Introduction to Civil Procedure

Prof Hayley

"cases can be won and lost on procedure"

Whether that's fair or not
Civil procedure is KEY for any lawyer, whether solicitor or barrister
We won't be reading lots of cases in the course --> ANALYZE what we DO read carefully
Annotated books/summaries shouldn't be relied on ("very unwise")
e.g. a case might have a RATIO in your favor…but not the final decision/surrounding facts
Cases must be read in context

Tip:

KNOW THE CASE SO WELL THAT you can DISTINGUISH them
Further note: to avoid issues in document production, try to build an ethical, fair reputation

Professional Conduct

the readings for today are pages 182-212 in Walker, The Civil Litigation Process; and Chapters 1-3.2 of the Code of Professional Conduct for B.C

RULE1-3 OBJECTOF SUPREME COURT CIVIL RULES (SCCR)  ALWAYS ARGUE THIS

(1) object of the rules is just, speedy and inexpensive determination of matters on their merits

(2) proportionality: proceedings should be conducted with regard to amount involved, importance of the

issues, complexity of the proceeding

Considerations Prior to Filing Suit

Jurisdiction:

Small Claims Act:Governs jurisdiction over civil matters w.r.t. Provincial Courts
Purpose: To resolve disputes in a "just, speedy, inexpensive and simple manner"(SCA s. 2)
Provincial Courts have jurisdiction over claims with a value of $25,000 or less.(SCA s. 3)

Note: This is not exclusive jurisdiction; the Supreme Court can hear it as well.

There is a right of appeal from the Provincial Court to the Supreme Court.(SCA s. 5)

Supreme Court Act:
Divvies up the province into 7 judicial districts (which are composed of counties).(SCA s. 8)
Mastersof the Court: Same powers as a judge in chambers (can hear applications)(SCA s. 11)

Notice of Claim vs. Petition vs. Requisition:

Notice of Civil Claim: Unless otherwise required, every action starts with this.(R. 2-1(1))
Petition to the Court: Any action listed under R. 2-1(2) starts with this.(R. 2-1(2))
Typically actions when matter is largely a question about construction of a contract, i.e. where the facts are not really contested
Sets out the facts using affidavit, no discovery, must make case for cross-examination
One side usually rejects – want longer route if facts contested, to grind down other side
Requisition: May use instead of petition if parties consent or no notice is required.(Rs. 2-1(2), 17-1)

Pleading (R 3-7 Pleadings; R 9-5 Striking of Pleadings)

-Pleadings are the starting point for civil procedure

-Rules of pleadings used to be very artificial, complex, and strict

Relevant Rules of Court

Rule 3-7 – Pleadings Generally
Rule 9-5 – Striking Pleadings

The role of pleadings

-Primary purpose of pleadings remains […] to define the issues and thereby to inform the parties in advance of the case they have to meet and so enable them to take steps to deal with it (Lord Edmund-Davies, Farrell v Secretary of State for Defence, [1980] (H.L.)

-The pleadings are important for shaping the entire case

E.g. will affect discovery of documents
Also affects questions that will be asked during depositions
Also allows the other side to object if a question/discovery request is outside of the scope

-Note on access to justice: Prof Hayley says that unrepresented litigants can’t be expected to follow the system the way it is

-You cannot lead evidence that have not been included in the material facts pleaded

Definition of a Pleading

-Court Rules Act (SUPREME COURT CIVIL RULES)

Rule 1-1(1) 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 notice;
Therefore not a “pleading” since an affidavit contains EVIDENCE rather than just material facts
This violates Rule 3-7 (1)
A petition & response to petition are also not pleadings, but they DO require by the forms (66 and 67) pleading of material facts
It is a proceeding not an action
A petition is generally more useful where there aren’t key facts in dispute

Material Facts v. Evidence

Rule 3-1(2) – “a notice of civil claim must…

(a)Set out a concise statement of the material facts giving rise to the claim;…”

