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 1 — Interpretation

Rule 1-1 — Interpretation

Definitions

(1)In these Supreme Court Civil Rules, unless the context otherwise requires:

"accessible address" means an address that describes a unique and identifiable location in British Columbia that is accessible to the public during normal business hours for the delivery of documents;

"action" means a proceeding started by a notice of civil claim;

"address for service", in relation to a party to a proceeding, means an address that is, under Rule 4-1, the party's address for service in the proceeding;

"case plan order" means an order referred to in Rule 5-3 (3);

"Chief Justice" means the Chief Justice of the Supreme Court of British Columbia;

"court" means the Supreme Court of British Columbia and, if a master has jurisdiction, includes a master of the Supreme Court;

"document" has an extended meaning and includes a photograph, film, recording of sound, any record of a permanent or semi-permanent character and any information recorded or stored by means of any device;

"family law case" has the same meaning as in the Supreme Court Family Rules;

"fast track action" means an action that is, under Rule 15-1 (1), an action to which Rule 15-1 applies;

"file" means file in the registry;

"former Supreme Court Rules" means the Supreme Court Rules, B.C. Reg. 221/90;

"insurer" means an insurer, as defined in the Financial Institutions Act, that

(a) has provided a policy of insurance to a party to an action in relation to matters or property in issue in that action, and

(b) under that policy, is obligated to indemnify the party for liability imposed on the party in the action,

and includes a surety of a party to an action in circumstances in which a claim has been made on a surety bond related to the matters in issue in the action;

"order" includes a judgment and a decree;

"originating pleading" means a notice of civil claim, counterclaim, third party notice or any document, other than a petition, that starts a proceeding;

"party", in relation to a proceeding, means a person named as a party in the style of proceeding;

"party of record", in relation to a proceeding, means a person who has filed a pleading, petition or response to petition in the proceeding, and includes,

(a) in a proceeding referred to in Part 18, a person who has filed a notice of interest under that Part, and

(b) in a proceeding referred to in Rule 21-5, a person who has filed a notice of interest referred to in Rule 21-5 (47);

"party's lawyer", in relation to a party to a proceeding, means the lawyer representing the party in that proceeding;

"petition proceeding" means a proceeding started by a petition;

"plaintiff" means a person who starts an action;

"pleading" means a notice of civil claim, a response to civil claim, a reply, a counterclaim, a response to counterclaim, a third party notice or a response to third party notice;

"pleading period", in relation to an action, means the period for filing a responding pleading to the pleading that was most recently filed in the action;

"proceeding" means an action, a petition proceeding and a requisition proceeding, and includes any other suit, cause, matter, stated case under Rule 18-2 or appeal;

"receiver" includes receiver-manager;

"registrar" includes a district registrar and a deputy district registrar;

"registrar's hearing" means an inquiry, an assessment, an accounting, a review of a bill, an examination of an agreement or an assessment of a bill of costs;

"registry", in relation to a proceeding, means the office of the court in which the proceeding is being conducted;

"relief" includes remedy;

"requisition proceeding" means a proceeding started by a requisition;

"responding pleading" means a response to civil claim, a response to counterclaim, a response to third party notice, a reply or any other document filed in response to an originating pleading;

"serve", in relation to a document, means

(a) serve by ordinary service in accordance with Rule 4-2 (2), or

(b) if the document is one referred to in Rule 4-3 (1), serve by personal service in accordance with Rule 4-3 (2);

"special referee" means any person, other than a master or registrar, who is appointed by the court under these Supreme Court Civil Rules or under an enactment to conduct an assessment, inquiry or accounting;

"style of proceeding" means, in relation to a document that is or is to be filed in a proceeding, that portion of the document that

(a) sets out the registry number attributed to the proceeding and the court and registry in which the proceeding is being or is to be conducted, and

(b) identifies the parties to the proceeding or, if there is no person named as a defendant, the subject matter of the proceeding;

"third party" means a person referred to in Rule 3-5 (1) against whom a third party claim is pursued;

"witness list" means a list referred to in Rule 7-4 (1);

"writ of execution" includes a writ of seizure and sale, a writ of sequestration, a writ of possession and a writ of delivery and any subsequent writ that issues to give effect to these writs, and also includes a warrant or other process of execution issued out of any court in British Columbia that has jurisdiction to grant and issue that process.

[am. B.C. Regs. 119/2010, Sch. A, s.1; 18/2013.]

Interpretation Act and Supreme Court Act

(2)Unless a contrary intention appears, the Interpretation Act and the interpretation section of the Supreme Court Act apply to these Supreme Court Civil Rules.

Titles and headings

(3)The titles and headings of these Supreme Court Civil Rules are for convenience only and are not intended as a guide to interpretation.

Reference aids

(4)Italicized words in square brackets are not part of these Supreme Court Civil Rules, are included editorially for convenience of reference only and are not to be used in interpreting the rules or any provision to which the words refer.

Rule 1-2 — Citation and Application

Citation

(1)These Supreme Court Civil Rules may be cited as the "Supreme Court Civil Rules" and are included within any reference to the "Rules of Court" or the "Supreme Court Rules".

Application

(2)These Supreme Court Civil Rules govern every proceeding in the Supreme Court unless

(a) the proceeding is a family law case, in which case the Supreme Court Family Rules apply, or

(b) an enactment otherwise provides.

Waiver of rule by agreement

(3)On application, and if all parties to a proceeding agree, the court may order that any provision of these Supreme Court Civil Rules does not apply to the proceeding.

Petitions and applications

(4)If an enactment, other than these Supreme Court Civil Rules or the Supreme Court Family Rules, authorizes an application to the court or to a judge, the application must be

(a) by petition under Rule 16-1 or requisition under Rule 17-1, or

(b) if the application is for an order other than a final order, by application under Part 8,

whether or not the enactment provides for the mode of application.

[am. B.C. Reg. 119/2010, Sch. A, s. 2.]

Enactments of Canada

(5)Subrule (4) does not apply if a particular mode of application is required by an enactment of Canada.

Rule 1-3 — Object of Rules

Object

(1)The object of these Supreme Court Civil Rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits.

Proportionality

(2)Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are proportionate to

(a) the amount involved in the proceeding,

(b) the importance of the issues in dispute, and

(c) the complexity of the proceeding.

Part 2 — How To Make A Claim

Rule 2-1 — Choosing the Correct Form of Proceeding

Commencing proceedings by notice of civil claim

(1)Unless an enactment or these Supreme Court Civil Rules otherwise provide, every proceeding must be started by the filing of a notice of civil claim under Part 3.

Commencing proceedings by petition or requisition

(2)To start a proceeding in the following circumstances, a person must file a petition or, if Rule 17-1 applies, a requisition:

(a) the person starting the proceeding is the only person who is interested in the relief claimed, or there is no person against whom relief is sought;

(b) the proceeding is brought in respect of an application that is authorized by an enactment to be made to the court;

(c) the sole or principal question at issue is alleged to be one of construction of an enactment, will, deed, oral or written contract or other document;

(d) the relief, advice or direction sought relates to a question arising in the administration of an estate of a deceased person or the execution of a trust, or the performance of an act by a person in the person's capacity as executor, administrator or trustee, or the determination of the persons entitled as creditors or otherwise to the estate or trust property;

(e) the relief, advice or direction sought relates to the maintenance, guardianship or property of infants or other persons under disability;

(f) the relief sought is for payment of funds into or out of court;

(g) the relief sought relates to land and is for

(i)   a declaration of a beneficial interest in or a charge on land and of the character and extent of the interest or charge,

(ii)   a declaration that settles the priority between interests or charges,

(iii)   an order that cancels a certificate of title or making a title subject to an interest or charge, or

(iv)   an order of partition or sale;

(h) the relief, advice or direction sought relates to the determination of a claim of solicitor and client privilege.

Procedures applicable to particular proceedings

(3)Without limiting subrules (1) and (2), the following provisions apply to the following applications and proceedings:

(a) Rule 8-3 applies to an application for an order by consent;

(b) Rule 8-4 applies to an application of which notice need not be given;

(c) Rule 10-3 applies to a proceeding brought to obtain relief by way of interpleader or in which such relief is sought;

(c.1) Rule 14-1 (21) applies to an appointment for a review of a bill or an examination of an agreement under the Legal Profession Act;

(d) Rule 15-1 applies to a fast track action;

(e) Rule 18-2 applies to a stated case;

(f) Rule 18-3 applies to an appeal that is authorized, by an enactment, to be made to the court;

(g) Rule 19-3 applies to a proceeding to register a reciprocally enforceable judgment within the meaning of Rule 19-3;

(h) Rule 21-1 applies to a proceeding brought in rem against a ship or other property;

(i) Rule 21-4 applies to a proceeding in relation to the administration of an estate if the proceeding is contentious;

(j) Rule 21-5 applies to a proceeding in relation to the administration of an estate if the proceeding is not contentious;

(k) Rule 21-7 applies to a proceeding for foreclosure of the equitable right to redeem mortgaged property, for redemption or for cancellation of an agreement for sale.

[am. B.C. Reg. 119/2010, Sch. A, s. 3.]

Part 3 — Proceedings Started By Filing A Notice of Civil Claim

Rule 3-1 — Notice of Civil Claim

Notice of civil claim

(1)To start a proceeding under this Part, a person must file a notice of civil claim in Form 1.

Contents of notice of civil claim

(2)A notice of civil claim must do the following:

(a) set out a concise statement of the material facts giving rise to the claim;

(b) set out the relief sought by the plaintiff against each named defendant;

(c) set out a concise summary of the legal basis for the relief sought;

(d) set out the proposed place of trial;

(e) if the plaintiff sues or a defendant is sued in a representative capacity, show in what capacity the plaintiff sues or the defendant is sued;

(f) provide the data collection information required in the appendix to the form;

(g) otherwise comply with Rule 3-7.

Rule 3-2 — Serving and Renewing the Notice of Civil Claim

Renewal of original notice of civil claim

(1)An original notice of civil claim does not remain in force for more than 12 months, but if a defendant named in a notice of civil claim has not been served, the court, on the application of the plaintiff made before or after the expiration of the 12 months, may order that the original notice of civil claim be renewed for a period of not more than 12 months.

Further renewal of notice of civil claim

(2)If a renewed notice of civil claim has not been served on a defendant named in the notice of civil claim, the court, on the application of the plaintiff made during the currency of the renewed notice of civil claim, may order the renewal of the notice of civil claim for a further period of not more than 12 months.

When renewal period begins

(3)Unless the court otherwise orders, a renewal period ordered under subrule (1) or (2) begins on the date of the order.

After renewal of notice of civil claim

(4)Unless the court otherwise orders, a copy of each order granting renewal of a notice of civil claim must be served with the renewed notice of civil claim, and the renewed notice of civil claim remains in force and is available to prevent the operation of any statutory limitation and for all other purposes.

Rule 3-3 — Responding to a Notice of Civil Claim

Filing a response to civil claim

(1)To respond to a notice of civil claim, a person must, within the time for response to civil claim referred to in subrule (3),

(a) file a response to civil claim in Form 2, and

(b) serve a copy of the filed response to civil claim on the plaintiff.

Contents of response to civil claim

(2)A response to civil claim under subrule (1)

(a) must

(i)   indicate, for each fact set out in Part 1 of the notice of civil claim, whether that fact is

(A)  admitted,

(B)  denied, or

(C)  outside the knowledge of the defendant,

(ii)   for any fact set out in Part 1 of the notice of civil claim that is denied, concisely set out the defendant's version of that fact, and

(iii)   set out, in a concise statement, any additional material facts that the defendant believes relate to the matters raised by the notice of civil claim,

(b) must indicate whether the defendant consents to, opposes or takes no position on the granting of the relief sought against that defendant in the notice of civil claim,

(c) must, if the defendant opposes any of the relief referred to in paragraph (b) of this subrule, set out a concise summary of the legal basis for that opposition, and

(d) must otherwise comply with Rule 3-7.

Period for filing response to civil claim

(3)Unless the court otherwise orders, to respond to a notice of civil claim, a response to civil claim under this rule must be filed and served within the following period:

(a) in the case of a notice of civil claim that is served on a person,

(i)   if the person was served anywhere in Canada, within 21 days after that service,

(ii)   if the person was served anywhere in the United States of America, within 35 days after that service, or

(iii)   if the person was served anywhere else, within 49 days after that service;

(b) in the case of a notice of civil claim that is served on a ship or property under Rule 21-1 (5), within 21 days after service.

[am. B.C. Regs. 95/2011, Sch. A, s. 1; 112/2012, Sch. A, s. 1.]

Payment into court when tender pleaded

(4)If the response to civil claim alleges a defence of tender or tender of money by way of amends, the defendant must pay into court the amount alleged to have been tendered, failing which the defence of tender or tender of money by way of amends may be struck out.

Costs if defence of tender successful

(5)If, on a judgment, costs are awarded to a defendant who has paid into court under this rule, the assessed costs must be paid to the defendant out of the money in court.

Application for money paid into court

(6)A plaintiff may, before trial, apply to take out money paid into court under this rule, and the court may deal with costs of the action as if the defence of tender had succeeded.

Tender in defamation action

(7)If in an action for defamation the defendant is permitted to allege the plaintiff failed to mitigate his or her damages, the defendant may also allege tender of money by way of amends, whether the tender was made before or after action was started.

Consequence if fact not responded to

(8)An allegation of fact in a notice of civil claim, if not admitted, denied or stated to be outside the knowledge of the defendant, is deemed to be outside the knowledge of the defendant.

Rule 3-4 — Counterclaim

Counterclaim

(1)A defendant in an action who wishes to pursue a claim within that action against the plaintiff must, within the time set out for the filing of a response to civil claim under Rule 3-3 (3), file a counterclaim in Form 3 that accords with Rule 3-7.

Counterclaim against another person

(2)If the counterclaim referred to in subrule (1) raises questions between the defendant bringing the counterclaim and a person other than the plaintiff, the defendant may join that other person as a party against whom the counterclaim is brought.

Identification of parties

(3)In a counterclaim,

(a) the plaintiff against whom the counterclaim is brought must be identified as the "plaintiff",

(b) each defendant against whom the counterclaim is brought must, along with the defendant bringing the counterclaim, be identified as a "defendant", and

(c) any other person against whom the counterclaim is brought must be identified as a "defendant by way of counterclaim".

Service of counterclaim

(4)Unless the court otherwise orders, a defendant who files a counterclaim

(a) must serve a copy of the filed counterclaim on all parties of record within the time set out in Rule 3-3 (3) for the filing and service of a response to civil claim, and

(b) if the counterclaim is brought against a person who is not yet a party of record to the action, must serve that defendant by way of counterclaim by personal service with

(i)   a copy of the filed counterclaim, and

(ii)   a copy of the filed notice of civil claim

within 60 days after the date on which the counterclaim was filed.

