September 30, 2010 by Brian L. Hoffmann
British Columbia’s new Supreme Court Civil Rules came into effect on Jul. 1, 2010. For the most part the new rules are a reorganized structure that follows a more logical and chronological flow, along with new, simplified terminology. The impetus behind the new rules was to make the civil justice system more responsive, accessible and efficient. To achieve this end, the overriding factor of proportionality has been injected into the object of the new rules. As a result, when applying the new rules the court must keep in mind the amount at stake, the importance of the issues in dispute and the complexity of the action.
Although the new rules are not a complete overhaul, there are significant changes affecting pleadings, discovery, expert evidence and fast-track proceedings, and there is a new case-planning regime. These changes have implications for litigation claims professionals.
The new rules change the form and substance of how lawsuits are started and answered. Replacing both the Writ of Summons and Statement of Claim is a single form: the Notice of Civil Claim. It must be served within 12 months of filing, but can be renewed. Defendants within Canada must file a Response to Civil Claim within 21 days of service. The response form effectively merges the old Appearance and Statement of Defence.
The form of both the claim and response has changed, whereby facts and law are now distinctly separated. Drafters of the new rules have indicated the new forms are designed to force the parties — plaintiffs in particular — to craft case-specific, informative and non-boilerplate pleadings. A practical implication is that gone are the days when counsel could file a bare bones Writ to, say, protect a subrogation limitation date or file an appearance and wait until later to get details from the client before preparing the Statement of Defence.
There have also been changes to the process of issuing a third party notice. A defendant no longer has until 120 days before trial to issue one; now one must be filed within 42 days of being served with a Notice of Civil Claim, unless leave of the court is obtained.
To curb excessive delay and expense the new rules contain changes to document discovery. No longer must a party produce every document “relating to every matter in question.” Under the new rules the criteria is much narrower; a party need only produce and list: (1) all documents that are or have been in the party’s possession or control and that could be used by any party to prove or disprove a material fact, and (2) all other documents they intend to refer to at trial. However, the parties may seek an order widening the scope of production. Further, each party must now serve a List of Documents within 35 days of the end of the pleading period, which typically will mean 42 days after filing and serving the response.
Another significant change pertains to the examination for discovery process. Under the new rules there is a seven-hour time limit on the total of all examinations conducted by one party of another party, subject to leave of the court or consent of the parties. The reason behind this lies within the new case planning regime in which such issues as scheduling and length of oral discovery are dealt with. Additionally, under the new rules, interrogatories are not allowed without consent of the party examined or leave of the court.
Case planning conferences
Perhaps the biggest change under the new rules occurs with the addition of Case Planning Conferences (CPC). Although originally slated to be mandatory in all Supreme Court actions, the final version of the new rules make CPC’s optional. Under the new rules, once the pleading period has expired, any party of record may request that a CPC take place by filing a Notice of Case Planning Conference.
Under the new CPC regime, judges have wide powers and discretion to make orders concerning the conduct of an action. For example, a judge may set a timetable for when certain steps of the proceeding are to be taken, order that the parties retain a joint expert, or order that some or all of the parties attend mediation. The court possesses this power whether or not a party applies for such orders.
Another noteworthy change under the new rules concerns the use of expert witnesses and the content and timing for disclosure of their reports.
Under the new rules an expert must acknowledge that their duty is to assist the Court and not to advocate for any party. On this note, the new rules allow for joint experts retained by both parties. The court may also appoint its own expert(s) at the expense of a party or parties.
Insurance professionals need to be aware that under the new rules the dates on which expert reports must be served has changed. Previously a party had to serve an expert report 60 days prior to it being tendered in evidence. Now a party has to serve an expert report they intend to rely upon at trial at least 84 days before the scheduled trial date. A responding expert report, commonly referred to as a rebuttal report, must be served at least 42 days before the scheduled trial date.
The requirements for the form and content of an expert’s report have also been expanded under the new rules and now require inclusion of such information as: (1) instructions provided to the expert, (2) description of research conducted that led to the opinion, and (3) a list of every document relied upon. The rules regarding disclosure of the expert’s file have also changed. Now parties are entitled to pre-trial discovery of the expert’s complete file relating to the preparation of the opinion at least 14 days before the scheduled trial date.
Fast track litigation
Under the new rules there is only one simplified fast track litigation procedure. This new procedure is a merger of the old Rules 66 and 68. Drafters of the new rules assert the procedure is a refinement of the best aspects of the old. The new fast track litigation procedure can apply if the claim is for less than $100,000, the trial can be completed in three days or less, or the parties consent.
Under fast track, certain aspects of the litigation are limited; oral discovery of a party is limited to two hours and trial is without a jury. Further, costs are limited to $8,000 for one-day trials, $9,500 for two-day trials and $11,000 for trials longer than two days. These cost consequences also apply to actions not commenced under the fast track process where the court gives judgment of $100,000 or less or where the trial is completed in three days or less.
The new rules impose significant changes to both the form and content of our rules of court. It is too early to say which changes will have the greatest effect on the practice of litigation. However, the new rules do provide litigants with new and better tools to resolve disputes in a more efficient, timely and, hopefully, less expensive manner. Of course, in order to take best advantage of these changes and to avoid being caught afoul of the new rules, all claims professionals must take the time to ensure they have a good understanding of these changes so they can adjust their file handling and litigation practices accordingly.
This is a simplified overview of the changes. For a more extensive look at the changes contained in the new rules, and the implications for claims professionals, log on to: http://www.rmcagr.com/french/_ui/publications/new_rules.pdf
Brian L. Hoffmann is an associate at Carfra & Lawton in Victoria. Carfra & Lawton is a member firm of the Risk Management Council of Canada.