221/90 O.C. 1039/90 September 1, 1990 REPEALED BY B.C. REG. 168/2009 Court Rules Act [includes amendments up to B.C. Reg. 165/2009, July 1, 2009] 31 Admissions Notice to admit 1 In a proceeding in which a statement of defence, answer or answer and counter petition has been filed, a party may, by delivery of a notice to admit in Form 23, request any party of record to admit, for the purposes of the proceeding only, the truth of a fact or the authenticity of a document specified in the notice. [en. B.C. Reg. 143/94, s. 6.] Effect of notice to admit 2 Unless the court otherwise orders, the truth of a fact or the authenticity of a document specified in the notice to admit shall be deemed to be admitted, for the purposes of the proceeding only, unless, within 14 days, the party receiving the notice delivers to the party giving the notice a written statement that a specifically denies the truth of that fact or the authenticity of that document, b sets forth in detail the reasons why the party cannot make the admission, or c states that the refusal to admit the truth of that fact or the authenticity of that document is made on the grounds of privilege or irrelevancy or that the request is otherwise improper, and sets forth in detail the reasons for the refusal. Copy of document to be attached 3 Unless the court otherwise orders, a copy of a document specified in a notice to admit shall be attached to the notice when it is delivered. Unreasonable refusal to admit 4 Where a party unreasonably denies or refuses to admit the truth of a fact or the authenticity of a document, the court may order the party to pay the costs of proving the truth of the fact or the authenticity of the document and may award as a penalty additional costs, or deprive a party of costs, as the court thinks just. Withdrawal of admission 5 A party is not entitled to withdraw a an admission made in response to a notice to admit, b a deemed admission under subrule (2), or c an admission made in a pleading except by consent or with leave of the court. Application for order on admissions 6 An application for judgment or any other application may be made to the court using as evidence a admissions of the truth of a fact or the authenticity of a document made i in an affidavit or pleading filed by a party, ii in an examination for discovery of a party or a person examined for discovery on behalf of a party, or iii in response to a notice to admit, or b admissions of the truth of a fact or the authenticity of a document deemed to be made under subrule (2) and the court may, without waiting for the determination of any other question between the parties, make any order it thinks just. Repealed 7–9 Repealed. [B.C. Reg. 95/96, s. 14.] 32 Inquiries, Assessments and Accounts Direction for inquiries, assessments or accounts 1 At any stage of a proceeding the court may direct an inquiry, assessment or accounting to be held by a master, registrar or special referee. Certificate as to result 2 The court may direct that the result of an inquiry, assessment or accounting held by a master, registrar or special referee be certified by that person, and the certificate, when filed, shall be binding on the parties to the proceeding. Report and recommendation 3 Where the court does not direct that the result of an inquiry, assessment or accounting be certified, then the result of the inquiry, assessment or accounting shall be stated in the form of a report and recommendation to the court. Application to vary or confirm recommendation 4 On application by a party, the court may vary or confirm the recommendation or remit the matter. Time and place of hearing 5 A master, registrar or special referee may hold a hearing at a convenient time and place, may adjourn it from time to time, may administer oaths, take evidence, direct production of documents and give general directions for the conduct of the hearing. Appointment 6 A party proceeding with an inquiry, assessment or accounting shall take out an appointment in Form 24 and shall serve notice of it upon all parties of record or as directed by the court. Witnesses 7 A party to a proceeding in which an inquiry, assessment or accounting is held may subpoena any person, including a party, to give evidence at the hearing and to produce documents. Certificate or recommendation to be filed and served 8 A master, registrar or special referee shall state the result of an inquiry, assessment or accounting in the form of a certificate or a report and recommendation as directed, with or without reasons, and shall a provide a certificate to the party requesting it, or b file the report and recommendation and provide a copy to all persons who appeared at the hearing. [en. B.C. Reg. 165/97, s. 9.] Party may file certificate 8.1 A party to whom a certificate is provided under subrule (8) (a) may file that certificate. [en.B.C. Reg. 165/97, s. 9.] Opinion of the court 9 Before the master, registrar or special referee has concluded a hearing he or she may, in a summary or other manner, ask the opinion of the court on any matter arising in the hearing. Accounts of executor, trustee, etc. 10 A person may apply by petition for the furnishing of accounts by the executor or administrator of an estate, a trustee, a receiver, a liquidator, guardian or partner. Special directions 11 The court may give special directions as to the manner in which an inquiry, assessment or accounting is to be taken or made, and the directions may include a the manner in which the inquiry, assessment or accounting is to be prosecuted, b the evidence to be adduced in support, c the parties required to attend all or any part of the proceedings, d the time within which each proceeding is to be taken, and e a direction that persons whose interest can be classified shall constitute a class and be represented by the same solicitor and, where the persons cannot agree on the solicitor to represent them, the court may appoint the solicitor to represent them, and the court may fix a time for the further attendance of the parties. Varying directions 12 The court may vary or rescind a direction given under subrule (11). Form of account 13 Where an account is directed to be taken, unless the court otherwise orders, the accounting party shall make out that party's account and verify it by an affidavit to which the account shall be exhibited. The items on each side of the account shall be numbered consecutively, and the accounting party shall file the affidavit and the account and deliver copies to all parties of record. Particulars of errors in account 14 A party who alleges that there are errors or omissions in an account shall file and deliver to all parties of record a notice thereof with brief particulars. Repealed 15 Repealed. [B.C. Reg. 165/97, s. 9.] Notice of order 16 Where in a proceeding relating to a the administration of the estate of a deceased person, b the execution of a trust, or c the sale of any property, the court makes an order which directs any inquiry, assessment or accounting to be taken or made, the court may direct notice of the order in Form 25 to be served on any person interested in the estate or under the trust or in the property, and any person served with notice of an order in accordance with this rule shall, subject to subrule (18), be bound by the order to the same extent as the person would have been if the person had originally been made a party to the action. Dispensing with service 17 The court may dispense with service on a person in any case where it appears it is impracticable for any reason to serve the person and may also order that that person shall be bound by any order made to the same extent as if the person had been served with notice of the order, and the person shall be bound accordingly except where the order was obtained by fraud or non-disclosure of material facts. [am. B.C. Reg. 101/2001, s. 1.] Person may apply to vary or rescind 18 A person served with notice, within 28 days after service of the notice on him or her, without entering an appearance, may apply to the court to vary or rescind to the order. Person may enter appearance 19 A person served with notice may, after entering an appearance in Form 7, take part in the proceeding. 32A Court Appointed Experts [en. B.C. Reg.10/92, s. 6.] Appointment by court 1 On application, or on its own initiative, the court may, at any time, appoint one or more independent experts to inquire into and report on any question of fact or opinion relevant to an issue in the proceeding. Idem 2 The selection of the expert may be agreed upon by the parties, but where they cannot agree selection shall be made by the court. Directions to expert 3 The court, after consultation with the parties, shall settle the question to be submitted to the expert and shall give the expert appropriate directions. Contents of order appointing expert 4 The order appointing an expert shall contain the directions to the expert and the court may make such further orders as it considers necessary to enable the expert to carry out the directions, including, on application by a party, an order for a inspection of property under Rule 30 (4), or b the examination with respect to the physical or mental condition of a party under Rule 30 (1). Remuneration of expert 5 The remuneration of the expert shall be fixed by the court, and may include a fee for the report required under subrule (7) and an appropriate sum for each day that the expert's attendance in court is required. Security for remuneration 6 The court may make an order for security for the remuneration of the expert, without prejudice to either party's right to costs. Report 7 The expert shall prepare a report and send it to the registry, with a copy to the parties or to their solicitors, within such time as the court directs. Report filed as evidence 8 The report shall be entered as evidence at the trial of the action, unless the trial judge orders otherwise. Further reports 9 The court may direct the expert to make a further or supplementary report, and subrules (7) and (8) apply to that report. Cross-examination of expert 10 Any party may require the attendance of the expert at the trial for cross-examination by any of the parties. 33 Special Case Statement of special case 1 The parties to a proceeding may concur in stating a question of law or fact, or partly of law and partly of fact, in the form of a special case for the opinion of the court. Court may order special case 2 The court may order a question or issue arising in a proceeding, whether of fact or law or partly of fact and partly of law, and whether raised by the pleadings or otherwise, to be stated in the form of a special case. Form of special case 3 A special case must a be divided into paragraphs numbered consecutively, b state concisely such facts and set out or refer to such documents as may be necessary to enable the court to decide the questions stated, and c be signed by the parties or their solicitors. Hearing of special case 4 On the hearing of a special case, the court and the parties may refer to any document mentioned in the special case, and the court may draw from the stated facts and documents any inference, whether of fact or law, that might have been drawn from them if proved at a trial or hearing. Order after hearing of special case 5 With the consent of the parties, on any question in a special case being answered, the court may grant specific relief or order judgment to be entered. 