Response to counterclaim

(5)A person against whom a counterclaim is brought must, if that person wishes to dispute the counterclaim,

(a) file a response to counterclaim in Form 4 that accords with Rule 3-7, and

(b) serve a copy of that filed response to counterclaim on all parties of record.

Application of rules

(6)Except to the extent that this rule otherwise provides, Rules 3-1, 3-3 and 3-8 apply to a counterclaim as if it were a notice of civil claim and to a response to counterclaim as if it were a response to civil claim.

If action stayed or discontinued

(7)Without limiting subrule (6) of this rule, a defendant's counterclaim in an action may proceed even though the plaintiff's claim in the action has been stayed, discontinued or dismissed.

Separate trial of counterclaim

(7.1)If, on the application of a party against whom a counterclaim is made, it appears that the subject matter of the counterclaim ought to be dealt with separately, the court may order that the counterclaim be struck out or tried separately or may make any other order the court considers will further the object of these Supreme Court Civil Rules.

[en. B.C. Reg. 119/2010, Sch. A, s. 4.]

Judgment

(8)If a set-off or counterclaim of a defendant establishes a defence to the plaintiff's claim, the court may grant judgment in favour of the defendant for any balance in the defendant's favour or for other relief as the court considers appropriate.

Rule 3-5 — Third Party Claims

Making a third party claim

(1)A party against whom relief is sought in an action may, if that party is not a plaintiff in the action, pursue a third party claim against any person if the party alleges that

(a) the party is entitled to contribution or indemnity from the person in relation to any relief that is being sought against the party in the action,

(b) the party is entitled to relief against the person and that relief relates to or is connected with the subject matter of the action, or

(c) a question or issue between the party and the person

(i)   is substantially the same as a question or issue that relates to or is connected with

(A)  relief claimed in the action, or

(B)  the subject matter of the action, and

(ii)   should properly be determined in the action.

Plaintiff as defendant to counterclaim

(1.1)Subrule (1) does not preclude a plaintiff from pursuing a third party claim in his or her capacity as a defendant to a counterclaim.

[en. B.C. Reg. 119/2010, Sch. A, s. 5 (a).]

Third party need not be party to original action

(2)A third party claim may be pursued against a person, whether or not that person is a party to the action.

Pursuing a third party claim

(3)Subject to subrule (4), a party wishing to pursue a third party claim referred to in subrule (1) must file a third party notice in Form 5 that accords with Rule 3-7.

When leave is required

(4)A party may file a third party notice

(a) at any time with leave of the court, or

(b) without leave of the court, within 42 days after being served with the notice of civil claim or counterclaim in which the relief referred to in subrule (1) is claimed.

Court may consider case plan order

(5)If the court makes an order under subrule (4) (a) in an action in which a case plan order has been made, the court may

(a) consider if and to what extent the case plan order is appropriate given the third party notice, and

(b) amend the case plan order, if necessary, for that purpose.

Application for leave

(6)Notice of an application for leave under subrule (4) (a) must be served on

(a) the third party, and

(b) all parties of record.

Service

(7)Unless the court otherwise orders, a party who files a third party notice must,

(a) within 60 days after the date on which the third party notice is filed, serve on the third party

(i)   a copy of the filed third party notice, and

(ii)   if the third party is not a party of record at the time of service, a copy of any filed pleading that has previously been served by any party to the action, and

(b) promptly after the date on which the third party notice is filed, serve a copy of the filed third party notice on all parties of record.

Application to set aside third party notice

(8)At any time, on application, the court may set aside a third party notice.

Response to third party notice

(9)Subject to subrule (10), if a third party wishes to dispute the third party notice, the third party must

(a) file a response to third party notice in Form 6 that accords with Rule 3-7, and

(b) serve a copy of the filed response to third party notice on all parties of record.

When response to third party notice not required

(10)A third party who is a defendant in the action need not file or serve a response to third party notice and is deemed to deny the facts alleged in the third party notice and to rely on the facts pleaded in that party's response to civil claim if all of the following apply:

(a) the third party notice contains no claim other than a claim for contribution or indemnity under the Negligence Act;

(b) the third party has filed and served a response to civil claim to the plaintiff's notice of civil claim;

(c) the third party intends, in defending against the third party notice, to rely on the facts set out in the third party's response to civil claim and on no other facts.

Application of rules

(11)Except to the extent that this rule otherwise provides, Rules 3-1 and 3-3 apply to a third party notice as if it were a notice of civil claim and to a response to third party notice as if it were a response to civil claim.

[am. B.C. Reg. 119/2010, Sch. A, s. 5 (b).]

Response to civil claim

(12)A third party who has filed a response to third party notice may, within the period for filing and serving a response to the third party notice, file and serve on all parties of record a response to civil claim to the plaintiff's notice of civil claim, raising any defence open to a defendant.

Application for directions

(13)A party affected by a third party procedure may apply to the court for directions.

Powers of court

(14)The court may impose terms on any third party procedure to limit or avoid any prejudice or unnecessary delay that might otherwise be suffered by a party as a result of that third party procedure.

Third party issues

(15)An issue between the party filing the third party notice and the third party may be tried at the time the court may direct.

Default of response to third party notice

(16)If a third party has not filed a response to third party notice and the time for filing the response to third party notice has expired, the party who filed the third party notice may apply for judgment in default of response to third party notice against the third party and notice of the application must be served on each other party of record.

[en. B.C. Reg. 119/2010, Sch. A, s. 5 (a).]

Relief

(17)On an application under subrule (16), the court may grant any or all of the relief claimed in the third party notice.

[en. B.C. Reg. 119/2010, Sch. A, s. 5 (a).]

Rule 3-6 — Reply

Service of reply

(1)A plaintiff may, within 7 days after the response to civil claim has been served, file and serve on all parties of record a reply in Form 7 that accords with Rule 3-7.

Pleading subsequent to reply

(2)No pleading subsequent to a reply may be filed or served without leave of the court.

Failure to reply

(3)If no reply to a response to civil claim is served, a joinder of issue on that response to civil claim is implied.

No joinder of issue

(4)A reply that is a simple joinder of issue must not be filed or served.

Rule 3-7 — Pleadings Generally

Content of Pleadings

Pleading must not contain evidence

(1)A pleading must not contain the evidence by which the facts alleged in it are to be proved.

Documents and conversations

(2)The effect of any document or the purport of any conversation referred to in a pleading, if material, must be stated briefly and the precise words of the documents or conversation must not be stated, except insofar as those words are themselves material.

When presumed facts need not be pleaded

(3)A party need not plead a fact if

(a) the fact is presumed by law to be true, or

(b) the burden of disproving the fact lies on the other party.

When performance of a condition precedent need not be pleaded

(4)A party need not plead the performance of a condition precedent necessary for the party's case unless the other party has specifically denied it in the other party's pleadings.

Matters arising since start of proceeding

(5)A party may plead a matter that has arisen since the start of the proceeding.

Inconsistent allegations

(6)A party must not plead an allegation of fact or a new ground or claim inconsistent with the party's previous pleading.

Alternative allegations

(7)Subrule (6) does not affect the right of a party to make allegations in the alternative or to amend or apply for leave to amend a pleading.

Objection in point of law

(8)A party may raise in a pleading an objection in point of law.

Pleading conclusions of law

(9)Conclusions of law must not be pleaded unless the material facts supporting them are pleaded.

Status admitted

(10)Unless the incorporation of a corporate party or the office or status of a party is specifically denied, it is deemed to be admitted.

Set-off or counterclaim

(11)A defendant in an action may set off or set up by way of counterclaim any right or claim, whether the set-off or counterclaim is for damages or not, so as to enable the court to pronounce a final judgment on all claims in the same action.

Pleading after the notice of civil claim

(12)In a pleading subsequent to a notice of civil claim, a party must plead specifically any matter of fact or point of law that

(a) the party alleges makes a claim or defence of the opposite party not maintainable,

(b) if not specifically pleaded, might take the other party by surprise, or

(c) raises issues of fact not arising out of the preceding pleading.

General relief

(13)A pleading need not ask for general or other relief.

General damages must not be pleaded

(14)If general damages are claimed, the amount of the general damages claimed must not be stated in any pleading.

Substance to be answered

(15)If a party in a pleading denies an allegation of fact in the previous pleading of the opposite party, the party must not do so evasively but must answer the point of substance.

Denial of contract

(16)If a contract, promise or agreement is alleged in a pleading, a bare denial of it by the opposite party is to be construed only as a denial of fact of the express contract, promise or agreement alleged, or of the matters of fact from which it may be implied by law, and not as a denial of the legality or sufficiency in law of that contract, promise or agreement.

Allegation of malice

(17)It is sufficient to allege malice, fraudulent intention, knowledge or other condition of the mind of a person as a fact, without setting out the circumstances from which it is to be inferred.

Particulars

When particulars necessary

(18)If the party pleading relies on misrepresentation, fraud, breach of trust, wilful default or undue influence, or if particulars may be necessary, full particulars, with dates and items if applicable, must be stated in the pleading.

Lengthy particulars

(19)If the particulars required under subrule (18) of debt, expenses or damages are lengthy, the party pleading may refer to this fact and, instead of pleading the particulars, must serve the particulars in a separate document either before or with the pleading.

Further particulars

(20)Particulars need only be pleaded to the extent that they are known at the date of pleading, but further particulars

(a) may be served after they become known, and

(b) must be served within 10 days after a demand is made in writing.

Particulars in libel or slander

(21)In an action for libel or slander,

(a) if the plaintiff alleges that the words or matter complained of were used in a derogatory sense other than their ordinary meaning, the plaintiff must give particulars of the facts and matters on which the plaintiff relies in support of that sense, and

(b) if the defendant alleges that, insofar as the words complained of consist of statements of fact, they are true in substance and in fact, and that insofar as they consist of expressions of opinion, they are fair comment on a matter of public interest, the defendant must give particulars stating which of the words complained of the defendant alleges are statements of fact and of the facts and matters relied on in support of the allegation that the words are true.

Order for particulars

(22)The court may order a party to serve further and better particulars of a matter stated in a pleading.

Demand for particulars

(23)Before applying to the court for particulars, a party must demand them in writing from the other party.

Demand for particulars not a stay of proceedings

(24)A demand for particulars does not operate as a stay of proceedings or give an extension of time, but a party may apply for an extension of time for serving a responding pleading on the ground that the party cannot answer the originating pleading until particulars are provided.

Rule 3-8 — Default Judgment

Default in filing and serving a response to civil claim

(1)A plaintiff may proceed against a defendant under this rule if

(a) that defendant has not filed and served a response to civil claim, and

(b) the period for filing and serving the response to civil claim has expired.

[am. B.C. Reg. 119/2010, Sch. A, s. 6.]

Filings required

(2)A plaintiff who wishes to proceed against a defendant under this rule must file

(a) proof of service of the notice of civil claim on that defendant,

(b) proof that the defendant has failed to serve a response to civil claim,

(c) a requisition endorsed by a registrar with a notation that no response to civil claim has been filed by that defendant, and

(d) a draft default judgment order in Form 8.

Claims for Which Default Judgment Is Available

Claim for specified or ascertainable amount

(3)If the plaintiff's action against a defendant includes a claim for recovery of money in a specified or ascertainable amount, the plaintiff may

(a) on that claim, obtain judgment in Form 8 against that defendant for an amount not exceeding the total of

(i)   the amount claimed,

(ii)   the interest, if any, to which the plaintiff is entitled, and

(iii)   costs, and

(b) proceed against one or more of the defendants, including the defendant against whom judgment was obtained, on any other claims brought in the action that are not barred as a result of the judgment referred to in paragraph (a).

[en. B.C. Reg. 95/2011, Sch. A, s. 2 (a).]

Interest

(4)For the purpose of subrule (3), a claim may be treated as a claim for recovery of money in a specified or ascertainable amount even though

(a) part of the claim is for interest accruing after the date of the notice of civil claim, and

(b) the interest is to be computed from the date of the notice of civil claim to the date that judgment is granted.

[en. B.C. Reg. 95/2011, Sch. A, s. 2 (a).]

Claim for damages to be assessed

(5)If the plaintiff's action against a defendant includes a claim for damages in an amount that is neither specified nor ascertainable, the plaintiff may

(a) on that claim, obtain judgment in Form 8 against that defendant for damages to be assessed and costs, and

(b) proceed against one or more of the defendants, including the defendant against whom judgment was obtained, on any other claims brought in the action that are not barred as a result of the judgment referred to in paragraph (a).

[en. B.C. Reg. 95/2011, Sch. A, s. 2 (a).]

Claim for detention of goods

(6)If the plaintiff's action against a defendant includes a claim for the detention of goods, the plaintiff may

(a) on that claim, obtain

(i)   judgment in Form 8 against that defendant for the delivery of the goods, or their value to be assessed and costs, or

(ii)   judgment in Form 8 against that defendant for the value of the goods to be assessed and costs, and

(b) proceed against one or more of the defendants, including the defendant against whom judgment was obtained, on any other claims brought in the action that are not barred as a result of the judgment referred to in paragraph (a).

[en. B.C. Reg. 95/2011, Sch. A, s. 2 (a).]

Repealed

(7)Repealed. [B.C. Reg. 95/2011, Sch. A, s. 2 (a).]

Application to judge or master

(8)If a registrar is not certain that a plaintiff's claim against a defendant relates to a claim within subrule (3), (5) or (6), the registrar may refuse to grant judgment and the plaintiff may apply to a judge or master for default judgment.

[am. B.C. Reg. 95/2011, Sch. A, s. 2 (b).]

Judgment in other actions

(9)If the plaintiff's claim against a defendant is not one referred to in subrule (3), (5) or (6), the plaintiff may apply for judgment against the defendant under subrule (10).

[en. B.C. Reg. 95/2011, Sch. A, s. 2 (a).]

Application for judgment

(10)The following apply to an application under subrule (9):

(a) the application may be brought under Rule 8-4;

(b) the application must be supported by an affidavit setting out the facts that verify the claim and stating that the person swearing the affidavit knows of no fact that would constitute a defence to the claim except as to amount;

(c) if the action in which the application is made is brought against several defendants, the court may

(i)   impose terms on any judgment for the plaintiff, including a stay of execution of the judgment until the trial of the action against the other defendants, or

(ii)   adjourn the application until the trial of the action against the other defendants.

[en. B.C. Reg. 95/2011, Sch. A, s. 2 (a).]

Court may set aside or vary default judgment

(11)The court may set aside or vary any judgment granted under this rule.

