Chambers Applications

Transcription

1 CIVIL LITIGATION BASICS FOR LEGAL SUPPORT STAFF 2012 UPDATE PAPER 3.1 Chambers Applications These materials were originally prepared by Pamela Fleming, Paralegal, and Debra Grahn, Paralegal, both of Alexander Holburn Beaudin & Lang LLP, Vancouver, BC, for the Continuing Legal Education Society of British Columbia publication Personal Injury for Legal Support Staff 2011 (October 2011) and have been reprinted for June Pamela Fleming and Debra Grahn

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3 3.1.1 CHAMBERS APPLICATIONS I. Introduction... 2 II. Part I... 2 A. When to Make an Application... 2 III. Part II... 2 A. Who Should Hear the Application A Master or a Judge?... 2 IV. Part III The Chamber s Rules (Rules 8-1, 8-2, 22-1, and 23-1)... 3 A. Chamber s Application Procedures (Rule 8-1)... 3 B. Matters that Can be Heard and Disposed of by the Court in Chambers (Rule 22-1)... 3 V. Part IV Types of Chamber s Applications... 4 A. Consent Applications (Rule 8-3)... 4 B. Applications of Which Notice is Not Required (Rule 8-4)... 5 C. Applications Made by Written Submissions (Rule 8-6)... 5 D. Summary Trial (Rule 9-7)... 5 E. Short Notice (Rule 8-5)... 6 VI. Part V How to Bring and Respond to an Application (Rule 8-1)... 7 A. Notice of Application... 7 B. Application Response... 7 C. Costs (Rule 14-1)... 7 D. Miscellaneous... 8 VII. Part VI Drafting Chamber s Materials... 8 A. Notice of Application (Rule 8-1, Form 32)... 8 B. Application Response (Rule 8-1, Form 33)... 9 C. The Affidavit (Rule 22-2, Form 109) D. Service of Materials E. Further Affidavits After Service F. Application Record G. Order Made After Application (Rule 13-1, Form 35) H. Urgent Orders I. The Slip Rule J. Adjournments (Rule 22-1(10), Formerly Rule 52(13)) K. Resetting the Application (Rule 22-1(7), Formerly 52(11)) VIII. Part VII A. Resources B. Sources IX. Appendix A Practice Direction No. 14: Masters Jurisdiction X. Appendix B Practice Direction re: Changes to Chambers Practice Rule 51A XI. Appendix C Applications Flowchart XII. Appendix D Precedents... 26

4 3.1.2 I. Introduction This paper provides a brief overview of the Chamber s process from a procedural perspective specifically: when to make an Application, types of Applications, materials required to make an Application and timelines required under the BC Supreme Court Civil Rules (the Rules ). II. Part I A. When to Make an Application If a party has an issue/problem in their case that could be resolved by a court order, and the parties are unable to come to an agreement as to how to resolve that issue, then the party may decide to utilize an important procedure available under the Rules called the Chamber s Application. The following are some common reasons for making a Chamber s Application: compel production of records from parties of record and/or third party record holders; compel parties to attend independent medical examinations; compel attendance at an examination for discovery; leave to amend pleadings; and summary judgments. When making a Chamber s Application, it is important to consider whether: the problem can be resolved by a court order; you have an understanding of the law and the rules governing your Application; you have complied with the Rules and deadlines governing Applications; you have all the correct documents; and the person attending the Application is prepared to argue the case before a judge or master. III. Part II A. Who Should Hear the Application A Master or a Judge? Prior to drafting materials for a Chamber s Application, it is very important to consider whether the Application should be heard before a master or judge. Judges of the BC Supreme Court have inherent jurisdiction to make orders on procedures as circumstances require. Masters and Registrars do not have inherent jurisdiction. Typically, judges hear matters that result in a final determination/order, but this is not always the case. Masters may hear some Applications that result in a final order. These include: dismissal for want of prosecution (Rule 22-7(7)), dismissal of a proceeding for non-compliance with the Rules or an order (Rules 22-7(2) and (5)), and striking out pleadings for being frivolous and vexatious (Rule 9-5(1)). Practice Direction No. 14 sets out a Master s jurisdiction. See documents attached.