33A Stated Cases [en. B.C. Reg. 193/2007, s. 7.] Definitions 1 In this rule: applicant means the person identified as the applicant under subrule (4) (a); authorizing enactment , in relation to a stated case, means the enactment under which the stated case is referred to the court; deliver means deliver, in accordance with Rule 11, a to the recipient's address for delivery, b if the recipient is the original tribunal, to the address for that entity, or c if the recipient is a person, other than the original tribunal, for whom an address for delivery has not been given, to the address for that person included in the latest materials filed by that person with, or submitted by that person to, the original tribunal in relation to the original proceeding; original proceeding , in relation to a stated case, means the tribunal proceeding from which the stated case is brought; original tribunal , in relation to a stated case, means the entity by which the original proceeding is heard; person has the same meaning as in the Interpretation Act, and includes an entity by which a tribunal proceeding is heard; respondent means a person identified as a respondent under subrule (4) (b); stated case means a reference to the court of a question that arises in or as a result of a tribunal proceeding, if an enactment provides that that reference be made by way of stated case, and includes a question of law submitted to the court under section 34 of the Commercial Arbitration Act; tribunal proceeding means any judicial or quasi-judicial proceeding conducted by an entity other than the court. Application 2 A stated case is governed by these rules, but, in the event of a conflict between this rule and a the authorizing enactment, the authorizing enactment prevails, and b another rule, this rule prevails. Material to be filed 3 To initiate a stated case, the original tribunal must file in a registry a a notice of stated case in Form 25A, and b any material that, under the authorizing enactment, is required to initiate a stated case. Identification of parties and others 4 A notice of stated case must a identify as the applicant the person requesting the stated case, b identify as respondents all other parties to the original proceeding, including the original tribunal if that entity is not the applicant, and c set out the names of i any persons who are identified in, or identified in the manner provided for under, the authorizing enactment or the Constitutional Questions Act as being persons to whom notice of the stated case must be provided, ii any intervenor in the original proceeding, and iii any other person to whom the original tribunal considers the notice of stated case should be delivered. Contents 5 In addition to including the information required by subrule (4), a notice of stated case must set out the following: a a statement of the relevant facts and evidence; b the questions to be determined by the court; c the applicant's address for delivery, the most recent address provided to the original tribunal by each of the respondents and the most recent address known to the original tribunal for each of the persons referred to in subrule (4) (c). Delivery of notice of stated case 6 After a notice of stated case and any material required under subrule (3) (b) is filed under subrule (3), a the original tribunal, if not the applicant, must deliver a copy of the filed notice of stated case and material to the applicant, and b the applicant must deliver a copy of the filed notice of stated case and material to i the respondents, and ii all other persons named in the notice of stated case under subrule (4) (c). Powers of court 7 The court may a give directions it considers necessary for the proper hearing and determination of the stated case, b without limiting paragraph (a), make one or more of the following orders: i that records, including transcripts and minutes, or other things be produced; ii that evidence be adduced by way of affidavit, or that it be given orally; iii that sets time limits for taking steps in, and for the hearing of, the stated case; iv that the stated case be disposed of summarily, and c exercise the powers of the court as on an originating application. Requirement for appearance 8 The original tribunal, if it is not the applicant, and any person who has received a notice of stated case under subrule (6), must, if that tribunal or person wishes to be heard on the hearing of the stated case, file an appearance under Rule 14 (1) (b.2). Notice of hearing of stated case 9 The applicant or a respondent must, if that person wishes to proceed with the stated case, set it for hearing by a filing a notice of hearing of stated case in Form 25B, and b delivering a copy of the notice of hearing of stated case, at least 14 days before the date set for hearing, to i each other party of record, and ii the original tribunal, unless that entity filed or received a copy under this subrule. 34 Proceedings on a Point of Law Point of law may be set down for hearing 1 A point of law arising from the pleadings may, by consent of the parties or by order of the court, be set down by requisition for hearing and disposed of at any time before the trial. [am. B.C. Reg. 201/2004, s. 1.] Court may dispose of whole action 2 Where, in the opinion of the court, the decision on the point of law substantially disposes of the whole action or of any distinct claim, ground of defence, set-off, counterclaim or reply, the court may dismiss the action or make any order it thinks just. 35 Pre-trial Conference Request for pre-trial conference 1 A party, having delivered or received a notice of trial, may request the holding of a pre-trial conference at a time and place to be fixed by the registrar. Order for pre-trial conference 2 On a request being received or on his or her own initiative at any stage of an action, a judge or master may direct that a pre-trial conference, mini-trial or settlement conference be held. Agenda of pre-trial conference 3 A pre-trial conference shall be attended by the solicitors for the parties, or the parties themselves, and shall consider a the simplification of the issues, b the necessity or desirability of amendments to pleadings, c the possibility of obtaining admissions which might facilitate the trial, d the quantum of damages, e fixing a date for the trial, and f any other matters that may aid in the disposition of the action or the attainment of justice. Interlocutory application at a pre-trial conference 3.1 An interlocutory application may be heard and decided at a pre-trial conference and Rule 44 applies to that application. [en. B.C. Reg. 95/96, s. 15.] Order following pre-trial conference 4 At a pre-trial conference, the judge or master may, whether or not on the application of a party, order that a the trial, or part of it, be heard by the court without a jury, on any of the grounds set out in Rule 39 (27), b the pleadings be amended or closed within a fixed time, c a party file and deliver, within a fixed time, to each other party as specified by the judge or master, a list of documents or an affidavit verifying a list of documents in accordance with the directions that the judge or master may give, d interlocutory applications be brought within a fixed time or by a specified date, e a statement of agreed facts be filed within a fixed time or by a specified date, f a general application for directions be brought within a fixed time or by a specified date, g all procedures for discovery be conducted in accordance with a schedule and plan that the court directs, and the plan may set limitations on those discovery procedures, h the obligation to pay conduct money to any of the parties or persons to be examined be allocated in the manner specified in the order, i a party deliver a written summary of the proposed evidence of a witness within a fixed time or by a specified date, j the parties attend a mini-trial or a settlement conference, k experts who have been retained by the parties confer, on a without prejudice basis, to determine those matters on which they agree and to identify those matters on which they do not agree, l the action be set for trial on a particular date or on a particular trial list, subject to the approval of the Chief Justice, and m the trial be adjourned, and, on making an order under this subrule, the judge or master may give other directions that he or she thinks just or necessary. [am. B.C. Regs. 165/97, s. 10; 149/99, s. 4.] Idem 5 Where the judge or master orders or directs that the parties attend a mini-trial, the parties shall attend before a judge or master who shall, in private and without hearing witnesses, give a non-binding opinion on the probable outcome of a trial of the proceeding. [am. B.C. Reg. 83/2002, Sch. s. 3.] Idem 6 Where the judge or master orders or directs that the parties attend a settlement conference, the parties shall attend before a judge or master who shall, in private and without hearing witnesses, explore all possibilities of settlement of the issues that are outstanding. [am. B.C. Reg. 83/2002, Sch. s. 3.] Pre-trial judge may preside 7 A judge who presides at a pre-trial conference is not seized of the action, and a trial of the action may be heard by that judge or by any other judge. When judge shall not preside 8 A judge who has heard a mini-trial or who has attended at a settlement conference shall not preside at the trial, unless all parties of record consent. 36 Discontinuance and Withdrawal Discontinuance by plaintiff 1 At any time before an action is set down for trial, a plaintiff may discontinue it in whole or in part against a defendant by filing and delivering a notice of discontinuance in Form 26 to each party of record. Idem 2 After an action has been set down for trial, a plaintiff may discontinue it in whole or in part against a defendant with the consent of all parties of record or by leave of the court. Withdrawal by defendant 3 A defendant may withdraw his or her defence or any part of it with respect to any plaintiff at any time by filing a notice of withdrawal in Form 27 and delivering a copy of it to each party of record. Costs and default procedure on discontinuance or withdrawal 4 Subject to subrule (2), a person wholly discontinuing an action or wholly withdrawing his defence against a party shall pay the costs of that party to the date of delivery of the notice of discontinuance or withdrawal and if a plaintiff, liable for costs under this rule, subsequently brings a proceeding for the same or substantially the same claim before paying those costs, the court may order the proceeding to be stayed until the costs are paid. Idem 5 Where a plaintiff discontinues the whole or any part of an action in which a person has been joined as a third party, the third party, if the discontinuance disposes of the claim against the third party, is entitled to costs and may apply to the court for a direction as to who should pay them. Idem 6 A plaintiff's right to recover costs from a defendant under subrule (4) does not preclude the plaintiff from recovering other costs properly incurred. Idem 7 Where a defendant wholly or partly withdraws his or her defence under this rule, the plaintiff may proceed under Rule 25 as though the defendant had delivered no statement of defence or only a partial statement of defence. Discontinuance not a defence 8 Unless otherwise ordered, the discontinuance of an action in whole or in part is not a defence to a subsequent proceeding for the same or substantially the same cause of action. Application to counterclaim, etc. 9 This rule applies to a counterclaim, a third party proceeding and a petition. 37   Repealed. [B.C. Reg. 130/2008, s. 1.] 37A   Repealed. [B.C. Reg. 130/2008, s. 1.] 37B Offer To Settle [en. B.C. Reg. 130/2008, s. 1.] Definition 1 In this rule, offer to settle means a an offer to settle made and delivered before July 2, 2008 under Rule 37, as that rule read on the date of the offer to settle, and in relation to which no order was made under that rule, b an offer of settlement made and delivered before July 2, 2008 under Rule 37A, as that rule read on the date of the offer of settlement, and in relation to which no order was made under that rule, or c an offer to settle, made after July 1, 2008, that i is made in writing by a party to a proceeding, ii has been delivered to all parties of record, and iii contains the following sentence: "The ….[name of party making the offer]…. reserves the right to bring this offer to the attention of the court for consideration in relation to costs after the court has rendered judgment on all other issues in this proceeding." Offer not to be disclosed 2 The fact that an offer to settle has been made must not be disclosed to the court or jury, or set out in any document used in the proceeding, until all issues in the proceeding, other than costs, have been determined. Offer not an admission 3 An offer to settle is not an admission. Offer may be considered in relation to costs 4 The court may consider an offer to settle when exercising the court's discretion in relation to costs. Cost options 5 In a proceeding in which an offer to settle has been made, the court may do one or more of the following: a deprive a party, in whole or in part, of any or all of the costs, including any or all of the disbursements, to which the party would otherwise be entitled in respect of all or some of the steps taken in the proceeding after the date of delivery of the offer to settle; b award double costs of all or some of the steps taken in the proceeding after the date of delivery of the offer to settle. c award to a party, in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle, costs to which the party would have been entitled had the offer not been made; d if the offer was made by a defendant and the judgment awarded to the plaintiff was no greater than the amount of the offer to settle, award to the defendant the defendant’s costs in respect of all or some of the steps taken in the proceeding after the date of delivery of the offer to settle. [am. B.C. Reg. 165/2009, s. 1 (a), (b) and (c).] Considerations of court 6 In making an order under subrule (5), the court may consider the following: a whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or on any later date; b the relationship between the terms of settlement offered and the final judgment of the court; c the relative financial circumstances of the parties; d any other factor the court considers appropriate. Costs for settlement in cases within small claims jurisdiction 7 A plaintiff who accepts an offer to settle for a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders. [en. B.C. Reg. 165/2009, s. 1 (d).] Counter offer 8 An offer to settle does not expire by reason that a counter offer is made. [en. B.C. Reg. 165/2009, s. 1 (d).] 