The New Supreme Court Civil Rules 7 Major Changes

Transcription

1 CIVIL LITIGATION BASICS 2010 UPDATE PAPER 6.1 The New Supreme Curt Civil Rules 7 Majr Changes These materials were prepared by J. Kenneth McEwan, QC, f Hunter Litigatin Chambers, Vancuver, BC, fr the Cntinuing Legal Educatin Sciety f British Clumbia, January J. Kenneth McEwan, QC

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3 6.1.1 THE NEW SUPREME COURT CIVIL RULES 7 MAJOR CHANGES I. Overview... 1 II. Cmmencing and Actin & Pleadings (Part 3)... 1 III. Case Planning (Part 5)... 2 IV. Disclsure Obligatins (Part 7)... 2 V. Examinatin fr Discvery (Part 7)... 3 VI. Experts (Part 11)... 3 VII. Fast Track Litigatin (Part 15)... 3 VIII. Chambers Applicatins (Part 8)... 4 The new rules are effective July 1, I. Overview While a significant number f the rules have changed, mst rules are similar if nt identical t the current Rules in their wrding, s mst precedents will still have applicatin t the interpretatin f the new rules. The Rules are gruped int Parts in a lgical way. I.e. Part 7: Prcedures fr Ascertaining Facts includes discvery, use f interrgatries, witness lists, pre-trial examinatin f witnesses, admissins, depsitins. An explicit aspect f the new rules is the expressin f the principle f prprtinality. Under Rule 1-3(2) prceedings shuld be cnducted in ways that are prprtinate t the financial amunt invlved in the prceeding, the imprtance f the issues in dispute and the prceeding s cmplexity. Prprtinality will be a cnsideratin with respect t such matters as the extent f discvery and judicial case management. The family rules are nw a set f stand-alne rules. II. Cmmencing and Actin & Pleadings (Part 3) The new rules have a simplified case initiatin and respnse prcess. Ntice f Civil Claim (Frm 1) replaces the writ f summns and statement f claim (R. 3-1). The Ntice must include a cncise statement f the material facts giving rise t the claim, the relief sught by the plaintiff and a cncise summary f the legal basis f the claim. The Ntice is valid fr 12 mnths and can be renewed fr anther 12 mnths (R. 3-2).

4 6.1.2 The ntice islates the statement f facts frm the legal basis and the relief sught. Mst deadlines are in multiples f 7. A respnse (Frm 2) t a civil claim must be filed 21 days frm the date f service if the Ntice is served within Canada, 35 days if it is served in the USA and 49 days if it is served elsewhere in the wrld (R. 3-3(3)). The statement f defence is replaced by a Respnse t Civil Claim. The Respnse explicitly requires fr any facts denied, a respnse which includes a cncise statement f the defendant s versin f that fact. The Respnse requires that all facts be stated t be admitted, denied r utside the knwledge f the defendant (R. 3-3(2)). III. Case Planning (Part 5) The case planning rules builds upn the cncept f judicial case management which has grwn since 1995 in an attempt t reduce csts. The Case Plan Order is the result f a Case Planning Cnference, which can be requested by either party after pleadings have clsed (R. 5-1(1)). Once requested they are mandatry parties are required t attend, the rules states a judge is required t make an rder (R. 5-2(2), R. 5-3(3)). Unless the Curt therwise rders, a prpsal is required frm each party setting ut discvery f dcuments, examinatins fr discvery, dispute reslutin prcedures, expert witnesses, witness list, and trial type, estimated length and preferred perids (R. 5-1(5) & (6)). The cnference is cnducted by a judge r master wh is empwered t make a range f rders in relatin t timetables, amendment f pleadings, discvery, interrgatries, third party claims, witness lists, experts and admissins, ffers t settle, cnduct f any applicatin, length f trial and setting dates (R. 5-3(1)). Applicatins may be made t amend the rder (R. 5-4). IV. Disclsure Obligatins (Part 7) Disclsure f dcuments is limited in the first instance t dcuments that culd be used t prve r disprve a material fact, and any ther dcument n which a party intends t rely (R. 7-1(1)). Intended t narrw the brad scpe f prductin created by Peruvian Guan t dcuments with direct relevance t the issues. There is n lnger a demand fr discvery f dcuments. All parties must prepare a list f dcuments within 35 days after the end f the pleading perid (R. 7-1(1)). The list includes: (i) all dcuments that are r have been in the party s pssessin r cntrl and that culd, if available, be used by any party f recrd at trial t prve r disprve a material fact, and (ii) all ther dcuments t which the party intends t refer at trial. A party may request additinal dcuments r classes f dcuments by written request, setting ut the dcuments with reasnable specificity and utlining the reasn fr the request. The respnding party must either cmply, r t the extent f any refusal reply giving reasns fr

