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BC Supreme Court Discusses When Short Leave Applications Should Be Granted

Written by admin on . Posted in BCSC Civil Rule 8, Civil Procedure.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, providing a general overview of when a short-leave applications should be granted and criticizing the frequency with which such applications are brought by defence lawyers in personal injury lawsuits.
In today’s case (O’Callaghan v. Hengsbach) the plaintiff claimed physical and psychiatric injuries from a collision and sued for damages.  The Defendant had the plaintiff assessed by a neurologist.  After the time limit for delivery of expert reports the Defendant brought sought to have the Plaintiff examined by a psychiatrist and requested short leave to bring the application.  The Court dismissed the request and in doing so Master Baker provided the following reasons of the protocol that should be followed when seeking short leave –

[16]         The Masters in chambers, almost daily, are asked to give short leave under Rule 8-5(1). I have heard three of these applications in 1 ½ days of chambers; in one application, plaintiff’s counsel told the court that it was the third short leave application by the defence in that case since October 17. Interestingly, on a quick search I found no authorities to guide the court in granting or refusing applications for short leave. The rule itself offers little guidance, other than an application may be made in circumstances of “urgency”.

[17]         Such applications should be restricted to emergent circumstances and should not reward inefficiency, inattention to a particular case, or a lack of oversight. To abridge the time limits imposed by the Supreme Court Civil Rules is, presumably, to prejudice the other party who is, naturally, entitled to rely on timelines imposed by the Rules and to expect the opposing party to do likewise.

[18]         In the absence of guiding authorities, I suggest the following considerations, non-exclusive, should guide the parties and the court in considering short leave applications:

  1. a)       The application, of course, is to be made by Requisition, usually without affidavits, and may be made before a Registrar, Master, or Judge.
  2. b)       While undue formality in the application is discouraged, the application should be made in court, on the record (even if by video or telephone) and not online as an e-filed application.
  3. c)       Applicant’s counsel should notify the opposing counsel or party of an intention to apply for short leave so that counsel can appear. At the very least applicant’s counsel should canvass with his or her friend their availability on the proposed chambers date and whether he or she is opposed to the short leave.
  4. d)       The applicant should be prepared to give a full accounting of the facts, circumstances, context, and chronology leading to the application for short leave, all of which should establish that the applicant has been affected or surprised by events or developments not reasonably foreseeable.
  5. e)       If opposing counsel is not present should, as in the case of without notice applications, be prepared to give both favourable and unfavourable details.
  6. f)        If any important or pivotal fact or element is disputed by opposing counsel the applicant should be prepared to offer affidavit evidence on the point and, as always, counsel should not speak to his or her own affidavit if the matter is contested.
  7. g)       Busy schedules for the applicant counsel will usually not be sufficient reason for short leave; in that case counsel should arrange for a colleague or agent to speak to the chambers application on the usual notice required by the rules.

[19]         Ultimately, taking these points into consideration, the court will balance the prejudice both to the other party by potentially disrupting their schedules and trial preparations as well as service to other clients and to the applicant by virtue of reasonably unforeseen facts, circumstances, or developments that have inhibited the applicant’s preparation in the normal chronology that the rules contemplate and mandate.

[20]         Some areas of the law tend to offer more emergencies or crises than others; family law would likely fall in this category. Despite this, however, of late more applications for short leave seem to arise from personal injury/motor vehicle accident cases than in any other. And most of those applications for short leave seem to be on behalf of the defence, seeking short leave to bring an application for an IME close to trial. In that respect, this case is completely typical of that growing practise.

[21]         In many cases, the applicant can point to genuine circumstances giving rise to surprise or the advent of claims or circumstances the applicant could not have reasonably anticipated. This, and many similar applications, is not in that category. In too many cases, in my view, the defence, either assuming that settlement is likely or simply by applying triage or prioritizing in busy offices with large caseloads, have not given due attention and focus in a timely way to the possible claims and damages of the plaintiff. Lawyers are extremely busy professionals. They have many cases other than the one specifically before the court. Every master and judge knows that. Still, that cannot be permitted to affect the other party’s right to due process and adherence to the rules unless clearly justified; it is the court’s function to prevent that.

