On July 1, 2010, the new Supreme Court Civil Rules, B.C. Reg. 168/2009 (the “New Rules”) will come into effect, thereby repealing the current British Columbia Supreme Court Rules, B.C. Reg. 221/90 (the “Old Rules”).
The New Rules bring with them wide-sweeping changes to the manner in which civil, non family actions are litigated in British Columbia. While some may view rules of court as simply the procedural tools by which lawyers advance their client’s case, the scope of change brought about by the New Rules affects more than just the lawyer, and has far-reaching implications for litigants and their insurers. For instance, the New Rules are expected, in most cases, to reduce the cost of litigation, and increase the speed at which litigation is resolved, although, because of several rule changes, there is the potential for increased litigation expense in the early stages of an action.
This paper is intended to provide an overview of those aspects of the New Rules that are expected to have the greatest significance to claims handlers, rather than provide a comprehensive review of all of the changes brought about by the New Rules.
Part 1 – Interpretation
One of the objects of the New Rules has not changed from its predecessor, that is, the object is “to secure the just, speedy and inexpensive determination of every proceeding on its merits.” [Rule 1-3(1)]. However, the New Rules go one step further, and specifically endorse “proportionality” as an overriding factor that the Court must keep in mind when working with the New Rules. This concept of proportionality is a theme running throughout the New Rules, and includes taking into account (a) the amount involved in the proceeding; (b) the importance of the issues in dispute, and (c) the complexity of the proceeding [Rule 1-3(2)].
Significance: The emphasis on proportionality is expected to allow the Court to fashion more streamlined procedures for “simpler” cases, thereby reducing the cost and increasing the speed of such litigation. At the same time, in more complex cases, by applying this concept of proportionality, the Court will be able to allow litigants access to the full arsenal of procedures available under the New Rules.
Part 2 – How to Make a Claim
Part 2 of the New Rules caries on the process of being able to commence a proceeding by way of Petition [Rule 2-1(2)]. This can arise, for instance, in a case where the sole or principle question is the interpretation of a contract, such as an insurance policy.
A major change with the New Rules is the process by which an action is commenced. Under the Old Rules, this was done by a Writ of Summons and Statement of Claim. Under the New Rules, only one document must be filed to commence an action, called a Notice of Civil Claim [Rule 2-1(1)].
Part 3 – Proceedings Started by Filing a Notice of Civil Claim
Notice of Civil Claim
A Notice of Civil Claim differs from a Statement of Claim found in the Old Rules in that the new Notice of Civil Claim is required to be divided into three parts [Rule 3-1(2)]:
· Part 1 must set out a concise statement of the material facts giving rise to the plaintiff’s claim;
· Part 2 must set out the relief sought and indicate the name of the defendant against whom the relief is sought;
· Part 3 must set out a concise summary of the legal basis on which the plaintiff intends to rely in support of the relief sought.
It is yet to be seen if this new structure of the Notice of Civil Claim will result in more detailed pleadings that are tailored to the particular case, or whether parties will find a way to revert to “boilerplate” pleadings that are often seen under the Old Rules.
The time for service of a Notice of Civil Claim has not changed from the procedure under the Old Rules. A Notice of Civil Claim must be served within 12 months of filing, but can be renewed for up to two 12 month periods [Rule 3-2].
Significance: Under the Old Rules, it was not uncommon for a party to file an endorsed Writ of Summons simply to protect a limitation period. This step was relatively quick and inexpensive, because the endorsement on a Writ of Summons only required basic information about the nature of the claim. A Notice of Civil Claim requires much more detail than an endorsed Writ of Summons, and in fact is more akin to a Statement of Claim. The result is that under the New Rules, it will likely be more expensive for a plaintiff to commence an action simply to protect a limitation period.
Responding to a Notice of Civil Claim
The name of the pleading used by a defendant to respond to an action has changed from a “Statement of Defence” to a “Response to Civil Claim” [Rule 3-3(1)].
Like the Notice of Civil Claim, the Response to Civil Claim is divided into parts as follows:
· Part 1 must set out a response to the facts alleged in the Notice of Civil Claim and in particular, the defendant must, in respect of each fact, say whether it is (a) admitted, (b) denied or (c) outside the knowledge of the defendant. For each fact that is denied, the defendant must “concisely set out the defendant’s version of that fact.” Further, the defendant must “set out, in a concise statement, any additional material facts that the defendant believes relate to the matters raised by the notice of civil claim.” [Rule 3-3(2)(a)]. Lastly, if a defendant does not specially respond to an alleged fact, it is deemed to be outside the knowledge of the defendant [Rule 3-3(8)];
· Part 2 must set out the defendant’s position with respect to the granting of the relief sought [Rule 3-3(2)(b)];
· Part 3 must include a concise summary of the legal bases on which the defendant opposes any of the relief sought by the plaintiff [Rule 3-3(2)(c)].
