BACKGROUND
Petition proceedings originate in the courts of equity and maintain equity’s limited fact-finding processes. They were previously called an “originating summons”, then “originating notice”, “originating application”, and finally a “petition proceeding”. The originating summons offered a way to commence certain chancery proceedings in chambers without the need to lodge an equitable bill. Accordingly, the way in which evidence is placed before the court in petition proceedings assumes a summary procedure, and a judge in chambers determines the petitioner’s right to relief.
Under the Rules of Court, “petitions” are not pleadings. Pleadings are defined to include a notice of civil claim (or notice of family claim), a counterclaim, a third party notice (civil proceedings only), and the responses to these pleadings, but do not include “petitions”. That said the Rules circumscribe the content of a petition in a manner that makes petitions analogous to pleadings. This is because both petition forms, Form 66 (civil) and Form F73 (family law), require a petitioner to set out a summary of “material facts”, as opposed to all “relevant facts” relied on.
WHEN ARE PETITIONS APPROPRIATE?
The current Rule 2-1(2) of the Supreme Court Civil Rules, and Rule 3-1(2.2) of the Supreme Court Family Rules, now set out circumstances when a petition is mandatory. The former Rule 10(1) of the Supreme Court Civil Rules was permissive, accordingly a body of caselaw developed around the issue that it was sometimes inappropriate to commence a proceeding by petition when the facts were seriously contested. Although this body of caselaw is no longer directly relevant, it remains relevant to the issue of whether the court should exercise its discretion to convert the proceeding into an action, which is discussed below.
In general, however, proceedings commenced by way of a petition are those that do not involve contentious or complex facts or serious questions of law. Petition proceedings include actions relating to wills and estate matters, trusts, interests in land, the property of infants and persons who are not legally competent, the interpretation of statutes or documents, directions relating to the determination of a claim of solicitor and client privilege, payment of funds into or out of court, and matters that legislation requires to proceed by way of a Petition.
Rule 2-1(2) of the Supreme Court Civil Rules provides that you must start a proceeding with a petition in the following circumstances:
- If you are the only person who is interested in the relief claimed, or there is no person against whom the relief is sought;
- If the proceeding is brought in respect of an application that is authorized by a statute to be made to the court;
- If the sole question at issue is one of construction of a statute, will, deed, oral or written contract or other document;
- If the relief that you are seeking from the court relates to a question arising in the administration of an estate of a deceased person or the execution of a trust, or the performance of an act by a person in his or her capacity as executor, administrator, or trustee, or the determination of the persons entitled as creditors or otherwise to the estate or trust property;
- If the relief you are seeking relates to the maintenance, guardianship or property of infants or other persons under a legal disability;
- If the relief you are seeking relates to payment of money into or out of court;
- If the relief sought relates to land and is for:
- a beneficial interest in land;
- a declaration that settles the priority between interests or charges;
- an order that cancels a certificate of title or makes it subject to an interest or charge; or
- an order for partition or sale;
- If the relief claimed relates to a claim of solicitor and client privilege.
Rule 3-1(2.2) of the Supreme Court Family Rules is analogous to Rule 2-1(2), and provides that you must start a proceeding with a petition in the following circumstances in family law matters:
- If you are seeking an order for adoption;
- If you are seeking an order for return of a child under the Convention on the Civil Aspects of International Child Abduction signed at The Hague on October 25, 1980;
- If you are seeking an order granting a person who is not a spouse or former spouse:
- leave under section 16 (3) of the Divorce Act to make an application for
- custody of,
- access to,
- interim custody of, or
- interim access to
- a child, or
- leave under section 17 (2) of the Divorce Act to make an application for an order varying, rescinding or suspending, prospectively or retroactively, a custody order or support order.
In addition, Rule 3-1(2.4) of the Supreme Court Family Rules provides that you must use a petition, or application, if you are seeking any of the orders set out in that rule, namely: orders recognizing non-Canadian or extra-provincial orders, an order for directions sought by a guardian of a child, protection orders, an order to apprehend a child and apprehension of a child or a protection order for a child under the Child, Family and Community Service Act.
Below are some examples of legislation that require some matters to proceed by way of a petition:
- Residential Tenancy Act and Strata Property Act;
- Family Law Act, Divorce Act and Child, Family and Community Service Act;
- Public Guardian and Trustee Act, Patients Property Act, Adult Guardianship Act, Wills, Estates and Succession Act;
- Motor Vehicle Act;
- BC Business Corporations Act and Canada Business Corporations Act (e.g., oppression proceedings commenced by a shareholder(s));
- Infants Act (e.g., for an order approving a settlement for a minor over $50,000 where no action has been commenced);
- Judicial review of decisions made under the Workers Compensation Act;
- Adoption Act; and
- Petitions for judicial review under the Judicial Review Procedure Act from Provincial Court orders.
When a proceeding is commenced by way of a petition there is no trial with witnesses. The matter is heard by a judge in chambers and the evidence is presented by affidavits only. Oral testimony is seldom required, although cross-examination on an affidavit is available with leave of the court. Importantly, some of the typical discovery procedures available in regular actions, such as discovery of documents, oral examinations for discovery and pre-trial conferences, are not available in petition proceedings.
