Tag: Rule 5-3

Costs Ordered Following "Unnecessary" Defence Case Planning Conference

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, addressing when Case Planning Conferences are unnecessary and finding that a costs order is appropriate in the face of such a CPC.
In today’s case (Stewart v. Robinson) the Plaintiff was involved in a collision and sued for damages.  The Defendant set down a CPC seeking an order requiring the Plaintiff to reveal the “the areas of expertise” of the experts the Plaintiff would rely on at trial.  The Defendant also sought a few collateral orders such updated lists of documents and timelines for discoveries.  The Court held that the first order was one the Court had no jurisdiction to make and that the further orders were unnecessary given that the Plaintiff was fulfilling their disclosure duties under the Rules of Court.
Master Bouck dismissed the Defendant’s application and in doing so found it was an uncessary hearing and ordered that costs be paid.  In reaching this result the Court provided the following reasons:
[25]         Rule 5-3 (3) requires the court to make a case plan order following a CPC. In my view, that requirement presumes that the CPC served some purpose…
[28]         The plaintiff submits that the sole purpose of the case planning conference was an attempt by the defence to ferret out information about the plaintiff’s experts even though such a purpose is contrary to well-established law. The plaintiff also cites Galvon v. Hopkins, 2011 BCSC 1835, and Amezcua v. Norlander, 2012 BCSC 719 (Master)…
[34]         Read together, the above authorities stand for these propositions:
1.  rules of civil procedure do not trump substantive law, including the principle of litigation privilege;
2.  a party is not required to reveal, in a case plan proposal or order or otherwise, the name of any expert or the area of expertise of any intended expert before the 84-day deadline for the service of expert reports; but
3.  the court may order that the service requirements under Rule 11-6 (3) be abridged such that expert reports are to be served earlier than the 84 days before trial. Such an order will only be made in exceptional cases where a compelling reason for early disclosure is demonstrated.
[35]         While a party may volunteer details of their expert evidence in advance of the 84-day deadline, a CPC is not required for that purpose. The information can simply be provided in correspondence without the necessity of judicial involvement. As the court determined in Dhugha, the omission of the name of an expert or his or her area of expertise from a case plan order does not preclude the admission of that expert evidence at trial.
[36]         Thus, the order sought in the defendant’s case plan proposal with respect to experts could not be made by the court. The order proposed by the defence at the CPC with respect to experts is not necessary.
[37]         That leads to the next question: was a CPC necessary for any other purpose? In my view, it was not.
[38]         An order requiring the parties to exchange further amended lists of documents by certain dates is not necessary. Both counsel acknowledge the duty to provide ongoing document disclosure as required by theSCCR. The suggested deadlines micromanages a case that does not require such management.
[39]         An order requiring delivery of a certain therapist’s records by a specified date is also not required. The plaintiff has volunteered to provide those records.
[40]         An order identifying the timing and length of examinations for discovery is also unnecessary. The parties have agreed to examination dates. The length of these examinations was not seriously in dispute at this conference and did not require judicial management.
[41]         In short, I find that no case plan order ought to or need be made at this time…
[46]         Having already concluded that the CPC was unnecessary, I award the plaintiff costs related to counsel’s preparation and attendance and the conference. Those costs are fixed at $750 all inclusive, not payable forthwith.
 

Case Planning Conferences Cannot be Used "to force a party to identify specific medical experts"

Reasons for judgment were released today addressing the boundaries of the BC Supreme Court’s power to make orders respecting the identity of expert witnesses at a Case Planning Conference.
In today’s case (Dhunga v. Ukardi) the Defendant set down a Case Planning Conference some 15 months before trial and “sought an order that the plaintiff immediately disclose the areas of expertise of any experts whose evidence will be tendered at trial and an order limiting the expert evidence at trial to those areas of expertise.“.  Mr. Justice Smith rejected this request finding the Court has no jurisdiction to make such an order.  In reaching this conclusion the Court provided the following reasons:
[5] The orders that may be made at a CPC are set out in Rule 5-3(1). The relevant ones for the purpose of these reasons are Rule 5-3(1)(k) and (v):
(1) At a case planning conference, the case planning conference judge or master may make one or more of the following orders in respect of the action, whether or not on the application of a party:

