of the person swearing or affirming the affidavit,

(b) if the person swearing or affirming the affidavit is a party or the lawyer, agent, director, officer or employee of a party, MUST state that fact,

(c) MUST be divided into paragraphs numbered consecutively, and(d) may be in Form 109.

(12) Subject to subrule (13), an affidavit MUST state only what a person swearing or affirming the affidavit would be permitted to state in evidence at a trial. (13) Exception – An affidavit may contain statements as to the information and belief of the person swearing or affirming the affidavit, if

(a) the source of the information and belief is given, and(b) the affidavit is made

(i) in respect of an application that does NOT seek a final order, or(ii) by leave of the court under Rule 12-5 (71) (a) or 22-1 (4) (e).

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Affidavit Practice The PLTC Materials contain excellent guidance with respect to the preparation of affidavits

(pp. 45-56) – please be familiar with it. Supreme Court Civil Rules Form 109 is a standard form of affidavit. This form is, however, not

mandatory (SCCR 22-2(d)). Lawyers should generally avoid swearing affidavits in a matter in which they appear. Generally, testimony “on information and belief” is hearsay and cannot be evidence for a final

order. There are exceptions to this, especially with leave of the Court.

Use of Affidavits Affidavits filed in interlocutory proceedings are generally evidence only on the motion for

which they are submitted. However they can be re-introduced by the affiant for use on other motions or on the merits.

If they are not re-introduced by the affiant, they can still be used by the opposing party to impeach the affiant if he/she later appears as a witness.

Some affidavit practice tips from CEJ and Master McDiarmid Above all, facts in Affidavits must be 100% true and accurately expressed. Careful, ‘lawyerly’ or

parsed wording should be avoided because affiant will be shredded if cross-examined. Drafting affidavits requires care. Some can be sworn by your assistant, but on controversial

matters, the client should swear the affidavit. If at all possible, a lawyer on the file should not swear an affidavit. If he/she must do so with

respect to anything but trivial and routine matters, the lawyer should withdraw from appearing in Court. In any event, a lawyer should never speak to his/her own affidavit.

Too many affidavits contain useless evidence – the client may think it important, but the Court doesn’t. Avoid over-inclusion wherever possible.

Be very careful when drafting affidavits on files other than ones over which you have conduct. Ensure you have at least a cursary familiarity with the context in which the affidavit is being made.

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Interlocutory Applications

Procedural Rules for Chambers The procedures for chambers applications in civil proceedings are set out in SCCR 8-1, 8-2, 16-1

and 22-1.

How does it work? Applications to be heard in chambers are initiated by a notice of application in Form 32 for

interlocutory applications in proceedings (SCCR 8-1(3) and (4)), or by petition in Form 66 for proceedings referred to in SCCR 2-1(2) (SCCR 16-1(2)).

The Notice of Application Sets out the order sought, the factual basis, the rule, enactment or other authority for the order,

and the evidence and other material to be relied on. There is a 10-page limit (not including an appended draft order).

Rule 8-1(3): Notice of Application Rule 8-1(4): Contents of Notice of Application Rule 8-1(7): Serving the Application

Rule 8-1(9) and (10): Response to Notice of Application Rule 8-1(9): Notice of Response Rule 8-1(10): Contents of Response Any person who wishes to respond to an application must prepare an application response in

Form 33 as well as prepare any responsive affidavits needed to support the application response.

The application response will indicate, for each order sought on the notice of application, whether the application respondent consents, opposes, or takes no position with respect to such order. It will also contain a brief summary of the factual and legal bases on which the orders opposed should not be granted, and lists the affidavits and other documents on which the application respondent will rely.

The application response is subject to the same 10 page limit as the notice of application

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Reply by Applicant The original applicant may serve reply affidavits on the other parties not later than 4 p.m. on

the business day that is one full business day before the day set for the hearing (SCCR 8-1(13)). Reply affidavits should be responsive to matters raised in the application respondent’s affidavits,

and should not be used simply to put forward evidence that should have been included in the original application. It is not necessary to repeat evidence that appears already in the affidavits originally delivered with the application

Rule 8-1(15): Application Record Filed at least one day before hearing. Record contains:

(i) a title page, with a style of proceeding and the names of all lawyers who are appearing;(ii) an index;(iii) filed copies of the notice of application and any application responses;(iv) copies of every filed application and pleading and every other document (apart from a written argument) that is to be relied on at the hearing.

Rule 8-1(15)(a) and (b): Mandatory Contents of Application Record Rule 8-1(15)(c): Optional Contents of Application Record Rule 8-1(15)(d): Things it may not include. Rule 8-1(17): Serving an Application Record

Rule 8-1(16): Written Argument Supreme Court Civil Rule 8-1(16) prohibits the parties from providing any further written

arguments to the court, except in the event the application is estimated to take more than 2 hours.

This forces counsel to ‘front load’ written argument into their primary material, but can be wasteful of counsel time and the Court’s.

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Chambers Proceedings

The Hearing Civil Chambers days vary by location. Registry prepares list of all applications scheduled for the day. All applications scheduled to be heard at 9:45 a.m. You should arrive between 9:45 a.m. and 10:00 a.m. and check in with the clerk in the

courtroom. The clerk will deal with consent adjournments and confirm time estimates for applications that will proceed. This is also a convenient time for opposing counsel to discuss whether it is possible to agree about all or part of the application.

The usual practice is for uncontested applications to be heard first, then contested applications with the order of hearing determined by the time estimates (the shortest applications heard first).

Rule 22-1(4): Evidence (4) On a chambers proceeding, evidence must be given by affidavit, but the court may

(a) order the attendance for cross-examination of the person who swore or affirmed the affidavit, either before the court or before another person as the court directs, (b) order the examination of a party or witness, either before the court or before another person as the court directs,(c) give directions required for the discovery, inspection or production of a document or copy of that document,(d) order an inquiry, assessment or accounting under Rule 18-1, and(e) receive other forms of evidence.

Desk Orders No restriction on the type of order that can be by desk order. Made by filing requisition, a draft order, and supporting material (esp. evidence of consent to

order). Judge or master may grant the order, reject it, or direct that an oral hearing be conducted.

Short Leave Applications Used when matters are urgent The general jurisdiction of the court to extend or shorten time limits is found in SCCR 22-4(2);

short notice applications governed also by SCCR 8-5. The application is generally brought in a summary manner by filing a requisition in Form 17

(SCCR 8-5(2)) but may also be brought by the variation on Form 17 provided in Practice direction, Short Notice Applications – Civil (PD-20). On a short notice application, the court will

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typically fix the date and time for the main application to be heard as well as a schedule for the exchange of documents (SCCR 8-5(4))

Interim Injunctions

General Types of Injunctions A prohibitive injunction is the most common kind, and prevents a person from doing or

continuing an activity. A mandatory injunction is one that requires a person to do something positive.

The Test for Interlocutory Injunctions Commonly known as the RJR test (from R.J.R. MacDonald Inc. v. Canada (Attorney General)

(S.C.C.). The applicant must show:1. A serious question to be tried;2. Irreparable harm if the injunction were denied; and3. That the balance of convenience favours the granting of the injunction.

Mareva Injunctions An interim or interlocutory injunction that freezes the assets of a party until the substance of

the proceeding can be heard and determined by the Court. Designed to prevent the transfer, disposal or hiding of assets to frustrate any eventual order. Usually applied for ex parte.

Anton Piller Order Sometimes called a “civil search warrant”. Almost always applied for ex parte. The applicant must establish:

1. A strong prima facie case;2. Potential harm must be particularly serious;3. Convincing evidence that the responding party has relevant documents or other

evidence;4. There is a real possibility that the responding party may destroy the material prior to

disclosing it under discovery rules.

Process for Anton Piller Order The order must set out the material to be seized and institute safeguards to deal with privileged

or confidential documents or material; The order must appoint a supervising counsel, independent of the parties;

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The matter should be conducted with a sense of responsible self-restraint on the part of the applicant.

Disposition Before Trial Most Pre-Trial Resolutions are governed by Part 9

Default Judgment Triggered by the failure to file a response to a NOCC. Governed by Rule 3-8

Rule 3-8: Default Judgement(1) A plaintiff may proceed against a defendant under this rule if

(a) that defendant has not filed and served a response to civil claim, and(b) the period for filing and serving the response to civil claim has expired.

What must be filed(2) A default judgment application proceeds by way of requisition/desk order. It requires:

(a) proof of service of the notice of civil claim on that defendant,(b) proof that the defendant has failed to serve a response to civil claim,(c) a requisition endorsed by a registrar with a notation that no response to civil claim has been filed by that defendant, and (d) a draft default judgment order in Form 8.

Types of Default Judgments Final money judgment

o Amount defendant is going to have to pay Judgment for damages to be assessed

o Amount of damages cannot be properly determined at this time Detention of goods Other claims

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Rule 3-8(3) Final Money Judgment Available where the amount is “liquidated damages”: Liquidated amounts are defined in Pacific Blasting Ltd. v. Skeena Cellulose Inc. (1992), 68 B.C.L.R.

(2d) 101 (S.C.) as follows: When the amount to which the plaintiff is entitled can be ascertained by calculation, or fixed by any scale of charges or other positive data, it is said to be “liquidated” or made clear … But when the amount to be recovered depends upon the circumstances of the case and is fixed by opinion or by assessment or by what might be judged reasonable, the claim is generally unliquidated.

There must be some objective basis for the amount claimed. Can you think of some examples of liquidated damages?

o An entire value of a vehicle (supported by a receipt)o A paid service when service was not provided (supported by a contract)

Rule 3-8(5): Judgment for Damages to be Assessed The judgment is for “damages to be assessed and costs” – damages will be determined later The trial will proceed against non-defaulting defendants and on any issues not covered by the

default judgment

Rule 3-8(6): Claim for Detention of Goods Provides for an order requiring the delivery of detained goods or their value to be assessed.

o Common in maritime law

Rule 22-7(2) and (5): Motions for Non-Compliance If Plaintiff/Petitioner has failed to follow the Rules, the court may dismiss the proceeding

(SCCR 22-7(2) and (5)). An application under SCCR 22-7(5) is within the jurisdiction of a master (see Supreme Court

Practice Direction—Masters’ Jurisdiction (PD-42)). If the person in default is the defendant, respondent, or third party, the court may order that the proceeding continue as if no appearance has been entered or defence has been filed. The plaintiff is then free to take default judgment.

Should not be your first line of recourse if other party is not following rules. o Courts are reluctant to “punt” someone out of court

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Motions to Strike Pleadings

Rule 9-5: Motion to Strike Pleadings Governed by Rule 9-5. (*used to be call Rule 19-24 – still commonly referred*)

o Cheap and efficient way to get rid of a “dead-weight” or “nutty” claim

(1) At any stage of a proceeding, the court may order to be struck out or amended the whole or any part of a pleading, petition or other document on the ground that

(a) it discloses no reasonable claim or defence, as the case may be,(b) it is unnecessary, scandalous, frivolous or vexatious,(c) it may prejudice, embarrass or delay the fair trial or hearing of the proceeding, or (d) it is otherwise an abuse of the process of the court, and the court may pronounce judgment or order the proceeding to be stayed or dismissed and may order the costs of the application to be paid as special costs.