5 3.1.3 IV. Part III The Chamber s Rules (Rules 8-1, 8-2, 22-1, and 23-1) The Supreme Court Rules govern the procedure by which an Application must be brought to the court. The Rules do NOT provide authority for the Application. Substantive law (case law) provides the authority for what is being requested in an Application. The following is a brief overview of the Rules that apply to chambers Applications and the subsections that you should be aware of. A. Chamber s Application Procedures (Rule 8-1) Rule 8-1 sets out the procedure for bringing an Application for an order from the court other than at trial. The general Rule is that chambers Applications can be brought by any party to a proceeding who has filed a responding pleading to an originating pleading that starts an action, or extends the action, to bring in a new party (third party notice, counterclaim against a non-party). Until a party submits to the jurisdiction of the court by filing a responding pleading or Response to petition, the general Rule is that a party has no standing to make an Application: McDonald v. Cocos Island Treasures Ltd., [1932] B.C.J. No. 107, [1933] 1 W.W.R. 189, 46 B.C.R. 360 (S.C.). B. Matters that Can be Heard and Disposed of by the Court in Chambers (Rule 22-1) Rule 22-1 sets out the general guidelines for matters that can be heard and disposed of by the court in chambers, which include: (a) a petition proceeding; (b) a requisition proceeding that has been set for hearing under Rule 17-1(5)(b); (c) an Application, including, without limitation, the following: (i) an Application to change or set aside a judgment; (ii) a matter that is ordered to be disposed of other than at trial; (d) an appeal from, or an Application to confirm, change or set aside an order, a report, a (i) certificate, or a recommendation of a master, registrar, special referee or other officer; (ii) of the court; (e) an action that has, or issues in an action that have, been ordered to be proceeded with (i) by affidavit or on documents before the court, and stated cases, special cases; and (ii) hearings on a point of law; (f) an Application for judgment under Rule 3-8, 7-7(6), 9-6 or 9-7. If a party to a chambers Application fails to attend the proceeding the court may proceed if, considering the nature of the chambers proceeding, it considers it will further the object of the Rules to do so, and may require evidence of service it considers appropriate (Rule 22-1(2)). Such an order must not be reconsidered unless the court is satisfied that the person failing to attend was not guilty of willful delay or default (Rule 22-1(3)).

6 3.1.4 Rule 22-1(4) provides that evidence to be presented in chambers must be in affidavit form, but that the court has discretion to: (a) (b) (c) (d) (e) order the attendance for cross-examination of a deponent, either before the court or before another person as the court directs; order the examination of a party or witness, either before the court or before another person as the court directs; give directions required for the discovery, inspection or production of a document or copy of that document; order an inquiry, assessment or accounting under Rule 18-1; and permit other forms of evidence to be adduced. Pursuant to Rule 22-1(7) the court may: (a) grant or refuse the relief claimed in whole or in part, or dispose of any question arising on the chambers proceeding; (b) adjourn the chambers proceeding from time to time, either to a particular date or generally, and when the chambers proceeding is adjourned generally a party of record may set it down on 3 days notice for further hearing; (c) obtain the assistance of one or more experts, in which case Rule 11-5 applies; and (d) order a trial of the chambers proceeding, either generally or on an issue, and order pleadings 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. If notice of a chambers proceeding ought to have been but was not served on a person, the court may, pursuant to Rule 22-1(8): (i) dismiss the chambers proceeding or dismiss it only against that person, (ii) adjourn the chambers proceeding and direct that service be effected on that person or that notice be given in some alternate manner to that person, or (iii) direct that any order made, together with any other documents the court may order, be served on that person. A. Consent Applications (Rule 8-3) V. Part IV Types of Chamber s Applications Consent Applications may be made by filing (Rule 8-3(1) and 17-1(2)): (a) a requisition in Form 31; (b) a draft of the proposed order in Form 34; (c) evidence, in accordance with Rule 13-1(10), that the Application is consented to; and (d) any consent or comments of the Public Guardian and Trustee required under s. 40 of the Infants Act. On being satisfied that an Application is consented to and that the materials appropriate for the Application have been filed, a registrar may (Rule 8-3(2) and 17-1(3)) refer the Application to a judge or, if the order sought is within the jurisdiction of a master, to a judge or master, or if the registrar is satisfied that (i) none of the parties applying for or consenting to the order is under a legal disability, or (ii) if a party is under a legal disability, s. 40(7) of the Infants Act applies, enter the order or refer the Application to a judge or master.

7 3.1.5 B. Applications of Which Notice is Not Required (Rule 8-4) An Application of which notice is not required, may be made by filing (Rule 8-4(1) and 17-1(4)): (a) a requisition in Form 31; (b) (c) a draft of the proposed order in Form 35; and evidence in support of the Application. On being satisfied that materials appropriate for such an Application have been filed the registrar may refer the Application to a judge or master depending upon jurisdiction, and the judge or master may make the order or give directions respecting the Application (Rule 8-4(2) and (3) and 17-1(4) and (5)). C. Applications Made by Written Submissions (Rule 8-6) If an order is made at a case planning conference that an Application may be made by written submissions: (a) the case planning judge or master must give directions respecting the Application, including directions respecting: (i) the documents to be filed in support of the Application, and (ii) the persons on whom and the dates by which the documents referred to in subparagraph (i) and any other documents the judge or master may identify must be served, and (b) the Application may be made in the manner provided for in those directions. The Rule does not authorize bringing an Application by written submission absent such an order. D. Summary Trial (Rule 9-7) A summary trial Application must be heard at least 42 days before the scheduled trial date (Rule 9-7(3)), and must be set for hearing in accordance with Rule 8-1 (Rule 9-7(3)). The applying party must serve every expert report not already filed on which that party will rely (Rule 9-7(8)(a)). On an Application heard before or at the same time as the hearing of a summary trial Application, the court may (Rule 9-7(11)): (a) adjourn the summary trial Application, or (b) dismiss the summary trial Application on the ground that: (i) the issues raised by the summary trial Application are not suitable for disposition under this rule, or (ii) the summary trial Application will not assist the efficient resolution of the proceeding. If the court is unable to grant judgment under subrule (15) and considers that the proceeding ought to be expedited, the court may order the trial of a proceeding generally or on an issue and may (Rule 9-7(17)): (a) order that the parties attend a case planning conference; (b) make any order that may be made under Rule 5-3(1); or (c) make any other order the court considers will further the object of the Rules.