-A matter of degree: the appropriate level of generality

Material Facts > Particular Facts > Evidence

Material Facts

A material fact is something that is general/essential to the case (e.g. my client was hit by a car, suffered injuries, etc)
“No general rule can be laid down” - Odgers
Material facts are generally defined as those NECESSARY to establish a cause of action or a defence to it
Evidence is the additional details that support it or are relevant to it
Pieces of evidence can be relevant to the material facts
However, the line is rather unclear so Prof Hayley says that it is better to plead MORE than LESS

Evidence (not allowed under Rule 3-7 (1)

-Rule 3-7(1) “a pleading must not contain evidence”

-NOTE: it is not strictly enforcedunless the pleading is (intended to be) confusing, prolix (wordy beyond belief), and/or prejudicial

E.g. Homalco Indian Band v. British Columbia (1998, BCSC)

Particulars (Rule 3-7)

e.g. When, Where, Why, How

-note cases such as Harris v. Ray Kissack Memorial Housing Society (2003) is fairly generous towards particulars

-the particular must be sufficiently close to the material facts that it trumps the “no evidence” rule

When Particulars Necessary

-(18) If the party pleading relies on misrepresentation, fraud, breach of trust, wilful default or undue influence, or if particulars may be necessary, full particulars, with dates and items if applicable, must be stated in the pleading.

Further particulars

-(20)Particulars need only be pleaded to the extent that they are known at the date of pleading, but further particulars

-(a) may be served after they become known, and

-(b) must be served within 10 days after a demand is made in writing.

What you should include in a pleading

-Rule 3-1(2) - MUST ALWAYS SET OUT A CONCISE SUMMARY OF THE LEGAL BASIS FOR THE RELIEF SOUGHT

-Generally should NOT include quotes except for things like oral contracts, insurance contracts, etc that rely on the specific wording for the legal issue

-Should definitely specifically plead for punitive damages and the grounds for that

Example of where you should risk pleading evidence but include the PARTICULARS of the conduct

Amendment of pleadings

-Courts GENERALLY ALLOW AMENDMENTS FREELY before trial, SUBJECT TO ISSUES RELATING TO LIMITATIONS AND PREJUDICE TO THE OPPOSING PARTY

Evidence may not be required on an application to amend, except where limitation and prejudice issues arise
DELAY is not generally an issue; prejudice IS

-Pleadings CAN be amended for the names of the parties (E.g. Jane Doe/John Doe placeholder names)

Legal Arguments To Persuade A Court To Amend Include:

-Rule 1-3(1) – object of the Rules “is to secure the just, speedy and inexpensive determination of every proceeding on its merits”

So if you’re SEEKING TO AMEND, you emphasize:
that the court wants a JUST proceeding ON ITS MERITS (i.e. not to prevent you from amending based on a technicality)
you can ALSO emphasize the empathy angle
or importance to society angle
If you are seeking to STOP the other side form amending, you emphasize the PREJUDICE angle

-See below

Object of Rules of Court (Rule 1-3)

Object

(1)The object of these Supreme Court Civil Rules is to secure the JUST, SPEEDY and INEXPENSIVE determination of every proceeding on its merits.

Proportionality

(2)Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are PROPORTIONATE to

(a) theamount involved in the proceeding,

(b) theimportance of the issues in dispute, and

-Law and Equity Act, s.10

Courts must grant all remedies that parties may appear to be entitled to “so that as far as possible, all matters in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any concerning any of those matters may be avoided”

Fast-tracked Litigation (new; Rule 15-1)

Rule 15-1

New fast track (attempt to make things CHEAPER and EASIER)
You only get 2 hours for discovery, $100,000 is the limit
Around 4 months of litigation
Costs are limited and fixed
Mandatory case planning component
Supposedly limited to $100,000 but the judgecangivemore

Notes about Discovery

Has to be relevant to MATERIAL FACTS
If you feel there is a DEFICIENCY in the documents, you need to say WHY you need the additional discovery

Summary Judgement & Summary Trial

Summary Judgement (Rule 9-6)

Test for Summary Judgment (R 9-6)

•An ORIGINATING party (R 9-6(2)) or an ANSWERING party (R 9-6(4)) may apply for summary judgment.

•permits judgment to be given in anyaction on the ground that there is nodefencetothewhole or anypart of the claim or anydefenceexceptastoamount (Rule 18 (1)).