(k) respecting experts, including, without limitation, orders
(i) that the expert evidence on any one or more issues be given by one jointly-instructed expert,
(ii) respecting the number of experts a party may call,
(iii) that the parties’ experts must confer before the service of their respective reports,
(iv) setting a date by which an expert’s report must be served on the other parties of record, and
(v) respecting the issues on which an expert may be called;

(v) any orders the judge or master considers will further the object of these Supreme Court Civil Rules.
..
[16] As pointed out in Amezcua, Rule 5-3(1)(k) sets out a number of specific orders that may be made in regard to experts, but those do not include an order disclosing an expert’s identity or the area of his or her expertise before the report is served, much less an order barring any additional experts or areas of expertise. If Rule 11-1(2) was intended to refer to such an order, I would have expected to see a corresponding provision in Rule 5-3(1)(k).
[17] I recognize that the list of specific orders in Rule 5-3(1)(k) is stated not to limit the orders that may be made and that Rule 5-3(1)(v) allows for any other orders the judge or master considers will further the object of the rules. However, as was said in Galvon, such general provisions are not sufficient to override basic and clearly established common law rights…
[22] Rule 11-1(2) cannot be used at a CPC to force a party to identify specific medical experts or areas of medical expertise or to limit the party’s case at trial to those experts.
To my knowledge this case is not yet publicly reported but a copy of the reasons can be found here: Dhugha v Ukardi
 

Case Plan Conference Orders Can't Trump Privilege

Last year I highlighted a decision confirming that the Court’s powers under the new rules of court don’t allow orders to be made which will trump legitimate privilege claims.  Reasons for judgement were released earlier this month by the BC Supreme Court, Vancouver Registry, confirming this principle.
In the recent case (Blackwell v. Kwok) the Defendant sought an order at a Case Planning Conference requiring the Plaintiff to disclose the specialty of the expert witness(es) the Plaintiff intends to rely on.  The Court refused to make this order finding it would trump the privilege in the Plaintiff’s counsel’s solicitor’s brief.  In dismissing the request Mr. Justice Funt provided the following reasons:
[11]         Plaintiff’s counsel referred me to the Court’s decision in Nowe v. Bowerman, 2012 BCSC 1723.  In Nowe, the defendant proposed that each party be limited to one expert each and that the plaintiff advise the defendant of the area of expertise by November 17, 2012, approximately ten months before the scheduled trial.  The Court denied the application:
[10]  The area of expertise of an intended expert witness is a matter of trial strategy.  Trial strategy is a key component of a solicitor’s brief.  It may well evolve as plaintiff’s counsel builds a case and makes decisions based upon a myriad of factors and considerations.  Intentions may change as the process unfolds over time.
[11]  In my view, unless and until the intention to rely upon a particular expert in a particular field is declared by delivery of a report in accordance with the timelines established by the Rules, in the absence of a compelling reason an early incursion into this aspect of the solicitor’s brief will not be justified.
[12]  That being said, there may well be cases in which a departure from the usual timelines can be justified.  For example, in complex cases such as those involving brain injuries as a matter of fairness it may be necessary to provide defence counsel with a longer period than would be available under the usual regime in order to schedule appointments with certain kinds of experts. …
[12]         I note that in Nowe, the plaintiff argued that it was “not the kind of case in which a long period is required in advance of an appointment being made with a certain type of expert” (para. 7).  Although possibly a longer period may be justified in some cases, I am not satisfied that a “departure from the usual timelines can be justified” in the case at bar.
[13]         In my view, the defendants’ application should be rejected.  I see no prejudice if the normal rules for delivery of expert reports apply.  If the defendants choose to retain an expert to conduct an independent medical examination and prepare a report based on the plaintiff’s pleaded injuries, but no psychological injury is alleged at trial, an appropriate award of costs will afford the defendants the necessary relief.
[14]         Not surprisingly, I cannot state matters better than Chief Justice McEachern in Hodgkinson: “While I favour full disclosure in proper circumstances, it will be rare, if ever, that the need for disclosure will displace privilege”.
[15]         The Court declines to make the order sought.
 