No evidence is admissible on an application under subrule 1(a). *just look at pleadings* However evidence is admissible under the other provisions of 9-5.

Standard for Striking Pleadings as Disclosing no Action or Defence: According to the SCC in Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, (considering the old rules,

practically identical):[A]ssuming that the facts as stated in the statement of claim can be proved, is it "plain and obvious" that the plaintiff's statement of claim discloses no reasonable cause of action? As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be "driven from the judgment seat". Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. Only if the action is certain to fail because it contains a radical defect ranking with the others listed in Rule 19(24) of the British Columbia Rules of Court should the relevant portion

It is not for the Court on a motion to strike to reach a decision as to the plaintiff's chances of success. It is enough that the plaintiff has some chance of success. Striking out cannot be justified because a pleading reveals "an arguable, difficult or important point of law". On the contrary, it may well be critical that such an action be allowed to proceed.

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Some Softening of the Approach o In some cases, the Court may “look behind the pleadings” to determine the validity of claims.o Difficulty? Under subrule 1(a) you are supposed to assume the pleadings are true and then see

if there is a claim.

Carten v. HMTQ 2008 BCSC 7 In Carten v. HMTQ 2008 BCSC 7, the Petitioner was claiming:

His petition alleges that, as a result of his representation of two companies seeking compensation for business losses brought about by changes the Province of British Columbia made in its bulk water export policy, the Attorney General of British Columbia, (and others) intermeddled in his divorce proceedings, attempted to have him disbarred, appointed “regime-friendly judges” to make unfavourable rulings and influences the judges of the Provincial Court of British Columbia to the extent that that court should be prohibited from any further dealings with his case. The complete particulars of Mr. Carten’s claim are set out in detail in the Petition.

Rose v. UBC et al., 2008 BCSC 166 In Rose v. UBC et al., 2008 BCSC 166, the Plaintiff claimed:The Plaintiff alleges that he has been subject to Invasive Brain Computer Interface Technology, Research, Experiments, Field Studies and Surgery conducted by the University of British Columbia, the RCMP… Microsoft Corporation… Telus, Wal-Mart, Cyber Logic, Great Canadian Gaming, the Provincial Sheriff’s Department, the Province of British Columbia and Physicians licensed by the College of Physicians and Surgeons of British Columbia.

[13] …I am satisfied that it is “plain and obvious” that the claim is bound to fail. Even allowing for inadequacies due to drafting deficiencies because Mr. Rose is self-represented, I find that it discloses no reasonable claim against any of the defendants, pursuant to Rule 19(24)(a).

[14] I also find that the pleadings are frivolous and vexatious, pursuant to Rule 19(24)(b) *now Rule 9-5*. They are without substance, groundless, fanciful, and will waste the time of the court. They are also embarrassing and prejudicial, pursuant to Rule 19(24)(c), in that they are prolix, including irrelevant facts and argument, and are constructed in such a way to make it virtually impossible for each of the individual defendants to answer the allegations made against that particular defendant, apart from by a general denial. In that regard, the fact that it does not distinguish between the various defendants insofar as the various tortious acts are alleged, nor provide particulars of when, where and how those acts are alleged to have occurred, is particularly material. It is also relevant that in the relief claimed, both in amount and in the vehicles, there is no relationship to the allegations of fact made.[15] In light of those findings, it is not necessary for me to determine if the proceeding is an abuse of process, in that it is used for an improper purpose.

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Summary Judgments A process to dispose of claims early and efficiently where the outcome is obvious, generally

with minimal evidence. The question is whether there is a legal and factual dispute that presents a genuine issue for

trial. Because it is an application for final order, affidavit evidence may not be “on information and

belief”.◦ Recall: Affidavits can include:

1) Facts and Evidence 2) Information and belief (heresay) A summary judgment application is within a Master’s jurisdiction by virtue of PD-42.

Rule 9-6(2): Summary Judgment Application by Plaintiffo Most common summary judgement After a defense is filed, the Plaintiff may apply for summary judgment if there is no legal

defence to the claim Application must be accompanied by an affidavit setting out all the facts necessary to prove the

plaintiff's claim. The defendant may counter by saying:

◦ The plaintiff’s NOCC discloses no cause of action; or◦ There is a genuine issue for trial (with supporting evidence)

The court may pronounce judgment, order a trial or accounting to determine damages etc., determine a question of law, or any other order.

SCCR 9-6(2) would also apply to a party claiming on a counterclaim or third party notice.

Rule 9-6(4): Summary Judgment Application by Defendant A Defendant may, after serving its defence, apply to the court for an order dismissing all or

part of the claim. The application must be made based on affidavits setting out facts showing that there is no

merit to the claim The court may pronounce judgment, dismiss all or part of the claim, order a trial or accounting

to determine damages etc., determine a question of law, or make any other order.◦ Assuming the facts from the plaintiff and defendant’s affidavits are both true, and that

they are compatible with each other

Summary Judgment vs. Summary Trial Summary judgment appropriate where no evidentiary dispute Summary trial may proceed even in light of evidentiary disputes, provided that the court can

justly resolve the differences without a trial Summary Trial may not be heard by a Master (PD-42)

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Summary Trial Supreme Court Civil Rule 9-7(15)(a) states that the court may grant judgment unless

(i) the court is unable, on the whole of the evidence before the court on the application, to find the facts necessary to decide the issues of fact or law, or(ii) the court is of the opinion that it would be unjust to decide the issues on the application.

o Broad discretion: is there any way, even given some conflict, that the dispute can be resolved?

Rule 9-7(5): Evidence in Summary Trial Under SCCR 9-7(5), evidence in a summary trial proceeding may be given by way of (a) affidavit;(b) an answer, or part of an answer, to interrogatories; (recall: fixed questions, fixed answers)(c) any part of the evidence taken upon an examination for discovery;(d) an admission under SCCR 7-7;(e) a report setting out the opinion of an expert if:

(i) the report conforms with SCCR 11- 6(1), or(ii) the court orders that the report is admissible even though it does not conform with SCCR 11-6(1).

Evidentiary Disputes The party moving for Summary Trial, with or without the endorsement of the other side, should

be prepared to show the Court that, if there are contradictory affidavits, how it can properly resolve issues of disputed facts on affidavit material, for example:

(i) there are admissions on discovery;(ii) there is documentary evidence in the affidavit material; or(iii) there are internal conflicts in the other party’s affidavit material.

o The court has discretion to prefer one set of facts over the other

From PLTC Materials:When confronted with conflicting evidence, the judge may find facts by weighing evidence and giving different value to it, by referring to the contents of documents, and by referring to the conduct of the parties. The court is entitled to look at all of the evidence and is entitled to resolve conflicts in the evidence. By comparison with SCCR 9-6, SCCR 9-7 is concerned with the resolution of issues rather than testing the validity of claims and defences. Supreme Court Civil Rule 9-7 gives the chambers judge much wider discretion to find facts to resolve disputed issues of facts and law. However, when the crucial issue is who said what to whom, the trial judge must consider the possibility that the case is unsuitable for summary trial (Cotton v. Wellsby (1991), 59 B.C.L.R. (2d) 366 (S.C.)).

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Rule 9-7(12): Judge May Order Cross-Examination The judge can order cross-examination, either before the court or before another person (such

as a court reporter who could prepare a transcript) (SCCR 9-7(12)). If the judge believes that the unresolved facts are narrow enough that they are likely to be

resolved by a limited cross-examination, and the judge believes that the summary trial issues can be determined once the credibility conflict has been resolved, then the judge may order cross-examination: Inspiration Management Ltd. v. McDermid St. Lawrence Ltd.

o This is a sort of limited hearing. It allows the case to be resolved without having to go to trial.

Assuming the Facts can be found: Even if the judge can find the facts necessary to determine the issues, it would be unjust to do

so (Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d) 202 (S.C.),p. 213-214). Factors that the court will assess include:

◦ the amount involved,◦ the complexity of the matter,◦ the urgency,◦ any prejudice by delaying a full trial,◦ the cost of taking the case to a full trial given the amount involved, ◦ the course of the proceedings, and◦ any other matters that arise

Other cases have considered whether the defendant can bolster its case through discovery (Bank of B.C. v. Anglo-American Cedar Products Ltd. (1984)) or if, on the other hand, the defendant has dragged its feet: Anglo Canadian Shipping Co. v. Pulp, Paper & Woodworkers of Canada (1988) and Wendeb Properties Inc. v. Elite Insurance Management Ltd. (1991)

Rule 9-7(11): Proceeding by way of Summary Trial is Opposed Supreme Court Civil Rule 9-7(11) allows a party to contest the appropriateness of a matter for

resolution on a summary trial either by preliminary application or at the hearing of the summary trial application itself.

A defendant risks having to argue the case twice: once in the application to challenge the summary trial, and then (if unsuccessful) at the Summary Trial itself.

A plaintiff risks going through the entire summary trial only to have the judge rule that a full trial is necessary.

Rule 9-7(16) and (17): If Application Unsuccessful The applicant who does not get judgment is precluded from applying further under SCCR 9-7

without leave (SCCR 9-7(16)). When the court is unable to grant judgment under SCCR 9-7, it may, nevertheless, impose terms

that have the effect of expediting the proceeding (SCCR 9- 7(17)).

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Settlementso Almost everything settles – the practice of civil litigation is largely settlements

The PLTC materials identify several stages at which a claim can be settled:(a) before commencement;(b) after commencement of the action and service of the writ and statement of claim;(c) before examinations for discovery;(d) immediately following examinations for discovery;(e) shortly before trial; and(f) during trial.

Consider also the possibility of settlement between the close of trial and the issuance of a decision.

Rule 9-2(1): Settlement Conferences If, at any stage of an action, a judge or master directs that the parties attend a settlement conference, the parties must attend before a judge or master who must, in private and without hearing witnesses, explore all possibilities of settlement of the issues that are outstanding.

A judge or master may order a settlement Conference at a pre-trial conference (SCCR 5-3(1)(o)). All proceedings are without prejudice Different judge or master from the trial judge; Parties may agree and request a particular judge; Usually judges experienced in mediation techniques; Flexible procedure

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Rule 9-1: Formal Offers to Settle o In the new rules, the courts have discretion on whether they award costso It used to be the case where costs were almost automatico This is an example of the courts using their inherent jurisdiction to change the rules

Supreme Court Civil Rule 9-1 provides a procedure by which a party may be subject to costs consequences in the event that a formal offer to settle is made but not accepted.

In order to fall within SCCR 9-1, an offer to settle must be made in writing by a party, served on all parties of record, and must contain the following sentence:

“The…[name of party making the offer]…reserves the right to bring this offer to the attention of the court for consideration in relation to costs after the court has pronounced judgment on all other issues in this proceeding” (SCCR 9-1(1)(c)). As with most offers to settle, an offer made under SCCR 9-1 is without prejudice, and the fact that an offer to settle under the rule has been made must not be disclosed to the court until all issues in the proceeding, other than costs, have been determined (SCCR 9-1(2)).

