Tag: Rule 8-1(4)

Inadequate Notice of Application Criticized By the BC Supreme Court

Written by admin on September 3, 2013. Posted in BCSC Civil Rule 8, Civil Procedure, Uncategorized. 178 Comments on Inadequate Notice of Application Criticized By the BC Supreme Court

Reasons for judgement were released last week serving as a reminder that the new Rules of Court require fulsome arguments to be set out in applications filed with the Court.
In last week’s case (Dupre v. Patterson) the Defendant brought a summary trial application seeking to dismiss the Plaintiff’s lawsuit. Not only was the application unsuccessful with the Court finding the Defendant at fault for the collision underlying the litigation, the Court went on to give the following criticism of applications that fail to set out adequate factual or legal arguments in their support:
[44]         Before concluding, I wish to say a few words about the material filed.
[45]         The defendant’s notice of application filed July 3, 2013, did not comply with the Supreme Court Civil Rules. The complete “Factual Basis” for the summary trial was set out on about three pages, double spaced. The “Legal Basis” section said in its entirety:
1.         Rule 9-7
2.         Rule 14-1(12) – costs
3.         Motor Vehicle Act, RSBC1996, c. 318, Part 3, section 183(2)(c).
[46]         There was not even a brief statement to the effect of “The court should dismiss the action because” and then setting out the reason or reasons why, in the defendant’s submission, that should be the result.
[47]         In Zecher v. Josh, 2011 BCSC 311, Master Bouck was faced with a similar situation, where the Legal Basis section in particular of the notice of application was wholly inadequate. Master Bouck described what was required in order to comply with the Rules and said:
[29]      The defendants’ application for production of wage loss particulars and a calculation of any wage loss claim was dismissed due to the inadequacy of the material and argument presented. Both the factual and legal basis for the application are wanting.
[30]      Form 32 of the SCCR [Supreme Court Civil Rules] lends itself to providing both the opposing party and the court with full disclosure of the argument to be made in chambers. Parties should put in as much thought to the necessary content of that Form as is done when preparing the supporting affidavits. When a party is represented, responsibility for that content lies with counsel.
[31]      No doubt the Lieutenant Governor-in-Council intended Part 3 of Form 32 to contain more than a cursory listing of the Rules that might support the particular application. For example, common law authorities can and should be included as well as a brief legal analysis. Such an analysis is particularly helpful given that parties are not able to present a separate written argument in civil chambers unless the application is scheduled to take two hours or more of court time.
[32]      In my experience and observation, a comprehensive legal analysis can easily be included in a 10-page notice of application. As well, Rule 8-1(4) allows the parties to include a list of authorities in the application record.
[33]      By providing an effective analysis of the legal basis for (or against) making the order, the parties may well be able to resolve the application without attending court.
[34]      As an aside, I should note that the sparse content of this particular notice of application is unfortunately not unique; many such inadequate notices have been presented in chambers.
[48]         I agree with and adopt Master Bouck’s comments concerning what a notice of application must contain. The same will apply with respect to an application response (Form 33), and the notice of application and application response under the Supreme Court Family Rules (Forms F31 and F32).
[49]         In Fraser, Horn and Griffin, The Conduct of Civil Litigation in British Columbia, 2nd ed. loose-leaf (Markham: LexisNexis, 2007) one of the leading texts on practice and procedure, the authors say this concerning the “Legal Basis” section of a notice of application, at p. 32-3 [notes omitted]:
            The notice must set out the rule, enactment or other jurisdictional authority relied on for the orders sought and any other legal arguments on which the order sought should be granted (Rule 8-1(4)(c)). If appropriate, applicable cases may be cited. The argument to be made in chambers should be fully disclosed and should contain more than a cursory listing of the rules that might support the particular application.
[50]         The requirements under the current Rules represent a fundamental change from the practice under the former Rules of Court. Under the former Rules, Rule 44(3) and Form 55 (the form of notice of motion) only required a bare statement of the Rule or enactment relied upon. An outline (see Form 125 and former Rule 51A(12)), outlining the legal arguments to be made, was then delivered later in the exchange of motion materials and prior to the hearing. That is not the practice under the current Rules.
[51]         If a notice of application does not contain the information now required under the Rules, the party filing it has failed to give proper notice – to the opposing party and to the court – of the nature of the application. However, all too frequently, counsel in both civil and family cases are signing and filing inadequate notices of application and application responses. The notice of application filed in this case was not at all unique. However, such documents do not comply with the Rules.
[52]         In contrast to the bare-bones notice of application filed on behalf of Ms. Patterson, the application response was comprehensive and, in the page limit allowed under the Rules, set out both a detailed summary of the facts and an analysis of the legal basis on which the plaintiff said the court should find the defendant liable. It represents the standard expected by the court.
[53]         In this case, the inadequacy of the notice of application was compounded by defendant’s counsel tendering a 14-page written submission at the hearing. Since the hearing was estimated and set for 90 minutes, this was in breach of Rule 8-1(16).
[54]         Rarely will a judge or master refuse to receive a written argument from counsel, provided it is not being used to “sandbag” or take the opposition by surprise. However, tendering a written argument at the hearing is neither an alternative to, nor a substitute for, setting out the “Legal Basis” in a notice of application or an application response in accordance with what the Rules and the case law require.
[55]         When counsel come to court with inadequate materials, which fail to comply with the Rules, judges and masters are placed in a very difficult position. What often happens is that, to avoid the inconvenience and expense of an adjournment, matters proceed despite the inadequate materials, and judges and masters do the best they can in the circumstances. But inadequate motion materials, which fail to comply with theRules, are incompatible with the efficient and timely disposition of applications.
[56]         If counsel are coming to court with inadequate material that clearly fails to comply with the Rules, and counting on being heard, they are misguided. Judges and masters are entitled to expect that counsel will prepare application materials (including affidavits) that comply with the Rules, and do no less than this. Counsel who come to court with application materials that do not comply risk having their applications at least adjourned, with potential cost consequences, until proper materials are filed.
[57]         That completes my ruling.

