Tag: Rule 12-2

The Flexibility of the 7 Day Rule for Jury Strike Applications


Rule 12-6(5) imposes a 7 day deadline in which to dispute a jury notice. As previously discussed, the former rules of Court permitted parties to get away from this time limit by applying to strike a jury at a pre-trial conference.  With the overhaul of the civil rules does this exception still apply?  Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, finding that it does.
In yesterday’s case (Cliff v. Dahl) the Plaintiff was ‘severely injured‘ in a 2007 collision.   The Plaintiff’s claim was set for trial and the Plaintiff filed a jury notice.  The Defendant brought an application to strike the jury notice but failed to do so within the timelines required by Rule 12-6(5).
The Defendant’s application was ultimately dismissed on the merits but prior to doing so Madam Justice Bruce provided the following reasons confirming the 7 day jury strike deadline is not strictly applied under the current rules:
[12] Under the old Rule 35(4)(a), a pre-trial conference judge, the trial judge or a master could make an order that a trial be heard without a jury. The court interpreted this provision broadly; it permitted the application to be made outside the seven day time limit imposed in old Rule 39(27), which is for the most part identical to the new Rule 12-6(5). While the old Rule 35(4)(a) does not appear to have found its way into the new rules, the rationale behind permitting applications outside the strict seven day time limit remains consistent with the intent and purpose of the new rules. The ability to apply to strike the jury notice outside the strict time limit was necessary to ensure a fair trial and the court’s ability to respond to a change in circumstances surrounding the conduct of a trial. Further, it is apparent that a trial management judge has authority to grant the relief claimed by Ms. Dahl without any reference to the seven day time limit: Rule 12-2(9)(b). Lastly, the court has a discretion to extend time limits in appropriate circumstances without the necessity of a separate application: Rule 22-4(2).

Opening Statement Visual Aid Admissibility Should Be Canvassed At Trial Management Conferences


Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, disallowing the use of a PowerPoint presentation in an opening statement before a jury.
In last week’s case (Moore v. Kyba) the Plaintiff was injured in a motor vehicle collision.  Shortly prior to trial the Plaintiff advised the Defendant that he was going to use a PowerPoint presentation in his opening statement.  The Defendant objected arguing this ought to have been canvassed at a Trial Management Conference.  Madam Justice Brown agreed and refused the presentation from being presented to the Jury.  The Court provided the following reasons:

[4] In Brophy v. Hutchinson, 2003 BCCA 21, the British Columbia Court of Appeal sets out the principles which apply to an opening statement.

[24]      The opening’s purpose is to outline the case the party bearing the onus of proof (usually the plaintiff) intends to present.  Counsel’s goal in opening is, or should be, to assist the jury in understanding what his or her witnesses will say, and to present a sort of “overview” of the case so that the jury will be able to relate various parts of the evidence to be presented to the whole picture counsel will attempt to present.

[5] The court continues:

[41]      In an opening statement, counsel may not give his own personal opinion of the case.  Before any evidence is given he may not mention facts which require proof, which cannot be proven by evidence from his own witnesses, or which he expects to elicit only on cross-examination.  He may not mention matters that are irrelevant to the case.  He must not make prejudicial remarks tending to arouse hostility, or statements that appeal to the jurors’ emotions, rather than their reason.  It is improper to comment directly on the credibility of witnesses.  The opening is not argument, so the use of rhetoric, sarcasm, derision and the like is impermissible: see Halsbury, supra, at para.103; Williston and Rolls, The Conduct of An Action (Vancouver: Butterworths, 1982); Olah, The Art and Science of Advocacy (Toronto: Carswell, 1990) at 8-8; Lubet, Block and Tape, Modern Trial Advocacy: Canada, 2nd ed. (Notre Dame: National Institute for Trial Advocacy, 2000).  Against this general background, I will consider the objections the plaintiff now makes to the defendant’s opening address.

[6] I was also provided with Schram v. Austin, 2004 BCSC 1789 and Ramcharitar v. Gill, 2007 Oral Ruling, Docket 01-2332, a decision of Mr. Justice Macaulay.

[7] In Ramcharitar, the defendant did not object to the use of the presentation but to the form and some of the specific content.

[8] At para. 9, Mr. Justice Macaulay said:

Counsel should not expect to use a presentation as an aid during an opening unless he or she has first shown it to opposing counsel and the court, so that any issues about form and content can be addressed in the absence of a jury.

As pointed out in Schram, and as was done here, the proposed use should be raised at a pre-trial conference.  The risk of a mistrial arising otherwise from the improper use of a presentation is simply too great, and any counsel who seeks to rely on the use of a presentation at the last minute, without seeking consent or permission beforehand, may find that the proposed use is not permitted.

