B.C. Reg. 168/2009
O.C. 302/2009
Deposited July 7, 2009
effective July 1, 2010

Court Rules Act

Supreme Court Civil Rules

Note: Check the Cumulative Regulation Bulletin 2014
for any non-consolidated amendments to this regulation that may be in effect.

[includes amendments up to B.C. Reg. 92/2013, July 1, 2013]

Point in Time

Part 21 — Special Rules for Certain Proceedings

Rule 21-1 — Admiralty Matters

Actions to which rule applies

(1)This rule applies if an action may be brought in rem against a ship or other property.

What actions may be brought in rem

(2)Except to the extent that jurisdiction has been otherwise specially assigned, an action may be brought in rem against a ship or other property that may be brought in rem in the Federal Court of Canada in all cases in which a claim for relief is made under or by virtue of Canadian maritime law or any other law of Canada relating to navigation and shipping.

Notice of civil claim – actions in rem

(3)An action in rem must be started by issuing a notice of civil claim in Form 81.

Notice of civil claim – when started with action in personam

(4)An action in rem may be started with an action in personam by the issuance of a notice of civil claim in Form 82 and may be joined with another proceeding in accordance with Rule 22-5.

Special service rules for notices of claim issued under subrule (3) or (4)

(5)In an action in rem, the notice of civil claim may be served in British Columbia,

(a) on a ship or other property on board a ship, by affixing a copy of the filed notice of civil claim to a conspicuous part of the ship that is protected from the elements to the extent practicable, and

(b) on property that is not on board a ship, by

(i)   attaching a copy of the filed notice of civil claim to a conspicuous part of the property protected from the elements to the extent practicable, or

(ii)   by personal service on the person having apparent custody of the property.

Response to civil claim may be filed in name of ship

(6)In an action in rem, a response to civil claim may be filed in the name of the property named.

Response to civil claim

(7)A person who files a response to civil claim to an action in rem must set out the nature of the interest that the person claims in the ship or other property.

Arrest – "Affidavit to Lead Warrant"

(8)A party may, at any time after an action in rem has been started, apply for a warrant for the arrest of the property named by filing with a registrar an "Affidavit to Lead Warrant" in Form 83.

Issue of warrant

(9)If an affidavit to lead warrant is filed under subrule (8), a registrar may, after reading the affidavit,

(a) issue the warrant, or

(b) refer the matter to the court and the court may issue the warrant, subject to any directions that the court may give.

Form of warrant

(10)A warrant to arrest under this rule must be in Form 84.

Service of warrant

(11)The warrant must be served in the manner provided by subrule (5) by a person authorized to serve a writ of execution.

Proof of service

(12)The person who serves a warrant must file proof of service promptly after service is effected.

When arrest takes effect

(13)The arrest of property that is authorized by the warrant to be arrested takes effect at the time the warrant is served.

Property not to be moved

(14)After arrest, a person must not move the property that has been arrested, unless the court permits it or all parties interested in the action consent.

Order for safety and preservation

(15)After property has been arrested, the court may make an order for the property's safety and preservation on terms and conditions, if any, and, in particular, may

(a) authorize the property to be moved, and

(b) order that perishable property be disposed of with the proceeds to be paid as directed by the court.

Possession of property arrested

(16)The court may, on application of any interested party, authorize a person to take possession of, and assume responsibility for, property that has been arrested under this rule, but, if no such order is made, the possession and responsibility continues in the person or persons who were in possession of the property immediately before the arrest.

Security

(17)The court must not make an order under subrule (16) unless the court is satisfied that the applicant has paid or given adequate security for all fees, charges and expenses that will be incurred while the property is in the possession of the person authorized under subrule (16).

Caveats

Filing of caveat

(18)A person who wishes to prevent the release of any property that has been arrested under this rule or who wishes to prevent the payment out of court of proceeds of the disposition of property that has been arrested must file a caveat in Form 85 in the registry from which the warrant was issued.

Withdrawal of caveat

(19)A person who has filed a caveat may withdraw it by filing a notice to that effect in Form 86.

Damages for wrongful filing of caveat

(20)Any person who suffers damages or costs as a result of a caveat being filed without sufficient justification may apply to the court to have those damages and costs summarily determined.

Application for damages

(21)An application under subrule (20) must be served on the caveator.

Summary determination of damages

(22)If the court finds that the caveator cannot show that there was sufficient justification for the filing of the caveat, the court must summarily determine the amount of damages and costs suffered by the applicant and make an order for payment accordingly.

Release of Property

Release of property arrested

(23)The court may, on application of any person having an interest in property arrested under this rule, order the release of the property arrested on bail being posted.

Bail bond or guarantee

(24)Bail to answer judgment and obtain the release of property arrested under this rule may be posted

(a) by making a payment into court as bail in Form 87,

(b) by delivering to a registrar the guarantee of a chartered bank of Canada or the bond of any surety company licensed to do business in British Columbia in Form 88, or

(c) in the manner the parties may agree or the court may order.

Amount of bail

(25)The amount of bail to be posted must be the lesser of

(a) an amount sufficient to answer judgment in the proceedings against the property arrested, and

(b) the appraised value of the property.

Service of the application

(26)Unless the court otherwise orders, notice of an application for the release of property arrested under this rule must be served at least one day before the application is heard

(a) on the party to the action at whose instance the arrest was made, and

(b) on any person having filed a caveat to prevent the property from being released from arrest.

Bail information required

(27)Notice of an application for the release of property arrested under this rule must set out the amount of any bail to be posted and the name of the bank or surety company that will post the bail.

Release

(28)A registrar must issue a release from arrest in Form 89 when

(a) the court orders the release of the property arrested under this rule, or

(b) consent to the release of the property arrested under this rule is given by

(i)   the party at whose instance the property was arrested, and

(ii)   the persons who filed caveats to prevent the release of the property from arrest.

When release occurs

(29)On delivery of the release from arrest to the person in possession and on payment to the person in possession of all fees and charges incurred in respect of the arrest and custody, if any, of the property arrested, the property is released from arrest.

Collisions at Sea – the "Preliminary Act"

Application of subrules (31) to (35)

(30)Unless the court otherwise orders, if there is an action arising out of a collision of ships at sea, subrules (31) to (35) apply.

Pleadings and particulars

(31)If this rule applies, the notice of civil claim, response to civil claim, counterclaim and any other pleadings need not contain any particulars concerning the collision other than those particulars that are necessary to identify the collision to an opposing party.

The "preliminary act"

(32)The notice of civil claim, response to civil claim and any counterclaim must be accompanied by a sealed envelope that bears the style of proceeding and in which has been enclosed a statement of particulars, to be known as a "preliminary act", that contains the following particulars:

(a) the names of the ships that came into collision and the names of their masters;

(b) the time of the collision;

(c) the place of the collision;

(d) the direction and force of the wind;

(e) the state of the weather;

(f) the state and force of the tide or, if the collision occurred in non-tidal waters, of the current;

(g) the course being steered and the speed through the water of the ship when the other ship was first seen or immediately before any measures were taken with reference to her presence, whichever was the earlier, and all subsequent alterations to the course or speed of the ship up to the time of the collision;

(h) the lights, if any, carried by the ship;

(i) the distance and bearing of the other ship if and when her echo was first observed by radar;

(j) the distance, bearing and approximate heading of the other ship when it was first seen;

(k) the lights, if any, of the other ship that were first seen;

(l) the lights, if any, of the other ship other than those first seen that came into view before the collision;

(m) the measures that were taken to avoid the collision and when they were taken;

(n) the parts of each ship that first came into contact and the approximate angle, as illustrated by an appropriate sketch annexed, between the two ships at the moment of contact;

(o) the sound signals that were given, if any, and when they were given;

(p) the fault or default, if any, attributed to the other ship;

(q) the sound signals, if any, that were heard from the other ship and when they were heard.

Form of preliminary act

(33)The preliminary act must be in parallel columns such that the respective particulars referred to in subrule (32) (a) to (q) in respect of each ship can easily be compared.

Preliminary act not to be opened

(34)A preliminary act must not be opened unless all parties consent or the court, on application of one of the parties, orders it to be opened.

Preliminary act to form part of pleading

(35)After a preliminary act has been opened, it forms part of the appropriate pleadings of the party.

Rule 21-2 —  Carriage by Air Act

Carriage by Air Act

(1)In an action under the Carriage by Air Act (Canada) and the convention set out in that Act, a high contracting party to the convention who, for the purposes of that action and by virtue of that Act, is deemed to have submitted to the jurisdiction of the court may be made a defendant subject to these Supreme Court Civil Rules.

Rule 21-3 — Mandamus, Prohibition, Certiorari and Habeas Corpus

Proceeding to be started by petition

(1)Applications for relief in the nature of mandamus, prohibition, certiorari or habeas corpus are governed by these Supreme Court Civil Rules and must be started by petition under Rule 16-1.

Writs abolished

(2)Directions respecting applications referred to in subrule (1) must be made by order and no writ of mandamus, prohibition, certiorari or habeas corpus is to be issued.

Person affected may take part in proceeding

(3)The court may order that a person who may be affected by a proceeding for an order in the nature of mandamus may take part in the proceeding to the same extent as if served with the petition.

Rule 21-4 — Administration of Estates (Contentious)

Interpretation

(1)In this rule, "probate action" means an action for

(a) the grant of probate of the will of, or letters of administration of the estate of, a deceased person,

(b) the revocation of a grant, or

(c) an order pronouncing for or against the validity of an alleged testamentary paper,

but does not include a proceeding governed by Rule 21-5.

Dispute as to the validity of a testamentary paper

(2)In an action in which the validity of a testamentary paper is questioned, all persons having an interest in upholding or disputing its validity must be joined as defendants.

Start of action

(3)A probate action must be started by notice of civil claim, and Part 1 of the notice of civil claim must contain a statement of the interest of the plaintiff and of each defendant in the estate of the deceased.

Parties

(4)Each person who is entitled or claims to be entitled to administer the estate of a deceased person under or by virtue of an unrevoked grant of probate or letters of administration must be made a party to any action for revocation of the grant, and by leave of the court a person interested in the estate, but not named as a defendant, may defend the action as if the person were a defendant.