8 E. Short Notice (Rule 8-5) A short notice Application (formerly short leave) may be made by requisition in Form 17, without notice, and in a summary way (Rule 8-5(2)). On a short notice Application, the court may (Rule 8-5(4)): (a) order that the main Application be heard on short notice; (b) fix the date and time for the main Application to be heard; (c) fix the date and time before which service of documents applicable to the main Application must be made; and (d) give any other directions that the court or registrar considers will further the object of the Rules. If an order is granted under Rule 8-5 the time limits and notice requirements provided under the Rules do not apply to the main Application (Rule 8-5(5)). Upon receiving an Applicant s materials an Applicant Respondent has five days (11 days if it is a Rule 9-7 Summary Trial Application) in which to respond. In urgent cases, an Application may be made to the court to shorten the time for hearing the Application. Materials in support of a short notice Application must include a copy of a requisition in Form 17 (Rule 8-5(2)), an affidavit setting out why time should be shortened, and the Notice of Application, and material in support of the main Application. The affidavit in support of the short notice Application must provide a reason (or reasons) why the time requirements under the Rules should be shortened. If there was a delay in bringing the Application you must also give reasons for the delay. The form for the short leave requisition under the old Rules was handed down by way of Practice Direction dated April 19, 2001 (a copy of which is attached to this paper). As the new Rules do not include a prescribed form, unless and until a new practice direction is issued, it is permissible to incorporate the old form into the new Form 17 for this purpose. New Rule 13-1(4) mirrors old Rule 41(10) that says that the endorsement of an order on an Application is sufficient in certain cases. This would allow the continued practice of having the judge or master sign the requisition, without counsel having to draft an actual order. Prior to attending in court to request short notice either you or your lawyer should contact the opposing party and advise them that you will be seeking short notice. It is also beneficial to send them a copy of the materials you intend to rely on at the main Application. Ask the opposing party what their availability is for the hearing of the main Application and their time estimate. The next step is for your lawyer or an articled student to take the materials in support of the short notice Application to the Chambers Desk in the registry where the matter is to be heard along with a cheque for $80 payable to the Minister of Finance. The master or registrar hearing the short notice Application may inquire what the main Application is about, the availability of the opposing party, etc. before granting short notice. The terms of the short notice order will set out the date and time by which parties and individuals to be affected by the relief sought must be served. Be prepared to serve your materials and a copy of the short notice order by the time and date set out therein. If you are not able to deliver (or serve) your materials to the opposing parties in time, you have not satisfied the terms of the short notice order and the Application may not be heard on short notice. On the date of the main Application your lawyer will be required to show that the service provisions of the short notice order have been met before the main Application can proceed.

9 3.1.7 VI. Part V How to Bring and Respond to an Application (Rule 8-1) Rule 8-1 deals with the mechanics of setting down a chambers Application. See attached flowchart for an overview of the process. The following sets out an overview of the steps involved in the Chamber s process. A. Notice of Application It is best practice to call opposing counsel s office and canvas hearing dates. If opposing counsel is being difficult, or are not responding in a timely fashion, then hearing dates can be set unilaterally. Make sure that you serve the Application materials in the time frame allowed prior to the hearing. The Applicant files a Notice of Application in Form 32, and the original of every affidavit, and of every other document that is to be referred to by the Applicant at the hearing, and has not already been filed in the proceeding (Rule 8-1(3)). If an Application is estimated to take two or more hours a date and time for the Application must be obtained from Trial Division (Rule 8-1(6)). Hearings are usually set to begin at 9:45 a.m. unless directed otherwise by the court (Rules 8-1(5) and (6)). The Applicant serves, at least eight business days before the date set for hearing (and if a Summary Trial Application under Rule 9-7, then at least 11 business days), the filed Notice of Application along with copies of each filed affidavit and documents referred to in the Notice of Application that have not already been served (and any notice required under Rule 9-7 (Summary Trial) (Rules 8-1(7) and (8)). B. Application Response The Applicant Respondent must file within 5 business days after service of the Notice of Application, or in the case of a Rule 9-7 Summary Trial Application (within 8 business days after service), an Application Response in Form 33 and originals of every affidavit and every other document to be referred to at the hearing that has not already been filed (Rule 8-1(9)). The Applicant Respondent serves, at least two days before the date set for hearing, two copies of the filed Application Response along with copies of each filed affidavit and documents referred to in the Application Response that have not already been served (and any notice required under Rule 9-7 (Summary Trial) (Rule 8-1(12)). An Applicant who wishes to respond to any document served under subrule (12) must file and serve on each Applicant Respondent any responding affidavits no later than noon on the day before the date set for the hearing (Rule 8-1(13)). C. Costs (Rule 14-1) When preparing your materials you must consider whether or not to request costs. The court s power to award costs is discretionary in nature. Costs will not be granted unless they are specifically requested in the Notice of Application. Costs are typically payable on a party and party basis unless the court otherwise orders that lump sum or special costs be paid. Rule 14-1(12) deals with Applications where no order for costs is made. Section 4 of Appendix B, Party and Party Costs reads that unless a court orders otherwise, a successful applicant on a chambers Application is automatically entitled to its costs in the case at Scale B. Rule 14-1(13) notes that costs are payable at the conclusion of a proceeding unless otherwise ordered by the court. Where an Application is made by one party and not opposed by the other party, costs of the Notice of Application are costs in the cause.