38 Depositions Examination of person 1 By consent of the parties or by order of the court, a person may be examined on oath before or during trial, before an official reporter, or any other person the court may direct, in order that the deposition be available to be tendered as evidence at the trial. [am. B.C. Reg. 147/95, s. 3.] Grounds for order 2 In exercising its discretion to order an examination under subrule (1), the court shall take into account a the convenience of the person sought to be examined, b the possibility that the person may be unavailable to testify at the trial by reason of death, infirmity, sickness or absence, c the possibility that the person will be beyond the jurisdiction of the court at the time of the trial, and d the expense of bringing the person to the trial. Subpoena 3 Where a party is entitled to examine a person under this rule, by serving on that person or a party a subpoena in Form 21, the party may require the person or the party to bring to the examination a any document in the person's possession or control relating to the matters in question in the action, without the necessity of identifying the document, and b any physical object in the person's possession or control which the examining party contemplates tendering at the trial as an exhibit, but the subpoena shall identify the object. [am. B.C. Reg. 95/96, s. 12.] Place of examination 4 Unless the court otherwise orders, or the parties to the examination consent, an examination under this rule shall take place at a location within 10 kilometers of the registry that is nearest to the place where the person to be examined resides. [am. B.C. Reg. 136/2005, s. 4; 193/2007, s. 5.] Application of rule outside British Columbia 5 So far as is practicable this rule applies to the examination of a person residing outside British Columbia, and the court may order the examination of a person in the place and the manner it thinks just and convenient. [am. B.C. Reg. 101/2001, s. 2.] Where person willing to testify 6 If the person to be examined is willing to testify, the order shall be in Form 31 and the instructions to the examiner appointed in the order shall be in Form 32. Where person not willing to testify 7 If the person to be examined is unwilling to testify, or if for any other reason the assistance of a foreign court is necessary, the order shall be in Form 33 and the letter of request referred to in the order shall be in Form 34. Letter of request 8 Where an order is made under subrule (7), the letter of request shall be sent by the party obtaining the order to the Under Secretary of State for External Affairs of Canada (or, if the evidence is to be taken in Canada, to the Deputy Attorney General for the Province of British Columbia), and shall have attached to it a any interrogatories to be put to the witness, b a list of the names, addresses and telephone numbers of the solicitors or agents of the parties, both in British Columbia and in the other jurisdiction, and c a copy of the letter of request and any interrogatories translated into the appropriate official language of the jurisdiction where the examination is to take place and bearing the certificate of the translator that it is a true translation and giving his or her full name and address. Filing of undertaking 9 The solicitor for the party obtaining the order shall file with the Under Secretary of State for External Affairs of Canada (or the Deputy Attorney General for the Province of British Columbia, as the case may be) his or her undertaking to be personally responsible for all the charges and expenses incurred by the Under Secretary (or the Deputy Attorney General, as the case may be) in respect of the letter of request and to pay them on receiving notification of the amount. Notice of examination 10 Notice of examination of a person under this rule shall be given by the examining party delivering copies of the subpoena to the person to be examined and to all parties of record not less than 7 days before the day appointed for the examination. Mode of examination 11 The examining party shall examine the witness, who shall be subject to cross-examination and re-examination. Objection to question 12 If an objection is made to a question put to a witness in an examination under this rule, the question and the objection shall be taken down by the official reporter and the validity of the objection may be decided by the court, which may order the witness to submit to further examination. Recording of deposition evidence 13 Unless otherwise ordered, the deposition shall be recorded either by a the official court reporter in the form of questions and answers, or b on videotape or film. Perpetuating testimony 14 A person who, under the circumstances alleged by the person to exist, would become entitled, on the happening of any future event, to an estate or interest in property, the right or claim to which cannot by the person be brought to trial or hearing before the happening of the event, may apply by originating application for an order to perpetuate any testimony which may be material for establishing the right or claim by examination under this rule. 39 Trial Application 1 This rule applies to a an action, and b an originating application that is transferred to the trial list under Rule 52 (11). c Repealed. [B.C. Reg. 161/98, s. 11 (a).] [am. B.C. Reg. 161/98, s. 11 (a).] When notice of trial may be given 2 Notice of trial in Form 35 may be delivered by a plaintiff after the time has expired for the delivery of a statement of defence or by any party after the close of pleadings. Obtaining trial date 3 A party may obtain a trial date from the registry where the trial is to be held. Idem 4 The court may direct that an action be set down for trial at a particular time and place and that the notice of trial be issued by the registry. Registry 5 The notice of trial must be issued from a the registry where the writ was issued, or b the registry to which the proceeding has been transferred for all purposes. [en. B.C. Reg. 201/2004, s. 5; am. B.C. Reg. 193/2007, s. 8 (a).] Repealed 5.1–5.2 Repealed. [B.C. Reg. 193/2007, s. 8 (b).] Delivery of notice of trial 6 Within 7 days after issue of the notice of trial, and not less than 28 days before trial, the notice of trial shall be delivered by the party obtaining it to all other parties of record. Place of trial 7 The place of trial shall be the place named in the statement of claim, but the court may order that the place of trial be changed or that the trial be heard partly in one place and partly in another. Time of trial 8 The trial shall be heard on the day appointed by the notice of trial or so soon thereafter as may be convenient. Court may adjourn trial date, etc. 9 The court may order the adjournment of a trial or fix the date of trial of an action or issue, or order that a trial shall take precedence over another trial. Duty to inform registry 10 Each party to an action entered for trial shall give the registry without delay all available information as to the settlement of the action or affecting the estimated length of the trial. Trial record for the court 11 The party who obtained the notice of trial shall file a trial record for the court, which trial record must contain a the pleadings as amended, b particulars delivered pursuant to a demand, together with the demand made, c a statement in Form 89 delivered in a proceeding under Rule 60D, and d any order made governing the conduct of the trial. [en. B.C. Reg. 143/94, s. 8; am. B.C. Reg. 149/99, s. 6.] Powers of registrar respecting trial records 11.1 The registrar may direct inclusion in the trial record of any document the registrar thinks necessary or may reject a trial record that, in the registrar's opinion, a does not contain all the pleadings, b contains a document other than those set out in subrule (11), or c is illegible. [en. B.C. Reg. 143/94, s. 8.] Trial record documents to be marked 11.2 Each document referred to in subrule (11) that is required for the trial record shall contain in the upper right hand corner of the first page of the document a the registry office and number of the proceeding, and b below the registry office and number, the date that the document was filed, or, where it was not filed, the date that the document was prepared, completed or made. [en. B.C. Reg. 143/94, s. 8.] Filing and delivery of trial record 12 The party referred to in subrule (11) shall file the trial record not more than 30 days and not fewer than 14 days before the scheduled trial date and shall deliver a copy of the trial record forthwith after filing to all other parties of record. [en. B.C. Reg. 143/94, s. 8.] Amended trial record 13 Where a pleading is amended after delivery of the trial record, the party who obtained the notice of trial, at least one day before the trial, shall file an amended trial record and deliver a copy to all other parties of record. [en. B.C. Reg. 143/94, s. 8.] Direction as to trial record 14 Where the court directs that an action be set down for trial under subrule (4), it may also direct one of the parties to prepare, file and deliver a trial record. [am. B.C. Reg. 143/94, s. 8.] Repealed 15–18 Repealed. [B.C. Reg. 165/97, s. 11.] Trial certificate 19 Each party of record shall, not more than 30 days and not less than 14 days before the scheduled trial date, file a trial certificate in Form 37 in the registry where the trial is to be held. [am. B.C. Regs. 55/93, s. 12 (a); 165/97, s. 11.] What certificate must contain 20 The trial certificate must contain the following: a a statement that the party filing it will be ready to proceed on the scheduled trial date; b the current estimate of the length of the trial; c a statement certifying that the party has completed all examinations for discovery. [am. B.C. Reg. 95/96, s. 16.] Service 21 After filing the trial certificate, the party shall serve it forthwith on all other parties of record. [en. B.C. Reg. 55/93, s. 12 (b).] Failure to file 22 Where no party of record files a trial certificate, the trial shall be removed from the trial list. Idem 23 A party who fails to file a completed trial certificate under subrule (19) is not, without leave of the court, entitled to make further interlocutory applications. [en. B.C. Reg. 55/93, s. 12 (b).] Trial without jury generally 24 Subject to subrule (26), a trial shall be heard by the court without a jury. Trial without jury in certain proceedings 25 A trial shall be heard by the court without a jury where it relates to a the administration of the estate of a deceased person, b the dissolution of a partnership or the taking of partnership or other accounts, c the redemption or foreclosure of a mortgage, d the sale and distribution of the proceeds of property subject to any lien or charge, e the execution of trusts, f the rectification, setting aside or cancellation of a deed or other written instrument, g the specific performance of a contract, h the partition or sale of real estate, i the custody or guardianship of an infant or the care of an infant's estate, j a matter referred to in Rule 10 (1), or k a family law proceeding. [am. B.C. Reg. 161/98, s. 11 (b).] Notice requiring jury trial 26 Subject to subrules (25) and (26.1), a party may require that the trial of an action be heard by the court with a jury by a filing and delivering to all parties of record, within 21 days after delivery of the notice of trial and not later than 30 days before trial, a notice in Form 38, and b paying to the sheriff, not less than 30 days before trial, a sum sufficient to pay for the jury and the jury process. [en. B.C. Reg. 76/98.] Jury notice not to prevent transfer of proceeding 26.1 The court may transfer a proceeding to the Provincial Court of British Columbia under section 15 of the Supreme Court Act notwithstanding that a party has filed a notice under subrule (26). [en. B.C. Reg. 273/95.] Court may refuse jury trial 27 Except in cases of defamation, false imprisonment and malicious prosecution, a party to whom a notice under subrule (26) has been delivered may apply a within 7 days for an order that the trial or part of it be heard by the court without a jury on the ground that i the issues require prolonged examination of documents or accounts or a scientific or local investigation which cannot be made conveniently with a jury, or ii the issues are of an intricate or complex character, or b at any time for an order that the trial be heard by the court without a jury on the ground that it relates to one of the matters referred to in subrule (25). Trial with assessor 28 The court may at any time order a trial to be heard wholly or partially by the court sitting with an assessor, and the court may fix the remuneration for the assessor and the remuneration shall form part of the costs of the action. Trial of one question before others 29 The court may order that one or more questions of fact or law arising in an action be tried and determined before the others, and upon the determination a party may move for judgment, and the court, if satisfied that the determination is conclusive of all or some of the issues between the parties, may grant judgment. Trial by different modes of trial 30 The court may order that different questions of fact arising in an action be tried by different modes of trial. Calculation of amount by officer of the court 31 In an action in which it appears that the amount to be recovered is substantially a matter of calculation, the court may direct an inquiry, assessment or accounting under Rule 32. Failure of all parties to appear at trial 32 If no party is in attendance when the trial of an action is called, the action shall be struck off the trial list. [en. B.C. Reg. 55/93, s. 12 (b).] Failure of one party to appear at trial 33 If a party is not in attendance when the trial of an action is called, the court may proceed with the trial, including hearing a counterclaim, in the absence of that party. [en. B.C. Reg. 55/93, s. 12 (b).] Court may set aside judgment 34 The court may set aside a verdict or judgment obtained where a party does not attend the trial. [en. B.C. Reg. 55/93, s. 12 (b).] Repealed 35 Repealed. [B.C. Reg. 165/97, s. 11.] Commencement — subrules (19) to (23) 36 Subrules (19) to (23) do not apply if a trial is or has been scheduled to begin before February 1, 1991, but if such a trial is adjourned to begin after February 1, 1991, subrules (19) to (23) apply to that proceeding. [en. B.C. Reg. 387/90, s. 3.] 