BC's New Rules of Court Don't Trump Solicitor's Brief Privilege

Earlier this year I highlighted two  judgements (here and here) discussing that the New Rules of Court don’t allow the Court to override solicitor’s privilege.  Further reasons for judgement were recently released by the BC Supreme Court, Vancouver Registry, confirming this principle.
In the recent case (Nowe v. Bowerman) the Plaintiff was injured in a 2008 motor vehicle collision and sued for damages.  The Defendant set down a Case Planning Conference asking for an order that “Plaintiff’s counsel advise the defence of the areas of expertise of his proposed experts“.
Madam Justice Dickson dismissed this request finding it would infringe on solicitor’s brief privilege.  In doing so the Court provided the following reasons:
[10]  The area of expertise of an intended expert witness is a matter of trial strategy.  Trial strategy is a key component of a solicitor’s brief.  It may well evolve as plaintiff’s counsel builds a case and makes decisions based upon a myriad of factors and considerations.  Intentions may change as the process unfolds over time.
[11]  In my view, unless and until the intention to rely upon a particular expert in a particular field is declared by delivery of a report in accordance with the timelines established by the Rules, in the absence of a compelling reason an early incursion into this aspect of the solicitor’s brief will not be justified.
[12]  That being said, there may well be cases in which a departure from the usual timelines can be justified.  For example, in complex cases such as those involving brain injuries as a matter of fairness it may be necessary to provide defence counsel with a longer period than would be available under the usual regime in order to schedule appointments with certain kinds of experts.  In this case, however, I am unable to identify such a compelling reason.  In these circumstances, I decline to make the order sought.
To my knowledge these reasons for judgement are not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.

You Can't Be Forced to Show Your Hand: Litigation Privilege and Expert Reports


Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, dealing with the limits of the Court’s power to order litigants to reveal which experts they may rely on at trial.
In the recent case (Amezcua v. Norlander) the Plaintiff was injured in two separate collisions.  The first took place some 14 years ago.  Commenting on the pace of litigation the Court noted that “the wheels of justice have ground so slowly that at times they stopped“.
The Defendant was apparently not aware of the nature of the injuries the Plaintiff was advancing.  An application was brought at a Case Planning Conference seeking the Plaintiff to “confirm which experts and expert reports it plans to rely on at trial“.  The Defendant argued that the Court can make such an order under Rule 5-3(1).
Master Baker noted that such an order would infringe on litigation privilege.  The Court did, however, order an accelerated date for the Plaintiff to serve his expert reports noting the slow pace of litigation.  Master Baker provided the following reasons:

[7]As I said above, the defendant Taylor asks for an order that the plaintiff “…confirm which experts and expert reports it plans to rely on at trial”.  In Galvon v. Hopkins, Kloegman J. declined to order that a party name a neurologist consulted by the party, along with the date of the appointment, or to advise of the names of subsequent experts or the dates of their appointments.  After considering several authorities, she concluded:

I do not see anything in Rule 5?3 governing case planning conferences that clearly, expressly, and specifically allows the presider to compel a party to provide another party with the details of any potential expert witnesses before that party has even consulted with the expert or made an election whether to call the witnesses’ evidence at trial.

Rule 5-3 does have clear and express provisions respecting experts: Rule 5-3(1)(k) permits the Court to direct the appointment of joint experts, to order that they consult, to limit the number of experts, to set dates for service of experts’ report (i.e. other than those set by Rules 11-6(3) and (4)), or to direct what issues upon which they may be called.  But none of these (other than by advancing the service date for reports) requires that a party disclose either the expert’s identity, or the area of his or her expertise before serving the report.