[9] Here, there are problems with the content of the Power Point, which include references to the contents of opinions not yet in evidence.  The Power Point would need to be modified before it could be used before the jury.  However, the Power Point was delivered too late to the defendant and to the court to permit this to be done.  As Mr. Justice Macaulay indicated, the Power Point presentation should be dealt with at a trial management conference, it should not be left to the morning of trial to be addressed.  In this case, there was simply no time available to deal with this problem.

Trial Management Conferences and the Attendance Requirement


The first published reasons for judgement addressing Trial Management Conference attendance requirements pursuant to Rule 12-2(4) were released this week on the BC Supreme Court website.
In this week’s case (Luis v. Haw) the Plaintiff was involved in 4 separate motor vehicle collisions.   A lawsuit was started following each collision and these were set for trial at the same time.  All the Defendants were apparently insured with ICBC.
As the Trial Management Conference neared ICBC made an application requesting that “(the personal) defendants are exempt from attending the trial management conference; secondly, that Mr. Kevin Munt, who appears to be an adjuster at the Insurance Corporation of British Columbia, “represent” the defendants at the trial management conference, and that Kevin Munt be allowed to attend the trial management conference by telephone“.
The Court largely dismissed the application and in doing so Mr. Justice Groves provided the following useful comments about the attendance requirement for Trial Management Conferences:

[19] The first concern raised by the letter and the requisition is the request that Kevin Munt “represent” the defendants at the trial management conference. That is the language in the requisition.

[20] If this is a request for Kevin Munt, who is an adjuster, to appear and that counsel not appear, that is completely inappropriate. Trial management conferences are significant and they are a significant change to the rules. They are mandatory and no trial certificate is issued without the parties attending. Though interlocutory, trial management conferences cannot be done by Masters, who do not hear trials. In my view, this suggests the drafters of the rules have placed significant emphasis on the requirement of trial management conferences.

[21] Noting that, I also then note that there are a number of matters that can be discussed at trial management conferences, as set out in subrule 12?2(9), that require legal analysis and are clearly not within the knowledge of an adjuster representing an insurance company. These include:  (a) a plan as to how the trial was to be conducted; (c) amendments to pleadings within a fixed time; (d) admissions of fact at trial; (e) admission of documents at trial; (i) respecting experts’ reports and issues dealing with experts’ reports; (l) an adjournment of trial; and (m) directing the number of days reserved for trial to be changed.

[22] Without even considering the clear requirement that people are represented in court by counsel or by themselves, it is, from my reading of what is to transpire at a trial management conference, completely inappropriate to suggest that when a defendant has counsel, that someone else, in this case an adjuster, appear essentially as counsel at a trial management conference. It is impossible to imagine how the requirements of a trial management conference can be accomplished by an adjuster appearing on behalf of the defendants, as may be the request in this requisition.

[23] If, however, this is a request that the adjuster attend in substitution of the mandatory requirement of the defendants’ attendance, that is governed by Rule 12?2(5).

[24] Rule 12?2(5) clearly contemplates a circumstance, which may be present here, which is that an individual who has full authority to make decisions for a party in the action or an individual who has ready access to the person or group of persons who collectively have full authority to make decisions for a party to an action can attend in place of a party. It appears from the evidence before me that Kevin Munt may fall into this category. I will say, however, that it is not appropriate for an adjuster to attend on behalf of defendants, unless he or she has the real authority to make decisions for the defendants. It is not good enough to say, as has been said before me, “That exceeds my current authority”, “I have to go back to the committee and they won’t be meeting for another week”.

[25] That, in my view, defeats the whole purpose of Rule 12?2(5). Ready access, the words in the rule, means really that the adjuster has to have either authority to make decisions or the ability, while the court stands down, to make a phone call to get the instructions he requires to properly speak for the defendant at the trial management conference.

[26] This lack of authority cannot be used as an excuse that prohibits the proper conduct of court actions at trial management conferences, when it is such a representation that allows the representative of the defendant to attend in the first place. Clearly the rule contemplates letting those who represent defendants, such as insurance adjusters, attend in the place of defendants. Insurers may wish to not require their defendants to personally attend. I do note however that there appears to be an increasingly internal requirement that defendants attend at trial, even when liability is not at issue. The adjuster who does attend must have the ability to deal with all matters or have ready, immediate access to those who can so instruct…



[33] In conclusion, if the suggestion in this requisition is that Kevin Munt attend on behalf of the defendants, he is not counsel, he cannot attend without counsel.

[34] If this is a request that Kevin Munt attend in the place of the defendants themselves, which is permissible under the trial management conference rule, then I am satisfied, if Kevin Munt has the real authority or has ready access, and by that, immediate access to those who have authority, then he can attend pursuant to Rule 12?2(5).