40 Evidence and Procedure at Trial Application 1 This rule does not apply to summary trials under Rule 18A, except as provided in that rule. [en. B.C. Reg. 10/92, s. 7.] Witness to testify orally 2 Subject to any enactment and these rules, a a witness at a trial of an action shall testify in open court, and b unless the parties otherwise agree, the witness shall testify orally. Court may vary order 3 An order made under this rule concerning the mode of proving a fact or document or of adducing evidence may be revoked or varied by a subsequent order made at or before the trial. Use of transcript of other proceedings 4 Where a witness is dead, or is unable to attend and testify because of age, infirmity, sickness or imprisonment or is out of the jurisdiction or his or her attendance cannot be secured by subpoena, the court may permit a transcript of any evidence of that witness taken in any proceeding, hearing or inquiry at which the evidence was taken under oath, whether or not involving the same parties to be put in as evidence, but reasonable notice shall be given of the intention to give that evidence. Transcript for the court 5 In an action in which evidence or argument is taken down by an official reporter or is recorded digitally or on audio tape, it shall be the duty of the plaintiff, if required by the court, to furnish it with a certified transcript of the evidence or argument or any portion of it, the costs of which shall form part of the costs of the action, but where payment of the costs of providing a transcript would be a hardship on a party, the court may order that the transcript be prepared at the expense of the Crown. [am. B.C. Reg. 227/97, s. 1.] Use of recording device by counsel 6 Counsel for a party may use a recording device to record evidence, provided it does not interfere with the trial. Failure to prove a material fact 7 Where a party omits or fails to prove some fact material to the party's case, the court may proceed with the trial, subject to that fact being afterwards proved as the court shall direct, and, a if the case is being tried by a jury, the court may direct the jury to find a verdict as if that fact had been proved, and, b unless the court otherwise orders, judgment shall be entered according to whether or not that fact is or is not afterwards proved as directed. No evidence motion 8 At the close of the plaintiff's case, the defendant may apply to have the action dismissed on the ground that there is no evidence to support the plaintiff's case. Idem 9 A defendant is entitled to make an application under subrule (8) without being called upon to elect whether or not to call evidence. Insufficient evidence motion 10 At the close of the plaintiff's case, the defendant may apply to have the action dismissed on the ground that the evidence is insufficient to make out the plaintiff's case. Idem 11 Unless the court otherwise orders, an application under subrule (10) may be made only after the defendant has elected not to call evidence. Notice to produce 12 By delivering a notice in Form 39 at least 2 days before a trial, a party may require any other party to bring to the trial a any document in the other party's possession or control relating to the matters in question in the action, without the necessity of identifying the document, and b any physical object in the other party's possession or control which the party contemplates tendering at the trial as an exhibit, but the notice shall identify the object. [am. B.C. Reg. 95/96, s. 12.] Numbering exhibit pages 12.1 If a copy of a document is introduced as an exhibit, a each page of the exhibit must be numbered sequentially, beginning with the first page of the exhibit and ending with the last page of the exhibit, or b if the exhibit is divided by tabs, i each page of the exhibit that is not behind a tab must be numbered sequentially, beginning with the first of those pages and ending with the last of those pages, and ii each page of the exhibit that is behind a tab must be numbered sequentially, beginning with the first page behind the tab and ending with the last page behind the tab. [en. B.C. Reg. 201/2004, s. 6.] Opportunity to inspect exhibit 13 Unless the court otherwise orders or the parties agree, no plan, photograph or object shall be received in evidence at the trial of an action unless, at least 7 days before the commencement of the trial, the parties have been given an opportunity to inspect it. Registry to take charge of exhibits 14 A clerk of the registry shall take charge of each document or object put in as an exhibit, mark or label each exhibit with a number, and make a list of the exhibits, giving a short description of each and stating by whom it was tendered. Return of exhibits 15 After the time for appeal from judgment has expired or after the disposition of an appeal, new trial or further appeal, whichever is latest, the registry may return an exhibit to the party who tendered it. The parties may agree or the court may order that an exhibit be returned at an earlier time or to a person other than the party who tendered it. Disposal of exhibits after final disposition 16 The registry may, with the approval of the Deputy Attorney General, destroy or otherwise dispose of an exhibit tendered in evidence in a proceeding if the return of the exhibit has not been applied for within one year after the later of a the date of the judgment at trial in, or any other final disposition of, the proceeding, and b the date of the judgment on, or any other final disposition of, any appeal, new trial or further appeal. [en. B.C. Reg. 83/2002, Sch. s. 5.] Notice respecting disposal of exhibits before final disposition 16.1 If an exhibit is tendered in evidence in a proceeding and nothing is filed in that proceeding for a period of 2 years, the registry may deliver to the parties of record notice that the registry intends to destroy or otherwise dispose of the exhibit unless, within 30 days after the date of the notice, a an application is made for the return of the exhibit, or b a Notice of Intention to Proceed is served on all parties of record and a copy of the notice and proof of its service has been filed in the proceeding. [en. B.C. Reg. 83/2002, Sch. s. 5.] Disposal of exhibits before final disposition 16.2 After a notice is delivered under subrule (16.1), the registry may, a if a person applies to the registry within 30 days after the date of the notice for a return of the exhibit, return the exhibit to the party who tendered it or to such other person as the parties may agree or the court may order, or b if no such application is made and if none of the parties comply with subrule (16.1) (b) within 30 days after the date of the notice, destroy or otherwise dispose of the exhibit with the approval of the Deputy Attorney General. [en. B.C. Reg. 83/2002, Sch. s. 5.] If exhibit disposed of 16.3 If an exhibit is disposed of under subrule (16) or (16.2) (b), a any money received as a result of the disposition must be paid to the Minister of Finance, and b the exhibit list must be endorsed to indicate the date and method of disposition and the amount of any money recovered. [en. B.C. Reg. 83/2002, Sch. s. 5.] If exhibit destroyed 16.4 If an exhibit is destroyed under subrule (16) or (16.2) (b), the exhibit list must be endorsed to indicate the date and method of destruction. [en. B.C. Reg. 83/2002, Sch. s. 5.] Adverse party as witness 17 Subrules (17.1) to (17.4) apply where a party wishes to call as a witness at the trial a an adverse party, or b a person who, at the time the notice referred to in subrule (17.1) is delivered, is a director, officer, partner, employee or agent of an adverse party. [en. B.C. Reg. 95/96, s. 17 (a).] Notice to call adverse party as witness 17.1 If a party wishes to call as a witness a person referred to in subrule (17), the party may deliver to the adverse party a notice in Form 40 together with proper witness fees at least 7 days before the day on which the attendance of the intended witness is required. [en. B.C. Reg. 95/96, s. 17 (a).] Exceptions 17.2 Notwithstanding subrule (17.1), a party may a call as a witness, without payment of witness fees or previous notice, an adverse party or a current director, officer, partner, employee or agent of an adverse party if the person called is in attendance at the trial, or b subpoena an adverse party or a current director, officer, partner, employee or agent of an adverse party. [en. B.C. Reg. 165/97, s. 12.] Application to set notice aside 17.3 The court may set aside a notice delivered under subrule (17.1) on the grounds that a the adverse party is unable to procure the attendance of the person named in the notice, b the evidence of the person is unnecessary, c it would work a hardship on the person or the adverse party to require the person to attend the trial, or d the person is not a person referred to in subrule (17) (a) or (b). [en. B.C. Reg. 95/96, s. 17 (a).] Court may make order 17.4 On an application under subrule (17.3), the court may make any order it thinks just including, without limitation, an order adjourning the trial. [en. B.C. Reg. 95/96, s. 17 (a).] "Adverse party" defined 18 For the purpose of subrules (17) to (17.3), adverse party means a party who is adverse in interest. [am. B.C. Regs. 95/96, s. 17 (b); 165/97, s. 12.] Refusal to comply with notice 19 If a person or party called as a witness in accordance with subrule (17.1) or (17.2) refuses or neglects to attend at the trial, to be sworn or to affirm, to answer a proper question put to the person or to produce a document that the person is required to produce, the court may do one or more of the following: a pronounce judgment in favour of the party who called the witness; b adjourn the trial; c make an order as to costs; d make any other order it thinks just. [en. B.C. Reg. 165/97, s. 12.] Adverse party as witness may be cross-examined 20 A party calling a witness in accordance with subrule (17.1) or (17.2) is entitled to cross-examine the witness generally on one or more issues. Cross-examination of the witness by counsel for the adverse party shall be confined to explanation of matters brought out in the examination-in-chief. Cross-examination of the witness by other parties may be general or limited, as the court may direct. Re-examination shall be confined to new matters brought out in cross-examination. [am. B.C. Regs. 95/96, s. 17 (d); 165/97, s. 12.] Examination of witnesses 21 The court may permit a party a to examine a witness, either generally or with respect to one or more issues, i by the use of leading questions, ii by referring the witness to a prior statement made by the witness, whether or not made under oath, iii respecting the interest of the witness, if any, in the outcome of the proceeding, or iv respecting any relationship or connection between the witness and a party, or b to cross-examine a witness, either generally or with respect to one or more issues. [en. B.C. Reg. 95/96, s. 17 (e).] Any party may contradict testimony 22 A party may contradict or impeach the testimony of any witness. Use of deposition evidence 23 A transcript, videotape or film of a deposition under Rule 38 may be given in evidence at the trial by any party and, notwithstanding that the deposition of a witness has or may be given in evidence, the witness may be called to testify orally at the trial. Use of videotape, etc. 24 Where a videotape or film of a deposition is given in evidence under subrule (23), a transcript of the deposition may also be given. Proof of deposition evidence 25 A transcript of a deposition may be given in evidence if certified as an accurate transcription by the person taking the deposition, without proof of the signature of that person. A videotape or film of a deposition may be presented as evidence without proof of its accuracy or completeness, but the court may order such investigation as it thinks fit to verify the accuracy or completeness. A videotape or film given in evidence shall become an exhibit at the trial. Deposition to be given in full 26 Where a deposition is given in evidence, a subrule (31) applies, and b the deposition shall be presented in full, unless otherwise agreed by the parties or ordered by the court. [en. B.C. Reg. 143/94, s. 9.] Use of discovery evidence 27 (a)   If otherwise admissible, the evidence given on an examination