Action for revocation of grant

(5)In an action for the revocation of a grant of probate or administration,

(a) if the action is started by a person to whom the grant was made, the person must file the grant within 7 days after the filing of the notice of civil claim, or

(b) if a defendant to the action has the grant in his or her possession or under his or her control, the defendant must file it within 7 days after the service of the notice of civil claim on him or her,

and the person to whom the grant was issued must not act under it without leave of a registrar.

Failure to lodge grant on action for revocation

(6)If a person fails to comply with subrule (5), a registrar may issue a citation in Form 90 calling on the person to bring the grant into the registry, and a person against whom the citation is issued must not take any step in the action without leave of the court until the person has complied with the citation.

Counterclaim

(7)A defendant to a probate action who alleges that he or she has a claim or is entitled to relief in respect of a matter relating to the grant of probate or letters of administration must serve a counterclaim in respect of that claim or relief.

Failure to serve notice of civil claim

(8)If the plaintiff fails to serve a notice of civil claim, a defendant may, with the leave of the court, serve a counterclaim, and the action must then proceed as if the defendant were the plaintiff.

Response to civil claim limited to proof in solemn form

(9)In a probate action, a response to civil claim may state that

(a) the defendant merely requires that the will be proved in solemn form, and

(b) the defendant only intends to cross-examine the witnesses produced in support of the will,

and, in that event, the defendant is not liable for costs unless the court determines that there was no reasonable ground for requiring proof in solemn form.

Certain rules not to apply

(10)Rules 3-8 (1), (2), (9) and (10) and 9-8 do not apply to a probate action.

Order for discontinuance or dismissal

(11)At any stage of a probate action, the court may order the action be discontinued or dismissed, and may order that a grant of probate or administration be made to the person entitled.

Compromise

(12)A probate action must not be compromised without leave of the court.

Rule 21-5 — Administration of Estates (Non-Contentious)

Interpretation

(1)Unless a contrary intention appears, the interpretation section of the Estate Administration Act applies to this rule.

Application

(2)This rule applies to the obtaining of a grant of probate or administration in a circumstance in which there is no contention as to the right to obtain that grant and includes

(a) the obtaining of grants of probate or administration in contentious cases in which the contest has been concluded,

(b) the filing of caveats against the granting of probate or administration,

(c) the fixing of remuneration and passing of accounts, and

(d) all non-contentious matters relating to testacy and intestacy, not being matters in an action.

Application for probate or letters of administration

(3)Application for probate or letters of administration may be made in any registry.

Documents to be deposited

(4)Subject to subrule (14), an applicant for probate or letters of administration must

(a) deposit with a registrar the original will, if any, and

(b) file

(i)   a requisition in Form 17,

(ii)   an affidavit of executor or administrator in Form 91, 92 or 93, and

(iii)   any further affidavits as may be required by these Supreme Court Civil Rules.

Proof of death if exact date is known

(5)If an applicant for probate or letters of administration specifies in the affidavit referred to in subrule (4) (b) (ii) the date on which the testator or the intestate died, no further proof of death is to be required by a registrar.

Proof of death if exact date is unknown

(6)If the fact of the death is certain, but the exact date is unknown, the affidavit referred to in subrule (4) (b) (ii) must state the date on which the deceased was last seen alive and the date on which his or her body was found.

Approval by registrar

(7)A registrar may approve the application and mark the documents as approved, but if the registrar refuses to approve the application, the registrar must note on the documents his or her reasons for refusing approval.

Hearing of application

(8)The applicant for probate or letters of administration may set down the application for hearing by the court at any time after a registrar has approved or refused to approve it.

Proof of execution if no attestation clause

(9)If there is no attestation clause to a will or codicil, or if the attestation clause is insufficient, a registrar must require an affidavit from at least one of the subscribing witnesses, if they or either of them are living, to prove that the requirements of the Wills Act as to execution were, in fact, complied with.

Affidavit of witness

(10)If it appears to a registrar, on perusing the affidavit of a subscribing witness, that the requirements of the Wills Act were not or may not have been complied with, a registrar must refuse to approve the application.

Proof if no affidavit of witness

(11)If no affidavit can be obtained from either subscribing witness, an affidavit must be provided from any other person present at the execution of the will or codicil, but if no affidavit of any person can be obtained, evidence must be provided on affidavit

(a) of that fact and of the handwriting of the deceased and the subscribing witnesses, and

(b) of any circumstances that may raise a presumption in favour of proper execution.

Proof of date of execution

(12)If there is doubt as to the date on which a will was executed, a registrar may require evidence he or she thinks necessary to establish the date, and must, if satisfied as to that date, endorse a note of the date on the will.

Proof in solemn form

(13)If the circumstances appear to justify the direction, the court may direct that proof of the will be made in solemn form.

Petition required

(14)A proceeding for proof of a will in solemn form must be started by petition in Form 66 and Rule 16-1 applies.

Service

(15)After a proceeding is started under subrule (14) for proof of a will in solemn form, copies of the petition must be served by personal service on all persons having an interest in upholding or contesting the validity of the will.

Interlineations and alterations

(16)If an interlineation or alteration appears in the will and the interlineation or alteration is not properly executed, or recited in, or otherwise identified by, the attestation clause, an affidavit must be filed to provide proof that the interlineation or alteration was in the will before the will's execution unless the alteration is of small importance and is evidenced by the initials of the attesting witnesses.

When words erased or obliterated do not form part of probate

(17)Words in a will that have been erased or obliterated do not form part of the probate if

(a) the erasure or obliteration is proved to have existed in the will at the time of the will's execution,

(b) the erasure or obliteration is properly executed and attested, or

(c) the erasure or obliteration is rendered valid by the re-execution of the will, or by the subsequent execution of a codicil.

When erased or obliterated words form part of probate

(18)Words in a will that have been erased or obliterated form part of the probate as if they had not been erased or obliterated if

(a) no satisfactory evidence can be tendered as to the time when the erasure or obliteration was made, and

(b) the words erased or obliterated are not entirely effaced but can be ascertained on inspection.

Affidavit explaining

(19)If words that might have been of importance have been erased or obliterated, a registrar may require an affidavit explaining the circumstances.

Document referred to in a will

(20)If a will contains a reference to a document and that reference is of such nature as to raise a question as to whether the document ought to form part of the will, a registrar must require the production of the document to ascertain whether it is entitled to probate.

Accounting for non-production

(21)If a document that is required by a registrar under subrule (20) is not produced, its non-production must be accounted for.

What documents may form part of will

(22)A document cannot form part of a will unless the document was in existence at the time the will was executed.

Appearance of the paper

(23)If there is an indication on the testamentary papers leading to the inference that a document has been attached to them, the indication must be satisfactorily explained, or a registrar must require the document to be produced, and, if not produced, its non-production must be accounted for.

Notice to next of kin

(24)If a person applies for letters of administration under section 6 of the Estate Administration Act, the names and kinship of those having a prior right or an equal right to a grant must be shown, and unless it is also shown that each of those persons has consented or renounced, a registrar may direct notice to be given in Form 94 to any of them by mail.

Limited administration

(25)Unless the court otherwise orders, a limited administration must not be granted unless every person entitled to a general grant has consented or renounced, or has been cited and has failed to file an appearance.

Person entitled to general grant must not take limited grant

(26)Unless the court otherwise orders, a person entitled to a general grant of administration of the personal estate and effects of a deceased must not be permitted to take a limited grant.

Grants to an attorney

(27)If a person entitled to administration resides outside British Columbia, administration, or administration with the will annexed, may be granted to the person or the person's attorney acting under a power of attorney.

Grants of administration to guardians

(28)With the consent of the Public Guardian and Trustee, a grant of administration may be made to the guardians of an infant for the infant's use and benefit.

Administration bonds

(29)Unless the court otherwise orders, the bond to be given on any grant of administration must be in Form 95 or 96.

Affidavit of surety

(30)The sureties in an administration bond are required to prove by affidavit that they together have assets equal to the amount of the bond.

Registrar not to become surety

(31)A registrar must not become surety to any administration bond.

Administration bond requirements

(32)In all cases other than those to which section 20 (1) to (4) of the Estate Administration Act applies, unless the court otherwise orders, not fewer than 2 sureties are required to the administration bond, and the bond must be in an amount as the court may order, and the court may also order that more than one bond be given so as to limit the liability of a surety.

Time of issuing grant

(33)Unless the court otherwise orders, a grant of probate or administration must not issue until after 7 days from the death of the deceased.

Delay in application

(34)If probate or administration is applied for more than 3 years after the death of the deceased,

(a) the reason for the delay must be set out in an affidavit, and

(b) a registrar may require further proof of the alleged cause of delay as the registrar thinks fit.

Identity of parties

(35)A registrar may require proof, in addition to the affidavit of the executor or administrator, of the identity of

(a) the deceased, or

(b) the party applying for a grant.

Proof of search for will

(36)On every application for administration, it must be shown that a search for a will or testamentary paper has been made in all places where the deceased usually kept his or her documents, and the applicant must file a letter from the Director of Vital Statistics showing the results of a search at the director's office for a notice of a will filed by or on behalf of the deceased under the Wills Act.

Affidavit of will search not required

(37)An executor who swears or affirms that the executor is presenting the last will of the deceased, and who files a letter from the Director of Vital Statistics showing the results of a search at the director's office for a notice of a will filed by or on behalf of the deceased, must not be required by a registrar to prove by affidavit that the executor made a search for a later will.

Renunciations

(38)A person, other than an official administrator, who renounces as executor of the will or who renounces the right to apply for administration of the estate of a deceased person in one capacity must not be appointed the personal representative of the deceased in another capacity.

Caveats

(39)A person intending to oppose the issue of a grant of probate or administration must file, in any registry of the court, a caveat that complies with subrules (41) and (42).

Registrar notification

(40)A registrar in whose registry a caveat has been filed must promptly notify the registrar at Victoria and that registrar must promptly notify all other registrars in British Columbia.

Contents of caveat

(41)A caveat must be in Form 97 and the caveator must declare in the caveat the nature of his or her interest in the property of the deceased, and state generally the grounds on which the caveat is filed.

Signature of caveator

(42)The caveat must be signed by the caveator, or by the caveator's lawyer, and must state an address for service in accordance with Rule 4-1.

Time caveat in force

(43)Subject to subrule (48), a caveat remains in force for 6 months after being filed, unless it is sooner withdrawn by notice filed by the caveator, and then it expires and is of no effect, but by order of the court it may be renewed from time to time.

No grant while caveat in force

(44)A grant of administration or probate must not be made while a caveat is in force.

