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B.C. Reg. 310/76
O.C. 1627/76
Filed May 31, 1976
effective January 3, 1977, except the repeal
of Appendix M of Schedule 1, items 16 to
78 and the substitution of Appendix C of
Schedule 2 effective July 2, 1976

SUPREME COURT RULES

RULE 1

Citation, Application and Interpretation

Citation

(1) These rules may be cited as the Rules of Court. (MR 1041a (5); ER 1/1.)

Idem

(2) A group of rules having the same unbracketed numeral may be cited as "Rule" followed by the numeral, for example, "Rule 1" means Rules 1 (1) to 1 (12), inclusive. (New.)

Idem

(3) A rule or part of a rule may be cited as "Rule" followed by the number, subrule, paragraph, or clause of the rule cited, for example, "'Rule 15 (5) (a) (i)" means clause (i) of paragraph (a) of subrule (5) of Rule 15. (New.)

Application

(4) These rules govern every proceeding in the Supreme Court and a County Court except where an enactment otherwise provides. (MR 1041a (4); ER 1/2.)

Object of Rules

(5) The object of these rules is to secure the just, speedy, and inexpensive determination of every proceeding on its merits. (New.)

Interpretation

(6) Except where a contrary intention appears, the Interpretation Act and the interpretation section of the Supreme Court Act apply to these rules. (MR 1041; ER 1/3.)

Titles and Headings

(7) The titles and headings of these rules are for convenience only and are not intended as a guide to construction. (MR 1041a (3).)

Definitions

(8) In these rules, unless the context otherwise requires,

"Act" means the Supreme Court Act;

"action" means a proceeding commenced by writ of summons;

"Court" means the Supreme Court of British Columbia except when applied to proceedings in a County Court, in which case it means the County Court;

"defendant" includes a defendant by way of counterclaim;

"file" means file in the Registry;

"matrimonial action" means an action under the Divorce and Matrimonial Causes Act reprinted as chapter 118, R.S.B.C. 1960, or under the Family Relations Act;

"order" includes a judgment and a decree;

"originating application" means a proceeding commenced by petition or præcipe;

"originating process" means a writ of summons, petition, third-party notice, or any document which commences a proceeding or adds a new party to a proceeding;

"parties of record" means all parties who have commenced proceedings or have appeared thereto or filed a statement of defence to a third-party notice;

"petition" includes a counter-petition but does not include a divorce petition;

"petitioner" means a person who commences a proceeding by petition;

"plaintiff" means a person who commences an action and includes a plaintiff by way of counterclaim;

"pleading" includes a statement of claim, statement of defence, reply, counterclaim, statement of defence to counterclaim, third-party notice, and a statement of defence to third-party notice;

"proceeding" means an action, suit, cause, matter, appeal, or originating application;

"Registrar" includes the District Registrar or Deputy District Registrar in whose Registry the proceeding was commenced or is pending;

"Registry" means the office of the Court in which the proceeding was commenced or is pending;

"respondent" means a person who is required by these rules to be served with a petition;

"Special Referee" means any person, other than a Master or Registrar, appointed by the Court under these rules or under an enactment to hold an assessment, inquiry, or accounting;

"writ of execution" includes a writ of seizure and sale, writ of sequestration, writ of possession, and writ of delivery.

Transition

(9) Unless the Court otherwise orders, all proceedings, whenever commenced, shall be governed by these rules. (MR 1042.)

Idem

(10) The Court may order that a proceeding, or a step therein, be continued and concluded under the rules in force at the time of its commencement. (MR 1042.)

Waiver of Rule by Agreement

(11) Upon application and if all parties to a proceeding agree, the Court may order that any provision of these rules does not apply to the proceeding. (New.)

Orders on Terms and Conditions

(12) When making an order under these rules the Court may impose such terms and conditions and give such directions as it thinks just. (New.)

RULE 2

Effect of Non-compliance

Non-compliance with Rules

(1) Unless the Court otherwise orders, a failure to comply with these rules shall be treated as an irregularity and does not nullify a proceeding, a step taken, or any document or order made therein. (MR 222, 1037; ER 2/1.)

Idem

(2) Subject to subrules (3) and (4), where there has been a failure to comply with these rules, the Court may

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

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

(c) allow an amendment to be made under Rule 24,

(d) dismiss the proceeding or strike out the statement of defence and enter judgment, or

(e) make such other order as it thinks just. (MR 1037; ER 2/1.)

Idem

(3) The Court shall not wholly set aside a proceeding on the ground that is was required to be commenced by an originating process other than the one employed. (ER 2/1.)

Application to Set Aside for Irregularity

(4) An application for an order under subrule (2) (a), (b), or (d) shall not be granted unless it is made within a reasonable time, and the application is made before the party applying has taken a fresh step after knowledge of the irregularity. (MR 1038; ER 2/2.)

Consequences of Certain Non-compliance

(5) Where a person, contrary to these rules and without lawful excuse,

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

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

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

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

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

the Court,

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

(g) where the person is the defendant, respondent, or a third party or a present officer of a corporate defendant, respondent, or third party or a partner in or manager of a partnership defendant, respondent, or third party, may order the proceeding to continue as if no appearance had been entered. (MR 363, 370ss, 490; ER 24/16, 35/1.)