for discovery by a party or by a person examined under Rule 27 (4) to (12) may be given in evidence at trial, unless the court otherwise orders, but the evidence is admissible only against i the adverse party who was examined, ii the adverse party whose status as a party entitled the examining party to conduct the examination under Rule 27 (4) to (12), or iii if the person was examined under section 17 of the Class Proceedings Act as a member of a class, the members of that class. b Where the person examined was, at the time of the examination, a former director, officer, employee, agent or external auditor of a party, any part of his or her evidence may be given at trial if notice has been delivered to all parties at least 14 days before trial specifying that part of the evidence intended to be given at trial. c Any party may require the attendance at trial of a person whose evidence taken on examination is intended to be given under paragraph (b), and if the evidence is given, all parties may cross-examine that person. d Where part of an examination for discovery is given in evidence, the court may review the whole of that examination and if, following the review, it considers that another part of the examination is closely connected with the part given in evidence, it may direct that the other part be put in as evidence. [am. B.C. Regs. 10/92, s. 7; 101/2001, s. 4.] Discovery evidence of person under disability 28 Where, at the time of an examination for discovery, the person examined was an infant or a mentally incompetent person, the examination shall not be given in evidence unless the trial judge, at the time the evidence is tendered, determines that the person, at the time of the examination, was competent to give evidence. [en. B.C. Reg. 10/92, s. 7.] Transcripts of discovery evidence 29 A transcript of an examination for discovery may be given in evidence if certified as an accurate transcription by the official reporter without proof of the reporter's signature. Use of pre-trial examination of a witness 30 A party may give in evidence at the trial part or all of the examination of a person taken under Rule 28 a to contradict or impeach the testimony of the deponent at trial, or b where the deponent is dead or is unable to attend and testify because of age, infirmity, sickness or imprisonment or is out of the jurisdiction or his or her attendance cannot be secured by subpoena and where it is necessary in the interests of justice, but where part only of the examination is given in evidence, the court may look at the whole of the examination and if it is of the opinion that any other part is so connected with the part given that the last mentioned part ought not to be used without the other part it may direct the other part to be put in as evidence. Objection to transcript evidence at trial 31 At the trial a party may object to the admissibility of any question and answer in a transcript, videotape or film given in evidence, although no objection was taken at the examination. Custody of transcripts 32 If a transcription of an examination for discovery, a pre-trial examination of a witness or a deposition examination is made, the party at whose instance the examination was held shall keep the original transcript unmarked and shall have it available at the trial. Use of interrogatories at trial 33 At the trial of an action a party may give in evidence an answer, or part of an answer, to interrogatories, but the court may look at the whole of the answers and, where it is of the opinion that any other answer or part of an answer is so connected with an answer or part thereof given in evidence that the one ought not to be used without the other, it may direct that the other answer or part thereof be put in as evidence. Form of subpoena 34 A subpoena shall be in Form 21 and may contain any number of names. Party may prepare and serve subpoena 35 A party may prepare a subpoena and serve it on any person. Subpoena not to be filed or sealed 36 A subpoena need not be filed in or bear the seal of the court. Service of subpoena 37 A subpoena must be served and, where an affidavit is filed for the purpose of proving the service, it must state when, where, how and by whom service was effected. Fees to accompany subpoena 38 A person served with a subpoena is entitled to tender of the proper fees at the time of service. Production of documents and physical objects 39 A party, by subpoena in Form 21, may require any person to bring to the trial a any document in the person's possession or control relating to the matters in question, without the necessity of identifying the document, and b any physical object in the person's possession or control which the party contemplates tendering at the trial as an exhibit, but the subpoena shall identify the object to be brought. [am. B.C. Reg. 95/96, s. 12.] Order for attendance of witness in custody 40 The court may order the attendance of a witness who is in the lawful custody of another person, including the custodian of a penal institution. Failure of witness to attend, etc. 41 Upon proof a of the service of a subpoena on a witness who fails to attend or to remain in attendance in accordance with the requirements of the subpoena, b that proper witness fees have been paid or tendered to that witness, and c that the presence of that witness is material to the ends of justice, the court, by its warrant in Form 41 directed to a sheriff or other officer of the court or to a peace officer, may cause that witness to be apprehended and forthwith brought before the court and to be detained in custody or released on terms the court may order, and the court may order that witness to pay the costs arising from his or her failure to attend or to remain in attendance. Order setting aside subpoena 42 A person who has been served with a subpoena may apply to the court for an order setting aside the subpoena on the grounds that compliance with it is unnecessary or that it would work a hardship upon the person, and the court may make any order, as to postponement of the trial or otherwise, as it thinks just. Clerk to note time of trial 43 On each day of a trial, a clerk of the registry shall note the time the trial commences and terminates, the name of each witness and the time the witness' evidence begins and ends. Affidavit evidence 44 On the application of a party at or before trial, a judge or master may order that the evidence in chief of a witness may be given by affidavit. [en. B.C. Reg. 198/2003, s. 7 (a).] Copy of affidavit must be furnished 45 The party seeking to tender evidence by affidavit must furnish a copy of the affidavit to all parties of record at least 30 days, or such lesser period as may be ordered by the court, before the application referred to in subrule (44). [en. B.C. Reg. 198/2003, s. 7 (a).] Cross-examination 45.1 If an affidavit of a witness is furnished under subrule (45), any party may, unless the court otherwise orders, require the witness to be called for cross-examination at trial, provided that that party gives to the party seeking to tender the evidence by affidavit notice of the requirement within 14 days after receiving the affidavit. [en. B.C. Reg. 198/2003, s. 7 (a).] Court may extend or abridge time to require witness attendance 45.2 If an affidavit is furnished under subrule (45) less than 30 days before the application referred to in subrule (44), the court may extend or abridge the time referred to in subrule (45.1) within which parties may require the attendance of the witness at trial for cross-examination. [en. B.C. Reg. 198/2003, s. 7 (a).] Contents 46 The deponent of an affidavit under subrule (44) may state only what he or she would be permitted to state were the evidence to be given orally. [en. B.C. Reg. 198/2003, s. 7 (a).] Repealed 47–48 Repealed. [B.C. Reg. 198/2003, s. 7 (a).] Idem 49 Cross-examination under subrule (45.1) or (45.2) is not confined to matters contained in the affidavit. [am. B.C. Reg. 198/2003, s. 7 (b).] Costs where attendance unnecessary 50 Where a witness has been required to give evidence under subrule (45.1) or (45.2), and the court is of the opinion that the evidence obtained does not materially add to the information in the affidavit furnished under subrule (45), the court may order the party that required the attendance of the witness to pay, as costs, a sum the court considers appropriate. [am. B.C. Reg. 198/2003, s. 7 (c) and (d).] Repealed 51 Repealed. [B.C. Reg. 198/2003, s. 7 (e).] Evidence of particular facts 52 At or before a trial, the court may order that evidence of a fact or document may be presented at the trial in any manner, including, a by statement on oath of information and belief, b by documents or entries in books, c by copies of documents or entries in books, or d by a specified publication which contains a statement of that fact. Order of speeches 53 Addresses to the jury or the court shall be as follows: a the party on whom the onus of proof lies may open his or her case before giving evidence; b at the close of the case of the party who began, the opposite party, if that party announces his or her intention to give evidence, may open his or her case; c at the close of all of the evidence, the party who began may address the jury or the court, and the opposite party may then address the jury or the court and the party who began may then reply and the court may allow the opposite party to be heard in response to a point raised in the reply; d where a defendant claims relief against a co-defendant, that defendant may address the jury after that co-defendant; e where a party is represented by counsel, the rights conferred by this rule shall be exercised by the party's counsel. [am. B.C. Reg. 95/96, s. 18.] Court may make order respecting submissions 54 At or before a trial, the court may make one or both of the following orders in respect of a party's submissions to the court at the trial: a all or any part of the submissions be in writing; b all or any part of the submissions be of limited length. [en. B.C. Reg. 95/96, s. 19.] 40A Evidence of Experts [en. B.C. Reg. 55/93, s. 14, eff. Aug. 30, 1993] Application 1 This rule does not apply to summary trials under Rule 18A, except as provided in that rule. Admissibility of written statements of expert opinion 2 A written statement setting out the opinion of an expert is admissible at trial, without proof of the expert's signature, if a copy of the statement is furnished to every party of record at least 60 days before the statement is tendered in evidence. Admissibility of oral testimony of expert opinion 3 An expert may give oral opinion evidence if a written statement of the opinion has been delivered to every party of record at least 60 days before the expert testifies. Idem 4 The statement also may be tendered in evidence. Form of statement 5 The statement shall set out or be accompanied by a supplementary statement setting out the following: a the qualifications of the expert; b the facts and assumptions on which the opinion is based; c the name of the person primarily responsible for the content of the statement. Proof of qualifications 6 The assertion of qualifications of an expert is prima facie proof of them. Admissibility of evidence 7 If a statement that does not conform to subrule (5) has been delivered a it is inadmissible under subrules (2) and (4), and b the testimony of the witness under subrule (3) is inadmissible unless the court otherwise orders. Notice of trial date to expert 8 A party who delivers a statement shall, on delivery or when a trial date has been obtained, whichever is later, inform the expert of the trial date and that the expert may be required to attend at trial for cross-examination. Demand to cross-examine 9 A party to whom a statement has been delivered under subrule (2) and who is adverse in interest to the party delivering the statement may, by demand to that party, require the attendance of the expert at trial for cross-examination. Idem 10 The expert need not attend at trial unless the demand is made within a reasonable time after delivery of the statement. Idem 11 The convenience and other commitments of the expert shall be taken into account in determining whether the demand has been made within a reasonable time. Costs of cross-examination 12 If an expert has been required to attend for cross-examination and the court is of the opinion that the cross examination was not of assistance, the court may order the party who required the attendance of the expert to pay, as costs, a sum the court considers appropriate. Notice of objection to expert evidence 13 A party who receives a written statement under subrule (2) or (3) shall notify the party delivering the statement of any objection to the admissibility of the evidence that the party receiving the statement intends to raise at trial. Idem 14 No objection under subrule (13) of which reasonable notice could have been given, but was not, shall be permitted at trial unless the court otherwise orders. Dispensing with statement 15 At trial, the court may dispense with the requirement of delivery of a statement. Idem 16 Without limiting the generality of subrule (15), the court may dispense with the requirement of delivery of a statement on one or more of the