Where the defendant resides in Canada, a Response to Civil Claim must be filed 21 days after the service of the Notice of Civil Claim [Rule 3-3(3)].
Significance: Just like the commencement of an action has been reduced from a two-step process (Writ of Summons and Statement of Claim) to a one-step process (Notice of Civil Claim), responding to an action has been streamlined from a two-step process (Appearance and Statement of Defence) to a one-step process (Response to Civil Claim). The elimination of the Appearance will mean that a defendant can no longer file that standard form document simply to avoid default being taken. A defendant will now need to move more quickly, and invest greater time to prepare the more detailed Response to Civil Claim.
Third Party claimsThe time for filing a Third Party Notice has changed significantly. Under the Old Rules, a Third Party Notice could be filed, without leave, any time up to 120 days before trial. Under the New Rules, unless leave is obtained, a Third Party Notice must be filed within 42 days after service of the Notice of Civil Claim [Rule 3-5(4)(b)]. The ability to file a Third Party Notice with leave of the Court remains unchanged [Rule 3-5(4)(a)].
Where the Third Party Notice claims only contribution or indemnity from an existing defendant, the third party is not required to file or serve a Response to Third Party Notice, and is deemed to have denied all of the allegations in the Third Party Notice [Rule 3-5(10)].
The form of a Third Party Notice has changed, and mirrors the new Notice of Civil Claim and Response to Civil Claim in that it is divided into parts [Rule 3-5(11)].
Significance: Because of the requirement to file a Third Party Notice within 42 days after service of the Notice of Civil Claim, a defendant will need to assess its case much more quickly than was necessary under the Old Rules. This will likely result in more up-front costs as defence counsel will need to explore all aspects of the case in order to identify third parties, but ideally this will result in cost-savings in the long run as the defendant will be able to pursue a more focused and well developed case from the outset.
Part 4 – Service
The New Rules have two significant changes to the service rules. First, a party is required to have an “accessible address” for service [Rule 4-1(1)], which is defined as an address that is “accessible to the public during normal business hours for the delivery of documents” [Rule 1-1(1)]. Presumably, a post office box will not meet this requirement.
Second, the New Rules have embraced the digital age and allow a party to have an alternate address for service that is an e-mail address. A fax number or a postal address can also be given as the alternate means of service [Rule 4-1(2)].
The New Rules draw a distinction between “ordinary service” and “personal service”. This is essentially the same distinction between “delivery” and “service” in the Old Rules. Ordinary service involves service of most court documents that are generated after an action is commenced, such as a Response to Civil Claim, or a List of Documents, and service can be effected by mail, fax or e-mail [Rule 4-2]. Personal service involves service of court documents that tend to initiate a proceeding, such as a Petition, Notice of Civil Claim or Third Party Notice. In the case of an individual, these documents must be served personally [Rule 4-3].
Significance: A party should give careful consideration to providing an e-mail address as a means of service. Under the New Rules, depending on the time of day, a document is deemed to be served once it is sent by e-mail. This will require the party who has provided an e-mail address for service to maintain its e-mail system in working order, and to have that e-mail address monitored on a regular basis. In other words, valid service can be effected to an e-mail address, even when the recipient is on holidays and has diligently taken the time to set up an automated “out of office” e-mail response.
Part 5 – Case Planning
One of the most significant changes under the New Rules will be the use of Case Planning Conferences. These appear to be a hybrid of the procedures under the Old Rules for Case Management Conferences used in expedited actions under Rule 68 and actions with trials of 20 days or more.
The parties are then required to exchange Case Planning Proposals. The plaintiff’s is to be served within 14 days after receipt of the Notice of Case Planning Conference, followed by the Case Planning Proposals of every other party 14 days later [Rule 5-1(5)]. A Case Planning Proposal must contain a party’s proposal with respect to procedural steps in the action, such as discovery of documents, examinations for discovery, dispute resolution procedures, expert witnesses, witness lists and trial type, estimated trial length and preferred periods for the trial date [Rule 5-1(6)].
