Roger writing the LAWmag

Court Rules Revolution: Out With Old, In With New

Note: Click here to see a webpage with all relevant hyperlinks to the new BCSC Court Rules.

BRITISH COLUMBIA IS POISED to wheel out an impressive set of new Rules of Court, attacking some old bastions of civil litigation in the name of expedited, and easier-to-manage justice.

British Columbia has a knack for being innovative with the delivery of justice. BC was the first Canadian jurisdiction to offer judgments and statutes on the Internet. It was the first Canadian province to elect a premier with a cool name: Amor de Cosmos.

Must be the weather. Even 125 years ago, old John West chose Minnesota to start his venerable law report.

Still, mark your old boy’s club, conservative legal calendars. On July 1, 2010 there will be a book-burning ceremony, at least figuratively, at your local BC courthouse. Out with the old white rule book; in with the new.

This is not a tweak here, tweak there approach. The existing rules are being trashed entirely.

But much like Lenin and Stalin when they took over Russia in 1917, even the most zealous of rules of court revolutionaries have had to compromise in order to effect change. The new rules are the result of an agonizingly long consultation process, all the while with lawyers complaining bitterly both directly and through their special interest groups, while the Attorney General and a committee of Supreme Court judges also quibbled over the changes.

2009 Rules burningThe AG waved the access to justice flag, the lawyers horrified that bureacrats were messing with their bread and butter; with judges caught in the middle, seeking only to reduce delays and costs.

In the result, and notwithstanding the occasional smell of scrambled eggs, the package is a shocking and bold step into the future.

Speaking of scrambled eggs, the new rules have allowed the Attorney General to effect a long-overdue consolidation of the existing rules which, after years of add-ons, were a mess. Now, and while it lasts, the lay-out is logical.

Defender of the Faith

First on the guillotine will fall on the ancient and revered Writ; that vestige from England that in design and intent, scared the hell out of lay litigants and gave every young lawyer a charge as they typed it above their signature:

“ELIZABETH THE SECOND, BY THE GRACE OF GOD, OF THE UNITED KINGDOM, CANADA AND HER OTHER REALMS AND TERRITORIES, QUEEN, HEAD OF THE COMMONWEALTH, DEFENDER OF THE FAITH. TO THE DEFENDANT: TAKE NOTICE THAT THIS ACTION HAS BEEN COMMENCED AGAINST YOU BY THE PLAINTIFF FOR THE CLAIM SET OUT IN THIS WRIT.”

Instead, to start a legal action against someone, you would complete a civil claim which actually includes the same information required in what we now call a Statement of Claim. No writ needed or welcome.

Second on the chopping block is the Statement of Defense, replaced by that old friend to local barristers who do Chambers applications, the Response. But the change appears to be in title only; an exercise to kill legalese, just as we lost “ex parte” to “without notice”, and “preacipe” to “requisition”.

To ensure that the plaintiff has the last kick at the pleadings can, there’s also an optional Reply to the Response.

Mercifully, there are no further initial pleadings allowed after the Reply, no Response to the Reply .. or is that Reply to the Reply? If this sounds unlikely, you’ve obviously had no cases against ... well, we won’t name them but they know who they are. And they are legion.

Even the chambers dictionary is being revised. A notice of motion will be an application, the former Response, an “application response”, and the chambers record an application record.

Case Planning

A new tool is the Case Planning Conference (CPC) but the reformers chickened-out by backing down on making it compulsory. Judicial Case Conferences have worked wonders in family law files so it boggles the mind why they would not be mandatory in all civil actions.

The beauty of a case planning conference is that a judge rides herd on discovery and potential trial problems, nipping them quickly. These conferences are a must for every lay litigant but too many lawyers take them as annoying meddling by the court. Some of that blame lays at the feet of the judges who show up at case planning conferences with a chip on their shoulder or ill-prepared.

That they would be optional begs the question: just how much influence did $500/hour Vancouver trial lawyers, and the associations they control, have on the final package?

Instead, the compromise is that you don’t get a CPC unless you ask for one.

Still, judge-presided case planning conferences are the future of civil litigation. The government recognizes this by making trial management conferences mandatory a few weeks before trial. By that time, however, it would be too late to curtail most of the shenanigans.

E-mail and Service

Surprise: the new rules specifically authorized service by e-mail. If the party coughs up an e-mail address, it can then be used to prove service. Given the unreliability of e-mail delivery, compared to fax, for example, this should be interesting especially when a few default judgments hit the proverbial fan.

Another innovation long-overdue is incorporation of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Of course, the international treaty has been kicking around since 1965 but better late than never.

It seems that in terms of justice reform, every two steps forward requires one step back. Under the new rules there will be 224 forms; almost 100 more than at present.

Interrogatories R.I.P.

The most disappointing change is the loss of an automatic right to interrogatories. Interrogatories are the most underrated legal tool but they afford every opportunity to expedite justice. Unfortunately, it was probably a case of ‘use it or lose it’ - too few lawyers use interrogatories. Under the proposed new rules, there is no right to interrogatories unless they are consented to or approved by the court (the latter, with attendant costs associated with any court application).

Document discovery will take a weird twist. The law had taken a horrible detour away from the old standard of relevance to include even indirectly relevant documents. This has resulted in a huge rise in the stock prices of banker box manufacturers ... and lawyer bills.

No longer will the standard be relevance but, instead, the obligation will be weighed against this standard:

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

The new document discovery standard is imported from England and requires a litigant, presumably with a smile on his face, to consider all that he has from the other litigant’s perspective and ask himself: “Can he use this? If ‘yes’, then I’ll share it.”

This will be a challenge to enforce. At least relevancy was an easier standard to grasp.

Proportionality and Fast-Track

Buried in the package is new rule 1-3:

“The object of these Supreme Court Civil Rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits ... (which) includes, so far as is practicable, conducting the proceeding in ways that are proportionate to the amount involved in the proceeding, the importance of the issues in dispute, and the complexity of the proceeding.”

This must mean something. When the time comes for a lawyer to oppose a complex and sexy constitutional basis for a rehearing of a relatively small claim, for example, proportionality may be used to persuade the court to nix it saying only say “enough is enough”.

Another change makes the former fast track experiment permanent. For any case where the amount in controversy is $100,000 or less, or if the trial can be completed in three days or less, the action can be put on fast track.

Fast track does have a mandatory case planning conference and examinations for discovery cannot last more than two hours. Costs are set right in the rules so you know in advance what the pain will be if you lose.

Battle Scars

Any change to the rules is difficult. In this package, the scars of battles with the BC Trial Lawyer’s Association are evident but it’s a start.

One retired Supreme Court judge told LawMag that many of his former colleagues are disheartened with the new package and will only begrudgingly crack open their new rule book.

But old dogs and old boys club be damned! Somehow, somewhere, attorney general pinstripes and the Lordships and Ladyships of the supreme court managed to lock elbows and weather the storm and arrive at port with most of the goods still in the holds. This is a good step towards long-overdue access to justice reform. As it takes a community to raise a child; it takes an army of minds to change court rules but to former chief justice Don Brenner (now with Ferris & Co.) and former deputy AG Allan Seckel (now head of the BC Public Service): take a bow.

On the ground, many of the new principles will take years to be fully fleshed out by the courts as precedents will be built up and principles expounded on, for example, interrogatories, additional documents or longer examinations for discovery.

In the meantime, on July 1, 2010, the halls of justice will shake as the Court Rules are changed.

Trial lawyers and other jurisdictions will be waiting for the walls of justice to fall flat on it’s face but it won’t. When it comes to the delivery of justice, this package shows that made-in-BC simply means looking outside the box.

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