Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, deciding whether a case that was filed before Rule 68 applied could later be brought into the scope of the Rule.
In today’s case (Sahota v. Sandulo) the Plaintiff sued as a result of personal injuries from a BC Car Crash. The case was filed in New Westminster in 2005, a time when Rule 68 did not apply to that Court Registry. The matter was set for Jury Trial. As trial neared the Plaintiff brought an application to move the case into Rule 68 which would have a number of implications including getting rid of the defendants right to have the matter heard by a Jury.
Mr. Justice Holmes dismissed the application holding that “where an action is commenced before the introduction of Rule 68, the Court has no jurisdiction to make an order bringing the action within the Rule over the objection of one of the parties” In reaching this conclusion he agreed with the reasoning of Mr. Justice Macaulay in a case called Servos v. ICBC where the Court held as follows:
9 The plaintiff argues that any existing proceeding, regardless of the stage it is at, can be transferred into the pilot project if the parties consent. In written argument, he says that the rule is silent on whether the court may order the transfer in the absence of consent and that, accordingly, the court has “the discretion to make any order, which it considers the circumstances require, particularly where it tends to prevent the misuse of the process”. He does not suggest that the defendant is misusing the process in withholding consent in this case. The plaintiff relies on Bell v. Wood,  1 W.W.R. 580 (B.C.S.C.), considered in MacMillan Bloedel Ltd. v. Galiano Conservancy Assn.,  B.C.J. No. 2477 (C.A.), for the proposition set out above.
10 With respect, I do not agree that the principle set out applies here. In Bell, the court addressed its discretion to make orders regarding procedure as the circumstances may require “when the Rules are silent on the subject and especially when it tends to prevent misuse of the process” at (para. 6). The particular question was whether an affidavit could be filed on an application for trial by jury when the rules were silent on the question. MacMillan Bloedel addressed the court’s jurisdiction to permit the continuation of an examination for discovery on the issue of whether special costs should be ordered against a plaintiff that applied to discontinue the action five weeks before trial.
11 I read those decisions as affirming the court’s inherent jurisdiction to craft procedural rules when necessary because the rules do not anticipate the particular problem, but not as anything more. Once a statute covers a matter, it is well understood that inherent jurisdiction cannot be relied on except to fill a functional gap or vacuum: Unity Insurance Brokers (Windsor) Ltd. v. Unity Realty & Insurance Inc.,  O.J. No. 1069, 251 D.L.R. (4th) 368 (Ont. Div. Ct.). It represents the reserve or fund of powers which the court may draw on as necessary when it is just or equitable to do so, but it is not unlimited and cannot be exercised contrary to any statutory provision. See Glover v. Minister of National Revenue (1980), 29 O.R. (2d) 392, 113 D.L.R. (3d) 161 (Ont. C.A.), aff’d  2 S.C.R. 561.
12 There is no gap in the present circumstances. Rule 68 expressly requires the consent of the defendant. It follows that my inherent jurisdiction does not extend to overriding the defendant’s lack of consent and directing the transfer of the proceeding into the pilot project.
This case will be a relatively short lived precedent, however, as Rule 68 is coming to an end as of July 1, 2010. (Click here to read my previous post discussing Rule 68’s replacement with the New BC Supreme Court Civil Rule 15).