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 10 — Property and Injunctions

Rule 10-1 — Detention, Preservation and Recovery of Property

Property that is the subject matter of a proceeding

(1)The court may make an order for the detention, custody or preservation of any property that is the subject matter of a proceeding or as to which a question may arise and, 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.

Fund that is the subject matter of a proceeding

(2)If the right of a party to a specific fund is in dispute in a proceeding, the court may order the fund to be paid into court or otherwise secured.

Allowance of income from property

(3)If property is the subject matter of a proceeding and the court is satisfied that the property will be more than sufficient to answer all claims on it, the court at any time

(a) may allow the whole or part of the income of the property to be paid, during such period as the court may direct, to a party who has an interest in it, or

(b) in the case of personal property, may order that part of the personal property be delivered or transferred to a party.

Recovery of specific property

(4)If a party claims the recovery of specific property other than land, the court may order that the property claimed be given up to the party, pending the outcome of the proceeding, either unconditionally or on terms and conditions, if any, relating to giving security, time, mode of trial or otherwise.

Compensation for wrongful recovery

(5)Unless the court otherwise orders, if an order is made under subrule (4) in favour of a party, the order must contain the party's undertaking to abide by any order that the court may make as to damages arising out of delivery of the property to the party or compliance with any other order.

Rule 10-2 — Receivers

Appointment of receiver

(1)The court may appoint a receiver in any proceeding either unconditionally or on terms, whether or not the appointment of a receiver was included in the relief claimed by the applicant.

Form of security

(2)Unless the court otherwise orders, a receiver must give security as the court may direct in either Form 38 or Form 39 and, until that security is given, the order appointing the receiver must not be presented for entry.

Remuneration of receiver

(3)The court must fix any remuneration to be paid to a receiver.

Accounts of receiver

(4)Unless the court otherwise orders, a receiver must file and deliver his or her accounts annually.

Rule 10-3 — Interpleader

Entitlement to relief by way of interpleader

(1)If

(a) a person (in this rule called the "applicant")

(i)   is sued or expects to be sued in respect of property in the person's possession or under the person's control or in respect of the proceeds from a disposition of the property, or

(ii)   receives a claim in respect of

(A)  the property, or

(B)  the proceeds

by or from 2 or more persons (in this rule called the "property claimants") making adverse claims, and

(b) the applicant claims no beneficial interest in the property,

the applicant may apply to the court for interpleader relief.

Claim to real or personal property taken by sheriff

(2)A person who makes a claim to or in respect of property taken or intended to be taken by a sheriff in the execution of any writ of execution, or to the proceeds from a disposition of the property, must deliver to the sheriff written notice of the person's claim and the person's address.

Sheriff to deliver notice

(3)On receipt of a notice of claim under subrule (2), a sheriff must promptly deliver a copy of the notice to the person who caused the writ of execution to issue, and that person must, within 7 days after receiving the copy, deliver to the sheriff a written notice stating whether that person admits or disputes the claim.

If claim admitted

(4)Promptly after receiving under subrule (3) a notice admitting a claim,

(a) a sheriff must release any property the claim to which is admitted, and

(b) the court may restrain the bringing of a proceeding against the sheriff for or in respect of having taken possession of the property, and

unless the court otherwise orders, the person who admitted the claim is only liable to the sheriff for any costs, fees and expenses incurred by the sheriff before receipt of the notice admitting the claim.

Sheriff may apply for interpleader relief

(5)A sheriff who receives a notice of claim under subrule (2) may apply for interpleader relief if

(a) the sheriff receives a notice under subrule (3) disputing the claim, or

(b) the person who caused the writ of execution to issue fails to give the sheriff the notice required under subrule (3) within the time required by that subrule.

Mode of application

(6)An application for interpleader relief must be made by petition, unless it is made in a proceeding that has already been started, in which case it may be made by notice of application.

Affidavit

(7)An application for interpleader relief must be supported by an affidavit stating the names and addresses of the property claimants of whom the applicant has knowledge and that the applicant

(a) claims no beneficial interest in the property in dispute, other than for costs, fees or expenses,

(b) does not collude with any property claimant, and

(c) is willing to deliver the property to the court or to dispose of it as the court may direct.

Application for interpleader relief

(8)An application for interpleader relief may be made without notice, and the court may deal with the application summarily or may give directions for service.

Powers of court on hearing application

(9)On the hearing of an application for interpleader relief, the court may

(a) order a property claimant to be made a party to a proceeding that has already been started in substitution for or in addition to the applicant,

(b) order an issue between the property claimants to be stated and tried in an action and direct which property claimant is to be the plaintiff in the action and which property claimant is to be the defendant,

(c) on the request of the applicant or a property claimant, determine the rights of the property claimants summarily,

(d) if a property claimant fails to attend, or attends and fails or refuses to comply with an order made in the proceeding, make an order declaring that the property claimant and all persons claiming under the property claimant be forever barred from prosecuting the claim against the applicant, without affecting the rights of the property claimants as between themselves,

(e) stay any further step in a proceeding,

(f) if there are interpleader applications pending in several proceedings, make an order that is binding on all the parties to the various proceedings,

(g) order the costs of the applicant to be paid out of the property or proceeds,

(h) declare that the liability of the applicant with respect to the property or the proceeds is extinguished, and

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

Rule 10-4 — Injunctions

Applications for pre-trial injunctions

(1)An application for a pre-trial injunction may be made by a party whether or not a claim for an injunction is included in the relief claimed.

Applications for pre-trial injunctions before proceeding started

(2)An application for a pre-trial injunction may be made before the start of a proceeding and the injunction may be granted on terms providing for the start of the proceeding.

Applications for interim injunctions without notice

(3)If an application for a pre-trial injunction is made without notice, the court may grant an interim injunction.

Injunction by court order

(4)An injunction must be imposed by order of the court.

Undertaking as to damages

(5)Unless the court otherwise orders, an order for a pre-trial or interim injunction must contain the applicant's undertaking to abide by any order that the court may make as to damages.

Application for injunction after judgment

(6)In a proceeding in which an injunction has been or might have been claimed, a party may apply by petition after judgment to restrain another party from the repetition or continuance of the wrongful act or breach of contract established by the judgment or from the commission of any act or breach of a like kind.

Part 11 — Experts

Rule 11-1 — Application of Part 11

Application of this Part

(1)This Part does not apply to

(a) summary trials under Rule 9-7, except as provided in that rule, or

(b) a witness giving evidence in an action in relation to a matter if that witness is an individual whose conduct is in issue in the action in relation to that matter.

Case plan order

(2)Unless the court otherwise orders, if a case planning conference has been held in an action, expert opinion evidence must not be tendered to the court at trial unless provided for in the case plan order applicable to the action.

Rule 11-2 — Duty of Expert Witnesses

Duty of expert witness

(1)In giving an opinion to the court, an expert appointed under this Part by one or more parties or by the court has a duty to assist the court and is not to be an advocate for any party.

Advice and certification

(2)If an expert is appointed under this Part by one or more parties or by the court, the expert must, in any report he or she prepares under this Part, certify that he or she

(a) is aware of the duty referred to in subrule (1),

(b) has made the report in conformity with that duty, and

(c) will, if called on to give oral or written testimony, give that testimony in conformity with that duty.

Rule 11-3 — Appointment of Joint Experts

Appointment agreement

(1)If 2 or more parties who are adverse in interest wish to or are ordered under Rule 5-3 (1) (k) to jointly appoint an expert, the following must be settled before the expert is appointed:

(a) the identity of the expert;

(b) the issue in the action the expert opinion evidence may help to resolve;

(c) any facts or assumptions of fact agreed to by the parties;

(d) for each party, any assumptions of fact not included under paragraph (c) of this subrule that the party wishes the expert to consider;

(e) the questions to be considered by the expert;

(f) when the report must be prepared by the expert and given to the parties;

(g) responsibility for fees and expenses payable to the expert.

Appointment by parties

(2)If the parties agree on the matters referred to in subrule (1), they and the expert must enter into an agreement under subrule (6).

Application to court

(3)If the parties referred to in subrule (1) are unable to agree on the matters referred to in subrule (1), any party may apply, on an application under Part 8, at a case planning conference or at an application to amend the case plan order, to settle the terms of the expert's appointment.

Application materials

(4)Each of the parties referred to in subrule (1) must submit to the court, on any application for an order referred to in subrule (3), material that

(a) identifies the matters referred to in subrule (1) (a) to (h) that are in dispute and states his or her position on those matters,

(b) if the parties are unable to agree on the identity of the expert, names one or more persons who

(i)   are qualified to give expert opinion evidence on the issue, and

(ii)   have been made aware of the content of this Part and consent to being appointed as expert, and

(c) states any connection known to the party between a person named under paragraph (b) and a party to the action.

Powers of court

(5)On an application under subrule (3), the court may do one or more of the following:

(a) settle the terms of the appointment referred to in subrule (1) (a) to (h);

(b) if the parties are unable to agree on the identity of the expert, identify the person to be appointed as expert, whether or not that expert is named under subrule (4) (b);

(c) if the application is made at a case planning conference or at an application to amend a case plan order, make or amend a case plan order to reflect the orders made under paragraphs (a) and (b) of this subrule.

Agreement

(6)The parties referred to in subrule (1) must enter into an agreement that reflects the terms agreed on under subrule (2) or ordered under subrule (5), and

(a) the agreement must be signed by each party to the agreement,

(b) the agreement must be signed by the expert to signify that he or she

(i)   has been made aware of the content of this Part, and

(ii)   consents to the appointment reflected in the agreement, and

(c) a copy of the agreement must be served, promptly after signing, on every party of record who is not a party to the agreement.

Role of expert appointed under this rule

(7)Unless the court otherwise orders on an application referred to in subrule (8), if an agreement is made under this rule for a joint expert to give expert opinion evidence on an issue, the joint expert is the only expert who, in relation to the parties to the agreement, may give expert opinion evidence in the action on the issue.

Notice of application

(8)A party wishing to apply under subrule (7) for leave to tender the evidence of an additional expert at trial must, within 21 days after receipt of the joint expert's report, serve on all parties of record the documents that under Rule 8-1 (7) are required for the application.

Additional experts

(9)The court may, on an application referred to in subrule (8) of this rule, grant leave for the evidence of an additional expert to be tendered at trial if the court is satisfied that the evidence of that additional expert is necessary to ensure a fair trial.

Cross examination

(10)Each party of record, including each of the appointing parties, has the right to cross-examine at trial a joint expert appointed under this rule.

Common experts

(11)Nothing in this rule prevents parties who are not adverse in interest from appointing a common expert.

Rule 11-4 — Appointment of Own Experts

When each party may retain their own experts

(1)Subject to Rule 11-1 (2), parties to an action may each appoint their own experts to tender expert opinion evidence to the court on an issue.

Rule 11-5 — Appointment of Court's Own Expert

Appointment of experts by court

(1)Subject to this rule, the court may, on its own initiative at any stage of an action, appoint an expert if it considers that expert opinion evidence may help the court in resolving an issue in the action.

Materials required by court

(2)In deciding whether to appoint an expert under this rule in relation to an issue in an action, the court may

(a) ask each party of record to name one or more persons who

(i)   are qualified to give expert opinion evidence on the issue, and

(ii)   have been made aware of the content of this Part and consent to being appointed,

(b) require each party of record to state any connection between an expert named under paragraph (a) and a party to the action, and

(c) receive other material and make other inquiries to help decide which expert to appoint.

Court may name different expert

(3)The court may appoint an expert under this rule whether or not that expert was named by a party under subrule (2) (a).

Expert must consent

(4)The court may appoint an expert under this rule if the expert consents to the appointment after he or she has been made aware of the content of this Part.

Previous report not a bar

(5)The court may appoint an expert under this rule in relation to an issue even if that expert has already given a report to a party on the issue or on another issue in the action.

Consequences of court appointment

(6)Unless the court otherwise orders, if an expert is appointed under this rule to give expert opinion evidence on an issue, each party of record has the right to cross-examine the expert.

Directions to expert

(7)The court, after consultation with the parties of record, must

(a) settle the questions to be submitted to any expert appointed by the court under this rule,

(b) give the expert any directions the court considers appropriate, and

(c) give the parties of record any directions the court considers appropriate to facilitate the expert's ability to provide the required opinion.

Contents of order appointing expert

(8)The order appointing an expert under this rule must contain the directions referred to in subrule (7) and the court may make additional orders to enable the expert to carry out the directions applicable to him or her, including, on application by a party, an order under Rule 7-6 for

(a) an examination with respect to the physical or mental condition of a party, or

(b) inspection of property.

Remuneration of expert

(9)The remuneration of an expert appointed under this rule

(a) must be fixed by the court and consented to by the expert, and

(b) may include

(i)   a fee for the report, and any supplementary reports, required under Rule 11-6, and

(ii)   an appropriate sum for each day that the expert's attendance in court is required.

Security for remuneration

(10)The court may make one or both of the following orders without prejudice to any party's right to costs:

(a) an order directing that the expert's remuneration be paid by the persons and at the time ordered by the court;

(b) an order for security for the expert's remuneration.

Reports

(11)An expert appointed under this rule must

(a) prepare a report that complies with Rule 11-6 and send it to the registry, with a copy to each party of record, within such time as the court directs, and

(b) if the expert's opinion changes in a material way after an expert's report is sent to the registry under paragraph (a), prepare a supplementary report that complies with Rule 11-6 and send it to the registry, with a copy to each party of record, within such time as the court directs.

Report must be tendered as evidence

(12)Each report and supplementary report of an expert appointed by the court under this rule must be tendered as evidence at the trial of the action, unless the trial judge otherwise orders.

Rule 11-6 — Expert Reports

Requirements for report

(1)An expert's report that is to be tendered as evidence at the trial must be signed by the expert, must include the certification required under Rule 11-2 (2) and must set out the following:

(a) the expert's name, address and area of expertise;

(b) the expert's qualifications and employment and educational experience in his or her area of expertise;

(c) the instructions provided to the expert in relation to the proceeding;

(d) the nature of the opinion being sought and the issues in the proceeding to which the opinion relates;

(e) the expert's opinion respecting those issues;

(f) the expert's reasons for his or her opinion, including

(i)   a description of the factual assumptions on which the opinion is based,

(ii)   a description of any research conducted by the expert that led him or her to form the opinion, and

(iii)   a list of every document, if any, relied on by the expert in forming the opinion.

[am. B.C. Reg. 119/2010, Sch. A, s. 24.]

Proof of qualifications

(2)The assertion of qualifications of an expert is evidence of them.

Service of report

(3)Unless the court otherwise orders, at least 84 days before the scheduled trial date, an expert's report, other than the report of an expert appointed by the court under Rule 11-5, must be served on every party of record, along with written notice that the report is being served under this rule,

(a) by the party who intends, with leave of the court under Rule 11-3 (9) or otherwise, to tender the expert's report at trial, or

(b) if 2 or more parties jointly appointed the expert, by each party who intends to tender the expert's report at trial.

Service of responding report

(4)Unless the court otherwise orders, if a party intends to tender an expert's report at trial to respond to an expert witness whose report is served under subrule (3), the party must serve on every party of record, at least 42 days before the scheduled trial date,

(a) the responding report, and

(b) notice that the responding report is being served under this rule.

Supplementary report of joint or court-appointed expert

(5)If, after an expert's report is served under subrule (3) (b), the expert's opinion changes in a material way,

(a) the expert must, as soon as practicable, prepare a supplementary report and ensure that that supplementary report is provided to the party who served the report under subrule (3), and

(b) the party to whom the supplementary report is provided under paragraph (a) of this subrule must promptly serve that supplementary report on every other party of record.

Supplementary report of own expert

(6)If, after an expert's report is served under subrule (3) (a) or (4), the expert's opinion changes in a material way and the party who served the report intends to tender that expert's report at trial despite the change,

(a) the expert must, as soon as practicable, prepare a supplementary report and ensure that that supplementary report is provided to the party, and

(b) the party must promptly serve that supplementary report on every other party of record.

Requirements for supplementary report

(7)A supplementary report under Rule 11-5 (11) or under subrule (5) (a) or (6) (a) of this rule must

(a) be identified as a supplementary report,

(b) be signed by the expert,

(c) include the certification required under Rule 11-2 (2), and

(d) set out the change in the expert's opinion and the reason for it.

Production of documents

(8)Unless the court otherwise orders, if a report of a party's own expert appointed under Rule 11-3 (9) or 11-4 is served under this rule, the party who served the report must,

(a) promptly after being asked to do so by a party of record, serve on the requesting party whichever one or more of the following has been requested:

(i)   any written statement or statements of facts on which the expert's opinion is based;

(ii)   a record of any independent observations made by the expert in relation to the report;

(iii)   any data compiled by the expert in relation to the report;

(iv)   the results of any test conducted by or for the expert, or of any inspection conducted by the expert, if the expert has relied on that test or inspection in forming his or her opinion, and

(b) if asked to do so by a party of record, make available to the requesting party for review and copying the contents of the expert's file relating to the preparation of the opinion set out in the expert's report,

(i)   if the request is made within 14 days before the scheduled trial date, promptly after receipt of that request, or

(ii)   in any other case, at least 14 days before the scheduled trial date.