The court may consider an offer to settle when exercising its discretion as to costs (SCCR 9-1(4)), and do one or more of the following (SCCR 9-1(5)):

(a) deprive a party of any or all of the costs, including any or all of the disbursements, to which the party would otherwise be entitled in respect of all or some of the steps taken in the proceeding after the date of delivery of the offer to settle; (b) award double costs of all or some of the steps taken in the proceeding after the date of delivery of the offer to settle. (c) award to a party, in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle, costs to which the party would have been entitled had the offer not been made;(d) if the offer was made by a defendant and the judgment awarded to the plaintiff was no greater than the amount of the offer to settle, award to the defendant the defendant’s costs in respect of all or some of the steps taken in the proceeding after the date of delivery of the offer to settle.

When making an order under SCCR 9-1(5), the court may consider the following (SCCR 9-1(6)):(a) whether the offer to settle was one that ought reasonably to have been accepted either on the date that the offer to settle was delivered or on any later date;(b) the relationship between the terms of settlement offered and the final judgment of the court;(c) the relative financial circumstances of the parties;(d) any other factor the court considers appropriate.

Note that a plaintiff who accepts an offer to settle for a sum within Small Claims jurisdiction is not entitled to costs, unless the Court finds there was sufficient reason for bringing the proceeding in the Supreme Court (SCCR 9-1(7)).

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Preparation for Trial Part 12 is on Trial

Setting a Matter for Trial

Rule 12-1(2): Setting a Matter for Trial A party may set a matter down for trial by filing a notice of trial in Form 40 (SCCR 12-1(2)).

In setting a trial date, there are several considerations:(a) the length of time required for the trial;(b) the form of the trial, either judge and jury or judge alone; and(c) the availability of the parties, counsel, and witnesses.

The proper practice is to consult with all counsel involved when estimating the length of the trial. If there is a difference in estimate, it is safest to choose the lengthier estimate. While the shortest estimate may allow counsel to get an earlier trial date, it will also lead to an adjournment if a pretrial judge is of the view that the time required for the matter has been underestimated.

When setting the trial you should leave enough time to conduct the examinations for discovery. You must also build time into the schedule for any scheduling issues around anticipated

preliminary motions. If there is deposition evidence that may delay your preparation for the trial, allow enough time

to complete it.

Rule 12-3: Trial Record Skipping ahead… The party who files a notice of trial must file a trial record not more than 28 days and not

fewer than 14 days before the trial date and promptly serve a copy of the file trial record on the other parties (SCCR 12-3(3)). The trial record contains the pleadings; particulars delivered under a demand, together with the demand made; the case plan orders, if any; any order made governing the conduct of the trial; and any document required by a registrar under 12-3(2).

Rule 12-4: Trial Certificate Supreme Court Civil Rule 12-4 requires each party to file a trial certificate not more than 28

days and not less than 14 days before trial. The trial certificate must show that the party is ready to proceed, estimate the length of trial, and certify that discoveries are completed (SCCR 12- 4(3)).

If the parties fail to file a trial certificate by the deadline, the trial will be removed from the list (SCCR 12-5(5)). *this is bad – hard to get it back on the list*

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Judge vs. Jury Trial Jury Trial is rare in civil practice today – it is intense interest to small amount of individuals

Rule 12-6(2): When Not Allowed to Select Jury TrialSupreme Court Civil Rule 12-6(3) permits a party to issue a notice requiring trial by jury in all cases except those set out in SCCR 12-6(2):

(a) the administration of the estate of a deceased person, (b) the dissolution of a partnership or the taking of partnership or other accounts,(c) the redemption or foreclosure of a mortgage,(d) the sale and distribution of the proceeds of property subject to any lien or charge,(e) the execution of trusts,(f) the rectification, setting aside or cancellation of a deed or other written instrument,(g) the specific performance of a contract,(h) the partition or sale of real estate,(i) the custody or guardianship of an infant or the care of an infant's estate, or(j) a proceeding referred to in Rule 2-1 (2).

Rule 12-6(3): Selecting Trial by Jury (3) Subject to Rule 15-1 (10) and subrules (2) and (4) of this rule, a party may require that the trial of an action be heard by the court with a jury by doing the following:

(a) within 21 days after service of the notice of trial but at least 45 days before trial,(i) filing a notice in Form 47, and(ii) serving a copy of the filed notice on all parties of record;

(b) at least 45 days before trial, paying to the sheriff a sum sufficient to pay for the jury and the jury process. *fees are not insubstantial*

Can More than One Party File Notice? Yes, but why would you duplicate Notice?

o If you don’t file your own notice you are at the other side’s mercy if they decide to withdraw their notice *not beneficial if you agree with having a jury trial*

o Some believe juries are more sympathetic or easier to persuade with empathy

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Rule 12-6(5): Considerations to Deny Jury Trial (5) Except in cases of defamation, false imprisonment and malicious prosecution, a party on whom a notice under subrule (3) has been served may apply

(a) within 7 days after service for an order that the trial or part of it be heard by the court without a jury on the ground that

(i) the issues require prolonged examination of documents or accounts or a scientific or local investigation that cannot be made conveniently with a jury, (ii) the issues are of an intricate or complex character, or(iii) the extra time and cost involved in requiring that the trial be heard by the court with a jury would be disproportionate to the amount involved in the action, or

(b) at any time for an order that the trial be heard by the court without a jury on the ground that the trial relates to a fast track action or to one of the proceedings referred to in subrule (2).

Partial Jury Trials Also note that SCCR 12-1(9) and SCCR 12-5(68) allow a trial to be divided so that one portion of the trial is heard with a jury and another portion is heard by judge alone. While this is not common, it can be done so that liability will be divided from quantum and each dealt with in a different form of trial (Lord v. Royal Columbian Hospital (1982), 37 B.C.L.R.225 (S.C.)).

Organizing the Case for Trial Create a trial brief based on

◦ Your analysis of the law to be applied; and◦ The facts relevant to each legal point.◦ Start from your desired end point and build your case from there.

Consider employing case management software, particularly where:◦ A case is of high complexity, factually or legally; or◦ You routinely deal with a number of similar cases (if you represent an insurer, large

institutional client, or if you have a “standard” personal injury practice, for example).

Focus on Evidentiary Requirements We talk about the law most often in law school, but at trial it is almost always about the facts Thoroughly interview and prepare lay witnesses; Carefully prepare expert reports and witnesses; Map out cross-examinations; Use SCCR 12-5(8) if the other side possesses original documents or physical objects that you

want produced at trial. A notice to produce must be served at least two days before trial but should be served long before that.

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Case Planning Conferences Governed by Part 5 of the Rules Formerly known as Case Management Conferences – now separate and distinct Can be requested at any time after expiry of pleadings period Can be initiated by a party by filing a notice of case planning conference in Form 19 (SCCR 5-

1(1)) Can also be initiated by the Court by directing that a party request one (SCCR 5-1(2)) Usually a congenial process – both sides realize it is needed Informal and confidential process

Rule 5-1(4)-(6): Application for Case Planning Conference The parties of record must file case plan proposals in Form 20 (SCCR 5-1(6)). These proposals

indicate each party’s proposal with respect to:(a) discovery of documents;(b) examinations for discovery;(c) dispute resolution procedures;(d) expert witnesses;(e) witness lists;(f) trial type, estimated trial length and preferred periods for the trial date

Who Has Jurisdiction? Generally speaking, either a Justice or a Master may preside over a CPC and make any CPC

order permitted by the Rules (SCCR 5-2(1)). Unless it is an area excluded from a Master’s powers

Rule 5-2: Who Must Attend CPC Rule 5-2(2) says:

(2) Unless the court otherwise orders, the following persons must attend a case planning conference in accordance with subrule (3):

(a) each lawyer representing a party of record;(b) a party of record if

(i) the party is not represented by a lawyer in the action, or(ii) the party is ordered to attend by the court.

Subrule (3) indicates that those parties or counsel must appear in person at the first CPC, but may appear by phone or video at subsequent CPCs.

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Rule 5-3: Case Planning Orders Rule 5-3(3) says that a Judge or Master presiding over a CPC must make a case plan order. Under subrule (4), this must be in Form 21 and will set out any orders resulting. Rule 5-3(1) lists the Orders that can be made:

(a) setting a timetable for the steps to be taken;(b) amending a previous case plan order;(c) any order referred to in Rule 22-4 (2); (…Many more…)

Case Planning vs. Case Management Case planning conferences are governed by the rules, and do not involve the assignment of a

trial judge. Case Management is determined by the judicial assignment powers and practice directives of

the Chief Justice (PD-4), and involves the early assignment of a trial judge, who will handle case planning matters as the case proceeds to trial.

Availability Assessed Case-by-Case Prior to July 1, 2010, all cases with an estimated length of 20 days or more were assigned to a

trial judge for case management. After July 2010, the extent to which a case will require judicial management is assessed case by

case.

Procedure A party or counsel wishing to make a request for the early assignment of a trial judge must do

so in Form 19 and at the case planning conference, and must provide an explanation to the case planning judge or master of the specific reasons why the early assignment of a trial judge is warranted.

Where the case planning judge or master is satisfied that the early assignment of a trial judge is warranted, the case planning judge or master may request that the Chief Justice direct the early assignment of a trial judge in the action.

Where a Trial Judge is Assigned Where the Chief Justice directs the early assignment of a trial judge:

a. The assigned judge will preside at the trial unless unavailable or disqualified b. The assigned judge may conduct all further case planning conferences c. The assigned judge may hear applications as directed by the assigned judge.

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Criteria for Early Assignment / Case Management Complexity of factual and legal issues Scope and scale of discovery Expected number of parties and/or intervenors Urgency of the litigation Novelty of the proceedings Expected number and type of interlocutory matters to be decided

Fast Track Litigation

Rule 15-1: Fast Track Litigation The object of SCCR 15-1 is to provide a speedier and less expensive determination of the

action. This procedure applies to any action that meets one of the criteria under SCCR 15-1(1) and a party files a notice of fast track action in Form 61 (SCCR 15-1(2)).

That section applies where:(a) The total value of the claim is $100,000 or less, exclusive of interest and costs; (b) the trial of the action can be completed within 3 days,(c) the parties to the action consent, or(d) the court, on its own motion or on the application of any party, so orders.

Features of Fast Track No applications or affidavits before Case Planning Conference; 2 hour default limit on oral discovery; No jury trial; Trial within 4 months of being ‘fast tracked’; Limit on costs awards ($8000 - $11000 per party)

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Expert Witness Reports An expert witness cannot testify in court unless the expert’s direct evidence has been included

in a report that has been prepared and served in accordance with SCCR 11-6 (SCCR 11-7(1)).

Rule 11-2: Role and Duty of Expert Witnesses Duty of expert witness (1) In giving an opinion to the court, an expert appointed under this Part by one or more parties or by the court has a duty to assist the court and is not to be an advocate for any party.

Advice and certification (2) If an expert is appointed under this Part by one or more parties or by the court, the expert must, in any report he or she prepares under this Part, certify that he or she

(a) is aware of the duty referred to in subrule (1),(b) has made the report in conformity with that duty, and(c) will, if called on to give oral or written testimony, give that testimony in conformity with that duty.