Assessments

Method of assessment

(12)Subject to subrule (13), if a plaintiff has obtained judgment for damages to be assessed or value to be assessed,

(a) the plaintiff may set the assessment down for trial, and

(b) if the assessment is set for trial, unless the court otherwise orders, the assessment must be tried at the same time as the trial of the action or issues against any other defendant.

Alternative methods of assessment

(13)If a plaintiff has obtained judgment under subrule (5) or (6), the plaintiff may, instead of proceeding to trial to assess the damages or the value of the goods, apply to the court, and, on that application, the court may

(a) assess the damages or value of the goods summarily on affidavit or other evidence,

(b) order an assessment, an inquiry or an accounting,

(c) give directions as to the trial or hearing of the assessment or determination of value, or

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

[am. B.C. Reg. 95/2011, Sch. A, s. 2 (c).]

Part 4 — Service

Rule 4-1 — Address for Service

Party must have address for service

(1)Each party of record to a proceeding must,

(a) if the party is represented by a lawyer in the proceeding, have, as the party's address for service, an accessible address that is the office address of that lawyer, or

(b) if the party is not represented by a lawyer in the proceeding,

(i)   have, as the party's address for service, an accessible address within 30 kilometres of the registry, or

(ii)   if the party does not have an accessible address within 30 kilometres of the registry, have, as the party's addresses for service, both

(A)  an accessible address, and

(B)  a postal address in British Columbia, a fax number or an e-mail address.

Additional addresses for service

(2)A party may have, in addition to the address or addresses for service the party is required to have under subrule (1), one or more of the following as addresses for service:

(a) a postal address;

(b) a fax number;

(c) an e-mail address.

Change of address for service

(3)A party of record may change his or her address or addresses for service by filing and serving on the other parties of record a notice of address for service in Form 9 that shows, for the party,

(a) the address or addresses for service required under subrule (1), and

(b) any additional addresses for service referred to in subrule (2) that the party wishes to include.

Rule 4-2 — Ordinary Service

Documents normally to be served by ordinary service

(1)Subject to Rule 4-3 (1) and unless the court otherwise orders, documents to be served by a party under these Supreme Court Civil Rules may be served by ordinary service.

How to serve documents by ordinary service

(2)Unless the court otherwise orders, ordinary service of a document is to be effected in any of the following ways on a person who has provided an address for service in the proceeding:

(a) by leaving the document at the person's address for service;

(b) by mailing the document by ordinary mail to the person's address for service;

(c) subject to subrule (5) of this rule, if a fax number is provided as one of the person's addresses for service, by faxing the document to that fax number together with a fax cover sheet;

(d) if an e-mail address is provided as one of the person's addresses for service, by e-mailing the document to that e-mail address.

When service by delivery is deemed to be completed

(3)A document served by leaving it at a person's address for service is deemed to be served on the person as follows:

(a) if the document is left at the address for service at or before 4 p.m. on a day that is not a Saturday or holiday, the document is deemed to be served on the day of service;

(b) if the document is left at the address for service on a Saturday or holiday or after 4 p.m. on any other day, the document is deemed to be served on the next day that is not a Saturday or holiday.

When service by mail is deemed to be completed

(4)A document sent for service by ordinary mail under this rule is deemed to be served one week later on the same day of the week as the day of mailing or, if that deemed day of service is a Saturday or holiday, on the next day that is not a Saturday or holiday.

When documents may be served by fax

(5)A document may be served by fax as follows:

(a) if the document, including the fax cover sheet, is less than 30 pages, the document may be served by fax at any time;

(b) if the document, including the fax cover sheet, is 30 pages or more, the document may be served by fax if it is transmitted

(i)   between 5 p.m. and the following 8 a.m., or

(ii)   at another time if the person receiving the document agreed to that time before service.

When service by fax or e-mail is deemed to be completed

(6)A document transmitted for service by fax or e-mail under this rule is deemed to be served as follows:

(a) if the document is transmitted before 4 p.m. on a day that is not a Saturday or holiday, the document is deemed to be served on the day of transmission;

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

If no address for service given

(7)If, despite these Supreme Court Civil Rules, a party of record on whom a document is to be served has no address for service, and if these Supreme Court Civil Rules do not specify that the document must be served by personal service on the party,

(a) the document may be served by mailing a copy of the document by ordinary mail to

(i)   the party's lawyer, or

(ii)   if the party has no lawyer representing the party in the proceeding, to the party's last known address, and

(b) subrule (4) applies.

Rule 4-3 — Personal Service

When documents must be served by personal service

(1)Unless the court otherwise orders or these Supreme Court Civil Rules otherwise provide, the following documents must be served by personal service in accordance with subrule (2):

(a) a notice of civil claim;

(b) a petition;

(c) a counterclaim if that counterclaim is being served on a person who is not a party of record;

(d) a third party notice if that third party notice is being served on a person who is not a party of record;

(e) a subpoena to a witness who is not a party of record;

(f) a subpoena to a debtor under Rule 13-3;

(g) a citation referred to in Rule 21-5;

(h) a notice of intention to withdraw under Rule 22-6 if that notice is being served on the person who was being represented by the lawyer who filed the notice;

(i) a notice of application under Rule 22-8 for an order for contempt;

(j) any document not mentioned in paragraphs (a) to (i) of this subrule that is to be served on a person who is not a party of record to the proceeding or who has not provided an address for service in the proceeding under Rule 8-1 (11);

(k) any other document that under these Supreme Court Civil Rules is to be served by personal service.

How to serve documents by personal service

(2)Unless the court otherwise orders, personal service of a document is to be effected as follows:

(a) on an individual, by leaving a copy of the document with him or her;

(b) on a corporation,

(i)   by leaving a copy of the document with the president, chair, mayor or other chief officer of the corporation,

(ii)   by leaving a copy of the document with the city clerk or municipal clerk,

(iii)   by leaving a copy of the document with the manager, cashier, superintendent, treasurer, secretary, clerk or agent of the corporation or of any branch or agency of the corporation in British Columbia, or

(iv)   in the manner provided by the Business Corporations Act or any enactment relating to the service of court documents,

and, for the purpose of this paragraph, if the chief place of business of the corporation is outside British Columbia, every person who, within British Columbia, transacts or carries on any of the business of, or any business for, that corporation is deemed to be an agent of the corporation;

(c) on an unincorporated association, other than a trade union, by leaving a copy of the document with any officer of the association;

(d) on a trade union, by leaving a copy of the document with any officer of the trade union or with a business agent;

(e) on an infant, in the manner provided by the Infants Act;

(f) on a mentally incompetent person, by leaving a copy of the document

(i)   with the person's committee or, if there is no committee, with the person with whom the mentally incompetent person resides or in whose care he or she is or with the person appointed by the court to be served in the mentally incompetent person's place, and

(ii)   with the Public Guardian and Trustee,

and in no case is it necessary to show the original document;

(g) on a principal referred to in subrule (3), in accordance with subrules (3) to (5);

(h) on the Attorney General, in accordance with subrule (6).

Agent may be served

(3)If an agent residing or carrying on business in British Columbia enters into a contract, in British Columbia, on behalf of a principal who resides outside British Columbia, and a proceeding is brought that relates to or arises out of that contract, a pleading or other document in that proceeding may be served on the agent with leave of the court.

Court may grant leave

(4)The court may make an order granting leave under subrule (3) before the agent's authority or the agent's business relations with the principal have been determined.

Notice to principal

(5)Promptly after a pleading or other document is served on an agent under subrule (3), the party serving the pleading or other document must send, by registered mail to the principal at the principal's address outside British Columbia,

(a) a copy of the entered order giving leave for that service, and

(b) a copy of the filed pleading or other document.

Service on Attorney General

(6)A document to be served on the Attorney General must be served at the Ministry of Justice in the City of Victoria, and is sufficiently served if it is left during office hours with any lawyer on the staff of the Attorney General at Victoria or mailed by registered mail to the Deputy Attorney General at Victoria.

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

When personal service is deemed to be completed

(7)A document served by personal service is deemed to be served as follows:

(a) if the document is served at or before 4 p.m. on a day that is not a Saturday or holiday, the document is deemed to be served on the day of service;

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

Date of deemed service

(8)If an originating pleading or petition has not been served on a person, but the person files a responding pleading or response to petition or attends at the trial or at the hearing of the petition, the originating pleading or petition is deemed to have been served on that person on the date the person files or attends.

Rule 4-4 — Alternative Methods of Service

Alternative service methods

(1)If it is impracticable to serve a document by personal service or if the person to be served by personal service

(a) cannot be found after a diligent search, or

(b) is evading service of the documents,

the court may, on application without notice, make an order for substituted service granting permission to use an alternative method of service.

[am. B. C. Reg. 119/2010, Sch. A, s. 7 (a).]

If an alternative service method is permitted

(2)If a document is to be served by an alternative method permitted under subrule (1), a copy of the entered substituted service order that granted permission to use that alternative method must be served with the document unless

(a) the court otherwise orders, or

(b) the alternative method of service permitted under subrule (1) is service by advertisement.

[am. B. C. Reg. 119/2010, Sch. A, s. 7 (b).]

Service by advertisement

(3)If, under subrule (1), the court permits a document to be served by advertisement, the advertisement must be in Form 10.

Rule 4-5 — Service outside British Columbia

Service outside British Columbia without leave

(1)An originating pleading, petition or other document may be served on a person outside British Columbia without leave in any of the circumstances enumerated in section 10 of the Court Jurisdiction and Proceedings Transfer Act.

[am. B.C. Reg. 119/2010, Sch. A, s.8.]

Required endorsement

(2)A copy of an originating pleading or petition served outside British Columbia without leave must state, by endorsement in Form 11, the circumstances enumerated in section 10 of the Court Jurisdiction and Proceedings Transfer Act on which it is claimed that service is permitted under this rule.

Application for leave to serve outside the jurisdiction

(3)In any case not provided for in subrule (1), leave of the court must be obtained before an originating pleading, petition or other document may be served outside British Columbia, and the court may grant such leave on an application referred to in subrule (4).

[am. B.C. Reg. 119/2010, Sch. A, s.8.]

Applications may be made without notice

(4)An application for leave to serve a person outside British Columbia

(a) may be made without notice in accordance with Rule 8-1 (2) (b), and

(b) must be supported by an affidavit or other evidence showing

(i)   in what place or country that person is or probably may be found, and

(ii)   the grounds on which the application is made.

Service of order and related documents

(5)If an order is made granting leave to serve an originating pleading, petition or other document outside British Columbia, the following documents must be served with that originating pleading or other document:

(a) a copy of the filed notice of application or requisition for leave to serve;

(b) a copy of all filed affidavits in support of the application;

(c) a copy of the entered order granting leave to serve.

[am. B.C. Reg. 119/2010, Sch. A, s.8.]

If service without leave valid

(6)This rule does not invalidate service of a document outside British Columbia without leave of the court if the document could have been validly served apart from this rule.

Contract containing terms for service

(7)Despite this rule, the parties to a contract may agree

(a) that the court will have jurisdiction to hear a proceeding in respect of the contract, and

(b) that a document in the proceeding may be served

(i)   at any place, within or outside British Columbia,

(ii)   on any party,

(iii)   on any person on behalf of any party, or

(iv)   in any manner

specified or indicated in the contract.

Contract does not invalidate effective service

(8)Service of a document in accordance with a contract referred to in subrule (7) is effective service, but no contractual stipulation as to service of a document invalidates service that would otherwise be effective under these Supreme Court Civil Rules.

Definition

(9)In subrules (10) to (13), "Convention" means the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, signed at the Hague on November 15, 1965.

Manner of service abroad

(10)A document may be served outside British Columbia

(a) in a manner provided by these Supreme Court Civil Rules for service in British Columbia,

(b) in a manner provided by the law of the place where service is made if, by that manner of service, the document could reasonably be expected to come to the notice of the person to be served, or

(c) in a state that is a contracting state under the Convention, in a manner provided by or permitted under the Convention.

Proof of service abroad

(11)Service of a document outside British Columbia may be proved

(a) in a manner provided by these Supreme Court Civil Rules for proof of service in British Columbia,

(b) in the manner provided for proof of service by the law of the place where service was made regardless of the manner under subrule (10) by which service was effected, or

(c) in accordance with the Convention, if service was effected under subrule (10) (c).

Forms

(12)If service is to be made in accordance with Article 5 of the Convention, Forms 12 and 13 must be used.

Certificate

(13)If an authority has, in accordance with Article 6 of the Convention, completed a certificate in Form 14, the certificate is evidence of the facts stated in it.

Rule 4-6 — Proving Service

Proof of service

(1)Service of a document is proved as follows:

(a) service on a person of an originating pleading is proved

(i)   by filing an affidavit of personal service in Form 15, or

(ii)   by the person filing a responding pleading;

(b) service on a person of a petition is proved

(i)   by filing an affidavit of personal service in Form 15, or

(ii)   by the person filing a response to petition;

(c) service of any other document served by personal service is proved by filing an affidavit of personal service in Form 15;

(d) service of any document that is served by ordinary service is proved

(i)   by filing an affidavit of ordinary service in Form 16, or

(ii)   by filing a requisition in Form 17 to which is attached a written acknowledgment of receipt signed by the party or lawyer on whom the document was served.

Proof of service by sheriff

(2)Service of a document by a sheriff may be proved by a certificate in Form 18 endorsed on a copy of the document.

Service on member of Canadian Armed Forces

(3)If a member of the Canadian Armed Forces has been served with a document by an officer of the Canadian Armed Forces, proof of the service in the form of a certificate annexed to a copy of the document served, signed by the officer and stating his or her rank and when, where and how service was effected, may be filed as proof of service.

Admissibility of other evidence of service

(4)Nothing in subrules (1) to (3) restricts the court from considering any other evidence of service that the court considers appropriate in the circumstances.

Rule 4-7 — Relief

If service is alleged to be ineffective

(1)If a document has been served in accordance with this Part but a person can show that the document

(a) did not come to his or her notice,

(b) came to his or her notice later than when it was served, or

(c) was incomplete or illegible,

the court may set aside an order, extend time, order an adjournment or make such other order as it considers will further the object of these Supreme Court Civil Rules.

Part 5 — Case Planning

Rule 5-1 — Requesting a Case Planning Conference

Case planning conference may be requested

(1)A party of record to an action may, at any time after the pleading period has expired, request a case planning conference by

(a) obtaining a date and time for the case planning conference from the registry, and

(b) filing a notice of case planning conference in Form 19.

Case planning conference may be directed

(2)Without limiting subrule (1), at any stage of an action after the pleading period has expired, the court

(a) may direct that a case planning conference take place, and

(b) in that case, must direct that a party request a case planning conference in accordance with subrule (1).