10 D. Miscellaneous Unless the parties of record consent or the court otherwise orders, a party must not serve any affidavits additional to those served under subrules (7), (12) and (13) (Rule 8-1(14)). Unless an Application is estimated to take more than two hours, no party to the Application may file or submit to the court a written argument in relation to the Application other than that included in the party s Notice of Application or Application Response (Rule 8-1(16)). A. Notice of Application (Rule 8-1, Form 32) VII. Part VI Drafting Chamber s Materials The Notice of Application incorporates the former notice of motion and outline. Pursuant to Rule 8-1(4) the Notice of Application must not exceed 10 pages and must (Rule 8-1(4)): (a) set out the orders sought; (b) briefly summarize the factual basis for the Application; (c) set out the rule, enactment or other jurisdictional authority relied on for the orders sought and any other legal arguments on which the orders sought should be granted; (d) list the affidavits and other documents on which the Applicant intends to rely at the hearing of the Application; (e) set out the Applicant s time estimate of the time the Application will take for hearing; (f) subject to subrules (5) and (6), set out the date and time of the hearing of the Application; (g) set out the place for the hearing of the Application in accordance with Rule 8-2; and (h) provide the data collection information required in the appendix to the form. The following is brief overview of how to prepare a Notice of Application: The names of the applicant(s) and parties and/or individuals to whom the Application is directed are listed immediately below the style of proceeding. The first paragraph sets out who is making the Application, at which courthouse, and on what date and time as follows: TAKE NOTICE that an Application will be made by the applicant(s) to the presiding judge or master at the courthouse at 800 Smithe Street, Vancouver, British Columbia on the 08 May 2010 at 9:45 a.m. for the order(s) set out in Part 1 below. I Body The body of the Application is set out in four parts: Part 1: Order(s) Sought Part 1 contains the relief sought in numbered paragraphs and against which party(ies) the order is sought. More than one term of relief may be set out. Part 2: Factual Basis Set out a brief summary of the facts supporting the Application in numbered paragraphs. The facts will come from the material filed in support of the Application. You also need to note if a party sues or is sued in a representative capacity, and if so, identify the party and describe the representative capacity.

11 Part 3: Legal Basis Specify any Rule or other enactment relied on in numbered paragraphs, and provide a brief summary of any other legal arguments on which the applicant intends to rely in support of the orders sought. If appropriate, cite applicable cases. Part 4: Material to be Relied On List in numbered paragraphs the affidavits served with the Notice of Application and any other affidavits and other documents already in the court file on which the applicant will rely. Each affidavit included on the list must be identified in the manner set out under Part 5. II Time Estimate Provide a realistic time estimate for the hearing of the Application, date sign the form, and have your lawyer sign it. Print or type your lawyer s name below his/her signature. You will also need to complete the appendix which consists of data collection information to be used by the registry. B. Application Response (Rule 8-1, Form 33) The Application Response incorporates the former Response and outline. The Application Response must not exceed 10 pages and must (Rules 8-1(10) and (11)): (a) Indicate, for each order sought on the Application, whether the Applicant Respondent consents to, opposes or takes no position on the order, and (b) if the Applicant Respondent wishes to oppose any of the relief sought in the Application, (i) briefly summarize the factual and legal basis on which the orders sought should not be granted, (ii) list the affidavits and other documents on which the Applicant Respondent intends to rely at the hearing of the Application, (iii) set out the Applicant Respondent s time estimate of the time the Application will take for hearing, and (c) include an address for service if one has not yet been provided. The following is brief overview of how to prepare the Application Response: The names of the Applicant Respondent(s) are set out immediately below the style of proceeding. The first paragraph sets out who is making the Application Response, at which courthouse, and on what date and time and includes the following: THIS IS A RESPONSE TO the Notice of Application of the Plaintiff, John Doe filed 08 May 2010 I Body The body of the Application Response is set out in six parts: Part 1: Orders Consented To Set out which paragraphs, if any, you are consenting to in Part 1 of the Notice of Application and any proposed terms regarding same.