following grounds: a where facts have come to the knowledge of the party tendering the witness after the delivery of the statement of that witness's evidence, that could not, with due diligence, have been learned in time to be reduced to a further statement and delivered within the time required by this rule; b where the non-delivery is unlikely to cause prejudice i by reason of an inability to prepare for cross-examination, or ii by depriving the party against whom the evidence is tendered of a reasonable opportunity to present evidence in response; c where the interests of justice require it. Time 17 Before or at trial, the court may extend or abridge the time limits set out in this rule. 41 Orders No application for judgment necessary 1 No application for judgment is necessary except where an enactment or these rules otherwise provides. Judgment impossible on jury findings 2 Where, after any redirection the court thinks appropriate, a jury answers some but not all of the questions directed to it, or where the answers are conflicting, so that judgment cannot be pronounced on the findings, the action shall be retried. Only partial judgment possible on jury findings 3 Where the answers of the jury entitle either party to judgment in respect of some but not all of the claims, the court may pronounce judgment on the claims as to which of the answers are sufficient and the remaining claims shall be retried. Jury failing to reach verdict 4 Where the jury fails to reach a verdict in accordance with the Jury Act, the action shall be retried. Retrial 5 A retrial under subrules (2) to (4) may take place at the same or subsequent sittings as the court may direct. Continuing trial without jury 6 Where, for any reason other than the misconduct of a party or the party's counsel, a trial with a jury would be retried, the court, with the consent of the party who required a jury trial, may continue the trial without a jury. Idem 7 Where, by reason of the misconduct of a party or the party's counsel, a trial with a jury would be retried, the court, with the consent of all parties adverse in interest to the party whose conduct, or whose counsel's conduct is complained of, may continue the trial without a jury. Drawing and approving orders 8 An order of the court may be drawn up by any party, and, unless the court otherwise directs, shall be approved in writing by all parties or their solicitors or counsel, and then left with the registrar to have the seal of the court affixed, but the order 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. [en. B.C. Reg. 55/93, s. 15 (a).] Form of order 9 Unless these rules otherwise provide, an order shall be in Form 42, 43 or 86. [am. B.C. Regs. 55/93, s. 15 (b); 161/98, s. 12 (a).] Endorsement of order on application sufficient in certain cases 10 If an order has been made substantially in the same terms as requested, if the court endorses the notice of motion, petition or other document to show that the order has been made or made with any variations or additional terms shown in the endorsement, it is not necessary to draw up the order, but the endorsed document must be filed. Order granted conditionally on document to be filed 11 If an order may be entered on the filing of a document, the party shall file the document when leaving the draft order with the registrar, and the registrar shall examine the document and, if satisfied that it is sufficient, shall enter the order accordingly. Waiver of order obtained upon condition 12 Where a person who has obtained an order upon condition does not comply with the condition, the person shall be deemed to have abandoned the order so far as it is beneficial to the person and, unless the court otherwise directs, any other person interested in the matter may take either the steps the order may warrant or the steps that might have been taken if the order had not been made. Effect and form of orders 13 (a)   An order of a single judge or master is an order of the court. b An order must, i if it is spoken to, show on its face the name of the judge or master who made the order, or ii if it is not spoken to, be in Form 56A. c An order may be approved by any judge. [am. B.C. Reg. 161/98, s. 12 (b).] Date of order 14 (a) An order shall be dated as of the day on which it was pronounced. b An order made by a registrar shall be dated as of the day on which it is signed by the registrar. c Unless the court otherwise orders, an order takes effect on the day of its date. Requirement of consent order 15 No consent order shall be entered unless the consent of each party affected is signified, a where the party is represented by a solicitor or counsel, by the signature of the solicitor or counsel, or b where the party is not represented by a solicitor or counsel, i by the oral consent of the party who attends before the court or the registrar, or ii by the written consent of the party. [en. B.C. Reg. 55/93, s. 15 (c).] Application by consent 16 Subject to subrule (16.1), an application for an order by consent may be made by filing a a requisition in Form 56, b a draft of the order in Form 56A, and c evidence that the application is consented to. [en. B.C. Reg. 161/98, s. 12 (c); am. B.C. Reg. 201/2004, s. 1.] Application by consent if party under a disability 16.1 If the leave or approval of the court is required under Rule 6 (14) or under the Infants Act in relation to an order by consent, an application for that order may be made by filing a the documents referred to in subrule (16) of this rule, and b any consent or comments of the Public Guardian and Trustee required under section 40 of the Infants Act. [en. B.C. Reg. 161/98, s. 12 (c); am. B.C. Reg. 191/2000, s. 3.] Consent order 16.2 On being satisfied that an application referred to in subrule (16) or (16.1) is consented to and that the materials appropriate for the application have been submitted, the registrar may, a if the registrar is satisfied that none of the parties applying for or consenting to the order is under a legal disability or that, if a party is under a legal disability, section 40 (7) of the Infants Act applies, i enter the order, or ii refer the application to a judge or master, or b in any other case, i if the application is for an interlocutory order or for a final order within the jurisdiction of a master, refer the matter to a judge or master, or ii if the application is for a final order not referred to in subparagraph (i), refer the matter to a judge. [en. B.C. Reg. 161/98, s. 12 (c).] Application of which notice is not required 16.3 An application of which notice need not be given may be made by filing a a requisition in Form 56, b a draft of the order in Form 56A, and c evidence in support of the application. [en. B.C. Reg. 161/98, s. 12 (c); am. B.C. Reg. 201/2004, s. 1.] Referral by registrar 16.4 On being satisfied that the materials appropriate for an application referred to in subrule (16.3) have been submitted, the registrar may a refer the matter to a judge or master if the application is for an interlocutory order or for a final order within the jurisdiction of a master, or b refer the matter to a judge if the application is for a final order not referred to in paragraph (a). [en. B.C. Reg. 161/98, s. 12 (c).] Disposition of referred applications 16.5 If an application is referred by the registrar to a judge or master under subrule (16.2) or (16.4), the judge or master to whom the application is referred may a make the order, or b direct that the application be spoken to. [en. B.C. Reg. 161/98, s. 12 (c).] Repealed 17 Repealed. [B.C. Reg. 174/95, s. 4.] Settlement of orders 18 An order shall be settled, when necessary, by the registrar, who may refer the draft to the judge or master who made the order. Appointment to settle 19 A party may obtain an appointment to settle an order in Form 44 and shall deliver the appointment and a draft order to all parties whose approval is required under subrule (8) at least one day before the time fixed thereby. Party failing to attend on appointment to settle 20 If a party fails to attend at the time appointed for settlement of an order, the registrar may settle the order in the party's absence. [en. B.C. Reg. 55/93, s. 15 (d).] Review of settlement 21 The court may review and vary the order as settled. Registrar may draw order 22 The court may direct the registrar to draw up and enter an order. Special directions for carriage, entry or service 23 The court may give special directions respecting the carriage, entry or service of an order. Correction of orders 24 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 upon. Order book to be kept by registry 25 The original copy of all orders required to be drawn up shall be inserted by the registry in a book kept for that purpose, except where a photographic film of the order is taken and maintained. Opinions, advice and directions of the court 26 The opinion, advice or direction of the court must be entered in the same manner as an order of the court and is to be termed a "judicial opinion", "judicial advice" or "judicial direction", as the case may require. [en. B.C. Reg. 191/2000, s. 7.] 42 Enforcement of Orders Order to pay money to a person 1 An order for the payment of money to a person may be enforced by writ of seizure and sale in Form 45. Order to pay money into court 2 An order for the payment of money into court may be enforced by writ of sequestration in Form 46. Order for recovery or delivery of land 3 An order for the recovery or the delivery of the possession of land may be enforced by writ of possession in Form 47. Order for recovery or delivery of property other than land 4 An order for the recovery or the delivery of the possession of any property other than land or money may be enforced by writ of delivery in Form 48 or Form 49 or writ of sequestration in Form 46. Appointment of receiver 5 An order may be enforced by the appointment of a receiver under Rule 47. Execution by or against person not a party 6 A person not a party to a proceeding, who obtains an order or in whose favour an order is made, may enforce the order by the same process as if the person were a party to the proceeding, and a person not a party to a proceeding, against whom an order may be enforced, is liable to the same process for enforcing the order as if the person were a party to the proceeding. Remedy on non-compliance with mandatory order 7 If a mandatory order or an order for the specific performance of a contract is not obeyed, the court, besides or instead of proceeding against the disobedient person for contempt, may direct that the act required to be done may be done so far as is practicable by the person who obtained the order, or some other person appointed by the court, at the cost of the disobedient person; and upon the act being done, the expenses incurred may be ascertained in the manner as the court may direct, and execution may issue for the amount so ascertained and costs. [am. B.C. Reg. 101/2001, s. 2.] Issue of execution on conditional order 8 Where an order is to the effect that a person is entitled to relief subject to or on compliance with a condition or the happening of a contingency, the person so entitled, on compliance with the condition or the happening of the contingency, and on demand made on the person against whom he or she is entitled to relief, may apply to the court for leave to issue execution. The court, if satisfied that the right to relief has arisen, may order that execution issue or may direct that any issue or question necessary for the determination of the rights of the persons be tried. Issue of execution on change of parties 9 Where a change has taken place, by death or otherwise, in the persons entitled or liable to execution, the person alleging to be entitled to execution may apply to the court for leave to issue execution, and the court may order a that execution may issue, or b that any issue or question necessary to determine the rights of the person be tried. Production of order before execution 10 No writ of execution shall issue without the production to the registry of a copy of the order upon which the writ is to issue. Endorsement of writ 11 A writ of execution shall be endorsed with the name and address of the solicitor or person causing it to be issued. Issue of writ of sequestration, possession or delivery 12 A writ of sequestration, a writ of possession or a writ of delivery shall be issued only on filing proof satisfactory to the registrar that, a in the case of an order, the order sought to be enforced i has been served on the person against whom the order is sought to be enforced or has been delivered to that person's solicitor of record, and ii has not been complied with, or b in the case of a document, issued under an enactment, that on being filed in the court may be enforced as if it were an order of the court, the document i has been filed in the court, ii has, before or after being filed in the court, been served in accordance with the enactment or these rules on the person against whom the order is sought to be enforced or has been delivered to that person's solicitor of record, and iii has not been complied with. [en. B.C. Reg. 161/98, s. 13.] Issue of writ of execution where order to pay money within a period 13 Where the order