Unless ordered otherwise by the Court, a party of record or the party’s lawyer must attend the first Case Planning Conference in person, however, provision is made to attend subsequent Case Planning Conferences by telephone or other communication medium [Rules 5-2(2) and (3)].
At the Case Planning Conference, the Court will make a Case Planning Order that, among other things, can set out a timeline for steps to be taken, set limits on document discovery, set limits or expand upon examinations for discovery, restrict the number of experts a party may call, and set the trial date [Rule 5-3(1)]. At the Case Planning Conference, the Court will not typically hear an interlocutory application that needs to be supported by affidavit evidence [Rule 5-3(2)].
Significance: The Case Planning Conference will give the Court the ability to tailor the timelines and procedures that are to be followed in a particular action. It is at the Case Planning Conference that the “proportionality” theme of the New Rules is expected to be put to its best and highest use. Proactive counsel will be able to use the Case Planning Conference to set a timeline that moves the litigation forward in a timely manner.
Part 6 – Amendment of Pleadings and Change of Parties
Under the New Rules, the ability to amend without leave or consent of all parties expires on the earlier of the date of service of the notice of trial and the date a Case Planning Conference is held [Rule 6-1(1)].
The procedures in the New Rules for change of parties remain relatively unchanged from the Old Rules.
Significance: Under the Old Rules, a party was permitted to make one “free amendment” up to the date of the delivery of the notice of trial. Because the Case Planning Conference is likely to occur early in most actions, the time frame for making this one free amendment will be substantially shortened under the New Rules.
Part 7 – Procedures for Ascertaining Facts
Discovery and inspection of documents
There are two fundamental changes under the New Rules to the manner in which documents are produced. First, it is no longer necessary to issue a Demand for Discovery of Documents, rather, the obligation of a party to produce documents is mandatory, and each party must serve a List of Documents within 35 days of the close of the “pleadings period” [Rule 7-1(1)].
Second, the New Rules set out new criteria as to what documents must be produced. The broad, and sometimes limitless scope of document production required under the Old Rules which required production of every document “relating to every matter in question” is gone. The New Rules set out a narrower test for production as follows [Rule 7-1(1)]:
(i) all documents that are or have been in the party’s possession or control and that could, if available, be used by any party of record at trial to prove or disprove a material fact, and
(ii) all other documents to which the party intends to refer at trial.
As was the case under the Old Rules, an insurance policy under which an insurer may be liable to satisfy the whole, or part of a judgment must be produced, although that policy must not be disclosed to the Court unless it is relevant to an issue in the action [Rules 7-1(3)-(5)].
There remains a continuing obligation to produce a supplemental list of documents for documents that come into a party’s possession after delivery of the initial List of Documents. However, one new feature of the New Rules is that if, after delivery of a List of Documents, an opposing party believes that further documents should have been produced, that opposing party can serve a written demand for production, thus requiring the party to deliver a Supplemental List of Documents within 35 days, after which the opposing party can proceed with an application to compel production [Rules 7-1(10)-(13)].
The procedures under the New Rules for claiming privilege over documents and for obtaining production of documents from non-parties remain largely unchanged [Rules 7-1(6) and (18)].
Significance: The new scope of document production under the New Rules has been the source of much debate in recent months. Critics have said the narrower scope of production will limit the ability of a party to fully explore all issues and hinder its ability to prosecute or defend an action. Proponents have said the new scope of production will reduce the need to exchange what is often voluminous, but unnecessary and irrelevant documents, while at the same time, by application of “proportionality”, the Court can require more expansive document production when needed. In theory, reduced document production should result in less expense for all parties.
Examinations for Discovery
The most significant change in the New Rules to the examination for discovery process is that, subject to leave of the court or consent of the parties, a 7 hour time limit has been placed on the total of all examinations conducted by one party of another party [Rule 7-2(2)].
There is no longer a requirement that an examination for discovery must be completed at least 14 days before trial, as was the case under the Old Rules. Presumably, the deadline for completion of examinations for discovery will be addressed in the Case Planning Order.
The notice period for conducting an examination for discovery has been extended from 2 days to 7 days, regardless of whether the Appointment is served on the party’s solicitor or on the witness [Rule 7-2(13)].
Although the practice under the Old Rules had been for a party to respond to outstanding examination for discovery requests by letter, the formal procedure was that a follow-up examination for discovery had to be held at which time the witness would have to respond to the outstanding request. Under the New Rules, the former practice has been recognized, and the examining party can now request that responses to outstanding requests be given by letter, and those responses are deemed to have been given under oath [Rules 7-2(23) and (24)].