[8]Rule 5-3(1)(k) is not inconsistent, in my view, with the reasoning in Galvon.  The disclosure aspects of that Rule assume that evidence has been gathered, assessed, and considered essential to a party’s case.  The only question remaining then is when it will be disclosed, thus Rule 5-3(1)(k)(iv), permitting service dates other than those provided by Rule 11-6.  It is important and instructive to note the court’s reference to “potential” expert witnesses; it seems to me that Kloegman J. was concerned with protecting litigation privilege during the evidence-gathering phase, so that the party assembling his or her case is free to do so without the requirement of disclosing experts (or, I conclude, directions) that may prove fruitless and avoid adverse inferences.

[9]The defendant Taylor’s request, however, comes within Rule 5-3(1)(k) and does not ask the name or expertise of potential witnesses, but rather the details of the experts it will rely on at trial.

[10]This case, as I have mentioned, has an extraordinary aspect.  The first accident occurred approximately 13 years ago.  Such delays sometimes occur when, for example, the plaintiff is an infant.  That is not the case in this situation.  The defence is justified in its frustration and perplexity in not knowing, in any reliable way and after 13 years, the nature or extent of medical injuries suffered by the plaintiff.  That being the case, the plaintiff is ordered to deliver the reports of experts upon which she intends to rely at trial, no later than November 1, 2012.

Court Orders Particulars of Special Damages to Be Disclosed at Case Planning Conference

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, ordering a Plaintiff to provide particulars of claimed special damages.
In this week’s case (Amezcua v. Norlander) the Plaintiff was injured in two collisions.  The Defendants applied, at a Case Planning Conference, that the Plaintiff produce particulars of special damages.  In agreeing that this was an appropriate order Master Baker provided the following reasons:

[5] …In particular leading authorities on pleading confirm that it is appropriate to expect a party to plead details of special damages and, if they are not given, to demand particulars.  The author of Odgers On High Court Pleading and Practice cites, as an illustration, Hayward v. Pullinger & Partners Ltd.:

But when any special damage is claimed, without sufficient detail, particulars will be ordered of the alleged damage…

More recently and locally the authors of Conduct of Civil Litigation in British Columbia comment:

Special damages must explicitly be claimed and proved.

And further, in relation to past wage loss:

…but the weight of the authority treats these as special damages which therefore must be specifically pleaded; the defendant is also entitled to particulars.

I cite this latter quote not in respect of wage losses per se, but for the implicit assumption that a defendant is entitled to particulars of special damages.

[6] I cannot see, then, why a party should not be required to particularize his or her special damages to date.  The same, of course, cannot be said for general damages, but the defence is not asking for that.  The plaintiff will therefore give particulars of her special damages to date.

Court Can't "Ride Roughshod" Over Solicitor's Brief Privilege At a Case Planning Conference


Reasons for judgement were recently brought to my attention discussing the scope of powers of the Court at Case Planning Conferences. Specifically the Court found that Rule 5-3 does not provide the power to over-ride common law principles of privilege.
In the recent case (Galvon v. Hopkins) the Plaintiff was injured in a motor vehicle collision. She sued for damages. As the lawsuit progressed the Plaintiff did not provide any expert medico-legal evidence to the Defendant.
This concerned the Defendant who brought a Case Planning Conference and obtained an order requiring the Plaintiff to “notify counsel for the defendant of the name of the neurologist with whom the appointment had been made and the date of the appointment, and secondly, that the parties were to provide opposing counsel with written notice forthwith upon any appointment being set for the plaintiff with medical experts, such notice to include the name of the expert, the expertise of the expert, and the date of the appointment“.
The Plaintiff appealed arguing that the Court did not have jurisdiction to make such orders under the Rules of Court. Madam Justice Kloegman agreed and allowed the appeal. In doing so the Court provided the following reasons:
21. I agree with counsel for the plaintiff’s submission that Rule 5-3 cannot be read as to allow the Case Planning Conference Judge or Master to disregard the common law principle of privilege.
22. In my view, Master Bouck was fixated upon settlement of the litigation; always a commendable and important goal of a case planning conference, but not at the cost of ignoring the boundaries of her jurisdiction. It may well be that such information could have been exchanged at a settlement conference, which is a voluntary and without prejudice process, but it should not be mandated as part of trial preparation.
23. …She did not appear to consider that the object of the Rules to avoid trial by ambush only apply to evidence that would be used at trial, not to expert advice received through consultation.
24. By requiring the plaintiff to disclose the very fact of her attendance before a medical expert, and run the risk of an adverse inference if she did not call the expert at trial, the master was also interfering with the plaintiff’s right to elect which witnesses to call. Such interference is not sanctioned, or warranted, I might add, by our Supreme Court Rules.
25. Having concluded that our Rules do not grant the presider at a case planning conference the power to make the orders made by Master Bouck, it follows that she did not have the jurisdiciton to do so.
26. The appeal is allowed and Master Bouck’s orders will be set aside.

