the introduction of proportionality into BC's rules of court: a new way of litigating or simply stating the obvious?
On July 1, 2010, following years of consultation, debate, and revision, a new set of procedural rules was introduced to proceedings in the Supreme Court of British Columbia, the province's superior trial court (the "New Rules").1 This rewriting deviated from the usual practice of incremental revisions and, amongst other significant changes, introduced the overarching goal of proportionality to civil litigation in British Columbia.
The stated object of the New Rules is that proceedings are to be conducted in a manner that is proportionate to: (1) the amount involved in the proceeding, (2) the importance of the issues in dispute, and (3) the complexity of the proceeding.2
Nearly two years after the introduction of the New Rules, the court has issued a number of decisions interpreting how this overriding objective of proportionality applies to procedural steps taken in litigation. Some of the decisions indicate that courts will indeed grapple with the concept of proportionality and use it to guide their application of procedural rules, while others suggest that the concept of proportionality is not truly changing the manner in which litigation is conducted. Still other decisions of the court point out what may be obvious, that while proportionality might not always have been expressed in such explicit terms, it has historically and inherently played a role in decisions related to the conduct of civil litigation.3
The rule regarding document discovery is one of the primary areas where the courts seem to have actively applied the concept of proportionality, usually in support of a decision to limit document disclosure. Examples of such decisions include Przybysz v Crowe,4 Kaladjian v Jose,5 and Edwards v Ganzer.6 Interestingly, in Whitcombe v Avec Insurance Managers Inc,7 proportionality was relied upon by the court when ordering increased document disclosure. In Whitcombe, despite having no evidence as to the quantum of monetary damage, the court looked at the importance of the issues to the parties and the serious allegations of misfeasance and applied the concept of proportionality to allow the parties "broader disclosure in order to defend and protect their respective professional reputations and abilities to carry on in the business community".
Other decisions where proportionality is cited by the court include cases concerning: the conduct of examinations for discovery,8 admission of late-delivered expert reports,9 joinder of claims into a single proceeding,10 and suitability of matters for summary disposition.11
Despite these early decisions of the court, the profession appears to take a more pessimistic view of the impact of the New Rules. In a poll of lawyers conducted in September and October 2011 by the British Columbia Branch of the Canadian Bar Association,12 only 23% of respondents indicated the concept of proportionality had impacted the manner in which they dealt with their civil litigation matters. Likewise, only 23% of respondents thought that the concept of proportionality had impacted the interpretation of the New Rules in cases they had been involved in. While respondents to the survey indicated that proportionality had not impacted how they dealt with their matters or the interpretation of the New Rules, 35% did say that they had at least sought to use the concept of proportionality to limit either documentary or oral discovery in a case.
It is likely that the concept of proportionality and what it means for the conduct of litigation in British Columbia will continue to evolve. While the early cases and the anecdotal views of practitioners do not yet suggest a significant shift, it may be that the concept of proportionality will develop into a more powerful influence on how litigation is conducted as courts become more accustomed to the idea and practitioners become more creative in its application. Or, as one judge has implied, perhaps applying proportionality is simply stating the obvious.
by Katherine Reilly, Melanie Harmer and Daniel Shouldice, Articling Student
1 Supreme Court Civil Rules, BC Reg 168/2009.
2 Ibid, Rule 1-3(2).
3 Kim v Lin, 2010 BCSC 1386 at para 30.
4 Przybysz v Crowe, 2011 BCSC 731.
5 Kaladjian v Jose, 2012 BCSC 357.
6 Edwards v Ganzer, 2012 BCSC 138.
7 Whitcombe v Avec Insurance Managers Inc, 2011 BCSC 204 at paras 10-11.
8 Kendall v Sun Life Assurance Company of Canada, 2010 BCSC 1556 at para 52.
9 The Owners, Strata Plan NES 97 v Timberline Developments Ltd., 2011 BCCA 421.
10 Royal Bank of Canada v Lord, 2011 BCSC 1623.
11 For example, Canadian Federation of Students v Simon Fraser Student Society, 2010 BCSC 1816 and Peck v Peck, 2010 BCSC 1397 (determined under the Supreme Court Family Rules, which have an equivalent provision).
12 The Canadian Bar Association British Columbia Branch, Supreme Court Civil Rules Survey, online: <http://cba.org/bc/pdf/surveys/SummarySupremeCourtCivil%20RulesSurvey.pdf >.
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a cautionary note
The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.
© McMillan LLP 2012