Rule 11-6(1): Contents of Expert Report (1) An expert's report that is to be tendered as evidence at the trial must be signed by the expert, must include the certification required under Rule 11-2 (2) and must set out the following:

(a) the expert's name, address and area of expertise;(b) the expert's qualifications and employment and educational experience in his or her area of expertise; (c) the instructions provided to the expert in relation to the proceeding;(d) the nature of the opinion being sought and the issues in the proceeding to which the opinion relates; (e) the expert's opinion respecting those issues;(f) the expert's reasons for his or her opinion, including

(i) a description of the factual assumptions on which the opinion is based,(ii) a description of any research conducted by the expert that led him or her to form the opinion, and (iii) a list of every document, if any, relied on by the expert in forming the opinion.

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Rule 11-6(3): Service Time Constraints (3) Unless the court otherwise orders, at least 84 days before the scheduled trial date, an expert's report, other than the report of an expert appointed by the court under Rule 11-5, must be served on every party of record, along with written notice that the report is being served under this rule,

(a) by the party who intends, with leave of the court under Rule 11-3 (9) or otherwise, to tender the expert's report at trial, or (b) if 2 or more parties jointly appointed the expert, by each party who intends to tender the expert's report at trial.

Other Considerations Joint experts may be chosen by adverse parties or ordered by the Court (Rule 11-3); The Court may appoint its own expert (Rule 11-5); An expert report cannot be tendered unless it is provided for in Case Plan Order; Must be served on all parties of record at least 84 days before trial (except if appointed by

judge) (Rule 11-6(3)); If expert’s opinion changes, supplementary report must be prepared and served (11-6(6)); If a party wishes to dispute admissibility of report, must give 21 days notice before trial (11-

6(10)). If party wishes to cross-examine expert, must give notice within 21 days of service of the report

(11-7(2)).

The Trial Management Conference Counsel must schedule and attend a trial management conference at least 28 days before the

scheduled trial date (SCCR 12-2(1)). The parties must also attend the trial management conference or at least be available for consultation in person or by phone (SCCR 12-2(4) and (5)).

The judge presiding at the trial management conference may make orders respecting the conduct of the trial, including orders relating to amendments to pleadings, admissibility of documents, whether the evidence of some witnesses may be given by affidavit, imposing time limits for direct and/or cross-examinations, and prescribing a conference of expert witnesses. The full list is at SCCR 12-2(9).

Trial certificate of readiness

Letters to the Court Governed by practice directive PD-27; Should be reserved for exceptional circumstances; Addressed to Manager, Supreme Court Scheduling, referencing the case; Generally only after consultation with other counsel or parties, unless only to correct a mistake;

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No argument or submissions; Correspondence should summarize other counsel’s or parties’ views on the subject.

Differentiating Conferences

Trial Planning Conference Occurs between 14 and 28 days before the trial The trial judge presides over this conference Discrete

Case Planning Conference Occurs after the close of the pleadings period Everyone must have their chance to put in their responses and notices “gets the ball rolling” A master or judge presides over this conference Can have a sequence of case planning conferences, with multiple masters or judges It cannot be the trial judge who presides over this conference

Case Management Conference Apply for CMC at CPC CPC master or judge can recommend that a CMC judge (trial judge) be appointed All sequences of this will be presided over by the same judge

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Civil Trial Part 12 is on Trial

A Brief History of the Trial Process Early forms of dispute resolution included:

the ordeal (for instance by hot iron), the “wager of law” (by which witnesses swore an oath of a litigant’s good character), the “trial by witnesses” (where witnesses for each side were counted, and those with the

highest numbers prevailed); and Combat (either personal duelling or through “champions”).

Purpose of the Trial The early modes of “trial” have one thing in common: they attempted to impose a process to

determining a just resolution in light of irreconcilable evidence and argument. In each case, they attempt to invoke some authority – God, fate, etc. to assist the human decision making process.

The difficulty, of course, is that each is, to the extent that it is not completely random and arbitrary in outcome, subject to human manipulation.

Early Trials by Jury The first Juries in the English Kings’ courts were panels of witnesses, not impartial decision

makers, who participated in the inquiry process and reported their discoveries to the King or his judges.

This evolved gradually until juries were legally restricted to basing their decision on evidence at trial. But as late as Bushell’s Case (1670) Juries were permitted to bring their personal knowledge to bear on a decision. This led to strict rules on the admission and presentation of evidence, to prevent juries from being misled, and can be seen as the origin of many if not most of the rules of trial procedure we see today.

This period also saw the emergence of the cross-examination as one of the most valuable fact-finding tools in the legal arsenal.

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The Courts of Equity Dissatisfaction with the English Courts of Common Law, which employed restrictive pleadings

and often led to apparent injustice, led to the development of petitions directly to the King, which in turn evolved into the Courts of Equity in the 15th Century.

These courts had different procedural rules: pleadings and evidence were generally in written form, and Equity Courts did not utilize juries.

The modern procedural pathways in some ways replicate and continue the distinctions developed under the English courts of common law and equity.

The Modern Civil Trial Features of the modern civil trial in common law jurisdictions: Trial by judge or judge and jury (where jury is principal finder of fact); Ordered presentation: Plaintiff then defendant, with or without opening/closing statements; Witnesses and evidence similarly follow sequence, and each side given opportunity to test or

challenge the evidence of the other.

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JuryEmpanelling Juries – * Jury Act *

20 (1) Eight jurors must be sworn to give their verdict in the proceeding brought before them in the court.

(2) Each party is entitled to challenge any of the jurors for cause.(3) Subject to section 21, each party is entitled to challenge 4 of the jurors peremptorily.(4) If separate proceedings are consolidated or ordered to be heard at the same time before the same jury, the entitlement to peremptory challenges must be determined as if the parties to the proceedings were parties to one proceeding.(5) A judge presiding at a proceeding may direct the order in which peremptory challenges are to be exercised.

Who may/must serve? 3(1) A person is disqualified from serving as a juror who is

(a) not a Canadian citizen,(b) not resident in British Columbia,(c) under the age of majority,(d) a member or officer of the Parliament of Canada or of the Privy Council of Canada,(e) a member or officer of the Legislature or of the Executive Council,(f) a judge, justice or court referee,(g) and (h) [Repealed 2004-23-22.](i) an employee of the Legal Services Society or of a funded agency, as defined by the Legal Services Society Act,(j) a barrister or solicitor,(k) a court official,(l) a sheriff or sheriff's officer,(m) a peace officer,(n) a warden, correctional officer or person employed in a penitentiary, prison, correctional institution or youth custody centre,(o) subject to a mental or physical infirmity incompatible with the discharge of the duties of a juror,(p) a person convicted of an offence under the Criminal Code or the Controlled Drugs and Substances Act (Canada) for whom a record suspension has not been granted under the Criminal Records Act (Canada),(q) currently charged with an offence under the Criminal Code or the Controlled Drugs and Substances Act (Canada), or(r) a member of a class of persons prescribed by regulation.

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Jury Selection When your trial is before a jury, the first step in the trial will be the selection of the jury

members. The method of selection is outlined in the Jury Act. Eight jurors are chosen from a panel of sixteen. Each party has the right to four peremptory challenges without cause. The procedure is that the plaintiff will speak first with respect to the first juror called. If content, plaintiff’s counsel simply says “content”. Defence counsel will then say either “content” or “challenge”. The latter word indicates that he or she has used one of his or her four peremptory challenges. For the second person, the defence counsel will speak first, either indicating challenge or his or her satisfaction with that juror. The process continues until the jury selection is complete.

Jury Verdict 22 (1) If a jury does not reach a unanimous verdict within 3 hours from the time it retired to consider its verdict, the judge of the court may receive the verdict of 75% of those jurors. *civil cases*

(2) A verdict under subsection (1) is as binding in all respects and has the same effect as if it had been the unanimous verdict of the full jury.(3) Nothing in this section applies to any prosecution, suit or other proceeding in respect of any offence or for the recovery of any penalties or forfeitures by or on behalf of the Crown.

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Opening Submissions Under Supreme Court Civil Rule 12-5(72), the plaintiff, or the party on whom the onus of proof

lies, is permitted to make an opening statement before calling evidence. Defence counsel typically does not make an opening statement until after the plaintiff’s case is

concluded. However, some judges may ask defence counsel for an opening statement immediately after the plaintiff’s opening.

Rule 12-5(72): Order of Argument (72) Addresses to the jury or the court must be as follows:

(a) the party on whom the onus of proof lies may open his or her case before giving evidence;(b) at the close of the case of the party who began, the opposite party, if that party announces his or her intention to give evidence, may open his or her case; (c) at the close of all of the evidence, the party who began may address the jury or the court, and the opposite party may then address the jury or the court and the party who began may then reply and the court may allow the opposite party to be heard in response to a point raised in the reply; (d) if a defendant claims relief against another defendant, the defendant claiming relief may address the jury after the defendant against whom relief is claimed; (e) if a party is represented by a lawyer, the rights conferred by this rule must be exercised by the party's lawyer.

Content of Opening Submissions Must not refer to facts that will not be proved by that party’s own evidence in chief; The opening is not argument, and commentary on witnesses’ expected credibility, lofty

rhetoric or inflammatory speeches will not be permitted.

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Evidence at Trial “Trials are all about evidence”

Evidence at Trial is largely governed by Rule 12-5

Evidence at Trial: The Rules To use some methods of proof under the Supreme Court Civil Rules you must take some steps

before the trial. For example, see SCCR 7-2 (examination for discovery), SCCR 7-3 (interrogatories), SCCR 7-5 (pre–trial examination of witnesses), SCCR 7-6 (physical examination and inspection), SCCR 7-7 (admissions), SCCR 7-8 (depositions), and SCCR 12-5 *master rule* (evidence and procedure at trial).

Evidence at Trial: Process Non testimentary evidence (“real” or “documentary” evidence), must be “proved”, i.e. the

“foundation must be laid” and the item produced through a witness who will testify as to what it is. Once “proved”, it will be given an exhibit number by the clerk.

Until “proved”, the document or item may be marked “for identification”, for instance if a witness comments upon it but cannot verify its authenticity. The usual practice is to assign letters (A, B, C) to documents marked for identification only.

Reading in Examinations for Discovery Information in Discovery is not necessarily admissible at trial (i.e. hearsay). Discovery transcripts must be ‘read in’, unless by consent and leave of the court. Supreme Court Civil Rule 12-5(46) governs the use of discovery evidence at trial. Under this

SCCR, the evidence given on an examination for discovery by a party or by a person examined pursuant to SCCR 7-2(5) to (10) may be tendered in evidence at trial by any party adverse in interest, provided it is otherwise admissible.

However, discovery evidence is admissible only against the adverse party who was examined, or against specified other parties, such as against a company whose director was required to be examined (SCCR 12-5(46)).

Use of Transcripts to Impeach You might not want to read in discovery evidence if the examined party will appear as a

witness. In such a case, you can use the transcript if the answers given at trial are different from those on

discovery.

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Deposition Evidence A deposition is the recording of a witness’s evidence in advance of the trial (usually by video). Supreme Court Civil Rules 12-5(40) to (45) govern the use of deposition evidence at trial. Under

SCCR 12-5(40), a transcript or video recording of a deposition may be given in evidence at trial. Unless otherwise ordered or agreed, the whole deposition must be given in evidence (SCCR 12-5(45)), subject to objections to the admissibility of particular portions that might be raised at trial under SCCR 12-5(56).