Notice of trial date to expert

(9)The person who is required to serve the report or supplementary report of an expert under this rule must, promptly after the appointment of the expert or promptly after a trial date has been obtained, whichever is later, inform the expert of the scheduled trial date and that the expert may be required to attend at trial for cross-examination.

Notice of objection to expert opinion evidence

(10)A party who receives an expert report or supplementary report under this Part must, on the earlier of the date of the trial management conference and the date that is 21 days before the scheduled trial date, serve on every party of record a notice of any objection to the admissibility of the expert's evidence that the party receiving the report or supplementary report intends to raise at trial.

When objection not permitted

(11)Unless the court otherwise orders, if reasonable notice of an objection could have been given under subrule (10), the objection must not be permitted at trial if that notice was not given.

Rule 11-7 — Expert Opinion Evidence at Trial

Reports must be prepared and served in accordance with rules

(1)Unless the court otherwise orders, opinion evidence of an expert, other than an expert appointed by the court under Rule 11-5, must not be tendered at trial unless

(a) that evidence is included in a report of that expert that has been prepared and served in accordance with Rule 11-6, and

(b) any supplementary reports required under Rule 11-5 (11) or 11-6 (5) or (6) have been prepared and served in accordance with Rule 11-6 (5) to (7).

When report stands as evidence

(2)Unless the court otherwise orders, the following apply to a report or supplementary report of an expert:

(a) if, within 21 days after service of the report or within such other period as the court may order, a demand is made under subrule (3) of this rule that the expert who made the report attend at trial for cross-examination, the report must not be tendered or accepted as evidence at the trial unless the appointing party calls the expert at trial to be cross-examined in compliance with the demand;

(b) if no such demand is made under subrule (3) within the demand period referred to in paragraph (a) of this subrule,

(i)   the expert whose report has been served under this Part need not attend at trial to give oral testimony, and

(ii)   the report, if admissible, may be tendered and accepted as evidence at the trial.

Cross-examination of expert

(3)A party of record may demand that an expert whose report has been served on the parties of record under Rule 11-6 attend at the trial for cross-examination as follows:

(a) if the expert was jointly appointed under Rule 11-3 or was appointed by the court under Rule 11-5, any party of record may, within the demand period referred to in subrule (2) (a) of this rule, demand the attendance of the expert for cross-examination by that party or by any of the other parties of record;

(b) if the expert was appointed by a party under Rule 11-4 or by a party with leave of the court granted under Rule 11-3 (9), any party of record who is adverse in interest to the party who appointed that expert may, within the demand period referred to in subrule (2) (a) of this rule, demand the attendance of the expert for cross-examination.

Costs of cross-examination

(4)If an expert has been required to attend at trial for cross-examination by a demand under subrule (3) and the court is of the opinion that the cross-examination was not of assistance, the court may order the party who demanded the attendance of the expert to pay to the other party or to the expert costs in an amount the court considers appropriate.

Restrictions on calling expert as witness at trial

(5)Unless the court otherwise orders, if a party appoints an expert under Rule 11-3 (9) or 11-4,

(a) the party must not call the expert to give oral evidence at trial unless

(i)   the expert's attendance has been demanded under subrule (3) of this rule, or

(ii)   the expert's report has been served in accordance with Rule 11-6, the party believes direct examination of the expert is necessary to clarify terminology in the report or to otherwise make the report more understandable and any direct examination of that expert is limited to those matters, and

(b) the party must not cross-examine the expert at trial.

When court may dispense with requirement of this Part

(6)At trial, the court may allow an expert to provide evidence, on terms and conditions, if any, even though one or more of the requirements of this Part have not been complied with, if

(a) facts have come to the knowledge of one or more of the parties and those facts could not, with due diligence, have been learned in time to be included in a report or supplementary report and served within the time required by this Part,

(b) the non-compliance is unlikely to cause prejudice

(i)   by reason of an inability to prepare for cross-examination, or

(ii)   by depriving the party against whom the evidence is tendered of a reasonable opportunity to tender evidence in response, or

(c) the interests of justice require it.

Part 12 — Trial

Rule 12-1 — How to Set Trial for Hearing

Application

(1)This rule applies to

(a) an action, and

(b) a proceeding that is transferred to the trial list under Rule 22-1 (7) (d).

Notice of trial

(2)To set a proceeding for trial, a party must file a notice of trial in Form 40.

[Special rules apply to fast track actions in relation to the setting of trials – see Rule 15-1 (13) and (14).]

Content of notice of trial

(3)A notice of trial filed under subrule (2) must include the date set out in a case plan order for the trial or, if no trial date is set out in a case plan order, the trial date obtained from the registry.

[en. B.C. Reg. 119/2010, Sch. A, s. 25.]

Registry

(4)The notice of trial must be filed in

(a) the registry where the notice of civil claim was filed unless paragraph (b) applies, or

(b) the registry to which the proceeding has been transferred if the proceeding has been transferred for all purposes to another registry.

Place of trial

(5)The place of trial must be the place named in the notice of civil claim, but the court may order that the place of trial be changed or that the trial be heard partly in one place and partly in another.

When notice of trial must be served

(6)Promptly after filing a notice of trial, the filing party must serve a copy of the filed notice of trial on all parties of record.

[am. B.C. Reg. 65/2013, Sch. A, s. 1.]

If trial date unacceptable

(7)If a party on whom a notice of trial is served under subrule (6) objects to the trial date set out in that notice of trial, the party must, within 21 days after service of the notice of trial,

(a) request a case planning conference, or

(b) make an application to the court to have the trial rescheduled.

Time of trial

(8)The trial is to be heard on the day appointed by the notice of trial or so soon after that day as may be convenient to the court.

Court may make orders respecting trial dates

(9)The court may

(a) order the adjournment of a trial,

(b) fix the date of trial of a proceeding,

(c) fix the date of trial of an issue in a proceeding, or

(d) order that a trial take precedence over another trial.

Duty to inform registry

(10)Each party to a proceeding that has been set for trial must advise the registry without delay

(a) if the proceeding settles, and

(b) of any circumstances affecting the estimated length of the trial.

Rule 12-2 — Trial Management Conference

Date for trial management conference

(1)Unless the court otherwise orders, a trial management conference must take place at least 28 days before the scheduled trial date, at a time and place to be fixed by a registrar.

Trial management conference must be conducted by judge

(2)A trial management conference must be conducted by a judge or master and, if reasonably practicable, is to be conducted by the judge who will preside at the trial.

[am. B.C. Reg. 58/2012, Sch. A, s. 1.]

Trial brief required

(3)Unless the court otherwise orders, each party of record must, at least 7 days before the date set for the trial management conference,

(a) file a trial brief in Form 41, and

(b) serve a copy of the filed trial brief on all parties of record.

Who must attend the trial management conference

(4)Unless the court otherwise orders, the following persons must attend a trial management conference in person:

(a) each lawyer representing a party of record;

(b) subject to the exception set out in subrule (5), each party of record.

Absent parties must be available and accessible by telephone or other means

(5)A party of record need not attend the trial management conference in person if the party is represented by a lawyer and one of the following is readily available for consultation during the trial management conference, either in person or by telephone:

(a) the party;

(b) an individual who

(i)   has full authority to make decisions for that party concerning the action, or

(ii)   has ready access to a person who has, or to a group of persons who collectively have, full authority to make decisions for that party concerning the action.

Application must be made by requisition

(6)An application under subrule (4) for an order respecting the manner in which a person is to attend a trial management conference or exempting a person from attending a trial management conference

(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.

Non-attendance at trial management conference

(7)If a person who, under subrule (4), is required to attend a trial management conference fails to attend at that trial management conference, the trial management 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 trial management 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.

[am. B.C. Reg. 58/2012, Sch. A, s. 1.]

Proceedings must be recorded

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

Orders at a trial management conference

(9)The judge or master presiding at a trial management conference may consider the following and, without limiting the ability of the trial judge or master to make other orders at trial, may, whether or not on the application of a party, make orders respecting one or more of the following:

(a) a plan for how the trial should be conducted;

(b) whether or not the trial or any part of it is to be heard without a jury, on any of the grounds set out in Rule 12-6 (5);

(c) amendment of pleadings within a fixed time;

(d) admissions of fact at trial;

(e) admission of documents at trial, including

(i)   agreements as to the purposes for which documents may be admitted, and

(ii)   the preparation of common books of documents and document agreements;

(f) imposing time limits for the direct examination or cross-examination of witnesses, opening statements and final submissions;

(g) directing that a party provide a summary of the evidence that the party expects one or more of the party's witnesses will give at trial;

(h) directing that evidence of witnesses be presented at trial by way of affidavit;

(i) respecting experts, including, without limitation, orders that the parties' experts must, before the service of their respective reports, confer to determine and report on those matters on which they agree and those matters on which they do not agree;

(j) directing that the parties present opening statements and final submissions in writing;

(k) respecting when and how an issue between the party filing a third party notice and the third party may be tried;

(l) adjournment of the trial;

(m) directing that the number of days reserved for the trial be changed;

(n) directing the parties to attend a settlement conference;

(o) adjourning the trial management conference;

(p) directing the parties to attend a further trial management conference at a specified date and time;

(q) any other matter that may assist in making the trial more efficient;

(r) any other matter that may aid in the resolution of the proceeding;

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

[am. B.C. Reg. 58/2012, Sch. A, s. 1.]

When approval in writing by lawyer not required

(10)Without limiting Rule 13-1 (2), if an order under subrule (9) of this rule is signed or initialled by the trial management conference judge or master, that order need not be approved in writing by a lawyer or by a party.

[am. B.C. Reg. 58/2012, Sch. A, s. 1.]

Prohibited orders

(11)A trial management conference judge or master must not, at a trial management conference,

(a) hear any application for which affidavit evidence is required, or

(b) make an order for final judgment, except by consent.

[am. B.C. Reg. 58/2012, Sch. A, s. 1.]

Rule 12-3 — Trial Record

Trial record for the court

(1)The party who files a notice of trial must file a trial record for the court, which trial record must contain

(a) the pleadings,

(b) particulars served under a demand, together with the demand made,

(c) the case plan order, if any,

(d) any order relating to the conduct of the trial, and

(e) any document required by a registrar under subrule (2).

[am. B.C. Reg. 119/2010, Sch. A, s. 26.]

Powers of registrar respecting trial records

(2)A registrar may direct inclusion in the trial record of any document the registrar thinks necessary or may reject a trial record that, in the registrar's opinion,

(a) does not contain all the documents required under subrule (1),

(b) contains a document that is not a document required under subrule (1), or

(c) is illegible.

Filing and service of trial record

(3)The party referred to in subrule (1) must

(a) file the trial record at least 14 days before but not more than 28 days before the scheduled trial date, and

(b) promptly after filing, serve a copy of the filed trial record on the other parties of record.

Amended trial record

(4)If the whole or any part of a pleading is amended after service of the trial record, the party who filed the notice of trial must

(a) amend the trial record by substituting the amended pleading for the version of the pleading that had previously been included, and

(b) at least one day before the trial,

(i)   file the amended trial record, and

(ii)   serve a copy on all parties of record.

Direction as to trial record

(5)If the court directs that a proceeding be set down for trial, it may also direct one of the parties to prepare, file and serve a trial record.

Rule 12-4 — Trial Certificate

Trial certificate

(1)Each party of record must file a trial certificate in Form 42 in the registry where the trial is to be held.

When trial certificate must be filed

(2)A trial certificate must be filed at least 14 days before but not more than 28 days before the scheduled trial date.

What trial certificate must contain

(3)A trial certificate must contain the following:

(a) a statement that the party filing the trial certificate will be ready to proceed on the scheduled trial date;

(b) a statement certifying that the party filing the trial certificate has completed all examinations for discovery that the party intends to conduct;

(c) the party's current estimate of the length of the trial;

(d) a statement that a trial management conference has been conducted in the action.

[am. B.C. Reg. 119/2010, Sch. A, s. 27.]

Service

(4)Promptly after filing a trial certificate, the filing party must serve a copy of the filed trial certificate on all parties of record.

Failure to file

(5)Unless the court otherwise orders, if no party of record files a trial certificate, the trial must be removed from the trial list.

[am. B.C. Reg. 95/2011, Sch. A, s. 4.]

Applications prohibited

(6)A party who fails to file a trial certificate under subrule (1) is not, without leave of the court, entitled to make further applications.

Rule 12-5 — Evidence and Procedure at Trial

Application

(1)This rule does not apply to summary trials under Rule 9-7, except as provided in that rule.

Proof of Facts and Documents

Court may vary order

(2)An order made under this rule concerning the mode of proving a fact or document or of tendering evidence may be revoked or varied by a subsequent order made at or before the trial.

Failure to prove a material fact

(3)If a party omits or fails to prove some fact material to the party's case, the court may proceed with the trial, subject to that fact being afterwards proved as the court directs, and,

(a) if the case is being tried by a jury, the court may direct the jury to find a verdict as if that fact had been proved, and

(b) unless the court otherwise orders, judgment must be entered according to whether or not that fact is or is not afterwards proved as directed.

No Evidence and Insufficient Evidence Applications

No evidence application

(4)At the close of the plaintiff's case, the defendant may apply to have the action dismissed on the ground that there is no evidence to support the plaintiff's case.

Defendant need not elect whether to call evidence

(5)A defendant is entitled to apply under subrule (4) without being called on to elect whether or not to call evidence.

Insufficient evidence application

(6)At the close of the plaintiff's case, the defendant may apply to have the action dismissed on the ground that the evidence is insufficient to make out the plaintiff's case.

Defendant must elect not to call evidence

(7)Unless the court otherwise orders, an application under subrule (6) may be made only after the defendant has elected not to call evidence.

Documentary and Other Exhibits

Notice to produce

(8)By serving a notice in Form 43 at least 2 days before a trial, a party of record may require any other party of record to bring to the trial

(a) any document listed by the other party in a list of documents prepared under Rule 7-1, and

(b) any physical object in the other party's possession or control that the party serving the notice contemplates tendering at the trial as an exhibit, but the notice must identify the object.

Numbering exhibit pages

(9)If a copy of a document is tendered as an exhibit,

(a) each page of the exhibit must be numbered sequentially, beginning with the first page of the exhibit and ending with the last page of the exhibit, or

(b) if the exhibit is divided by tabs,

(i)   each page of the exhibit that is not behind a tab must be numbered sequentially, beginning with the first of those pages and ending with the last of those pages, and

(ii)   each page of the exhibit that is behind a tab must be numbered sequentially, beginning with the first page behind the tab and ending with the last page behind the tab.

Opportunity to inspect exhibit

(10)Unless the court otherwise orders or the parties of record otherwise agree, no plan, photograph or object may be received in evidence at the trial of an action unless, at least 7 days before the start of the trial, the parties of record have been given an opportunity to inspect it.

Registrar to take charge of exhibits

(11)A registrar must

(a) take charge of each document or object put in as an exhibit,

(b) mark or label each exhibit with a number, and

(c) make a list of the exhibits, giving a short description of each and stating by whom it was tendered.

Return of exhibits

(12)Subject to subrule (13), after the time for appeal from judgment has expired or after the disposition of an appeal, new trial or further appeal, whichever is latest, a registrar may return an exhibit to the party who tendered it.

Other returns

(13)The parties of record may agree or the court may order that an exhibit be returned at an earlier time or to a person other than the party who tendered it.

Disposal of exhibits after final disposition

(14)A registrar may, with the approval of the Deputy Attorney General, destroy or otherwise dispose of an exhibit tendered in evidence in a proceeding if the return of the exhibit has not been applied for within one year after the later of

(a) the date of the judgment at trial in, or any other final disposition of, the proceeding, and

(b) the date of the judgment on, or any other final disposition of, any appeal, new trial or further appeal.

Notice respecting disposal of exhibits before final disposition

(15)If an exhibit is tendered in evidence in a proceeding and nothing is filed in that proceeding for a period of 2 years, a registrar may notify the parties of record that the registrar intends to destroy or otherwise dispose of the exhibit unless, within 30 days after the date of the notice,

(a) an application is made for the return of the exhibit, or

(b) a notice of intention to proceed in Form 44 is served on all parties of record and a copy of the notice and proof of its service is filed in the proceeding.

