The new British Columbia Supreme Court Civil Rules have been in effect since July 2010. Although they were designed to reduce the complexity, cost and delay of litigation, our experience has, for the most part, been business as usual. In this article, we identify a few strategic opportunities posed by the new rules, and some pitfalls to avoid.
CASE PLANNING ORDERS
Agreeing to a case plan early in the process creates a litigation roadmap that must be adhered to, even if cooperation later breaks down. If parties cannot agree on a case plan, a 30-minute Case Planning Conference (or CPC) brings the parties (or their lawyers) before a case planning judge, who makes orders about how the case will be conducted. A Case Planning Order, which the parties may also file by consent, customizes deadlines, scope of document production, examinations for discovery and expert evidence requirements.
A CPC is mandatory if one party requests it. The ideal time to schedule it is well in advance of trial, but long enough after proceedings have begun for counsel to assess current and future problems.
Under the old rules, if the other party did not respond to discovery requests, it was necessary to make an expensive and time-consuming court application. Now a party can use a CPC to request the orders necessary to smooth the way to trial. Examples include orders amending pleadings or requiring disclosure of further documents.
More importantly, the CPC process can demonstrate to the other party, in a concrete way, that there will be consequences for their failures to comply with reasonable requests. Requesting a CPC can be a cost-effective way to regain control over a proceeding where a self-represented litigant is derailing the process.
Tip: a case planning judge cannot make an order that requires affidavit evidence. The court may grant counsel some leeway to “inform the court” of matters within their knowledge, but acceptance of this type of “evidence” is usually limited to purely procedural or uncontested issues.
A case planning judge can order the parties to use, and pay for, a joint expert, despite one party’s objection. In a recent case, the plaintiff sought an order appointing a joint expert to give evidence of the market value of shares he argued the defendants should have to buy from him. The defendants objected, arguing that they should not have to pay for expert evidence which would help the plaintiff and which would not be necessary unless he was correct that they must buy his shares.
The new rules require proceedings to be conducted in ways proportionate to the amounts involved, and the importance and complexity of the issues. In this case the court decided that proportionality required a joint report. It might even encourage the parties to settle. On the other hand, if each party obtained its own expert report, costs would be duplicated.
A joint expert can significantly benefit a plaintiff who needs expert, but straightforward, evidence to prove its case. Not only will the defendant have to share the cost, but the parties will avoid wasting resources attacking each other’s experts.
NEW RULES, NEW DELAYS
The Supreme Court Registry has changed how it schedules long court applications under the new rules. The new system is more predictable, but has significantly longer lead time. As of August 2011, the earliest available date for a two-hour application in Vancouver was January 2012 (two weeks later than the earliest available date for a two-day trial ).
So, unless your application is urgent, it may be months before you can have it heard. Strategies to avoid this include:
- Plan well in advance!
- Be careful to comply with deadlines or seek extensions from other parties, to avoid the necessity for applications.
- If an application is necessary, consider whether you can make it at a CPC or Pre-Trial Conference. Remember that judges at these conferences cannot hear applications for which affidavit evidence is required.
- Seek agreement from other parties about the facts, or some of the issues, to shorten your application.
CONSENT: CAN IT GET YOU INTO COURT IN A HURRY?
The new rules provide that parties may consent to extend the time for serving, filing or amending a document. But only the Court has the discretion to shorten a time period. The rules appear not to provide for parties to appear in court, by consent, on short notice.
It is possible to simply to serve an application on the other party two days before the hearing, rather than the required eight days in advance. If the other party doesn’t object, that should not matter to the court. This would be consistent with proportionality.
However, Registry staff have suggested that an application for permission to have an application heard on short notice is necessary before the main application can be so heard, even if the other party doesn’t object. So the safer approach may be to apply for that permission, and make the main application itself, at the same time.
Tip: We have seen some creative – and inconsistent – interpretations of the new rules by Registry staff. We have had some success in avoiding the Registry rejecting documents by filing them in person instead of using a filing agent, so we can explain our rationale for the procedure we have chosen. If this has not convinced the Registry staff we are right, it has at least lead them to file the documents and pass the problem along to a judge.
DISCOVERY OF DOCUMENTS: STILL BROAD IN COMPLEX CASES
The new rules attempt to limit the scope of document disclosure, in response to concerns that it had become too onerous and expensive. The initial disclosure requirements are more limited, but the scope of disclosure seems to widen if a party requests further disclosure.
The advantage of the new rules is that the parties may be able to agree on the appropriate scope of disclosure, thus avoiding both expensive court applications and automatic “produce-everything” document dumps. If the parties cannot agree, the requesting party can still apply to the court for an order requiring further disclosure.
That being said, where the issues are complex or important, or large sums of money are involved, and a party has applied to the court for such an order, the court has invoked proportionality to support wide-ranging document disclosure orders. As a result, the types of cases that saw lengthy and expensive document disclosure under the old rules are likely to see much the same under the new ones.