Chambers Advocacy: Legal Authorities To Be Disclosed in Notice of Application

Written by admin on December 20, 2011. Posted in BCSC Civil Rule 8, Civil Procedure, Uncategorized.

One of the ongoing trends in civil litigation is a trend to greater pre-trial disclosure. Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, addressing this principle finding that caselaw should be disclosed ahead of Chambers Applications to avoid “chambers by ambush“.
Last week’s case (De Corde v. De Corde) involved a motor vehicle collision. The Defendant brought a short notice application to compel the Plaintiff to be assessed by a psychiatrist. The application was dismissed and in doing so Master Bouck provided the following feedback about case-law disclosure for Chambers applications:

[65] The defence took exception to plaintiff’s counsel relying on authorities that were not cited in the response to the notice of application. In fact, the plaintiff makes no reference to any case law in her response. In contrast, the defendants prepared a comprehensive notice of application – including a synopsis of the legal basis for the application with reference to all of the authorities presented in oral argument.

[66] The defence position is not without merit. Both the notice of application and response under the SCCR invite a party to provide a thoughtful written synopsis of legal argument. A properly prepared notice of application or response ensures that the opposing party knows the argument to be met. Thus, there should be no longer be occasion for “chambers by ambush”.

[67] Indeed, in my view, it should be only in the rare instance that a party will surprise the other by citing in oral argument authorities not mentioned in these forms.

[68] Nonetheless, an application brought on short notice would seem to me to be one of those rare instances. Plaintiff’s counsel should not be faulted for any apparent omission in a response necessarily prepared on the eve of the application.

Applications Under the New Supreme Court Rules: How Much Detail Does Form 32 Require?

Written by admin on March 16, 2011. Posted in BCSC Civil Rule 8, Uncategorized.

Two of the changes in the new BC Supreme Court Civil Rules are the requirement under Rule 8-1(4) that pre-trial applications be brought using Form 32 and that parties are generally prohibited from providing the Court with written arguments during applications. Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, addressing how much detail parties should include when filling out Form 32.
In today’s case (Zecher v. Josh) the Plaintiff was injured in a motor vehicle collision. The Defendant brought a motion asking the Plaintiff to produce a Pharmanet Printout, monthly statements from his student line of credit, and particulars of his wage loss claim. The applications were dismissed “largely due to the inadequacy of the material presented”. For this reason the judgement does not go far in addressing the substance of such applications under the new Civil Rules. However, in dismissing the applications Master Bouck provided the following helpful reasons guiding litigants when preparing Form 32:

[30] Form 32 of the SCCR lends itself to providing both the opposing party and the court with full disclosure of the argument to be made in chambers. Parties should put in as much thought to the necessary content of that Form as is done when preparing the supporting affidavits. When a party is represented, responsibility for that content lies with counsel.

[31] No doubt the Lieutenant Governor-in-Council intended Part 3 of Form 32 to contain more than a cursory listing of the Rules that might support the particular application. For example, common law authorities can and should be included as well as a brief legal analysis. Such an analysis is particularly helpful given that parties are not able to present a separate written argument in civil chambers unless the application is scheduled to take two hours or more of court time.

[32] In my experience and observation, a comprehensive legal analysis can easily be included in a 10-page notice of application. As well, Rule 8-1 (4) allows the parties to include a list of authorities in the application record.

[33] By providing an effective analysis of the legal basis for (or against) making the order, the parties may well be able to resolve the application without attending court.