Time for service of notice

(3)Unless the court otherwise orders or the parties of record otherwise agree, a party who is requesting a case planning conference under subrule (1) or who has been directed to file a notice of case planning conference under subrule (2) must serve the filed notice of case planning conference on the other parties of record,

(a) in the case of the first case planning conference to be held in the action, at least 35 days, or any shorter period that the court may order, before the date set for the case planning conference, and

(b) in the case of any other case planning conference to be held in the action, at least 7 days, or any shorter period that the court may order, before the date set for the case planning conference.

Application must be made by requisition

(4)An application under subrule (3) (a) or (b) to shorten the service period applicable to a notice of case planning conference

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

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

(c) unless the court otherwise orders, may be made without notice.

Case plan proposal required

(5)Unless the court otherwise orders, if a case planning conference is requested or ordered under this rule, the parties of record must, before the first case planning conference to be held in the action, file case plan proposals as follows:

(a) the plaintiff must, within 14 days after the notice of case planning conference in the action was served by the plaintiff or, if the notice of case planning conference was served by another party of record, within 14 days after receipt of that notice of case planning conference,

(i)   file the plaintiff's case plan proposal, and

(ii)   serve a copy of the filed case plan proposal on all parties of record;

(b) each other party of record must, within 14 days after receipt of the plaintiff's case plan proposal,

(i)   file the party's case plan proposal, and

(ii)   serve a copy of the filed case plan proposal on all parties of record.

Contents of case plan proposal

(6)A party's case plan proposal referred to in subrule (5) must be in Form 20 and must, in a summary manner, indicate the party's proposal with respect to the following steps:

(a) discovery of documents;

(b) examinations for discovery;

(c) dispute resolution procedures;

(d) expert witnesses;

(e) witness lists;

(f) trial type, estimated trial length and preferred periods for the trial date.

Rule 5-2 — Conduct of Case Planning Conference

Case planning conference must be conducted by judge or master

(1)A case planning conference held in an action must be conducted by a judge or master.

Who must attend

(2)Unless the court otherwise orders, the following persons must attend a case planning conference in accordance with subrule (3):

(a) each lawyer representing a party of record;

(b) a party of record if

(i)   the party is not represented by a lawyer in the action, or

(ii)   the party is ordered to attend by the court.

Manner of attendance

(3)Unless the court otherwise orders, a lawyer or party of record referred to in subrule (2) must

(a) attend in person at the first case planning conference held in an action, and

(b) attend any subsequent case planning conference held in the action

(i)   by telephone or other communication medium, if all persons participating in the case planning conference, whether by telephone, by other communication medium or in person, are able to communicate with each other, or

(ii)   in person.

Application must be made by requisition

(4)Each application under subrule (2) for an order exempting a person from attending a case planning conference and an application under subrule (3) respecting the method of attendance

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

(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, and

(c) unless the court otherwise orders, may be made without notice.

Considerations of the court

(5)If an application is brought under subrule (2) for an order exempting a person from attending a case planning conference, the court may make such an order if the court considers that

(a) it is not reasonably possible for the person to attend given the distance the person has to travel for that attendance or the cost required for that attendance,

(b) attendance must be excused on health or compassionate grounds, or

(c) other extraordinary circumstances exist that justify the order.

Non-attendance at case planning conference

(6)If a person who, under subrule (2), is required to attend a case planning conference fails to attend at that case planning conference, the case planning conference judge or master may do one or more of the following:

(a) proceed in the absence of the person who failed to attend;

(b) adjourn the case planning conference;

(c) order that the person, or the party on whose behalf the person was to attend, pay costs to one or more other parties.

Proceedings must be recorded

(7)Proceedings at a case planning conference must be recorded, but no part of that recording may be made available to or used by any person without court order.

Rule 5-3 — Case Planning Conference Orders

Orders

(1)At a case planning conference, the case planning conference judge or master may make one or more of the following orders in respect of the action, whether or not on the application of a party:

(a) setting a timetable for the steps to be taken;

(b) amending a previous case plan order;

(c) any order referred to in Rule 22-4 (2);

(d) requiring amendment of a pleading to provide details of

(i)   the facts,

(ii)   the relief sought, or

(iii)   the legal basis on which relief is sought or opposed

set out in that pleading;

(e) respecting the length and content of pleadings;

(f) respecting discovery, listing, production, preservation, exchange or examination of documents or exhibits, including, without limitation, orders

(i)   respecting electronically stored information, and

(ii)   that discovery, listing, production, exchange or examination be limited or otherwise conducted as ordered;

(g) respecting discovery of parties or the examination or inspection of persons or property, including, without limitation, that discovery, examination or inspection be limited, expanded or otherwise conducted in the manner ordered;

(h) respecting interrogatories;

(i) respecting third party claims, including imposing terms on any third party procedure to limit or avoid any prejudice or unnecessary delay that might otherwise be suffered by the plaintiff as a result of that third party procedure;

(j) respecting witness lists;

(k) respecting experts, including, without limitation, orders

(i)   that the expert evidence on any one or more issues be given by one jointly-instructed expert,

(ii)   respecting the number of experts a party may call,

(iii)   that the parties' experts must confer before the service of their respective reports,

(iv)   setting a date by which an expert's report must be served on the other parties of record, and

(v)   respecting the issues on which an expert may be called;

(l) respecting admissions;

(m) respecting offers to settle;

(n) respecting the conduct of any application, including, without limitation, that an application may be made by written submissions under Rule 8-6;

(o) requiring the parties of record to attend one or more of a mediation, a settlement conference or any other dispute resolution process, and giving directions for the conduct of the mediation, settlement conference or other dispute resolution process;

(p) authorizing or directing the parties of record to try one or more issues in the action independently of others;

(q) fixing the length of trial;

(r) respecting the place at which any step in the action is to be conducted;

(s) setting the action for trial on a particular date or on a particular trial list;

(s.1) striking out a counterclaim or directing that a counterclaim be tried separately;

(t) adjourning the case planning conference;

(u) directing the parties to attend a further case planning conference at a specified date and time;

(v) any orders the judge or master considers will further the object of these Supreme Court Civil Rules.

[am. B.C. Reg. 119/2010, Sch. A, s. 9.]

Prohibited orders

(2)A case planning conference judge or master must not, at a case planning conference,

(a) hear any application supported by affidavit evidence, except under subrule (6), or

(b) make an order for final judgment, except by consent or under subrule (6).

Case plan order required

(3)Without limiting subrules (1) and (2), the judge or master conducting a case planning conference must, at the conclusion of the case planning conference, make a case plan order.

Case plan order

(4)A case plan order under subrule (3) must be in Form 21 and

(a) must set out any order made under subrule (1), and

(b) may but need not include any other matter referred to in Form 21.

When approval in writing by lawyer not required

(5)Without limiting Rule 13-1 (2), if a case plan order under subrule (3) is approved in writing by the case planning conference judge or master, that order need not be approved in writing by a lawyer or by a party.

Consequences of non-compliance

(6)If a party fails to comply with this Part or an order made under this rule or if anything is done or omitted improperly or unnecessarily by or on behalf of a party in relation to anything under this Part, the court may, on application, do one or both of the following:

(a) make an order under Rule 22-7;

(b) despite any other provision of these Supreme Court Civil Rules to the contrary and without limiting Rule 14-1 (14),

(i)   award costs of the application in a lump sum fixed under Schedule 3 of Appendix B, and

(ii)   set the period within which those costs must be paid.

Application may be made at case planning conference

(7)Without limiting Part 8, a party may apply for an order under subrule (6) at a case planning conference.

Rule 5-4 — Applications to Amend Case Plan Orders

Requesting amendments to case plan orders

(1)Without limiting the ability of a case planning conference judge or master to amend a case plan order at a case planning conference under Rule 5-3 (1) (b), the parties may apply to amend a case plan order as follows:

(a) if the application is to be by consent, the parties of record must apply under Rule 8-1 (2) (a);

(b) if the application is not to be by consent, a party of record must

(i)   serve on the other parties of record

(A)  a requisition in Form 17, supported by a letter directed to the registry, identifying the judge or master who made the case plan order and setting out the requested amendment and the basis for the request,

(B)  a draft of the proposed order, and

(C)  any supporting documents, other than affidavits, the party considers appropriate, and

(ii)   provide to the registry copies of the documents served under subparagraph (i), a statement of the applicant that the applicant served the documents referred to in subparagraph (i) on the other parties of record and whichever of the following applies:

(A)  a statement that the applicant has received no answer to those documents within 7 days after the date of service;

(B)  if one or more answers have been received in that 7 day period, copies of the answers received.

Party may respond

(2)Any party on whom documents referred to in subrule (1) (b) (i) have been served may, within 7 days after service, serve on the applicant

(a) a letter, directed to the registry, identifying the judge or master who made the case plan order and setting out the party's answer to the requested amendment, and

(b) any supporting documents, other than affidavits, the party considers appropriate.

Powers of court

(3)On an application under subrule (1) (b), the court must

(a) make an order amending the case plan order in the manner requested,

(b) refuse to make the order requested,

(c) direct the parties of record to attend a case planning conference, or

(d) make such other order as the court considers will further the object of these Supreme Court Civil Rules.

Part 6 — Amendment of Pleadings and Change of Parties

Rule 6-1 — Amendment of Pleadings

When pleadings may be amended

(1)Subject to Rules 6-2 (7) and (10) and 7-7 (5), a party may amend the whole or any part of a pleading filed by the party

(a) once without leave of the court, at any time before the earlier of the following:

(i)   the date of service of the notice of trial, and

(ii)   the date a case planning conference is held, or

(b) after the earlier of the dates referred to in paragraph (a) of this subrule, only with

(i)   leave of the court, or

(ii)   written consent of the parties of record.

[am. B.C. Reg. 119/2010, Sch. A, s. 10.]

How amendments made

(2)Unless the court otherwise orders, to amend a pleading under subrule (1), a party must

(a) amend the pleading in accordance with subrule (3),

(b) indicate on the amended pleading the date on which the original version of the pleading was filed, and

(c) file the amended pleading.

Identifying amendments

(3)Unless the court otherwise orders, if a pleading is amended under this rule,

(a) any deleted wording must be shown as struck out, and

(b) any new wording must be underlined.

Service of amended documents

(4)Unless the court otherwise orders, if a party amends a pleading under this rule, the party must do both of the following:

(a) within 7 days after filing the amended pleading, serve, by ordinary service, a copy of the filed amended pleading on all parties of record;

(b) if the amended pleading is an originating pleading, promptly after filing the amended pleading and before taking any further step in the proceeding, serve, by personal service, a copy of the filed amended originating pleading on any person who

(i)   was served with a copy of the filed original version of the originating pleading, and

(ii)   has not filed a responding pleading to the original version of the originating pleading.

Response of a party to amended document

(5)If a pleading (in this subrule and in subrule (6) called the "primary pleading") is amended under this rule and the amended pleading is served on a party of record under subrule (4) (a), that party

(a) may amend, under this rule, any pleading he or she had filed in response to the original version of the primary pleading but only with respect to any matter raised by the amendments to the primary pleading, and

(b) in that event, must, within 14 days after being served with the amended pleading, serve a copy of the filed amended responding pleading on all parties of record.

Failure to serve amended responding document

(6)If a party on whom an amended pleading is served under subrule (4) (a) does not serve an amended responding pleading as provided in subrule (5),

(a) the pleading he or she filed in response to the original version of the primary pleading is deemed to be the pleading he or she filed in response to the amended pleading, and

(b) any new facts set out in the amended pleading are deemed to be outside the knowledge of the defendant.

Responding to amended pleading

(7)If an originating pleading is amended under this rule and served under subrule (4) (b) on a person who is not yet a party of record, the person has the same period for filing a responding pleading to that amended originating pleading as the party had to file a responding pleading to the original version of the originating pleading.

[am. B.C. Reg. 119/2010, Sch. A, s. 11.]

Amendment at trial

(8)Unless the court otherwise orders, if an amendment is granted during a trial or hearing, an order need not be taken out and the amended pleading need not be filed or served.

Rule 6-2 — Change of Parties

Change of Party Status or Interest

Party ceasing to exist

(1)If a party dies or becomes bankrupt, or a corporate party is wound up or otherwise ceases to exist, but the claim survives, the proceeding may continue in spite of the death or bankruptcy or the corporate party having been wound up or ceasing to exist.

[am. B.C. Reg. 119/2010, Sch. A, s. 12.]

Effect of death

(2)Whether or not the claim survives, a proceeding may continue in spite of either party dying between the verdict or finding on the issues of fact and the entry of judgment, but judgment may be entered despite the death.

[am. B.C. Reg. 119/2010, Sch. A, s. 13.]

Assignment or conveyance of interest

(3)If, by assignment, conveyance or death, an estate, interest or title devolves or is transferred, a proceeding relating to that estate, interest or title may be continued by or against the person on whom that estate, interest or title has devolved or to whom that estate, interest or title has been transferred.

[am. B.C. Reg. 119/2010, Sch. A, s. 13.]

Change or transmission of interest or liability

(4)If, after the start of a proceeding,

(a) a change or transmission of interest or liability of a party takes place or a person interested comes into existence, and

(b) it becomes necessary or desirable that

(i)   a person not already a party should be made a party, or

(ii)   a person already a party should be made a party in another capacity,

the court may order that the proceeding be continued between the continuing parties and the new party.

[am. B.C. Reg. 119/2010, Sch. A, ss. 12 and 13.]

Prosecution of proceeding if plaintiff or petitioner dies

(5)If a plaintiff or petitioner has died and the proceeding may be continued, a defendant or respondent may apply to the court for an order that the person entitled to proceed do proceed within the time that the court orders and that, in default, the proceeding be dismissed for want of prosecution.

Costs on dismissal

(6)If a proceeding is dismissed under subrule (5), an order for payment of costs may be made and enforced against the assets of the deceased's estate.

Change of Parties

Adding, removing or substituting parties by order

(7)At any stage of a proceeding, the court, on application by any person, may, subject to subrules (9) and (10),

(a) order that a person cease to be party if that person is not, or has ceased to be, a proper or necessary party,

(b) order that a person be added or substituted as a party if

(i)   that person ought to have been joined as a party, or

(ii)   that person's participation in the proceeding is necessary to ensure that all matters in the proceeding may be effectually adjudicated on, and

(c) order that a person be added as a party if there may exist, between the person and any party to the proceeding, a question or issue relating to or connected with

(i)   any relief claimed in the proceeding, or

(ii)   the subject matter of the proceeding

that, in the opinion of the court, it would be just and convenient to determine as between the person and that party.