[22]         I have opined often, from the bench, about the template nature of pleadings in personal injury cases[3]. Often, it seems, the only change to pleadings are the names of the parties and the date and location of the accident. The damages claimed and particulars of alleged negligence are almost rote. Still, when a party specifies concussion, cognitive impairment, nightmares, sleep disruption, and driving related anxiety (which, to be fair, not all plaintiffs claim), it should be an obvious announcement to the defence that psychiatric enquiry is justified.

[23]         With the advent of standardized pleadings, an obvious problem for the defence arises: what really are the damages (if any) to this particular plaintiff?  It is my conclusion that very often the true issues in the claim are not established until expert medical (and sometimes economic) reports are delivered. And, yes, very often these reports are delivered at or very near the 84-day deadline. I do understand the defence dilemma in that, but even when faced with standardized pleadings, nothing prevents the defence from, as here, conducting the usual steps for disclosure and discovery. The chronology or timing of that is very much for the defence to decide and control.

[24]         In this particular case, Ms. Stewart is right; there were multiple indications to the defence that Ms. O’Callaghan was not only making a claim for psychiatric injuries, but that she was firm in her allegation and that in her view the damages were significant and long-lasting. Both the clinical records and her discovery evidence should have reinforced that assertion. Her denial of the facts contained in the defence notice to admit was a further obvious sign. But preceding all of those indicators was the NOCC which, despite my complaints of template pleadings in general, was clear in alleging specific psychiatric or psychological injuries and consequences of the accident.

Inadequate Notice of Application Criticized By the BC Supreme Court

Written by admin on . Posted in BCSC Civil Rule 8, Civil Procedure, Uncategorized. 178 Comments on Inadequate Notice of Application Criticized By the BC Supreme Court