This decision is also worth reviewing for Mr. Justice Groves discussion of Rule 23-5 and the circumstances when the Court should allow a party to attend a Court Proceeding via telephone.

More on the Affidavit Evidence Prohibition At TMC's and CPC's


Further to my recent post on this topic, the law regarding the Affidavit Prohibition at Case Planning Conferences and Trial Management Conferences appears to be taking shape.  Useful reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, taking a common sense approach to this prohibition.
In this week’s case (Enns v. Cahan) the Plaintiff sued for damages under the Family Compensation Act.  A trial management conference was held and the Defendant brought an application to strike the Plaintiff’s Jury Notice.  The Defendant did not provide any affidavits in support of his application relying only on the pleadings and an expert report which was intended to be introduced at trial.  The Defendant argued the case was too complex for a jury.
The application was dismissed with Madam Justice Gray finding that the case could appropriately be heard by a Jury.  Prior to making this finding the Court provided the following useful reasons about when it’s appropriate for a contested application to be heard at a TMC given the affidavit evidence prohibition:

[9] Rule 12-2(11) provides that:

(11)  A trial management conference judge must not, at a trial management conference,

(a) hear any application for which affidavit evidence is required, or

(b) make an order for final judgment, except by consent.

[10] Mr. Brun, Q.C., argued on behalf of Mr. Cahan that his application could proceed without affidavit evidence and on the basis of submissions by counsel alone. Mr. Brun provided the Court with a copy of the Bruce-Aldridge report and seeks to rely on that and the statement of claim as the basis for his application. Mr. LeBlanc argued on behalf of Mr. Enns that Mr. Cahan’s application requires evidence and that it is therefore one of the prohibited orders set out in Rule 12-2(11).

[11] The new Rules include Rule 1-3 as follows:

(1)  The object of these Supreme Court Civil Rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits.

(2)  Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are proportionate to

(a) the amount involved in the proceeding,

(b) the importance of the issues in dispute, and

(c) the complexity of the proceeding.

[12] The new Rules have procedures which enable the court and the parties to design the procedure necessary to resolve a particular issue which is in question. The question of whether an application requires affidavit evidence will not always be determined by what remedy is sought. The question of what is in dispute will play a role, as well. In this case, Mr. Brun’s submissions are based on the Bruce-Aldridge report and the statement of claim. It is not necessary to require the parties to go to the trouble and expense of preparing affidavits when counsel can simply provide the court with a copy of the report in question and the pleadings.

[13] In my view, requiring affidavit evidence would not be consistent with the object of securing the inexpensive determination of every proceeding on its merits. Here, counsel agree that the Bruce-Aldridge report was tendered by Mr. Enns as a report he intends to rely on at trial as an expert report. As I have said, that report, together with the statement of claim, form the basis of Mr. Brun’s submissions. As a result, Mr. Cahan’s application can proceed as an application before the trial management judge.

New Rules Caselaw Update: More on Contested Applications at TMC's and CPC's


Late last year reasons for judgment were released by the BC Supreme Court finding that Trial Management Conferences and Case Planning Conferences “are not generally the forum to determine contested applications.” . Reasons for judgement were released this week by Mr. Justice Smith taking a less restrictive view of this issue.
In today’s case (Jurczak v. Mauro) the Plaintiff was injured in a motor vehicle collision.  As trial neared the Plaintiff brought an application for an adjournment and this was granted in order to give the Plaintiff time to gather appropriate medico-legal evidence.  The Court was specifically asked whether it was permissible for contested applications to be heard at TMC’s.  Mr. Justice Smith held that such practice was permitted under the Rules.  The Court provided the following reasons:

[1] At a Trial Management Conference (TMC) on March 31, 2011, I made an order adjourning the trial in this matter, which had been set for May, 2, 2010.  I indicated that I would provide written reasons because the application raised a procedural question about the circumstances under which a judge at a TMC may hear and rule upon a contested adjournment application.

[2] The TMC was created by the new Supreme Court Civil Rules, B.C. Reg. 168/2009 that came into effect on July 1, 2010.  Rule 12-2 (9) sets out a broad range of orders that can be made by the presiding judge at a TMC “whether or not on the application of a party.”  These include, at subparagraph (l), an order adjourning the trial.  However, Rule 12-2 (11) prohibits a TMC judge from hearing an application for which affidavit evidence is required…

[7] I do not understand Vernon to be suggesting that a judge at a TMC can never order an adjournment if one party objects.  No such restriction appears in Rule 12-2.  The Rule prohibits hearing applications that require affidavit evidence.  It is for the judge to decide whether a particular application requires affidavit evidence and whether any affidavits that have been tendered are relevant.