Notice to caveator

(45)A person intending to apply for probate or administration or claiming an interest in an estate with respect to which a caveat has been filed

(a) may file in the registry in which the caveat was filed a notice to caveator that complies with subrule (46), and

(b) if a notice to caveator is filed under paragraph (a), must serve a copy of that filed document on the caveator at the address for service set out in the caveat.

Contents of notice

(46)The notice to caveator must be in Form 98, must state the name and interest of the person on whose behalf it is issued and, if that person claims under a will or codicil, must also state

(a) the date of the will or codicil, and

(b) the person's address for service.

Notice of interest

(47)A notice of interest filed in relation to a notice to caveator must be in Form 70.

Effect of failure to file notice of interest

(48)If a notice to caveator has been filed and a copy served on the caveator and no notice of interest has been filed within the time stated in the notice to caveator, a registrar must cancel the caveat and notify the registrar at Victoria.

Citation to accept executorship

(49)If an executor fails to apply for the probate of a will, any person interested may cite the executor to accept or refuse probate of the will, or to show cause why administration should not be granted to the executor or to some other person having a prior right who is willing to accept the grant, but a citation must not issue until 14 days after the testator's death.

Form of citation and answer

(50)A citation under subrule (49) must be in Form 99 and an answer must be in Form 100.

Citation to propound an alleged will

(51)If there is or may be a document that may be alleged to be a will of a deceased person, a citation to propound the document as a will may be issued by any person interested.

Citation

(52)A citation referred to in subrule (51) must

(a) be in Form 101,

(b) be supported by affidavit, and

(c) be directed to the executor and any other person named in the document.

Answer

(53)An answer to a citation referred to in subrule (51) must be in Form 102.

Citation to bring in a will

(54)If a testamentary document may be in the possession or control of a person, a citation may be issued to the person calling on the person to do one of the following:

(a) deposit with a registrar any testamentary document in the person's possession or control;

(b) state under oath that no testamentary document is in the person's possession or control.

Citation

(55)A citation referred to in subrule (54) must be in Form 103 and must be supported by affidavit.

Subpoena

(56)If it is shown by affidavit, to the satisfaction of a registrar, that a person has knowledge of a will or other document or of any asset relating to or belonging to an estate, the registrar may issue a subpoena in Form 104 for service on that person.

Filing and service of citations

(57)A citation must be served by personal service and Part 4 applies.

Filing and service of answers

(58)An answer must be filed and served.

Foreign grants

(59)If probate or administration has been granted by a court of competent jurisdiction outside British Columbia and the grant cannot be resealed under the provisions of the Probate Recognition Act,

(a) a grant of administration, limited to the estate of the deceased in British Columbia, may be made to the attorney of the personal representative appointed by the foreign court, or

(b) an ancillary grant of probate or administration may be made to the personal representative appointed by the foreign court.

Foreign wills

(60)A copy of a foreign will to be annexed to a grant of administration must be certified by the court out of which probate or administration has been granted.

Application to reseal grant

(61)An application to reseal a grant of probate or letters of administration under the Probate Recognition Act may be made in any registry by the personal representative or the representative's attorney.

Filing required

(62)An applicant for resealing a grant of probate or letters of administration under the Probate Recognition Act must file the grant of probate or letters of administration, or a copy certified by the issuing court.

Affidavit on resealing

(63)An application for resealing a grant of probate or letters of administration under the Probate Recognition Act must be accompanied by an affidavit of the executor, administrator or attorney in Form 105.

Evidence of domicile of deceased on resealing

(64)If the domicile of the deceased at the time of death, as sworn to or affirmed in the affidavit referred to in subrule (63), differs from that suggested by the description in a foreign grant, a registrar may require further evidence as to domicile.

Application to be marked if registrar not satisfied

(65)If a registrar is satisfied that the deceased was not at the time of death domiciled within the jurisdiction of the court from which the foreign grant issued, the registrar must mark the application accordingly.

Application of other rules on resealing

(66)Subrules (7) and (8) apply to an application for resealing a grant of probate or letters of administration under the Probate Recognition Act.

Grant to be resealed

(67)A grant of probate or administration or a certified copy must not be resealed unless it includes a copy of any testamentary paper admitted to probate.

Notice of resealing

(68)Notice of a resealing of a grant must be sent to the court from which the grant issued.

Notice of revocation or alteration to resealing court

(69)If a registrar has notice of the resealing of a British Columbia grant, the registrar must give to the court that resealed it notice of any revocation of, or alteration in, the grant.

Remuneration and passing of accounts

(70)An application to the court for passing of accounts and remuneration must be made, without notice, by notice of application supported by an affidavit in Form 106.

Directions and referrals

(71)On an application under subrule (70), the court must give all necessary directions and may refer the matter to a registrar under Rule 18-1.

Affidavit required for passing of accounts and remuneration

(72)As part of an application for the passing of accounts and remuneration under subrule (70), the applicant must file an affidavit, in Form 107,

(a) describing the assets and liabilities of the estate for which the statement is prepared as at the later of

(i)   the date of the deceased's death, and

(ii)   the effective date of the most recent of any previous accounting done under this rule,

(b) describing capital transactions since the applicable date referred to in paragraph (a), including expenses related to and necessary for the maintenance of capital assets,

(c) describing income transactions, other than transactions included under paragraph (b), since the applicable date referred to in paragraph (a), including the payment of any liabilities of the estate,

(d) describing the assets and liabilities of the estate as at the effective date of the statement of account,

(e) including a calculation of the remuneration, if any, claimed by the applicant for

(i)   the applicant, and

(ii)   any previous trustee for whom a claim for remuneration has not yet been made,

(f) describing all distributions made or anticipated to be made out of the estate, and

(g) including, in any other schedules, details or information the court may require or the applicant may consider relevant.

Rule 21-6 —  Wills Variation Act

Proceedings under the Wills Variation Act

(1)A proceeding under section 2 of the Wills Variation Act must be started by a notice of civil claim.

Parties

(2)In a proceeding referred to in subrule (1),

(a) the following persons must be parties to the proceeding:

(i)   the surviving spouse and children of the testator;

(ii)   all beneficiaries under the testator's will whose interest may be affected by the order sought;

(iii)   the executor of the will, and

(b) the court may order that any other person be joined as a party.

Response to civil claim

(3)In a response to civil claim, a defendant may raise a claim under section 2 of the Wills Variation Act on his or her own behalf, and any other party may serve a reply.

These Supreme Court Civil Rules apply

(4)A proceeding under the Wills Variation Act is governed by these Supreme Court Civil Rules.

Rule 21-7 — Foreclosure and Cancellation

Starting the proceeding

(1)A proceeding for foreclosure of the equitable right to redeem mortgaged property or for redemption must be started by petition.

Parties

(2)In a proceeding referred to in subrule (1), all persons whose interest in or claim to the mortgaged property is sought to be extinguished and all persons against whom any relief is sought must be made respondents and, unless the court otherwise orders, it is not necessary to join any other person as a respondent.

Joinder of claim or party

(3)A petitioner under this rule may join in the proceeding any claim arising out of the mortgage or out of any bond or collateral security or obligation given for the mortgage debt and may join as a party any person who is liable to pay the mortgage debt.

Person filing interest after certificate of pending litigation

(4)If a petitioner under this rule registers a certificate of pending litigation in respect of the proceeding against the mortgaged property, a person who subsequently registers or files in a land title office an interest, right or claim in or to the mortgaged property

(a) need not be served with the petition,

(b) is bound by an order made in the proceeding, and

(c) may file a response to petition in the proceeding.

Powers of the court

(5)The court may do one or more of the following in a proceeding under subrule (1):

(a) make a final order of foreclosure;

(b) order that a respondent must, within a redemption period that the court may fix, pay to the petitioner what is due under the mortgage and for costs, and that, in default of payment, the respondent is to be foreclosed of his or her equity of redemption;

(c) determine summarily, or order that an account be taken of and that a registrar certify, the amount that is due to the petitioner or to any person on the date of the hearing of the petition or on the date of the accounting, as the case may be;

(d) determine summarily, or order that an account be taken of and that the registrar certify, in relation to the amount determined under paragraph (c),

(i)   the daily amount of interest from the date of the hearing of the petition or from the date of the accounting, as the case may be, to the expiration of the period of redemption, or

(ii)   if the daily amount of interest referred to in subparagraph (i) may fluctuate over the period referred to in that subparagraph, the method for calculating such interest;

(e) pronounce judgment for any amount determined to be due or for any amount that has been certified to be due on an accounting;

(f) determine summarily, or order an inquiry to determine, any issues raised between respondents, including priorities;

(g) determine summarily, or order an inquiry to determine, whether a person should be served with the petition;

(h) order at what times, on what terms and in what order of priority respondents may redeem the mortgaged property and that in default they are to be foreclosed of any interest, right or claim in or to the mortgaged property;

(i) order a sale of the mortgaged property;

(j) grant further or corollary relief;

(k) make an order under Rule 22-1 (7).

Final order

(6)In default of payment in accordance with an order made under subrule (5), a final order of foreclosure may be granted against a respondent on application by the petitioner.

Order for sale

(7)A party of record may apply at any time for an order that the mortgaged property be sold or be put up for sale.

Inquiry to settle terms of sale

(8)The court may order an inquiry to settle the terms of a sale.

Order confirming sale

(9)Even though the time for redemption has not expired, the person having conduct of a sale may apply to the court for an order confirming the sale, directing the disposition of the proceeds and vesting title in the purchaser.

Notice to assess costs

(10)A respondent wishing to redeem may, on paying to the petitioner the amount due under the mortgage, serve notice on the petitioner to assess costs, and if, within 14 days after service of the notice, the petitioner has not filed a bill of costs for assessment, the petitioner is not entitled to costs.

Agreement for sale

(11)This rule applies to a proceeding by a vendor on an agreement for sale of land in which a claim is made for specific performance of an agreement for sale and for its cancellation on failure to perform.