Significance: The 7 hour time limit on examinations for discovery is potentially one of the most significant changes under the New Rules. The time limit should have the effect of reducing the cost of litigation. Counsel will need to be more focused in questioning, and will typically not have the luxury of a limitless “fishing expedition”. As such, more thorough preparation may be needed, but presumably this will lead to a more productive and efficient examination of the witness.
Discovery by interrogatories
Under the New Rules, interrogatories are no longer available as of right as they were under the Old Rules. Interrogatories can only be served where a party consents or the court orders them [Rule 7-3(1)]. Where interrogatories are used, the procedure for answering them remains largely unchanged from the Old Rules.
Significance: Under the Old Rules, interrogatories were often seen as oppressive as it was not uncommon for a party to deliver lengthy interrogatories, sometimes with questionable relevance. Often, the party receiving the interrogatories would incur substantial time and expense to respond, or alternatively, the party would simply refuse to respond. The New Rules recognize that interrogatories, while still being appropriate in some cases, are not a preferred means of ascertaining facts in all cases as the information sought can typically be obtained through an examination for discovery.
The New Rules codify what had been a Practice Direction under the Old Rules, in that each party is obliged to file and serve a witness list naming each witness that the listing party may call at trial. However, there is no obligation on the listing party to actually call the witness at trial. The list should not include expert witnesses or adverse witnesses. The time for service of the witness list depends on the circumstances of the case. If there is a Case Planning Order, the list must be filed and served within the time set out in that Order. If there is no date set by a Case Planning Order, the list must be filed and served before the earlier of the trial management conference and 28 days before trial [Rules 7-4(1)-(4)].
Significance: The exchange of witness lists will avoid parties being caught by surprise at trial, should assist in trial preparation, and may even promote settlement.
Other procedures for ascertaining evidence
The New Rules retain many of the other means of ascertaining evidence that existed in the Old Rules, namely:
· Pre-trial examination of a witness. This is similar to an examination for discovery, but the New Rules have introduced a 3 hour time limit [Rule 7-5];
· Physical examination of a person (ie, medical examination) [Rule 7-6];
· Notice to Admit [Rule 7-7];
· Deposition of a witness [Rule 7-8].
Part 9 – Pre-Trial Resolution Procedures
Offers to Settle
The New Rules have carried forward the procedure under Rule 37B of the Old Rules, that is, an offer to settle can be made, but there are no mandatory costs consequences should a party “beat” its offer at trial. Rather, the Court has a broad discretion to award costs and apply costs consequences in such circumstances [Rule 9-1].
The former “Rule 18A” summary trial remains substantially the same [Rule 9-7]. The only material change in the New Rules is that the cut-off date by which a summary trial must be held is now 42 days before the start of the trial, as opposed to 45 days under the Old Rules [Rule 9-7(3)].
Part 11 – Experts
Another significant change in the New Rules is in the use of expert witnesses and their reports. This Part sets out procedures with respect to joint experts, a party’s own expert witness and court-appointed experts. It is important to note that expert opinion evidence must not be tendered at trial unless provided for in the Case Planning Order applicable to the action [Rule 11-1(2)].
Duty of expert witness
An expert has a duty to assist the court and is not to be an advocate for any party. The expert must certify in his or her report that he or she is aware of the duty to the court, has made the report in conformity with that duty and will, if called on to give oral or written testimony, give that testimony in conformity with that duty [Rules 11-2 (1) and (2)].
Significance: The legal principle that an expert’s duty is to the Court is not new, but the express inclusion of this duty in the New Rules is. Presumably, the inclusion of this duty in the New rules is intended to limit adversarial bias and lack of impartiality among expert witnesses.
Appointment of joint experts
The New Rules provide detailed procedures for the appointment of a joint expert [Rule 11-3]. A joint expert may be retained by two or more parties who are adverse in interest, either by agreement of the parties or by court order. When adverse parties using a joint expert are unable to agree on whom to select as the expert, or on the terms of the expert’s appointment, an application can be made to the Court to resolve those differences.
All parties, including each of the appointing parties, have the right to cross-examine the joint expert at trial [Rule 11-3(10)].
Significance: The use of a joint expert by parties adverse in interest was uncommon under the Old Rules. Only time will tell whether parties will make use of this new procedure, or whether the Court will encourage the use of joint experts.