[8] The orders permitted by Rule 12-2 (9) are, broadly speaking, procedural in that they deal with the conduct of the trial, including how certain evidence is to be presented, the length of the trial and, in subparagraph (q), “any other matter that may assist in making the trial more efficient.”

[9] Rule 12-2 (3) requires the parties to file trial briefs in Form 41 identifying the issues in dispute (which, by that stage, may not be all of the issues raised in the pleadings), listing the witnesses, including experts, to be called and estimating the time necessary for the evidence of each witness.  The trial brief is an unsworn statement of counsel or the self-represented party.  The Rule clearly contemplates that the judge will make orders based on the information contained in the trial briefs, as supplemented by what is said at the TMC.  That is the only basis on which the orders permitted by the Rule could be made.

[10] In some cases where an adjournment, or any other order is sought, a judge may decide that supporting information is not adequate.  That was the situation in Vernon, where Goepel J. was presented with an affidavit of the plaintiff setting out the prejudice that would flow from an adjournment.  That evidence had to be weighed against any evidence of prejudice to the defendant if the adjournment was not granted.  Once the plaintiff’s affidavit was found to be relevant, evidence in proper form was required from the defendant and counsel’s statements, standing alone, were not acceptable.

[11] However, there are situations where the need for an adjournment can be clearly assessed on the basis of information provided at the TMC and affidavit evidence would be of no assistance.  For example, a judge may be able to determine simply from the trial briefs that the trial cannot possibly be completed in anything close to the estimated time, or that the number of pre-trial matters still to be dealt with shows that the case is not ready for trial.  If the judge could not order an adjournment in those circumstances, a large part of Rule 12-2’s purpose would be defeated….

[18] In summary, the fact that the adjournment application was contested would not, in itself, have prevented me from hearing and deciding it at the TMC.  In the circumstances, affidavit evidence was not necessary. I had jurisdiction to consider the adjournment application on the basis of information in the trial briefs and the statements of counsel at the TMC and I would have made the same decision had the matter proceeded on that basis.

New Rules of Court Update: Contested Applications At CPC's and TMC's


(Note: this area of law is still developing, for a further case addressing this issue click here)
Two of the biggest changes under the New Supreme Court Rules are the introduction of Case Planning Conferences and mandatory Trial Management Conferences (CPC’s and TMC’s).
The New Rules give the Court significant powers to make various orders with respect to the conduct of lawsuits at these hearings.  Interesting reasons were recently brought to my attention addressing the limit of the Court to address contested matters at CPC’s and TMC’s.
In the recent case (Vernon v. British Columbia (Liquor Distribution Branch)) the Plaintiff sued the Defendant for wrongful dismissal.  As the lawsuit progressed the parties attended a Trial Management Conference.  At the TMC the Defendant asked for various orders including an adjournment of the upcoming trial and a partial publication ban of the trial.  These applicaitons were contested by the Plaintiff.  Mr. Justice Goepel dismissed the applications finding that TMC’s and CPC’s were inappropriate forums for contested applications.  The Court provided the following reasons:

[21]        The issue in this case is whether counsel’s statements provide a sufficient evidentiary foundation for the orders that the defendant seeks. The applications for an adjournment and a publication ban both require the exercise of judicial discretion to consider competing interests. In the case of the adjournment, the contest is between the defendant’s need for additional time to prepare its case and the potential prejudice to the plaintiff if the case is adjourned. With regard to the publication ban, the court must weigh the salutary effect

[22]        The adjournment and publication ban applications both require a proper evidentiary foundation. Statements of counsel alone are not sufficient. To paraphrase Lambert J.A. in Nichols, where statements of counsel stand alone, it will be a rare case that such statements will be sufficient to justify a finding of fact that would permit the exercise of judicial discretion. This is not such a case.

[23]        While CPCs and TMCs have a role to play in the orderly progress of litigation, they are not generally the forum to determine contested applications. Such applications will usually require affidavit evidence and pursuant to the provisions of Rule 12-2(11) and 5-3(2) applications requiring affidavit evidence cannot to be heard at such conferences. In this case affidavit evidence is necessary to determine the defendant’s applications for an adjournment and a publication ban. Those applications cannot be heard at a TMC.

[24]        This is not to say that a judge cannot make orders at a CPC or a TMC. Clearly, a judge can. Many of the orders contemplated at such a conference will not require applications or affidavit evidence. The Rules allow a judge to make an order absent an application. Many of the orders suggested in the respective rules are procedural in nature and more in the nature of directions. Such orders can be based on the representations of counsel. An example is the present application concerning the order of proceedings at trial.

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ERIK
MAGRAKEN

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When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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