12 Part 2: Orders Opposed List which paragraphs, if any, you oppose in Part 1 of the Notice of Application. Part 3: Orders On which No Position is Taken List which paragraphs, if any, you take no position to the granting of in Part 1 of the Notice of Application. Part 4: Factual Basis Set out a brief summary of the facts supporting the Application in numbered paragraphs. The facts will come from the material filed in opposition to the Application Response. You also need to note if a party sues or is sued in a representative capacity, and if so, identify the party and describe the representative capacity. Part 5: Legal Basis Specify any Rule or other enactment relied on in numbered paragraphs and provide a brief summary of any other legal arguments on which the Applicant Respondent intends to rely in opposition to the orders sought. If appropriate, cite applicable cases. Part 6: Material to be Relied On List in numbered paragraphs the affidavits served with the Application Response and any other affidavits and other documents already in the court file on which the Applicant Respondent will rely on. Each affidavit included on the list must be identified in the manner set out under Part 6. II Time Estimate Provide a realistic time estimate for the hearing of the Application Response, and date the form. You also need to indicate whether you have filed a document in the proceeding providing an address for service, and if not, provide an address for service. Have your lawyer sign the form and print or type your lawyer s name below his/her signature. C. The Affidavit (Rule 22-2, Form 109) Rule 22-2 is substantially the same as former Rule 51. Before drafting the affidavit you must consider who the best person is to swear it. Who has the information necessary to swear the affidavit? What type of Application is the affidavit being sworn in support of? You must also consider how you will present the facts in the affidavit. The following is a brief formula for constructing a basic affidavit: 1. First Paragraph It is not numbered and always has the following wording: I, [name, address and occupation of deponent], make oath (or solemnly affirm) and say that: 2. Second Paragraph The type of Application will determine how the evidence is presented. For example, a Rule9-6 (formerly Rule 18 Summary Judgment), and 9-7 Application may not be on information and belief and, therefore, the individual with knowledge of the facts and evidence (often the client) will be the best person to swear the affidavit in support of the Application. There are two choices to choose from for the second paragraph depending on the type of Application:

13 (a) (b) Where the affidavit will be used to seek a final determination by the court (e.g., Rules 9-6 and 9-7, contempt Applications, etc.) the affidavit must not be on information and belief and should contain the following wording: I am (the deponent s relationship to the proceeding) and so I have personal knowledge of the facts and matters I have deposed to here. All other affidavits should contain the following wording: I am (the deponent s relationship to the proceeding) and so I have personal knowledge of the facts and matters I have deposed to here except where they are stated to be based on information and belief, and where so stated, I verily believe them to be true. 3. Third Paragraph The third paragraph of the affidavit should contain background information on the matter as the court will not know anything about the proceeding. It is sufficient to put this information in one affidavit that you will be relying on at the Application. For example, 1. This action is a claim for general and special damages for personal injury, wage loss and expense allegedly sustained by the Plaintiff as the result of a motor vehicle accident that occurred on June 5, 1998 at or near the intersection of Cambie Street and Granville Street, Vancouver, B.C. (the Accident ). 2. Liability for the Accident and the Plaintiff s claims for general and special damages for personal injury, wage loss and expenses are in dispute. 3. The trial in this action is scheduled to begin on August 14, 2010 and take five days. The remaining paragraphs set out the facts that support the Application. If your affidavit is lengthy use topic headings as they make it easier for your reader to skip to sections. If a fact is not contained in the affidavit as evidence it may not be brought before the court. If your lawyer presents facts that are not stated in the affidavit then your lawyer is deemed to be giving testimony. If your lawyer gives testimony he may be cross-examined and will be in a conflict of interest position. This could have serious consequences for the case. Lawyers often have staff swear affidavits for this reason. Although your lawyer may draft the affidavit you must review it before swearing it. Ensure that you understand what you are being asked to swear to. Do you know the facts set out in the affidavit? If a paragraph states that someone has told you something ensure that they follow through and actually say what is said otherwise your affidavit will be false. Be sure to read all exhibits. The drafting and swearing of affidavits should ALWAYS be taken very seriously. Once the affidavit has been filed it becomes part of the permanent record. That is, if the deponent later provides facts that contradict what are said in the affidavit the court may deem the deponent to be untruthful and not believe that individual s evidence. This in turn could adversely affect the case. If you are reviewing an affidavit with a deponent explain in detail the consequences of their not ensuring that ALL facts contained in the affidavit are true and correct. Most individuals rely on the law firm and will sign anything placed in front of them trusting that it is correct. If necessary, go through each paragraph and ask the deponent about the various facts and whether or not they are correct. A deponent who swears an affidavit may be cross-examined on the affidavit s contents before a court reporter or the court. This cross-examination also forms part of the permanent record.

14 The following are some useful tips to keep in mind when drafting an affidavit: State the deponent s relationship to the proceeding. Paragraphs must be consecutively numbered. The deponent s initials and surname, the number of the affidavit and the date on which it was sworn must appear in the top right hand corner of the first page. The affidavit must be sworn or affirmed by the deponent. Number the exhibit pages consecutively. Use the first person tense and simple language. Each paragraph should deal with a single topic. Do not refer to your client by their first name. Affidavits should only contain facts unless the deponent is an expert. Use topic headings. All facts to be relied upon at the hearing should be contained in the affidavit. It should not contain argument. Include only relevant facts. Exhibits speak for themselves. An affidavit cannot be amended. An affidavit made on information and belief must state this fact. A number of documents may be referred to as one exhibit. Pleadings need not be appended. Use letters of the alphabet when referring to exhibits. Exhibits with 10 or fewer pages (formerly five pages) should be appended to the affidavit. The jurat should appear on a page with text. The Commissioner swearing the affidavit must sign all exhibits. See attached Precedents D. Service of Materials The applicant must, under Rule 8-1(7) serve on each of the parties of record and on every other person who may be affected by the orders sought: (a) a copy of the filed Notice of Application; (b) a copy of each of the filed affidavits and documents, referred to in the Notice of Application that has not already been served; (c) if the Application is brought for a summary trial under Rule 9-7, any notice that the applicant is required to give under Rule 9-7(9). Despite the apparently general ambit of Rule 8-1(7), the Supreme Court Civil Rules contain both permissive and mandatory exceptions to the requirement to serve parties whose interests may be affected by a chambers Application with a copy of the Notice of Application.