Appointment of own expert
As was the case under the Old Rules, a party may still appoint its own expert to give opinion evidence on an issue in the action [Rule 11-4]. There is no express limit on the number of expert witnesses a party may have, although limits can be imposed by way of the Case Planning Order.
Content and form of expert reports
The requirements for the content and form of an expert’s report have been expanded to include the following [Rule 11-6(1)]:
· the expert’s name, address and area of expertise;
· the expert’s qualifications and employment and educational experience in his or her area of expertise;
· the instructions provided to the expert in relation to the proceeding;
· the nature of the opinion being sought and each issue in the proceeding to which the opinion relates;
· the expert’s opinion respecting each issue and, if there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range;
· the expert’s reasons for his or her opinion, including:
– a description of the factual assumptions on which the opinion is based,
– a description of any research conducted by the expert that led him or her to form an opinion, and
– a list of every document, if any, relied on by the expert in forming the opinion.
Service and production of expert’s file
The New Rules have changed the dates on which expert reports must be served. A party must serve an expert report to be relied upon at trial at least 84 days before the scheduled trial date, which is a change from 60 days under the Old Rules [Rule 11-6(3)]. An even more significant change involves rebuttal expert reports. Unlike with the Old Rules which did not specify a deadline by which rebuttal reports had to be delivered, under the New Rules, a party wanting to rely on a rebuttal expert report must serve the report at least 42 days before the scheduled trial date [Rule 11-6(4)].
(ii) a record of any independent observations made by the expert in relation to the report;
(iii) any data compiled by the expert in relation to the report, and
(iv) the results of any test conducted by or for the expert, or of any inspection conducted by the expert, if the expert has relied on that test or inspection in forming his or her opinion.
Part 15 – Fast Track Litigation Proceedings
By combining Rules 66 and 68 from the Old Rules, the New Rules provide for a single, simplified and fast procedure for certain claims. The fast track litigation procedure is available in cases in which [Rule 15-1(1)]:
(1) the claim is not for more than $100,000;
(2) the trial will not be longer then three days;
(3) the parties consent to the Rule applying; or
(4) the court orders that the Rule will apply.
In a fast track action, an examination for discovery of a party is limited to 2 hours [Rule 15-1(11)]. The trial must be scheduled by the Court Registrar within 4 months of a trial date being requested by a party [Rule 15-1(13)]. With respect to costs, unless the court orders otherwise, the amount of costs that can be claimed by a party are fixed at $8,000 for a trial that is one day or less, $9,500 for a two day trial, and $11,000 for a trial that is more than two days [Rule 15-1(15)].
There are no specific requirements or restrictions with respect to document production or the use of expert witnesses, and thus the same Rules will apply to a fast track action as they do to a non-fast track action. Of course, restrictions on document production and use of experts can still be addressed by the Court at the Case Planning Conference which is still a component of a fast track action.
Significance: The fast track rules arguably adopt the best aspects of Rule 66 (fast track litigation) and Rule 68 (expedited litigation) under the Old Rules while leaving out their shortcomings. What is yet to be seen is the degree to which litigants will make use of the fast track procedures.
Part 24 – Transitional Proceedings
The New Rules will apply to all civil, non-family actions in B.C., regardless of whether the action was commenced after July 1, 2010 when the New Rules go into effect, or before that date when the Old Rules were in effect. However, for actions that were commenced before July 1, 2010 (defined as “transitional proceedings”), some special provisions will apply.
Pleadings filed under the Old Rules are deemed to be pleadings under the New Rules [Rules 24-1(3)-(8)]. However, a party may serve a demand that another party amend a pleading to make it accord with the New Rules and the party receiving the demand has 21 days to amend the pleading [Rules 24-1(10)-(11)].
If a step in a proceeding is taken before July 1, 2010, the Old Rules apply to any right or obligation arising out of or related to that step, if and to the extent that the right or obligation is to have effect before September 1, 2010 [Rule 24-1(14)]. For instance, if a party has delivered Interrogatories before July 1, even though the New Rules do not permit Interrogatories as of right, those Interrogatories must still be answered. Further, if before July 1, 2010 a party delivers an Appointment setting an examination for discovery for a date before September 1, 2010, presumably that examination for discovery would not be subject to a 7 hour time limit.
Significance: If there is anything a party wants to do in an action, that cannot be done under the New Rules, that party would be well advised to act quickly and take the step in question before July 1, 2010.