Pre-Trial Examination Supreme Court Civil Rule 12-5(52) governs the use at trial of a pre-trial examination of a witness.

If a non-party witness has been examined before trial, the testimony recorded in the transcript may be used to contradict or impeach the testimony of the Civil Litigation witness at trial (SCCR 12-5(52)(a)). Only when the witness’ attendance at trial cannot be secured will the court allow the evidence of the witness obtained under SCCR 7-5 to be read in as direct evidence (SCCR 12-5(52)(b)). If you are allowed under SCCR 12-5(52)(b) to read in a portion of the transcript, the court may look at the whole of the transcript and rule that related parts also be put into evidence (SCCR 12-5(53)). This would normally occur as a result of submissions by opposing counsel.

At discovery you get to examine the party, but not non-parties This mirrors examination for discovery, but it is for non-party witnesses

Interrogatories An interrogatory is written questions submitted to the other party for answers Supreme Court Civil Rule 12-5(58) governs the use of interrogatories at trial. It provides that a

party may tender into evidence an answer or part of an answer given to an interrogatory. Again, the court may compel other answers that are connected to that answer to be put into evidence.

Evidence from Previous Proceedings Under SCCR 12-5(54), a transcript of sworn evidence from a previous proceeding can be put

into evidence, with permission of the court, when the witness is unable to attend or cannot be compelled to attend by subpoena. Reasonable notice of the intention to use such a transcript must be given. *not infrequent*

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Telephone or Video Evidence It’s often a good idea to permit your opponent’s witness to appear remotely. Conversely, it’s almost always beneficial to have your own witness there in person. Supreme Court Civil Rule 23-5(4) allows a party to apply, or the court to direct, that an

application be heard by way of telephone or videoconference. Telephone or video conferencing can be used whenever appropriate, to reduce or avoid movement of witnesses and to speed the progress of cases.

“Real” Evidence A party may require any other party, by a notice delivered at least two days before trial, to

bring to trial any specific object which the party contemplates tendering at trial as an exhibit (SCCR 12-5(8)). Under SCCR 12-5(36), a party can subpoena any person who is not a party or a representative of a party to bring to trial any specific object that the party contemplates tendering as an exhibit.

No plan, photograph or object can be put into evidence at trial, without the consent of all parties or a court order, unless all parties have been given an opportunity to inspect the photograph, plan or object at least 7 days before the start of trial (SCCR 12-5(10)).

These rules also apply to documentary evidence.

Documentary Evidence May be used to prove its existence and/or use; or May be used to prove truth of its contents, if it is subject to a hearsay exception.

o Business records are a particular category of documentary evidence. Special rules apply to them. A business record is admissible if made or kept contemporaneous with the event recorded and in the ordinary course of business (i.e., not in contemplation of litigation) (Evidence Act, R.S.B.C. 1996, c.124, s.42).

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The Lay Witness A lay witness is anyone not qualified as an expert for the area being questioned

o i.e. a doctor can be a lay witness, despite being a medical expert, if they are not there to give medical expertise

Under SCCR 12-5(27), a witness at trial must testify orally in open court unless otherwise agreed by the parties.

A lay witness is not permitted to testify unless that witness is listed in a witness list served pursuant to SCCR 7-4 (SCCR 12-5(28)).

Subpoena to a Witness Generally*Evidence at Trial is Rule 12-5*(31) A party of record may prepare a subpoena and serve it on any person. (32) A subpoena must be in Form 25 and may contain any number of names. (33) A subpoena need not be filed in or bear the seal of the court. (34) A subpoena must be served and, if an affidavit is filed for the purpose of proving the service, the affidavit must state when, where, how and by whom service was effected. (35) A person served with a subpoena is entitled to tender of the proper fees at the time of service.

Order setting aside subpoena (39) A person who has been 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 a hardship on the person, and the court may make any order, as to postponement of the trial or otherwise, it considers will further the object of these Supreme Court Civil Rules.

Failure of witness to attend, etc. (38) On proof

(a) of the service of a subpoena on a witness who fails to attend or to remain in attendance in accordance with the requirements of the subpoena, (b) that proper witness fees have been paid or tendered to that witness, and(c) that the presence of that witness is material to the ends of justice,

the court, by its warrant in Form 46 directed to a sheriff or other officer of the court or to a peace officer, may cause that witness to be apprehended and promptly brought before the court and to be detained in custody or released on terms the court may order, and the court may order that witness to pay the costs arising from his or her failure to attend or to remain in attendance.

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Order of Witnesses There is a great degree of flexibility in the order in which you call witnesses. It may be that you

are unable to call a particular witness during your portion of the case but that opposing counsel will agree to interrupt his or her case so that you may call that witness then. Do not be reluctant to explore these possibilities with opposing counsel before the case so as to deal with matters effectively and expeditiously.

Direct Examination May lead on non-controversial matters Thorough preparation is key May follow up an open question with one to focus the witness on a particular issue.

McEachern’s views:It is not leading, after asking a general question (i.e., “Tell us what the defendant said about the quality of these horse chestnuts”) to direct the attention of the witness to any particular matter the witness may have left out of his or her general answer (i.e., “Did he say anything about the coefficient of chestnut expansion?”). The purpose of the rule against leading is to let the witness tell his or her own story, but not to restrict the witness only to whatever he or she blurts out in a first response to a general question.

Cross-Examination Read Francis Wellman, ‘The Art of Cross-Examination’ and ‘Day in Court’ As brief as possible, as long as necessary Instruct your own witnesses not to prevaricate, hedge, or try to guess where the examining

counsel is heading with the questions

Re-Examination You will only be able to re-examine on matters that arise out of the cross-examination but which

were not canvassed in any way on direct examination. It is not proper simply to try to restate the evidence already given in direct examination, nor can you lead your witness in reexamination any more than you could in the direct examination.

It may be that at the close of cross-examination you will realize that you have overlooked a portion or piece of evidence during the direct examination. If it is important, do not simply let the witness be excused, but raise it with the judge and ask leave of the court to bring that evidence out. Opposing counsel will, of course, have a right to make submissions concerning that, and, should the question be allowed, will have a right to cross-examine.

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“Re-cross-examination” Per McEachern CJBC:

There is no right to re-cross-examine unless leave was given to expand the scope of re-examination. If something must be said, state the question to the court, ask for leave to carry on, and let the judge decide what should be done. Judges do not like re-cross-examination because it may lead to another re-examination, and so on.

Discussions with Witnesses During Breaks – Per McEachern CJBC (a) Counsel must not discuss the evidence in a case with a witness or request or permit anyone else to do so, during cross– examination. This is an absolute prohibition. Discussions about other matters in the case, such as arrangements for the attendance of other witnesses, etc., are not prohibited, but they are dangerous. It is wise to avoid any discussion at all.(b) There is some uncertainty about the right of counsel to discuss the evidence a witness is to give in re–examination. It is permissible, but dangerous as it may affect credibility. The preferred view is that it should only be done after advising the court of such an intention (see (1989) 47 the Advocate 237 and (1990) 48 the Advocate 565)).(e) When a witness has completed his or her evidence, the witness should remain in the courtroom unless excused, and he or she should be instructed by counsel not to discuss the evidence with remaining excluded witnesses. (f) It is part of counsel’s responsibility to warn his or her witnesses under cross– examination not to discuss their evidence with anyone during adjournments.

Experts More and more often, trials are being won on “opinion evidence” of experts If proper notice is given, an expert’s qualification may be called into question as a first phase of

the witness’s evidence. If the challenge is unsuccessful, then the witness will be examined and/or cross-examined.

Preparation to Cross-Examine Experts There are two main strategies with respect to experts: *both requires preparation*

o “go short” and try to get something that helps your case, then sit down; oro “go long”, and try to take on the witness’s evidence head-on.

Examples from A Cruel Arithmetic: Beaman and Shackleford. o Shackleford – Expert on spousal violence

Was also an evolutionary psychologist – used “go short” methodo Beaman – Expert in religious studies and sociology

Articles referenced were not actually relevant – used “go long” method

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Other Evidence A court may order that evidence of a fact or a document may be presented at trial “in any

manner”, including evidence on information and belief (hearsay), documents or entries in books, copies of documents or entries in books, or by a publication which contains a statement of fact (SCCR 12-5(71)). Supreme Court Civil Rule 12-5(71) is designed to give the court considerable scope in admitting evidence. However, the court will read the SCCR subject to the laws of evidence.

Objections Use your power to object very sparingly, and only when permitting the wrongful questioning to

persist would be abusive or prejudicial. Method: Usually enough to simply stand; examining counsel should then sit. You then voice

your objection concisely, then opposing counsel may respond.

Berger’s Thoughts on Hearsay Objections The hearsay rule is much misunderstood. There are many, many things that someone may have

said to a witness, that the witness can repeat in court. What was said is hearsay only if it is introduced to prove the truth of what was said. I am not talking about exceptions to the hearsay rule. I am talking about whether a statement made out of court to a witness is hearsay at all. If it is not hearsay, then the fact that it was said may be relevant in any number of ways. But the first thing to decide is whether it is hearsay at all. How many times have I heard counsel say to his or her own witness, who has innocently referred to something said by someone outside the courtroom, “Stop, you can’t tell us what anyone said to you”? There is no such rule.

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No Evidence and Insufficient Evidence Motions *Evidence at Trial is Rule 12-5*

No evidence application (4) At the close of the plaintiff's case, the defendant may apply to have the action dismissed on the ground that there is no evidence to support the plaintiff's case.

Defendant need not elect whether to call evidence (5) A defendant is entitled to apply under subrule (4) without being called on to elect whether or not to call evidence.

Insufficient evidence application (6) At the close of the plaintiff's case, the defendant may apply to have the action dismissed on the ground that the evidence is insufficient to make out the plaintiff's case.

Defendant must elect not to call evidence (7) Unless the court otherwise orders, an application under subrule (6) may be made only after the defendant has elected not to call evidence.

The Tests The test on a ‘no evidence’ application (also called a ‘non-suit’) is a question of law: whether

there is any evidence addressing the legal issues. The test on ‘insufficient evidence’ is one of fact: is there sufficient evidence to establish a prima

facie case. In order to make this application, the Plaintiff must elect not to call any evidence. In order to make this election, the defendant must waive its right to an opening statement.

Rebuttal Evidence At the end of the defendant’s case, the plaintiff may have the right to call rebuttal evidence.

The rule is similar to that in re-examination. The evidence on rebuttal must be something that is new and arises from the defendant’s case. If it is something that could have been anticipated, do not wait to try to deal with it in rebuttal because the court may properly rule that you are attempting to “split your case” and prevent you from leading any rebuttal evidence.

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Practice Points

Closing Submissions Once all the evidence is in, you can make written and oral closing submissions. Keep your

written closing submissions down to ten pages or less on a trial lasting five days or less. From five to 10 days, no more than 20 pages. For trials of more than 10 days, the length should be no more than 30 pages. Edit and re–edit.

Rule 22-8: Contempt Power of court to punish (1) The power of the court to punish contempt of court must be exercised by an order of committal or by imposition of a fine or both.