[am. B.C. Reg. 119/2010, Sch. A, ss. 12 and 13.]

Procedure if party added, removed or substituted by order

(8)Unless the court otherwise orders, if an order is made under subrule (7) adding, removing or substituting a party,

(a) the originating pleading or petition must be amended in accordance with these Supreme Court Civil Rules, a reference to the order must be endorsed on that amended pleading or petition and Rule 6-1 (4) to (7) applies,

(b) no further steps may be taken against a person added or substituted as a party under this subrule until a copy of the filed amended originating pleading or filed amended petition and a copy of the entered order adding or substituting the party are served on the person, and

(c) if a person is made a party under the order,

(i)   the person may apply to the court to vary or discharge the order within 21 days after the date on which the order is served on the person under paragraph (b) of this subrule, and

(ii)   unless the court orders, in an application under subparagraph (i) of this paragraph or otherwise, that the person not be added as a party, these Supreme Court Civil Rules apply in relation to that added party as if the amended originating pleading or petition were a new originating pleading or petition.

If case plan order in effect

(9)If an order is made under subrule (4) or (7) in an action in which a case plan order has been made,

(a) if a person is removed as a party, the case plan order remains in effect, and

(b) if a person is added or substituted as a party and that person becomes a party of record, no step may be taken by or against the added or substituted party until the case plan order is amended to apply to the added or substituted party.

General

Consent required

(10)A person must not be added or substituted as a plaintiff or petitioner without the person's consent.

Effect of order

(11)Unless the court otherwise orders, if a person becomes a party in substitution for a former party, all things done in the proceeding before the person became a party have the same effect in relation to that person as they had in relation to the former party, but the substituted party must file a notice of address for service in Form 9.

Part 7 — Procedures For Ascertaining Facts

Rule 7-1 — Discovery and Inspection of Documents

List of documents

(1)Unless all parties of record consent or the court otherwise orders, each party of record to an action must, within 35 days after the end of the pleading period,

(a) prepare a list of documents in Form 22 that lists

(i)   all documents that are or have been in the party's possession or control and that could, if available, be used by any party of record at trial to prove or disprove a material fact, and

(ii)   all other documents to which the party intends to refer at trial, and

(b) serve the list on all parties of record.

Documents to be enumerated

(2)Subject to subrules (6) and (7), each party's list of documents must include a brief description of each listed document.

Insurance policy

(3)A party must include in the party's list of documents any insurance policy under which an insurer may be liable

(a) to satisfy the whole or any part of a judgment granted in the action, or

(b) to indemnify or reimburse any party for any money paid by that party in satisfaction of the whole or any part of such a judgment.

Information not to be disclosed

(4)Despite subrule (3), information concerning the insurance policy must not be disclosed to the court at trial unless it is relevant to an issue in the action.

Insurance policy

(5)For the purposes of subrules (3) and (4), "insurance policy" does not include an application for insurance.

Claim for privilege

(6)If it is claimed that a document is privileged from production, the claim must be made in the list of documents with a statement of the grounds of the privilege.

Nature of privileged documents to be described

(7)The nature of any document for which privilege from production is claimed must be described in a manner that, without revealing information that is privileged, will enable other parties to assess the validity of the claim of privilege.

Affidavit verifying list of documents

(8)The court may order a party of record to serve an affidavit verifying a list of documents.

Amending the list of documents

(9)If, after a list of documents has been served under this rule,

(a) it comes to the attention of the party serving it that the list is inaccurate or incomplete, or

(b) there comes into the party's possession or control a document that could be used by any party of record at trial to prove or disprove a material fact or any other document to which the party intends to refer at trial,

the party must promptly amend the list of documents and serve the amended list of documents on the other parties of record.

[am. B.C. Reg. 119/2010, Sch. A, s. 14 (a).]

Party may demand documents required under this rule

(10)If a party who has received a list of documents believes that the list omits documents or a class of documents that should have been disclosed under subrule (1) (a) or (9), the party may, by written demand, require the party who prepared the list to

(a) amend the list of documents,

(b) serve on the demanding party the amended list of documents, and

(c) make the originals of the newly listed documents available for inspection and copying in accordance with subrules (15) and (16).

[am. B.C. Reg. 119/2010, Sch. A, s. 14 (b) and (c).]

Party may demand additional documents

(11)If a party who has received a list of documents believes that the list should include documents or classes of documents that

(a) are within the listing party's possession, power or control,

(b) relate to any or all matters in question in the action, and

(c) are additional to the documents or classes of documents required under subrule (1) (a) or (9),

the party, by written demand that identifies the additional documents or classes of documents with reasonable specificity and that indicates the reason why such additional documents or classes of documents should be disclosed, may require the listing party to

(d) amend the list of documents,

(e) serve on the demanding party the amended list of documents, and

(f) make the originals of the newly listed documents available for inspection and copying in accordance with subrules (15) and (16).

[en. B.C. Reg. 119/2010, Sch. A, s. 14 (d).]

Response to demand for documents

(12)A party who receives a demand under subrule (10) or (11) must, within 35 days after receipt, do one of the following:

(a) comply with the demand in relation to the demanded documents;

(b) comply with the demand in relation to those of the demanded documents that the party is prepared to list and indicate, in relation to the balance of the demanded documents,

(i)   why an amended list of documents that includes those documents is not being prepared and served, and

(ii)   why those documents are not being made available;

(c) indicate, in relation to the demanded documents,

(i)   why an amended list of documents that includes those documents is not being prepared and served, and

(ii)   why those documents are not being made available.

[am. B.C. Reg. 119/2010, Sch. A, s. 14 (e).]

Application for production of documents

(13)If a party who receives a demand under subrule (10) or (11) does not, within 35 days after receipt, comply with the demand in relation to the demanded documents, the demanding party may apply for an order requiring the listing party to comply with the demand.

Court may alter requirements

(14)On an application under subrule (13) or otherwise, the court may

(a) order that a party be excused from compliance with subrule (1), (3), (6), (15) or (16) or with a demand under subrule (10) or (11), either generally or in respect of one or more documents or classes of documents, or

(b) order a party to

(i)   amend the list of documents to list additional documents that are or have been in the party's possession, power or control relating to any or all matters in question in the action,

(ii)   serve the amended list of documents on all parties of record, and

(iii)   make the originals of the newly listed documents available for inspection and copying in accordance with subrules (15) and (16).

[am. B.C. Reg. 119/2010, Sch. A, s. 14 (b), (c) and (f).]

Inspection of documents

(15)A party who has served a list of documents on any other party must allow the other party to inspect and copy, during normal business hours and at the location specified in the list of documents, the listed documents except those documents that the listing party objects to producing.

[am. B.C. Reg. 119/2010, Sch. A, s. 14 (g).]

Copies of documents

(16)If a party is entitled to inspect listed documents under subrule (15), the listing party must, on the request of the party entitled to inspection and on receiving payment in advance of the cost of reproduction and service, serve on the requesting party copies of the documents, if reproducible, for which a request has been made.

[am. B.C. Reg. 119/2010, Sch. A, s. 14 (h).]

Order to produce document

(17)The court may order the production of a document for inspection and copying by any party or by the court at a time and place and in the manner it considers appropriate.

Documents not in possession of party

(18)If a document is in the possession or control of a person who is not a party of record, the court, on an application under Rule 8-1 brought on notice to the person and the parties of record, may make an order for one or both of the following:

(a) production, inspection and copying of the document;

(b) preparation of a certified copy that may be used instead of the original.

Order by consent

(19)An order under subrule (18) may be made by consent if that order is endorsed with an acknowledgment by the person in possession or control of the document that the person has no objection to the terms of the proposed order.

Inspection of document by court

(20)If, on an application for production of a document, production is objected to on the grounds of privilege, the court may inspect the document for the purpose of deciding the validity of the objection.

Party may not use document

(21)Unless the court otherwise orders, if a party fails to make discovery of or produce for inspection or copying a document as required by this rule, the party may not put the document in evidence in the proceeding or use it for the purpose of examination or cross-examination.

Determination of issue before discovery

(22)If the party from whom discovery, inspection or copying of a document is sought objects to that discovery, inspection or copying, the court may, if satisfied that for any reason it is desirable that an issue or question in dispute should be determined before deciding on the right to discovery, inspection or copying, order that the issue or question be determined first and reserve the question of discovery, inspection or copying.

Rule 7-2 — Examinations for Discovery

Examination of parties

(1)Subject to subrule (2), each party of record to an action must

(a) make himself or herself available, or

(b) if any of subrules (5) to (10) apply, make a person referred to in that subrule available,

for examinations for discovery by the parties of record to the action who are adverse in interest to the party subject to examination.

Limitations

(2)Unless the court otherwise orders, the examinations for discovery, including all examinations under subrules (17), (22) and (24), conducted under this rule of a party of record, including any such examinations conducted of a person referred to in subrule (1) (b) who is examined in relation to that party of record, by any other party of record who is adverse in interest must not, in total, exceed in duration

(a) 7 hours, or

(b) any greater period to which the person to be examined consents.

[See Rule 15-1 (11) and (12) for limits on examinations for discovery in fast track actions.]

Considerations of the court

(3)In an application under subrule (2) to extend the examination for discovery period, the court must consider the following:

(a) the conduct of a person who has been or is to be examined, including

(i)   the person's unresponsiveness in any examination for discovery held in the action,

(ii)   the person's failure to provide complete answers to questions, or

(iii)   the person's provision of answers that are evasive, irrelevant, unresponsive or unduly lengthy;

(b) any denial or refusal to admit, by a person who has been or is to be examined, anything that should have been admitted;

(c) the conduct of the examining party;

(d) whether or not it is or was reasonably practicable to complete the examinations for discovery within the period provided under subrule (2);

(e) the number of parties and examinations for discovery and the proximity of the various interests of those parties.

Oral examination on oath

(4)An examination for discovery is an oral examination on oath.

Examination of party that is not an individual

(5)Unless the court otherwise orders, if a party to be examined for discovery is not an individual,

(a) the examining party may examine one representative of the party to be examined,

(b) the party to be examined must nominate as its representative an individual, who is knowledgeable concerning the matters in question in the action, to be examined on behalf of that party, and

(c) the examining party may examine

(i)   the representative nominated under paragraph (b), or

(ii)   any other person the examining party considers appropriate and who is or has been a director, officer, employee, agent or external auditor of the party to be examined.

Examination of person for whose benefit action brought

(6)Subject to subrule (9), a person for whose immediate benefit an action is brought or defended may be examined for discovery.

Examination of assignor

(7)If an action is brought by an assignee, the assignor may be examined for discovery.

Examination of guardian and infants

(8)Unless the court otherwise orders, if a party to be examined for discovery is an infant, the infant, his or her guardian and his or her litigation guardian may be examined for discovery.

[am. B.C. Reg. 119/2010, Sch. A, s. 15.]

Examination of mentally incompetent person

(9)If a party to be examined for discovery is a mentally incompetent person, his or her litigation guardian and his or her committee may be examined for discovery, but the mentally incompetent person must not be examined without leave of the court.

Examination of bankrupt

(10)If a party to be examined for discovery is a trustee in bankruptcy, the bankrupt may be examined for discovery.

Place

(11)Unless the court otherwise orders or the parties to the examination for discovery otherwise agree, an examination for discovery must take place at a location within 30 kilometres of the registry that is nearest to the place where the person to be examined resides.

Examination before reporter

(12)An examination for discovery must be conducted before an official reporter who is empowered to administer the oath.

Service of notice

(13)Before conducting an examination for discovery under this rule, the party wishing to conduct that examination for discovery must do the following:

(a) if the person to be examined is a party of record to, and has a lawyer in, the action, ensure that, at least 7 days before the examination for discovery,

(i)   an appointment in Form 23 is served on that lawyer, and

(ii)   witness fees in the amount required under Schedule 3 of Appendix C are tendered to that lawyer;

(b) in any other case, ensure that, at least 7 days before the examination for discovery,

(i)   an appointment in Form 23 is served on the person to be examined, and

(ii)   witness fees in the amount required under Schedule 3 of Appendix C are tendered to the person to be examined;

(c) at least 7 days before the examination for discovery, serve a copy of the appointment on all parties of record.

[am. B.C. Reg. 112/2012, Sch. A, s. 2.]

Person must attend examination

(14)A person to be examined for discovery must attend and submit to examination for discovery if the party wishing to conduct that examination for discovery has complied with subrule (13) (a) or (b), as the case may be.

Fees must not be attached

(15)If a lawyer receives witness fees under subrule (13) (a), those fees must not be attached.

Production of documents

(16)Unless the court otherwise orders, if the person to be examined for discovery is a person referred to in subrule (6), (7), (8), (9) or (10), the person must produce for inspection on the examination for discovery all documents in his or her possession or control, not privileged, relating to the matters in question in the action.

Examination and re-examination

(17)The examination for discovery of a person is in the nature of a cross-examination, and the person examined for discovery may be re-examined on his or her own behalf or on behalf of a party of record not adverse in interest to him or her in relation to any matter respecting which he or she has been examined.

Scope of examination

(18)Unless the court otherwise orders, a person being examined for discovery

(a) must answer any question within his or her knowledge or means of knowledge regarding any matter, not privileged, relating to a matter in question in the action, and

(b) is compellable to give the names and addresses of all persons who reasonably might be expected to have knowledge relating to any matter in question in the action.

Scope includes insurance

(19)Without limiting subrule (18), unless the court otherwise orders, a person being examined for discovery must answer any question within his or her knowledge or means of knowledge that is related to

(a) the existence and contents of any insurance policy under which an insurer may be liable

(i)   to satisfy the whole or any part of a judgment granted in the action, or

(ii)   to indemnify or reimburse a party for any money paid by that party in satisfaction of the whole or any part of such a judgment, and

(b) the amount of money available under the policy, and any communication from an insurer denying or limiting liability under the policy.

Information not to be disclosed

(20)Despite subrule (19), information concerning the insurance policy must not be disclosed to the court at trial unless it is relevant to an issue in the action.

Insurance policy

(21)For the purposes of subrules (19) and (20), "insurance policy" does not include an application for insurance.

Person must inform self

(22)In order to comply with subrule (18) or (19), a person being examined for discovery may be required to inform himself or herself and the examination may be adjourned for that purpose.

Response may be provided by letter

(23)If a person is required to inform himself or herself under subrule (22) in order to respond to one or more questions posed on the examination for discovery, the examining party may request the person to provide the responses by letter.

If letter provided

(24)If the examining party receives a letter under subrule (23),

(a) the questions set out in the letter and the answers given in response to those questions are deemed for all purposes to be questions asked and answers given under oath in the examination for discovery, and

(b) the examining party may, subject to subrule (2), continue the examination for discovery.