Disposal of exhibits before final disposition

(16)After giving notice of the intended destruction or disposition of an exhibit under subrule (15), a registrar may,

(a) if, within 30 days after the date of the notice, a person applies to the registrar for a return of the exhibit, return the exhibit to the party who tendered it or to such other person as the parties of record may agree or the court may order, or

(b) if no such application is made and if none of the parties comply with subrule (15) (b) within 30 days after the date of the notice, destroy or otherwise dispose of the exhibit with the approval of the Deputy Attorney General.

If exhibit disposed of

(17)If an exhibit is disposed of under subrule (14) or (16) (b),

(a) any money received as a result of the disposition must be paid to the Minister of Finance, and

(b) the exhibit list must be endorsed to indicate the date and method of disposition and the amount of any money recovered.

If exhibit destroyed

(18)If an exhibit is destroyed under subrule (14) or (16) (b), the exhibit list must be endorsed to indicate the date and method of destruction.

Adverse Witnesses

"Adverse party" defined

(19)For the purpose of subrules (20) to (23), "adverse party" means a party who is adverse in interest.

Adverse witness

(20)Subrules (21) to (24) apply if a party wishes to call as a witness at the trial

(a) an adverse party, or

(b) a person who, at the time the notice referred to in subrule (21) is served, is a director, officer, partner, employee or agent of an adverse party.

Notice to call adverse witness

(21)If a party wishes to call as a witness a person referred to in subrule (20) (a) or (b), the party must serve on the adverse party a notice in Form 45 together with proper witness fees at least 7 days before the date on which the attendance of the intended witness is required.

Exceptions

(22)Despite subrule (21), a party may

(a) call as a witness, without payment of witness fees or previous notice, a person referred to in subrule (20) (a) or (b) if the person called is in attendance at the trial, or

(b) subpoena a person referred to in subrule (20) (a) or (b).

Application to set notice aside

(23)The court may set aside a notice served under subrule (21) on the grounds that

(a) the adverse party is unable to procure the attendance of the person named in the notice,

(b) the evidence of the person is unnecessary,

(c) it would work a hardship on the person or the adverse party to require the person to attend the trial, or

(d) the person named in the notice is not a person referred to in subrule (20) (a) or (b).

Court may make order

(24)On an application under subrule (23), the court may make any order it considers will further the object of these Supreme Court Civil Rules, including, without limitation, an order adjourning the trial.

Refusal to comply with notice

(25)If a person called as a witness in accordance with subrule (21) or (22) refuses or neglects to attend at the trial, to be sworn or to affirm, to answer a proper question put to the person or to produce a document that the person is required to produce, the court may do one or more of the following:

(a) grant judgment in favour of the party who called the witness;

(b) adjourn the trial;

(c) make an order as to costs;

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

Adverse party as witness may be cross-examined

(26)If, in accordance with subrule (21) or (22), a party calls as a witness a person referred to in subrule (20) (a) or (b), the following apply:

(a) the party calling the witness is entitled to cross-examine the witness generally on one or more issues;

(b) the adverse party must not cross-examine the witness except to obtain an explanation of matters brought out in the examination-in-chief;

(c) other parties may cross-examine the witness generally on one or more issues, as the court may direct;

(d) the party calling the witness must not re-examine the witness except in relation to new matters brought out in cross-examination.

Rules Applicable to All Witnesses

Witness to testify orally

(27)Subject to any enactment and these Supreme Court Civil Rules,

(a) a witness at a trial of an action must testify in open court, and

(b) unless the parties otherwise agree, the witness must testify orally.

Witness must be listed in witness list

(28)Unless the court otherwise orders, a party must not, at trial, lead evidence from a witness unless that witness is listed in a witness list.

Examination of witnesses

(29)The court may permit a party

(a) to examine a witness, either generally or with respect to one or more issues,

(i)   by the use of leading questions,

(ii)   by referring the witness to a prior statement made by the witness, whether or not made under oath,

(iii)   respecting the interest of the witness, if any, in the outcome of the proceeding, or

(iv)   respecting any relationship or connection between the witness and a party, or

(b) to cross-examine a witness, either generally or with respect to one or more issues.

Any party may contradict testimony

(30)A party may contradict or impeach the testimony of any witness.

Party may prepare and serve subpoena

(31)A party of record may prepare a subpoena and serve it on any person.

Form of subpoena

(32)A subpoena must be in Form 25 and may contain any number of names.

Subpoena not to be filed or sealed

(33)A subpoena need not be filed in or bear the seal of the court.

Service of subpoena

(34)A subpoena must be served and, if an affidavit is filed for the purpose of proving the service, the affidavit must state when, where, how and by whom service was effected.

Fees to accompany subpoena

(35)A person served with a subpoena is entitled to tender of the proper fees at the time of service.

Production of documents and physical objects

(36)A party of record, by subpoena in Form 25, may require any person other than a party of record or a representative of a party of record to bring to the trial

(a) any document in the person's possession or control relating to the matters in question in the action, without the necessity of identifying the document, and

(b) any physical object in the person's possession or control that the party contemplates tendering at the trial as an exhibit, but the subpoena must identify the object to be brought.

Order for attendance of witness in custody

(37)The court may order the attendance of a witness who is in the lawful custody of another person, including the custodian of a penal institution.

Failure of witness to attend, etc.

(38)On proof

(a) of the service of a subpoena on a witness who fails to attend or to remain in attendance in accordance with the requirements of the subpoena,

(b) that proper witness fees have been paid or tendered to that witness, and

(c) that the presence of that witness is material to the ends of justice,

the court, by its warrant in Form 46 directed to a sheriff or other officer of the court or to a peace officer, may cause that witness to be apprehended and promptly brought before the court and to be detained in custody or released on terms the court may order, and the court may order that witness to pay the costs arising from his or her failure to attend or to remain in attendance.

Order setting aside subpoena

(39)A person who has been served with a subpoena may apply to the court for an order setting aside the subpoena on the grounds that compliance with it is unnecessary or that it would work a hardship on the person, and the court may make any order, as to postponement of the trial or otherwise, it considers will further the object of these Supreme Court Civil Rules.

Deposition Evidence

Use of deposition evidence

(40)A transcript or video recording of a deposition under Rule 7-8 may be given in evidence at the trial by any party and, even though the deposition of a witness has or may be given in evidence, the witness may be called to testify orally at the trial.

Use of videotape or film

(41)If a video recording of a deposition is given in evidence under subrule (40) of this rule, a transcript of the deposition may also be given.

Certified transcript

(42)If a transcript of a deposition is certified as an accurate transcription by the person taking the deposition, the transcript may be tendered in evidence without proof of the signature of that person.

Video recording of deposition evidence

(43)A video recording of a deposition may be tendered in evidence without proof of its accuracy or completeness, but the court may order an investigation to verify the accuracy or completeness of the video recording.

Video recording of evidence becomes exhibit

(44)A video recording of a deposition tendered in evidence becomes an exhibit at the trial.

Deposition to be given in full

(45)If a transcript or video recording of a deposition is given in evidence,

(a) subrule (56) applies, and

(b) the deposition must be presented in full, unless otherwise agreed by the parties or ordered by the court.

Evidence from Examinations for Discovery

Persons against whom discovery evidence is admissible

(46)If otherwise admissible, the evidence given on an examination for discovery by a party or by a person examined under Rule 7-2 (5) to (10) may be tendered in evidence at trial by any party adverse in interest, unless the court otherwise orders, but the evidence is admissible against the following persons only:

(a) the adverse party who was examined;

(b) the adverse party whose status as a party entitled the examining party to conduct the examination under Rule 7-2 (5) to (10);

(c) if the person was examined under section 17 of the Class Proceedings Act as a member of a class, the members of that class.

Notice required of evidence

(47)If a person examined for discovery was, at the time of the examination, a former director, officer, employee, agent or external auditor of a party, any part of his or her evidence may be tendered at trial if notice has been served on all parties of record at least 14 days before trial specifying the part of the evidence intended to be given at trial.

Attendance at trial may be required

(48)Any party of record may require the attendance at trial of a person whose evidence taken on examination for discovery is intended to be tendered under subrule (47), and, if the evidence is tendered, all parties of record may cross-examine that person.

Court may consider whole examination

(49)If part of an examination for discovery is tendered in evidence, the court may review the whole of that examination and if, following the review, the court considers that another part of the examination is closely connected with the part tendered in evidence, it may direct that the other part be tendered as evidence.

Discovery evidence of person under disability

(50)If, at the time of an examination for discovery, the person examined was an infant or a mentally incompetent person, the examination must not be tendered in evidence unless the trial judge, at the time the evidence is tendered, determines that the person, at the time of the examination, was competent to give evidence.

Transcripts of discovery evidence

(51)If a transcript of an examination for discovery is certified as an accurate transcription by the official reporter, the transcript may be tendered in evidence without proof of the reporter's signature.

Pre-trial Examinations

Use of pre-trial examination of a witness

(52)A party may tender in evidence at the trial all or part of the examination of a person taken under Rule 7-5

(a) to contradict or impeach the testimony of the person at trial, or

(b) if it is necessary in the interests of justice and

(i)   the person is dead,

(ii)   the person is unable to attend and testify because of age, infirmity, sickness or imprisonment,

(iii)   the person is out of the jurisdiction, or

(iv)   the person's attendance cannot be secured by subpoena.

Court may consider whole pre-trial examination

(53)If part of an examination of a person taken under Rule 7-5 is tendered in evidence, the court may review the whole of that examination and if, following the review, the court considers that another part of the examination is so closely connected with the part tendered in evidence that the last mentioned part ought not to be used without the other part, it may direct that the other part be tendered as evidence.

Transcripts and Interrogatories

Use of transcript of other proceedings

(54)If a witness is dead, or is unable to attend and testify because of age, infirmity, sickness or imprisonment or is out of the jurisdiction or his or her attendance cannot be secured by subpoena, the court may permit a transcript of any evidence of that witness taken in any proceeding, hearing or inquiry at which the evidence was taken under oath, whether or not involving the same parties, to be put in as evidence, but reasonable notice must be given of the intention to give that evidence.

Transcript for the court

(55)In an action in which evidence or argument is taken down by an official reporter or is recorded digitally or on audio tape, it is the duty of the plaintiff, if required by the court, to furnish the court with a certified transcript of the evidence or argument or any portion of it, the costs of which form part of the costs of the action, but if payment of the costs of providing a transcript would be a hardship on a party, the court may order that the transcript be prepared at the expense of the government.

Objection to transcript evidence at trial

(56)At a trial, a party may object to the admissibility of any question and answer in a transcript or video recording tendered in evidence, although no objection was taken at the examination.

Custody of transcripts

(57)If a transcript is made of a deposition examination, examination for discovery or pre-trial examination of a witness, the party at whose instance the examination was held must keep the original transcript unmarked and must have it available at the trial.

Use of interrogatories at trial

(58)At the trial of an action, a party may give in evidence an answer, or part of an answer, to interrogatories, but the court may look at the whole of the answers and, if it is of the opinion that any other answer or part of an answer is so connected with an answer or part of it given in evidence that the one ought not to be used without the other, it may direct that the other answer or part of it be put in as evidence.

Evidence Given by Affidavit

Affidavit evidence

(59)On the application of a party of record at or before trial, a judge or master may order that the evidence in chief of a witness may be given by affidavit.

Copy of affidavit must be furnished

(60)A party seeking to tender evidence by affidavit must serve a copy of the affidavit on all parties of record at least 28 days, or such lesser period as may be ordered by the court, before the application referred to in subrule (59).

Cross-examination

(61)If a copy of an affidavit of a witness is served under subrule (60), any party may, unless the court otherwise orders, require the witness to be called for cross-examination at trial, provided that that party gives to the party seeking to tender the evidence by affidavit notice of the requirement within 14 days after receiving the affidavit.

Court may extend or abridge time to require witness attendance

(62)If a copy of an affidavit is served under subrule (60) less than 28 days before the application referred to in subrule (59), the court may extend or abridge the time referred to in subrule (61) within which parties may require the attendance of the witness at trial for cross-examination.

Contents

(63)The person swearing or affirming an affidavit referred to in subrule (59) may state only what he or she would be permitted to state were the evidence to be given orally.

Cross-examination not limited

(64)Cross-examination under subrule (61) or (62) is not confined to matters contained in the affidavit.

Costs where attendance unnecessary

(65)If a witness has been required to give evidence under subrule (61) or (62), and the court is of the opinion that the evidence obtained does not materially add to the information in the affidavit furnished under subrule (60), the court may order the party that required the attendance of the witness to pay, as costs, an amount the court considers appropriate.

Trial Procedures

Trial with assessor

(66)The court may at any time order a trial to be heard wholly or partially by the court sitting with an assessor, and the court may fix the remuneration for the assessor and the remuneration forms part of the costs of the action.

Trial of one question before others

(67)The court may order that one or more questions of fact or law arising in an action be tried and determined before the others.

Trial by different modes of trial

(68)The court may order that different questions of fact arising in an action be tried by different modes of trial.

Calculation of amount by officer of the court

(69)In an action in which it appears that the amount to be recovered is substantially a matter of calculation, the court may direct an inquiry, assessment or accounting under Rule 18-1.

Use of recording device

(70)If authorized by the court to do so, a party may use a recording device to record evidence.

Evidence of particular facts

(71)At or before a trial, the court may order that evidence of a fact or document may be presented at the trial in any manner, including

(a) by statement on oath of information and belief,

(b) by documents or entries in books,

(c) by copies of documents or entries in books, or

(d) by a specified publication that contains a statement of that fact.

Order of speeches

(72)Addresses to the jury or the court must be as follows:

(a) the party on whom the onus of proof lies may open his or her case before giving evidence;

(b) at the close of the case of the party who began, the opposite party, if that party announces his or her intention to give evidence, may open his or her case;

(c) at the close of all of the evidence, the party who began may address the jury or the court, and the opposite party may then address the jury or the court and the party who began may then reply and the court may allow the opposite party to be heard in response to a point raised in the reply;

(d) if a defendant claims relief against another defendant, the defendant claiming relief may address the jury after the defendant against whom relief is claimed;

(e) if a party is represented by a lawyer, the rights conferred by this rule must be exercised by the party's lawyer.

Court may make order respecting submissions

(73)At or before a trial, the court may make one or both of the following orders in respect of a party's submissions to the court at the trial:

(a) an order that all or any part of the submissions be in writing;

(b) an order that all or any part of the submissions be of limited length.

Clerk to note time of trial

(74)On each day of a trial, the clerk must record the following:

(a) the time the trial begins and ends;

(b) the name of each witness;

(c) the time the witness' evidence begins and ends.

Failure to Attend

Failure of all parties to appear at trial

(75)Without limiting any other power of the court under these Supreme Court Civil Rules, if no party is in attendance when the trial of an action is called, the action must be struck off the trial list unless the court otherwise orders.

Failure of one party to appear at trial

(76)If a party is not in attendance when the trial of an action is called, the court may proceed with the trial, including hearing a counterclaim, in the absence of that party.

Court may set aside judgment

(77)The court may set aside a verdict or judgment obtained if a party does not attend the trial.

Rule 12-6 — Jury Trials

Trial without jury generally

(1)Subject to subrule (3), a trial must be heard by the court without a jury.

Trial without jury in certain proceedings

(2)A trial must be heard by the court without a jury if the trial relates to

(a) the administration of the estate of a deceased person,

(b) the dissolution of a partnership or the taking of partnership or other accounts,

(c) the redemption or foreclosure of a mortgage,

(d) the sale and distribution of the proceeds of property subject to any lien or charge,

(e) the execution of trusts,

(f) the rectification, setting aside or cancellation of a deed or other written instrument,

(g) the specific performance of a contract,

(h) the partition or sale of real estate,

(i) the custody or guardianship of an infant or the care of an infant's estate, or

(j) a proceeding referred to in Rule 2-1 (2).

Notice requiring jury trial

(3)Subject to Rule 15-1 (10) and subrules (2) and (4) of this rule, a party may require that the trial of an action be heard by the court with a jury by doing the following:

(a) within 21 days after service of the notice of trial but at least 45 days before trial,

(i)   filing a notice in Form 47, and

(ii)   serving a copy of the filed notice on all parties of record;

(b) at least 45 days before trial, paying to the sheriff a sum sufficient to pay for the jury and the jury process.

[am. B.C. Regs. 95/2011, Sch. A, s. 5; 65/2013, Sch. A, s. 2.]

Jury notice not to prevent transfer of proceeding

(4)The court may transfer a proceeding to the Provincial Court of British Columbia under section 15 of the Supreme Court Act even though a party has filed a notice under subrule (3).

