| Copyright (c) Queen's Printer, Victoria, British Columbia, Canada |
IMPORTANT INFORMATION |
[includes amendments up to B.C. Reg. 130/2008, July 1, 2008]
(1) In a proceeding in which a statement of defence, answer or answer and counter petition has been filed, a party may, by delivery of a notice to admit in Form 23, request any party of record to admit, for the purposes of the proceeding only, the truth of a fact or the authenticity of a document specified in the notice.
[en. B.C. Reg. 143/94, s. 6.]
(2) Unless the court otherwise orders, the truth of a fact or the authenticity of a document specified in the notice to admit shall be deemed to be admitted, for the purposes of the proceeding only, unless, within 14 days, the party receiving the notice delivers to the party giving the notice a written statement that
(a) specifically denies the truth of that fact or the authenticity of that document,
(b) sets forth in detail the reasons why the party cannot make the admission, or
(c) states that the refusal to admit the truth of that fact or the authenticity of that document is made on the grounds of privilege or irrelevancy or that the request is otherwise improper, and sets forth in detail the reasons for the refusal.
(3) Unless the court otherwise orders, a copy of a document specified in a notice to admit shall be attached to the notice when it is delivered.
(4) Where a party unreasonably denies or refuses to admit the truth of a fact or the authenticity of a document, the court may order the party to pay the costs of proving the truth of the fact or the authenticity of the document and may award as a penalty additional costs, or deprive a party of costs, as the court thinks just.
(5) A party is not entitled to withdraw
(a) an admission made in response to a notice to admit,
(b) a deemed admission under subrule (2), or
(c) an admission made in a pleading
except by consent or with leave of the court.
(6) An application for judgment or any other application may be made to the court using as evidence
(a) admissions of the truth of a fact or the authenticity of a document made
(i) in an affidavit or pleading filed by a party,
(ii) in an examination for discovery of a party or a person examined for discovery on behalf of a party, or
(iii) in response to a notice to admit, or
(b) admissions of the truth of a fact or the authenticity of a document deemed to be made under subrule (2)
and the court may, without waiting for the determination of any other question between the parties, make any order it thinks just.
Rule 32 — Inquiries, Assessments and Accounts
(1) At any stage of a proceeding the court may direct an inquiry, assessment or accounting to be held by a master, registrar or special referee.
(2) The court may direct that the result of an inquiry, assessment or accounting held by a master, registrar or special referee be certified by that person, and the certificate, when filed, shall be binding on the parties to the proceeding.
(3) Where the court does not direct that the result of an inquiry, assessment or accounting be certified, then the result of the inquiry, assessment or accounting shall be stated in the form of a report and recommendation to the court.
(4) On application by a party, the court may vary or confirm the recommendation or remit the matter.
(5) A master, registrar or special referee may hold a hearing at a convenient time and place, may adjourn it from time to time, may administer oaths, take evidence, direct production of documents and give general directions for the conduct of the hearing.
(6) A party proceeding with an inquiry, assessment or accounting shall take out an appointment in Form 24 and shall serve notice of it upon all parties of record or as directed by the court.
(7) A party to a proceeding in which an inquiry, assessment or accounting is held may subpoena any person, including a party, to give evidence at the hearing and to produce documents.
(8) A master, registrar or special referee shall state the result of an inquiry, assessment or accounting in the form of a certificate or a report and recommendation as directed, with or without reasons, and shall
(a) provide a certificate to the party requesting it, or
(b) file the report and recommendation and provide a copy to all persons who appeared at the hearing.
[en. B.C. Reg. 165/97, s. 9.]
(8.1) A party to whom a certificate is provided under subrule (8) (a) may file that certificate.
[en.B.C. Reg. 165/97, s. 9.]
(9) Before the master, registrar or special referee has concluded a hearing he or she may, in a summary or other manner, ask the opinion of the court on any matter arising in the hearing.
(10) A person may apply by petition for the furnishing of accounts by the executor or administrator of an estate, a trustee, a receiver, a liquidator, guardian or partner.
(11) The court may give special directions as to the manner in which an inquiry, assessment or accounting is to be taken or made, and the directions may include
(a) the manner in which the inquiry, assessment or accounting is to be prosecuted,
(b) the evidence to be adduced in support,
(c) the parties required to attend all or any part of the proceedings,
(d) the time within which each proceeding is to be taken, and
(e) a direction that persons whose interest can be classified shall constitute a class and be represented by the same solicitor and, where the persons cannot agree on the solicitor to represent them, the court may appoint the solicitor to represent them,
and the court may fix a time for the further attendance of the parties.