Corporation in contempt (2) If a corporation wilfully disobeys an order against the corporation, the order may be enforced by one or more of the following:

(a) imposition of a fine on the corporation;(b) committal of one or more directors or officers of the corporation;(c) imposition of a fine on one or more directors or officers of the corporation.

How it Works Proceedings against a party or other person for contempt are very serious, quasi-criminal

accusations, and they should not be lightly taken. Rule 22-8 sets out the procedure for bringing a contempt application before the Court. There is a distinction between civil and criminal contempt and a wide body of jurisprudence with

which you should become familiar if you ever are tempted to bring this kind of application.

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Dealing With Judges Approach the Court with a posture of “respectful equality” (Scalia & Garner); never fawning or

subservient. Until the practice changes, the proper ways to address the Supreme Court and Court of Appeal

are: Your Lordship, Your Ladyship; My Lord, My Lady; Yes, My Lord; No, My Lord, etc.

Outside the courthouse, or its precincts, a judge need not be addressed as “My Lord”, “My Lady”, or “Your Lordship”, etc., particularly in a loud voice in a crowded elevator! “Chief Justice”, “Mr. Justice”, “Madam Justice”, “Judge”, “Sir”, or “Madam” are proper and acceptable out of court.

Dress and Deportment Not really an issue in a proper trial (i.e. when gowned) In other types of hearings, pay close attention to what you wear.

Rule 16-1: Adjudication of Petitions Petition proceedings are conducted in chambers, by affidavit, in a manner similar to a summary

trial. The Court has discretion to insert some trial-like procedures into the hearing of petitions, but

this is rarely done. If questions of fact are seriously in issue, then the Court may convert the petition to an Action.

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Judgments, Costs, Interest

Judgments, Reasons and Orders Judgment – global term for the decision of the Court Reasons (or ‘reasons for judgment’) the explanation of the decision, either in written or oral

form Order – the essence of the judgment, the formal expression of the ruling of the Court

A transcript may be ordered, for a fee, by submitting a written request to the In-Court Technologies department at the registry from which the judgment was delivered.

The request must state the action number, the full style of cause, the date of judgment and the name of the judge or master.

The transcript will be prepared by an authorized transcription company and submitted to the court for review by the judge or master who heard the matter. The final version will be signed by the judge or master and placed in the court file. A copy of the approved transcript will be provided to the person who requested the transcript.

Oral Judgments May be given at the conclusion of the hearing or at a later date Recorded but are not automatically transcribed Judges may invite parties to make brief submissions regarding aspects of the Order and modify

accordingly

Written Judgments The more usual process is that judgment is reserved and released in written form from the

registry (now usually emailed to parties or counsel of record) Posted on court’s website (subject to publication restrictions)

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The Order Governed by Rules (principally Rule 13-1) and Forms and Practice Directive PD-26 An order “speaks” from the time it is pronounced (“made”), not from the date of its signature

(when it is “entered”).

PD-26 Orders made following appearance in chambers

1. An order submitted to the registry for entry following an appearance in chambers will be checked by the registrar against the clerk’s notes. 2. If the order submitted corresponds to the clerk’s notes and is not otherwise questioned by the registrar, the registrar will sign and enter the order. 3. If the order submitted to the registry does not correspond to the clerk’s notes or is otherwise questioned by the registrar, the order must be approved by the judge or master before the order is entered.

Orders made after a trial 4. An order made after a trial must be approved by a judge before the order is entered.

Orders made pursuant to written reasons for judgment 5. An order made following the issuance of written reasons for judgment by a judge or master, must be approved by the judge or master before the order is entered.

An order should be governed by two basic principles:(a) it must accurately reflect the court’s decision (see Practice Direction—Orders, PD-26);

and(b) it should speak for itself, so that any reader (party, counsel, judge, police, interested

public, etc.) can understand its meaning, without referring to other materials.

Drafting and Entering Orders may be drafted by either party, but customarily by the winner

o Unless the winner is self-represented Must be approved as to form by parties/counsel prior to filing (unless excused by Court) Reviewed and signed off by trial judge, then are considered “entered”

Jones’s practice guidance: As long as necessary, as short as possible; Must not contain argument or reasoning.

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Settling Terms of an Order Counsel must not refuse to endorse an order without good reason Application can be made to Court to settle or clarify terms (may result in supplementary reasons

or corrigendum)

Reopening After judgment but before entry: new submissions for reconsideration may be made based on

new evidence and potential miscarriage of justice. Rare. After order is entered, only in accordance with the “slip rule” or if a gross miscarriage of justice

has occurred. Extremely rare.

Appeals Appeals are from orders, not from reasons Only if the order is wrong, can you appeal it Only a person who has ‘lost’ the order may appeal – successful parties, or those unaffected by

the order, may not appeal simply because they didn’t agree with the judge’s reasoning.

Interest The governing principle of the Court Order Interest Act, R.S.B.C. 1996, c. 79 (the “Act”), is that

interest on damages is to be awarded to the successful litigant as compensation for the loss of the use of money.

Prejudgment Interest Generally awarded at rates set by district Registrars Special damages attract interest after the loss was incurred (i.e. medical expenses) General damages attract interest from the date the cause of action arose.

Postjudgment Interest Section 7 of the Court Order Interest Act, R.S.B.C. 1996, c. 79 provides that money judgments

will bear interest at an annual rate that is equal to the prime lending rate of the banker to the government of Canada. The governing rates will be set on January 1 and July 1 of each year, and those rates will prevail for the ensuing six months.

Under s. 8 of the Act, the court has the power to vary the rate of interest or fix a different date from which interest is to be calculated.

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Costs Part 14 is on Costs

Why Cost-Shifting? The Court of Appeal in Giles v. Westminster Savings and Credit Union 2010 BCCA 282:

In addition to indemnifying a successful litigant, those purposes have been described as follows by this Court:

“[D]eterring frivolous actions or defences”: Houweling Nursuries Ltd. v. Fisons Western Corp. (1988), 37 B.C.L.R. (2d) 2 at 25 (C.A.), leave ref’d, [1988] 1 S.C.R. ix;

“[T]o encourage conduct that reduces the duration and expense of litigation and to discourage conduct that has the opposite effect”: Skidmore v. Blackmore (1995), 2 B.C.L.R. (3d) 201 at para. 28 (C.A.);

“[E]ncouraging litigants to settle whenever possible, thus freeing up judicial resources for other cases: Bedwell v. McGill, 2008 BCCA 526, 86 B.C.L.R. (4th) 343 at para. 33;

“[T]o have a winnowing function in the litigation process” by “requir[ing] litigants to make a careful assessment of the strength or lack thereof of their cases at the commencement and throughout the course of the litigation”, and by “discourag[ing] the continuance of doubtful cases or defences”: Catalyst Paper Corporation v. Companhia de Navegação Norsul, 2009 BCCA 16, 88 B.C.L.R. (4th) 17 at para. 16.

These are all methods of deterrence for preventing cases from going to trial that don’t need to, or can be settled outside court

In the US they don’t have cost-shifting

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Some Common Costs Terms and Their Meaning Solicitor and Client basis: costs payable as full reimbursement for legal fees paid by a party to

their lawyer. Party and Party costs: costs payable as partial indemnity under the scales set out in the rules. Tariff: the fixed scale of costs payable (now under Appendix B of the Rules). Special Costs: An amount higher than the tariff costs. Disbursements: amounts paid by a party which were necessary for the conduct of the litigation

and thus are recoverable. Judgment with costs: The party in whose favour judgment is given will have the assessed costs

of the proceeding. No order as to costs: Neither party receives any costs (each party bears his or her own costs). Costs thrown away: When one party has forced another party to take a wasted step in the

proceeding, or when a party successfully applies to set aside a judgment or order (e.g., a default judgment) properly obtained by the other party, the application may be granted on terms that the party seeking the order pay the costs unnecessarily incurred (or “thrown away”) by the other party.

Costs in the cause: The costs of an application will be recoverable by the party who succeeds at the end of the action.

o The party who is awarded costs after the hearing or trial will recover the costs relating to the interlocutory application in question but will not recover them if not successful.

Costs in any event or Costs in any event of the cause: On an interlocutory application, the party to whom such costs are awarded will have those interlocutory costs, no matter who succeeds in the action. However, costs awarded on this basis typically are assessed once the entire proceeding has concluded. *strong signal from court that application shouldn’t have come*

Costs payable forthwith: In limited circumstances the party to whom interlocutory costs are awarded may have the interlocutory costs assessed immediately (i.e., before the final outcome of the proceeding has been determined). Unless an interlocutory order states that costs are payable forthwith, they can usually only be assessed at the end of the entire proceeding (SCCR 14-1(13)).

Rule 14-1(15): Costs Generally Costs, by default, “follow the event”. But what is the event? SCCR 14- 1(15) provides:

“The court may award costs (a) of a proceeding, (b) that relate to some particular application, step or matter in or related to the proceeding, or (c) except so far as they relate to some particular application, step or matter in or related to the proceeding and in awarding those costs the court may fix the amount of costs, including the amount of disbursements.”

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Rule 14-1(9): Who Gets Costs from Whom Costs in the proceeding generally are almost always paid at the conclusion of the case. They are

governed by rule (9):(9) Subject to subrule (12), costs of a proceeding must be awarded to the successful party unless the court otherwise orders.

“Success” is often not perfectly straightforward. The Courts have instead allowed costs where there has been “substantial success”, defined as success in ¾ of the matters in dispute (though failing to prove an essential element of a claim is fatal to “success” for costs purposes).

The rules are silent on apportionment of costs; the default is that unsuccessful opposing parties will be jointly and severally liable for the other side’s costs. The practical reality is that apportionment is generally negotiated.

What if the Judgment is Silent on Costs? The Registrar may enter an order that includes costs pursuant to subrule (9). If the party against whom costs will be assessed does not agree costs should be ordered, it

may apply to the Court prior to an order being entered for direction on costs. If an entered order is silent on costs, then the Court is deemed to have ordered no costs.

Costs are Discretionary The award of costs is always subject to the overall discretion of the Court. Where a party misconducts itself during litigation, costs may be denied. See the cases in Walker readings for some exploration of factors relevant to exercise of the

discretion. Courts may apportion costs between successful/unsuccessful parties, but this is rare. Usually a

‘no costs’ order is issued instead. Parties may have the costs against them set off by amounts payable by other parties.

Some Main Exceptions to Cost Shifting Small claims jurisdiction (subrule (10)); Offer to settle (Rule 9-1) General jurisdiction of the Court to reverse or negate costs awards (subrule (9)) Class Proceedings Act proceedings; *we will deal with Class Actions in another lecture*

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Costs for Self-Represented Litigants A party need not have incurred an obligation to a lawyer before claiming costs. Specifically,

since Skidmore v. Blackmore (1995), 2 B.C.L.R. (3d) 201 (C.A.), nonlawyer litigants have been entitled to claim costs not limited to disbursements.

Self represented parties are not entitled to lesser costs than parties represented by a lawyer: Harrison v. British Columbia (Information and Privacy Commissioner), 2008 BCSC 979.

Nor is a party disentitled to costs solely because the lawyer who represented the party is also an employee of the party (SCCR 14- 1(11)).

