Dramatic Changes on the Horizon for B.C.'s Civil Procedure Rules
Lang Michener Commercial Litigation Brief, Winter 2009
British Columbia's proposed new civil procedure rules (the "Proposed Rules") are targeted to come into force early in 2010. The aim of the Proposed Rules is to make the justice system in B.C. more responsive, accessible and cost effective. This goal could also be said to apply to the upcoming changes to the Ontario Rules of Civil Procedure which will, among other things, inject limits on the scope and length of the discovery process, broaden the applicability of the summary judgment rule, and introduce the principle of proportionality into proceedings (see Mark Wiffen's article, entitled Reducing Litigation Abuse in Ontario: Rule Changes for more about the changes coming to Ontario). By contrast, B.C.'s Proposed Rules incorporate many of these same changes, but the change in B.C. is on a much larger scale. The Proposed Rules have been called a "complete rewriting" of the current Rules of Court, representing a major shift in the province's civil justice system —a shift which will arguably require the parties themselves to engage in a more meaningful way in the litigation process.
The New Face of the B.C. Rules
Here are some of the key elements of B.C.'s Proposed Rules:
Proportionality will be the overriding objective of the Proposed Rules, which will apply to all legal proceedings.
According to this principle, proceedings should be conducted in a manner proportionate to: (1) the amount of money at stake; (2) the importance of the issues in dispute; and (3) the complexity of the proceeding.
Parties will be expected to more actively manage the proceeding by doing things like identifying the issues in dispute at an early state, setting timetables for controlling the litigation process, and cooperating with other litigants in terms of the conduct of the proceeding.
2. Simplified Case Initiation and Response
The originating documents for starting a lawsuit will be simplified and must be signed personally by the Claimant (formerly referred to as the "Plaintiff "), who must indicate that he/she/it believes that the facts pleaded in the claim are true. The party being sued (now called the "Respondent") must file and sign a similar document in response.
Under the Proposed Rules, parties can be cross-examined on the statements in their claim and response – a feature which is intended to encourage truth in pleadings.
The timelines for filing documents will be shortened and claims must be served within 120 days of filing. This means parties will no longer have the option of filing a claim and then sitting on it for a year while they decide whether to pursue it.
The Proposed Rules focus on upfront planning and agreement by parties on issues of pre-trial procedure. Ontario's proposed Discovery Plan is similar in intent but, again, B.C.'s Case Plan Order is wider in its application.
For every action started in B.C., a Case Plan Order must be made (either by consent, or ordered by a judge) before any steps can be taken in the litigation. If the parties cannot agree to the terms of the Case Plan Order and a Case Planning Conference is required, the parties must personally attend (with some exceptions).
In the Case Plan Order, the parties must deal with many procedural issues, including:
- whether to use dispute resolution options;
- deadlines for exchange of documents;
- deadlines and parameters for oral examinations for discovery;
- anticipated court applications (e.g. applications for summary trial);
- use of lay witnesses at trial;
- planned use of experts; and
- parameters of trial.
4. Discovery Procedures
Oral discoveries will be capped at three hours (compared with Ontario's seven-hour limit), unless the parties otherwise consent or the court so orders.
Document discovery will be limited to documents that could be used by either party at trial to prove or disprove a material fact. This is a significant change from the previous rule requiring all documents relating to any matter in issue in the action to be disclosed. This change is aimed at reducing the time and expense associated with the often lengthy and costly discovery phase of litigation.
5. Use of Experts
The number and type of experts that may be used at trial must be set out in the Case Plan Order – this requires that the parties agree, or a judge approve of the use of experts in each case.
The court can require parties to use a joint expert. Or, if parties use separate experts, those experts will be required to confer and produce a report which outlines the points of disagreement between them.
Experts will also be required to make available the entire contents of their file for review and photocopying prior to trial.
Will the Changes Work?
The focus of the Proposed Rules on forethought and planning is no doubt intended to force litigants to take a close, hard look at their case and determine how – and whether – to proceed with litigation.
Will British Columbia's Proposed Rules make a difference? The workability and effectiveness of the Proposed Rules has been hotly debated within B.C.'s legal community. In determining whether the planned face-lift will have the desired effect of making litigation more accessible and cost-effective, only time and experience will tell. But would-be litigants who are "in the know" about the changing face of litigation in B.C. will undoubtedly be better armed to endure the shift, whatever shape it may take.
This article appeared in Commercial Litigation Brief Winter 2009.