(13) Where an account is directed to be taken, unless the court otherwise orders, the accounting party shall make out that party's account and verify it by an affidavit to which the account shall be exhibited. The items on each side of the account shall be numbered consecutively, and the accounting party shall file the affidavit and the account and deliver copies to all parties of record.
(14) A party who alleges that there are errors or omissions in an account shall file and deliver to all parties of record a notice thereof with brief particulars.
(16) Where in a proceeding relating to
(a) the administration of the estate of a deceased person,
(b) the execution of a trust, or
(c) the sale of any property,
the court makes an order which directs any inquiry, assessment or accounting to be taken or made, the court may direct notice of the order in Form 25 to be served on any person interested in the estate or under the trust or in the property, and any person served with notice of an order in accordance with this rule shall, subject to subrule (18), be bound by the order to the same extent as the person would have been if the person had originally been made a party to the action.
(17) The court may dispense with service on a person in any case where it appears it is impracticable for any reason to serve the person and may also order that that person shall be bound by any order made to the same extent as if the person had been served with notice of the order, and the person shall be bound accordingly except where the order was obtained by fraud or non-disclosure of material facts.
[am. B.C. Reg. 101/2001, s. 1.]
(18) A person served with notice, within 28 days after service of the notice on him or her, without entering an appearance, may apply to the court to vary or rescind to the order.
(19) A person served with notice may, after entering an appearance in Form 7, take part in the proceeding.
Rule 32A — Court Appointed Experts
[en. B.C. Reg.10/92, s. 6.]
(1) On application, or on its own initiative, the court may, at any time, appoint one or more independent experts to inquire into and report on any question of fact or opinion relevant to an issue in the proceeding.
(2) The selection of the expert may be agreed upon by the parties, but where they cannot agree selection shall be made by the court.
(3) The court, after consultation with the parties, shall settle the question to be submitted to the expert and shall give the expert appropriate directions.
(4) The order appointing an expert shall contain the directions to the expert and the court may make such further orders as it considers necessary to enable the expert to carry out the directions, including, on application by a party, an order for
(a) inspection of property under Rule 30 (4), or
(b) the examination with respect to the physical or mental condition of a party under Rule 30 (1).
(5) The remuneration of the expert shall be fixed by the court, and may include a fee for the report required under subrule (7) and an appropriate sum for each day that the expert's attendance in court is required.
(6) The court may make an order for security for the remuneration of the expert, without prejudice to either party's right to costs.
(7) The expert shall prepare a report and send it to the registry, with a copy to the parties or to their solicitors, within such time as the court directs.
(8) The report shall be entered as evidence at the trial of the action, unless the trial judge orders otherwise.
(9) The court may direct the expert to make a further or supplementary report, and subrules (7) and (8) apply to that report.
(10) Any party may require the attendance of the expert at the trial for cross-examination by any of the parties.
(1) The parties to a proceeding may concur in stating a question of law or fact, or partly of law and partly of fact, in the form of a special case for the opinion of the court.
(2) The court may order a question or issue arising in a proceeding, whether of fact or law or partly of fact and partly of law, and whether raised by the pleadings or otherwise, to be stated in the form of a special case.
(3) A special case must
(a) be divided into paragraphs numbered consecutively,
(b) state concisely such facts and set out or refer to such documents as may be necessary to enable the court to decide the questions stated, and
(c) be signed by the parties or their solicitors.
(4) On the hearing of a special case, the court and the parties may refer to any document mentioned in the special case, and the court may draw from the stated facts and documents any inference, whether of fact or law, that might have been drawn from them if proved at a trial or hearing.
(5) With the consent of the parties, on any question in a special case being answered, the court may grant specific relief or order judgment to be entered.
[en. B.C. Reg. 193/2007, s. 7.]