Reasons for judgement were released last week serving as a reminder that the new Rules of Court require fulsome arguments to be set out in applications filed with the Court.
In last week’s case (Dupre v. Patterson) the Defendant brought a summary trial application seeking to dismiss the Plaintiff’s lawsuit.  Not only was the application unsuccessful with the Court finding the Defendant at fault for the collision underlying the litigation, the Court went on to give the following criticism of applications that fail to set out adequate factual or legal arguments in their support:
[44]         Before concluding, I wish to say a few words about the material filed. 
[45]         The defendant’s notice of application filed July 3, 2013, did not comply with the Supreme Court Civil Rules.  The complete “Factual Basis” for the summary trial was set out on about three pages, double spaced.  The “Legal Basis” section said in its entirety:
1.         Rule 9-7
2.         Rule 14-1(12) – costs
3.         Motor Vehicle Act, RSBC1996, c. 318, Part 3, section 183(2)(c).
[46]         There was not even a brief statement to the effect of “The court should dismiss the action because” and then setting out the reason or reasons why, in the defendant’s submission, that should be the result.
[47]         In Zecher v. Josh, 2011 BCSC 311, Master Bouck was faced with a similar situation, where the Legal Basis section in particular of the notice of application was wholly inadequate.  Master Bouck described what was required in order to comply with the Rules and said:
[29]      The defendants’ application for production of wage loss particulars and a calculation of any wage loss claim was dismissed due to the inadequacy of the material and argument presented. Both the factual and legal basis for the application are wanting.
[30]      Form 32 of the SCCR [Supreme Court Civil Rules] lends itself to providing both the opposing party and the court with full disclosure of the argument to be made in chambers. Parties should put in as much thought to the necessary content of that Form as is done when preparing the supporting affidavits. When a party is represented, responsibility for that content lies with counsel.
[31]      No doubt the Lieutenant Governor-in-Council intended Part 3 of Form 32 to contain more than a cursory listing of the Rules that might support the particular application. For example, common law authorities can and should be included as well as a brief legal analysis. Such an analysis is particularly helpful given that parties are not able to present a separate written argument in civil chambers unless the application is scheduled to take two hours or more of court time.
[32]      In my experience and observation, a comprehensive legal analysis can easily be included in a 10-page notice of application. As well, Rule 8-1(4) allows the parties to include a list of authorities in the application record.
[33]      By providing an effective analysis of the legal basis for (or against) making the order, the parties may well be able to resolve the application without attending court.
[34]      As an aside, I should note that the sparse content of this particular notice of application is unfortunately not unique; many such inadequate notices have been presented in chambers.
[48]         I agree with and adopt Master Bouck’s comments concerning what a notice of application must contain.  The same will apply with respect to an application response (Form 33), and the notice of application and application response under the Supreme Court Family Rules (Forms F31 and F32).
[49]         In Fraser, Horn and Griffin, The Conduct of Civil Litigation in British Columbia, 2nd ed. loose-leaf (Markham:  LexisNexis, 2007) one of the leading texts on practice and procedure, the authors say this concerning the “Legal Basis” section of a notice of application, at p. 32-3 [notes omitted]:
            The notice must set out the rule, enactment or other jurisdictional authority relied on for the orders sought and any other legal arguments on which the order sought should be granted (Rule 8-1(4)(c)).  If appropriate, applicable cases may be cited.  The argument to be made in chambers should be fully disclosed and should contain more than a cursory listing of the rules that might support the particular application.
[50]         The requirements under the current Rules represent a fundamental change from the practice under the former Rules of Court.  Under the former Rules, Rule 44(3) and Form 55 (the form of notice of motion) only required a bare statement of the Rule or enactment relied upon.  An outline (see Form 125 and former Rule 51A(12)), outlining the legal arguments to be made, was then delivered later in the exchange of motion materials and prior to the hearing.  That is not the practice under the current Rules.
[51]         If a notice of application does not contain the information now required under the Rules, the party filing it has failed to give proper notice – to the opposing party and to the court – of the nature of the application.  However, all too frequently, counsel in both civil and family cases are signing and filing inadequate notices of application and application responses.  The notice of application filed in this case was not at all unique.  However, such documents do not comply with the Rules.
[52]         In contrast to the bare-bones notice of application filed on behalf of Ms. Patterson, the application response was comprehensive and, in the page limit allowed under the Rules, set out both a detailed summary of the facts and an analysis of the legal basis on which the plaintiff said the court should find the defendant liable.  It represents the standard expected by the court.
[53]         In this case, the inadequacy of the notice of application was compounded by defendant’s counsel tendering a 14-page written submission at the hearing.  Since the hearing was estimated and set for 90 minutes, this was in breach of Rule 8-1(16). 
[54]         Rarely will a judge or master refuse to receive a written argument from counsel, provided it is not being used to “sandbag” or take the opposition by surprise.  However, tendering a written argument at the hearing is neither an alternative to, nor a substitute for, setting out the “Legal Basis” in a notice of application or an application response in accordance with what the Rules and the case law require.
[55]         When counsel come to court with inadequate materials, which fail to comply with the Rules, judges and masters are placed in a very difficult position.  What often happens is that, to avoid the inconvenience and expense of an adjournment, matters proceed despite the inadequate materials, and judges and masters do the best they can in the circumstances.  But inadequate motion materials, which fail to comply with theRules, are incompatible with the efficient and timely disposition of applications.
[56]         If counsel are coming to court with inadequate material that clearly fails to comply with the Rules, and counting on being heard, they are misguided.  Judges and masters are entitled to expect that counsel will prepare application materials (including affidavits) that comply with the Rules, and do no less than this.  Counsel who come to court with application materials that do not comply risk having their applications at least adjourned, with potential cost consequences, until proper materials are filed.
[57]         That completes my ruling.

Short Leave Application Denied in Case of "Manufactured Urgency"

Written by admin on . Posted in BCSC Civil Rule 8, Uncategorized. 113 Comments on Short Leave Application Denied in Case of "Manufactured Urgency"


Rule 8-5 of the BC Supreme Court Rules allows an application to be brought on short notice in cases of “urgency”.
A transcript of proceedings from the BC Supreme Court, Nanaimo Registry, was recently shared with me denying a short leave application in a case of “manufactured urgency”.
In the recent case (Thuler v. Garcia) the Plaintiff was injured in a motor vehicle collision.  The Plaintiff exchanged various expert reports in compliance with the timelines set out in the Rules of Court.  The Defendant requested that the Plaintiff attend a Defence Medical Exam with an orthopaedic surgeon to obtain a responsive report.  The Plaintiff refused to attend unless compelled by the Court.
The Defendant brought a short leave application two days before the scheduled Defence Medical Exam seeking permission to bring the main application that same day.  The Plaintiff opposed short leave being granted arguing  “the reason that I say that this is manufactured urgency is that there is six weeks in order to have a response report prepared.  If it is the case that the plaintiff is eventually ordered to attend that independent medical exam, then there is no reason that this couldn’t be brought within the normal timelines”
When pressed on the point of urgency the defendant countered that “It’s urgent in the sense that we would like to just get it done.”
Mr. Justice Silverman agreed no urgency existed and dismissed the short leave application.  In doing so the Court provided the following comments to the Defendant:
“All right.  I’m against you on that…In my view, it’s not urgent.  You’ve got enough time to do it by giving appropriate notice.  The matter can be heard on that basis.  It may well be you’ll still be entitled to your order if the plaintiff is not willing to go, but in my view, it’s not urgent to require short leave so that I am denying that application“.
To my knowledge this Excerpt of Proceedings is not publicly available but as always I am happy to provide a copy to anyone who contacts me and requests one.

