Chambers Practice Update: The Prohibition of Written Arguments
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.