Objections

(25)If a person under examination objects to answering a question put to him or her, the question and the objection must be taken down by the official reporter and the court may

(a) decide the validity of the objection, and

(b) order the person to submit to further examination and set a maximum duration for that further examination.

How recorded

(26)An examination for discovery is to be taken down in the form of question and answer, and copies of the transcript may be obtained on payment of the proper fee by

(a) any party of record,

(b) the person examined, or

(c) any other person as the court for special reason may permit.

Application to persons outside British Columbia

(27)So far as is practicable, this rule applies to a person residing outside British Columbia, and the court, on application on notice to the person, may order the examination for discovery of the person at a place and in the manner the court considers appropriate.

Service of order and notice

(28)Unless the court otherwise orders, if an order is made under subrule (27) for the examination for discovery of a person,

(a) the order and the notice of appointment may be served on, and

(b) the witness fees referred to in subrule (13) may be paid to

the lawyer for the person.

Rule 7-3 — Discovery by Interrogatories

Party may serve interrogatories by consent or with leave

(1)A party of record to an action may serve interrogatories in Form 24 on any other party of record, or on a director, officer, partner, agent, employee or external auditor of a party of record, if

(a) the party of record to be examined consents, or

(b) the court grants leave.

If a party is a body of persons

(2)If a party of record to an action is a body of persons, corporate or unincorporate, that is empowered to sue or to be sued in its own name or in the name of an officer or other person, another party of record may, with leave of the court granted at an application or if authorized to do so by a case plan order, serve interrogatories on the officer or member of the body specified in the order.

Powers of court

(3)In an order granting leave under subrule (1) (b) or (2), the court may set terms and conditions on the interrogatories, including terms and conditions respecting

(a) the number or length of the interrogatories,

(b) the matters the interrogatories are to cover,

(c) the timing of any response to the interrogatories, and

(d) the notification, if any, to be given to the other parties of record respecting the interrogatories.

Timing of answer to interrogatories

(4)A person to whom interrogatories are directed must, within 21 days or such other period as the court may order under subrule (3), serve an answer on affidavit to the interrogatories.

If more than one person to answer interrogatories

(5)If interrogatories are required to be answered by more than one officer, director, partner, agent or employee of a party, the interrogatories must state which of the interrogatories each person is required to answer.

Objection to answer interrogatory

(6)If a person objects to answering an interrogatory on the grounds of privilege or on the grounds that it does not relate to a matter in question in the action, the person may make the objection in an affidavit in answer.

Insufficient answer to interrogatory

(7)If a person to whom interrogatories have been directed answers any of them insufficiently, the court may require the person to make a further answer either by affidavit or on oral examination.

Application to strike out interrogatory

(8)If a party of record objects to an interrogatory on the grounds that it will not further the object of these Supreme Court Civil Rules,

(a) the party may apply to the court to strike out the interrogatory, and

(b) the court must take into account any offer by the party to make admissions, to produce documents or to give oral discovery.

Service of interrogatories on lawyer

(9)A party of record may, instead of serving interrogatories under subrule (1) or (2), serve the interrogatories on the lawyer of the person to whom the interrogatories are directed.

Lawyer must inform

(10)If a lawyer receives interrogatories under subrule (9), the lawyer must promptly inform the person to whom the interrogatories are directed.

Continuing obligation to answer

(11)If a person who has given an answer to an interrogatory later learns that the answer is inaccurate or incomplete, the person must promptly serve on the party who served the interrogatory an affidavit deposing to an accurate or complete answer.

Rule 7-4 — Witness Lists

Witness lists

(1)Unless the court otherwise orders, each party of record to an action must, within the time set out in the case plan order or, if none, on or before the earlier of the trial management conference and the date that is 28 days before the scheduled trial date, file and serve on every other party of record a list of the witnesses the party may call at trial, other than

(a) expert witnesses who are to provide evidence under Part 11, and

(b) adverse witnesses referred to in Rule 12-5 (20) (a) or (b).

Requirements for list

(2)Unless the court otherwise orders, a witness list must include the full name and address of each listed witness.

Continuing obligation

(3)If a party who has provided a witness list or an amended witness list later learns that the list is inaccurate or incomplete, the party must promptly

(a) amend the witness list,

(b) file the amended witness list, and

(c) serve a copy of the filed amended witness list on all parties of record.

[am. B.C. Reg. 119/2010, Sch. A, s. 16.]

Witness need not be called

(4)Nothing in this rule requires a party to call as a witness at trial an individual named as a witness on a witness list served by the party under subrule (1) or (3).

Rule 7-5 — Pre-trial Examination of Witness

Order for examination

(1)If a person who is not a party of record to an action may have material evidence relating to a matter in question in the action, the court may

(a) order that the person be examined on oath on the matters in question in the action, and

(b) either before or after the examination, order that the examining party pay reasonable lawyer's costs of the person relating to the application and the examination.

Expert

(2)An expert retained or specially employed by another party in anticipation of litigation or preparation for trial may not be examined under this rule unless the party seeking the examination is unable to obtain facts and opinions on the same subject by other means.

Affidavit in support of application

(3)An application for an order under subrule (1) must be supported by affidavit setting out

(a) the matter in question in the action to which the applicant believes that the evidence of the proposed witness may be material,

(b) if the proposed witness is an expert retained or specially employed by another party in anticipation of litigation or preparation for trial, that the applicant is unable to obtain facts and opinions on the same subject by other means, and

(c) that the proposed witness

(i)   has refused or neglected on request by the applicant to give a responsive statement, either orally or in writing, relating to the witness' knowledge of the matters in question, or

(ii)   has given conflicting statements.

Application procedure

(4)An applicant for an order under subrule (1) must comply with Rule 8-1, and, without limiting this, the applicant must serve the application materials on the proposed witness and Rule 8-1 applies to the witness as if he or she were a party of record.

Subpoena

(5)If the court makes an order under subrule (1) entitling a party to examine a person under this rule, the party may, by serving on the person to be examined a subpoena in Form 25, require the person to bring to the examination

(a) any document in the person's possession or control relating to the matters in question in the action, and

(b) any physical object in the person's possession or control that the party contemplates tendering at the trial as an exhibit.

Identification of documents and objects

(6)A subpoena referred to in subrule (5)

(a) need not identify any document referred to in subrule (5) (a), and

(b) must identify any object referred to in subrule (5) (b).

Notice of examination

(7)The examining party must give notice of an examination under this rule by serving copies of the subpoena referred to in subrule (5) on all parties of record at least 7 days before the date appointed for the examination.

Mode of examination

(8)The proposed witness must be cross-examined by the party who obtained the order, then may be cross-examined by any other party of record, and then may be further cross-examined by the party who obtained the order.

Time for examination

(9)Unless the court otherwise orders, examinations conducted of a person under this rule by all parties of record must not, in total, exceed 3 hours in duration.

Application of examination for discovery rules

(10)Rule 7-2 (12), (16), (18), (22) and (25) to (28) applies to an examination under this rule.

Rule 7-6 — Physical Examination and Inspection

Order for medical examination

(1)If the physical or mental condition of a person is in issue in an action, the court may order that the person submit to examination by a medical practitioner or other qualified person, and if the court makes an order under this subrule, the court may also make

(a) an order respecting any expenses connected with the examination, and

(b) an order that the result of the examination be put in writing and that copies be made available to interested parties of record.

Subsequent examinations

(2)The court may order a further examination under this rule.

Questions by examiner

(3)A person who is making an examination under this rule may ask any relevant question concerning the medical condition or history of the person being examined.

Order for inspection and preservation of property

(4)If the court considers it necessary or expedient for the purpose of obtaining full information or evidence, it may

(a) order the production, inspection and preservation of any property, and

(b) authorize

(i)   samples to be taken or observations to be made of the property, or

(ii)   experiments to be conducted on or with the property.

Entry on land or building

(5)For the purpose of enabling an order under this rule to be carried out, the court may authorize a person to enter on any land or building.

Application to persons outside British Columbia

(6)Rule 7-2 (27) and (28) applies to examinations and inspections ordered under this rule.

Rule 7-7 — Admissions

Notice to admit

(1)In an action in which a response to civil claim has been filed, a party of record may, by service of a notice to admit in Form 26, request any party of record to admit, for the purposes of the action only, the truth of a fact or the authenticity of a document specified in the notice.

Effect of notice to admit

(2)Unless the court otherwise orders, the truth of a fact or the authenticity of a document specified in a notice to admit is deemed to be admitted, for the purposes of the action only, unless, within 14 days after service of the notice to admit, the party receiving the notice to admit serves on the party serving the notice to admit a written statement that

(a) specifically denies the truth of the fact or the authenticity of the document,

(b) sets out in detail the reasons why the party cannot make the admission, or

(c) states that the refusal to admit the truth of the fact or the authenticity of the document is made on the grounds of privilege or irrelevancy or that the request is otherwise improper, and sets out in detail the reasons for the refusal.

Copy of document to be attached

(3)Unless the court otherwise orders or the demanding party and the responding party consent, a copy of a document specified in a notice to admit must be attached to the notice to admit when it is served.

Unreasonable refusal to admit

(4)If a responding party unreasonably denies or refuses to admit the truth of a fact or the authenticity of a document specified in a notice to admit, the court may order the party to pay the costs of proving the truth of the fact or the authenticity of the document and may award as a penalty additional costs, or deprive a party of costs, as the court considers appropriate.

Withdrawal of admission

(5)A party is not entitled to withdraw

(a) an admission made in response to a notice to admit,

(b) a deemed admission under subrule (2), or

(c) an admission made in a pleading, petition or response to petition

except by consent or with leave of the court.

Application for order on admissions

(6)An application for judgment or any other application may be made to the court using as evidence

(a) admissions of the truth of a fact or the authenticity of a document made

(i)   in an affidavit or pleading filed by a party,

(ii)   in an examination for discovery of a party or a person examined for discovery on behalf of a party, or

(iii)   in response to a notice to admit, or

(b) admissions of the truth of a fact or the authenticity of a document deemed to be made under subrule (2)

and the court, without waiting for the determination of any other question between the parties, may make any order it considers will further the object of these Supreme Court Civil Rules.

Rule 7-8 — Depositions

Examination of person

(1)By consent of the parties of record or by order of the court, a person may be examined on oath before or during trial in order that the record of the examination may be available to be tendered as evidence at the trial.

Examination of person

(2)An examination under subrule (1) may be conducted before an official reporter or any other person as the court may direct.

Grounds for order

(3)In determining whether to exercise its discretion to order an examination under subrule (1), the court must take into account

(a) the convenience of the person sought to be examined,

(b) the possibility that the person may be unavailable to testify at the trial by reason of death, infirmity, sickness or absence,

(c) the possibility that the person will be beyond the jurisdiction of the court at the time of the trial,

(d) the possibility and desirability of having the person testify at trial by video conferencing or other electronic means, and

(e) the expense of bringing the person to the trial.

Time limits

(4)In an order under subrule (1), the court may impose limits on the duration of the direct examination or cross examination of a person under this rule.

Subpoena

(5)If the court makes an order under subrule (1) entitling a party to examine a person under this rule, the party may, by serving on the person to be examined a subpoena in Form 25, require the person to bring to the examination,

(a) if the person to be examined is not a party of record or a representative of a party of record, any document in the person's possession or control relating to the matters in question in the action, and

(b) any physical object in the person's possession or control that the examining party contemplates tendering at the trial as an exhibit.

Identification of documents and objects

(6)A subpoena referred to in subrule (5)

(a) need not identify any document referred to in subrule (5) (a), and

(b) must identify any object referred to in subrule (5) (b).

Place of examination

(7)Unless the court otherwise orders or the parties to the examination consent, an examination under this rule must take place at a location within 30 kilometres of the registry that is nearest to the place where the person to be examined resides.

Application of rule outside British Columbia

(8)So far as is practicable, this rule applies to the examination of a person residing outside British Columbia, and the court may order the examination of a person in the place and the manner the court considers appropriate.

If person willing to testify

(9)If the person whose examination is ordered under subrule (8) is willing to testify, the order under subrule (8) must be in Form 27 and the instructions to the examiner appointed in the order must be in Form 28.

If person not willing to testify

(10)If the person whose examination is ordered under subrule (8) is unwilling to testify, or if for any other reason the assistance of a foreign court is necessary, the order under subrule (8) must be in Form 29 and the letter of request referred to in the order must be in Form 30.

Letter of request

(11)If an order referred to in subrule (10) is made, the letter of request must be sent by the party obtaining the order to the Under Secretary of State for External Affairs of Canada (or, if the evidence is to be taken in Canada, to the Deputy Attorney General for the Province of British Columbia), and must have attached to it

(a) any interrogatories to be put to the witness,

(b) a list of the names, addresses and telephone numbers of the lawyers or agents of the parties, both in British Columbia and in the other jurisdiction, and

(c) a copy of the letter of request and any interrogatories

(i)   translated into the appropriate official language of the jurisdiction where the examination is to take place, and

(ii)   bearing the certificate of the translator that it is a true translation and giving the translator's full name and address.

Filing of undertaking

(12)The lawyer for the party obtaining the order referred to in subrule (10) must file with the Under Secretary of State for External Affairs of Canada (or the Deputy Attorney General for the Province of British Columbia, as the case may be) the lawyer's undertaking to be personally responsible for all the charges and expenses incurred by the Under Secretary (or the Deputy Attorney General, as the case may be) in respect of the letter of request and to pay those charges and expenses on receiving notification of the amount.

Notice of examination

(13)The examining party must give notice of an examination under this rule by serving copies of the subpoena referred to in subrule (5) on all parties of record at least 7 days before the date appointed for the examination.

Mode of examination

(14)The examining party must conduct a direct examination of the witness and the witness is subject to cross-examination and re-examination.

Objection to question

(15)If an objection is made to a question put to a witness in an examination under this rule,

(a) the question and the objection must be taken down by the official reporter,

(b) the validity of the objection may, on application, be decided by the court, and

(c) the court may, on an application referred to in paragraph (b), order the witness to submit to further examination.

Recording of deposition evidence

(16)Unless otherwise ordered, an examination under this rule must be recorded by the person authorized under subrule (2) to conduct the examination

(a) in the form of questions and answers, or

(b) on a video recording.

Preserving testimony

(17)If a person alleges that

(a) circumstances exist that entitle the person to receive an estate or interest in property on the happening of a future event, and

(b) the right or claim to that estate or interest cannot be brought to trial or hearing by the person before the happening of the event,

the person may apply by petition or by requisition in Form 31 for an order to preserve, by examination under this rule, any testimony that may be material for establishing the right or claim.