Court may refuse jury trial

(5)Except in cases of defamation, false imprisonment and malicious prosecution, a party on whom a notice under subrule (3) has been served may apply

(a) within 7 days after service for an order that the trial or part of it be heard by the court without a jury on the ground that

(i)   the issues require prolonged examination of documents or accounts or a scientific or local investigation that cannot be made conveniently with a jury,

(ii)   the issues are of an intricate or complex character, or

(iii)   the extra time and cost involved in requiring that the trial be heard by the court with a jury would be disproportionate to the amount involved in the action, or

(b) at any time for an order that the trial be heard by the court without a jury on the ground that the trial relates to a fast track action or to one of the proceedings referred to in subrule (2).

No application for judgment necessary

(6)An application for judgment is not necessary unless an enactment or these Supreme Court Civil Rules otherwise provides.

Judgment impossible on jury findings

(7)If, after any redirection the court considers appropriate, a jury answers some but not all of the questions directed to it, or if the answers are conflicting, so that judgment cannot be pronounced on the findings, the action must be retried.

Only partial judgment possible on jury findings

(8)If the answers of the jury entitle either party to judgment in respect of some but not all of the claims for relief in the notice of civil claim, the court may pronounce judgment on those claims and the remaining claims must be retried.

Jury failing to reach verdict

(9)If the jury fails to reach a verdict in accordance with the Jury Act, the action must be retried.

Retrial

(10)A retrial under subrules (7) to (9) may take place at the same or subsequent sittings as the court may direct.

Continuing trial without jury

(11)If, for any reason other than the misconduct of a party or the party's lawyer, a trial with a jury would be retried, the court, with the consent of the party who required a jury trial, may continue the trial without a jury.

Trial may continue without jury

(12)If, by reason of the misconduct of a party or the party's lawyer, a trial with a jury would be retried, the court, with the consent of all parties adverse in interest to the party whose conduct, or whose lawyer's conduct, is complained of, may continue the trial without a jury.

Part 13 — Orders

Rule 13-1 — Orders

Drawing and approving orders

(1)An order of the court

(a) subject to subrule (15), may be drawn up by any party,

(b) subject to subrule (2) and paragraph (c) of this subrule, must, unless the court otherwise orders, be approved in writing by all parties of record or their lawyers,

(c) need not be approved by a party who has not consented to it and who did not attend or was not represented at the trial or hearing following which the order was made, and

(d) after approval under this rule, must be left with a registrar to have the seal of the court affixed.

When approval in writing not required

(2)If an order is signed or initialled by the presiding judge or master, that order need not be approved in writing by a lawyer or by a party.

Form of order

(3)Unless these Supreme Court Civil Rules otherwise provide,

(a) an order made without a hearing and by consent must be in Form 34,

(b) an order made after a trial must be in Form 48, and

(c) any other order must be in Form 35.

Endorsement of order on application sufficient in certain cases

(4)If an order has been made substantially in the same terms as requested, and if the court endorses the notice of application, petition or other document to show that the order has been made or made with any variations or additional terms shown in the endorsement, it is not necessary to draw up the order, but the endorsed document must be filed.

Order granted conditionally on document to be filed

(5)If an order may be entered on the filing of a document, the party seeking entry of the order must file the document when leaving the draft order with a registrar, and the registrar must examine the document and, if satisfied that it is sufficient, must enter the order accordingly.

Waiver of order obtained on condition

(6)If a person who has obtained an order on condition does not comply with the condition, the person is deemed to have abandoned the order so far as it is beneficial to the person and, unless the court otherwise orders, any other person interested in the proceeding may take either the steps the order may warrant or the steps that might have been taken if the order had not been made.

Order of judge or master

(7)An order of a single judge or master is an order of the court.

Date of order

(8)An order

(a) must be dated as of the date on which it was pronounced or, if made by a registrar, as of the date on which it is signed by the registrar, and

(b) unless the court otherwise orders, takes effect on the day of its date.

Approval of order

(9)An order may be approved by any judge.

Requirement of consent order

(10)A consent order must not be entered unless the consent of each party of record affected by the order is signified as follows:

(a) if the party is represented by a lawyer, by the signature of the lawyer;

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

(i)   by the oral consent of the party who attends before the court or a registrar, or

(ii)   by the written consent of the party.

Settlement of orders

(11)An order must be settled, when necessary, by a registrar, who may refer the draft to the judge or master who made the order.

Appointment to settle

(12)A party may file an appointment in Form 49 to settle an order and must serve a copy of the filed appointment and a draft order on all parties whose approval of the order is required under subrule (1) at least one day before the time fixed by the appointment.

Party failing to attend on appointment to settle

(13)If a party fails to attend at the time appointed for the settlement of an order, a registrar may settle the order in the party's absence.

Review of settlement

(14)The court may review and vary the order as settled.

Registrar may draw order

(15)The court may direct a registrar to draw up and enter an order.

Special directions for entry or service

(16)The court may give special directions respecting the entry or service of an order.

Correction of orders

(17)The court may at any time correct a clerical mistake in an order or an error arising in an order from an accidental slip or omission, or may amend an order to provide for any matter that should have been but was not adjudicated on.

Opinions, advice and directions of the court

(18)The opinion, advice or direction of the court must be entered in the same manner as an order of the court and is to be termed a "judicial opinion", "judicial advice" or "judicial direction", as the case may require.

Orders on terms and conditions

(19)When making an order under these Supreme Court Civil Rules, the court may impose terms and conditions and give directions it considers will further the object of these Supreme Court Civil Rules.

Rule 13-2 — Enforcement of Orders

Order to pay money to a person

(1)An order for the payment of money to a person may be enforced by writ of seizure and sale in Form 50.

Order to pay money into court

(2)An order for the payment of money into court may be enforced by writ of sequestration in Form 51.

Order for recovery or delivery of land

(3)An order for the recovery or the delivery of the possession of land may be enforced by writ of possession in Form 52.

Order for recovery or delivery of property other than land

(4)An order for the recovery or the delivery of the possession of any property other than land or money may be enforced by writ of delivery in Form 53 or 54 or by writ of sequestration in Form 51.

Appointment of receiver

(5)An order may be enforced by the appointment of a receiver under Rule 10-2.

Execution by or against person not a party

(6)A person not a party to a proceeding, who obtains an order or in whose favour an order is made, may enforce the order in the same manner as if the person were a party to the proceeding, and an order that may be enforced against a person not a party to a proceeding may be enforced against that person as if he or she were a party to the proceeding.

Remedy on non-compliance with mandatory order

(7)If a mandatory order or an order for the specific performance of a contract is not obeyed, the court, in addition to or instead of proceeding against the disobedient person for contempt, may direct that the act required to be done may be done so far as is practicable by the person who obtained the order, or by some other person appointed by the court, at the expense of the disobedient person, and on the act being done, the expenses incurred may be ascertained in such manner as the court may direct, and execution may issue for the amount so ascertained and costs.

Issue of execution on conditional order

(8)If an order is to the effect that a person is entitled to relief subject to or on compliance with a condition or the happening of a contingency, the person so entitled, after compliance with the condition or the happening of the contingency, and after demand is made on the person against whom he or she is entitled to relief, may apply to the court for leave to issue execution.

Order when right to relief has arisen

(9)The court, if satisfied that the right to relief referred to in subrule (8) has arisen, may

(a) order that execution issue, or

(b) direct that any issue or question necessary for the determination of the rights of the persons be tried.

Issue of execution on change of parties

(10)If a change has taken place, by death or otherwise, in the persons entitled or liable to execution, the person claiming to be entitled to execution may apply to the court for leave to issue execution, and the court may order

(a) that execution may issue, or

(b) that any issue or question necessary to determine the rights of the person be tried.

Production of order before execution

(11)A writ of execution must not issue without the production to the registry of a copy of the order on which the writ is to issue.

Endorsement of writ

(12)A writ of execution must be endorsed with the name and address of the lawyer or person causing it to be issued.

Issue of writ of sequestration, possession or delivery

(13)A writ of sequestration, a writ of possession or a writ of delivery must not be issued unless there has been filed proof satisfactory to a registrar that,

(a) in the case of an order, the order sought to be enforced

(i)   has been served on the person against whom the order is sought to be enforced, and

(ii)   has not been complied with, or

(b) in the case of a document, issued under an enactment, that on being filed in the court may be enforced as if it were an order of the court, the document

(i)   has been filed in the court,

(ii)   has, before or after being filed in the court, been served in accordance with the enactment or these Supreme Court Civil Rules on the person against whom the order is sought to be enforced, and

(iii)   has not been complied with.

Issue of writ of execution if order to pay money within a period

(14)If the order sought to be enforced is for the payment of money within a specified period, a writ of execution must not be issued until the expiration of the period.

Issue of writ of execution

(15)Subject to these Supreme Court Civil Rules or an order of the court, a writ of execution may be issued by a registrar at any time during the lifetime of the order sought to be enforced.

When writ of execution is issued

(16)A writ of execution must be prepared by the person seeking to enforce the order or by the person's lawyer, must be sealed by a registrar and is, after that, deemed to be issued.

Copy of writ of execution must be left with registry

(17)The person seeking to enforce the order or the person's lawyer, on presenting a writ of execution for sealing, must provide a copy of the writ of execution to the registry.

Term of writ of execution

(18)A writ of execution, if unexecuted, remains in force for one year only, unless renewed.

Renewal of writ of execution

(19)At any time before the expiration of a writ of execution, or a renewed writ of execution, the writ of execution may, on the application of the party issuing the writ of execution, be renewed for a one year period beginning on the date of the renewal.

Hearing of writ of execution

(20)An application to renew a writ of execution may be heard by

(a) the court, or

(b) a registrar designated by the Chief Justice.

Writ of execution to be endorsed

(21)A renewed writ of execution must be endorsed, by the court or a registrar, with the date of the order granting renewal and the date of the renewal.

Enforcement costs

(22)Unless the court otherwise orders, a party who is entitled to enforce an order is entitled to the costs, fees and expenses of enforcement including proceedings under the Court Order Enforcement Act, this rule and Rules 13-3 and 13-4.

Registrar may fix amount

(23)Subject to subrule (24) of this rule, if these Supreme Court Civil Rules provide or some other enactment provides that enforcement costs may be included in the amount endorsed on any writ of execution, a registrar may fix the amount to be endorsed on the writ of execution.

Assessments and accounting

(24)If a judgment debtor alleges that he or she has satisfied an order for the payment of money or otherwise, whether or not the costs of enforcement and interest on those costs have been paid,

(a) either the judgment creditor or the judgment debtor may apply to have the costs of enforcement assessed before a registrar, and Rule 14-1 applies, or

(b) the judgment debtor may apply to the registrar for an accounting.

Registrar may certify on accounting

(25)On an accounting referred to in subrule (24) (b) of this rule, Rule 18-1 applies and a registrar may certify one or more of the following:

(a) the amount, if any, then due to the judgment creditor;

(b) the amount, if any, then due to the judgment debtor as a result of an overpayment;

(c) that the judgment has been paid.

Certificate of same effect as order

(26)A certificate under subrule (25) (c) of this rule has the same effect as if it were an order under subrule (30).

Separate writs for costs

(27)On an order granting relief and costs, there may be, at the election of the person entitled, either one writ of execution or separate writs of execution for the relief granted and for the recovery of the costs.

Judgment for recovery of property other than land

(28)If an order for the recovery of property other than land or money is to be enforced by writ of delivery, the court may, on the application of the judgment holder,

(a) order that execution issue for the delivery of the property without giving the other party the option of retaining the property on paying the assessed value, and

(b) if the property cannot be found, and unless the court otherwise orders, order that the sheriff take possession of all the other party's lands, goods and chattels

(i)   until the other party delivers the property, or

(ii)   at the option of the judgment holder, until the sheriff realizes from the other party's goods and chattels the assessed value of the property.

Acknowledgment of payment

(29)A debtor may require, as a condition of paying a money judgment, that the judgment creditor promptly execute, file and serve an acknowledgment of payment in Form 55.

Order that judgment has been paid

(30)If a judgment debtor claims to have paid the judgment but has not obtained an acknowledgment of payment from the judgment creditor, the debtor may apply to the court for an order certifying that the judgment has been paid.

Stay of execution

(31)The court may, at or after the time of making an order,

(a) stay the execution of the order until such time as it thinks fit, or

(b) provide that an order for the payment of money be payable by instalments.

Balance becomes payable if instalment not paid when due

(32)Unless the court in an order under subrule (31) (b) otherwise provides, if an instalment is not paid by the time fixed for payment, the balance of the money remaining unpaid under the order is, at that time, due and payable without notice being given to the judgment debtor.

Application for relief

(33)Without limiting subrule (31), a party against whom an order has been made may apply to the court for a stay of execution or other relief on grounds with respect to which the supporting facts arose too late for them to be pleaded, and the court may give relief it considers will further the object of these Supreme Court Civil Rules.

Application for directions

(34)A sheriff, judgment creditor or judgment debtor may apply to the court for directions under Rule 13-5 concerning the sale of any property taken in execution.

Enforcement of certificate

(35)If a certificate under Rule 14-1 (27) or 18-1 (2) has been filed, it may be enforced as if it were an order of the court.

[en. B.C. Reg. 119/2010, Sch. A, s. 28.]

Rule 13-3 — Subpoena to Debtor

Subpoena to debtor

(1)A creditor who has obtained an order of the court for the recovery or payment of money or costs or both may issue out of the registry a subpoena in Form 56 on filing an affidavit showing that the order is not satisfied and that no writ of execution issued by the creditor is outstanding against the debtor.

To whom subpoena must be directed

(2)A subpoena issued under subrule (1) must be directed,

(a) if the debtor is an individual, to the debtor,

(b) if the debtor is a corporation, to an officer or director of the debtor, or

(c) if the debtor is a partnership or firm, to a person liable to execution on an order against the debtor.

Service of subpoena

(3)A subpoena issued under subrule (1) must be served at least 7 days before the date of the examination under subrule (4), and with the subpoena must be tendered any expenses the person served would be entitled to were he or she required to attend the court as a witness.

Examination of debtor

(4)The examination referred to in a subpoena issued under subrule (1) must take place before an examiner and must be on oath as to the following matters:

(a) the income and property of the debtor;

(b) the debts owed to and by the debtor;

(c) the disposal the debtor has made of any property;

(d) the means the debtor has, or has had, or in future may have, of satisfying the order.

Examiner

(5)The examiner must be

(a) the court,

(b) a master, or

(c) a registrar designated as an examiner by the Chief Justice.

Examination

(6)At an examination under this rule, the creditor and the person subpoenaed may, with leave of the examiner, call witnesses who may be cross-examined.

Adjournment

(7)The examiner may adjourn an examination under this rule from time to time.

Debtor refusing to attend or respond

(8)If the person subpoenaed under subrule (1)

(a) does not attend as required at the examination under subrule (4) or an adjournment of it,

(b) refuses to be sworn or to affirm, or to answer one or more of the questions put to the person,

(c) after an order to that effect, refuses or neglects to produce or permit to be inspected any document or property, or

(d) does not give answers that are to the satisfaction of the examiner,

then

(e) if the examiner is a master or registrar,

(i)   in the case of default under paragraph (a), the examiner must make a report in Form 57 and fix a time and place at which the creditor may attend before the court, and at that time and place the court may, at the request of the creditor and without notice to the person subpoenaed, order

(A)  committal, or

(B)  apprehension under Rule 22-8 (5), and

(ii)   in the case of default under paragraph (b), (c) or (d) of this subrule, the examiner must make a report in Form 57 and fix a time and place for the person subpoenaed to attend before the court, and at that time and place the court may, at the request of the creditor and without further notice to the person subpoenaed, order

(A)  committal, or

(B)  apprehension under Rule 22-8 (5), or

(f) if the examiner is the court, the examiner may order committal.

Creditor failing to attend, etc.

(9)If the creditor who issued a subpoena under subrule (1) fails to attend at the examination under subrule (4), or if the examiner is of the opinion that the proceedings are unnecessary or vexatious, the examiner may order the creditor to pay to the person subpoenaed a sum of money by way of compensation and may order that sum to be paid promptly or to be set off against the debt.

Debtor unreasonably refusing to pay

(10)If it appears to the examiner that

(a) the debtor has, with intent to defraud the creditor, made or caused to be made any gift, delivery or transfer of property, or has removed or concealed property,

(b) the debtor has unreasonably neglected or refused to pay the debt in whole or in part or to pay any instalment ordered to be paid, or

(c) the debtor is a corporation and the person subpoenaed has done, authorized, permitted or acquiesced in an act or omission described in paragraph (a) or (b),

then

(d) if the examiner is a master or registrar, he or she may make a report of his or her findings and fix a time and place for the person subpoenaed to attend before the court, and at that time and place the creditor may apply without notice for committal, or

(e) if the examiner is the court, the examiner may order committal.