RULE 3

Time

Computation of Time

(1) Unless a contrary intention otherwise appears, the computation of time under these rules or an order of the Court is governed by the following provisions:

(a) where a period of less than 7 days is prescribed by these rules, holidays shall not be counted,

(b) service or delivery of documents effected after 4 o'clock in the afternoon shall be deemed to have been effected on the next day that is not a holiday. (MR 963, 971, 972; ER 3/2, 3/4.)

Extensions of Time

(2) The Court may extend or abridge the period within which a person is required or authorized by these rules or by an order to do or abstain from doing any act. (MR 967; ER 3/5.)

Idem

(3) The Court may extend a period referred to in subrule (2), although the application for extension is made after the expiration of the period. (MR 967; ER 3/5.)

Idem

(4) The period fixed by these rules or an order for serving, delivering, filing, or amending a pleading or other document may be extended by consent. (MR 968; ER 3/5.)

Notice of Intention to Proceed After Delay of One Year

(5) In a proceeding where judgment has not been obtained and no step has been taken for one year, no party shall proceed until

(a) the expiration of 28 days after service of notice of his intention to proceed on all other parties of record, and

(b) filing a copy of the notice and proof of its service.

Notwithstanding this rule, a defendant or respondent may apply to have a proceeding dismissed for want of prosecution without serving notice of intention to proceed. (MR 973; ER 3/6.)

RULE 4

Forms and Documents

Forms

(1) The forms in Appendix A shall be used where applicable with such variations as the circumstances of the proceeding require. (MR 837, 1041a (2); ER 1/9.)

Documents

(2) Unless the nature of the document renders it impractical, every document prepared for use in the Court shall be in the English language, legibly printed, typewritten, written, or reproduced on durable white paper 8 1/2 inches x 14 inches. (MR 205, 1003, 1004; ER 66/1, 66/2.)

Idem

(3) Transcripts of viva voce evidence shall conform to subrule (2). (ER 66/1, 66/2.)

Style of Proceeding

(4) A document prepared for use in a proceeding shall be headed with the style and number of the proceeding, but in a document, other than an order or one which commences a proceeding, where there is more than one party in a class, the style of proceeding may be abbreviated to show the name of the first party in that class, followed by the words "and others". (MR 522, 1004; ER 41/1.)

RULE 5

Multiple Claims and Parties

Multiple Claims

(1) Subject to subrule (6), a person, whether claiming in the same or different capacities, may join several claims in the same proceeding. (MR 188, 191, 192, 193, 894aa; ER 15/1, 15/3.)

Multiple Parties

(2) Subject to subrule (6), a proceeding may be commenced by or against 2 or more persons where,

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

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

(c) the Court grants leave to do so. (MR 123, 126; ER 15/4.)

Idem

(3) Subject to any enactment or these rules or unless the Court otherwise orders, a plaintiff or petitioner who claims relief to which any other person is jointly entitled shall join as parties to the proceeding all persons so entitled, and any of them who do not consent to be joined as a plaintiff or petitioner shall be made a defendant or respondent. (ER 15/4.)

Idem

(4) Where relief is claimed against a person who is jointly liable with some other person, the other person need not be made a party to the proceeding; but where persons may be jointly, but not severally, liable and relief is claimed against some but not all of these persons in a proceeding, the Court may stay the proceeding until the other persons who may be liable are added as parties. (ER 15/4.)

Idem

(5) It is not necessary that every party be interested in all the relief sought in a proceeding, but the Court may order that a party be compensated for being required to attend, or be relieved from attending, a part of a trial or hearing in which he has no interest. (MR 127.)

Separation

(6) Where a joinder of several claims or parties in a proceeding may unduly complicate or delay the trial or hearing of the proceeding or is otherwise inconvenient, the Court may order separate trials or hearings or make such other order as it thinks just. (MR 123, 188, 195, 196; ER 15/5.)

Idem

(7) Where a counterclaim or a third-party proceeding ought to be disposed of by a separate proceeding, the Court may so order. (ER 15/5.)

Consolidation

(8) Proceedings may be consolidated at any time by order of the Court or may be ordered to be tried at the same time or on the same day. (MR 656; ER 4/10.)

Misjoinder or Nonjoinder of Parties

(9) No proceeding shall be defeated by reason of the misjoinder or nonjoinder of a party and the Court may deal with the matter in controversy so far as it affects the rights and interests of the parties before it. (MR 125, 133; ER 15/6.)

Carriage by Air Act

(10) In an action under the Carriage by Air Act (Canada) and the Convention set out therein, a high contracting party to the Convention who, for the purposes of that action and by virtue of that Act, is deemed to have submitted to the jurisdiction of the Court, may be made a defendant subject to these rules. (MR 135a; ER 11/7.)

Representative Proceeding

(11) Where numerous persons have the same interest in a proceeding, other than a proceeding referred to in subrule (17), the proceeding may be commenced 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. (MR 131, 159; ER 15/12.)

Idem

(12) At any stage of a proceeding under subrule (11) 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 where the Court appoints a person not named as a defendant or respondent, it shall make an order under Rule 15 adding that person as a defendant or respondent. (ER 15/12.)

Enforcement of Order Made in Representative Proceeding

(13) (a) An order made in a proceeding under subrule (11) is binding on all the persons represented in the proceeding as parties, but shall not be enforced against a person not a party to the proceeding except with leave of the Court.