5 6.1.3 the refusal. The party demanding may make an applicatin fr prductin f additinal dcuments that have nt been vluntarily prduced. This mechanism allws fr prductin up t the Peruvian Guan scpe (R. 7-1(11)). V. Examinatin fr Discvery (Part 7) There is a 7 hur limit n examinatins fr discvery unless parties agree r the curt rders (R. 7-2(2)). In an applicatin t extend the time fr examinatin fr discvery the Curt will cnsider the persn s answers r lack theref, admissins r lack theref, the cnduct f the examining party, whether it is reasnably practicable t cmplete the examinatin within the limited perid, and the number f parties, examinatins and the varius interests f the parties. (R. 7-2(3)). There are n mre interrgatries unless the parties cnsent r the curt rders (R. 7-3(1)). VI. Experts (Part 11) There are a number f changes t the rules regarding experts: If a case plan rder has been made, unless the Curt therwise rders, expert evidence must be prvided fr in the case planning rder r it can nt be used at trial (R. 11-1(2)). Expert witnesses nw have a duty t assist the curt and nt be an advcate fr either party (R.11-2(1)). The rules facilitate the use f jint experts bth under a case planning rder, r vluntarily. The prcedure requires the parties t settle n the identity, issues, facts, assumptins, questins and fees befre appintment f the expert; the curt can settle terms f disagreement (R.11-3(1) & (3)). The jint expert will be the nly expert allwed t give expert pinin n the issue in questin unless therwise rdered by the Curt. The rules detail the requirements fr an expert s reprt and prvide fr the inclusin in the reprt f the instructins prvided t the expert in relatin t the prceeding (R. 11-6(1)). The ntice perids have been extended. The expert reprt must be served 84 days befre the trial and 42 days if it is a respnse t anther expert reprt (R. 11-6(3) & (4)). Upn request, an ppsing party may review an expert s file befre trial at least 14 days befre trial. If the request is made within 14 days befre trial, the file is t be made available prmptly after request (R. 11-6(8)(b)). The ppsing party can require the expert attend trial fr crss examinatin by making a request within 21 days after service f the reprt. If n such request is made, the reprt, if admissible, may be tendered as evidence withut the need fr the expert t attend. (R. 11-7(2)). VII. Fast Track Litigatin (Part 15) The new Fast Track Litigatin Rules cmbines the current R. 68 (expedited litigatin) and R. 66 (the fast track rule) fr matters invlving $100,000 r less r in which a trial can be cmpleted in 3 days. Case planning cnference is mandatry under Fast Track Litigatin (R. 15-1(7)).

6 6.1.4 Oral discvery f nly 2 hurs is allwed unless the examinee cnsents r the curt rders (R. 15-1(11)). Csts are limited and fixed; exclusive f disbursements it is $8000 fr a day r less, $9500 fr 2 days r less, $11,000 fr mre than 2 days (R. 15-1(1)). Increase in csts currently allwable under R. 66. Des away with the limitatin f ne expert fund in the current R. 68. VIII. Chambers Applicatins (Part 8) The Ntice f Mtin is nw replaced by the Ntice f Applicatin. It must nt exceed 10 pages, and must include the rders sught, set ut a brief summary f the factual basis f the applicatin, the jurisdictinal basis fr and any legal argument in supprt f the applicatin, a statement f the affidavits and ther dcuments relied upn, and the place f hearing (R. 8-1(4)). In the case f an interlcutry applicatin, the applicatin materials must be served at least 7 days befre the date set fr hearing. Respnding materials must be served within 5 days f service f the applicatin. The Applicatin Respnse must nt exceed 10 pages and must include a statement f the respndent s psitin. In relatin t any relief that is ppsed it must summarize the factual and legal basis f that ppsitin. It als must include a statement f the affidavits relied n and an estimate f the time fr hearing (R. 8-1(10)). Reply materials must be served by nn n the day befre the date set fr hearing. The applicatin recrd (i.e. the chambers recrd) must be filed by nn n the day befre the date set fr hearing and must include yur friend s materials (R. 8-1 (15)). Unless an applicatin is estimated t take mre than 2 hurs, written argument is limited t that in the Ntice f Applicatin r Applicatin Respnse.