Rule 21-8 — Jurisdictional Disputes

Disputed jurisdiction

(1)A party who has been served with an originating pleading or petition in a proceeding, whether that service was effected in or outside British Columbia, may, after filing a jurisdictional response in Form 108,

(a) apply to strike out the notice of civil claim, counterclaim, third party notice or petition or to dismiss or stay the proceeding on the ground that the notice of civil claim, counterclaim, third party notice or petition does not allege facts that, if true, would establish that the court has jurisdiction over that party in respect of the claim made against that party in the proceeding,

(b) apply to dismiss or stay the proceeding on the ground that the court does not have jurisdiction over that party in respect of the claim made against that party in the proceeding, or

(c) allege in a pleading or in a response to petition that the court does not have jurisdiction over that party in respect of the claim made against that party in the proceeding.

[am. B.C. Reg. 119/2010, Sch. A, s. 35.]

Order declining jurisdiction may be sought

(2)Whether or not a party referred to in subrule (1) applies or makes an allegation under that subrule, the party may apply to court for a stay of the proceeding on the ground that the court ought to decline to exercise jurisdiction over that party in respect of the claim made against that party in the proceeding.

Disputed pleading or service

(3)If a party who has been served with an originating pleading or petition in a proceeding, whether served in or outside British Columbia, alleges that the notice of civil claim, counterclaim, third party notice or petition is invalid or has expired or that the purported service of the notice of civil claim, counterclaim, third party notice or petition was invalid, the party may, after filing a jurisdictional response in Form 108, apply for one or both of the following:

(a) an order setting aside the notice of civil claim, counterclaim, third party notice or petition;

(b) an order setting aside service of the notice of civil claim, counterclaim, third party notice or petition.

[am. B.C. Reg. 119/2010, Sch. A, s. 35.]

Powers of court pending resolution

(4)If an application is brought under subrule (1) (a) or (b) or (3) or an issue is raised by an allegation in a pleading or a response to petition referred to in subrule (1) (c), the court may, on the application of a party of record, before deciding the first-mentioned application or issue,

(a) stay the proceeding,

(b) give directions for the conduct of the first-mentioned application,

(c) give directions for the conduct of the proceeding, and

(d) discharge any order previously made in the proceeding.

Party does not submit to jurisdiction

(5)If, within 30 days after filing a jurisdictional response in a proceeding, the filing party serves a notice of application under subrule (1) (a) or (b) or (3) on the parties of record or files a pleading or a response to petition referred to in subrule (1) (c),

(a) the party does not submit to the jurisdiction of the court in relation to the proceeding merely by filing or serving any or all of the following:

(i)   the jurisdictional response;

(ii)   a pleading or a response to petition under subrule (1) (c);

(iii)   a notice of application and supporting affidavits under subrule (1) (a) or (b), and

(b) until the court has decided the application or the issue raised by the pleading, petition or response to petition, the party may, without submitting to the jurisdiction of the court,

(i)   apply for, enforce or obey an order of the court, and

(ii)   defend the proceeding on its merits.

Rule 21-9 —  Negligence Act Claims

Contribution or indemnity claimed under the Negligence Act

(1)A defendant who claims contribution or indemnity under the Negligence Act from a person must do so,

(a) if the person against whom the claim is to be made is a plaintiff, by counterclaim, or

(b) in any other case, whether or not the person against whom the claim is to be made is a party to the action, by third party notice.

Apportionment of liability claimed under the Negligence Act

(2)A defendant who does not claim contribution or indemnity under the Negligence Act but who does claim an apportionment of liability under that Act must claim that apportionment in the response to civil claim.

Part 22 — General

Rule 22-1 — Chambers Proceedings

Definition

(1)In this rule, "chambers proceeding" includes the following:

(a) a petition proceeding;

(b) a requisition proceeding that has been set for hearing under Rule 17-1 (5) (b);

(c) an application, including, without limitation, the following:

(i)   an application to change or set aside a judgment;

(ii)   a matter that is ordered to be disposed of other than at trial;

(d) an appeal from, or an application to confirm, change or set aside, an order, a report, a certificate or a recommendation of a master, registrar, special referee or other officer of the court;

(e) an action that has, or issues in an action that have, been ordered to be proceeded with by affidavit or on documents before the court, and stated cases, special cases and hearings on a point of law;

(f) an application for judgment under Rule 3-8, 7-7 (6), 9-6 or 9-7.

Failure of party to attend

(2)If a party to a chambers proceeding fails to attend at the hearing of the chambers proceeding, the court may proceed if, considering the nature of the chambers proceeding, it considers it will further the object of these Supreme Court Civil Rules to do so, and may require evidence of service it considers appropriate.

Reconsideration of order

(3)If the court makes an order in circumstances referred to in subrule (2), the order must not be reconsidered unless the court is satisfied that the person failing to attend was not guilty of wilful delay or default.

Evidence on an application

(4)On a chambers proceeding, evidence must be given by affidavit, but the court may

(a) order the attendance for cross-examination of the person who swore or affirmed the affidavit, either before the court or before another person as the court directs,

(b) order the examination of a party or witness, either before the court or before another person as the court directs,

(c) give directions required for the discovery, inspection or production of a document or copy of that document,

(d) order an inquiry, assessment or accounting under Rule 18-1, and

(e) receive other forms of evidence.

Hearing of application in public

(5)Except in cases of urgency, a chambers proceeding must be heard in a place open to the public, unless the court, in the case of a particular chambers proceeding, directs that for special reasons the chambers proceeding ought to be dealt with in private.

Adjournment of application set for hearing on a holiday

(6)If a chambers proceeding has been set for hearing on a day on which the court does not hear chambers proceedings, the chambers proceeding stands adjourned without order to the next day on which the court hears chambers proceedings.

Power of the court

(7)Without limiting subrule (4), on the hearing of a chambers proceeding, the court may

(a) grant or refuse the relief claimed in whole or in part, or dispose of any question arising on the chambers proceeding,

(b) adjourn the chambers proceeding from time to time, either to a particular date or generally, and when the chambers proceeding is adjourned generally a party of record may set it down on 3 days' notice for further hearing,

(c) obtain the assistance of one or more experts, in which case Rule 11-5 applies, and

(d) order a trial of the chambers proceeding, either generally or on an issue, and order pleadings to be filed and, in that event, give directions for the conduct of the trial and of pre-trial proceedings and for the disposition of the chambers proceeding.

Powers of court if notice not given

(8)If it appears to the court that notice of a chambers proceeding ought to have been but was not served on a person, the court may

(a) dismiss the chambers proceeding or dismiss it only against that person,

(b) adjourn the chambers proceeding and direct that service be effected on that person or that notice be given in some alternate manner to that person, or

(c) direct that any order made, together with any other documents the court may order, be served on that person.

Urgent chambers proceeding

(9)Rules 8-4 and 8-5 apply to chambers proceedings.

Adjournment

(10)The hearing of a chambers proceeding may be adjourned from time to time by a registrar.

Notes of applications

(11)A registrar must

(a) attend at and keep notes of the hearings of all chambers proceedings, and

(b) include, in the notes kept under paragraph (a) in relation to the hearing of a chambers proceeding, a short statement of the questions or points decided or orders made at the hearing.

Rule 22-2 — Affidavits

Affidavit to be filed

(1)An affidavit used in a proceeding must be filed.

Form and content of affidavit

(2)An affidavit

(a) must be expressed in the first person and show the name, address and occupation of the person swearing or affirming the affidavit,

(b) if the person swearing or affirming the affidavit is a party or the lawyer, agent, director, officer or employee of a party, must state that fact,

(c) must be divided into paragraphs numbered consecutively, and

(d) may be in Form 109.

Identifying affidavits

(3)There must be set out in the top right hand corner of the first page of an affidavit, other than an affidavit of service,

(a) the name of the person swearing or affirming the affidavit,

(b) the sequential number of the affidavit made by that person in the same proceeding, and

(c) the date on which the affidavit was made.

Making affidavit

(4)An affidavit is made when

(a) the affidavit is sworn or affirmed by the person swearing or affirming the affidavit,

(b) the person swearing or affirming the affidavit

(i)   signs the affidavit, or

(ii)   if the person swearing or affirming the affidavit is unable to sign the affidavit, places his or her mark on it, and

(c) the person before whom the affidavit is sworn or affirmed completes and signs a statement in accordance with subrule (5) and identifies each exhibit, if any, to the affidavit in accordance with subrule (8).

Statement to be signed

(5)The person before whom an affidavit is sworn or affirmed must confirm that the affidavit was sworn or affirmed in the person's presence by completing and signing a statement on the affidavit in the following form:

Sworn (or affirmed) before me at ................. British Columbia on ..........[dd/mmm/yyyy]......... .

Sworn (or affirmed) before me at ................. British Columbia on ..........[dd/mmm/yyyy]......... .

Statement if person swearing or affirming the affidavit unable to read

(6)If it appears to the person before whom an affidavit is sworn or affirmed that the person swearing or affirming the affidavit is unable to read it, the person before whom it is sworn or affirmed must certify in the statement signed under subrule (5) that the affidavit was read in his or her presence to the person swearing or affirming the affidavit who seemed to understand it.

Interpretation to person swearing or affirming the affidavit who does not understand English

(7)If it appears to the person before whom an affidavit is to be sworn or affirmed that the person swearing or affirming the affidavit does not understand the English language, the affidavit must be interpreted to the person swearing or affirming the affidavit by a competent interpreter who must certify on the affidavit, by endorsement in Form 109, that he or she has interpreted the affidavit to the person swearing or affirming the affidavit.

Exhibit to be marked

(8)The person before whom an affidavit is sworn or affirmed must identify each exhibit referred to in the affidavit by signing a certificate placed on the exhibit in the following form:

This is Exhibit .......... referred to in the affidavit of .............................. sworn (or affirmed) before me on ..........[dd/mmm/yyyy].......... .

This is Exhibit .......... referred to in the affidavit of .............................. sworn (or affirmed) before me on ..........[dd/mmm/yyyy].......... .

Copies of documentary exhibits

(9)An exhibit referred to in an affidavit need not be filed, but must be made available for the use of the court and for the prior inspection of a party to the proceeding and, in the case of a documentary exhibit not exceeding 10 pages, a true reproduction must be attached to the affidavit and to all copies of the affidavit that are served.

Numbering exhibit pages

(10)Each page of the documentary exhibits referred to in an affidavit, other than an affidavit of service, must be numbered sequentially, beginning with the first page of the first exhibit and ending with the last page of the last exhibit,

(a) on the original exhibits and on all copies that are served, and

(b) even though one or more of those exhibits is not attached to the affidavit.

Alterations to be initialled

(11)The person before whom an affidavit is sworn or affirmed must initial all alterations in the affidavit and, unless so initialled, the affidavit must not be used in a proceeding without leave of the court.