sought to be enforced is for the payment of money within a specified period, no writ of execution shall be issued until the expiration of the period. Issue of writ of execution 14 (a) Subject to these rules or an order of the court, a writ of execution may be issued by the registrar at any time during the lifetime of the order sought to be enforced. b A writ of execution shall be prepared by the person seeking to enforce the order or the person's solicitor, shall be sealed by the registrar, and shall thereupon be deemed to be issued. c The person seeking to enforce the order or the person's solicitor, on presenting a writ of execution for sealing, shall leave a copy of the writ with the registry. Term and renewal of writ of execution 15 (a) A writ of execution, if unexecuted, shall remain in force for one year only, unless renewed. b At any time before the expiration of a writ of execution, or a renewed writ of execution, the writ may be renewed for one year from the date of renewal on the application of the party issuing the writ. c An application to renew a writ of execution may be heard by the court, a master or a registrar designated by the Chief Justice. d A renewed writ of execution shall be endorsed by the master or the registrar with the date of the order granting renewal and the date of the renewal. Enforcement costs 16 (a) Unless the court otherwise orders, a party who is entitled to enforce an order is entitled to the costs, fees and expenses of enforcement including proceedings under the Court Order Enforcement Act and Rules 42 and 42A. b Subject to paragraph (c), where these rules or some other enactment provide that enforcement costs may be included in the amount endorsed on any process of enforcement, the registrar may fix the amount to be endorsed on the process. c Where a judgment debtor alleges that he or she has satisfied an order for the payment of money or otherwise, whether or not the costs of enforcement and interest on those costs have been paid, i either the judgment creditor or debtor may apply to have the costs of enforcement assessed before the registrar, and Rule 57 applies, or ii the judgment debtor may apply to the registrar for an accounting. d On an accounting referred to in paragraph (c) (ii), Rule 32 applies and the registrar may certify i the amount, if any, then due to the judgment creditor, ii the amount, if any, then due to the judgment debtor as a result of an overpayment, and iii that the judgment has been paid. e A certificate under paragraph (d) (iii) has the same effect as though it were an order under subrule (20). Separate writs for costs 17 Upon an order granting relief and costs there may be, at the election of the person entitled, either one writ or separate writs of execution for the relief granted and for the recovery of the costs. Judgment for recovery of property other than land 18 Where it is sought to enforce an order for the recovery of property other than land or money by writ of delivery, upon the application of the judgment holder, the court may order that execution issue for the delivery of the property without giving the other party the option of retaining the property upon paying the assessed value, and that if the property cannot be found, and unless the court otherwise orders, the sheriff shall take possession of all the other party's lands, goods and chattels until the other party delivers the property or, at the option of the judgment holder, until the sheriff realizes from the other party's goods and chattels the assessed value of the property. Acknowledgment of payment 19 A debtor may require, as a condition of paying a money judgment, that the judgment creditor forthwith execute, file and deliver an acknowledgment of payment, in Form 50. Order that judgment has been paid 20 Where a judgment debtor claims to have paid the judgment but has not obtained an acknowledgment of payment from the judgment creditor, the debtor may apply to the court for an order certifying that the judgment has been paid. Stay of execution 21 (a)   The court may, at or after the time of making an order, i stay the execution of the order until such time as it thinks fit, or ii provide that an order for the payment of money be payable by instalments. b Unless the court in an order under paragraph (a) (ii) otherwise provides, where an instalment is not paid by the time fixed for payment, the balance of the money remaining unpaid under the order is, at that time, due and payable without notice being given to the judgment debtor. c Without limiting the generality of paragraph (a), a party against whom an order has been made may apply to the court for a stay of execution or other relief on grounds with respect to which the supporting facts arose too late for them to be pleaded, and the court may give relief it considers just. Application for directions 22 A sheriff, judgment creditor or judgment debtor may apply to the court for directions under Rule 43 concerning the sale of any property taken in execution. Subpoena to debtor 23 A creditor who has obtained an order of the court for the recovery or payment of money, or costs, or both, may issue out of the registry a subpoena in Form 51 on filing an affidavit showing that the order is not satisfied and that no writ of execution issued by the creditor is outstanding against the debtor. Idem 24 The subpoena shall be directed to the debtor or to an officer or director of a corporate debtor or to a person liable to execution on an order against a partnership or firm debtor. Service of subpoena 25 The subpoena shall be served personally at least 7 days before the date of the hearing, and with the subpoena shall be tendered any expenses the person served would be entitled to were he or she required to attend the court as a witness. [am. B.C. Reg. 143/94, s. 10.] Examination of debtor 26 The hearing shall take place before an examiner and shall be on oath as to the following matters: a the income and property of the debtor; b the debts owed to and by the debtor; c the disposal the debtor has made of any property; d the means the debtor has, or has had, or in future may have, of satisfying the order. Examiner 27 The examiner shall be a the court, b a master, or c a registrar designated as an examiner by the Chief Justice. Examination 28 The creditor and the person subpoenaed may, with leave of the examiner, call witnesses who may be cross-examined. Adjournment 29 The examiner may adjourn the hearing from time to time. Debtor refusing to attend, etc. 30 If the person subpoenaed a does not attend as required at the hearing or an adjournment of it, b refuses to be sworn, or to affirm or to answer any question put to the person, c after an order to that effect, refuses or neglects to produce or permit to be inspected any document or property, or d does not give answers which are to the satisfaction of the examiner, then e if the examiner is a master or registrar, i in the case of default under paragraph (a) he or she shall make a report in Form 88 and fix a time and place at which the creditor may attend before the court, and at that time and place the court may, at the request of the creditor and without notice to the person subpoenaed, order committal, or apprehension under Rule 56 (5), and ii in the case of default under paragraph (b), (c) or (d) he or she shall make a report in Form 88 and fix a time and place for the person subpoenaed to attend before the court, and at that time and place the court may, at the request of the creditor and without further notice to the person subpoenaed, order committal, or apprehension under Rule 56 (5), or f if the examiner is the court, the examiner may order committal. [am. B.C. Reg. 55/93, s. 16 (a).] Creditor failing to attend, etc. 31 If the creditor who issued a subpoena fails to attend at the hearing, or if the examiner is of the opinion that the proceedings are unnecessary or vexatious, the examiner may order the creditor to pay to the person subpoenaed a sum of money by way of compensation and may order that sum to be paid forthwith or to be set off against the debt. [en. B.C. Reg. 55/93, s. 16 (b).] Debtor unreasonably refusing to pay 32 If it appears to the examiner that the debtor, a with intent to defraud the creditor, has made or caused to be made any gift or delivery or transfer of property, or has removed or concealed property, b has unreasonably neglected or refused to pay the debt in whole or in part or to pay any instalment ordered to be paid, or c is a corporation and that the person subpoenaed has done, authorized, permitted or acquiesced in an act or omission described in paragraph (a) or (b), then d if the examiner is a master or registrar, he or she may make a report of his or her findings and fix a time and place for the person subpoenaed to attend before the court, and at that time and place the creditor may apply without notice for committal, or e if the examiner is the court, the examiner may order committal. [am. B.C. Reg. 55/93, s. 16.] Order for payment 33 The examiner may make one or more of the following orders: a for the payment of the debt by instalments; b for the payment of the debt on or before a fixed date; c varying or rescinding any previous order; d for payment to be made to the registrar, or to the creditor or to the creditor's solicitor; e fixing the costs payable by the debtor without assessment, and if the examiner is the master or registrar, the order shall have the effect of an order made by the court and shall be entered accordingly. Notice of application for committal 34 If a debtor fails to pay in accordance with an order made by an examiner, the creditor may issue out of the registry a notice of motion for committal in Form 52, on filing an affidavit showing that the default has occurred, and subrules (24) and (25) apply. Order for committal 35 (a) The court may order committal if satisfied that i the order to pay has not been obeyed, ii the person knew of the order, and iii the person has not shown good cause why an order of committal should not be made against him or her. b The court may fix the costs payable by the debtor without assessment. Form of order 36 An order of committal shall be in Form 53 and shall commit the person named to prison for a term not exceeding 40 days. Term of order 37 No order of committal shall be enforced after the expiration of one year after the date the order was made. Payment to sheriff 38 A creditor seeking to enforce an order of committal shall pay to the sheriff for the maintenance of the person committed the sum of $10 per day by weekly payments of $70 in advance. The maintenance money paid by the creditor shall be recoverable by the creditor from the debtor as costs of execution, without order. Debtor to be brought before court 39 Subject to subrule (41), a sheriff or peace officer executing an order of committal shall bring the person arrested forthwith before the court, and the person arrested may be examined by the court, and if the court considers that imprisonment is not appropriate, it may stay execution of the order and shall fix a time and place for a hearing to determine whether or not the order of committal should be set aside or varied, and shall give directions for notice of the hearing to be given to the creditor. Application to set aside or vary order 40 A person who is the subject of an order of committal may apply to the court to set aside or vary the order, and the court may direct a stay of execution of the order pending the hearing of the application and give directions for service of notice of the hearing. Payment of debt 41 (a) A person who is the subject of an order of committal may pay the amount payable endorsed on the order either to the registrar or to the sheriff or peace officer or warden in whose custody he or she is. b Upon payment to the registrar of the amount payable, the registrar shall issue a receipt to that effect. c Upon payment to any of them of the amount payable or upon being shown a registrar's receipt to that effect, a sheriff or peace officer or warden shall release the person committed from custody and shall endorse the order accordingly and return it to the registry. d All money received under this rule shall forthwith be paid to the creditor. Requisition for discharge 42 A creditor who has obtained an order of committal may file in the registry a requisition requesting discharge of the person committed, and the registrar shall endorse the requisition and a copy with the words "This is your authority to discharge .................................................. (name) from custody" above the registrar's signature, and, on being shown the copy of the requisition, a sheriff or peace officer or warden shall release the person committed from custody and shall endorse the order accordingly and return it to the registry. [am. B.C. Reg. 201/2004, s. 1.] Failure to pay sheriff 43 A sheriff who has not received maintenance money as provided in subrule (38) shall release the person committed, if in the sheriff's custody, or shall notify the warden, if in the warden's custody, who shall release the person committed, and each shall endorse the order accordingly and return it to the registry. Liability imposed by order 44 No imprisonment under these rules extinguishes the liability imposed by an order. Enforcement of alimony or maintenance order 45 Where the court has made an order for the payment of alimony or maintenance by periodic payments and arrears have occurred, a writ of execution for the total of the arrears may be issued against the person liable to make payment upon proof by affidavit of the fact and amount of the arrears. Enforcement of certificate 46 Where a certificate under Rule 32 (2) or 57 (32) has been filed, it may be enforced as if it were an order of the court. 