BC Supreme Court Confirms Mandatory Nature of Rule 68
Further to my previous posts on this topic reasons for judgement were released today by the BC Supreme Court, Vancouver Registry discussing the mandatory nature of Rule 68,
Although previous cases have addressed this point, today’s case is important because it is the first such case that I am aware of from a BC Supreme Court Judge (the previous cases were decisions of Masters).
In today’s case (Berenjian v. Primus) the Plaintiff sued for injuries as a result of a BC Car Crash. The claim was set for trial in December, 2009. The Defendants set the matter for Jury Trial. The Plaintiff then brought a m motion to move the case into Rule 68 which would have the effect, amongst others, of eliminating the possibility of trial by Jury.
The Plaintiff pointed to the fact that this case was worth less than $100,000 and argued that Rule 68 was mandatory. The Defendants opposed the motion. After hearing submissions Mr. Justice Punnett agreed with the Plaintiff and held as follows:
 Subrule (9) contemplates an action becoming an expedited action after it has been commenced…
 I do not agree that Rule 68 cannot be invoked once the pleadings are closed. If the rule is mandatory then the logic of Rule 68(7) is consistent. That is, the rule is a mandatory rule and, as such, no provision is required for the court to order that the rule does apply to a particular action. However, because it is mandatory, a provision was needed to remove actions from the rule. The absence of the endorsement is simply an irregularity in actions which meet the criteria of Rule 68(2).
 In my view Rule 68 places no time limit for it to be brought into play…
 As noted above the principal of proportionality pervades Rule 68. Rule 68(13) requires that “[i]n considering any application under this rule, the court must consider what is reasonable in relation to the amount at issue in the action” (emphasis added).
 As in Uribe, a jury trial is pending. Given the amount involved (and the defendants do not allege that the claim is worth an amount over $100,000), I am of the opinion that the matter should proceed under Rule 68. It is not reasonable that a claim in the range of $25,000 should proceed to a jury trial for the reasons noted earlier in Uribe. To do so would defeat the purpose of Rule 68.
 Neither party has brought an application under Rule 68(7) for an order that Rule 68 does not apply. The plaintiff seeks an order transferring the proceeding to Rule 68. The defendants oppose that application. Given the mandatory nature of Rule 68, the question of whose obligation it is to bring the action formally under the rule raises an interesting issue that may well have relevance to any claim for costs arising from the late date of this application.
 The plaintiff’s application is granted. There will be an order allowing for the the style of cause to be amended to read “Subject to Rule 68”. The trial currently set for December 7, 2009, shall proceed under Rule 68 without a jury. The plaintiff has tendered two expert reports pursuant to Rule 40A and the defendants one expert report. The parties have leave to call a total of three expert witnesses, namely Dr. Wright, Dr. Mamacos and Dr. Leith.
This interpretation will likely remain good law under the New BC Supreme Court Rule 15 (the fast track rule which comes into force on July 1, 2010) as it also incorporates principles of proportionality, has the same mandatory tone of language and contemplates actions commenced outside of the fast track be brought into the fast track by filing :”a notice of fast track action” as contemplated by Rule 15-1(2).