(b) An application for leave shall be served on the person against whom the applicant seeks to enforce the order, and that person may dispute his liability to have the order enforced against him.

(c) On the application, the Court may order that the question whether the order is enforceable against that person be determined in such manner as it thinks just. (ER 15/12.)

Representation of Interested Person Who Cannot Be Ascertained

(14) 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 an unborn or unascertained person, or 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. (MR 154; ER 15/13.)

Idem

(15) Where an appointment is made under subrule (14), an order in the proceeding is binding upon a person or class so represented. (MR154; ER 15/13.)

Idem

(16) Where in a proceeding referred to in subrule (14) a compromise is proposed and a person, or member of a class, interested in the compromise is not a party to the proceeding, but

(a) there is another person with the same interest who is a party and who assents to the compromise, or

(b) the absent person or member of the class is represented by a person appointed under subrule (14) who so assents

the Court, if satisfied that the compromise will be for the benefit of the absent person or member of the class and that it is expedient, may approve the compromise and order that it is binding on the absent person or member of the class and, unless the order has been obtained by fraud or non-disclosure of material facts, the person or member of the class is bound accordingly. (MR 131a; ER 15/13.)

Representation of Beneficiaries by Trustees

(17) 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 that person, an order granted or made in the proceeding is binding on that person. (MR 130; ER 15/14.)

Idem

(18) Subrule (17) does not limit the power of the Court to order a person having an interest to be made a party or to make an order under subrule (14). (MR 130; ER 15/14.)

Representation of Deceased Person Interested in a Proceeding

(19) Where 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 it would have been bound had a personal representative of the deceased person been a party to the proceeding. (MR 168; ER 15/15.)

Idem

(20) Before making an order under subrule (19), the Court may require notice of the application to be given to a person having an interest in the estate. (ER 15/15.)

Person as Relator

(21) Before the name of a person is used in a proceeding as a relator, that person shall give a written authorization to his solicitor to use his name and the authorization shall be filed. (MR 142; ER 15/11.)

Declaratory Order

(22) No proceeding shall be 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. (MR 285; ER 15/16.)

Conduct of a Proceeding

(23) The Court may give the conduct of a proceeding to such person as it thinks just. (MR 161; ER 15/17.)

RULE 6

Persons under Disability

Interpretation

(1) In this Rule "Act" means the Patients' Estates Act and "committee" means the committee of the estate of a patient appointed under that Act.

Commencement of Proceedings by Person Under Disability

(2) A person under disability shall commence or defend a proceeding by his guardian ad litem. (MR 138, 140, 789; ER 80/2.)

Idem

(3) Unless a rule otherwise provides, anything that is required or authorized by the rules to be done by or invoked against a party under disability shall

(a) be done on his behalf by his guardian ad litem, or

(b) be invoked against him by invoking the same against his guardian ad litem. (MR 141; ER 80/2.)

Idem

(4) A guardian ad litem shall act by a solicitor. This subrule does not apply to the Public Trustee. (ER 80/2.)

Guardian ad Litem

(5) Unless the Court otherwise orders or an enactment otherwise provides, a person ordinarily resident in the Province may be a guardian ad litem of a person under disability without being appointed by the Court. (New.)

Committee as Guardian ad Litem

(6) Where a person is appointed committee he shall be the guardian ad litem of the patient in any proceeding unless the Court otherwise orders. (MR 139; ER 80/3.)

Consent of Guardian ad Litem

(7) Before the name of a person is used in a proceeding as a guardian ad litem his consent, signed by him or his solicitor, shall be filed, unless he has been appointed by the Court. (MR 142; ER 80/3.)

Certificate of Fitness

(8) Unless a committee has been appointed, the solicitor for a person under disability, before acting in a proceeding, shall file a certificate that he knows or believes

(a) the person to whom the certificate relates is an infant or mentally incompetent person, giving the grounds of his knowledge or belief, and if a mentally incompetent person, that a committee has not been appointed for him, and

(b) the proposed guardian ad litem of the person under disability has no interest in the proceeding adverse to that person. (MR 140, 141, 789; ER 80/3.)

Party Becoming Incompetent

(9) Where a party becomes a mentally incompetent person and a committee has not been appointed for him, the Court shall appoint a guardian ad litem for him. (ER 80/6.)

Removal of Guardian ad Litem

(10) When it is in the interest of a party who is under disability, the Court may remove, appoint, or substitute a guardian ad litem. (ER 80/3.)

Step in Default

(11) A party shall not take a step in default against a person under disability without leave of the Court. (MR 101; ER 80/6.)

Idem

(12) Unless the Court otherwise orders, notice of the application for leave shall be served on the person under disability 10 days before the hearing of the application, in the manner provided by Rule 11. (MR 101; ER 80/6.)

Idem

(13) Where no appearance has been entered to an originating process on behalf of a person under disability, the person who commenced the proceeding, before continuing the proceeding against the person under disability, shall obtain an order from the Court appointing a guardian ad litem for him. (MR 101; ER 80/6.)

Compromise by Person Under Disability

(14) Unless an enactment otherwise provides, where 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. (ER 80/10.)

Approval of Compromise

(15) Where, before a proceeding is commenced, 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 an originating application, and the Court may make such order is it thinks just. (ER 80/ 11.)

