The New BC Supreme Court Civil Rules – a More Detailed Look
Due in part to my recent articles on the New BC Supreme Court Civil Rules I had the opportunity to lead a discussion on the new rules this weekend before a group of distinguished BC Personal Injury Lawyers at the Westin Bayshore Hotel.
Afterwards several lawyers in the audience approached me for a written summary of my presentation. Not having one handy I determined this would be as good a place as any to produce a written summary so here goes:
As many of you know the BC Supreme Court Rules have been overhauled. The New BC Supreme Court Civil Rules come into force on July 1, 2010 so anyone with a BC Civil Practice needs to quickly get up to speed on these Rule Changes.
The good news for those of you not familiar with the New Rules is that they are largely “new” in name only. More than anything else the “new” rules are simply the current rules renumbered and reorganized in what is supposed to be a more user friendly fashion. About 95% of the current rules are left intact under the new system with the exact or almost exact language in place.
This is good news for lawyers familiar with the current system as many of the precedents we are familiar with interpreting and applying the current Civil Rules will continue to be of use under the new system.
There is, however, one important exception to the overall similarities and that is that the “object” of the New Rules has changed. Under the new system the object will be “securing the just, speedy and inexpensive determination of a proceeding on its merits, including, so far as is practicable, conducting the proceeding in ways that are proportionate to the amount involved in the proceeding, the importance of the issues in dispute and the complexity of the proceeding”
Since the New Rules will be subject to this overall concept of “proportionality” there is room for some new direction in the interpretation and application of the rules which have been reproduced word for word from their current form.
Although the new rules are largely the same as the current ones there are a few substantive changes that are worth highlighting.
Starting a Civil Action:
The first thing worth noting is that the Writ of Summons and the Appearance to a Writ of Summons have been abolished. To start a claim under the new system you file a “Notice of Civil Claim” and to respond to this you file a “Response to a Civil Claim“. These are nothing more than the Statement of Claim and Statement of Defence that we have under the current system.
When the new rules were being debated there was some discussion in shortening the amount of time a party had to serve a Notice of Civil Claim once filed. Fortunately this change did not make its way into the final draft and litigants will still have one year within which to serve the Notice after filing. This time period often comes in handy in the prosecution of personal injury claims with an unknown prognosis.
Changes to the Discovery Process:
Once the lawsuit is started the New Rules have made some changes to the Discovery Process, with respect to Discovery of Parties, Documents and Witnesses.
Discovery of Documents:
The “Demand for Discovery of Documents” has been abolished. Instead, all parties to a civil action will have an automatic obligation to make discovery of documents within 35 days at the end of the “pleading period“. Rule 7-1(9) creates a continuing obligation on parties to ensure that their list is up to date. Failure to do so may prevent a party from putting documents into evidence (Rule 7-1(21)).
If a party is dissatisfied with the disclosure they have received they can make an application for a supplementary list of documents as set out in Rule 7-1(11).
Significantly, the test for what documents are discoverable has been altered. Under the current system parties must disclose documents “relating to every matter in question in the action“. Under the new rules this test has been changed to “all documents that are or have been in a parties possession or control that could be used by any party to prove or disprove a material fact” and “all other documents to which a party intends to refer at trial“.
This new test is supposed to be narrower in scope than the current one. Time will tell how this new test will change disclosure requirements in the prosecution of personal injury actions however, given the fact that this new test will be applied alongside principles of proportionality there very well may be narrower disclosure requirements in smaller personal injury claims and greater obligations in the prosecution of more serious claims.
Examinations for Discovery:
Moving on to Examinations for Discovery a few noteworthy changes have been made. Under the current system there is no time limit to the length of discoveries. If faced with an uncooperative party or a long-winded lawyer these can go on for days and days. This has been changed under the new system with a 7 hour cap on examinations for discovery. This cap can be lifted with the consent of the parties or with Court order. Rule 7-2(3) sets out the factors the Court can consider when deciding whether to permit a longer discovery. These factors are worth reviewing and include the conduct of the party and the conduct of the examining lawyer
An important examination for discovery loophole has also been plugged. Oftentimes questions asked at discovery are answered after the fact by letter further to “requests” made at discovery. Unfortunately the current rules do not provide any mechanism for the admissibility of such evidence at trial. While such evidence would normally go in without incident one could not be guaranteed such an outcome if faced with an uncooperative opposing lawyer. This has been remedied under Rule 7-2(23) of the New Rules which holds that answers made to discovery requests by follow up letter are deemed to be questions and answers given under oath at the examination for discovery. This change will give counsel more confidence that they can use admissions made further to requests to advance their case or damage their opponents at trial.