Part 8 — Applications

Rule 8-1 — How to Bring and Respond to Applications

Definitions

(1)In this rule:

"application respondent" means a person who files an application response under subrule (9);

"business day" means a day on which the court registries are open for business.

[en. B.C. Reg. 241/2010, Sch. A, s. 1 (a).]

How applications must be brought

(2)To apply for an order from the court other than at trial or at the hearing of a petition, a party must do the following:

(a) in the case of an application for an order by consent, apply in accordance with

(i)   this rule, or

(ii)   Rule 8-3;

(b) in the case of an application of which notice need not be given, apply in accordance with

(i)   this rule, or

(ii)   Rule 8-4;

(c) in the case of an urgent application, apply in accordance with Rule 8-5;

(d) in the case of an application referred to in Rule 8-6 that may be made by written submissions, apply in accordance with the directions of the case planning conference judge referred to in Rule 8-6;

(e) in the case of an application for which a procedure is provided for by these Supreme Court Civil Rules, apply in accordance with that procedure;

(f) in the case of any other application, apply in accordance with this rule.

[The ability of a party to a fast track action to bring an application under this Part may be limited – see Rule 15-1 (7) to (9).]

Notice of application

(3)A party wishing to apply under this rule must file

(a) a notice of application, and

(b) the original of every affidavit, and of every other document, that

(i)   is to be referred to by the applicant at the hearing, and

(ii)   has not already been filed in the proceeding.

Contents of notice of application

(4)A notice of application must be in Form 32 and must

(a) set out the orders sought or attach a draft of the order sought,

(b) briefly summarize the factual basis for the application,

(c) set out the rule, enactment or other jurisdictional authority relied on for the orders sought and any other legal arguments on which the orders sought should be granted,

(d) list the affidavits and other documents on which the applicant intends to rely at the hearing of the application,

(e) set out the applicant's estimate of the time the application will take for hearing,

(f) subject to subrules (5) and (6), set out the date and time of the hearing of the application,

(g) set out the place for the hearing of the application in accordance with Rule 8-2, and

(h) provide the data collection information required in the appendix to the form,

and the notice of application, other than any draft order attached to it under paragraph (a), must not exceed 10 pages in length.

[en. B.C. Reg. 241/2010, Sch. A, s. 1 (b).]

Date and time of hearing

(5)Subject to subrule (6), the hearing of an application must be set for 9:45 a.m. on a date on which the court hears applications or at such other time or date as has been fixed by the court or a registrar.

Date and time if hearing time more than 2 hours

(6)If the applicant's estimate referred to in subrule (4) (e) is more than 2 hours, the date and time of hearing must be fixed by a registrar.

[am. B.C. Reg. 119/2010, Sch. A, s. 17 (a).]

Service of application materials

(7)The applicant must serve the following, in accordance with subrule (8), on each of the parties of record and on every other person who may be affected by the orders sought:

(a) a copy of the filed notice of application;

(b) a copy of each of the filed affidavits and documents, referred to in the notice of application under subrule (4) (d), that has not already been served on that person;

(c) if the application is brought under Rule 9-7, any notice that the applicant is required to give under Rule 9-7 (9).

Time for service

(8)The documents referred to in subrule (7) of this rule must be served,

(a) subject to paragraph (b) of this subrule, at least 8 business days before the date set for the hearing of the application, or

(b) in the case of an application under Rule 9-7, at least 12 business days before the date set for the hearing of the application.

[am. B.C. Reg. 241/2010, Sch. A, s. 1 (c) and (d).]

Application response

(9)A person who is served with documents referred to in subrule (7) of this rule and who wishes to respond to the notice of application (in this subrule called the "responding person") must do the following within 5 business days after service or, in the case of an application under Rule 9-7, within 8 business days after service:

(a) file an application response;

(b) file the original of every affidavit, and of every other document, that

(i)   is to be referred to by the responding person at the hearing, and

(ii)   has not already been filed in the proceeding;

(c) serve on the applicant 2 copies of the following, and on every other party of record one copy of the following:

(i)   a copy of the filed application response;

(ii)   a copy of each of the filed affidavits and documents, referred to in the application response under subrule (10) (b) (ii), that has not already been served on that person;

(iii)   if the application is brought under Rule 9-7, any notice that the application respondent is required to give under Rule 9-7 (9).

[en. B.C. Reg. 241/2010, Sch. A, s. 1 (e).]

Contents of application response

(10)An application response must be in Form 33, must not exceed 10 pages in length and must

(a) indicate, for each order sought on the application, whether the application respondent consents to, opposes or takes no position on the order, and

(b) if the application respondent wishes to oppose any of the relief sought in the application,

(i)   briefly summarize the factual and legal bases on which the orders sought should not be granted,

(ii)   list the affidavits and other documents to which the application respondent intends to refer at the hearing of the application, and

(iii)   set out the application respondent's estimate of the time the application will take for hearing.

[am. B.C. Reg. 241/2010, Sch. A, s. 1 (f).]

Address for service

(11)An application respondent who has not yet provided an address for service in the proceeding must include an address for service in any application response filed under subrule (9), and Rule 4-1 applies.

Repealed

(12)Repealed. [B.C. Reg. 241/2010, Sch. A, s. 1 (g).]

Applicant may respond

(13)An applicant who wishes to respond to any document served under subrule (9) must file and serve on each application respondent any responding affidavits no later than 4 p.m. on the business day that is one full business day before the date set for the hearing.

[am. B.C. Regs. 119/2010, Sch. A, s. 17 (b); 241/2010, Sch. A, s. 1 (h) and (i).]

No additional affidavits

(14)Unless all parties of record consent or the court otherwise orders, a party must not serve any affidavits additional to those served under subrules (7), (9) and (13).

[am. B.C. Reg. 241/2010, Sch. A, s. 1 (h).]

Application record

(15)Subject to subrule (18), 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, an application record as follows:

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

(b) the application 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 application respondents;

(ii)   an index;

(iii)   a copy of the filed notice of application;

(iv)   a copy of each filed application response;

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

(vi)   if the application is brought under Rule 9-7, a copy of each filed pleading;

(c) the application record may contain

(i)   a draft of the proposed order,

(ii)   subject to subrule (16), a written argument,

(iii)   a list of authorities and

(iv)   a draft bill of costs;

(d) the application record must not contain

(i)   affidavits of service,

(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 all the parties of record.

[am. B.C. Regs. 119/2010, Sch. A, s. 17 (c) and (d); 241/2010, Sch. A, s. 1 (i).]

Written argument

(16)Unless an application is estimated to take more than 2 hours, no party to the application may file or submit to the court a written argument in relation to the application other than that included in the party's notice of application or application response.

Service of application record index

(17)The applicant must serve a copy of the application record index on each application respondent no later than 4 p.m. on the business day that is one full business day before the date set for the hearing.

[am. B.C. Reg. 241/2010, Sch. A, s. 1 (j).]

If application respondent's application is to be heard at the hearing

(18)If an application respondent intends to set an application for hearing at the same time as the applicant's application, those parties must, so far as is possible, prepare and provide to the registry where the hearing is to take place a joint application record and agree to a date for the hearing of both applications.

[am. B.C. Reg. 119/2010, Sch. A, s. 17 (e).]

Application record to be returned

(19)Unless the court otherwise orders, the applicant must retrieve the application record

(a) at the conclusion of the hearing, or

(b) if the hearing of the application is adjourned to a date later than the following business day, after the hearing is adjourned.

[am. B.C. Regs. 119/2010, Sch. A, s. 17 (f); 241/2010, Sch. A, s. 1 (k).]

Application record to be returned to the registry

(20)If the application record has been retrieved by the applicant under subrule (19) (b), the applicant must return the application record to the registry between 9:00 a.m. and 4 p.m. on the business day that is one full business day before the new date set for the hearing of the application.

[am. B.C. Regs. 119/2010, Sch. A, s. 18; 241/2010, Sch. A, s. 1 (l).]

Provision of amended application record

(21)If any additional affidavits are filed and served under subrule (14) and are not included in the application record, the applicant must provide to the registry an amended application record containing those affidavits.

Resetting adjourned applications

(21.1)To reset an application that has been adjourned without a date being set for it to be heard ("adjourned generally"), the applicant must

(a) file a requisition in Form 17 setting out the date and time of the hearing, and

(b) serve a copy of the filed requisition on the application respondents at least 2 business days before the date set for the hearing.

[en. B.C. Reg. 119/2010, Sch. A, s. 17 (g); am. B.C. Reg. 241/2010, Sch. A, s. 1 (m).]

Application respondent may apply for directions

(22)If, after an application has been adjourned generally, the applicant does not reset the application for hearing within a reasonable time after an application respondent has requested the applicant to do so, an application respondent may apply, by requisition in Form 17 on 2 business days' notice, for directions.

[am. B.C. Regs. 119/2010, Sch. A, s. 17 (h); 241/2010, Sch. A, s. 1 (n).]

Rule 8-2 — Place Application Is Heard

Place of hearing of application

(1)An application may be heard at

(a) the place ordered by a registrar under subrule (4),

(b) if an order is not made under subrule (4), the place on which all parties of record have agreed, or

(c) if paragraphs (a) and (b) do not apply, a place at which the court normally sits in the judicial district in which the proceeding is being conducted.

If more than one place

(2)If there is more than one place within the judicial district referred to in subrule (1) (c) at which the court normally sits, the applicant may name, as the place for hearing, any of those places.

If place of hearing is a place other than that at which the proceeding is being conducted

(3)If, under subrule (2), the applicant names as the place for hearing a place that is different than the place at which the proceeding is being conducted, the court may, if the court considers that it was unreasonable to have that named place as the place of hearing, make a special order as to costs and may

(a) order that the application be heard at some other place,

(b) dismiss the application, or

(c) hear the application.

Place of hearing of application with leave of registrar

(4)If a registrar is satisfied that, due to urgency or the convenience of the parties, an application should be heard at a place outside the judicial district in which the proceeding is being conducted, the registrar may, without notice, grant leave for the applicant to do either or both of the following:

(a) file the notice of application in some other judicial district;

(b) name as the place of hearing a place in that other judicial district.

Notice of application must be endorsed to reflect grant of leave

(5)If a registrar grants leave under subrule (4), he or she must endorse the notice of application accordingly.

If place of hearing is a place chosen with leave of registrar

(6)If, in respect of an application for which leave was granted under subrule (4), the court at the hearing of the application considers that the application should not be heard at that place, the court may make a special order as to costs and may

(a) order that the application be heard at some other place,

(b) dismiss the application, or

(c) hear the application.

Repealed

(7-8)Repealed. [B.C. Reg. 119/2010, Sch. A, s. 19.]

Rule 8-3 — Consent Applications

Application by consent

(1)Subject to subrule (2), an application for an order by consent may be made by filing

(a) a requisition in Form 31,

(b) a draft of the proposed order in Form 34,

(c) evidence, in accordance with Rule 13-1 (10), that the application is consented to, and

(d) any consent or comments of the Public Guardian and Trustee required under section 40 of the Infants Act.

Consent order

(2)On being satisfied that an application referred to in subrule (1) of this rule is consented to and that the materials appropriate for the application have been filed in accordance with subrule (1), a registrar may

(a) refer the application to a judge or, if the order sought is within the jurisdiction of a master, to a judge or master, or

(b) if the registrar is satisfied that

(i)   none of the parties applying for or consenting to the order is under a legal disability, or

(ii)   if a party is under a legal disability, section 40 (7) of the Infants Act applies,

enter the order or proceed under paragraph (a) of this subrule.

Disposition of referred applications

(3)If an application is referred by a registrar to a judge or master under subrule (2), the judge or master may

(a) make the order, or

(b) give directions respecting the application.

Rule 8-4 — Applications of Which Notice Is Not Required

Application of which notice is not required

(1)An application of which notice is not required may be made by filing

(a) a requisition in Form 31,

(b) a draft of the proposed order in Form 35, and

(c) affidavit or other evidence in support of the application.

[am. B.C. Reg. 119/2010, Sch. A, s. 20 (a).]

Repealed

(2-3)Repealed. [B.C. Reg. 119/2010, Sch. A, s. 20 (b).]

Rule 8-5 — Urgent Applications

When Applications May Be Heard on Short Notice

Short notice

(1)Without limiting subrule (6), in case of urgency, a person wishing to bring an application (in this subrule and in subrules (2) to (5) called the "main application") on less notice than would normally be required may make an application (in this subrule and in subrules (2) to (4) called the "short notice application") for an order that the main application may be brought on short notice.

How to make a short notice application

(2)A short notice application may be made by requisition in Form 17, without notice, and in a summary way.

Normal time and notice rules don't apply

(3)The time limits and notice requirements provided in these Supreme Court Civil Rules do not apply to a short notice application.

Powers of court on short notice application

(4)On a short notice application, the court or a registrar may

(a) order that the main application be heard on short notice,

(b) fix the date and time for the main application to be heard,

(c) fix the date and time before which service of documents applicable to the main application must be made, and

(d) give any other directions that the court or registrar considers will further the object of these Supreme Court Civil Rules.

Effect of short notice order

(5)If an order is made under subrule (4) that the main application be heard on short notice, the time limits and notice requirements provided in these Supreme Court Civil Rules do not apply to the main application.

When Applications May Be Heard without Any Notice

Orders without notice

(6)The court may make an order without notice in the case of urgency.

Service of orders required

(7)Promptly after an order is made without notice by reason of urgency, the party who obtained the order must serve a copy of the entered order and the documents filed in support on each person who is affected by the order.

Setting aside orders made without notice

(8)On the application of a person affected by an order made without notice under subrule (6), the court may change or set aside the order.

Rule 8-6 — Applications Made by Written Submissions

Application made by written submissions

(1)If an order is made at a case planning conference that an application may be made by written submissions,

(a) the case planning conference judge or master must give directions respecting the application, including directions respecting

(i)   the documents to be filed in support of the application, and

(ii)   the persons on whom and the dates by which the documents referred to in subparagraph (i) and any other documents the judge or master may identify must be served, and

(b) the application may be made in the manner provided for in those directions.

Part 9 — Pre-Trial Resolution Procedures

Rule 9-1 — Offers to Settle

Definition

(1)In this rule, "offer to settle" means

(a) an offer to settle made and delivered before July 2, 2008 under Rule 37 of the former Supreme Court Rules, as that rule read on the date of the offer to settle, and in relation to which no order was made under that rule,

(b) an offer of settlement made and delivered before July 2, 2008 under Rule 37A of the former Supreme Court Rules, as that rule read on the date of the offer of settlement, and in relation to which no order was made under that rule, or

(c) an offer to settle made after July 1, 2008 under Rule 37B of the former Supreme Court Rules, as that rule read on the date of the offer to settle, or made under this rule, that

(i)   is made in writing by a party to a proceeding,

(ii)   has been served on all parties of record, and

(iii)   contains the following sentence: "The ............[party(ies)]............, ............[name(s) of party(ies)]............, reserve(s) the right to bring this offer to the attention of the court for consideration in relation to costs after the court has pronounced judgment on all other issues in this proceeding."