RULE 7

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 accrued. (MR 648a; ER 81/1.)

Service on Firm

(2) Service is effected upon a firm by leaving a true copy of the document to be served either with a person who was a partner at the time the alleged right or liability arose or with a person at a place of business of the firm who appears to manage or control the partnership business there. (MR 648c; ER 81/3.)

Appearance

(3) An appearance by a partnership shall be in the name of the firm, but a partner or a person served as a partner may appear and defend in his own name, whether or not named in the writ. (MR 648e, 648f; ER 81/4.)

Affidavit Naming Partners

(4) Where a partnership is a party to a proceeding, any other party may deliver a notice requiring one of the partners to deliver within 10 days his affidavit setting out the names and addresses of all persons who were partners when the alleged right or liability arose. (MR 648b; ER 81/2.)

Idem

(5) Where the affidavit requested under subrule (4) is not delivered, the Court may order delivery. (ER 81/2.)

Execution Against Partnership or Partners

(6) Where an order is made against a firm, execution to enforce the order may issue against any property of the firm. (MR 648h; ER 81/5.)

Idem

(7) Subject to subrule (8), where an order is made against a firm, execution to enforce the order may issue against any person who

(a) entered an appearance in his own name in the proceeding as a partner,

(b) having been served with the originating process as a partner, failed to enter an appearance in the proceeding,

(c) admitted in his pleading or affidavit that he is a partner, or

(d) was adjudged to be a partner. (MR 648h; ER 81/5.)

Idem

(8) Where 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. (MR 648h; ER 81/5.)

Idem

(9) Where the person against whom an application under subrule (8) is made disputes his 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. (MR 648h; ER 81/5, 81/6.)

Action Against Person Carrying on Business in a Name Other Than His Own

(10) A person carrying on business in a name or style other than his own name may be sued in that name or style as if it were the name of a firm, and this rule applies mutatis mutandis as though he were a partner and the name in which he carries on business were the name of his firm. (MR 648m; ER 81/9.)

RULE 8

Form and Commencement of Proceedings

Writ of Summons

(1) Except where otherwise authorized by an enactment or these rules, every proceeding in the Court shall be commenced by issuing a writ of summons. (MR 3; ER 5/1.)

Endorsement

(2) A writ of summons shall be endorsed either with a statement of claim or with a concise statement of the nature of the claim made and the relief or remedy required in the action. (MR 3, 11, 12; ER 6/3.)

Form

(3) A writ of summons shall be in Form 1. (MR 5, 10; ER 6/1.)

Service

(4) Subject to Rule 13, a writ of summons may be served within or without British Columbia. (New.)

Representative Action

(5) If the plaintiff sues, or a defendant is sued, in a representative capacity, the endorsement shall show in what capacity the plaintiff or defendant sues or is sued. (MR 14; ER 6/3.)

Address for Delivery

(6) A writ of summons shall state the address of the plaintiff and of his solicitor, if any, and shall state an address for delivery within 10 miles of the Registry. (MR 19, 20; ER 6/5.)

Idem

(7) For the purpose of subrule (6), a place that is within 10 miles of the Registry in the City of Vancouver shall be deemed to be also within 10 miles of the Registry in the City of New Westminster, and a place within 10 miles of the Registry in the City of New Westminster shall be deemed to be also within 10 miles of the Registry in the City of Vancouver. (MR 81.)

Issue of Writ of Summons

(8) A writ of summons shall be signed by the plaintiff or by or for his solicitor and may be issued out of any Registry of the Court. (MR 32; ER 6/7.)

Sealing of Writ of Summons

(9) A writ of summons shall be sealed by the Registrar and shall thereupon be deemed to be issued. (MR 33; ER 6/7.)

Registrar's Copy of Writ of Summons

(10) The plaintiff or his solicitor, on presenting a writ of summons for sealing, shall leave with the Registrar a copy of the writ signed by or for the solicitor, or by the plaintiff himself if he sues in person. (MR 34; ER 6/7.)

Filing Writ of Summon

(11) The Registry shall file a copy of the writ, number the action commenced by the writ, and enter the names of the parties in an index. (MR 35.)

Lost Writ of Summon

(12) Where a writ of summons has been lost, the Court, on being satisfied of the loss and the correctness of a copy of the writ, may order that the copy be sealed and stand in place of the original writ. (MR 47.)

Proceedings Under the Testator's Family Maintenance Act

(13) A proceeding under section 3 of the Testator's Family Maintenance Act shall be commenced by a writ of summons. (MR 777.)

Idem

(14) The surviving spouse and children of the testator, all beneficiaries under the testator's will whose interest may be affected by the order sought, and the executor of the will shall be parties to the proceeding. The Court may order that any other person be joined as a party. (MR 777b.)

Idem

(15) In his statement of defence a defendant may raise a claim under section 3 of the Testator's Family Maintenance Act on his own behalf, and any other party may deliver a reply. (New.)

Idem

(16) Subject to subrule (15), a proceeding under the Testator's Family Maintenance Act is governed by these rules. (MR 777f.)

Application to Petition

(17) Subrules (4) to (12) apply mutatis mutandis to a petition. (MR 22.)

RULE 9

Renewal of Writ

Renewal of Original Writ of Summon

(1) No original writ of summons shall be in force for more than 12 months, but where a defendant named therein has not been served the Court, on the application of the plaintiff made before or after the expiration of the 12 months, may order that the original writ of summons be renewed for a period of not more than 12 months from the date of renewal. (MR 45; ER 6/8.)