Rule 14-1(10): Recovery is in Small Claims Jurisdiction Under SCCR 14-1(10), a plaintiff who recovers an amount within the jurisdiction of the Small

Claims Court is not entitled to costs (other than disbursements) “unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.”

Why would someone do this then? Precedent setting case, declaratory judgment, or injunction

Rule 15-1(15): Costs in Fast Track Litigation Subject to SCCR 14-1(10), costs in proceedings under SCCR 15-1, the fast track litigation rule, are

—unless the court orders otherwise or the parties consent—determined in accordance with SCCR 15-1(15).

Under SCCR 15-1(15) a party is entitled to $8,000, exclusive of disbursements, if the hearing of trial required one day or less to $9,500 if it required more than one day but less than two days; and to $11,000 if it required more than two days.

Ordinary Costs 1. Scales of Costs Effective January 1, 2007, Appendix B was amended so that scales A, B and C replaced former

scales 1 to 5. As with the former scales, each of these scales fixes a dollar value per unit upon which the items in the tariff are assessed: A is $60 per unit, B is $110 per unit and C is $170 per unit. Scale A is to be used for matters of “little or less than ordinary difficulty” and scale C is for matters of “more than ordinary” difficulty. In the absence of a court order or agreement otherwise, scale B applies. Scale B is for matters of ordinary difficulty.

When fixing the scale, the court may take into account the following:(a) the difficulty of the issue of law or fact;(b) the importance of the question to a class or body of persons; and(c) whether the decision effectively determines the issue between the parties (beyond the relief actually granted or denied)

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Rule 14-1(5): Disbursements (5) When assessing costs under subrule (2) or (3) of this rule, a registrar must

(a) determine which disbursements have been necessarily or properly incurred in the conduct of the proceeding, and(b) allow a reasonable amount for those disbursements.

Reasonable and Proper Disbursements Some examples:

◦ Reasonable and necessary travel and accommodation of parties, witnesses, lawyers, etc.;

◦ Photocopying and reproduction services;◦ Trial transcripts necessarily ordered;◦ Medical and other tests necessarily performed;◦ Experts’ fees if the expert has no interest in the litigation;◦ The fees of other necessary consultants.

Increased Costs However, as of January 1, 2007, s. 2(4.1) (now s. 2(5)) of Appendix B allows a court to order that

the a value of units be set at 1.5 times the value that would otherwise apply if, after fixing the scale of costs applicable to a proceeding, the court finds that, as a result of unusual circumstances, an award of costs on that scale would be grossly inadequate or unjust.

According to subsection 2(6) of Appendix B, a award of costs is not to be considered grossly inadequate or unjust merely because of the disparity between the actual legal expenses and the cost that would be fixed under Scales A, B or C

Process for Obtaining Costs Draft and send bill of costs in Form 62 If possible, obtain consent or negotiate mutually acceptable amount. Responding party may make an offer to settle a bill of costs, for a specified amount, in Form 123

(Appendix B, s. 8). If there is no consent, the party seeking a costs assessment must obtain an appointment from

the registrar in Form 49, and serve a copy of the appointment, together with the bill of costs and any affidavit in support, to the party against whom the costs are to be assessed and to every other person whose interest may be affected (SCCR 14-1(25)). The lawyer must give five days’ notice (SCCR 14-1(21)(c)).

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Security for Costs Courts retain a broad discretion to require a party to pay into court an amount as “security” for

an adverse cost award that might be made against it. This will be exercised sparingly (for factors, see Seckel at 559-560 and cases et seq.)

Special Costs Special costs are awarded for conduct during the litigation that is “reprehensible” or

“deserving of reproof or rebuke”: Ip v. ICBC. This might include:◦ Taking steps to unnecessarily prolong or complicate the case;◦ Deception or fraud;◦ Unfounded allegations of a particularly serious nature (professional misconduct,

criminal activity, bad faith, etc.) In (very) rare instances, special costs can be awarded for pre-litigation conduct. Special costs may be awarded notwithstanding that the successful applicant did not actually pay

the legal fees in question.

Claiming Special Costs A bill for special costs is presented in the same form as a bill between a lawyer and the lawyer’s

own client under the Legal Profession Act and the registrar’s assessment of special costs proceeds in a manner similar to a registrar’s review of a bill under the Legal Profession Act. A court order may require the assessment of a party’s special or “reasonable” costs.

Supreme Court Civil Rule 14- 1(3) provides that special costs will be those fees that the registrar considers were proper or reasonably necessary, judged objectively, to conduct the proceeding. Expert opinion is sometimes needed to address the issue of reasonableness.

Costs on Judicial Review and NCQ The ordinary rule is that the tribunal will not be liable for costs unless it oversteps the bounds

of proper response (i.e. by arguing more than its jurisdiction and straying into the merits). Similarly, the Attorney General is not liable for costs when appearing pursuant to the JRPA, but

if she represents the tribunal may be liable if the tribunal is: Lang v. British Columbia Sup’t Motor Vehicles.

Similarly, costs are not generally awarded either in favour of or against the Attorney General appearing in response to a Notice of Constitutional Question under the Constitutional Question Act.

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Costs Against Non-Party Courts have discretion to award costs against a non-party, especially one that is the “real

litigant”, or is champertous: Young v. Young or otherwise using the litigation for improper or fraudulent purposes.

Costs awards against Intervenors are within the discretion of the Court, but practically speaking are never made (nor are awards in favour of intervenors).

Practice Tips 1. Ensure clients understand the costs implications of losing or rejecting a "reasonable" offer to settle. Lawyers and judges often struggle with costs concepts and so laypersons who are clients need to have the concept of "costs" spelled out. This is especially so where, as counsel, you may need your client to provide info (documents) to avoid a costs disaster arising from a failure to fully disclose. (In the gov’t context see, e.g., Carrier Lumber). One may wish to make a formal offer to settle early in litigation owing to the costs implications of refusing a reasonable offer.

2. Even where costs are written into the rules an order for costs is a purely discretionary decision and so the inherent jurisdiction allows a court to be very creative with costs.

3. The point under #2 means that a costs order against is very challenging to appeal successfully, arising from the deference owed to trial courts in the exercise of discretion.

4. In appropriate circumstances costs may be ordered against counsel in his or her personal capacity.

5. Beware of arguing for a departure from the normal costs rules (ie, costs follow the event at the ordinary scale) by alleging misconduct by the opposing party unless you've got plain and obvious reason for doing so. An allegation of misconduct that is unproven may cause a judge to rebuke counsel's allegation by imposing a costs sanction against the complaining party.

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Class Action

What is a Class Action? A lawsuit in which a number of parties (usually plaintiffs) with similar factual circumstances

and legal positions are permitted to litigate collectively, through the auspices of a party deemed the “representative” of the entire class .

The Purposes of a Class Action – “According to Jones” The principle purpose of class actions is to control the systemic risks of business enterprises. The secondary purpose is to provide compensation for victims of systemically risky behaviour.

How it Works Class actions work by giving the plaintiffs that the defendants enjoy as a matter of course. Purpose of Tort Law: to deter negative behaviour and compensate victims

o Jones: “primary purpose is overwhelmingly deterrence”o “compensation without deterrence is just an insurance scheme”o “compensation is meant to internalize the harm with the defendant”

Economic Theory of Tort Deterrence Deterrence functions by forcing defendants to internalize the actual cost of the harm. If defendants are ‘charged’ too little for their harm, then it is ‘externalized’ through victims to

society. If defendants are punished too harshly, they will be “over-deterred” and economic activity will

be suppressed and suboptimal.

An Economic Model of Class Action Settlement Assumptions:The standard model of litigation settlement holds that the defendant’s “maximum offer” will be the expected judgment amount plus litigation costs. The plaintiff’s “minimum demand” will be the judgment minus litigation costs. In ordinary circumstances, the parties will settle on average at the mean point between the maximum offer and minimum demand.

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Settlement in a Single Claim Assume the expected value of any individual claim is $300 (i.e. a certain claim for that amount, or a 50% probability of recovering $600, etc.). Further suppose that defendant’s litigation costs and plaintiff’s are identical at $200 for a single claim. The standard formula for settlement would indicate that a plaintiff’s minimum position will be the probable recovery minus litigation costs, or for a single claim, $100. The defendant’s threshold bargaining position (above which he has no incentive to go) will be the probable recovery plus litigation costs, or $500. All else being equal, the claim will settle for the “correct” amount for deterrence purposes, $300.

Individual Claims are Inefficient To the Detriment of Plaintiffs

1 2 3 4 5 6 7 8 9 10050100150200250300350400450500550600Fig. 1 Settlement Outcomes in Multiple In-

dividual ClaimsProbable Re-covery at TrialDefendant's Bargaining PositionPlaintiff's Bar-gaining PositionPredicted Set-tlement

Number of Claims

Valu

e in

Dol

lars

In a Multiple Claims Tried Individully, Defendants Have Advantage The defendant can be seen as the hub of a wheel, with spokes leading to multiple claims. The defendant can make use of economies of scale. Legal research, strategies, expert reports,

etc. can all be used across a spectrum of claims at little or no extra cost. Thus per-cost litigation claims in mass tort cases are lower for defendants than for plaintiffs.

Aggregate Claims Provide Equal Efficiencies to Plaintiffs and Defendants

1 2 3 4 5 6 7 8 9 100

100

200

300

400

500

600Fig. 2 Settlement Outcomes in Aggregated Claims

Probable Recovery = Settlement Amount

Defendant's Bargaining Posi-tion

Number of Claims

Valu

es in

Dol

lars

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Ironically, the defendant’s legal costs, their position, improves with the more people they have hurt when

multiple claims are tried individually.

Class action succeeds to the extent that the

efficiencies of the plaintiffs are now

equal to those of the defendants.


Brief History of Class Action

Naken v. General Motors The 1992 Ontario legislation developed as a result of a product liability case, Naken v. General

Motors Canada Ltd. in which the Supreme Court of Canada refused to allow a representative action on behalf of owners of General Motors' Firenza automobiles to move forward as a class action.

Class actions had already existed in the US, but all we had in Canada were representative actions Someone tried to bring a class action under the representative actions rules – SCC said no, it is

up the legislators whether we want to have class actions in Canada

1982 Report OLRC The 1982 Ontario Law Reform Commission Report on class actions identified three major goals of a class action regime:

a) Judicial efficiency;b) Increased access to courts; andc) Behaviour modification.

The 1993 Ontario Act The Act creates no new cause of action. It is entirely procedural. The Act provides for the certification of class, actions and the procedural framework for

prosecution of those claims including rules with respect to notice, settlement, counsel fees, opting-out, etc.

The Act gives the Court broad powers of case management and the ability to use the mandated procedure to obtain just and expeditious results.

The Act creates a very effective tool for advancing product liability claims affecting a large number of plaintiffs.

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Bringing a Class Action

How it Works A proposed class action claim is instituted through the normal route of issuance of a Notice of

Civil Claim. Such action must, however, be certified by the Court as a class proceeding before it can take advantage of the procedures available for class action claims.

In the event that the certification test is met, certification is mandatory.