15 The Notice of Application and affidavits in support must be served at least eight business days before the date set for the hearing of the Application unless the Application is a summary trial Application under Rule 9-7, in which case they must be served at least 12 business days before the date set for the hearing of the Application: Rule 8-1(8). Rule 8-1(8) provides that an Application respondent (a person who has filed an Application Response: Rule 8-1(1)) must serve 2 copies on the applicant and one copy on every other party of record, the following: (a) a copy of the filed Application Response; (b) a copy of each of the filed affidavits and documents, referred to in the Application Response that has not already been served; (c) if the Application is a summary trial Application under Rule 9-7, any notice that the Application respondent is required to give under Rule 9-7(9). The above documents must be served at least two days before the date set for the hearing of the Application: Rule 8-1(12). A party who is served with less than the requisite period of notice may be taken to have waived the irregularity if he appears and presents argument: Society of the Love of Jesus v. Smart, [1944] B.C.J. No. 21, [1944] 1 W.W.R. 534, 60 B.C.R. 71, [1944] 2 D.L.R. 551 (S.C.). E. Further Affidavits After Service An applicant who wishes to respond to any document served by an Application respondent must file and serve on each Application respondent any responding affidavits no later than 4 p.m. on the business day that is one full business day before the date set for the hearing: Rule 8-1(13). An Application respondent may not serve any further affidavits after service of the Application Response, and nor can the applicant after 4 p.m. on the business day that is one full business day before the date set for the hearing, unless in either case all parties of record consent or the court otherwise orders: Rule 8-1(14). The court s discretion under Rule 8-1(14) should be exercised sparingly, and then only in clearly meritorious cases, where to exclude the evidence would result in a substantial injustice. Furthermore, the discretion should not be exercised so as to allow a party to split its case. It should not be used to permit the introduction of a substantial amount of new evidence. In determining whether to permit the filing of further affidavit evidence, the court should consider the reasons for the failure to include it initially in order to avoid the potential abuses that may result from the filing of further affidavits. See Ivarson v. Lloyd s Underwriters, [2002] B.C.J. No. 2646, 46 C.C.L.I. (3d) 240, 2002 BCSC 1627, at paras F. Application Record If an Application will be opposed, the Applicant must file, no later than 4:00 p.m. on the business day that is one full day before the date set for the hearing (Rule 8-1(15)). The Applicant must serve a copy of the Application record index on each Applicant Respondent no later than noon of the court day before the date set for the hearing (Rule 8-1(17)). The Application record is provided to the registry where the hearing is to take place, but it is not filed with the registry and does not become a document of record. For that reason there are special provisions concerning the disposition of the Application record following a hearing, whether as the result of a determination of the issue before the court or of an

16 adjournment. Unless the court otherwise orders, the applicant must retrieve the Application record at the conclusion of the hearing, or if the hearing of the Application is adjourned to a date later than the following business day, after the hearing is adjourned: Rule 8-1(19). If the Application record has been retrieved by the applicant where the hearing of the Application is adjourned to a date later than the following court day the applicant must return the Application record to the registry between 9:00 a.m. and 4 p.m. on the business day that is one full business day before the new date set for the hearing of the Application: Rule 8-1(20). If further affidavits are filed and served under Rule 8-1(14) and are not included in the Application record, the applicant must provide to the registry an amended Application record that contains those affidavits: Rule 8-1(21). If an Applicant Respondent intends to set an Application for hearing at the same time as the Applicant s Application, those parties must, so far as is possible, prepare and file a joint Application record and agree to a date for the hearing of both Applications (Rule 8-1(18)). Unless the court otherwise orders, the Applicant must, unless the Application record was provided to the registry electronically, retrieve the Application record at the conclusion of the hearing, or if the hearing is adjourned, after the hearing is adjourned (Rule 8-1(19)). Rule 8-1(15) sets out what the Application record should and should not contain as follows: (a) the application record must be in a ring binder or in some other form of secure binding; (b) the application record must contain, in consecutively numbered pages, or separated by tabs, the following documents in the following order: (i) a title page bearing the style of proceeding and the names of the lawyers, if any, for the applicant and the application respondents, (ii) an index, (iii) a copy of the filed notice of application, (iv) a copy of each filed application response, (v) a copy of every filed affidavit and pleading, and of every other document other than a written argument, that is to be relied on at the hearing, (vi) if the application is brought under Rule 9-7, a copy of each filed pleading; (c) the application record may contain: (i) a draft of the proposed order, (ii) subject to subrule (16), a written argument, (iii) a list of authorities, and (iv) a draft bill of costs; (d) the application record must not contain: (i) affidavits of service, (ii) copies of authorities, including case law, legislation, legal articles or excerpts from text books, or (iii) any other documents unless they are included with the consent of all the parties of record.