Renewal of Renewed Writ of Summon

(2) Where a renewed writ of summons has not been served on a defendant named therein the Court, on the application of the plaintiff made during the currency of the renewed writ, may order the renewal of the writ for a further period of not more than 12 months from the date of renewal. (MR 45; ER 6/8.)

Effect of Renewal of Writ of Summon

(3) A renewed writ of summons shall be endorsed by the Registrar with the date of the order granting renewal or the date of renewal referred to therein. A renewed writ shall remain in force and be available to prevent the operation of any statutory limitation and for all other purposes. (MR 45; ER 6/8.)

Renewed Writ Of Summons as Evidence

(4) The production of a writ of summons endorsed by the Registrar in accordance with subrule (3) shall be sufficient evidence for all purposes of its having been renewed and of the commencement of the action on the date of the original writ. (MR 46.)

Application to Petition

(5) This rule applies mutatis mutandis to a petition. (New.)

RULE 10

Originating Application

Originating Application

(1) An application, other than an interlocutory application or an application in the nature of an appeal, may be made by originating application where

(a) an application is authorized to be made to the Court,

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

(c) the applicant is the only person who is interested in the relief claimed, or there is no person against whom relief is sought,

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

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

(f) the relief sought is for payment of funds into or out of Court, or

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

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

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

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

(iv) an order of partition or sale. (MR 709a, 762a (2), (5), (6), 765, 766, 766a.)

Originating Application by Præcipe

(2) Where the nature of an application or the circumstances of a case are such that notice need not be given, an originating application may be made by filing in any Registry

(a) a præcipe in Form 2 specifying any rule or other enactment relied on and attaching a draft of the order requested, and

(b) the material on which the application is founded,

and on being satisfied that the application is appropriate for proceeding under this rule, the Court may make the order without the application being spoken to. (MR 696.)

Originating Application by Petition

(3)   (a) Subject to subrule (2) an originating application shall be commenced by petition in Form 3 and may be issued out of any Registry.

(b) A petition shall specify any rule or other enactment relied on and shall set out briefly in numbered paragraphs the facts on which the application is based. (MR 711, 762a (3), 774b; ER 9/2.)

Idem

(4) A petition shall be supported by affidavit as to all the facts on which the application is based and shall specify those affidavits. (MR 521, 540, 699a, 762a (3), 769, 774b.)

Service

(5) The petition and copies of all affidavits in support shall be served on all persons whose interests may be affected by the order sought. (MR 762a (3), 767, 775.)

Ex Parte Order

(6) In case of urgency the Court may make an order ex parte and give directions for service of the order. (MR 698.)

Service of Affidavits

(7) Unless the Court otherwise orders, the person serving an ex parte order, at the time of service, shall also serve a copy of the petition and each affidavit on which the order was granted. (MR 1020a.)

Setting Aside ex Parte Order

(8) On the application of a person affected by an ex parte order the Court may set it aside or vary it as the Court thinks just. (MR 698, 739.)

Affidavits

(9) A respondent who has entered an appearance to a petition may file an affidavit for use at the hearing of the application. (New.)

Idem

(10) A respondent who files an affidavit referred to in subrule (9) shall deliver a copy to all other parties of record at least 2 days before the date set for the hearing. (New.)

Hearing Where No Appearance

(11) Where no respondent has entered an appearance to a petition within the time allowed, the petitioner may set the matter down for hearing in Chambers by submitting a præcipe to the Registry and filing proof of service. (New.)

Notice of hearing

(12) Where a respondent has entered an appearance to a petition, the petitioner may set the matter down for hearing in Chambers by submitting a notice in Form 4 to the Registry and thereupon shall deliver a copy of the notice to all other parties of record. (0.54a, R. 12b.)

Idem

(13) Unless otherwise ordered, there shall be at least 3 days between the delivery of a notice of hearing and the day named in the notice for hearing the application. (MR 712, 762a (4).)

Notice of Hearing Served With Petition

(14) A petitioner may serve a notice of hearing with the petition, but no time Limit shall be abridged thereby. (New.)

Proceedings Under Trustee Act

(15) A proceeding for the opinion, advice, or direction of a Judge under the Trustee Act shall be commenced by petition supported by affidavit. (MR 774a.)

Idem

(16) The opinion, advice, or direction of a Judge shall be entered and remain as of record in the same manner as an order of the Court and shall be termed a "judicial opinion," "judicial advice," or "judicial direction," as the case may require. (MR 776.)

RULE 11

Service and Delivery of Documents

Service of Writ of Summon

(1) Service of a writ of summons is required unless the defendant enters an appearance. (MR 48; ER 10/1.)