Chambers Advocacy: Legal Authorities To Be Disclosed in Notice of Application

Written by admin on . Posted in BCSC Civil Rule 8, Civil Procedure, Uncategorized.


One of the ongoing trends in civil litigation is a trend to greater pre-trial disclosure.  Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, addressing this principle finding that caselaw should be disclosed ahead of Chambers Applications to avoid “chambers by ambush“.
Last week’s case (De Corde v. De Corde) involved a motor vehicle collision.  The Defendant brought a short notice application to compel the Plaintiff to be assessed by a psychiatrist.  The application was dismissed and in doing so Master Bouck provided the following feedback about case-law disclosure for Chambers applications:

[65] The defence took exception to plaintiff’s counsel relying on authorities that were not cited in the response to the notice of application. In fact, the plaintiff makes no reference to any case law in her response. In contrast, the defendants prepared a comprehensive notice of application – including a synopsis of the legal basis for the application with reference to all of the authorities presented in oral argument.

[66] The defence position is not without merit. Both the notice of application and response under the SCCR invite a party to provide a thoughtful written synopsis of legal argument. A properly prepared notice of application or response ensures that the opposing party knows the argument to be met. Thus, there should be no longer be occasion for “chambers by ambush”.

[67] Indeed, in my view, it should be only in the rare instance that a party will surprise the other by citing in oral argument authorities not mentioned in these forms.

[68] Nonetheless, an application brought on short notice would seem to me to be one of those rare instances. Plaintiff’s counsel should not be faulted for any apparent omission in a response necessarily prepared on the eve of the application.

More on the Prohibition of Written Arguments in Chambers

Written by admin on . Posted in BCSC Civil Rule 8.


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.

Case Planning Conferences Not Necessary to Get CPC Consent Order

Written by admin on . Posted in BCSC Civil Rule 1, BCSC Civil Rule 5, BCSC Civil Rule 8.


Useful reasons for judgement were released yesterday (Stockbrugger v. Bigney)  by the BC Supreme Court, Vancouver Registry, finding that parties can apply for a Case Planning Conference Order by consent even if they have not had a Case Planning Conference.  While such a power is not set out expressly in the Rules of Court Mr. Justice Macaulay relied on the principle of proportionality to justify this result.  The Court provide the following helpful reasons:

[2] Even though the Supreme Court Civil Rules do not expressly provide for consent case plan orders, permitting the parties to file a consent case plan order is not prohibited and is entirely consistent with the object of the rules to secure the just, speedy and inexpensive determination of every proceeding on its merits (Rule 1?3(1)). Further, under sub-rule (2), the object is to be achieved, “so far as is practicable,” by conducting the proceedings in a proportionate manner.

[3] It is important, in considering proportionality, to keep in mind that every court appearance adds a layer of cost for the litigants. Part 5 of the rules, which governs case planning conferences, recognizes this factor. It does not require a case planning conference in every proceeding. In short, the parties may conduct a proceeding entirely without a case plan order if they so choose and the court finds no basis upon which to intervene and direct that a case planning conference take place.

[4] The foregoing is evident from Rule 5-1(1) which permits any party of record to request a case planning conference and Rule 5-1(2) which permits the court, any time after the pleading period has expired, to direct that a case planning conference take place. I see no reason for refusing parties the opportunity to consent to a proposed case plan without adding the cost of what may well be an entirely unnecessary hearing.

[5] Nothing in the rules prohibits a consent case plan order. If a party requests, or the court directs, that a case planning conference take place, Rule 5-3(3) requires that the judge or master conducting the case planning conference “must, at the conclusion of the case planning conference, make a case plan order.” I do not interpret that sub-rule as excluding a consent case plan order absent a case planning conference.