Offer not to be disclosed

(2)The fact that an offer to settle has been made must not be disclosed to the court or jury, or set out in any document used in the proceeding, until all issues in the proceeding, other than costs, have been determined.

Offer not an admission

(3)An offer to settle is not an admission.

Offer may be considered in relation to costs

(4)The court may consider an offer to settle when exercising the court's discretion in relation to costs.

Cost options

(5)In a proceeding in which an offer to settle has been made, the court may do one or more of the following:

(a) deprive a party of any or all of the costs, including any or all of the disbursements, to which the party would otherwise be entitled in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle;

(b) award double costs of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle;

(c) award to a party, in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle, costs to which the party would have been entitled had the offer not been made;

(d) if the offer was made by a defendant and the judgment awarded to the plaintiff was no greater than the amount of the offer to settle, award to the defendant the defendant's costs in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle.

[am. B.C. Reg. 119/2010, Sch. A, s. 21.]

Considerations of court

(6)In making an order under subrule (5), the court may consider the following:

(a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or served or on any later date;

(b) the relationship between the terms of settlement offered and the final judgment of the court;

(c) the relative financial circumstances of the parties;

(d) any other factor the court considers appropriate.

Costs for settlement in cases within small claims jurisdiction

(7)A plaintiff who accepts an offer to settle for a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.

Counter offer

(8)An offer to settle does not expire by reason that a counter offer is made.

Rule 9-2 — Settlement Conferences

Settlement conference

(1)If, at any stage of an action, the parties of record jointly request a settlement conference by filing a requisition in Form 17 or a judge or master directs that the parties attend a settlement conference, the parties must attend before a judge or master who must, in private and without hearing witnesses, explore all possibilities of settlement of the issues that are outstanding.

[am. B.C. Reg. 95/2011, Sch. A, s. 3.]

Proceedings must be recorded

(2)Proceedings at a settlement conference must be recorded, but no part of that recording may be made available to or used by any person without court order.

When judge must not preside

(3)A judge who has presided at a settlement conference must not preside at the trial, unless all parties consent.

Rule 9-3 — Special Case

Statement of special case

(1)The parties to a proceeding may concur in stating a question of law or fact, or partly of law and partly of fact, in the form of a special case for the opinion of the court.

Court may order special case

(2)The court may order a question or issue arising in a proceeding, whether of fact or law or partly of fact and partly of law, and whether raised by the pleadings or otherwise, to be stated in the form of a special case.

Form of special case

(3)A special case must

(a) be divided into paragraphs numbered consecutively,

(b) state concisely such facts and set out or refer to such documents as may be necessary to enable the court to decide the questions stated, and

(c) be signed by the parties or their lawyers.

Hearing of special case

(4)On the hearing of a special case, the court and the parties may refer to any document mentioned in the special case, and the court may draw from the stated facts and documents any inference, whether of fact or law, that might have been drawn from them if proved at a trial or hearing.

Order after hearing of special case

(5)With the consent of the parties, on any question in a special case being answered, the court may grant specific relief or order judgment to be entered.

Rule 9-4 — Proceedings on a Point of Law

Point of law may be set down for hearing

(1)A point of law arising from the pleadings in an action may, by consent of the parties or by order of the court, be set down by requisition in Form 17 for hearing and disposed of at any time before the trial.

Court may dispose of whole action

(2)If, in the opinion of the court, the decision on the point of law substantially disposes of the whole action or of any distinct claim, ground of defence, set-off or counterclaim, the court may dismiss the action or make any order it considers will further the object of these Supreme Court Civil Rules.

Rule 9-5 — Striking Pleadings

Scandalous, frivolous or vexatious matters

(1)At any stage of a proceeding, the court may order to be struck out or amended the whole or any part of a pleading, petition or other document on the ground that

(a) it discloses no reasonable claim or defence, as the case may be,

(b) it is unnecessary, scandalous, frivolous or vexatious,

(c) it may prejudice, embarrass or delay the fair trial or hearing of the proceeding, or

(d) it is otherwise an abuse of the process of the court,

and the court may pronounce judgment or order the proceeding to be stayed or dismissed and may order the costs of the application to be paid as special costs.

[am. B.C. Reg. 119/2010, Sch. A, s. 22.]

Admissibility of evidence

(2)No evidence is admissible on an application under subrule (1) (a).

Powers of registrar

(3)If, on the filing of a document, a registrar considers that the whole or any part of the document could be the subject of an order under subrule (1),

(a) the registrar may, despite any other provision of these Supreme Court Civil Rules,

(i)   retain the document and all filed copies of it, and

(ii)   refer the document to the court, and

(b) the court may, after a summary hearing, make an order under subrule (1).

Reconsideration of order

(4)If the court makes an order referred to in subrule (3) (b),

(a) the registrar must give notification of the order, in the manner directed by the court, to the person who filed the document,

(b) the person who filed the document may, within 7 days after being notified, apply to the court, and

(c) the court may confirm, vary or rescind the order.

Rule 9-6 — Summary Judgment

Definitions

(1)In this rule:

"answering party", in relation to a claiming party's originating pleading, means a person who serves, on the claiming party, a responding pleading that relates to a claim made in the originating pleading;

"claiming party" means a party who filed an originating pleading.

Application

(2)In an action, a person who files an originating pleading in which a claim is made against a person may, after the person against whom the claim is made serves a responding pleading on the claiming party, apply under this rule for judgment against the answering party on all or part of the claim.

Response to application

(3)An answering party may respond to an application for judgment under subrule (2) as follows:

(a) the answering party may allege that the claiming party's originating pleading does not raise a cause of action against the answering party;

(b) if the answering party wishes to make any other response to the application, the answering party may not rest on the mere allegations or denials in his or her pleadings but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue for trial.

Application by answering party

(4)In an action, an answering party may, after serving a responding pleading on a claiming party, apply under this rule for judgment dismissing all or part of a claim in the claiming party's originating pleading.

Power of court

(5)On hearing an application under subrule (2) or (4), the court,

(a) if satisfied that there is no genuine issue for trial with respect to a claim or defence, must pronounce judgment or dismiss the claim accordingly,

(b) if satisfied that the only genuine issue is the amount to which the claiming party is entitled, may order a trial of that issue or pronounce judgment with a reference or an accounting to determine the amount,

(c) if satisfied that the only genuine issue is a question of law, may determine the question and pronounce judgment accordingly, and

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

Claiming party may proceed

(6)If, under this rule, a claiming party obtains judgment against a person on a claim made against that person in the originating pleading, the judgment is without prejudice to the right of the claiming party to

(a) proceed with the action in respect of any other claim made, in the originating pleading, against the person against whom the judgment was obtained, and

(b) proceed with the action against any other person against whom a claim is made in the originating pleading.

Costs consequences

(7)Subject to subrule (8), if the party applying under subrule (2) or (4) obtains no relief on the application, the court may

(a) fix the costs of the party responding to the application, and

(b) fix the period within which those costs must be paid.

Court may decline to fix costs

(8)The court may decline to fix and order costs under subrule (7) if the court is satisfied that the application under subrule (2) or (4), although unsuccessful, was nevertheless reasonable.

Bad faith or delay

(9)If it appears to the court that a party to an application under subrule (2) or (4) has acted in bad faith or primarily for the purpose of delay, the court may

(a) fix the costs of the application as special costs, and

(b) fix the period within which those costs must be paid.

Rule 9-7 — Summary Trial

Definition

(1)In this rule, "summary trial application" means an application referred to in subrule (2).

Application

(2)A party may apply to the court for judgment under this rule, either on an issue or generally, in any of the following:

(a) an action in which a response to civil claim has been filed;

(b) a proceeding that has been transferred to the trial list under Rule 22-1 (7) (d);

(c) a third party proceeding in which a response to third party notice has been filed;

(d) an action by way of counterclaim in which a response to counterclaim has been filed.

When application must be heard

(3)A summary trial application must be heard at least 42 days before the scheduled trial date.

Setting application for hearing

(4)Unless the court otherwise orders, a summary trial application must be set for hearing in accordance with Rule 8-1.

Evidence on application

(5)Unless the court otherwise orders, on a summary trial application, the applicant and each other party of record may tender evidence by any or all of the following:

(a) affidavit;

(b) an answer, or part of an answer, to interrogatories;

(c) any part of the evidence taken on an examination for discovery;

(d) an admission under Rule 7-7;

(e) a report setting out the opinion of an expert, if

(i)   the report conforms with Rule 11-6 (1), or

(ii)   the court orders that the report is admissible even though it does not conform with Rule 11-6 (1).

Application of Rule 12-5

(6)Rule 12-5 (46), (49), (50), (51), (56) to (58) applies to subrule (5) of this rule.

Application of Rule 11-6

(7)Rule 11-6 (2) applies to a summary trial application.

[am. B.C. Reg. 119/2010, Sch. A, s. 23.]

Filings with application

(8)A party who applies for judgment under subrule (2)

(a) must serve, with the notice of application and the other documents referred to in Rule 8-1 (3), every expert report, not already filed, on which the party will rely in support of the application, and

(b) must not serve any further affidavits, expert reports or notices except

(i)   to tender evidence that would, at a trial, be admitted as rebuttal evidence,

(ii)   to respond to a notice of application filed and served by another party of record, or

(iii)   with leave of the court.

Notice of evidence to be used on application

(9)If a party intends, on a summary trial application, to rely on

(a) evidence taken on an examination for discovery,

(b) answers to interrogatories, or

(c) admissions,

the party must give notice of that fact in accordance with subrule (10).

Giving notice

(10)Notice under subrule (9) must be given

(a) by an applicant, in accordance with Rule 8-1 (7) and (8), and

(b) by a party who is not an applicant, in accordance with Rule 8-1 (9).

[am. B.C. Reg. 241/2010, Sch. A, s. 2.]

Adjournment or dismissal

(11)On an application heard before or at the same time as the hearing of a summary trial application, the court may

(a) adjourn the summary trial application, or

(b) dismiss the summary trial application on the ground that

(i)   the issues raised by the summary trial application are not suitable for disposition under this rule, or

(ii)   the summary trial application will not assist the efficient resolution of the proceeding.

Preliminary orders

(12)On or before the hearing of a summary trial application, the court may order that

(a) a party file and serve, within a fixed time, any of the following on which the party intends to rely in support of the application:

(i)   an affidavit;

(ii)   a notice referred to in subrule (9),

(b) the person who swore or affirmed an affidavit, or an expert whose report is relied on, attend for cross-examination, either before the court or before another person as the court directs,

(c) cross-examinations on affidavits be completed within a fixed time,

(d) no further evidence be tendered on the application after a fixed time, or

(e) a party file and serve a brief, with such contents as the court may order, within a fixed time.

Ancillary or preliminary orders may be made at or before application

(13)An order under subrule (11) or (12) may be made by a judge or by a master, and may be made before or at the same time as a summary trial application.

Judge not seized of application

(14)A judge who makes an order under subrule (11) or (12) in relation to a summary trial application is not seized of the summary trial application unless the judge otherwise orders.

Judgment

(15)On the hearing of a summary trial application, the court may

(a) grant judgment in favour of any party, either on an issue or generally, unless

(i)   the court is unable, on the whole of the evidence before the court on the application, to find the facts necessary to decide the issues of fact or law, or

(ii)   the court is of the opinion that it would be unjust to decide the issues on the application,

(b) impose terms respecting enforcement of the judgment, including a stay of execution, and

(c) award costs.

No further application without leave

(16)If the court does not grant judgment under subrule (15), the applicant may not apply again under subrule (2) without leave of the court.

Orders

(17)If the court is unable to grant judgment under subrule (15) and considers that the proceeding ought to be expedited, the court may order the trial of a proceeding generally or on an issue and may

(a) order that the parties attend a case planning conference,

(b) make any order that may be made under Rule 5-3 (1), or

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

Right to vary or set aside order

(18)A court may, before or at trial, vary or set aside an order made under subrules (12) and (17) of this rule.

Order if jury notice filed

(19)A party may apply to the court for judgment under subrule (2) even though a party may have filed a notice under Rule 12-6 (3) requiring that the trial of the action be heard with a jury.

Rule 9-8 — Discontinuance and Withdrawal

Discontinuance before action set for trial

(1)At any time before a notice of trial is filed in an action, a plaintiff may discontinue it in whole or in part against a defendant by filing a notice of discontinuance in Form 36 and serving a filed copy of the notice of discontinuance on all parties of record.

Discontinuance after action set for trial

(2)After a notice of trial is filed in an action, a plaintiff may discontinue the action in whole or in part against a defendant with the consent of all parties of record or by leave of the court.

Withdrawal by defendant

(3)A defendant may withdraw his or her response to civil claim or any part of it with respect to any plaintiff at any time by filing a notice of withdrawal in Form 37 and serving a filed copy of the notice of withdrawal on all parties of record.

Costs and default procedure on discontinuance or withdrawal

(4)Subject to subrule (2), a person wholly discontinuing an action against a party or wholly withdrawing his or her response to civil claim filed in response to a notice of civil claim of a party must pay the costs of that party to the date of service of the notice of discontinuance or the notice of withdrawal, as the case may be, and if a plaintiff who is liable for costs under this subrule subsequently brings a proceeding for the same or substantially the same claim before paying those costs, the court may order the proceeding to be stayed until the costs are paid.

Third party entitled to costs

(5)If a plaintiff discontinues the whole or any part of an action in which a person has been joined as a third party, the third party, if the discontinuance disposes of the claim against the third party, is entitled to costs and may apply to the court for a direction as to who should pay them.

Some costs remain recoverable

(6)A plaintiff's right to recover costs from a defendant under subrule (4) does not preclude the plaintiff recovering other costs properly incurred.

Proceeding after response is withdrawn

(7)If a defendant wholly or partly withdraws his or her response under this rule, the plaintiff may proceed under Rule 3-8 as if the defendant had served no response or only a partial response.

Discontinuance not a defence

(8)Unless the court otherwise orders, the discontinuance of an action in whole or in part is not a defence to a subsequent proceeding for the same or substantially the same cause of action.

Application to counterclaim, third party proceeding and petition.

(9)This rule applies to a counterclaim, a third party proceeding and a petition.

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