17 G. Order Made After Application (Rule 13-1, Form 35) An order is effective from the moment it is pronounced in court even before it is drawn up and entered, unless otherwise ordered by the court. If a party does not enter an order the court may deem this failure to be the party s abandonment of the relief sought. The successful party typically drafts the order, except where lay litigants are involved, in which case counsel usually prepares the order. If counsel for a party ceases to act for that party following the hearing that counsel is still under an obligation to approve the order if the order correctly states the relief granted by the court. Along with the court s decision, the contents of the Notice of Application will be your starting point when drafting the order. If you are uncertain about a term of the order obtain the registrar s notes. Registrar s notes may be obtained by sending a requisition to the registry in Form 17 requesting a copy of same. You should state the date of the hearing, courtroom number, and the name of the master or judge who heard the matter. Orders should accurately reflect the court s decision and should speak for themselves, meaning that they should be understood without reference to other documents. Rule 13-1(1) deals with the drafting and approving of orders and reads: (1) An order of the court (a) subject to subrule (15), may be drawn up by any party, (b) subject to subrule (2) and paragraph (c) of this subrule, must, unless the court otherwise orders, be approved in writing by all parties of record or their lawyers, (c) need not be approved by a party who has not consented to it and who did not attend or was not represented at the trial or hearing following which the order was made, and (d) after approval under this rule, must be left with a registrar to have the seal of the court affixed. An order made without a hearing and by consent must be in Form 34. An order made at trial must be in Form 48 and an order following a chambers Application must be in Form 35 (Rule 13-1(3)). The following is a brief overview of how to prepare an order made after Application (Form 35): 1. Preamble The name of the presiding judge or master and the date of the order is shown immediately below the style of proceeding. The preamble must list the party making the Application following which there are a number of choices to make, which include: where the hearing took place, on what date, and who attended (or did not attend); whether the hearing was without notice, where it was heard, on what date, and who attended; whether the hearing was without notice, and who filed materials in support. The citation of affidavits relied on is not necessary. Where an order is made dismissing an Application, set out in the body of the order, the nature of the Application so that it is apparent as to what matters the court was dispensing of. 2. Second Paragraph If judgment was not rendered on the date(s) the matter was heard, then the decision was reserved and the phrase AND JUDGMENT BEING RESERVED TO THIS DATE should be inserted.

18 3. Third and Subsequent Paragraphs Third and subsequent paragraphs contain the relief granted by the court in sequentially numbered paragraphs. If you have taken the time to consider the wording of your Notice of Application you should be able to cut and paste the wording from your Notice of Application and place it in the body of the order, assuming your lawyer obtained all of the relief set out in the Notice of Application. As with the Notice of Application, each paragraph should contain only one matter disposed of. 4. Endorsement All parties who attended at the hearing, or who consented to the Notice of Application, must sign the order, unless the court specifically waived the consent of a party as to the form of the order. If there are several parties, the order may be circulated to each for signature, or separate signature pages may be circulated to each party and appended to the order as minutes. The order MUST contain original signatures. Each person signing the order must type or print his/her name and indicate whether he/she is a party or lawyer (and if a lawyer then also list which party the lawyer acts for). Any lawyer may sign an order, regardless of whether or not they appeared in court on the Application. The order may not be signed in quotation marks. The original order must be submitted to the registry for entry. An order can be checked at any Supreme Court registry in the province regardless of where it was heard. This means the order can be sent to its home registry for checking even though it was heard elsewhere. Articled students may approve and sign orders when they appear in court on matters permitted by Rule 2-43 of the Law Society Rules. If you are preparing an order for an articled student to sign the correct wording to use in the preamble to the order is: (name), Articled Student on behalf of, counsel for the (plaintiff/defendant), (name of party). Copies of the entered order should be sent to all parties and those affected by its terms. H. Urgent Orders To have an order entered on an urgent basis, submit a requisition in Form 17 to the registry, where the order is to be submitted explaining why the order should be entered on an urgent basis. If the registrar is not satisfied with your reasons for urgency your order will be processed in due course. Orders entered on an urgent basis are usually processed within 24 hours. If the order is submitted before 1:00 p.m. on the day on which it is heard it may be processed by 3:30 p.m. that same day. Orders submitted after 1:00 p.m. are typically processed by 10:30 a.m. the next business day. I. The Slip Rule Rule 13-1(17) governs the correction of orders that have been entered. An order may be corrected at any time before it is submitted to the registry for filing. Once an order has been entered a party must make an Application pursuant to Rule 13-1(17), which reads: (17) The court may at any time correct a clerical mistake in an order or an error arising in an order from an accidental slip or omission, or may amend an order to provide for any matter which should have been but was not adjudicated on.