How Service Effected

(2) Service of a document is effected on

(a) an individual by leaving a copy of the document with him,

(b) a corporation by leaving a copy of the document with the President, Chairman, Mayor, or other chief officer of the corporation, or with the City or Municipal Clerk, or with the manager, cashier, superintendent, treasurer, secretary, clerk, or agent of the corporation or of any branch or agency thereof in the Province or in the manner provided by the Companies Act or any enactment relating to the service of process; and for the purpose of serving a document upon a corporation whose chief place of business is outside British Columbia, every person who within the Province transacts or carries on any of the business of, or any business for, that corporation shall be deemed its agent,

(c) an unincorporated association, including a trade union, by leaving a copy of the document with any officer thereof, and, in addition in the case of a trade union with a business agent,

(d) an infant, in accordance with the Infants Act,

(e) a mentally incompetent person by leaving a copy of the document

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

(ii) with the Public Trustee,

and in no case shall it be necessary to show the original document. (MR 49, 51, 52, 55, 1010, 1011, 1016; ER 65/2, 65/3, 80/16.)

Person Appearing

(3) Where a writ of summons or petition has not been served on a person, but he files an appearance or appears at the trial or hearing, the writ or petition shall be deemed to have been served on him on the date he files or appears. (ER 10/1.)

Service on Agent

(4) Where a contract has been entered into within the Province by or through an agent residing or carrying on business within the Province on behalf of a principal residing out of the Province, by leave of the Court given before the determination of the agent's authority or of his business relations with the principal, a writ of summons or other document in a proceeding relating to or arising out of the contract may be served on the agent. A copy of the order giving leave and of the writ of summons or other document shall be sent forthwith by registered mail to the principal at his address out of the Province. (MR 55a; ER 10/2.)

Service on Attorney-General

(5) A document to be served on the Attorney-General shall be served on him at the Department of the Attorney-General in the City of Victoria, and shall be sufficiently served if left during office hours with any solicitor on the staff of the Attorney-General at Victoria or mailed by registered mail to the Deputy Attorney-General at Victoria. (MR 1014.)

Service on a Party Who Has Given An Address for Delivery

(6) Service of a document on a party who has given an address for delivery may be effected by delivery of a copy of the document. (New.)

Proof of Service or Delivery

(7) An affidavit of service or delivery shall state when, where, how, and by whom service or delivery was effected. (MR 1020; ER 65/8.)

Service or Delivery Acknowledged by Solicitor

(8) Service or delivery of a document upon a solicitor of record, if acknowledged in writing, need not be verified by affidavit. (MR 1012.)

How Delivery Effected

(9) Delivery of a document to a party is effected by leaving a copy of the document at the party's address for delivery or at the office of his solicitor of record. (MR 1013, 1017b; ER 65/5.)

Delivery Where No Address for Delivery Given

(10) Where the party has no address for delivery as required by these rules, a document may be delivered by mailing a copy by ordinary prepaid mail to the party's solicitor or, if he has no solicitor, to the last-known address of the party. (MR 1015.)

Service on Member of Canadian Armed Forces

(11) Where a member of the Canadian Armed Forces has been served by an officer of the Canadian Armed Forces with a document, proof of the service in the form of a certificate annexed to a copy of the document served, signed by the officer and stating his rank and when, where, and how service was effected, may be filed as proof of service. (MR 56a.)

Proof of Service by Sheriff

(12) Service or delivery by a sheriff may be proved by a certificate in Form 5 endorsed on or attached to a copy of the document served or delivered. (New.)

RULE 12

Substituted Service

Court May Order Substituted Service

(1) Where for any reason it is impractical to serve a document as set out in Rule 11, the Court may order substituted service, whether or not there is evidence that the document will probably reach the person to be served or will probably come to his attention or that the person is evading service. (MR 49, 63, 1017; ER 65/4.)

How Substituted Service Effected

(2) Substituted service of a document is effected by taking such steps as the Court has ordered to bring the document to the attention of the person to be served. (MR 1017; ER 65/4.)

RULE 13

Service Outside British Columbia

Service Outside British Columbia Without Order

(1) Service of an originating process or other document on a person outside British Columbia may be effected without order whenever

(a) the whole subject-matter of the proceeding is land in British Columbia (with or without rents or profits); or the perpetuation of testimony relating to land in British Columbia,

(b) any act, deed, will, contract, obligation, or liability affecting land or hereditaments in British Columbia is sought to be construed, rectified, set aside, or enforced,

(c) it is sought to construe a will affecting personal property if the testator was at the time of his death domiciled in British Columbia,

(d) relief is sought against a person domiciled or ordinarily resident in British Columbia,

(e) the proceeding is for the administration of the personal estate of a deceased person who, at the time of his death, was domiciled in British Columbia,

(f) the proceeding is for the execution (as to property in British Columbia) of a trust which ought to be executed according to the law in force in British Columbia and the person to be served is a trustee,

(g) the proceeding is in respect of a breach, committed in British Columbia, of a contract wherever made, even though the breach was preceded or accompanied by a breach outside British Columbia which rendered impossible the performance of the part of the contract which ought to have been performed in British Columbia,

(h) the proceeding is founded on a tort committed in British Columbia,

(i) an injunction is sought as to anything to be done in British Columbia, or a nuisance in British Columbia is sought to be prevented or removed, whether or not damages are also sought in respect thereof,

(j) a person outside British Columbia is a necessary or proper party to a proceeding properly brought against some other person duly served in British Columbia,

(k) the proceeding is by a mortgagee or mortgagor in relation to a mortgage of property in British Columbia and seeks relief of the nature of sale, foreclosure, delivery of possession by the mortgagor, redemption, reconveyance, or delivery of possession by the mortgagee; but does not seek personal judgment or an order for payment of money due under the mortgage, except as permissible under paragraph (g),

(l) the proceeding is brought by or on behalf of the Crown to recover moneys owing for taxes or other debts due to the Crown,

(m) the proceeding is founded upon a contract, or is in respect of a claim for alimony, and the defendant has assets in British Columbia,

(n) the action is brought under the Carriage by Air Act (Canada),

(o) the claim arises out of goods or merchandise sold or delivered in British Columbia,

(p) the proceeding is brought upon a foreign judgment and the defendant or respondent has assets in British Columbia, or

(q) the proceeding is a divorce or a matrimonial action. (MR 64, 71, 865, 894i; ER 11/1.)