The circumstances under which injunctive relief can be obtained in petition proceedings may also be limited. If the purpose of bringing a petition proceeding is to obtain an injunction, check the act that authorizes the proceeding by way of a petition to ensure it also authorizes the court to grant the injunction the petitioner seeks.
THE RULES
Petitions are governed by Rule 16-1 of the Supreme Court Civil Rules. The analogous Rule of the Supreme Court Family Rules is Rule 17-1.
Rule 16-1(2) provides that an originating application is filed by way of a Form 66 petition (Form F73 in family law proceedings). In addition to such formalities as the style of proceeding, identification of the petition respondents, address for service, and so on, both Form 66 and From F73 requires pleading of:
-
- the order(s) sought;
- the factual basis for the petition;
- the legal basis for the petition; and
- the material facts relied on.
In family law, adult guardianship and estate proceedings, there are often pre-done precedents for petitions that set out the minimum information which must be included in the petition, as well as the supporting affidavits. This applies, in particular, to adoption petitions and committeeship applications. Before filing a petition, check the Practice Directions on the British Columbia Supreme Court website, and the applicable CLE BC guides for directions and precedents.
Petitions are set down for hearing in a slightly different manner compared to applications. The complete petition is served on interested parties, and after the prescribed period for the response to the petition passes, the petitioner files a notice of hearing in Form 68 (or Form F75 in family law proceedings) to schedule the hearing. The petition may be set for 9:45 a.m. on a regular judge’s chambers day, or scheduled through the registry for petitions estimated to take longer than two hours (see Rule 16-1(8) of the Supreme Court Civil Rules and Rule 17-1(8) of the Supreme Court Family Rules). Note that, as is the case with typical applications, the rules also require that the petitioner files a petition record no later than 4 p.m. on the day that is one full day before the date set for the hearing (see Rule 16-1(11) of the Supreme Court Civil Rules and Rule 17-1(11) of the Supreme Court Family Rules).
Since petition proceedings are abridged, in general, matters commenced by way of petition can be heard in a relatively short time, although an early hearing date will not always be available for multi-day petitions that involve complex and time-consuming issues.
SUMMARY OF THE MAJOR DIFFERENCES BETWEEN ACTIONS & PETITIONS
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ACTIONS |
ORIGINATING APPLICATIONS |
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Start the claim using: |
Notice of Civil Claim. |
Petition. |
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Parties are called: |
Civil: Plaintiff(s) and Defendant(s). Family: Claimant and Respondent(s). |
Petitioner(s) and Respondent(s). |
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Type of hearing: |
Full or summary trial/summary judgment. |
Hearing before a judge in chambers. |
|
Type of evidence to support the claim: |
Witnesses come to court to testify in person and the court also considers documentary evidence. |
Witness do not give evidence in person (unless leave is obtained to cross-examine on an affidavit). All evidence is given in the in the form of affidavits. |
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Process: |
More complicated. The notice of civil claim/ notice of family claim is usually used when the facts of the claim are in dispute. Because the court may need to determine the facts so it can make a decision about the claim, a trial is often necessary. |
Less complicated. The petition is usually used in cases where the facts are not in serious dispute so that they can be determined by a judge reading the evidence set out in affidavits. In some cases, a petition must be used to start a claim. |
|
Facts are presented: |
The notice of civil claim (Form 1) (or notice of family claim – Form F3) is used to present the facts supporting your claim. It also sets out the relief that you want the court to grant against each defendant. |
The petition includes a short statement of facts supporting the claim. Instead of a notice of civil claim/notice of family claim, a sworn affidavit is filed with the petition. Where appropriate, the person swearing the affidavit swears that the facts in the petition are true. |
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Discovery of documents and people: |
Before the trial, the plaintiff and defendant are both entitled to see the evidence of the other party (document discovery) as well ask questions of the other side in a meeting called an examination for discovery. |
Before the hearing, the petitioner cannot ask for documents from the petition respondent or ask him or her questions. All evidence is presented in the form of affidavits. |
CONVERTING PETITIONS TO ACTIONS
Rule 22-1(7)(d) of the Supreme Court Civil Rules, and Rule 10-3(7)(d) of the Supreme Court Family Rules, gives the court the power to convert a petition proceeding into an action. This may include an order that parties file pleadings, an order setting a trial of the petition and directions governing the conduct of pre-trial proceedings (e.g., Examinations for Discovery, document exchange, etc.).
In particular, both rules provide that the court has discretion to:
order a trial of the chambers proceeding, either generally or on an issue, and order a pleading to be filed and, in that event, give directions for the conduct of the trial and of pre-trial proceedings and for the disposition of the chambers proceeding
The test, and considerations, to be applied for conversion of a petition proceeding to an action were summarized by our Supreme Court in Southpaw Credit Opportunity Master Fund P v. Asian Coast Developemnt (Canada) Ltd., 2012 BCSC 14 in the context of an oppression proceeding. In Southpaw, the minority shareholders unsuccessfully sought an order to convert the petition proceeding to an action.