19 The accidental slip or omission must be the result of a mental lapse and refers to clerical mistakes. Rule 13-1(17) enables a master or judge to include a term or terms in the order that the parties agree should be included. The Application to amend the order must be accompanied by an affidavit explaining how the mental lapse occurred. The affidavit should contain a statement that you had intended to include the term in the order. It is within the court s inherent jurisdiction to correct the order. The draft order does not replace the original order. It is read in conjunction with the original order. You may not backdate the order. The correct wording to use following the preamble is as follows: The order made in this Application on (date) be amended by deleting/adding (whatever the case may be) in paragraph and substituting. If, upon submission of the Application, the court determines that it would be too confusing to have both orders read together, the court may require that counsel appear in chambers to obtain a new order. J. Adjournments (Rule 22-1(10), Formerly Rule 52(13)) Where a Notice of Application has been filed with the registry a party will need to phone or fax the registry (depending on each registry s practice) before 4:00 p.m. on the day prior to the hearing and between 8:30 a.m. and 9:00 a.m. on the date set for hearing to adjourn the hearing. If after 9:00 a.m. the hearing may only be adjourned in person in chambers by informing the clerk before chambers commences. After chambers commences, counsel will need to adjourn the hearing by speaking to the matter before a judge or master. File a requisition in Form 17 setting out: (a) the date of the original Notice of Application; (b) the date on which the hearing is now set or adjourn the matter generally if no new date has been set; and (c) whether the adjournment is by consent or that no other party has been given notice of the Application. K. Resetting the Application (Rule 22-1(7), Formerly 52(11)) To reset an Application you are required to file the following documents: 1. Requisition in Form 17 setting out: (a) the new date on which the Application is to be heard; (b) the date of the original Notice of Application; (c) if the hearing is by consent; (d) the time estimate; and (e) a brief description of the Application; 2. Copy of the Notice of Application marked in such a way as to indicate the relief to spoken to; and 3. Application record. To reset to a date agreed to or on three days notice (formerly two days) to the Applicant Respondent (Rule 22-1(7)).

20 If the Application record has been retrieved by the Applicant, the Applicant must return the Application record to the registry between 9:30 a.m. on the second court day before, and noon on the court day before, the new date set for the hearing of the Application. If additional affidavits are filed and served under Rule 8-1(14) (i.e., by consent or order of the court), the Applicant must provide the registry with an amended Application record containing those affidavits (Rule 8-1(21)). A. Resources VIII. Part VII The following are some additional resources that you may find of assistance: Civil Rules Concordance Ministry of Attorney General Other Information About the Civil Rules B. Sources Bouck, Dillon & Turiff, British Columbia Annual Practice, Canada Law Book, 2009 Brenner & Sugden, Civil Rules Transition Guide, CLEBC, 2010 Fraser & Horn, The Conduct of Civil Litigation in BC, Butterworths, 1978 McCallum, Joyce & Wellburn, Supreme Court Chambers Order Annotated, CLEBC, 1990

21 IX. Appendix A Practice Direction No. 14: Masters Jurisdiction

22 3.1.20

23 3.1.21

24 X. Appendix B Practice Direction re: Changes to Chambers Practice Rule 51A PRACTICE DIRECTION RE: CHANGES TO CHAMBERS PRACTICE - Rule 51A This practice direction will come into effect July 1, 2001 to coincide with the amendments to the Supreme Court Rules concerning chambers practice and Rule 51A. This practice direction replaces the practice directions dealing with the Vancouver Pilot Project - Rule 65 issued December 19, 1996, March 3, 1997, April 29, 1997, June 26, 1997, January 13, 1998 and February 2, 1998 and the practice directions concerning chambers issued October 17, 1990, June 18, 1992 and March 31, Long Chambers Applications and Applications of which a Judge or Master is seized For all applications with time estimates in excess of 2 hours, written arguments and a list of authorities will be required. These must be included in the chambers record. Arrangements to schedule an application of which a particular Judge or Master is seized or ones with a time estimate in excess of 2 hours may be made by telephoning the trial coordinator. In some locations outside Vancouver this applies to all applications with time estimates in excess of one hour. All Applications All documents to have a matter placed before a judge or master in chambers must contain a notation as to whether the application is within the jurisdiction of the master and, if not, the reason(s) why. Masters will continue to hear all applications within their jurisdiction throughout the province except in those small centres where a master does not sit or will not be sitting within four weeks of the time of bringing an application. Matters with Time Estimates of 30 Minutes or Less The new Rules require outlines and chambers records for applications with time estimates in excess of 30 minutes. This material has proved to be extremely useful to the chambers judges and masters sitting in Vancouver during the Rule 65 pilot project. Time estimates will be strictly enforced to prevent abuse of the 30 minute rule. As well, to encourage the continued use of chambers records in Vancouver, matters with a time estimate of 30 minutes or less will be given priority if a record is filed. Short Leave If a party is unable to comply with the time requirements set out in Rule 51 A or to reach an agreement with the opposing party to shorten the time limits, an application for short leave may be made pursuant to Rule 3(3.1). The short leave application may be made by filing a praecipe in the form attached together with supporting material and attending for the hearing of the short leave application. If no judge or master is available, the application may be heard by a registrar.