•(R 9-6(5)) If satisfied that there is no genuine issue for trial with respect to a claim or defence, the Court MUSTpronouncejudgment or dismiss the claim accordingly.

I.e. if the claim is factually without merit, lacks a triable issue.
Inspiration Management –must consider proportionality between speed and justice
9(5)(c) – If only issue is question of LAW, judge may decide (departs from old Rule 18A – pointed out in L.D. v. Provincial Health Services Authority, 2011 BCSC)
9(5)(b) - if satisfied that the only genuine issue is the amount to which the claiming party is entitled, may order a trial of that issue or pronounce judgment with a reference or an accounting to determine the amount,
9(5)(d) – “may make any other order it considers will further the object of these Supreme Court Civil Rules” (seems quite broad)

•Could avoid summary judgment by just claiming any kind of defence, so they invented Summary Trials (Rule 9-7)

“The important point, however, is that the raisingof a triableissue or arguabledefencewillnotalwaysdefeatanapplication under [rule 9-6], for the court is authorized under that rule to conduct a summary trial of that issue or defence.” – Inspiration Management

Costs & Delays (ss 7, 8, 9)

(7)Costs consequences

Subject to subrule (8), if the party applying under subrule (2) or (4) obtains no relief on the application, the court may

(a) fixthecosts of the party responding to the application, and

(b) fixtheperiod within which those costs must be paid.

(8)Court may decline to fix costs

The court may declinetofixandordercosts under subrule (7) if the court is satisfied that the application under subrule (2) or (4), although unsuccessful, was nevertheless reasonable.

(9)Bad faith or delay

If it appears to the court that a party to an application under subrule (2) or (4) has acted in bad faith or primarily for the purpose of delay, the court may

(a) fix the costs of the application as special costs, and

(b) fix the period within which those costs must be paid.

Re Conflicting Affidavits

“a judge should not decide an issue of fact or law solely on the basis of conflicting affidavits even if he prefers one version to the other. It may be however, notwithstanding sworn affidavit evidence to the contrary, that other admissible evidence [can] make it possible to find the facts necessary for judgment to be given” – BCCA in InspirationManagement

L.D. (Guardian as litem of) v. Provincial Health Services Authority, BCSC 2011

Interesting case dealing with Summary Judgement (Rule 9-6 at the time, a new rule) because it was “not small potatoes” and a class action; but the judge in this case simply “hacks it apart” to be expeditious
Prof Hayley says the judge simply doesn’t buy it and therefore tosses out issues & facts
Further note: need to be CRITICAL of judgments (especially for lower courts) b/c many judgments can need to be distinguished
Ordered the plaintiffs to rewrite/amend the statement of claim
The case is disturbing since the court doesn’t simply duck the issues but actually tosses the majority of them out, even though they seem like serious issues that are triable
Seemed that they reached many decisions a lot sooner
A case like this could likely be overturned b/c he tossed out many issues of substantive law
That said, Rule 1-3 allows for efficiency…the issue would probably turn on whether he overstepped

Summary Trial (R 9-7)

NOTE: make sure to refer to R. 18A, the predecessor of R. 9-7 when noting up older cases PRIOR TO JULY 2010

Test for Summary Trial: (R 9-7)

•(15) On the hearing of a summarytrialapplication, the court may

(a) grantjudgment in favour of any party, either on an issue or generally, 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,

•i.e. Can the chambers judge decide the material facts, and it would be just to do so? (Inspiration Management, 1989 BCCA)

The test is not whether a conventional trial would make any difference to the outcome.

•Policy: Because of urgency and cost, a full trial (with all its traditional safeguards) is not always appropriate in every case.

Considerations for the chambers judge:
The amount involved
The complexity of the matter
Its urgency
Any prejudice likely to arise by reason of delay
The cost of taking the case forward to conventional trial relative to the amount involved
The course of the proceedings
Any other matters which arise for consideration on this important question.

•Conflicts in evidence or credibility issues do not necessarily prevent a summary trial. The court may be able to review other material to resolve them.

