Procedural Aspects of New Court Rules
The advent of the new Supreme Court Civil Rules has created a some uncertainty for litigators, particularly with respect to rules that did not exist before the transition of July 1, 2010.
Two such examples are Rules 12-2 and 5-3, which govern the newly-created concepts of a Trial Management Conference (“TMC”) and a Case Planning Conference (“CPC”). In the recent case VERNON V. BRITISH COLUMBIA (MINISTRY OF HOUSING AND SOCIAL DEVELOPMENT) (LIQUOR DISTRIBUTION BRANCH), 2010 BCSC 1688, some parameters were set as to the limits of what can be achieved at a TMC and a CPC.
The underlying action to which the conference pertained was a wrongful dismissal claim. The trial was set for November 22, 2010, and the parties appeared before the trial judge on November 4, 2010. At the TMC, the defendant sought (1) an adjournment of the trial; (2) a publication ban, and (3) an order that the defendant present its case first. The plaintiff opposed all three orders.
With respect to the first two requests, the defendant did not provide affidavit evidence in support. Mr. Justice Goepel made reference to 12-2(11), which states that “a trial management conference judge must not, at a trial management conference (a) hear any application for which affidavit evidence is required, or (b) make an order for final judgment, except by consent.” He noted that unlike the old Rule 35, which allowed for interlocutory applications at a pre-trial conference, the new rules placed specific limits on applications that can be heard at a TMC or CPC.
A second issue was then addressed, as the court considered whether the applications could be considered on the basis of counsel’s statements alone. An application made at a TMC or CPC is a “chambers proceeding” under Rule 22-1(1)(c). On this basis, the court may receive, in addition to affidavit evidence, other forms of evidence, which have been held to include statements of counsel.
Mr. Justice Goepel considered the jurisprudence on this matter. He quoted from NICHOLS V. GRAY (1978), 9 B.C.L.R. 5 (C.A.) which says that it would be a rare case where the unsworn statements of counsel alone in the absence of affidavit evidence would be a sufficient basis to grant the discretionary order being sought. He also quoted from MTU MAINTENANCE CANADA LTD. V. NORMAL G. JENSEN INC., 2007 BCCA 552 in which the chambers decision was overturned because the judge relied on an unsworn statement from counsel that provided a new fact of importance rather than explain facts sworn by affidavit.
The judgment brought to light the important fact that a CPC or TMC is not a court of record. As such, there is a danger in making orders from minimal material, particularly because a reviewing court has no basis to determine whether there is a proper foundational in law or fact for the order in question.
Ultimately, Goepel J. concluded as follows at paragraph 23:
While CPCs and TMCs have a role to play in the orderly progress of litigation, they are not generally the forum to determine contested applications. Such applications will usually require affidavit evidence and pursuant to the provisions of Rule 12-2(11) and 5-3(2) applications requiring affidavit evidence cannot to be heard at such conferences. In this case affidavit evidence is necessary to determine the defendant’s applications for an adjournment and a publication ban. Those applications cannot be heard at a TMC.
The above is not to say that a judge cannot make orders at a CPC or a TMC. Mr. Justice Goepel was quick to say that many of the orders contemplated at such a conference will not require applications or affidavit evidence. The Rules allow a judge to make an order absent an application. Many of the orders suggested in the respective rules are procedural in nature and more in the nature of directions. Such orders can be based on the representations of counsel. A perfect example was the third application by the defendant concerning the order of proceedings at trial.
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