Scope of "Representations of Counsel" at Case Planning Conferences Discussed


Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing the scope of appropriate applications at Case Planning Conferences and further the prohibition of affidavit evidence in this venue.
In today’s case (Gill v. A&P Fruit Growers Ltd.) the Plaintiff was injured in a 2004 slip and fall incident.  The Defendant was found 70% at fault for this incident.
As the damages trial neared the Plaintiff brought an application to allow him to introduce evidence from two physicians by way pre-trial deposition.  The Defendant opposed arguing this order should not be made and further that such applications should not be heard at a Case Planning Conference.  Mr. Justice Willcock disagreed and provided the following feedback about the scope of CPC applications:

[17] There is still some uncertainty with respect to the scope of the prohibition against hearing applications supported by affidavit evidence on a case planning conference.  In order to effect the objectives of the Rules by making orders designed to resolve disputes efficiently and in a cost-effective manner on the merits, in my view, it will occasionally be necessary to rule on the manner in which evidence will be adduced at trial.  In some circumstances, even when such matters are hotly contested, they may be determined without affidavit evidence.  That may be the case where the issue may be determined on the basis of representations of counsel as officers of the court.

[18] It has long been the case that the courts have given evidentiary weight to the representations of counsel with respect to evidence to be called at trial, availability of witnesses and procedural questions going to trial management.  In Nichols v. Gray (1978), 9 B.C.L.R. 5 (C.A.), the Court of Appeal reaffirmed a chambers judge’s discretion to give weight to statements of counsel relating to the evidence and the conduct of trial.  It is in that context that the new Supreme Court Rules were enacted.  The prohibition against hearing applications supported by affidavit evidence must be interpreted in the light of that practice.

[19] I adopt as applicable to case planning conferences the views expressed by N. Smith J. in Jurczak v. Mauro, 2011 BCSC 512, and by Gray J. in Enns v. Cahan, 2011 BCSC 54, in addressing the similar provision in the trial management rule prohibiting the granting of orders requiring affidavit evidence: that it is for the trial management judge to decide whether a particular application requires affidavit evidence and whether any affidavits that have been tendered are relevant.

[20] In the case at bar, as in Jurczak, the evidence in the affidavits that were before me added nothing to the submissions of counsel and counsel’s advice to the court with respect to matters that ought to be canvassed at a case management conference, specifically the witnesses availability for trial and the importance of cross-examination of those witnesses to the defence case.  The affidavit evidence that I would have to weigh on the application was like that described in para. 14 of the judgment in Jurczak:

[14]      All of that relates to matters of evidence that counsel expected or wanted to put before the trial judge, the availability of that evidence, and the readiness of the defendant to proceed to trial.  Those are matters of which counsel are expected to advise the court at the TMC and the court is, of course, entitled to assume counsel’s statements are true.  Affidavits in which their legal assistants simply say the same thing about these procedural matters are of no further assistance.