Limitation on contents of affidavit

(12)Subject to subrule (13), an affidavit must state only what a person swearing or affirming the affidavit would be permitted to state in evidence at a trial.

Exception

(13)An affidavit may contain statements as to the information and belief of the person swearing or affirming the affidavit, if

(a) the source of the information and belief is given, and

(b) the affidavit is made

(i)   in respect of an application that does not seek a final order, or

(ii)   by leave of the court under Rule 12-5 (71) (a) or 22-1 (4) (e).

[am. B.C. Reg. 119/2010, Sch. A, s. 36.]

Use of defective affidavit

(14)With leave of the court, an affidavit may be used in evidence despite an irregularity in its form.

Affidavit made before proceeding started

(15)An affidavit may be used in a proceeding even though it was made before the proceeding was started.

Affidavit of patient under the Patients Property Act

(16)If an affidavit is required for use in a proceeding and the person who is proposed to swear or affirm the affidavit is a patient as defined in the Patients Property Act, the affidavit may be sworn or affirmed, on information and belief, by the litigation guardian of the patient.

Rule 22-3 — Forms and Documents

Forms

(1)The forms in Appendix A must be used if applicable, with variations as the circumstances of the proceeding require, and each of those forms must be completed by including the information required by that form in accordance with any instructions included on the form.

Documents

(2)Unless the nature of the document renders it impracticable, every document prepared for use in the court must be in the English language, legibly printed, typewritten, written or reproduced on 8 1/2 inch ´ 11 inch durable white paper or durable off-white recycled paper.

Transcripts

(3)Transcripts of oral evidence must conform to subrule (2).

Space for stamp

(4)The first page of each document prepared for use in a proceeding must contain a blank area extending at least 5 centimetres from the top of the page and at least 5 centimetres from the left edge of the page.

Style of proceeding

(5)A document prepared for use in a proceeding must be headed with the style of proceeding set out on the most recent originating pleading to be filed in that proceeding, but in a document, other than an order or a document that starts a proceeding, if there is more than one party to the proceeding identified as a plaintiff or as any other classification of party, the style of proceeding may be abbreviated to show the name of the first party listed in that classification, followed by the words "and others".

Style of proceeding for class proceeding

(6)The style of proceeding for a proceeding must include the words "Brought under the Class Proceedings Act" immediately below the listed parties if

(a) it is intended, at the start of the proceeding, that a certification order will be sought in respect of the proceeding under the Class Proceedings Act, or

(b) in any other case, a certification order is subsequently granted in respect of the proceeding,

unless and until a certification order is refused in respect of the proceeding or the proceeding is decertified.

Rule 22-4 — Time

Computation of time

(1)Unless a contrary intention otherwise appears, if a period of less than 7 days is set out by these Supreme Court Civil Rules or in an order of the court, holidays are not counted.

Extending or shortening time

(2)The court may extend or shorten any period of time provided for in these Supreme Court Civil Rules or in an order of the court, even though the application for the extension or the order granting the extension is made after the period of time has expired.

Extending or shortening time respecting pleadings

(3)The period fixed by these Supreme Court Civil Rules or an order for serving, filing or amending a pleading or other document may be extended by consent.

Notice of intention to proceed after delay of one year

(4)In a proceeding in which judgment has not been pronounced and no step has been taken for one year, a party must not proceed until

(a) the expiration of 28 days after service, on all parties of record, of notice in Form 44 of that party's intention to proceed, and

(b) a copy of the notice of intention to proceed and proof of its service has been filed.

Want of prosecution

(5)Despite this rule, a defendant or respondent may apply to have a proceeding dismissed for want of prosecution without serving a notice of intention to proceed in Form 44.

Attendance

(6)Attendance on an appointment before an official reporter within 1/2 hour following the time fixed for the appointment is a sufficient attendance.

Rule 22-5 — Multiple Claims and Parties

Multiple claims

(1)Subject to subrule (6), a person, whether claiming in the same or different capacities, may join several claims in the same proceeding.

Multiple parties

(2)Subject to subrule (6), a proceeding may be started by or against 2 or more persons in any of the following circumstances:

(a) if separate proceedings were brought by or against each of those persons, a common question of law or fact would arise in all the proceedings;

(b) a right to relief claimed in the proceedings, whether it is joint, several or alternative, is in respect of or arises out of the same transaction or series of transactions;

(c) the court grants leave to do so.

Joining persons jointly entitled to relief

(3)Subject to any enactment or these Supreme Court Civil Rules or unless the court otherwise orders, a plaintiff or petitioner who claims relief to which any other person is jointly entitled must join as parties to the proceeding all persons so entitled, and any of them who do not consent to be joined as a plaintiff or petitioner must be made a defendant or respondent.

If persons are jointly liable

(4)If relief is claimed against a person who is jointly liable with some other person, the other person need not be made a party to the proceeding, but if persons may be jointly, but not severally, liable and relief is claimed against some but not all of those persons in a proceeding, the court may stay the proceeding until the other persons who may be liable are added as parties.

Party need not be interested in all relief

(5)It is not necessary that every party be interested in all the relief sought in a proceeding, but the court may order that a party be compensated for being required to attend, or be relieved from attending, a part of a trial or hearing in which that party has no interest.

Separation

(6)If a joinder of several claims or parties in a proceeding may unduly complicate or delay the trial or hearing of the proceeding or is otherwise inconvenient, the court may order separate trials or hearings or make any other order it considers will further the object of these Supreme Court Civil Rules.

Separating counterclaim or third party claim

(7)If a counterclaim or a third party proceeding ought to be disposed of by a separate proceeding, the court may so order.

Consolidation

(8)Proceedings may be consolidated at any time by order of the court or may be ordered to be tried at the same time or on the same day.

Misjoinder or nonjoinder of parties

(9)A proceeding must not be defeated by reason of the misjoinder or nonjoinder of a party and the court may deal with the matter in controversy so far as it affects the rights and interests of the parties before it.

Rule 22-6 — Change of Lawyer

Change of lawyer

(1)A party to a proceeding

(a) may change lawyers,

(b) having acted on his or her own behalf, may engage a lawyer to act, or

(c) having been represented by a lawyer, may discharge the lawyer and act on his or her own behalf,

but until copies of notice of the change in Form 110 or 111 have been filed and served on the other parties of record, the other parties are entitled to proceed on the basis that there has been no change of representation or address for service.

Order that lawyer has ceased to act

(2)If

(a) a lawyer for a party has died, cannot be found or for any reason is unable to practise, and

(b) the party has not given notice of change of lawyer or of intention to act in person in accordance with subrule (1),

the court, on the application of any other party of record, may order that the lawyer has ceased to be the lawyer of the first mentioned party.

Order on application of lawyer

(3)If a lawyer who has acted for a party to a proceeding has ceased to act and the party has not given a notice of change in accordance with subrule (1), the court, on the application of the lawyer, may declare that the lawyer has ceased to be the lawyer acting for the party and, if applicable,

(a) may declare that the lawyer's office is not the address for service of the party and give directions as to a new address for service, and

(b) may declare that the lawyer's fax number or e-mail address may no longer be used for service and give directions for a new fax number or e-mail address for service.

Notice of withdrawal

(4)As an alternative to proceeding under subrule (3), a lawyer who has ceased to act for a party who has not given a notice of change under subrule (1) may serve a notice of intention to withdraw in Form 112 on that party and on the other parties of record.

Filing of objection

(5)If a party on whom a notice of intention to withdraw is served under subrule (4) wishes to object to the withdrawal, the party must, within 7 days after service,

(a) file in the registry an objection in Form 113, and

(b) serve on the lawyer a copy of the filed objection.

Procedure if no objection filed

(6)A lawyer who serves a notice of intention to withdraw under subrule (4) on all parties of record to a proceeding may file a notice of withdrawal of lawyer in Form 114 if no objection, notice of change of lawyer or notice of intention to act in person is filed within 7 days after service of the notice of intention to withdraw.

Service of notice of withdrawal

(7)If a lawyer files a notice of withdrawal of lawyer under subrule (6), the lawyer ceases to be the party's lawyer when the notice has been served on all parties of record.

Service of documents after withdrawal

(8)After a lawyer ceases under subrule (7) to be a party's lawyer, the party's address for service is, until that address is changed under Rule 4-1 (3), the address set out in the notice of withdrawal of lawyer filed under subrule (6) of this rule.

Procedure if objection filed

(9)If, within the 7 day period referred to in subrule (6), an objection is filed in the registry, the lawyer may apply, on notice to each party who has filed an objection, for an order under subrule (3).

Substituted service

(10)If personal service of a notice of intention to withdraw cannot be made in accordance with Rule 4-3 (2) on a party for whom the lawyer acts, the lawyer may apply for an order under Rule 4-4 allowing service by an alternative method.

Service of copy of order

(11)An applicant who obtains an order under subrule (2) or (3) must serve a copy of the entered order on all parties of record and, until it is served, a party is entitled to proceed on the basis that there has been no change of lawyer or address for service.

Rule 22-7 — Effect of Non-compliance

Non-compliance with rules

(1)Unless the court otherwise orders, a failure to comply with these Supreme Court Civil Rules must be treated as an irregularity and does not nullify

(a) a proceeding,

(b) a step taken in the proceeding, or

(c) any document or order made in the proceeding.

Powers of court

(2)Subject to subrules (3) and (4), if there has been a failure to comply with these Supreme Court Civil Rules, the court may

(a) set aside a proceeding, either wholly or in part,

(b) set aside any step taken in the proceeding, or a document or order made in the proceeding,

(c) allow an amendment to be made under Rule 6-1,

(d) dismiss the proceeding or strike out the response to civil claim and pronounce judgment, or

(e) make any other order it considers will further the object of these Supreme Court Civil Rules.

Proceeding must not be set aside for incorrect originating pleading

(3)The court must not wholly set aside a proceeding on the ground that the proceeding was required to be started by an originating pleading other than the one employed.

Application to set aside for irregularity

(4)An application for an order under subrule (2) (a), (b) or (d) must not be granted unless the application is made

(a) within a reasonable time, and

(b) before the applicant has taken a fresh step after knowledge of the irregularity.