Interrogatories are as good as dead under the New Rules. While they still exist Rule 7-3(1) does not permit their use except with consent or with court order. This is welcome news with respect to personal injury claims as some defence lawyers oppressively use interrogatories in an attempt to get discovery of information multiple times.
Discovery of Witnesses:
The current system does little to assist litigants in determining which lay witnesses their opponents will bring to trial. This has been changed under the new rules and the Court will have greater powers to compel such disclosure.
Parties to civil actions will be able to request “Case Planning Conferences” and “Trial Management Conferences” (I discuss these at greater length below).
The court has the power to order disclosure of witness information at these conferences. Specifically under Rule 5-3(j) the court can make an order with respect to “witness lists” at a Case Planning Conference. Even if no such order is made parties will need to disclose names and addresses of all lay witnesses they will rely on at least 28 days before trial as set out in Rule 7-4(1).
At Trial Management Conferences Courts can go further and have the power to order “will say” summaries of lay witness evidence as set out in Rule 12-2(g). Time will tell how often such orders are made but given the fact that one of the well established purposes of the Rules is to avoid trial by ambush I imagine such orders will be made routinely in personal injury claims.
One of the biggest changes under the new rules is that relating to expert opinion evidence. I have written about this before and you can click here to read my previous summary of these important changes.
Fast Track Litigation:
Another significant change is that relating to fast track litigation. I have previously written about these changes and you can read my previous article by clicking here.
CPC’s and TMC’s:
As mentioned above the new rules have introduced Case Planning Conferences and Trial Management Conferences. These give the Court greater control and power over an action earlier in the litigation process and the Rules discussing these conferences are worth reviewing.
Briefly any party to a civil action may request a Case Planning Conference once the Pleading Period expires. The court can also order such a conference on its own motion. Once set the litigants will need to filed a Case Plan Proposal which will include plans for discovery of documents, examinations for discovery, dispute resolution, expert evidence, witness lists and trial estimates and intended mode of trial. Affidavits will not be permitted at CPC’s and instead the court orders will be based on submissions of the parties (or their counsel). Rule 5-3 sets out the orders a Court can make at a CPC.
Originally it was proposed that parties would have to personally attend CPC’s. Fortunately this requirement did not make its way into the final draft and parties are permitted to attend via counsel as set out in Rule 5-2(2).
Trial Management Conferences (TMC’s) will be required in all actions. These must be held at least 4 weeks before trial and “if practicable conducted by the judge who will preside at trial”. This is a welcome requirement as under the current system litigants rarely know who their judge will be until a day or two before trial. Knowing who your judge will likely be ahead of time will assist in preparing your trial in accordance with such a judge’s preferences and it will certainly be a welcome change for the judge to know something about the case a month or more before trial.
Rule 12-2(9) sets out the orders that Judges can make at TMC’s and these are worth reviewing.
At first read it appears that parties must personally attend TMC’s although Rule 12-2(5) sets out an exception permitting a lawyer to appear provided that the party “is readily available for consultation during the TMC, either in person or by telephone“.
Part 24 of the new Rules states that proceedings started under the current Supreme Court Rules will be “deemed to be a proceeding started under these Supreme Court Civil Rules‘ meaning that every current BC Supreme Court civil lawsuit that is not disposed of before July 1, 2010 will be under the force of the new rules at that time.
There is a bit of leeway built into the transition process as Rule 24-1(14) states that “If a step in a proceeding is taken before July 1, 2010, the former Supreme Court Rules apply to any any right or obligation arising out of or relating to that step if and to the extent that that right or obligation is to have effect before September 1, 2010.” This is very little leeway however and the new Rules will be in effect by July with no exceptions after September so now is the time for all of us to start getting up to speed.