Idem

(2) Except in a divorce proceeding or a proceeding brought under subrule (3), a copy of an originating process served outside British Columbia without leave shall state specifically by endorsement in Form 6 upon which of the grounds referred to in subrule (1) it is claimed that service is permitted under this rule. (MR 64.)

Application for Leave to Service Outside The Jurisdiction

(3) In any case not provided for in subrule (1), the Court may grant leave to serve an originating process or other document outside British Columbia. (MR 6; ER 11/4.)

Idem

(4) An application for leave to serve a person outside British Columbia shall be made before the originating process or other document is served and shall be supported by an affidavit or other evidence showing in what place or country that person is or probably may be found and the grounds upon which the application is made. The application may be made ex parte. (MR 66; ER 11/4.)

Service of Order, Etc.

(5) Copies of the application for leave to serve, of all affidavits in support of the application, and of the order granting leave to serve shall be served with the originating process or other document. (New.)

Time for Appearance

(6) Where a person is served with an originating process outside British Columbia, the time for the appearance by that person, after service, shall be 21 days in the case of a person residing anywhere within Canada, 28 days in the case of a person residing in the United States of America, and 42 days in the case of a person residing elsewhere. The Court may shorten the time for appearance on ex parte application. (MR 68; ER 11/4.)

Where Service Without Leave Valid

(7) Nothing in this rule shall invalidate service outside British Columbia without leave of the Court where the document could have been validly served apart from this rule. (New.)

Contract Containing Terms For Service

(8) Notwithstanding these rules, the parties to a contract may agree

(a) that the Court shall have jurisdiction to entertain a proceeding in respect of the contract, and

(b) that service of a document in the proceeding may be effected at any place, within or outside British Columbia, on any party, or on any person on behalf of any party, or in a manner specified or indicated in the contract. (MR 65; ER 10/3.)

Idem

(9) Service of a document in accordance with an agreement referred to in subrule (8) is effective service, but no contractual stipulation as to service of a document shall invalidate service that would otherwise be effective under these rules. (MR 65a.)

Application to Set Aside

(10) Application may be made to set aside service of an originating process or other document served outside British Columbia without entering an appearance. Where it appears that service should not have been made outside British Columbia, the Court may set aside service of the originating process or other document and may order the person initiating the proceeding to pay the costs of the applicant on a solicitor and client basis. (ER 12/8.)

Carriage by Air Act

(11) (a) Where, for the purpose of an action under the Carriage by Air Act (Canada) and the Convention therein set out, a party proposes to serve a writ of summons upon a high contracting party to the Convention, other than Her Majesty, this rule shall apply.

(b) The writ shall specify the time for entering an appearance as provided in subrule (6).

(c) A certified copy of the writ shall be transmitted by the Registrar to the Secretary of State, together with a copy translated into the language of the country of the defendant to be supplied by the solicitor for the plaintiff, with a request for transmission to the government of that country.

(d) An official certificate transmitted by the Secretary of State to the Court certifying that the certified copy of the writ was delivered on a specified date to the government of the country of the defendant shall be sufficient proof of service and shall be filed in the Registry and be equivalent to an affidavit of service.

(e) After filing an appearance by the defendant or, if no appearance is filed, after the expiry of the time limited for filing the appearance, the action may proceed to judgment in all respects as if the defendant had for the purposes of the action waived all privileges and submitted to the jurisdiction of the Court.

(f) Where it is desired to serve or deliver any other document outside British Columbia, the provisions of this rule shall apply, mutatis mutandis. (MR 71aa; ER 11/7.)

RULE 14

Appearance

Filing of Appearance

(1) Where a party wishes to enter an appearance to an originating process, he shall file an appearance in Form 7 and shall deliver a copy of the appearance forthwith to the petitioner or plaintiff. An appearance shall state the name and address of the party's solicitor if he appears by solicitor, or the party's address if he appears in person, and shall state an address for delivery within 10 miles of the Registry. (MR 71b, 78, 79, 80; O.54a, r. 12a; ER 12/2.)

Idem

(2) For the purpose of subrule (1), a place that is within 10 miles of the Registry in the City of Vancouver shall be deemed to be also within 10 miles of the Registry in the City of New Westminster and a place within 10 miles of the Registry in the City of New Westminster shall be deemed to be also within 10 miles of the Registry in the City of Vancouver. (MR 81; ER 12/2.)

Time

(3) Unless the Court otherwise orders or these rules otherwise provide, the time for appearance is 7 days from the service of the originating process. (MR 92; ER 12/5.)

Idem

(4) Notwithstanding subrule (3), a party may enter an appearance at any time. (MR 92, O. 54a, r. 12a; ER 12/6.)