Consequences of certain non-compliance

(5)Without limiting any other power of the court under these Supreme Court Civil Rules, if a person, contrary to these Supreme Court Civil Rules and without lawful excuse,

(a) refuses or neglects to obey a subpoena or to attend at the time and place appointed for his or her examination for discovery,

(b) refuses to be sworn or to answer any question put to him or her,

(c) refuses or neglects to produce or permit to be inspected any document or other property,

(d) refuses or neglects to answer interrogatories or to make discovery of documents, or

(e) refuses or neglects to attend for or submit to a medical examination,

then

(f) if the person is the plaintiff or petitioner, a present officer of a corporate plaintiff or petitioner or a partner in or manager of a partnership plaintiff or petitioner, the court may dismiss the proceeding, and

(g) if the person is a defendant, respondent or third party, a present officer of a corporate defendant, respondent or third party or a partner in or manager of a partnership defendant, respondent or third party, the court may order the proceeding to continue as if no response to civil claim or response to petition had been filed.

Failure to comply with direction of court

(6)If a person, without lawful excuse, refuses or neglects to comply with a direction of the court, the court may make an order under subrule (5) (f) or (g).

Dismissal for want of prosecution

(7)If, on application by a party, it appears to the court that there is want of prosecution in a proceeding, the court may order that the proceeding be dismissed.

Rule 22-8 — Contempt of Court

Power of court to punish

(1)The power of the court to punish contempt of court must be exercised by an order of committal or by imposition of a fine or both.

Corporation in contempt

(2)If a corporation wilfully disobeys an order against the corporation, the order may be enforced by one or more of the following:

(a) imposition of a fine on the corporation;

(b) committal of one or more directors or officers of the corporation;

(c) imposition of a fine on one or more directors or officers of the corporation.

Security

(3)Instead of or in addition to making an order of committal or imposing a fine, the court may order a person to give security for the person's good behaviour.

Certain acts as contempt

(4)A person who is guilty of an act or omission described in Rule 12-5 (25) or 22-7 (5), in addition to being subject to any consequences prescribed by those rules, is guilty of contempt of court and subject to the court's power to punish contempt of court.

If person may be guilty of contempt

(5)If the court is of the opinion that a person may be guilty of contempt of court, it may order, by warrant in Form 115 directed to a sheriff or other officer of the court or to a peace officer, that the person be apprehended and brought before the court.

Power of court after apprehension

(6)If a person referred to in subrule (5) is apprehended and brought before the court, the court in a summary manner may adjudge the innocence or guilt of the person and punish the person for the contempt, if any, or may give the directions it thinks fit for the determination of the person's innocence or guilt and punishment.

If corporation may be guilty of contempt

(7)If the court is of the opinion that a corporation may be guilty of contempt of court, it may order, by its warrant in Form 115 directed to a sheriff or other officer of the court or to a peace officer, that any director, officer or employee of the corporation be apprehended and brought before the court.

Power of court after apprehension

(8)If a director, officer or employee referred to in subrule (7) is apprehended and brought before the court, the court in a summary manner may adjudge the innocence or guilt of the corporation and punish the corporation for the contempt, if any, or may give the directions it thinks fit for the determination of the corporation's innocence or guilt and the punishment to be imposed.

Release of apprehended person

(9)The court may order the release of a person apprehended under subrule (5) or (7) on receiving an undertaking in Form 116 from that person.

Order for release

(10)A release order under subrule (9) must be in Form 117.

Proceeding for contempt

(11)A party applying for an order for contempt must serve the alleged contemnor with a copy of the filed notice of application and all filed affidavits in support of it at least 7 days before the hearing of the application.

Affidavit

(12)An application under subrule (11) must be supported by affidavit setting out the conduct alleged to be contempt of court.

Hearing

(13)The court may give directions as to the mode of hearing the application, including an order that the matter be transferred to the trial list under Rule 22-1 (7) (d).

Service of order not necessary

(14)If the court is satisfied that a person has actual notice of the terms of an order of the court, it may find the person guilty of contempt for disobedience of the order, even though the order has not been served on the person.

Suspension of punishment

(15)The court at any time may direct that the punishment for contempt be suspended for the period or on the terms or conditions the court may specify.

Discharge of person

(16)The court, on application by or on behalf of a person committed to prison for contempt, may discharge that person even though the period of the committal may not have elapsed.

Weekly review of person in custody

(17)If the court orders a person be committed without specifying in days, weeks or months the period of the committal, the sheriff must bring that person before the court at intervals of not more than 7 days, in order that the court may review the committal and determine whether relief as set out in subrule (15) or (16) should be granted.

Part 23 — Court and Registry Matters

Rule 23-1 — Registry Operations

Copy of document filed in registry

(1)Unless otherwise provided by an enactment, a person may, on payment of the proper fees, obtain from the registry a copy of a document on file in a proceeding.

When registry open

(2)Except on Saturdays, holidays and those days that are prescribed by the Lieutenant Governor in Council as holidays for the Public Service of British Columbia, the registry is to be kept open to the public for the transaction of business from 9 a.m. until 4 p.m.

Hours of registrar

(3)The hours of attendance by a registrar and the registry staff are from 8:30 a.m. until 4:30 p.m.

Lunch hours

(4)If a registry has insufficient staff to allow continuous staff attendance at the lunch hour, the Chief Justice may, in writing, authorize that registry to close.

Use of seal

(5)In each registry, the seal of the court must be stamped on every

(a) notice of civil claim, and

(b) other document requiring a seal

issued from or filed in that registry.

Name of registry

(6)The name of the registry must be written or stamped on the face of every document issued from or filed or recorded in that registry.

Signature of registrar

(7)If the signature or endorsement of a registrar is required on a document, the document is deemed to have been signed or endorsed by the registrar if the document is signed or endorsed by a person appointed for that purpose by the registrar.

Business not to be conducted out of office hours

(8)In case of urgency, the court may order that a registry be opened for the purpose of commencing a proceeding or for some other good reason.

Request to registrar by requisition

(9)Unless these Supreme Court Civil Rules otherwise provide, if a person wishes a registrar to perform some act under these Supreme Court Civil Rules,

(a) the person must make the request by requisition in Form 17 unless these Supreme Court Civil Rules otherwise provide, and

(b) the registrar may discard the requisition after the required act has been done.

Incapacity of judge

(10)If an application ought to be made to, or any jurisdiction ought to be exercised by, the judge by whom a proceeding has been tried or partly tried, or heard or partly heard, then, if that judge dies or ceases to be a judge of the court during or after the trial or hearing, or if for any other reason it is impossible or inconvenient for that judge to act in the proceeding, the Chief Justice or next senior judge of the court may, either by a special order or by a general order, nominate some other judge to whom the application may be made or by whom the jurisdiction may be exercised.

Powers of substituted judge

(11)Without limiting subrule (10), the other judge nominated under that subrule may

(a) order that the proceeding be restored to the proper registry for retrial or rehearing,

(b) if, on the original trial or hearing, evidence was given orally, direct that the retrial or rehearing be on

(i)   an official transcript of that evidence,

(ii)   transcript, evidence given orally and evidence given by affidavit,

(iii)   new evidence, or

(iv)   any other basis

as in his or her opinion the circumstances of the case require, and

(c) dispose of the costs of the original trial or hearing and of the costs of furnishing any copies of the transcript of the evidence, or refer the question of costs to the judge presiding at the retrial or rehearing.

Powers of presiding judge

(12)Directions for a retrial or rehearing that include a direction for the use of the transcript of the evidence do not limit or restrict the power of the judge presiding at the retrial or rehearing to permit in his or her discretion the recalling of any witness called at the original trial or hearing, or to receive other or additional evidence.

Transfers

(13)At any time after a proceeding is started, the court may on application order the proceeding to be transferred from the registry in which it is being conducted to any other registry of the court for any or all purposes.

Rule 23-2 — Fax Filing

Application

(1)This rule applies only to those proceedings that are filed at the Chilliwack, Cranbrook, Dawson Creek, Kamloops, Kelowna, Nelson, Penticton, Prince George, Rossland, Salmon Arm, Smithers, Terrace, Vernon or Williams Lake registry of the court.

Document may be submitted for filing by fax

(2)Subject to this rule, a person wishing to file a document may transmit that document by fax to the applicable court registry.

Means of transmission

(3)A document may be transmitted by fax to a registry for filing if

(a) the document is transmitted to the appropriate registry at the fax number designated for that registry by a practice direction of the Chief Justice,

(b) the document is

(i)   sent under cover of a fax cover sheet in Form 118, and

(ii)   accompanied by payment of the applicable filing fees, and

(c) the document is not one referred to in subrule (4).

Application of this rule

(4)The following documents may not be transmitted by fax to a registry for filing:

(a) any document pertaining to the following:

(i)   probate;

(ii)   adoption;

(iii)   reciprocal enforcement of orders under the Court Order Enforcement Act;

(b) any of the following documents:

(i)   a certified copy of any document being filed for enforcement purposes;

(ii)   an application record or a petition record;

(iii)   a trial record;

(iv)   a proof of marriage from a foreign jurisdiction;

(v)   a certificate of judgment;

(vi)   a certificate of pending litigation;

(vii)   an affidavit of service submitted for filing in support of a default order;

(c) any of the following documents, unless their submission by fax is authorized by the Manager, Supreme Court Scheduling of the receiving registry:

(i)   a trial certificate;

(ii)   a notice of trial;

(iii)   and (iv) Repealed. [B.C. Reg. 119/2010, Sch. A, s. 37 (b).]

(v)   a requisition to reset a hearing or trial;

(vi)   a notice of case planning conference in Form 19;

(d) a document that, with the fax cover sheet, exceeds 30 pages in length, unless its submission by fax is authorized by a registrar.

[am. B.C. Reg. 119/2010, Sch. A, s. 37.]

When a document is filed

(5)A document that is transmitted by fax to a registry for filing in accordance with subrule (3) and that is approved for filing by the registrar is filed as follows:

(a) the document is filed on the day it is received by the registry if any of the document, other than the fax cover sheet, is received at the fax machine of the registry at or before 4 p.m. on a day on which the registry is open for business;

(b) the document is filed on the next day on which the registry is open for business in any other case.