Justice Weatherill summarized the law on this issue in Southpaw as follows, at paras. 25 to 27:
[25] The test to be applied for a conversion of a petition proceeding to an action is whether there are bona fide issues between the parties that cannot be resolved on the documentary evidence: Courtenay Lodge Ltd. v. British Columbia, 2011 BCSC 1131, at para. 18.
[26] Madam Justice Balance discussed the approach to be taken by the court in applying this test inBoffo Developments (Jewel 2) Ltd. v. Pinnacle International (Wilson) Plaza Inc., 2009 BCSC 1701 at para. 49:
The authorities indicate a tendency of the Court to convert a summary process to a full trial where serious and disputed questions of fact or law are raised. However, the mere existence of a bona fide triable issue may not, of itself, be enough to warrant conversion to the trial list. If lesser measures will suffice, such as ordering cross-examination on affidavits, or even more broadly, and allowing some document disclosure, then the Court may decide against exercising its discretion to order conversion even where a bona fide triable issue is present: Woodward’s Ltd v. Montreal Trust Co., [1992] B.C.J. No. 1263, 69 B.C.L.R. (2d) 348 (S.C.); Canada Trust Co. v. Ringrose, [2008] B.C.J. No. 1790, 2008 BCSC 1268. That would be especially likely where practical considerations such as costs and timeliness militate against ordering a conventional trial.
[27] In Terasen Gas Inc. v. Surrey (City), 2009 BCSC 627, Madam Justice Dardi summarized the factors the court is to consider in determining whether to order conversion to an action. They are:
(a) the undesirability of multiple proceedings;
(b) the desirability of avoiding unnecessary costs and delay;
(c) whether the particular issues involved require an assessment of the credibility of witnesses;
(d) the need for the court to have a full grasp of all the evidence; and
(e) whether it is in the interests of justice that there be pleadings and discovery in the usual way to resolve the dispute.
In the Southpaw case, another relevant factor the court considered was timeliness; in other words, a consideration of whether the application was brought at too early of a stage in the proceeding for the court to determine whether the claim can be properly tried by way of the summary procedure contemplated by the statutory framework. This factor was considered by Madam Justice Wedge in Orr v. Primary metals Inc., 2008 BCSC 73.
In regards to a statutory framework, our Supreme Court , in an earlier decision, confirmed that the test for conversion of a petition proceeding to an action is the same whether the direction to bring the proceeding by petition is found in an authorizing statute or in the Rules of Court: Courtenay Lodge Ltd. v. British Columbia, 2011 BCSC 1131.
In Courtenay Lodge, the petitioner appealed a tax assessment imposed on it by the Crown as a result of its purchase of a property in 2006 at a price of $8,500,000. The petitioner argued that the fair market value of the real property was $3,550,000, as allocated in the purchase and sale agreement. The Crown’s position was that the allocation was not determinative and that the properties had a fair market value of $6,272,000. Ultimately, the amount of tax in dispute was $53,310. The Crown brought an application to convert the proceedings to an action, and in the alternative, for discovery of documents and an opportunity to examine the petitioner’s representative to determine how he allocated the purchase price. The Crown’s application was denied on the basis that in addition to proving the existence of a bona fide triable issue, the Crown had not demonstrated that the facts necessary to determine the bona fide triable issue could not be resolved on the documentary evidence presented in the petition.
DEFENDING PETITION APPLICATIONS
In civil and family law petitions, a respondent has 21 days to respond to the petition if the respondent was served with the petition anywhere in Canada, 35 days if the respondent was served in the United States of America, and 49 days if the respondent was served anywhere else, or as set out by the court.
To respond to a petition, in civil matters the respondent completes and files Form 67, and attaches supporting affidavits and other documents relied on in the petition. In family law matters, the analogous form is Form F74.
Rule 16-1(5) of the Supreme Court Civil Rules and Rule 17-1(5) of the Supreme Court Family Rules, set out what must be included in a response to a petition. As is the case with a typical application response, when responding to petitions a respondent must include the following information:
- Indicate, for each order sought, whether the respondent consents to, opposes, or takes no position on the requested order.
- If the respondent wishes to oppose any of the relief sought in the petition:
- o briefly summarize the factual and legal bases on which the orders sought should not be granted;
- o list the affidavits and other documents on which the respondent intends to rely on at the hearing; and
- o set out your estimate of time the petition will take for hearing.
NOTEWORTHY CHANGES
Form 66 and Form F73 refer to pleading “material facts” as opposed to “relevant facts”. Under the former Rules, the petition required the petitioner to include all “relevant facts” relied on in support of the petition. This may represent a change from the practice under the former Rules. The common practice under the former Rules was to set out all facts relied on to establish the petitioner’s claim to relief and then to support the petition with an affidavit in which the deponent swore that all the facts in the petition were true.
According to a CLE BC article, it is not clear whether the practice has now changed to limit petitions to a concise statement of material facts, supported by expanded affidavit evidence. Where counsel still follow the old approach, in which the petitioner swears an affidavit adopting the facts set out in the petition, it is important that counsel satisfies him/herself that the petitioner has first-hand knowledge of all the facts in the petition.