Court could order cross-examination to occur before chamber judge (9-7(12))
“If the chambers judge can find the facts, then he must give judgment as he would upon a trial unless for any proper judicial reason he has the opinion that it would be unjust to do so.” – Inspiration Management
Chambers judges should be activists for summary trials because the system is best served by things be decided quickly and at lower costs.

“Chamber judges should be careful – but not timid, in using this rule as it was intended.”

Other details about Summary Trial (Scope of Evidence, Timing, etc) (R. 9-7)

•Scope of Evidence: unless the court orders otherwise, May be by affidavit (most common), answers to interrogatories, evidence from examination for discovery, expert reports (subject to R. 11-6(1)) or admissions (under R. 7-7) (R. 9-7(5))

•Timing: Application for summary trial must be brought at least 42 days before the trial date.(R. 9-7(3))

•Another party can bring an application to dismiss the application for a summary trial(R. 9-7(11))

•The court can order that persons be brought before the court for cross-examination [this is rare] (R. 9-7(12))

•Judgment: The court may render judgmentas per usual, or it may declare that there are insufficient facts or that it would be unjust to decide the matter on a summary judgment. (R. 9-7(15))

If the judge declines to rule, they may order that the matter proceed normally, or make any of several orders under Rule 5-3(1) [among other orders]. (R. 9-7(17))

Why Oppose Summary Trial?

•Summary Trial usually lacks Cross-examination, which is a very powerful tool

Before judge, witnesses are less coached, make mistakes, say actual truth
Witnesses are beyond the protection of their lawyer

•Want your day in court:

You may have sympathetic witness, may have badlaw and so want to shapethefacts

•Need more time

Further Steps in Summary Trial

(18) Right to vary or set aside order

(18) A court may, before or at trial, vary or set aside an order made under subrules (12) and (17) of this rule.

(19) Order if jury notice filed

(19) A party may apply to the court for judgment under subrule (2) even though a party may have filed a notice under Rule 12-6 (3) requiring that the trial of the action be heard with a jury.

Applications (Bringing & Striking) – Rule 8-1

note: applications are dealt with in CHAMBERS EXCEPT
consent applications (8-3),
applications of which notice is notrequired (8-4),
applications by writtensubmissions (8-6)
REQUIREMENTS of applications are laid out in Rule 8-1(2)

(8), (9) - Timing of Notice of Application & Application Response

(8) applicantfiles and servesAT LEAST 8 BUSINESS DAYS BEFORE the date set for hearing the notice of application and affidavits and documents in support

(9) within 5 business days after service, application respondent files and serves an applicationresponse and affidavits and documents in response

if an application is OPPOSED, the APPLICANT must provide an application record to the registry no later than 4 pm, one full business day before date of hearing

(4) - Notice of Application**

(4) NOTICE of application must be in Form 32 and must not exceed 10 pages, must set out:

(a) set out the orders sought or attach a draft of the order sought,

(b) briefly summarize the factual basis for the application,

- need to set it out BRIEFLY but TRANSPARENTLY (i.e. don’t use this to be sneaky)

(c) set out the rule, enactment or other jurisdictional authority relied on for the orders sought and any other legal arguments on which the orders sought should be granted,

(d) list the affidavits and other documents on which the applicant intends to rely at the hearing of the application,

(e) set out the applicant's estimate of the time the application will take for hearing,

(f) subject to subrules (5) and (6), set out the date and time of the hearing of the application,

(g) set out the place for the hearing of the application in accordance with Rule 8-2, and

(h) provide the data collection information required in the appendix to the form,

Timing of Hearings

(5) Date and time of hearing

(5) Subject to subrule (6), the hearing of an application must be set for 9:45 a.m. on a date on which the court hears applications OR at such other time or date as has been fixed by the court or a registrar.

(6) Date and time if hearing time more than 2 hours

(6) If the applicant's estimate referred to in subrule (4) (e) is more than 2 hours, the date and time of hearing must be fixed by a registrar.

(9) Application response

(9)A person who is served with documents referred to in subrule (7) of this rule and who wishes to respond to the notice of application (in this subrule called the "responding person") must do the following within 5 business days after service or, in the case of an application under Rule 9-7, within 8 business days after service:

(a) file an application response;

Introduction to Civil Procedure