Confirmation of filing

(6)After a document is received at the fax machine of the registry, a registrar must do the following in accordance with subrule (7):

(a) if the document was transmitted for filing in accordance with subrule (3) and was approved for filing by the registrar, provide to the person identified as the submitting party on the fax cover sheet

(i)   confirmation of the fees paid, and

(ii)   the first page of the filed document, bearing the registry stamp and file number;

(b) if the document was not transmitted for filing in accordance with subrule (3), or was not approved for filing by the registrar, provide to the person identified as the submitting party on the fax cover sheet

(i)   a notice that the document has not been filed and the reasons for non-acceptance, and

(ii)   the first page of the document.

Confirmation of filing

(7)For the purposes of subrule (6), a registrar may provide the documents referred to in that subrule to the person identified as the submitting party on the fax cover sheet

(a) by transmitting those documents by fax to the fax number shown on the fax cover sheet as the fax number for the submitting party, or

(b) in any other manner the registrar considers appropriate.

Original of document may be required by court

(8)The court may require that the original of a document that has been filed under this rule be produced.

Rule 23-3 — Electronic Filing

Definitions

(1)In this rule:

"electronic document" means a document that has been transmitted for filing electronically;

"electronic services agreement" means an agreement referred to in subrule (3);

"registered user" means a person who has entered into an electronic services agreement.

This rule prevails in event of conflict

(2)In the event of a conflict between this rule and another rule, this rule applies.

Electronic services agreement

(3)A person wishing to file documents in a registry under this rule must

(a) enter into an agreement with the Court Services Branch of the Ministry of Justice respecting the terms and conditions under which those filings may be made, and

(b) submit documents for filing in accordance with that agreement.

[am. B.C. Reg. 27/2013, Sch. 2, s. 13.]

Means of transmission

(4)A registered user may electronically transmit a document to a registry for filing if

(a) the document is accompanied by payment of the applicable filing fees, and

(b) the document is not one referred to in subrule (5).

Application of this rule

(5)The following documents may not be transmitted for filing electronically:

(a) any document pertaining to the following:

(i)   probate;

(ii)   reciprocal enforcement of orders under the Court Order Enforcement Act;

(b) any of the following documents:

(i)   a certified copy of any document being filed for enforcement purposes;

(ii)   an application record or a petition record;

(iii)   a trial record;

(iv)   a proof of marriage from a foreign jurisdiction, unless such proof is issued electronically;

(v)   a certificate of judgment;

(vi)   a certificate of pending litigation;

(vii)   an affidavit, filed under Rule 12-5 (59), that constitutes the evidence in chief of a witness.

Affidavits and other signed documents

(6)An affidavit or other signed document that is being filed for evidentiary purposes, if submitted for filing electronically, must clearly identify the signatory and must be accompanied by a statement, in Form 119, of the lawyer acting for the person on whose behalf the document is submitted for filing or, if that person is unrepresented, by a statement of that person, in Form 119, indicating that

(a) the original paper version of the document appears to bear an original signature of the person identified as the signatory and the person making the Form 119 statement has no reason to believe that the signature placed on the document is not the signature of the identified signatory, and

(b) the version of the document that is being submitted for filing electronically appears to be a true copy of the original paper version of the document and the person making the Form 119 statement has no reason to believe that it is not a true copy of the original paper version.

Retention of documents

(7)A person who, under subrule (6), submits a document for filing in a proceeding must

(a) keep the original paper version of the document until the earliest of

(i)   the date on which the proceeding, including any appeals, is finally disposed of,

(ii)   the date on which the appeal period for that proceeding has expired if no notice of appeal respecting the proceeding has been filed within that period, and

(iii)   the date on which a registrar requests that the original paper version be filed, and

(b) if a request is made under paragraph (a) (iii), file the original paper version promptly after that request is made.

Conversion of documents

(8)If a document in paper form is filed with a registrar, the registrar may convert the document into electronic form and, in that event, the registrar must

(a) store the conversion in a computer or in another electronic system that the registrar considers appropriate, and

(b) retain the paper form of the document.

Inspection of original documents

(9)A person who submits a document referred to in subrule (6) for filing electronically must, on request, make the original paper version of that document available for inspection by other parties or their lawyer and by the court.

Requisition

(10)A person who is entitled to inspect a document under subrule (9) may, if that inspection is denied, file a requisition in Form 17 to request that the original paper version of the document be filed and, promptly after receipt of that requisition, the registrar must make a request under subrule (7) (a) (iii).

Application of Rule 22-2

(11)Rule 22-2 continues to apply to affidavits filed under this rule, but, in the event of a conflict between this rule and Rule 22-2 in respect of those affidavits, this rule prevails.

Electronic authentication deemed a signature

(12)For the purposes of these Supreme Court Civil Rules other than subrule (6) of this rule, a document is deemed to have been originally signed if it has been electronically authenticated in the manner contemplated by the applicable electronic services agreement.

Filing of documents

(13)If a document that has been transmitted for filing electronically is accepted for filing by a registrar, the document is deemed to have been filed as follows:

(a) if the document is received by the registry at or before 4 p.m. on a day that is not a Saturday or a holiday, the document is deemed to be filed on the day of receipt;

(b) if the document is received by the registry on a Saturday or holiday or after 4 p.m. on any other day, the document is deemed to be filed on the next day that is not a Saturday or a holiday.

Electronic acceptance

(14)After a document that has been transmitted for filing electronically is accepted for filing by a registrar, the registrar must affix an electronic version of the registry stamp to the document and, after that, must provide a copy of the stamped electronic document, in the manner contemplated by the electronic services agreement, to the person who transmitted the document for filing.

Sealing of notice of civil claim

(15)After a registrar provides an electronic acceptance of a notice of civil claim under subrule (14), the notice of civil claim is deemed to have been sealed by the registrar.

Public access to documents filed electronically

(16)After a document has been filed under this rule, a person who is otherwise entitled to view and obtain a copy of the document may, on payment of the proper fee,

(a) obtain from the registry a paper copy of the document,

(b) if a public access computer terminal is available in the registry, view the document on that terminal or, if the document is not available for viewing on that terminal, view on that terminal the information about the document or its contents, if any, that is available on that terminal, or

(c) if the person is a registered user, access the document in accordance with the terms of the electronic services agreement entered into by that person.

Service of documents

(17)A document that may or must be served on a person may, if it is an electronic document, be served on the person as follows:

(a) if the person has provided an e-mail address for service, by e-mailing it to that person's e-mail address for service;

(b) if the lawyer for the person has provided an e-mail address for service, by e-mailing it to that lawyer's e-mail address for service;

(c) if paragraph (a) or (b) applies and, under these Supreme Court Civil Rules, multiple copies of the document are to be served, the serving party need serve only a single electronic copy of the document.

If document does not reach a person

(18)Even though a document has been served in accordance with subrule (17), a person may show, on an application to set aside the consequences of default, on an application for an extension of time or on an application in support of a request for an adjournment, that the document

(a) did not come to the person's notice,

(b) did come to the person's notice later than when it was served or effectively served, or

(c) was incomplete or illegible.

Rule 23-4 — Money in Court

Interpretation

(1)In this rule, unless the context otherwise requires:

"financial institution" means a bank, credit union or trust company designated by the minister;

"funds" means any money that has been paid into or deposited in court, except money paid

(a) under the Court Order Enforcement Act,

(b) for security for costs,

(c) in satisfaction of a claim, or

(d) for bail;

"minister" means the Minister of Finance;

"securities" means any bonds, stocks, shares, debentures or other securities.

Deposit of funds

(2)All funds must be deposited promptly in a financial institution by a registrar and must, after that, be paid by the registrar to the minister, accompanied by

(a) a certified copy of the order directing payment in, or

(b) if the funds have been paid into court without an order, a statement showing the particulars of the payment in.

Deposit of securities

(3)All securities deposited in court must be accompanied

(a) by a certified copy of the order directing deposit in court and listing the securities, or

(b) if the securities are deposited without an order listing the securities, by a statement listing the securities.

Transmission of securities

(4)Promptly after securities are deposited in court, a registrar must transmit those securities to the minister

(a) by registered mail, insured to the extent of the securities' par value, or

(b) through a financial institution,

together with a certified copy of the order or the statement.

Payment out of court

(5)Funds and securities must be paid out or delivered, on authority of an order of the court, on production of a certified copy of the order or authorization by a registrar for payment out, and must be paid or delivered to the person named in the order or authorization.

Interest

(6)All funds held in court draw interest, payable by the minister, for each 6 month period after December 31, 1992, at 2% below the prime lending rate of the banker to the government on January 1 and July 1 respectively in each year, with interest to be compounded on January 1 and July 1 in each year.

No other interest payable

(7)The interest paid under this rule is instead of any interest earned on an investment made by the minister under subrule (10).

Calculation of interest

(8)Interest under subrule (6) is payable on all funds up to $100 000 from the first day of the month following payment into court until the last day of the month before payment out of court, and on all funds in excess of $100 000 from the date of payment into court until the date of payment out.

Account

(9)For the purpose of segregating the funds from other money held by the minister, the minister must create an account in the treasury designated "Investments, Supreme Court Act", and the funds held in this account

(a) constitute a trust, and

(b) must, at all times, be substantially equal to the funds held by the minister under this rule.

Investments

(10)The minister may

(a) invest as he or she sees fit all or any part of the funds, and

(b) convert securities into money.

Direction for payment out

(11)If, by an order of the court, funds are directed to be dealt with, delivered or paid out, the order is a direction to the minister to that effect.

Deposit of other money paid into court

(12)Money paid into court, other than funds, must be deposited by a registrar in a financial institution and be paid out in accordance with the existing practice of the court, but the registrar must pay to the minister all moneys that have been on deposit for more than 2 years.

No interest on other funds

(13)Money paid to the minister under this rule must be held by the minister in the same manner as funds deposited under subrule (2), except as to payment of interest.

Money for person under disability

(14)In a proceeding in which a sum of money or a security is awarded to a person under a disability, the court may, at or after the trial, order that the whole or any part of the sum or the security be paid,

(a) if the person is an infant, to the Public Guardian and Trustee in trust for the infant, or

(b) in any other case, into court to the credit of the person.

Payment out of money or security

(15)If a sum of money or a security is paid into court under subrule (14) (b), the sum or the security may be paid out of court as the court may direct.

Payment in for infant

(16)When money is paid into court to the credit of an infant, a copy of the birth certificate of the infant, or other proof to the satisfaction of a registrar of the name and date of birth of the infant, must be filed, unless the registrar dispenses with the filing.

Payment out of money held for infant

(17)In support of an application for payment out of money paid in under subrule (16), the applicant must file a declaration in Form 120.

