Revolutionary New Rules Proposed for the B.C. Supreme Court

In July 2007, the British Columbia Justice Review Task Force (JRTF) released a concept draft for new rules that could govern civil procedure in the British Columbia Supreme Court. This initiative, which began in March 2002, is part of an ongoing process to make the justice system more accessible, affordable and efficient. The 400 pages of proposals have not yet been implemented as the government is seeking public input regarding the implications of these recommendations. These proposed rules will drastically change the landscape of civil litigation and will have major ramifications for the practice of law, dispute resolution and civil litigation generally for years to come.

The objectives of the proposed new rules are to have each proceeding dealt with justly and to have the amount of time and process involved in resolving a proceeding to be proportionate to the expense incurred by the parties in its resolution. The objectives take into consideration the monetary amount of the subject claim, the importance of the issues in dispute to the jurisprudence of British Columbia, public interest and the complexity of the proceedings. The concept draft also attempts to eliminate archaic legal terminology and to update the language for use by lay persons.

There are several key elements to the recommendations we wish to highlight.

Commencing Actions

The new rules rework the manner in which proceedings are commenced. The statement of claim would be replaced by a single document, the “dispute summary,” and the initiating party would be referred to as the “claimant.” The dispute summary would provide a concise summary of the facts giving rise to the claim, the relief sought by the claimant and a maximum one page summary of the legal basis for relief sought. The claimant would personally sign a statement in the dispute summary indicating they believe the facts set out in the dispute summary to be true.

Under the proposed rules, the defendant would be referred to as the “respondent” and would no longer be required to file an appearance. Instead, the respondent would file a page-limited response indicating, for each fact set out in the dispute summary, whether that fact is admitted, denied or outside the respondent’s knowledge. Respondents must also certify their belief in the truth of the facts stated. Like the dispute summary, the response must concisely set out the legal basis for any denial to the right of relief by the claimant.

The process for counterclaims and third party notices follows the same dispute summary/response system.

The “Case Plan”

Upon the submission of a response, no further steps would be taken in the proceeding until a case plan order is made, with some general exceptions (e.g. jurisdictional issues, applying for default or summary judgment, delivering notices to admit and engaging in negotiation and mediation).

Under the proposed new rules, a case plan order may be made by consent or in a case plan conference (CPC). A consent case plan order would be negotiated by the parties, agreed upon and entered as an order. It would address such items as document production, oral examinations for discovery, expert witnesses, lay witnesses and trial.

If the parties are unable to consent to a case plan order, any party may request a CPC and the parties would exchange “resolution plans.” These resolution plans must set out the nature of the action, communicate the major impediments to achieving a resolution of the action, outline the steps the parties believe would lead to a resolution of the action and indicate disagreements between the parties on the items required to be in a case plan.

The parties would then attend a CPC where a judge would make a case plan order. Such an order would attempt to avoid unnecessary layers of costs by allowing better management of the overall litigation.

Applications

Motion practice has been streamlined under the proposed rules. Parties would file a pre-trial application in the prescribed form setting out the jurisdictional authority relied on, a list of the affidavits and other documents relied on and a one-page summary of the factual and legal basis upon which the order is sought. The response would be similar in practice to the current rules. Alternatively, applications made by written submissions are also recommended under the proposed new rules, as long as an order for same is made at the CPC.

There are also recommendations to modify the rules for summary judgment so a party responding to an application for summary judgment must deliver affidavit material or other evidence showing there is a genuine issue for trial. If the court is satisfied there is no genuine issue for trial with respect to either the claim or defence, the court must grant summary judgment.

An application for summary trial (i.e. formerly under Rule 18A) would only be allowed pursuant to a case plan order, either by consent or by judicial direction.

Discovery

Many modifications have been made to the discovery process as a whole, and interrogatories have been removed as a process for discovery altogether.

It is recommended that document discovery be varied so all documents referred to in the dispute summary be first delivered in a list of documents. The current wide scope of document discovery would also be limited, subject to Court order, to documents which the parties intend to rely on at trial and those that are, or have been, in the parties’ control and that could, if available, be used by any party at trial to prove or disprove a material fact.

Also, in continuance of the recent amendment to the Rules of Court, special provision is made for disclosure of insurance policies that would satisfy, in whole or in part, judgment or that would indemnify or reimburse any party for any money paid in satisfaction of the whole or any part of a judgment.

Examinations for discovery may undergo major variation, as the default position in the proposed rules requires that every party be available for examination by all other parties for a maximum of two hours. The parties may, however, agree to examinations up to a maximum of 10 hours. A court order would be required for further examinations.

Experts

The number of experts is a contentious issue in the proposed new rules. The current form of the proposed rules provides that there is no limit but where a CPC is required, proportionality and matching principles will inform the court as to the number of experts to be allowed.

If the parties each call their own experts, as permitted and provided in the case plan order, those experts would be required to confer and produce a report outlining the points of disagreement between them. If the use of a joint expert is agreed to or ordered by the court, the proposed rules set out a procedure for appointing the joint expert. In those situations, unless otherwise ordered, a joint expert is the only expert that may give evidence on an issue. Additional experts may be appointed after receiving the joint experts’ report. The court retains the ability to appoint an expert.

While the report of an expert may be tendered as evidence without the expert appearing at trial, experts would be allowed to give direct oral evidence at trial only if such direct examination is necessary to clarify terminology or to make the report more understandable. Production of an expert for cross-examination would still be available.

The proposed new rules provide that an expert appointed under the rules has a duty to assist the court and that duty overrides any obligation the expert may have to any party or to any person responsible for the expert’s fee or expenses. The party appointing the expert must advise the expert of this duty and the expert must, in any report he or she prepares, certify that he or she is aware of that duty, has prepared the report in conformity with that duty, and will, if called on to give oral or writte
n testimony, give that testimony in conformity with that duty.

Mediation

The dispute resolution process of mediation has been incorporated directly into the proposed new rules. All three of the existing regulations on the notice to mediate process would be consolidated in this fashion.

Trial

The draft rules incorporate most of the case management practices found currently in Rule 68. The trial management judge will continue to assist the parties in organizing an efficient, affordable trial. A trial brief would be submitted by the parties, which would include a summary of the issues disputed and the parties’ positions in respect of those issues, the evidence summaries of the witnesses, time estimates, a list of expert reports, etc. The parties must personally attend the trial management conference.

Final Comments

While making significant revisions to the current regime of civil procedure, several matters, such as costs, have not been the focus of the proposed amendments. Thus, while many revolutionary modifications to the rules are proposed, many concepts and practices will be imported from the present Rules of Court. Undoubtedly, as the government receives ongoing commentary on the proposed new rules, further alterations will occur. It is expected that input in respect of the new rules will be received until the end of October 2007. The target implementation date for the new civil rules is early 2010.

Paul McDonnell is a partner at Singleton Urquhart LLP and is chair of the firm’s Fire Litigation Group and Insurance Group. Wei Kiat Sun is an associate of Singleton Urquhart LLP and practices civil litigation, with an emphasis on insurance defence, commercial litigation, professional liability and construction.