Conditional Appearance

(5) Conditional appearances are abolished and an appearance purporting to be conditional shall be deemed to be unconditional. (New.)

Idem

(6) Where a person served with an originating process has not entered an appearance and alleges that

(a) the process is invalid or has expired,

(b) the purported service of the process was invalid, or

whether or not he has entered an appearance, alleges that

(c) the Court has no jurisdiction over him in the proceeding or should decline jurisdiction,

he may apply to the Court for a declaration to that effect. (MR 100; ER 12/8.)

Idem

(7) Where an application is made pursuant to Rule 13 (10) or subrule (6), the plaintiff or petitioner shall take no further step in the proceeding against the applicant, except with leave of the Court, until the application has been concluded. (New.)

Idem

(8) An application made pursuant to Rule 13 (10) or subrule (6) does not constitute acceptance of the jurisdiction of the Court. (ER 12/7.)

RULE 15

Change of Parties

Party's Death, Bankruptcy, Etc.

(1) Where a party dies or becomes bankrupt, or a corporate party is wound up or otherwise ceases to exist, but the claim survives, the proceeding shall not abate by reason of the death or bankruptcy or the corporate party having been wound up or ceasing to exist. (MR 178; ER 15/7.)

Idem

(2) Whether or not the claim survives, a proceeding shall not abate by reason of either party dying between the verdict or finding on the issues of fact and the entry of judgment, but judgment may be entered notwithstanding the death. (MR 178; ER 15/7.)

Assignment or Conveyance of Interest

(3) Where by assignment, conveyance, or death, an estate, interest, or title devolves or is transferred, a proceeding relating thereto may be continued by or against the person upon whom or to whom that estate, interest, or title has devolved or been transferred. (MR 180; ER 15/7.)

Change or Transmission of Interest or Liability

(4) Where a change or transmission of interest or liability of a party has taken place or a person interested comes into existence after the commencement of a proceeding and it becomes necessary or desirable that a person not already a party should be made a party or that a person already a party should be made a party in another capacity, the Court may order that the proceeding be carried on between the continuing parties and the new party. (MR 181; ER 15/7.)

Removing, Adding, or Substituting Party

(5) (a) At any stage of a proceeding the Court on application by any person may

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

(ii) order that a person, who ought to have been joined as a party or whose participation in the proceeding is necessary to ensure that all matters in the proceeding may be effectually adjudicated upon, be added or substituted as a party.

(b) No person shall be added or substituted as a plaintiff or petitioner without his consent. (MR 124, 135, 179, 182; ER 15/6.)

Procedure Where Order Made

(6) Where an order is made under subrule (4) or (5) adding or changing a party,

(a) the originating process shall be amended within the time specified in the order or, if no time is specified, within 7 days after the making of the order, and a reference to the order and the date on which the amendment is made shall be endorsed upon the amended process,

(b) no further steps shall be taken against the person made a party under the order until the amended process and a copy of the order are served upon him,

(c) the person made a party under the order may apply to the Court to vary or discharge the order within 7 days from its service,

(d) the rules as to service and entering an appearance apply mutatis mutandis to the amended process. (MR 183, 184; ER 15/8.)

Effect of Order

(7) Unless the Court otherwise orders, where a person becomes a party in substitution for a former party, all things done in the proceeding before he became a party shall have the same effect in relation to him as they had to the former party, but the substituted party shall enter an appearance. (ER 15/8.)

Prosecution of Action Where Plaintiff or Petitioner Dies

(8) Where a plaintiff or petitioner has died and the proceeding may be continued, the defendant or respondent may apply to the Court for an order that the person entitled to proceed do proceed within such time as the Court orders and that in default the proceeding be dismissed for want of prosecution. (MR 185.)

Idem

(9) Where a proceeding is dismissed under subrule (8), an order for payment of costs may be made and enforced against the assets of the deceased's estate. (ER 1 5/7.)

RULE 16

Change of Solicitor

Change of Solicitor

(1) A party to a proceeding

(a) may change his solicitor,

(b) having been acting on his own behalf, may engage a solicitor to act on his behalf,

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

(d) may change his address for delivery,

but until copies of notice of the change in Form 8 or 9 or 10 have been filed and delivered to the other parties of record the other parties are entitled to proceed on the basis that there has been no change of representation or address for delivery. (MR 44, 44a, 44b, 44c, 1017 (c); ER 67/1, 67/2, 67/3, 67/4.)

Order That Solicitor Has Ceased to Act

(2) Where

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

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

the Court on the application of any other party may order that the solicitor has ceased to be the solicitor of the first-mentioned party. (MR 44e; ER 67/5.)

Idem

(3) Where an order is made under subrule (2), the applicant shall deliver a copy to the other parties of record. (MR 44f; ER 67/5.)

Order on Application of Solicitor

(4) Where a solicitor who has acted for a party in a proceeding has ceased to act and the party has not given a notice of change in accordance with subrule (1), the Court, on the application of the solicitor, may declare that he has ceased to be the solicitor acting for the party and, where applicable, that the solicitor's office is not the address for delivery of the party and give directions as to a new address for delivery. (MR 44g; ER 67/6.)

Idem

(5) Until copies of the order referred to in subrule (4) have been delivered to the other parties of record, they are entitled to proceed on the basis that the solicitor is continuing to act. (MR 44g; ER 67/6.)

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