On July 1, 2010 new rules governing the conduct of litigation in the Supreme Court of British Columbia came into effect. These new rules completely replaced the existing rules which had been effect since 1979. The following are the essential elements of the new rules that everybody in local government needs to know.
The new rules are called the Supreme Court Civil Rules. There is a separate set of new rules governing the conduct of family law litigation entitled Supreme Court Family Rules.
How a Court Action is Commenced
There are two procedures to commence a court proceeding. Most court actions such as those seeking damages will now be commenced by a new single form called Notice of Civil Claim which replaces two forms – the historic Writ of Summons and the Statement of Claim.
It is no longer possible to commence an action by simply filing a Writ with a short endorsement explaining the nature of the claim; rather, the new Notice of Civil Claim requires that a Plaintiff set out a statement of the material facts, the relief that is being sought, and a concise summary of the legal basis for the relief sought. This will require Plaintiffs to expend more time, research and money to fully meet the requirements of the Notice of Civil Claim. Careful consideration of these details must be commenced well in advance of a limitation period for bringing a claim.
The second method for commencing a court proceeding is by Petition. This process is now required for all proceedings to challenge a decision of local government, such as setting aside a bylaw or resolution. This form and procedure will also be used for all proceedings by local government to enforce their bylaws. The Petition will require a summary of the factual and legal basis for the orders that are sought and must be supported by affidavits and relevant documents. These proceedings will usually be conducted with affidavit evidence instead of a trial with witnesses as will be the case under a Notice of Civil Claim.
How to Respond to a Claim
If you receive a Notice of Civil Claim, you have 21 days after being served to file a form called a Response to Civil Claim. This form replaces the former Appearance and Statement of Defence, which no longer exist. The Response to Civil Claim must set out which orders being sought by the Plaintiff are either consented to or opposed; which facts set out by the Plaintiff are agreed to or disputed; any additional facts that the Defendant believes are relevant; and the legal basis for opposing the claim.
If you are served with a Petition you have 21 days to file a new form entitled Response to Petition along with all required affidavits. The Response must indicate which orders are consented to or opposed; set out the factual and legal basis for opposing any order; and be accompanied by the affidavits and other documents which the Respondent will rely upon.
In an action commenced by a Notice of Civil Claim, all parties are required within 35 days after the pleadings have been delivered to deliver a List of Documents setting out all of the documents that are relevant to the action. This automatic requirement for disclosure for documents replaces the former requirement where parties could wait until the other side delivered the now repealed Demand for Discovery of Documents.
Examinations for Discovery
The new rules place a time limit of seven hours on the length of time for an Examination for Discovery unless the parties consent to a greater amount of time or the court grants an order to extend the time for completing the Examination for Discovery.
A new regime of staggered delivery of expert reports replaces the previous practice of a simultaneous exchange of expert reports. Initial expert reports must be delivered (usually by the Plaintiff) at least 84 days prior to the trial and responsive expert reports (usually by a Defendant) must be delivered 42 days before the trial.
Other new rules and forms relating to chambers applications, the conduct of trials, and the content of other court forms and orders, are changed somewhat but overall are similar to the previous Supreme Court Rules.
The most important aspect of the new Supreme Court Civil Rules for local government to recognize is that bringing a claim will now require a greater amount of detail and time to properly prepare the Notice of Civil Claim. That preparation cannot be left to the last minute. Relevant documents need to be organized and be disclosed very early on in this process. Defending a claim requires quick action in order to gather the material facts and the relevant documents and to conduct the legal research within the time limit set by the rules.
If you intend on bringing a court action or if you are served with documents commencing a court proceeding you should contact your lawyer as soon as possible in order to ensure that you will be able to meet the requirements of the new rules within the new time frames established by them.