[21] The enumeration of orders that may be made at a case planning conference is exhaustive but Rule 5-3(1)(k) confers a broad discretion on the case planning judge to make orders respecting expert witnesses and Rule 5-3(1)(v) confers a broad discretion to make any order that advances the objectives of the Rules.  The judicial exercise of these discretionary powers requires that some consideration be given to the nature of the orders more specifically enumerated in Rule 5-3.  The Rules contemplate active judicial management of litigation and, in particular, judicial regulation of the role of expert witnesses at trial.  The Rules require that case planning and trial management be conducted with an eye to efficiency and the proportionality of the expense of the process to the value, importance and complexity of the matters in issue.  In my view, an application for an order that expert witnesses be deposed before trial rather than testifying by a video conference at trial is clearly an order of the type that may be made at a case planning or trial management conference, if the factual matrix necessary for making such an order can be established.  Such an order is in the nature of the procedural orders enumerated in Rule 5-3.

Joint Expert Witness Appointed Despite "Vigorous" Defendant Opposition


Reasons for judgement were recently released by the BC Supreme Court, Vancouver Registry, appointing a joint expert witness against the wishes of a Defendant in an on-going legal dispute.  Although this recent case is not a personal injury claim I summarize the findings because it is the first case I’m aware of appointing a joint witness in a contested application under the ‘new’ BC Supreme Court Civil Rules.
In the recent case (Leer and Four L. Industries v. Muskwa Valley Ventures Ltd.) the Plaintiff and Defendants had a falling out in their commercial dealings.  The Plaintiff sued seeking an order that the Defendant “purchase his shares at fair market value“.  At a Case Planning Conference the Plaintiff sought an order that a joint business valuator be appointed to value the shares.  The personal Defendant “vigorously oppose(ed)” the idea of a joint expert.
Ultimately Master Scarth granted the order and in doing so provided the following useful comments of general interest in applications for joint experts:
[4] Rule 5-3(1)(k)(i) provides that at a case planning conference, a judge or master may order that expert evidence on any one or more issues be given by one jointly-instructed expert. Given the prohibition in Rule 5-3(2)(a) against hearing an application supported by affidavit evidence at a case planning conference, the court is required to rest any exercise of discretion on the pleadings and submissions to the extent that they do not require recourse to affidavit evidence: Przybysz v. Crowe, 2011 BCSC 731 at para. 59; Vernon v. British Columbia (Liquor Distribution Branch), 2010 BCSC 1688; and Jurezak v. Mauro, 2011 BCSC 512 – considering Rule 12-2(11)…
[14] Rule 11-3 was recently considered in Benedetti v. Breker, 2011 BCSC 464. Master Baker noted that while joint experts are not new to litigation in British Columbia, the new rules clearly have brought greater focus and emphasis to the appointment of joint experts and invite wider application of that process: paragraph 11…
[18] The personal defendants object to paying for expert evidence which is part of the plaintiffs’ case. Why should they pay for a report which the plaintiffs require? The answer is because it is a proportionate way to conduct this proceeding.



[19] Read together with Rule 1-3 which sets out the object of the rules, Rule 11-3, like joint expert rules in other jurisdictions, is intended to reduce litigation costs and promote the conduct of a proceeding in ways consistent with the amount involved. While in this case, the amount at issue is not yet resolved and will not be until an opinion has been obtained, the buyout of Royer in 2009 gives some indication that the amount is likely modest. In such circumstances, proportionality suggests that an effort should be made to avoid duplication of the costs of obtaining an expert report which is the likely outcome if a joint report is not ordered.

[20] It follows that the parties are required to share the cost of the expert, at least at the outset. The ultimate determination as to costs is for the trial judge.

[21] I will add that a report as to value may benefit all parties in another way. The value of Leer’s shares has been an issue and a topic of discussion between the parties since 2009, when the personal defendants offered him a buyout. A valuation will provide the parties with the information required to settle this longstanding dispute, and may promote that result.

[22] I conclude that it is appropriate to exercise my discretion in favour of the plaintiffs and to make the order set out in Rule 5-3 that expert evidence as to valuation of Leer’s shares be given by a jointly appointed expert.



Case Planning Conferences Not Necessary to Get CPC Consent Order


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.

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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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