Order for payment

(11)At an examination under this rule, the examiner may make one or more of the following orders:

(a) for the payment of the debt by instalments;

(b) for the payment of the debt on or before a fixed date;

(c) varying or rescinding any previous order;

(d) for payment to be made to a registrar, to the creditor or to the creditor's lawyer;

(e) fixing the costs payable by the debtor without assessment,

and if the examiner is a master or registrar, the order has the effect of an order made by the court and must be entered accordingly.

Notice of application for committal

(12)If a debtor fails to pay in accordance with an order made under subrule (11) by an examiner, the creditor may file a notice of application for committal in Form 58 on filing an affidavit showing that the default has occurred, and subrules (2) and (3) apply.

Order for committal

(13)The court may order committal of a debtor if satisfied that

(a) the order to pay has not been obeyed,

(b) the person knew of the order, and

(c) the person has not shown good cause why an order of committal should not be made against him or her.

Costs payable by debtor

(14)The court may fix the costs payable by the debtor without assessment.

Form of order

(15)An order of committal must be in Form 59 and must commit the person named in it to prison for a term not exceeding 40 days.

Term of order

(16)An order of committal must not be enforced after the expiration of one year after the date the order was made.

Payment to sheriff

(17)A creditor seeking to enforce an order of committal must pay to the sheriff for the maintenance of the person committed the sum of $10 per day for each day of imprisonment by weekly payments of $70 in advance.

Maintenance money recoverable

(18)The maintenance money paid by a creditor under subrule (17) is a disbursement recoverable by the creditor from the debtor as costs of execution, without order.

Debtor to be brought before court

(19)Subject to subrule (21), a sheriff or peace officer executing an order of committal must promptly bring the person arrested before the court, and the person arrested may be examined by the court, and if the court considers that imprisonment is not appropriate, the court may stay execution of the order of committal and, in that event, must

(a) fix a time and place for a hearing to determine whether or not the order of committal should be set aside or varied, and

(b) give directions for notice of that hearing to be given to the creditor.

Application to set aside or vary order

(20)A person who is the subject of an order of committal may apply to the court to set aside or vary the order, and the court may order a stay of execution of the order pending the hearing of the application and give directions for service of notice of the hearing.

Payment of debt

(21)A person who is the subject of an order of committal may pay the amount payable endorsed on the order either to a registrar or to the sheriff, peace officer or warden in whose custody he or she is.

Receipt for payment

(22)On payment under subrule (21) to a registrar of the amount payable, the registrar must issue a receipt to that effect.

Release from custody

(23)On payment under subrule (21) to any of them of the amount payable or on being shown a registrar's receipt to that effect, a sheriff, peace officer or warden must release the person committed from custody and must endorse the order accordingly and return it to the registry.

Payment to creditor

(24)All money received under this rule must be paid promptly to the creditor.

Requisition for discharge

(25)A creditor who has obtained an order of committal may file in the registry a requisition in Form 17 requesting discharge of the person committed, and a registrar must endorse the requisition and a copy with the words "This is your authority to discharge ...................[name]............................... from custody" above the registrar's signature, and, on being shown the copy of the requisition, a sheriff, peace officer or warden must release the person committed from custody and must endorse the order accordingly and return it to the registry.

Failure to pay sheriff

(26)A sheriff who has not received maintenance money as provided in subrule (17) must,

(a) if the person committed is in the sheriff's custody, release the person committed, or

(b) if the person committed is in the warden's custody, must notify the warden, who must release the person committed,

and each must endorse the order accordingly and return it to the registry.

Liability imposed by order

(27)Imprisonment under these Supreme Court Civil Rules does not extinguish the liability imposed by an order.

Repealed

(28)Repealed. [B.C. Reg. 119/2010, Sch. A, s. 29.]

Rule 13-4 — Examinations in Aid of Execution

Definitions

(1)In this rule:

"judgment creditor" means a person entitled to enforce an order of the court, whether for payment of money or otherwise;

"judgment debtor" means a person against whom the order may be enforced.

Examination of judgment debtor

(2)If a judgment creditor is entitled to issue execution on or otherwise enforce an order of the court, the judgment creditor may examine the judgment debtor for discovery as to

(a) any matter pertinent to the enforcement of the order,

(b) the reason for nonpayment or nonperformance of the order,

(c) the income and property of the judgment debtor,

(d) the debts owed to and by the judgment debtor,

(e) the disposal the judgment debtor has made of any property either before or after the making of the order,

(f) the means the judgment debtor has, had or may have of satisfying the order, and

(g) whether the judgment debtor intends to obey the order or has any reason for not doing so.

Examination of corporate, partnership or firm judgment debtor

(3)An officer or director of a corporate judgment debtor, or a person liable to execution on the order in the case of a partnership or firm judgment debtor, may, without an order, be examined for discovery on the matters set out in subrule (2).

Limitation

(4)Unless the court otherwise orders, a person examined under subrule (2) or (3) must not be further examined in the same proceeding for a year.

Examination of person other than judgment debtor

(5)On being satisfied that any other person may have knowledge of the matters set out in subrule (2), the court may order that other person to be examined for discovery concerning the person's knowledge.

[am. B.C. Reg. 119/2010, Sch. A, s. 30.]

Order in certain cases

(6)If a difficulty arises in or about the execution or enforcement of an order, the court may make any order for the attendance and examination of a party or person it considers will further the object of these Supreme Court Civil Rules.

Application of examination for discovery rules

(7)Rule 7-2 (4), (5), (11), (12), (14), (17), (18), (22) to (28) applies to an examination under this rule.

[am. B.C. Reg. 95/2011, Sch. A, s. 6 (a).]

Use of examination

(8)Any part of an examination for discovery under this rule may be given in evidence in the same or any subsequent proceeding between the parties to the proceeding or between the judgment creditor and the person examined for discovery.

Costs

(9)Unless the court otherwise orders, the party conducting an examination under this rule is entitled to recover the costs of the examination from the judgment debtor.

Service of notice

(10)Before conducting an examination for discovery under this rule, the party wishing to conduct that examination 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,

(i)   an appointment in Form 59.1 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,

(i)   an appointment in Form 59.1 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.

[en. B.C. Reg. 95/2011, Sch. A, s. 6 (b).]

Production of documents

(11)Unless the court otherwise orders, the person to be examined for discovery under this rule must produce for inspection on the examination all documents in his or her possession or control, not privileged, relating to the matters referred to in subrule (2).

[en. B.C. Reg. 95/2011, Sch. A, s. 6 (b).]

Rule 13-5 — Sales by the Court

Court may order sale

(1)If in a proceeding it appears necessary or expedient that property be sold, the court may order the sale and may order a person in possession of the property or in receipt of the rents, profits or income from it to join in the sale and transfer of the property and deliver up the possession or receipt to the purchaser or person designated by the court.

Sale in debenture holder's proceeding

(2)In a debenture holder's proceeding in which the debenture holder is entitled to a charge on any property, the court, if it is of the opinion that eventually there must be a sale of the property, may order the sale before or after judgment, whether or not all interested persons are ascertained or served.

Conduct of sale

(3)If an order is made directing property to be sold, the court may permit any person having the conduct of the sale to sell the property in the manner the person considers appropriate or as the court directs.

Directions for sale

(4)The court may give directions for the purpose of effecting a sale, including directions

(a) appointing the person who is to have conduct of the sale,

(b) fixing the manner of sale, whether by contract conditional on the approval of the court, private negotiation, public auction, sheriff's sale, tender or some other manner,

(c) fixing a reserve or minimum price,

(d) defining the rights of a person to bid, make offers or meet bids,

(e) requiring payment of the purchase price into court or to trustees or to other persons,

(f) settling the particulars or conditions of sale,

(g) obtaining evidence of the value of the property,

(h) fixing the remuneration to be paid to the person having conduct of the sale and any commission, costs or expenses resulting from the sale,

(i) that any conveyance or other document necessary to complete the sale be executed on behalf of any person by a person designated by the court, and

(j) authorizing a person to enter on any land or building.

Application for directions

(5)A person having conduct of a sale may apply to the court for further directions.

Certificate of sale

(6)The result of a sale by order of the court must be certified in Form 60 by the person having conduct of the sale and that certificate must be filed promptly after completion of the sale.

Vesting order

(7)The person having conduct of the sale may apply to the court for a vesting order in favour of a purchaser.

Part 14 — Costs

[Special rules apply to costs in fast track actions – see Rule 15-1 (15) to (17).]

Rule 14-1 — Costs

How costs assessed generally

(1)If costs are payable to a party under these Supreme Court Civil Rules or by order, those costs must be assessed as party and party costs in accordance with Appendix B unless any of the following circumstances exist:

(a) the parties consent to the amount of costs and file a certificate of costs setting out that amount;

(b) the court orders that

(i)   the costs of the proceeding be assessed as special costs, or

(ii)   the costs of an application, a step or any other matter in the proceeding be assessed as special costs in which event, subject to subrule (10), costs in relation to all other applications, steps and matters in the proceeding must be determined and assessed under this rule in accordance with this subrule;

(c) the court awards lump sum costs for the proceeding and fixes those costs under subrule (15) in an amount the court considers appropriate;

(d) the court awards lump sum costs in relation to an application, a step or any other matter in the proceeding and fixes those costs under subrule (15), in which event, subject to subrule (10), costs in relation to all other applications, steps and matters in the proceeding must be determined and assessed under this rule in accordance with this subrule;

(e) a notice of fast track action in Form 61 has been filed in relation to the action under Rule 15-1, in which event Rule 15-1 (15) to (17) applies;

(f) subject to subrule (10) of this rule,

(i)   the only relief granted in the action is one or more of money, real property, a builder's lien and personal property and the plaintiff recovers a judgment in which the total value of the relief granted is $100,000 or less, exclusive of interest and costs, or

(ii)   the trial of the action was completed within 3 days or less,

in which event, Rule 15-1 (15) to (17) applies to the action unless the court orders otherwise.

Assessment of party and party costs

(2)On an assessment of party and party costs under Appendix B, a registrar must

(a) allow those fees under Appendix B that were proper or reasonably necessary to conduct the proceeding, and

(b) consider Rule 1-3 and any case plan order.

Assessment of special costs

(3)On an assessment of special costs, a registrar must

(a) allow those fees that were proper or reasonably necessary to conduct the proceeding, and

(b) consider all of the circumstances, including the following:

(i)   the complexity of the proceeding and the difficulty or the novelty of the issues involved;

(ii)   the skill, specialized knowledge and responsibility required of the lawyer;

(iii)   the amount involved in the proceeding;

(iv)   the time reasonably spent in conducting the proceeding;

(v)   the conduct of any party that tended to shorten, or to unnecessarily lengthen, the duration of the proceeding;

(vi)   the importance of the proceeding to the party whose bill is being assessed, and the result obtained;

(vii)   the benefit to the party whose bill is being assessed of the services rendered by the lawyer;

(viii)   Rule 1-3 and any case plan order.

Assessment officer

(4)The officer before whom costs are assessed is a registrar.

Disbursements

(5)When assessing costs under subrule (2) or (3) of this rule, a registrar must

(a) determine which disbursements have been necessarily or properly incurred in the conduct of the proceeding, and

(b) allow a reasonable amount for those disbursements.

Estate Administration Act

(6)Unless the court on application otherwise orders, if costs are payable for any non-contentious business under Rule 21-5, those costs

(a) must be assessed as special costs, and

(b) may be assessed without an order of the court,

and subrules (3) and (5) of this rule apply.

Directions

(7)If the court has made an order for costs,

(a) any party may, at any time before a registrar issues a certificate under subrule (27), apply for directions to the judge or master who made the order for costs,

(b) the judge or master may direct that any item of costs, including any item of disbursements, be allowed or disallowed, and

(c) the registrar is bound by any direction given by the judge or master.

Tax in respect of legal services and disbursements

(8)If tax is payable by a party in respect of legal services or disbursements, a registrar must, on an assessment under subrule (2) or (3), allow an additional amount to compensate for that tax as follows:

(a) if the tax is payable in respect of legal services, the additional amount to compensate for the tax must be determined by multiplying the percentage rate of the tax by,

(i)   in the case of a judgment entered on default of response to civil claim, the costs allowed under Item 1 or 2, as the case may be, of Schedule 1 of Appendix B,

(ii)   in the case of a writ of execution, a garnishing order, a subpoena to debtor in Form 56, a notice of application for committal in Form 58 or an order of committal in Form 59, the costs allowed under Item 1 or 2, as the case may be, of Schedule 2 of Appendix B, or

(iii)   in any other case, the monetary value of the units assessed;

(b) if the tax is payable in respect of disbursements, the additional amount to compensate for the tax must be determined by multiplying the percentage rate of the tax by the monetary value of the disbursements as assessed.

Costs to follow event

(9)Subject to subrule (12), costs of a proceeding must be awarded to the successful party unless the court otherwise orders.

Costs in cases within small claims jurisdiction

(10)A plaintiff who recovers 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.

Costs where party represented by an employee

(11)A party is not disentitled to costs merely because the party's lawyer is an employee of the party.

Costs of applications

(12)Unless the court hearing an application otherwise orders,

(a) if the application is granted, the party who brought the application is entitled to costs of the application if that party is awarded costs at trial or at the hearing of the petition, but the party opposing the application, if any, is not entitled to costs even though that party is awarded costs at trial or at the hearing of the petition, and

(b) if the application is refused, the party who brought the application is not entitled to costs of the application even though that party is awarded costs at trial or at the hearing of the petition, but the party opposing the application, if any, is entitled to costs if that party is awarded costs at trial or at the hearing of the petition.

When costs payable

(13)If an entitlement to costs arises during a proceeding, whether as a result of an order or otherwise, those costs are payable on the conclusion of the proceeding unless the court otherwise orders.

Costs arising from improper act or omission

(14)If anything is done or omitted improperly or unnecessarily, by or on behalf of a party, the court or a registrar may order

(a) that any costs arising from or associated with any matter related to the act or omission not be allowed to the party, or

(b) that the party pay the costs incurred by any other party by reason of the act or omission.

Costs of whole or part of proceeding

(15)The court may award costs

(a) of a proceeding,

(b) that relate to some particular application, step or matter in or related to the proceeding, or

(c) except so far as they relate to some particular application, step or matter in or related to the proceeding

and in awarding those costs the court may fix the amount of costs, including the amount of disbursements.

Costs payable from estate or property

(16)If it is ordered that any costs are to be paid out of an estate or property, the court may direct out of what portion of the estate or property the costs are to be paid.

Set-off of costs

(17)If a party entitled to receive costs is liable to pay costs to another party, a registrar may assess the costs the party is liable to pay and may adjust them by way of deduction or set-off or may delay the allowance of the costs the party is entitled to receive until the party has paid or tendered the costs the party is liable to pay.

Costs of one defendant payable by another

(18)If the costs of one defendant against a plaintiff ought to be paid by another defendant, the court may order payment to be made by one defendant to the other directly, or may order the plaintiff to pay the costs of the successful defendant and allow the plaintiff to include those costs as a disbursement in the costs payable to the plaintiff by the unsuccessful defendant.

Unnecessary expense after judgment

(19)If after pronouncement of judgment a party puts another party to unnecessary proceedings or expense, a registrar may award costs as the registrar considers appropriate against the offending party.

Form of bill of costs

(20)A bill of costs must be in Form 62 or, if the bill of costs pertains to a judgment under Rule 3-8, Form 63.

Appointment to review a bill, examine an agreement or assess costs

(21)Except as provided in subrule (26), a person who seeks a review of a bill or an examination of an agreement under the Legal Profession Act or who seeks to have costs assessed must

(a) obtain a date for an appointment before a registrar,

(b) file an appointment in Form 49 to which is attached

(i)   the bill to be reviewed,

(ii)   the agreement to be examined, or

(iii)   the bill of costs to be assessed, and

(c) at least 5 days before the date of the appointment, serve a copy of the filed Form 49 appointment and any affidavit in support,

(i)   in the case of a bill to be reviewed, on the lawyer whose bill is to be reviewed, on the person who is charged with the bill or on the person who has agreed to indemnify the person charged, as the case may be,

(ii)   in the case of an agreement to be examined, on the lawyer who is a party to the agreement to be examined, or

(iii)   in the case of a bill of costs to be assessed, in accordance with subrule (25).

Place for review or examination

(22)An appointment for review of a bill, examination of an agreement or assessment of costs must be taken out,

(a) in the case of a bill to be reviewed or an agreement to be examined,

(i)   if the bill or agreement relates to a court proceeding, at the registry at which the proceeding is being conducted, or

(ii)   if the bill or agreement does not relate to a court proceeding, at the registry nearest to the place of business of the lawyer concerned,

(b) in the case of a bill of costs to be assessed, at the registry at which the proceeding is being conducted, or

(c) at any other registry to which the parties to the appointment may agree.

Further particulars

(23)A registrar may order further particulars or details of

(a) a bill under review,

(b) an agreement under examination, or

(c) a bill of costs being assessed.