[6] Further, Rule 8-3 governs applications for orders by consent. An application for an order by consent, in the ordinary course, is made by filing a requisition, a draft of the proposed order and evidence that the application is consented to (Rule 8?3(1)(a)-(c)). Sub-rule (2) provides that a registrar may, upon being satisfied that the application is by consent and the appropriate materials filed, refer the application to a judge or master, depending on the jurisdiction necessary to make the particular order. Rule 8-3 does not give rise to an inconsistency with Rule 5-3(3).

[7] I observe that Rule 5-3(4) requires that case planning orders are to be in Form 21. Form 21 includes a case plan. Rule 8-3, on the other hand, provides for an order in Form 34. Form 34 is easily adaptable, as the parties sought to do here, to incorporate a case plan in compliance with Form 21. The solution is, in my view, adequate, proportionate and cost effective for the parties.

[8] Even if there is some inconsistency in the forms as drafted, Rule 1-2(3) permits the court to order that any provision of the rules does not apply “if all parties to a proceeding agree.” If necessary, I would apply this sub-rule to permit consent case plan orders.

Chambers Practice Update: The Prohibition of Written Arguments

Written by admin on . Posted in BCSC Civil Rule 8, Civil Procedure, Uncategorized.


Last month the BC Supreme Court released reasons indicating that parties ought to use Form 32 to provide the Court with “full disclosure of the argument to be made in chambers”. It is good practice to do so because Rule 8-1(16) of the New Rules prohibits written arguments (other than those set out in Form 32) from being relied on in Chambers Applications estimated to take less than 2 hours.  Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, demonstrating this prohibition in action.
In today’s case (Lebrecque v. Tyler) the Plaintiff was involved in three motor vehicle collisions.  The Defendant brought a motion for an ‘indepdendent‘ medical exam but this was dismissed.   During the course of the application the Defendant’s lawyer provided the Court with a written outline of argument.  The Court refused to consider this outline citing the new prohibition in the Rules of Court.  Master Bouck provided the following useful reasons:
Prior to July 1, 2010, provision of a written argument was recognized as good practice and often encouraged by the court — even for applications consuming less than 2 hours.
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.
These observations should not be seen as a criticism of defence counsel whose efforts were no doubt intended to assist the court.  However, it seems worthwhile to remind litigants of the provisions of Rule 8-1(16) so that in the future, the time and expense of preparing a separate written argument is avoided.
As of today’s date the Labrecque decision is not yet publicly available but, as always, feel free to contact me and request a copy and I’ll be happy to provide one.

Applications Under the New Supreme Court Rules: How Much Detail Does Form 32 Require?

Written by admin on . Posted in BCSC Civil Rule 8, Uncategorized.


Two of the changes in the new BC Supreme Court Civil Rules are the requirement under Rule 8-1(4) that pre-trial applications be brought using Form 32 and that parties are generally prohibited from providing the Court with written arguments during applications.  Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, addressing how much detail parties should include when filling out Form 32.
In today’s case (Zecher v. Josh) the Plaintiff was injured in a motor vehicle collision.  The Defendant brought a motion asking the Plaintiff to produce a Pharmanet Printout, monthly statements from his student line of credit, and particulars of his wage loss claim.  The applications were dismissed “largely due to the inadequacy of the material presented”.  For this reason the judgement does not go far in addressing the substance of such applications under the new Civil Rules.  However, in dismissing the applications Master Bouck provided the following helpful reasons guiding litigants when preparing Form 32:

[30]         Form 32 of the SCCR lends itself to providing both the opposing party and the court with full disclosure of the argument to be made in chambers. Parties should put in as much thought to the necessary content of that Form as is done when preparing the supporting affidavits. When a party is represented, responsibility for that content lies with counsel.

[31]        No doubt the Lieutenant Governor-in-Council intended Part 3 of Form 32 to contain more than a cursory listing of the Rules that might support the particular application. For example, common law authorities can and should be included as well as a brief legal analysis. Such an analysis is particularly helpful given that parties are not able to present a separate written argument in civil chambers unless the application is scheduled to take two hours or more of court time.

[32]        In my experience and observation, a comprehensive legal analysis can easily be included in a 10-page notice of application. As well, Rule 8-1 (4) allows the parties to include a list of authorities in the application record.

[33]        By providing an effective analysis of the legal basis for (or against) making the order, the parties may well be able to resolve the application without attending court.