For the spring 2007 edition of Dispute Resolution, I wrote Effective and Affordable Civil Justice: The Report of the Civil Justice Reform Working Group, about a report issued late last year by the B.C. Civil Justice Working Group of the Justice Review Task Force. That report recommended fundamental change to British Columbia’s civil justice system to better assist “citizens in obtaining just solutions to legal problems quickly and affordably”. It made three key recommendations, one of which was the re-writing of the Supreme Court of British Columbia’s Rules of Court.
This summer a drafting group published a “Concept Draft” of the proposed new Rules of Court. The Draft goes far beyond theory. In fact, it is over 400 pages of detailed proposed rules and forms.
Many of the proposed rules mirror current rules or are very similar to them. But some fundamental changes are contemplated. These are the highlights of the proposed new Rules:
- a new explicit overriding objective that all proceedings be dealt with justly and pursuant to the principles of proportionality;
- a new case-initiation process, requiring the parties to accurately and succinctly state the facts and legal basis for their claim and defence, as well as a plan for resolving the case;
- requiring each case to have a “case plan order” which sets specific deadlines for completion of pre-trial steps, with consequences for failure to meet them;
- limits on discovery, while requiring the early disclosure of key information;
- limits on use of experts, in accordance with proportionality principles, and the reduction of expert advocacy;
- more efficient resolution of pre-trial applications;
- a more streamlined and focused trial process;
- simpler recourse to mediation; and
- opportunities for the early resolution of issues that create an impasse, but with limits on interlocutory appeals.
Some of these ideas require explanation. The new case-initiation process involves replacing the writ of summons and statement of claim with a single “dispute summary”. The initiating party will be the “claimant”. The dispute summary will contain all of the items previously required in a statement of claim, but must be submitted in a particular form and must set out a concise summary of the facts giving rise to the claim, the relief sought by the claimant and a one-page summary of the legal basis for that relief. The claimant must personally sign a statement that they believe the facts set out in it are true. The dispute summary must be served within 60 days after filing with the Court.
To avoid default judgment, the party being sued, who will be called the “respondent”, must file a page-limited “response”. There is no longer any appearance. The response must indicate whether each fact set out in the dispute summary is admitted, denied or outside the respondent’s knowledge. For all facts denied, the response must set out the respondent’s versions of those facts. It must also set out a concise summary of any additional relevant facts. If the respondent denies the claimant’s right to relief, the response must set out a concise summary of the legal basis for the denial. Respondents must also certify their belief in the truth of the facts stated.
With respect to case planning, the proposed rules prohibit the parties taking any steps after the exchange of the initiating documents until a “case plan” order is made. There are exceptions to this rule, including dealing with jurisdictional disputes, applying for default or summary judgment, delivery of notices to admit or offers to settle, engaging in negotiation and mediation, and dealing with urgent matters. Case plan orders may be made by consent or in a “case planning conference”. A consent case plan order must include the parameters for document production, oral examinations for discovery, expert witnesses, lay witnesses and trial. The parties must personally sign consent case plan orders.
If the parties are unable to consent to a case plan order, either party may request a case planning conference. The parties, starting with the claimant, must then exchange “resolution plans”. The resolution plan must summarily describe the action, indicate the major impediments to achieving a resolution, set out the steps the party believes will lead to resolution and indicate the disagreements between the parties on the items required to be in the case plan.
The parties must attend the case planning conference personally. It must result in a court order that may set a timetable for the steps to be taken in the action, strike pleadings, require amendment of a dispute summary to provide more detail, set requirements for discovery, witness lists and evidence summaries, experts and offers to settle, give directions for the conduct of pre-trial applications, require the parties to attend mediation or other dispute resolution process, set the action for trial, and determine the mode and length of trial.
With respect to expert witnesses, some significant changes are planned. Under the proposed rules, the parameters for the use of experts will be set out in the case plan order. They will include the number and type of experts that may be called by each party and whether joint experts may be required. They will also set out that an expert has a duty to assist the court that overrides any obligation to a party or person liable to pay their fees or expenses. The expert must, in any report they prepare, certify that they are aware of that duty, and made their report and will testify in conformity with it.
The target implementation date for the new rules is early 2010. This allows time for revision based on consultation feedback, the Cabinet approval process, forms development, business process changes involving Court Services and the judiciary, staff training and legal education.
We expect the proposed rules will undergo some revision from now until their implementation date, and that the target implementation date may not be met. But, although the change is indefinite and somewhat distant, it appears inevitable. Also it does appear that the core idea behind the proposed changes, that all proceedings will have applied to them the appropriate amount of legal process, taking into account what is at stake, will be crystallized, in one way or another, in the new rules.