Assessment of sheriff's fees

(24)If a sheriff who has charged fees for services set out in Schedule 2 of Appendix C or a person affected by those fees wishes to have those fees assessed, the person seeking the assessment must

(a) obtain an appointment from a registrar in Form 49 and attach to that appointment a copy of the bill to be assessed, if available, and

(b) at least 5 days before the assessment, serve a copy of the filed appointment and any filed affidavit in support on all persons affected by the fees.

Service of appointment

(25)A person seeking an assessment of costs must serve an appointment in Form 49, to which is attached the bill of costs, and any affidavit in support on

(a) the person against whom costs are to be assessed, and

(b) every other person whose interest, whether in a fund or estate or otherwise, may be affected.

Costs on default judgment

(26)On signing a default judgment, a registrar may, without an appointment, fix the costs to which the plaintiff is entitled against the defendant in default, and set out the amount allowed in

(a) the judgment, or

(b) a separate certificate.

Certificate of costs

(27)On the conclusion of an assessment of costs, or if the party charged has consented to the amount, a registrar must, either by endorsing the original bill or by issuing a certificate of costs in Form 64, certify the amount of costs awarded, and the party assessing costs must file the certificate.

Certificate of fees

(28)On the conclusion of a review of a bill under the Legal Profession Act, or if the parties to the review have consented to the amount due under the bill, a registrar must, by issuing a certificate of fees in Form 65, certify the amount due, and either party to the review may file the certificate.

Review of an assessment

(29)A party who is dissatisfied with a decision of a registrar on an assessment of costs may, within 14 days after the registrar has certified the costs, apply to the court for a review of the assessment.

Form of bill in certain cases

(30)A bill for special costs or a bill under the Legal Profession Act may be rendered on a lump sum basis.

Description of services

(31)A lump sum bill must contain a description of the nature of the services and of the matter involved as would, in the opinion of a registrar, afford any lawyer sufficient information to advise a client on the reasonableness of the charge made.

Evidence of lawyer

(32)A party to an assessment of costs or a review of a lump sum bill may put in evidence the opinion of a lawyer as to the nature and importance of the services rendered and of the matter involved and the reasonableness of the charges made, but a party must not put in evidence the opinions of more than 2 lawyers, and a lawyer giving an opinion may be required to attend for examination and cross-examination.

Disallowance of fees and costs

(33)If the court considers that a party's lawyer has caused costs to be incurred without reasonable cause, or has caused costs to be wasted through delay, neglect or some other fault, the court may do any one or more of the following:

(a) disallow any fees and disbursements between the lawyer and the lawyer's client or, if those fees or disbursements have been paid, order that the lawyer repay some or all of them to the client;

(b) order that the lawyer indemnify his or her client for all or part of any costs that the client has been ordered to pay to another party;

(c) order that the lawyer be personally liable for all or part of any costs that his or her client has been ordered to pay to another party;

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

Costs may be ordered without assessment

(34)If the court makes an order under subrule (33), the court may

(a) direct a registrar to conduct an inquiry and file a report with recommendations as to the amount of costs, or

(b) subject to subrule (37), fix the costs with or without reference to the tariff in Appendix B.

Notice

(35)An order against a lawyer under subrule (33) or (34) must not be made unless the lawyer is present or has been given notice.

Order to be served

(36)A lawyer against whom an order under subrule (33) or (34) has been made must promptly serve a copy of the entered order on his or her client.

Limitation

(37)An order by the court under subrule (34) (b) in respect of the costs of an application must not exceed $1 000.

Refusal or neglect to procure assessment

(38)If a party entitled to costs fails to assess costs and prejudices another party by failing to do so, a registrar may certify the costs of the other party and certify the failure and disallow all costs of the party in default.

Referrals

(39)Unless the court otherwise orders, fees to lawyers, accountants, engineers, actuaries, valuators, merchants and other scientific persons to whom any matter or question is referred by the court must be determined by a registrar, subject to an appeal to the court.

Part 15 — Fast Track Litigation Proceedings

Rule 15-1 — Fast Track Litigation

When rule applies

(1)Subject to subrule (4) and unless the court otherwise orders, this rule applies to an action if

(a) the only claims in the action are for one or more of money, real property, a builder's lien and personal property and the total of the following amounts is $100,000 or less, exclusive of interest and costs:

(i)   the amount of any money claimed in the action by the plaintiff for pecuniary loss;

(ii)   the amount of any money to be claimed in the action by the plaintiff for non-pecuniary loss;

(iii)   the fair market value, as at the date the action is commenced, of

(A)  all real property and all interests in real property, and

(B)  all personal property and all interests in personal property

claimed in the action by the plaintiff,

(b) the trial of the action can be completed within 3 days,

(c) the parties to the action consent, or

(d) the court, on its own motion or on the application of any party, so orders.

Subsequent filings

(2)If this rule applies to an action,

(a) any party may file a notice of fast track action in Form 61,

(a.1) the filing party must serve a copy of the filed notice of fast track action on each of the other parties of record, and

(b) the words "Subject to Rule 15-1" must be added to the style of proceeding, immediately below the listed parties, for all documents filed after the notice of fast track action is filed under paragraph (a) or the court order is made under subrule (1) (d), as the case may be.

[am. B.C. Reg. 119/2010, Sch. A, s. 31.]

Damages not limited

(3)Nothing in this rule prevents a court from awarding damages to a plaintiff in a fast track action for an amount in excess of $100,000.

Rule does not apply to class proceedings

(4)This rule does not apply to a class proceeding within the meaning of the Class Proceedings Act.

Conflict

(5)These Supreme Court Civil Rules apply to a fast track action but in the event of a conflict between this rule and another rule, this rule applies.

When rule ceases to apply

(6)This rule ceases to apply to a fast track action if the court, on its own motion or on the application of any party, so orders.

Case planning conference required

(7)Subject to subrule (8), a party to a fast track action must not serve on another party a notice of application or an affidavit in support of an application unless a case planning conference or a trial management conference has been conducted in relation to the action.

Exception

(8)Subrule (7) does not apply to an application made

(a) for an order under subrule (6) that this rule cease to apply to the action,

(b) to obtain leave to bring an application referred to in subrule (9),

(c) under Rule 9-5, 9-6 or 9-7,

(d) to add, remove or substitute a party, or

(e) by consent.

Court may relieve

(9)On application by a party, a judge or master may relieve a party from the requirements of subrule (7) if

(a) it is impracticable or unfair to require the party to comply with the requirements of subrule (7), or

(b) the application referred to in subrule (7) is urgent.

Trial to be without jury

(10)A trial of a fast track action must be heard by the court without a jury.

Oral discovery

(11)Unless the court otherwise orders, in a fast track action the examinations for discovery of a party of record, including any person referred to in Rule 7-2 (1) (b) who is examined in relation to that party of record, by all parties of record who are adverse in interest must not, in total, exceed in duration

(a) 2 hours, or

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

When discoveries must be completed

(12)Unless the court otherwise orders or the parties to the examination consent, all examinations for discovery in a fast track action must be completed at least 14 days before the scheduled trial date.

Setting of trial date

(13)If a party to a fast track action applies for a trial date within 4 months after the date on which this rule becomes applicable to the action, the registrar must set a date for the trial that is not later than 4 months after the application for the trial date.

If trial will require more than 3 days

(14)If, as a result of the trial management conference in a fast track action, the trial management conference judge or master considers that the trial will likely require more than 3 days, the trial management conference judge or master

(a) may adjourn the trial to a date to be fixed as if the action were not subject to this rule, and

(b) is not seized of the action.

[am. B.C. Reg. 58/2012, Sch. A, s. 2.]

Costs

(15)Unless the court otherwise orders or the parties consent, and subject to Rule 14-1 (10), the amount of costs, exclusive of disbursements, to which a party to a fast track action is entitled is as follows:

(a) if the time spent on the hearing of the trial is one day or less, $8 000;

(b) if the time spent on the hearing of the trial is 2 days or less but more than one day, $9 500;

(c) if the time spent on the hearing of the trial is more than 2 days, $11 000.

Settlement offers

(16)In exercising its discretion under subrule (15), the court may consider an offer to settle as defined in Rule 9-1.

Taxes to be added to costs

(17)If tax is payable by a party to a fast track action in respect of legal services, an additional amount to compensate for that tax must be added to the costs to which the party is entitled under subrule (15), which additional amount must be determined by multiplying the amount of costs to which the party is entitled under subrule (15) by the percentage rate of the tax.

Part 16 — Petition Proceedings

Rule 16-1 — Petitions

Definitions

(1)In this rule, "petition respondent" means a person who files a response to petition under subrule (4).

Petitions

(2)A person wishing to bring a proceeding referred to in Rule 2-1 (2) by filing a petition must file a petition in Form 66 and each affidavit in support.

Service

(3)Unless these Supreme Court Civil Rules otherwise provide or the court otherwise orders, a copy of the filed petition and of each filed affidavit in support must be served by personal service on all persons whose interests may be affected by the order sought.

Response to petition

(4)A person who has been served with a copy of a filed petition under subrule (3) of this rule must, if the person wishes to receive notice of the time and date of the hearing of the petition, do the following:

(a) file a response to petition in accordance with subrule (5);

(b) file, with the response to petition, all affidavits that have not already been filed and on which the person intends to rely at the hearing of the petition;

(c) unless the court otherwise orders, serve on the petitioner 2 copies and on every other party of record one copy of each document filed under paragraph (a) or (b) as follows:

(i)   if the petition respondent was served with the petition anywhere in Canada, within 21 days after that service;

(ii)   if the petition respondent was served with the petition anywhere in the United States of America, within 35 days after that service;

(iii)   if the petition respondent was served with the petition anywhere else, within 49 days after that service.

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

Contents of response to petition

(5)A response to petition must be in Form 67 and must

(a) indicate, for each order sought, whether the petition respondent consents to, opposes or takes no position on the order, and

(b) if the petition respondent wishes to oppose any of the relief sought in the petition,

(i)   briefly summarize the factual and legal bases on which the orders sought should not be granted,

(ii)   list the affidavits and other documents on which the petition respondent intends to rely at the hearing of the petition, and

(iii)   set out the petition respondent's estimate of the time the petition will take for hearing.

Petitioner may respond

(6)A petitioner may file affidavits in response to any document served on the petitioner under subrule (4) (c) and, in that event, must serve copies of those filed responding affidavits on each petition respondent no later than the date on which the notice of hearing is served on that petition respondent under subrule (8) (b).

No additional affidavits

(7)Unless all parties of record consent or the court otherwise orders, a party must not serve any affidavits additional to those served under subrules (3), (4) and (6).

Setting application for hearing

(8)A petitioner wishing to set a petition down for hearing must,

(a) in the case of a petition to which no response to petition has been served under subrule (4) (c), file a notice of hearing in Form 68 at any time before the hearing of the petition, or

(b) in the case of a petition to which a response to petition has been filed and served under subrule (4) (c), file a notice of hearing in Form 68, and serve a copy of the filed notice of hearing on each petition respondent, at least 7 days before the date set for the hearing of the petition.

Date and time of hearing

(9)The hearing of a petition must be set for 9:45 a.m. on a date on which the court hears petitions 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

(10)If the estimate, set out in the petition, of the time that the hearing of the petition will take 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. 32 (a).]

Petition record

(11)Subject to subrule (13), the petitioner must provide to the registry where the hearing is to take place, no later than 4 p.m. on the day that is one full day before the date set for the hearing, a petition record as follows:

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

(b) the petition 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 petitioner and the petition respondents;

(ii)   an index;

(iii)   a copy of the filed petition;

(iv)   a copy of each filed response to petition;

(v)   a copy of each filed affidavit that is to be referred to at the hearing;

(c) the petition record may contain

(i)   a draft of the proposed order,

(ii)   a written argument,

(iii)   a list of authorities, and

(iv)   a draft bill of costs;

(d) the petition 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.

[am. B.C. Reg. 119/2010, Sch. A, s. 32 (b) and (c).]

Service of petition record

(12)The petitioner must serve a copy of the petition record index on each petition respondent no later than 4 p.m. on the day that is one full day before the date set for the hearing.

[am. B.C. Reg. 119/2010, Sch. A, s. 32 (d).]

If petition respondent's application is to be heard at the hearing

(13)If a petition respondent intends to set an application for hearing at the same time as the hearing of the petition, the parties must, so far as is possible, prepare and file a joint petition record and agree to a date for the hearing of both applications.

Petition record to be returned

(14)Unless the court otherwise orders, the applicant must retrieve the petition record

(a) at the conclusion of the hearing, or

(b) if the hearing of the petition is adjourned to a date later than the following court day, after the hearing is adjourned.

[am. B.C. Reg. 119/2010, Sch. A, s. 32 (e).]

Petition record to be returned to registry

(15)If the petition record has been retrieved by the petitioner under subrule (14) (b), the petitioner must return the petition record to the registry between 9:00 a.m. on the second court day before, and 4 p.m. on the day that is one full day before, the new date set for the hearing of the petition.

[am. B.C. Reg. 119/2010, Sch. A, s. 18.]

Provision of amended petition record

(16)If any additional affidavits are filed and served under subrule (7), the petitioner must provide to the registry an amended petition record containing those affidavits.

Resetting adjourned hearings

(16.1)To reset the hearing of a petition that has been adjourned without a date being set for it to be heard ("adjourned generally"), the petitioner 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 petition respondents at least 2 days before the date set for the hearing.

[en. B.C. Reg. 119/2010, Sch. A, s. 32 (f).]

Petition respondent may apply for directions

(17)If the petitioner does not

(a) set the petition for hearing within a reasonable time after being requested to do so by a petition respondent, or

(b) after the hearing of the petition has been adjourned generally, reset the petition for hearing within a reasonable time after being requested to do so by a petition respondent,

a petition respondent may apply, by requisition in Form 17 on 2 days' notice, for directions.

[en. B.C. Reg. 95/2011, Sch. A, s. 7 (b).]

Powers of court

(18)Without limiting the court's right under Rule 22-1 (7) (d) to transfer the proceeding referred to in this rule to the trial list, the court may, whether or not on the application of a party, apply any other of these Supreme Court Civil Rules to a proceeding referred to in this rule.

Amendment of petition or response to petition

(19)A party may amend a petition or response to petition filed by the party

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

(b) subject to Rules 6-2 (7) and (10) and 7-7 (5),

(i)   once without leave of the court, at any time before service of the notice of hearing, and

(ii)   at any time with the written consent of all the parties,

and for that purpose Rule 6-1 (2) to (7) applies.

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

Renewal of original petition

(20)An original petition does not remain in force for more than 12 months, but if a respondent named in a petition has not been served, the court, on the application of the petitioner made before or after the expiration of the 12 months, may order that the original petition be renewed for a period of not more than 12 months.

Further renewal of petition

(21)If a renewed petition has not been served on a respondent named in the petition, the court, on the application of the petitioner made during the currency of the renewed petition, may order the renewal of the petition for a further period of not more than 12 months.

When renewal period begins

(22)Unless the court otherwise orders, a renewal period ordered under subrule (20) or (21) begins on the date of the order.

After renewal of petition

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

Part 17 — Requisition Proceedings

Rule 17-1 — Requisitions

Proceedings to which this rule applies

(1)A proceeding referred to in Rule 2-1 (2) may be brought under this rule if

(a) all persons affected by the orders sought within the proceeding consent, or

(b) the proceeding is one of which notice need not be given.

Filings required

(2)A proceeding referred to in subrule (1) may be brought by filing

(a) a requisition in Form 31,

(b) a draft of the proposed order

(i)   if the order is by consent, in Form 34, or

(ii)   in any other case, in Form 35,

(c) in the case of a proceeding referred to in subrule (1) (a),

(i)   evidence that the order sought is consented to, and

(ii)   any consent or comments of the Public Guardian and Trustee required under section 40 of the Infants Act, and

(d) in the case of a proceeding referred to in subrule (1) (b), evidence in support of the order sought.

If proceeding is by consent

(3)On being satisfied that a proceeding referred to in subrule (1) (a) is consented to and that the materials appropriate for the order sought have been filed in accordance with subrule (2), a registrar may,

(a) if the registrar is satisfied that none of the parties applying for or consenting to the order sought is under a legal disability or that, if a party is under a legal disability, section 40 (7) of the Infants Act applies,

(i)   enter the order, or

(ii)   refer the documents filed under subrule (2) to a judge or, if the order sought is within the jurisdiction of a master, to a judge or master, or

(b) in any other case, refer the documents filed under subrule (2) to a judge, or, if the order sought is within the jurisdiction of a master, to a judge or master.

If no notice is required

(4)On being satisfied that the documents appropriate for a proceeding referred to in subrule (1) (b) have been filed in accordance with subrule (2), a registrar may refer those documents to a judge, or, if the order sought is within the jurisdiction of a master, to a judge or master.