Test for Certification Each Province’s Act sets out the test for certification of a claim:

a) The pleadings or the notice of application discloses a cause of action;b) There is an identifiable class of two or more persons that would be represented by the representative plaintiff or defendant,c) The claims or defences of the class members raise common issues;d) A class proceeding would be the preferable procedure for the resolution of the common issues; ande) There is a representative plaintiff or defendant who, (i) would fairly and adequately represent the interests of the class. (ii) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and (iii) does not have, on the common issues for the class, an interest in conflict with the interests of other class members.

The Acts indicate that the Court shall not refuse to certify a class proceeding solely on any of the following grounds:

a) The relief claimed includes a claim for damages that would require individual assessment after determination of the common issues. b)The relief claimed relates to separate contracts involving different class members. c) Different remedies are sought for different class members d) The number of class members or identity of each class member is not known. e) The class includes a sub class whose members have claims or defences that raise common issues not shared by all class members.

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Cause of Action on the Pleadings The test for finding a cause of action involves an assumption that the facts as set out in the

Statement of Claim can be proved, or whether it is "plain and obvious" that the Statement of Claim discloses no reasonable cause of action. The threshold is therefore very low, consistent with the applicable test under Rule 21 of the Rules of Civil Procedure where a Statement of Claim is being attacked as not disclosing a cause of action.

Identifiable Class of Two or More Persons Unlike the United States, there is no “numerosity” requirement in the Canadian statutes. A class

may consist of only two persons. It is not necessary that the actual identity of all members of the class be known in order to

satisfy the requirement that the class be identifiable. The purpose of the class definition is three-fold:

1. It identifies those persons who have a potential claim for relief against the defendants;2. it defines the parameters of the lawsuit so as to identify those persons who are bound by its

result;3. It describes who is entitled to notice pursuant to the Act.

A Sample Class Definition One of the earliest class actions certified in Ontario, Bendall v. McGhan Medical Corp.4 leave to appeal to CA refused (November 26, 1993), was a products liability claim where the class was defined as:

All persons who have had silicone gel breast implants placed in their bodies, whose implants were manufactured, developed, designed, fabricated, sold, distributed or otherwise placed into the stream of commerce by the named defendants.

Common Issues A class action cannot exist without a core element of commonality. That commonality is

inextricably linked with the causes of action pleaded. The common issues need not predominate. "Common Issues" are defined as:

◦ Common but not necessarily identical issues of fact, or,◦ Common but not necessarily identical issues of law that arise from common but not

necessarily identical facts. It is not necessary that common issues raise questions which if answered, would determine the

issue of liability. What is required is that resolution of the common issues will advance the proceedings. The common issues are generally defined in terms of questions to be answered in the action.

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Preferable Procedure In considering whether a class proceeding would be the preferable procedure for the resolution

of common issues, the Courts seem to be significantly driven by the legislative objectives set out above. Judicial economy, access to justice and behaviour modification figure prominently in the consideration of the preferable procedure test.

The Courts are given broad discretion in determining whether a class proceeding is the preferable procedure for resolving common issues.

In addition to considering the legislative objectives, the Courts also consider questions of complexity, fairness and the existence of an alternative out-of-court procedure.

Representative Plaintiff The representative plaintiff must be able to represent the interests of the class fairly and

adequately with an effective and workable plan for advancing the litigation without any conflict-of-interest with class members on the common issues.

It is not necessary that the representative plaintiff have a cause of action against each of the named defendants. It is sufficient that there is a cause of action.

No special rules apply but counsel should satisfy themselves that the proposed representative plaintiff will meet the requirements and be approved by the Court.

Summary of Advantages of Class Actions

What are the advantages? Economy of scale allows fuller recovery/deterrence Unaddressed wrongs get dealt with

What are the drawbacks? Litigative autonomy lost ‘day in court’ is lost Problems of agency – lawyer represents a body of people who aren’t there, lawyer’s interest

not the same as the body of people Sweetheart deals etc. Potentially huge counsel fees Future victims bound by settlement – or fund may be exhausted before future victims receive

anything

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Jones’ View of Class Action

The Public Law Model of Class Actions – “Jones’ Position” Why a public law model? We have a disconnect between our systems of production and justice.

◦ The former is dominated by mass production, standardization, globalisation, and corporate entities of unprecedented size and economic reach.

◦ Yet our system of civil liability evolved to address small-scale, binary wrongs occurring wholly within discrete jurisdictions, and if traditional litigation was not always between individuals of roughly equal litigative power, at least the disparity was not often so severe as it is today between an individual and a large business enterprise.

Class Action as Public Law The public law approach to the class action holds that aggregate litigation is best thought of,

not simply as a procedural device in the sphere of private obligations, but rather as a regulatory device to enforce standards (common law and statutory) in the production of goods and services and thereby protect the public from patterns of widespread wrongful harm.

In the public law model, maximising post-wrong individual recovery is not the singular objective. Instead, the individual benefits from a system that contributes to his or her wealth and welfare through avoidance of harm, with tort compensation playing a secondary role and patterns of risk-spreading through insurance – heretofore studiously (and irrationally) ignored by the courts – weighed along with other economic factors in considering tort system policy.

Four Central Themes of Public Law Model One: Mass torts are conceptually distinct from discrete individual wrongs – they generally result

from systemic risk taking, not one-off or random events. Whatever the objectives of negligence law in other areas of human endeavour, the main goal of the mass tort class action is deterrence; that is, to control the systemic risks of business activity.

Two: Class actions work by giving the plaintiffs in mass-wrong cases the same economy of scale that defendants enjoy as a matter of course.

Three: In the public law model, the plaintiff's lawyer acts as a self-interested "private attorney general", vindicating the public interest in avoiding mass injuries.

Four: In order to be most effective, aggregation of the class into a single claim must be as complete as possible.

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Implications of the Public Law Model Effective class actions will tend to be opt-out, rather than opt-in, but the most effective actions

of all would have mandatory inclusion in the class (not what we have) Any legal rule that undermines the completeness of aggregation, such as the notion of individual

litigative autonomy, must be carefully scrutinized and weighed against the benefits that accrue from a larger class.

◦ Examples: ‘no class action’ clauses in consumer contracts; direct dealing with class members; 'no compete' clauses in settlement agreements.

Settlements and awards should be cash, not ‘in kind’ or ‘coupon’ settlements. Class actions should be permitted even if distribution of the award is difficult or impossible. Courts should weigh certification differently depending on the defendant and wrong alleged.

Deterrence considerations might be different when dealing with a government defendant, for instance, than when dealing with a corporate defendant.

Class actions should be interjurisdictional wherever the wrong is interjurisdictional, and to the same extent. Breaking a class action into jurisdiction-by-jurisdiction adjudication diminishes the plaintiff's economy of scale relative the defendants' and thus reduces the advantages of the aggregate claim. Any unnecessary subdividing of the single class action into smaller actions will sacrifice some of the litigative efficiency of the whole, even where plaintiffs’ counsel cooperate in bringing multiple provincial actions. Province-by-province litigation of classable claims, therefore, represents systemic advantage for mass tort defendants over mass tort victims. Criticisms of the national class must take these economic factors into account when weighing the advantages of larger versus smaller classes, but almost never do.

Plaintiffs should be able to prove their claim on an aggregate basis, using, where available, statistical and epidemiological evidence rather than particularistic evidence. No class action should be defeated solely because individual proof of claims is not possible or is uneconomic, if other methods of proof are available. Aggregate proof of causation is, overall, a more accurate way of assessing mass wrong than claim-by-claim proof, and it is not subject to Aristotelian objections of 'fairness' advanced by the scholars who I have described elsewhere as "tort moralists".

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Practice Advice

Principles of Good Advocacy: Scalia & Garner, Making Your Case.1. Be sure that the tribunal has jurisdiction.2. Know your audience.3. Know your case.4. Know your adversary’s case.5. Pay careful attention to the applicable standard of decision (review).6. Never overstate your case. Be scrupulously accurate.7. Occupy the most defensible terrain.8. Yield indefensible terrain – ostentatiously.9. Take Pains to select your best arguments. Concentrate your fire.10. Communicate clearly and concisely.11. Appeal not just to rules but to justice and common sense.12. When you must rely on fairness to modify the strict application of the law, identify some

jurisprudential maxim that supports you.13. Understand that reason is paramount with judges and that overt appeal to their emotions is

resented.14. Assume a posture of respective intellectual equality with the bench.15. Restrain your emotions. And don’t accuse.16. Close powerfully – and say explicitly what you think the court should do.

Step One: Research Your Case You need to know the facts, who, what, when why where, in order to determine the answers to

the preliminary questions I will posit here. You need to know the law – what is the basis for the claim? What is the cause of action? What

statutes are involved? A lawyer for the defendant (respondent) needs to know these things no less than plaintiff

(petitioner or claimant)’s counsel.

Step 2: Establish the Claim Within the Court’s Jurisdiction At the outset of litigation, you have four main questions to answer, each related to the

jurisdiction of the Court:o Is the claim justiciable? o In which forum should it proceed?o Which form of proceeding is required?o Is there any other factor affecting jurisdiction?

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Types of Objections: The PLTC Materials cite Discovery Practice in British Columbia (2011), by Lyle Harris, Q.C., for a list of the most common objections (at §3.116). Some examples: a. “Not related to a matter in question”

*used rarely – unless questioning is to embarrass*b. “Protected by privilege”d. “That document speaks for itself”e. “Relates to similar facts/acts and is collateral”f. “Relates to another person’s out-of-court statement”g. “Elicits an opinion”i. “Begs an ambiguous answer”k. “Argumentative” or “calling for a legal conclusion”l. “That calls for speculation on the part of the witness”m. “Asked and answered”o. “The question is too vague”p. “That wasn’t the evidence”q. “The area is confidential/protected by a confidentiality agreement”r. “My client claims the protection of s. 5 of the Canada Evidence Act”

*protects against self-incrimination*s. “The question is confusing/misleading/ambiguous/unintelligible”

*used rarely – and then lawyer just rephrases question*

Improper Objections: The Materials also list some forms of commonly-made objections that are not proper, such asa. “That’s a leading question”b. “My client lacks the personal knowledge”c. “How is that relevant?”d. “That’s not admissible”e. Statements “for the record” and “laying the foundation”f. “You haven’t laid the foundation”g. Objecting to “Are you refusing to answer on the advice of your counsel?”

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PLTC Practice AdviceMeeting with the Client

Prepare in advance Assess the case Listen to your gut (Jones’ addition)

Obtaining a Retainer

Fee for service Contingency arrangements Costs advice Anticipating terms of withdrawal

Limitation Periods

Know these intimately, and research thoroughly if you’re not sure Almost all claims now subject to 2 years from “discovery” Almost all claims not subject to 15 year “ultimate limitation period”

When is the claim “discovered”?

The general discovery rule (under s. 8) is that a claim is “discovered” by a person on the first day on which the person knew or reasonably ought to have known all of the following:…

Beware of:

Other applicable limitation periods, particularly with municipal or other institutional defendants Factors which “toll” limitation periods

o Factors that undermine the “discovery” date

Choose Your Forum

Small claims court: claims of $25k of les Claimant may waive claim to excess Claimant may transfer to Supreme Court if amount uncertain

Which Registry

Supreme Court claims may be filed in any BC registry Small claims must be brought….

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