42A Examination in Aid of Execution Examination of debtor 1 Where a judgment creditor is entitled to issue execution upon or otherwise enforce an order of the court, the creditor may examine the judgment debtor for discovery as to a any matter pertinent to the enforcement of the order, b the reason for nonpayment or nonperformance of the order, c the income and property of the debtor, d the debts owed to and by the debtor, e the disposal the debtor has made of any property either before or after the making of the order, f the means the debtor has, or has had, or in future may have, of satisfying the order, and g whether the debtor intends to obey the order or has any reason for not doing so. Examination of corporate, partnership or firm debtor 2 An officer or director of a corporate judgment debtor, or a person liable to execution upon the order in the case of a partnership or firm judgment debtor, may, without an order, be examined for discovery upon the matters set out in subrule (1). Limitation 3 Unless the court otherwise orders, a person examined under subrule (1) or (2) shall not be further examined in the same proceeding for a year. Examination of person other than debtor 4 Upon being satisfied that any other person may have knowledge of the matters set out in subrule (1) the court may order the person to be examined for discovery concerning the person's knowledge. Order in certain cases 5 Where a difficulty arises in or about the execution or enforcement of an order the court may make any order for the attendance and examination of a party or person it thinks just. Application of examination for discovery rules 6 The provisions of Rule 27 (2), (6), (14), (15), (16), (20), (21), (22), (23), (24), (25) and (26) apply to an examination under this rule. Use of examination 7 Any part of an examination for discovery under this rule may be given in evidence in the same or any subsequent proceeding between the parties to the proceeding or between the judgment creditor and the person examined for discovery. Costs 8 Unless the court otherwise orders, the party conducting an examination under this rule is entitled to recover the costs of the examination from the debtor. Interpretation 9 In this rule a judgment creditor means a person entitled to enforce an order of the court, whether for payment of money or otherwise, and judgment debtor or debtor means a person against whom the order may be enforced. 43 Sales by the Court Court may order sale 1 Where in a proceeding it appears necessary or expedient that property be sold, the court may order the sale and may order a person in possession of the property or in receipt of the rents, profits or income from it to join in the sale and transfer of the property and deliver up the possession or receipt to the purchaser or person designated by the court. Sale in debenture holder's proceeding 2 In a debenture holder's proceeding where the debenture holder is entitled to a charge on any property, the court, if it is of the opinion that eventually there must be a sale of the property, may order the sale before or after judgment, whether or not all interested persons are ascertained or served. Conduct of sale 3 Where an order is made directing property to be sold, the court may permit any person having the conduct of the sale to sell the property in the manner as the person thinks just or as the court directs. Directions for sale 4 The court may give directions it thinks just for the purpose of effecting a sale, including directions a appointing the person who is to have conduct of the sale, b fixing the manner of sale, whether by contract conditional on the approval of the court, private negotiation, public auction, sheriff's sale, tender or some other manner, c fixing a reserve or minimum price, d defining the rights of a person to bid, make offers or meet bids, e requiring payment of the purchase price into court or to trustees or to other persons, f settling the particulars or conditions of sale, g obtaining evidence of the value of the property, h fixing the remuneration to be paid to the person having conduct of the sale and any commission, costs or the expenses resulting from the sale, i that any conveyance or other document necessary to complete the sale be executed on behalf of any person by a person designated by the court, and j authorizing a person to enter upon any land or building. Application for directions 5 A person having conduct of a sale may apply to the court for further directions. Certificate of sale 6 The result of a sale by order of the court shall be certified by the person having the conduct of the sale in Form 54, verified by affidavit, and filed forthwith after completion of the sale. Vesting order 7 The person having conduct of the sale may apply to the court for a vesting order in favour of a purchaser. 44 Interlocutory Application [en. B.C. Reg. 367/2000, Sch. s. 4.] How interlocutory application must be brought 1 If an application in a proceeding is authorized to be made to the court, it must be made by interlocutory application. Interlocutory application by consent or if notice not required 2 An interlocutory application referred to in Rule 41 (16), (16.1) or (16.3) may be made in accordance with that rule. Notice of motion 3 Subject to subrule (2), a party wishing to bring an interlocutory application must file a notice of motion in Form 55 at or before the time at which the notice of hearing is filed under Rule 51A. More than one matter may be included 4 A party may include, in one application, claims for relief in respect of more than one matter. Service or delivery 5 Unless these rules provide otherwise, the applicant must deliver to each party of record and must serve on each other person, other than a party, who may be affected by the order sought a a copy of the notice of motion, b a copy of each affidavit in support of the application that has not already been filed and served, and c any notice that the applicant is required to give under Rule 18A (6). [en. B.C. Reg. 101/2001, s. 5 (a); am. B.C. Reg. 203/2001, s. (a).] Response 6 A person who receives documents under subrule (5) and who wishes to receive notice of the time and date of the hearing of the application or who wishes to respond to it must deliver to the applicant 2 copies, and to every other party of record one copy, of a a response in Form 124, b each affidavit that has not already been filed and served on which the respondent intends to rely, and c any notice that that person is required to give under Rule 18A (6). [am. B.C. Reg. 101/2001, s. 5 (b).] Address for delivery 6.1 A person referred to in subrule (6) who has not yet provided an address for delivery in the proceeding must include an address for delivery in any response delivered under subrule (6), and Rules 4 (7) to (10) and 69 (17) to (19) apply [en. B.C. Reg. 165/2009, s. 2.] Time for response 7 A person who wishes to receive notice of the time and date of the hearing of the application or who wishes to respond must deliver the documents referred to in subrule (6), a if the application is for final judgment under Rule 18A, on or before the 11th day after the delivery of the notice of motion, or b in any other case, i if the person is a party, on or before the 8th day after the later of A the last date fixed for entry of appearance, and B the date on which the notice of motion was delivered to the party, or ii if the person is not a party, on or before the 8th day after the date on which the notice of motion was served on the person. Reply by applicant 8 An applicant who wishes to respond to any document provided under subrule (6) must, no later than the date on which the notice of hearing is delivered to the respondent in accordance with Rule 51A, deliver any affidavits in reply to each person who delivered a response under subrule (6). No additional affidavits 9 Unless all parties of record consent or the court otherwise orders, a party must not deliver any affidavits additional to those delivered under subrules (5), (6) and (8). Place of hearing of application 10 The application may be heard at a the place ordered by the registrar under subrule (14), b if an order is not made under subrule (14), the place on which all parties of record have agreed, or c if paragraphs (a) and (b) do not apply, a place at which the court normally sits in the judicial district in which the proceeding was commenced. Place of hearing must be stated 11 The applicant must state on the notice of motion the place at which the application will be heard. If more than one place 12 If there is more than one place within the judicial district referred to in subrule (10) (c) at which the court normally sits, the applicant may name, as the place for hearing, any of those places. If place of hearing is a place other than that at which the proceeding was commenced 13 If, under subrule (12), the applicant names a place other than the place at which the proceeding was commenced, the court may, if the court considers that it was unreasonable to have made the motion returnable at that other place, make a special order as to costs and may a order that the application be heard at some other place, b dismiss the application, or c hear the application. Place of hearing of motion with leave of registrar 14 If any registrar is satisfied that, due to urgency or the convenience of the parties, an application should be heard at a place outside of the judicial district in which the proceeding was commenced, the registrar may, without notice, grant leave for the applicant to do either or both of the following: a file the notice of motion in some other judicial district; b name as the place of hearing a place in that other judicial district. Notice of motion must be endorsed to reflect grant of leave 15 If the registrar grants leave under subrule (14), he or she must endorse the notice of motion accordingly. If place of hearing is a place chosen with leave of the registrar 16 If, in respect of an application for which leave was granted under subrule (14), the court at the hearing of the application considers that the application should not be heard at that place, the court may make a special order as to costs and may a order that the application be heard at some other place, b dismiss the application, or c hear the application. Transfer of file 17 If a procedure authorized by subrule (12) or (14) is followed, a the original registry must, if practicable, transfer the file to the registry where the hearing is to take place, and b after the disposition of the application, the registry at which the disposition took place must return the file to the original registry. Forwarding of materials if transfer of file impracticable 18 If it is not practicable to transfer the file in the manner contemplated by subrule (17) (a), the registry at the place where the application is disposed of must, after the disposition, forward to the original registry a all documents filed in relation to the application in the registry at the place where the application was disposed of, and b any order made in that application. 45 Injunctions Applications for interlocutory injunctions 1 An application for an interlocutory injunction may be made by a party whether or not a claim for an injunction is included in the relief claimed. [en. B.C. Reg. 191/2000, s. 9.] Applications for interlocutory injunctions before proceeding commenced 2 An application for an interlocutory injunction may be made before commencement of a proceeding and the injunction may be granted on terms providing for the commencement of the proceeding. [en. B.C. Reg. 191/2000, s. 9.] Applications for interim injunctions without notice 3 If an application for an interlocutory injunction is made without notice, the court may grant an interim injunction. [en. B.C. Reg. 191/2000, s. 9.] Injunction by court order 4 No writ of injunction shall be issued. An injunction shall be by order of the court. Repealed 5 Repealed. [B.C. Reg. 191/2000, s. 9.] Undertaking as to damages 6 Unless the court otherwise orders, an order for an interlocutory or interim injunction shall contain the applicant's undertaking to abide by any order which the court may make as to damages. Application for injunction after judgment 7 In a proceeding in which an injunction has been or might have been claimed, a party may apply by petition after judgment to restrain another party from the repetition or continuance of the wrongful act or breach of contract established by the judgment or from the commission of any act or breach of a like kind. Contents 221_90_00.htm Rules 1 to 15 221_90_01.xml Rules 16 to 30 221_90_02.xml Rules 31 to 45 221_90_03.xml Rules 46 to 60 221_90_04.xml Rules 60A to 69 221_90_05.xml Appendix A 221_90_06.xml Appendices B and C 221_90_07.xml