Disposition of referred documents

(5)If documents filed under subrule (2) are referred by a registrar to a judge or master under subrule (3) or (4), the judge or master to whom the documents are referred may

(a) make the order sought, or

(b) give directions respecting the proceeding.

Part 18 — Other Court Proceedings

Rule 18-1 — Inquiries, Assessments and Accounts

Direction for inquiries, assessments or accounts

(1)At any stage of a proceeding, the court may direct that an inquiry, assessment or accounting be held by a master, registrar or special referee.

Certificate as to result

(2)The court may direct that the result of an inquiry, assessment or accounting be certified by the master, registrar or special referee and, in that event, the certificate, if filed under subrule (9), is binding on the parties to the proceeding.

Report and recommendation

(3)If the court does not direct that the result of an inquiry, assessment or accounting be certified, the result of the inquiry, assessment or accounting must be stated in the form of a report and recommendation to the court.

Application to vary or confirm recommendation

(4)On application by a party, the court may

(a) vary or confirm the recommendation contained in the report and recommendation referred to in subrule (3),

(b) remit the inquiry, assessment or accounting with directions, or

(c) order that the subject matter of the inquiry, assessment or accounting be determined as directed by the court.

Time and place of hearing

(5)A master, registrar or special referee may hold a hearing in relation to an inquiry, assessment or accounting and, in that event, may

(a) hold the hearing at a convenient time and place,

(b) adjourn the hearing from time to time, and

(c) administer oaths, take evidence, direct production of documents and give general directions for the conduct of the hearing.

Appointment

(6)If a party wishes to proceed with an inquiry, assessment or accounting directed by the court under subrule (1), the party must

(a) take out an appointment in Form 49, and

(b) serve notice of the appointment on all parties of record or as directed by the court.

Witnesses

(7)A party of record to a proceeding in which an inquiry, assessment or accounting is held may subpoena any person, including a party, to give evidence at the hearing of the inquiry, assessment or accounting and to produce documents.

Certificate or recommendation to be filed and served

(8)A master, registrar or special referee must state the result of an inquiry, assessment or accounting in the form of a certificate or a report and recommendation as directed under subrule (2) or (3) respectively, with or without reasons, and must

(a) provide the certificate to the party requesting the certificate, or

(b) file the report and recommendation and provide a copy to all persons who appeared at the hearing.

Party may file certificate

(9)A party to whom a certificate is provided under subrule (8) (a) may file that certificate.

Opinion of the court

(10)Before the master, registrar or special referee has concluded a hearing of an inquiry, assessment or accounting, he or she may, in a summary or other manner, ask the opinion of the court on any matter arising in the hearing.

Accounts of executor, trustee, etc.

(11)A person may apply by petition for the furnishing of accounts by the executor or administrator of an estate, a trustee, a receiver, a liquidator, a guardian or a partner.

Special directions

(12)The court may give special directions as to the manner in which an inquiry, assessment or accounting is to be taken or made, and the directions may include

(a) the manner in which the inquiry, assessment or accounting is to be prosecuted,

(b) the evidence to be tendered in support,

(c) the parties required to attend all or any part of the proceedings,

(d) the time within which each proceeding is to be taken, and

(e) a direction that persons whose interest can be classified constitute a class and are to be represented by the same lawyer,

and the court may fix a time for the further attendance of the parties.

Court may appoint lawyer

(13)If the court makes a direction under subrule (12) (e) and the persons cannot agree on the lawyer to represent them, the court may appoint the lawyer to represent them.

Varying directions

(14)The court may vary or rescind a direction given under subrule (12).

Account to be verified by affidavit

(15)If an accounting is directed to be held, unless the court otherwise orders, the party required to account must make out that party's account and verify it by an affidavit to which the account must be exhibited.

Form of account

(16)If an account is made out under subrule (15), the items on each side of the account must be numbered consecutively, and the party required to account must file the affidavit and the account referred to in that subrule and serve copies of those filed documents on all parties of record.

Particulars of errors in account

(17)A party who alleges that there are errors or omissions in an account must file and serve on all parties of record a notice of those errors with brief particulars.

Notice of order

(18)If the court makes an order directing that an inquiry, assessment or accounting be held in a proceeding relating to

(a) the administration of the estate of a deceased person,

(b) the execution of a trust, or

(c) the sale of any property,

the court may direct that notice of the order in Form 69 be served on any person interested

(d) in the estate,

(e) under the trust, or

(f) in the property.

Person bound as if party

(19)Any person served with notice of an order in accordance with subrule (18) is, subject to subrule (21), bound by the order to the same extent as the person would have been if the person had originally been made a party to the action.

Dispensing with service

(20)In any case in which it appears that it is impracticable for any reason to serve a person with a notice of order under subrule (18),

(a) the court may dispense with service on the person,

(b) the court may order that that person be bound by any order made to the same extent as if the person had been served with notice of the order, and

(c) the person referred to in an order under paragraph (b) is bound by the order to the same extent as if the person had been served with notice of the order unless the order was obtained by fraud or non-disclosure of material facts.

Person may apply to vary or rescind

(21)Within 28 days after service of a notice of order under subrule (18) on a person, the person may, without becoming a party of record to the proceeding, apply to the court to vary or rescind the order.

Person may file a notice of interest

(22)A person served with a notice of order under subrule (18) may, after filing a notice of interest in Form 70, take part in the proceeding.

Rule 18-2 — Stated Cases

Definitions

(1)In this rule:

"applicant" means the person identified as the applicant under subrule (4) (a);

"authorizing enactment", in relation to a stated case, means the enactment under which the stated case is referred to the court;

"deliver" means

(a) mail or deliver to the recipient's address for service,

(b) if the recipient is the original tribunal, mail or deliver to the address for that entity, or

(c) if the recipient is a person, other than the original tribunal, for whom an address for service has not been given, mail or deliver to the address for that person included in the latest materials filed by that person with, or submitted by that person to, the original tribunal in relation to the original proceeding;

"original proceeding", in relation to a stated case, means the tribunal proceeding from which the stated case is brought;

"original tribunal", in relation to a stated case, means the entity by which the original proceeding is heard;

"person" has the same meaning as in the Interpretation Act, and includes an entity by which a tribunal proceeding is heard;

"respondent" means a person identified as a respondent under subrule (4) (b);

"stated case" means a reference to the court of a question that arises in or as a result of a tribunal proceeding, if an enactment provides that that reference be made by way of stated case, and includes a question of law submitted to the court under section 34 of the Commercial Arbitration Act;

"tribunal proceeding" means any judicial or quasi-judicial proceeding conducted by an entity other than the court.

Application

(2)A stated case is governed by these Supreme Court Civil Rules but, in the event of a conflict between this rule and

(a) the authorizing enactment, the authorizing enactment prevails, and

(b) another rule, this rule prevails.

Material to be filed

(3)To start a stated case, the original tribunal must file in a registry

(a) a notice of stated case in Form 71, and

(b) any material that, under the authorizing enactment, is required to start a stated case.

Identification of parties and others

(4)A notice of stated case must

(a) identify as the applicant the person requesting the stated case,

(b) identify as respondents all other parties to the original proceeding, including the original tribunal if that entity is not the applicant, and

(c) set out the names of

(i)   any persons who are identified in, or identified in the manner provided for under, the authorizing enactment or the Constitutional Question Act as being persons to whom notice of the stated case must be provided,

(ii)   any intervenor in the original proceeding, and

(iii)   any other person to whom the original tribunal considers the notice of stated case should be delivered.

Contents

(5)In addition to including the information required by subrule (4), a notice of stated case must set out the following:

(a) a statement of the relevant facts and evidence;

(b) the questions to be determined by the court;

(c) the applicant's address for service, the most recent address provided to the original tribunal by each of the respondents and the most recent address known to the original tribunal for each of the persons referred to in subrule (4) (c).

Delivery of notice of stated case

(6)After a notice of stated case and any material required under subrule (3) (b) is filed under subrule (3),

(a) the original tribunal, if not the applicant, must deliver a copy of the filed notice of stated case and material to the applicant, and

(b) the applicant must deliver a copy of the filed notice of stated case and material to

(i)   the respondents, and

(ii)   all other persons named in the notice of stated case under subrule (4) (c).

Powers of court

(7)The court may

(a) give directions for the proper hearing and determination of the stated case,

(b) without limiting paragraph (a), make one or more of the following orders:

(i)   that documents, including transcripts and minutes, or other things be produced;

(ii)   that evidence be tendered by way of affidavit, or that it be given orally;

(iii)   that sets time limits for taking steps in, and for the hearing of, the stated case;

(iv)   that the stated case be disposed of summarily, and

(c) exercise any of the powers of the court exercisable in a petition proceeding.

Requirement for notice of interest

(8)The original tribunal, if it is not the applicant, and any person who has received a notice of stated case under subrule (6), must, if that tribunal or person wishes to be heard on the hearing of the stated case, file a notice of interest in Form 70.

Notice of hearing of stated case

(9)The applicant or a respondent must, if that person wishes to proceed with the stated case, set it for hearing by

(a) filing a notice of hearing of stated case in Form 72, and

(b) delivering a copy of the filed notice of hearing of stated case, at least 14 days before the date set for hearing, to

(i)   each other party of record, and

(ii)   the original tribunal, unless that entity filed or received a copy under this subrule.

Rule 18-3 — Appeals

Application

(1)If an appeal or an application in the nature of an appeal from a decision, direction or order of any person or body, including the Provincial Court, is authorized by an enactment to be made to the court or to a judge, the appeal is governed by this rule to the extent that this rule is not inconsistent with any procedure provided for in the enactment.

Form

(2)An appeal is to be started by filing in a registry a notice of appeal in Form 73 or 74.

Directions

(3)A notice of appeal must include

(a) the standard set of directions, in the form directed by the Chief Justice, governing the conduct of the appeal, or

(b) an application for directions as to the conduct of the appeal.

Conduct of appeal

(4)If the notice of appeal includes a standard set of directions under subrule (3) (a), the appeal must be conducted in accordance with those directions unless the court otherwise orders.

Application for directions

(5)Unless the court otherwise orders, an application for directions under subrule (3) (b) must be set for hearing on a date that is at least 7 days after the date on which the notice of appeal is served in accordance with subrule (6).

Service of notice of appeal

(6)Unless the court otherwise orders, a notice of appeal must be served on

(a) the person or body that gave the decision or direction, or made the order, being appealed, and

(b) all other persons who may be affected by the order sought.

Powers of court

(7)The court may give directions for the proper hearing and determination of an appeal and, without limiting this, may make an order

(a) that documents, transcripts or minutes be produced,

(b) that evidence be tendered by way of affidavit, or that it be given orally,

(c) that the appeal be determined by way of stated case or argument on a point of law,

(d) prescribing time limits for taking steps in and for the hearing of the appeal, or

(e) that the appeal be disposed of summarily,

and may exercise any of the powers of the court exercisable in a petition proceeding.

Filing notice of interest

(8)A person who intends to oppose an appeal must,

(a) file a notice of interest in Form 70 within the following period:

(i)   if the person was served with the notice of appeal anywhere in Canada, within 14 days after that service;

(ii)   if the person was served with the notice of appeal anywhere in the United States of America, within 28 days after that service;

(iii)   if the person was served with the notice of appeal anywhere else, within 42 days after that service, and

(b) promptly after filing the notice of interest, serve a copy of the filed notice of interest on the appellant.

[am. B.C. Reg. 95/2011, Sch. A, s. 8.]

Notice of hearing of appeal

(9)After obtaining from a registrar a date for the hearing of the appeal, the appellant must, if the appellant wishes to proceed with the appeal, set the appeal for hearing on that date by

(a) filing a notice of hearing of appeal in Form 75, and

(b) serving a copy of the filed notice of hearing of appeal on all parties of record.

Notice of abandonment of appeal

(10)An appellant may abandon an appeal by

(a) filing a notice of abandonment of appeal in Form 76, and

(b) serving a copy of the filed notice of abandonment of appeal on all parties of record.

Part 19 — Judgments from Other Courts

Rule 19-1 — Transfer of Proceedings from Provincial Court

Definition

(1)In this rule, "transfer order" means the order of the Provincial Court referred to in subrule (2).

These Supreme Court Civil Rules apply to transferred proceedings

(2)If a proceeding has been started in the Provincial Court and a judge of that court orders that the proceeding be transferred to the Supreme Court, these Supreme Court Civil Rules apply to the proceeding as if it had been started in the Supreme Court.

Repealed

(3)Repealed. [B.C. Reg. 95/2011, Sch. A, s. 9.]

Pleadings

(4)If a proceeding is transferred to the Supreme Court in the manner referred to in subrule  (2),

(a) the notice of claim filed in the Provincial Court is deemed to be the notice of civil claim filed in the proceeding in the Supreme Court,

(b) the reply filed in the Provincial Court is deemed to be the response to civil claim filed in the proceeding in the Supreme Court, and

(c) a counterclaim filed in the Provincial Court is deemed to be a counterclaim filed in the proceeding in the Supreme Court.

[en. B.C. Reg. 95/2011, Sch. A, s. 9.]

Plaintiff must file and serve amended notice of civil claim

(5)If the claimant in the Provincial Court proceeding wishes to continue with that proceeding after its transfer to the Supreme Court, the claimant must, as plaintiff in the Supreme Court action,

(a) amend the notice of claim that is, under subrule (4) (a), deemed to be the notice of civil claim filed in the proceeding in the Supreme Court

(i)   by adding "Transferred Proceeding" above the style of proceeding, and

(ii)   by otherwise making the notice of claim accord with Rule 3-1,

(b) within 21 days after the transfer order, file, in the Supreme Court registry nearest to the Provincial Court registry in which the Provincial Court proceeding was started, that notice of civil claim as it has been amended by the amendment referred to in paragraph (a) of this subrule, and

(c) serve a copy of that filed notice of civil claim in accordance with Rule 3-2.

[en. B.C. Reg. 95/2011, Sch. A, s. 9.]

Amended reply and counterclaim

(6)A defendant must, within 14 days after the date of service of the amended notice of claim under subrule (5) (c) of this rule,

(a) amend the reply that is, under subrule (4) (b), deemed to be the response to civil claim filed in the proceeding in the Supreme Court

(i)   by adding "Transferred Proceeding" above the style of proceeding, and

(ii)   by otherwise making the reply accord with Rule 3-3,

(b) amend the counterclaim, if any, that is, under subrule (4) (c) of this rule, deemed to be a counterclaim filed in the proceeding in the Supreme Court

(i)   by adding "Transferred Proceeding" above the style of proceeding, and

(ii)   by otherwise making the counterclaim accord with Rule 3-4,

(c) file in the Supreme Court registry referred to in subrule (5) (b) of this rule

(i)   that response to civil claim as it has been amended by the amendment referred to in paragraph (a) of this subrule, and

(ii)   that counterclaim, if any, as it has been amended by the amendment referred to in paragraph (b) of this subrule, and

(d) serve in accordance with Part 3

(i)   a copy of that filed response to civil claim, and

(ii)   a copy of that filed counterclaim, if any.

[en. B.C. Reg. 95/2011, Sch. A, s. 9.]

Application of Rule 6-1

(6.1)Rule 6-1 does not apply to an amendment under subrule (5) (a) or (6) (a) or (b) of this rule, and, for greater certainty, an amendment under subrule (5) (a) or (6) (a) or (b) of this rule does not constitute an amendment for the purposes of Rule 6-1 (1).

[en. B.C. Reg. 95/2011, Sch. A, s. 9.]

Previous address for service

(7)For the purposes of Rule 4-2 and subrules (3) to (6) of this rule, a party who filed a document under subrule (5) or (6) is deemed to have, as an address for service,

(a) the address for service set out in the filed document, or

(b) if the filed document does not contain an address for service, the address set out for that party on the latest document, filed by that party in the Provincial Court proceeding, that contains an address for that party.

Filing fees

(8)Despite any other provision of these Supreme Court Civil Rules, the following apply:

(a) Repealed. [B.C. Reg. 112/2012, Sch. A, s. 3.]

(b) the fee for filing an amended notice of claim under subrule (5) is the fee payable under Appendix C for commencing a proceeding in the Supreme Court less any amount that the person filing the amended notice of claim paid for filing the notice of claim in the Provincial Court proceeding;

(c) the fee for filing an amended reply or an amended counterclaim referred to in subrule (6) is the fee payable under Appendix C for filing a response to civil claim or a counterclaim, respectively, in the Supreme Court less any amount that the person filing the amended reply or amended counterclaim paid for filing the reply or counterclaim in the Provincial Court proceeding.

[am. B.C. Reg. 112/2012, Sch. A, s. 3.]

