More on the Prohibition of Written Arguments in Chambers

Earlier this year Master Bouck released reasons for judgement discussing the Rule 8-1(16) prohibition of written argument in Chambers applicaitons finding as follows:
Since July 1, 2010 and pursuant to Rule 8-1(16), a written argument may only be presented to the court if the application consumes more than two hours.  There is no discretion under the Rule to receive written argument in other circumstances.  This application was estimated to be heard in 35 minutes but took one hour.
Thus, no written argument can or should have been considered by the court.
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, taking a less restrictive view.  In this week’s case (Simon Fraser University v. A & A Plumbing & Heating Ltd.) Master McDiarmid provided the following feedback about this limitation recognizing that appellate intervention or rules revision may be necessary:

[9] At the outset of the applications, plaintiff’s counsel handed me a 10-page document entitled “Plaintiff’s Submissions”.

[10] Defendant’s counsel objected.

[11] Her objection arises from Rule 8-1(16), which reads:

Unless an application is estimated to take more than 2 hours, no party to the application may file or submit to the court a written argument in relation to the application other than that included in the party’s notice of application or application response.

[12] The “Plaintiff’s Submissions” document was essentially the oral submissions I heard, written out. I found it helpful to have the document which included references in the affidavits to the facts set out in the notice of application.

[13] The concern, of course, is that the plaintiff had an unfair advantage. I was alive to that concern.

[14] I interpret “written argument” to refer to an expansion of Parts 2 and 3 of the notice of application by the addition of facts and/or by the raising of legal issues which takes the opposition by surprise.

[15] The “Plaintiff’s Submissions” document did not in my view raise additional facts; nor raise additional legal issues, and thus was not “written argument” within the meaning of Rule 8-1(16).

[16] This is a new provision in the Rules designed to ensure that sufficient details of the applicant’s argument are disclosed in the notice of application so that the response can deal with all points sought to be argued by the applicant. Presumably, the subrule is also aimed at reducing costs.

[17] The question is: does Rule 8-1(16) prevent the presentation of helpful written submissions which do not create surprise arguments and issues?

[18] I have decided it does not.

[19] Counsel’s objection raises a point which may need to be dealt with further, either by appeal from this decision or, preferably, clarification to the Rules. Provision of these sorts of documents is quite common. I will bring this matter to the attention of the Rules Committee. That does not, and is not intended to, forestall an appeal.