Rule 23-5 — Sittings and Hearings

Under direction of Chief Justice

(1)The court must dispose of the business before it at the times and in the places the Chief Justice directs.

Urgency

(2)In case of urgency, an application may be made personally to a judge, to a master or to a registrar.

Hearing by communication medium

(3)In case of urgency, or if the court or a registrar considers it appropriate to do so, the court or the registrar, as the case may be, may conduct a hearing and make an order or decision by telephone, video conference or other communication medium.

[en. B.C. Reg. 65/2013, Sch. A, s. 3 (a).]

Video conferencing

(4)On application by a party or on its own initiative, the court may direct

(a) that an application be heard by way of telephone, video conference or other communication medium, and

(b) the manner in which the application is to be conducted.

Application to registrar by communication medium

(4.1)On application by a party or on a registrar's own initiative, a registrar may direct

(a) that a hearing before a registrar be heard by way of telephone, video conference or other communication medium, and

(b) the manner in which the hearing is to be conducted.

[en. B.C. Reg. 65/2013, Sch. A, s. 3 (b).]

Application must be made by requisition

(5)An application under subrule (4) or (4.1) for a direction that an application or a hearing before a registrar be heard by way of telephone, video conference or other communication medium

(a) must be made by requisition in Form 17, and

(b) must be supported by a letter, signed by the person or the person's lawyer, setting out the reasons why the order is sought.

[am. B.C. Reg. 65/2013, Sch. A, s. 3 (c).]

Rule 23-6 — Masters, Registrars and Special Referees

Powers of a master

(1)Without limiting any other powers of a master under these Supreme Court Civil Rules, a master hearing an application has the powers of the court set out in Rules 8-5 (6) to (8) and 22-1 (2) to (8).

Master as registrar

(2)A master has the powers and jurisdiction of a registrar under these Supreme Court Civil Rules.

Powers of a master in estates

(3)A master has the powers of the court to dispose of all non-contentious business in the administration of estates.

Hearing record

(3.1)Before attending a registrar's hearing started by the filing of an appointment, the person taking out the appointment (in this subrule called the "applicant") must provide to the registry where the hearing is to take place, no later than 4 p.m. on the business day that is one full business day before the date set for the hearing, a hearing record as follows:

(a) the hearing record must be in a ring binder or in some other form of secure binding;

(b) the hearing record must contain, in consecutively numbered pages, or separated by tabs, the following documents in the following order:

(i)   a title page bearing the style of proceeding and the names of the lawyers, if any, for the applicant and the persons served with the appointment (in this subrule called the "respondents");

(ii)   an index;

(iii)   a copy of the filed appointment and of every document that, under these rules, is required to be filed with that appointment;

(iv)   a copy of the affidavit of service of the appointment, which copy must not include the exhibits to the affidavit;

(v)   if the appointment is to settle an order under Rule 13-1, a copy of the reasons for judgment on which the order is based, a transcript of the order made or a copy of the clerk's notes from the hearing;

(vi)   if the appointment is to assess costs under Rule 14-1, a copy of the entered order for costs;

(vii)   if the appointment has been filed under Rule 18-1, a copy of the entered order referring the matter to the registrar;

(viii)   a copy of every filed affidavit and pleading, and of every other document, that is to be relied on at the hearing;

(c) the hearing record may contain

(i)   a draft of the proposed report or certificate, and

(ii)   a list of authorities;

(d) the hearing record must not contain

(i)   written argument,

(ii)   copies of authorities, including case law, legislation, legal articles or excerpts from text books, or

(iii)   any other documents unless they are included with the consent of the applicant and the respondents.

[en. B.C. Reg. 65/2013, Sch. A, s. 4.]

Dealings with hearing record

(3.2)Rule 8-1 (17), (19) and (20) applies to a hearing record and, for that purpose, a reference in Rule 8-1 (17), (19) or (20) to "application record" is a reference to a hearing record and a reference to an "applicant" and an "application respondent" is a reference to the applicant and respondent to the registrar's hearing respectively and a reference to the "hearing of the application" is a reference to the hearing of the registrar's hearing.

[en. B.C. Reg. 65/2013, Sch. A, s. 4.]

Registrar's powers at registrar's hearing

(4)A registrar may, in respect of any registrar's hearing, whether before that registrar or any other registrar,

(a) extend, shorten or limit the time for any step in the registrar's hearing,

(b) exercise the powers that, under Rules 22-1 (2) and (3) and 23-5 (4), may be exercised by the court,

(c) exercise the powers set out in Rule 18-1 (5), and

(d) direct the parties to attend a pre-hearing conference.

[am. B.C. Reg. 112/2012, Sch. A, s. 5.]

Registrar's directions at pre-hearing conference

(5)Without limiting Rule 18-1 (5), a registrar conducting a pre-hearing conference may give directions for the conduct of any registrar's hearing, whether or not that registrar's hearing is before the registrar conducting the pre-hearing conference, including, without limitation, directions respecting the following:

(a) the production of documents;

(b) oral examinations for discovery;

(c) service of notices to admit;

(d) service of experts' reports;

(e) service of witness lists;

(f) any other matter that may assist in the just and efficient determination of the issues.

Reference by master to judge

(6)If a matter appears to a master to be proper for the decision of a judge, the master may refer it to a judge, and the judge may either dispose of the matter or refer it back to the master with directions.

Reference by registrar to judge or master

(7)If a matter appears to a registrar to be proper for the decision of a judge or master, the registrar may refer it to a judge or master, and the judge or master may either dispose of the matter or refer it back to the registrar with directions.

Appeal from master, registrar or special referee

(8)A person affected by an order or decision of a master, registrar or special referee may appeal the order or the decision to the court.

Form of appeal

(9)The appeal must be made by filing a notice of appeal in Form 121 within 14 days after the order or decision complained of.

Notice

(10)Unless otherwise ordered, there must be at least 3 days between the service of the notice of appeal and the hearing.

Appeal not to act as stay

(11)An appeal from the decision of a master or registrar is not a stay of proceeding unless so ordered by the court or the master.

Part 24 — Transition

Rule 24-1 — Transitional Pleadings

Definitions

(1)In this Part:

"address for delivery", "appearance", "requisition", "statement of claim", "statement of defence" and "writ of summons" have the same meanings as they had in the former Supreme Court Rules;

"transitional proceeding" means a proceeding that was started before July 1, 2010.

These rules apply to transitional proceedings

(2)A transitional proceeding is deemed to be a proceeding started under these Supreme Court Civil Rules.

Pleadings deemed to be a notice of civil claim

(3)If the person who started a transitional proceeding did so by filing a writ of summons or a writ of summons and statement of claim,

(a) the person is deemed to be the plaintiff in the proceeding, and

(b) the writ of summons is, or the writ of summons and statement of claim collectively are, deemed to be the notice of civil claim in the proceeding.

Requisition deemed to be a notice of civil claim

(4)If the person who started a transitional proceeding did so by filing a requisition,

(a) the person is deemed to be the plaintiff in the proceeding, and

(b) the requisition is deemed to be the notice of civil claim in the proceeding.

Petition

(5)If the person who started a transitional proceeding did so by filing a petition,

(a) the person is deemed to be the petitioner in the proceeding, and

(b) the petition is deemed to be the petition in the proceeding.

Appearance and statement of defence deemed to be a response to civil claim

(6)If a person filed, in a transitional proceeding referred to in subrule (3) or (4), an appearance with or without a statement of defence, statement of defence to counterclaim or statement of defence to third party notice, as the case may be,

(a) the person is deemed to be a defendant, defendant by way of counterclaim or third party, as the case may be, in the proceeding, and

(b) the appearance is, or, if the person filed both an appearance and a statement of defence, statement of defence to counterclaim or statement of defence to third party notice, as the case may be, the filed documents collectively are, deemed to be a response to civil claim, response to counterclaim or response to third party notice, as the case may be, in the proceeding.

Appearance deemed to be a response to petition

(7)If a person filed, in a transitional proceeding referred to in subrule (5), an appearance,

(a) the person is deemed to be a petition respondent, within the meaning of Rule 16-1, in the proceeding, and

(b) the appearance is deemed to be a response to petition in the proceeding.

Other pleadings

(8)If a person filed, in a transitional proceeding, a counterclaim, third party notice or reply, that document is deemed to be a pleading in the proceeding.

Unserved writ of summons

(9)Unless the court otherwise orders, if, before July 1, 2010, a person filed a writ of summons, with or without a statement of claim, and that document has not, or those documents have not, been served on a person named as a defendant in the transitional proceeding started by that filing, Rule 3-2 applies to the filed document or documents.

Demand for amendment

(10)A party to a proceeding referred to in this rule may, by demand in Form 122, demand that a document that is deemed under this rule to be a pleading, petition or response to petition be amended by the party who filed it to make it accord with these Supreme Court Civil Rules.

Party must amend

(11)If a demand is served under subrule (10), the party on whom the demand is served must, within 21 days after service, amend the deemed pleading, petition or response to petition to make it accord with these Supreme Court Civil Rules, and that amendment does not constitute an amendment for the purposes of Rule 6-1 (1) (a).

Failure to amend

(12)If a demand is served under subrule (10) of this rule and the party on whom the demand is served does not make the amendments required under subrule (11) within the period referred to in that subrule, the demanding party may apply to the court for an order to strike the deemed pleading, petition or response to petition of the party on whom the demand is served.

Address for service

(13)For the purposes of Rule 4-1 of these Supreme Court Civil Rules, until a new address for service is provided for a party to a proceeding referred to in this rule, the party is deemed to have, as an address for service in the proceeding, that party's address for delivery under the former Supreme Court Rules.

Step in ongoing proceeding

(14)If a step in a proceeding is taken before July 1, 2010, the former Supreme Court Rules apply to any right or obligation arising out of or relating to that step if and to the extent that that right or obligation is to have effect before September 1, 2010.

Trial management conference

(15)If the trial of a transitional proceeding is scheduled to begin before October 1, 2010,

(a) a trial management conference may be held in the transitional proceeding at any time, or

(b) if a trial management conference was not required to be held in relation to the transitional proceeding under the former Supreme Court Rules, the trial may proceed without a trial management conference.

Court may decide

(16)If there is any dispute in relation to the procedure to be applied to or followed in a proceeding referred to in this rule, any party may seek directions.

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