Rule 19-2 — Canadian Judgments

Definition

(1)In this rule, "Canadian judgment" has the same meaning as in the Enforcement of Canadian Judgments and Decrees Act.

Registration requirements for Canadian judgments

(2)A person wishing to register a Canadian judgment under the Enforcement of Canadian Judgments and Decrees Act must, for the purposes of section 3 (1) (b) of that Act, file a certified English translation of the Canadian judgment if the judgment was made in a language other than English.

Rule 19-3 — Foreign Judgments

Definitions

(1)In this rule:

"convention" means the Convention for the Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters, the English language version of which is set out in Schedule 4 of the Court Order Enforcement Act;

"reciprocally enforceable judgment" means a judgment that may be registered under Part 2 or 4 of the Court Order Enforcement Act.

Application under Court Order Enforcement Act

(2)A proceeding to register a reciprocally enforceable judgment must be started by petition or, if Rule 17-1 (1) applies, by requisition.

Affidavit in support

(3)The application for registration of a reciprocally enforceable judgment must be supported by an affidavit

(a) exhibiting

(i)   a certified copy of the judgment under the seal of the original court,

(ii)   if section 29 (2) of the Court Order Enforcement Act applies to the application, the certificate referred to in section 29 (3) of that Act, and

(iii)   a certified translation of the judgment or certificate if made in a language other than English, and

(b) stating, to the best of the information and belief of the person swearing or affirming the affidavit,

(i)   that the judgment creditor is entitled to enforce the judgment,

(ii)   the amount presently owing on the judgment,

(iii)   the full name, occupation and usual or last known residence or place of business of the judgment creditor and judgment debtor respectively,

(iv)   whether the judgment debtor

(A)  was personally served with the process of the original court,

(B)  was served with the process of the original court other than by personal service, or

(C)  participated in the proceeding or otherwise submitted to the jurisdiction of the original court, and

(v)   that the judgment is not one that is disqualified from registration either under section 29 (6) of the Court Order Enforcement Act or under Article II, paragraph 2, or Article IV, paragraph 1, of the convention, whichever is applicable.

Applications for reciprocal enforcement of judgment

(4)Notice of an application to register a reciprocally enforceable judgment need not be given to the judgment debtor if

(a) the application is made under Part 4 of the Court Order Enforcement Act, or

(b) the application is made under Part 2 of the Court Order Enforcement Act and section 29 (2) of that Act applies to the application.

Form of order to register

(5)The order to register the judgment must be in Form 77.

Notice of registration

(6)If a reciprocally enforceable judgment is registered, and the judgment debtor had no notice of the application for registration, notice of the registration must be given to the judgment debtor within one month after the registration.

Setting aside registration of judgment under convention

(7)The court may order that the registration of a judgment under Part 4 of the Court Order Enforcement Act be set aside if the judgment debtor was not duly served with the process of the original court, unless the judgment debtor participated in the proceeding or otherwise submitted to the jurisdiction of the original court.

Stay of enforcement

(8)The court may make an order staying or limiting the enforcement of a judgment registered under Part 4 of the Court Order Enforcement Act, subject to any terms and for any period the court considers appropriate, if

(a) the judgment is not final,

(b) an appeal is pending, or

(c) the time for appeal has not expired.

Stay of proceeding in action on foreign judgment

(9)A defendant in an action on a foreign judgment, whether or not it is a reciprocally enforceable judgment, on proof that an appeal or other proceeding in the nature of an appeal is pending or the time for appeal has not expired, may apply for an order staying the proceeding until the determination of the appeal or other proceeding on terms that the court may impose.

Rule 19-4 — Transfer of Proceedings from Foreign Courts

Court may require translation for transferred proceeding

(1)On an application under the Court Jurisdiction and Proceedings Transfer Act for an order that the court accept a transfer to it of a proceeding within the meaning of that Act, the court may order that the person applying for that order do one or both of the following:

(a) pay any expenses that have been or may be incurred by the court in having the documents in the transferring court's file relating to the proceeding translated into English by a person satisfactory to the court;

(b) pending the payment required under paragraph (a), give security in the form and manner the court may direct for payment of the expenses referred to in that paragraph.

Entry prohibited until security given

(2)If the court requires the provision of security under subrule (1) (b) in relation to the transfer of a proceeding, any order to accept the transfer

(a) is of no force or effect until that security is given, and

(b) must not be presented for entry until that security is given.

Translation and security expenses may be claimed as disbursements

(3)Nothing in subrule (1) or (2) precludes a party from claiming either or both of the following as disbursements in conjunction with any costs the party may be awarded in the transferred proceeding:

(a) the expenses referred to in subrule (1) (a) that have been paid for by the party;

(b) the expenses incurred by the party in obtaining the security required under subrule (1) (b).

Part 20 — Special Rules for Certain Parties

Rule 20-1 — Partnerships

Partners may sue or be sued in firm name

(1)Two or more persons claiming to be entitled, or alleged to be liable, as partners may sue or be sued in the name of the firm in which they were partners at the time when the alleged right or liability arose.

Service on firm

(2)Service is effected on a firm by leaving a copy of the document to be served with

(a) a person who was a partner at the time the alleged right or liability arose, or

(b) a person at a place of business of the firm who appears to manage or control the partnership business there.

Responding pleading

(3)A responding pleading or a response to petition by a partnership must be in the name of the firm, but a partner or a person served as a partner may file a responding pleading or a response to petition and defend in the person's own name, whether or not named in the originating pleading or petition.

Affidavit naming partners

(4)If a firm is a party to a proceeding, any other party may serve a notice requiring one of the partners to serve, within 10 days, an affidavit setting out the names and addresses of all persons who were partners when the alleged right or liability arose.

Court may order service

(5)If the affidavit requested under subrule (4) is not served, the court may order service.

Execution against partnership property

(6)If an order is made against a firm, execution to enforce the order may issue against any property of the firm.

Execution against partners

(7)Without limiting subrule (8), if an order is made against a firm, execution to enforce the order may issue against any person who

(a) filed a responding pleading or response to petition in the proceeding in the person's own name as a partner,

(b) having been served with the originating pleading or petition as a partner, failed to file a responding pleading or response to petition in the proceeding,

(c) admitted in a pleading or affidavit that the person is a partner, or

(d) was adjudged to be a partner.

Execution against other persons

(8)If a party who has obtained an order against a firm claims that a person who is not a person described in subrule (7) is liable to satisfy the order as being a member of the firm, the party may apply to the court for leave to issue execution against that person.

Liability may be determined

(9)If the person against whom an application under subrule (8) is made disputes liability, the court may order that the liability of the person be determined in any manner in which an issue or question in an action may be determined.

Action against person carrying on business in a name other than the person's own

(10)A person carrying on business in a name or style other than the person's own name may be sued in that name or style as if it were the name of a firm, and this rule applies as if the person were a partner and the name in which the person carries on business were the name of that firm.

Rule 20-2 — Persons under Disability

Interpretation

(1)In this rule, "committee" means the committee, appointed under the Patients Property Act, of the estate of a patient.

Start of proceedings by person under disability

(2)A proceeding brought by or against a person under legal disability must be started or defended by his or her litigation guardian.

Role of litigation guardian

(3)Unless a rule otherwise provides, anything that is required or authorized by these Supreme Court Civil Rules to be done by or invoked against a party under disability must

(a) be done on the party's behalf by his or her litigation guardian, or

(b) be invoked against the party by invoking the same against the party's litigation guardian.

Lawyer must be involved

(4)A litigation guardian must act by a lawyer unless the litigation guardian is the Public Guardian and Trustee.

Litigation guardian

(5)Unless the court otherwise orders or an enactment otherwise provides, a person ordinarily resident in British Columbia may be a litigation guardian of a person under disability without being appointed by the court.

Committee as litigation guardian

(6)If a person is appointed committee, that person must be the litigation guardian of the patient in any proceeding unless the court otherwise orders.

Consent of litigation guardian

(7)Before the name of a person is used in a proceeding as a litigation guardian, that person's consent, signed by the person or his or her lawyer, must be filed, unless the person

(a) has been appointed by the court, or

(b) is the litigation guardian under section 35 (1) of the Representation Agreement Act of a party to that proceeding.

Certificate of fitness

(8)Unless a committee has been appointed, the lawyer for a person under disability, before acting in a proceeding, must, unless subrule (9) applies, file a certificate that he or she knows or believes that

(a) the person to whom the certificate relates is an infant or mentally incompetent person, giving the grounds of that knowledge or belief, and if the person to whom the certificate relates is a mentally incompetent person, that a committee has not been appointed for the person, and

(b) the proposed litigation guardian of the person under disability has no interest in the proceeding adverse to that person.

Certificate for a litigation guardian

(9)The lawyer for a person who, under section 35 (1) of the Representation Agreement Act, has a litigation guardian must, before acting in a proceeding to which the person is a party, file a certificate certifying that the lawyer knows or believes that

(a) the person has entered into a representation agreement,

(b) the litigation guardian is a representative under that representation agreement and is authorized under section 7 (1) (d) of the Representation Agreement Act in relation to the proceeding, and

(c) the litigation guardian has no interest in the proceeding adverse to the person.

Party becoming incompetent

(10)If a party to a proceeding becomes a mentally incompetent person, the court must appoint a litigation guardian for him or her unless

(a) a committee has been appointed for the party, or

(b) the party has a litigation guardian under section 35 (1) of the Representation Agreement Act.

Removal of litigation guardian

(11)If it is in the interest of a party who is under disability, the court may remove, appoint or substitute a litigation guardian.

Party attaining age of majority

(12)A party to a proceeding who attains the age of majority may, if the party is then under no legal disability,

(a) file an affidavit, in Form 78, confirming the attainment of the age of majority, and

(b) serve a copy of the filed affidavit on all parties of record.

Effect of filing affidavit

(13)After an affidavit is filed under subrule (12) (a),

(a) the party on whose behalf the affidavit was filed assumes conduct of that party's claim or defence in the proceeding, and

(b) the style of proceeding must no longer refer to a litigation guardian for that party.

Step in default

(14)A party must not take a step in default against a person under disability without leave of the court.

Service

(15)Unless the court otherwise orders, notice of an application for leave under subrule (14) must be served, in the manner provided by Part 4, on the person under disability at least 10 days before the hearing of the application.

Litigation guardian must be appointed

(16)If no response to civil claim, response to counterclaim, response to third party notice or response to petition has been filed to an originating pleading or petition on behalf of a person under disability, the person who started the proceeding, before continuing the proceeding against the person under disability, must obtain an order from the court appointing a litigation guardian for the person under disability.

[am. B.C. Reg. 119/2010, Sch. A, s. 33.]

Compromise by person under disability

(17)Unless an enactment otherwise provides, if a claim is made by or on behalf of a person under disability, no settlement, compromise, payment or acceptance of money paid into court, whenever entered into or made, so far as it relates to that person's claim, is binding without the approval of the court.

Approval of compromise

(18)If, before a proceeding is started, an agreement is reached for the settlement or compromise of a claim of a person under disability, whether alone or with others, and it is desired to obtain the court's approval, application may be made by petition or, if Rule 17-1 (1) applies, by requisition, and the court may make any order it considers will further the object of these Supreme Court Civil Rules.

Rule 20-3 — Representative Proceedings

Representative proceeding

(1)If numerous persons have the same interest in a proceeding, other than a proceeding referred to in subrule (10), the proceeding may be started and, unless the court otherwise orders, continued by or against one or more of them as representing all or as representing one or more of them.

Court may appoint representative

(2)At any stage of a proceeding referred to in subrule (1), the court, on the application of a party, may appoint one or more of the defendants or respondents or another person to represent one or more of the persons having the same interest in the proceeding, and if the court appoints a person not named as a defendant or a respondent, the court must make an order under Rule 6-2 adding that person as a defendant or respondent.

Enforcement of order made in representative proceeding

(3)An order made in a proceeding referred to in subrule (1) of this rule is binding on all the persons represented in the proceeding as parties, but must not be enforced against a person not a party to the proceeding except with leave of the court.

Application for leave

(4)An application for leave under subrule (3) must be served on the person against whom the applicant seeks to enforce the order, and the person served with the application for leave may dispute liability to have the order enforced against him or her.

Court order

(5)On an application for leave under subrule (3), the court may order that the question of whether the order is enforceable against the person served with the application for leave be determined in the manner the court considers will further the object of these Supreme Court Civil Rules.

Representation of interested person who cannot be ascertained

(6)In a proceeding concerning

(a) the administration of the estate of a deceased person,

(b) property subject to a trust, or

(c) the construction of a written instrument, including an enactment,

the court may appoint one or more persons to represent a person, including

(d) an unborn or unascertained person, or

(e) the members of a class of persons who have a present, future, contingent or unascertained interest in, or who may be affected by, the proceeding, and who, or some of whom, cannot readily be ascertained or found.

Appointment order binding

(7)If an appointment of a representative is made under subrule (6), an order in the proceeding is binding on a person or class so represented.

Order affecting non-party

(8)If, in a proceeding referred to in subrule (6), a compromise is proposed and a person who is interested in the compromise, either in his or her own right or as a member of a class, is not a party to the proceeding, the court may approve the compromise and order that it is binding on the interested person if

(a) the court is satisfied that the compromise will be for the benefit of the interested person, and

(b) one of the following applies:

(i)   there is another person, with the same interest as the interested person, who is a party to the proceeding and who assents to the compromise;

(ii)   the interested person is represented by a person appointed under subrule (6) who so assents.

Person bound

(9)If the court makes an order under subrule (8), the interested person referred to in the order is bound by it unless the order has been obtained by fraud or non-disclosure of material facts.

Representation of beneficiaries by trustees

(10)A proceeding may be brought by or against trustees or personal representatives without joining a person having a beneficial interest in the trust or estate and, unless the court otherwise orders on the ground that the trustees or personal representatives could not or did not represent the interest of the person having the beneficial interest, an order granted or made in the proceeding is binding on that person.

Additional powers of the court

(11)Subrule (10) does not limit the power of the court to

(a) order a person having an interest to be made a party, or

(b) make an order under subrule (6).

Representation of deceased person interested in a proceeding

(12)If the estate of a deceased person has an interest in a matter in question in a proceeding but there is no personal representative, the court may proceed in the absence of a person representing the estate of the deceased person or may appoint a person to represent the estate for the purposes of the proceeding, and an order made or granted in the proceeding binds the estate to the same extent as the estate would have been bound had a personal representative of the deceased person been a party to the proceeding.

Notice of application may be required

(13)Before making an order under subrule (12), the court may require notice of the application to be given to a person having an interest in the estate.

Person as relator

(14)Before the name of a person is used in a proceeding as a relator,

(a) the person must give a written authorization to his or her lawyer authorizing use of the person's name, and

(b) that authorization must be filed.

Conduct of a proceeding

(15)The court may give the conduct of a proceeding to any person the court considers appropriate.

Rule 20-4 — Declaratory Relief

Declaratory order

(1)A proceeding is not open to objection on the ground that only a declaratory order is sought, and the court may make binding declarations of right whether or not consequential relief is or could be claimed.

Rule 20-5 — Persons Who Are Impoverished

Court may determine impoverished status

(1)If the court, on application made in accordance with subrule (3) before or after the start of a proceeding, finds that a person receives benefits under the Employment and Assistance Act or the Employment and Assistance for Persons with Disabilities Act or is otherwise impoverished, the court may order that no fee is payable by the person to the government under Schedule 1 of Appendix C in relation to the proceeding unless the court considers that the claim or defence

(a) discloses no reasonable claim or defence, as the case may be,

(b) is scandalous, frivolous or vexatious, or

(c) is otherwise an abuse of the process of the court.

[am. B.C. Regs. 119/2010, Sch. A, s. 34 (a); 112/2012, Sch. A, s. 4 (b).]

Application of order

(2)An order under subrule (1) may apply to one or more of the following:

(a) a proceeding generally;

(b) any part of a proceeding;

(c) a specific period of time;

(d) one or more particular steps in a proceeding.

How to apply

(3)An application under subrule (1) may be made by filing

(a) a requisition in Form 17,

(b) a draft of the proposed order in Form 79, and

(c) an affidavit in Form 80.

[am. B.C. Reg. 95/2011, Sch. A, s. 10.]

Review, variation or rescission of order

(4)On application or on the court's own motion, the court may review, vary or rescind any order made under subrule (1) or (2).

No fee payable

(5)Despite anything in this rule, if the court makes an order in relation to a person under this rule, no fee is payable by the person to the government under Schedule 1 of Appendix C in relation to

(a) the proceeding,

(b) the part of the proceeding,

(c) the period of time, or

(d) the steps

to which the order applies.

[am. B.C. Reg. 119/2010, Sch. A, s. 34 (b).]

Contents  |  1  |  10  |  21  |     |  1  |  1