The new Supreme Court Civil Rules
On July 1, 2010, the new Supreme Court Civil Rules that govern the procedure for litigation in British Columbia came into effect. The change in the Rules was brought about to address the widely-held concern that the high cost of litigation was discouraging and, in some cases, preventing people from accessing judicial process to resolve disputes. The new Rules were designed to improve access by reducing the complexity of litigation and introducing the key concept of “proportionality.”
Main features of the new Rules
Before the Rules came into effect, in the Winter 2009 issue of Letter of the Law we identified these particular features that we thought were the most significant departures from past practice:
• limits on documentary and oral discovery
• more active case planning
• the role of experts
• the concept of proportionality.
Assessing the Rules’ impact
During the past year, we have had the chance to see what impact the changes have had on civil litigation. We have discussed the impact of the new Rules with other lawyers, both within and outside Singleton Urquhart. The general consensus seems to be that the new Rules have, to this point, resulted in changes in form but not substance.
Limits on documentary and oral discovery
Starting with the first changes—limits on documentary and oral discovery—the new Rules contemplate more curtailed disclosure of documents. However, it has been our experience that parties still often default to the broad disclosure of all documents “relating to every matter in question in the action” required by the previous rules.
This is done in order to avoid the time and expense involved in ‘culling’ the relevant documents. In addition, more liberal disclosure avoids disputes about the extent of production. We expect most parties to continue to provide broad disclosure, unless the Court begins penalizing parties for failing to limit their document production.
Examinations for discovery
The new Rules also impose time restrictions for examinations for discovery. However, the new seven-hour time limit is subject to the agreement of the litigating parties or a court order. So far, it has been our experience that the Court is reluctant to restrict a party’s opportunity for discovery. As a result, the time restriction has not had a substantial impact on examinations for discovery.
Another major change in the new Rules places a greater focus on case planning, including the creation of Case Planning Conferences (CPCs) in which Supreme Court judges become more involved in actively managing the litigation. Although a CPC offers an alternative manner for obtaining a number of specific orders relating to document production, witnesses, experts, and timelines, its success depends on the degree of commitment from the presiding judge. This was our experience under the Case Management provision under the old rules.
Role and use of experts
The new Rules also give judges considerable powers over the role and use of experts in litigation. They may:
• require competing experts to confer with each other
• order parties to appoint a single joint expert
• engage their own “expert of the Court”.
However, we have yet to see, or even hear of, a Supreme Court case that has implemented any of these measures. In our experience, the practice remains largely as before under the previous rules with each party engaging its own independent experts.
The concept of proportionality
When the new Rules were announced, the introduction of “proportionality” was heralded as the overarching concept that would guide the Supreme Court’s application of all the Rules. The Rules define the concept of proportionality in broad terms that could have a significant impact on civil litigation. They expressly require a Court to apply the “old” objects of a “just, speedy and inexpensive determination of a proceeding” having regard to:
(a) the amount involved in the proceeding,
(b) the importance of the issues in dispute, and
(c) the complexity of the proceeding.
To date, we have seen surprisingly few instances of the Court departing from traditional practices under the previous Rules in the name of proportionality. However, this is the area in which we hope, if not expect, to see some progress as both judges and lawyers become more familiar with the new Rules and more comfortable in applying them.
Changes noticed in bringing applications before judges
The Rules do appear to be having an effect in at least one area, the process for bringing an application before a judge to resolve a dispute or seek a particular remedy before trial. Under the previous rules, a party wishing to bring an application needed to do no more than deliver an unfiled notice of application identifying the relief it sought. Under the new Rules, parties are required to prepare and file with the Supreme Court a more comprehensive Notice of Application that sets out the legal basis for the relief sought and identifies a specific date for the application to be heard.
Given the additional time involved in preparing these Notices, we have perceived that counsel are now more selective about bringing applications. In addition, when Notice of Application is delivered with full particulars of the legal basis, the litigating parties are more likely to engage in a substantive discussion on the merits of the application in advance of the hearing. In our opinion, this has been a positive change.
Application of Rules likely to be incremental over time
While we have not seen a significant impact on the conduct of litigation, it may still be too soon to properly assess the impact of the new Rules. Judges and lawyers have become accustomed to litigating cases in a certain fashion that adheres to long-established customs and ways of thinking. If the ambitious goal of reducing the complexity and cost of litigation is to be achieved, this is likely to occur through incremental shifts in the way the new Rules are applied by judges over the next few years.
Read other articles from the Fall 2011 Letter of the Law
Delaying Disclosure Has Consequences for Strata Developers
by Mark Thompson and Mitch Dermer
Court SLAPPs Lay Litigant with Special Costs
by Scott Brearley and Carmen Hamilton
Collecting a Judgment
by Mark Stacey and Mitch Dermer
A Settlement Agreement Successfully Defended
by Ian Jones
Hiring Foreign Workers for Your Construction Projects by Melanie Samuels and Carmen Hamilton
The Rules Have Changed But Litigation Remains the Same by Stephen Berezowskyj and Daniel Barber
Disclose Out-of-Court Agreements Immediately – Or Else! by Scott Brearley
Editor’s Note by David Perry
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