(1) In this rule:
"applicant" means the person identified as the applicant under subrule (4) (a);
"authorizing enactment", in relation to a stated case, means the enactment under which the stated case is referred to the court;
"deliver" means deliver, in accordance with Rule 11,
(a) to the recipient’s address for delivery,
(b) if the recipient is the original tribunal, to the address for that entity, or
(c) if the recipient is a person, other than the original tribunal, for whom an address for delivery has not been given, to the address for that person included in the latest materials filed by that person with, or submitted by that person to, the original tribunal in relation to the original proceeding;
"original proceeding", in relation to a stated case, means the tribunal proceeding from which the stated case is brought;
"original tribunal", in relation to a stated case, means the entity by which the original proceeding is heard;
"person" has the same meaning as in the Interpretation Act, and includes an entity by which a tribunal proceeding is heard;
"respondent" means a person identified as a respondent under subrule (4) (b);
"stated case" means a reference to the court of a question that arises in or as a result of a tribunal proceeding, if an enactment provides that that reference be made by way of stated case, and includes a question of law submitted to the court under section 34 of the Commercial Arbitration Act;
"tribunal proceeding" means any judicial or quasi-judicial proceeding conducted by an entity other than the court.
(2) A stated case is governed by these rules, but, in the event of a conflict between this rule and
(a) the authorizing enactment, the authorizing enactment prevails, and
(b) another rule, this rule prevails.
(3) To initiate a stated case, the original tribunal must file in a registry
(a) a notice of stated case in Form 25A, and
(b) any material that, under the authorizing enactment, is required to initiate a stated case.
(4) A notice of stated case must
(a) identify as the applicant the person requesting the stated case,
(b) identify as respondents all other parties to the original proceeding, including the original tribunal if that entity is not the applicant, and
(c) set out the names of
(i) any persons who are identified in, or identified in the manner provided for under, the authorizing enactment or the Constitutional Questions Act as being persons to whom notice of the stated case must be provided,
(ii) any intervenor in the original proceeding, and
(iii) any other person to whom the original tribunal considers the notice of stated case should be delivered.
(5) In addition to including the information required by subrule (4), a notice of stated case must set out the following:
(a) a statement of the relevant facts and evidence;
(b) the questions to be determined by the court;
(c) the applicant’s address for delivery, the most recent address provided to the original tribunal by each of the respondents and the most recent address known to the original tribunal for each of the persons referred to in subrule (4) (c).
(6) After a notice of stated case and any material required under subrule (3) (b) is filed under subrule (3),
(a) the original tribunal, if not the applicant, must deliver a copy of the filed notice of stated case and material to the applicant, and
(b) the applicant must deliver a copy of the filed notice of stated case and material to
(i) the respondents, and
(ii) all other persons named in the notice of stated case under subrule (4) (c).
(7) The court may
(a) give directions it considers necessary for the proper hearing and determination of the stated case,
(b) without limiting paragraph (a), make one or more of the following orders:
(i) that records, including transcripts and minutes, or other things be produced;
(ii) that evidence be adduced by way of affidavit, or that it be given orally;
(iii) that sets time limits for taking steps in, and for the hearing of, the stated case;
(iv) that the stated case be disposed of summarily, and
(c) exercise the powers of the court as on an originating application.
(8) The original tribunal, if it is not the applicant, and any person who has received a notice of stated case under subrule (6), must, if that tribunal or person wishes to be heard on the hearing of the stated case, file an appearance under Rule 14 (1) (b.2).
(9) The applicant or a respondent must, if that person wishes to proceed with the stated case, set it for hearing by
(a) filing a notice of hearing of stated case in Form 25B, and
(b) delivering a copy of the notice of hearing of stated case, at least 14 days before the date set for hearing, to
(i) each other party of record, and
(ii) the original tribunal, unless that entity filed or received a copy under this subrule.
Rule 34 — Proceedings on a Point of Law
(1) A point of law arising from the pleadings may, by consent of the parties or by order of the court, be set down by requisition for hearing and disposed of at any time before the trial.
[am. B.C. Reg. 201/2004, s. 1.]
(2) Where, in the opinion of the court, the decision on the point of law substantially disposes of the whole action or of any distinct claim, ground of defence, set-off, counterclaim or reply, the court may dismiss the action or make any order it thinks just.
Rule 35 — Pre-trial Conference
(1) A party, having delivered or received a notice of trial, may request the holding of a pre-trial conference at a time and place to be fixed by the registrar.
(2) On a request being received or on his or her own initiative at any stage of an action, a judge or master may direct that a pre-trial conference, mini-trial or settlement conference be held.
(3) A pre-trial conference shall be attended by the solicitors for the parties, or the parties themselves, and shall consider
(a) the simplification of the issues,
(b) the necessity or desirability of amendments to pleadings,
(c) the possibility of obtaining admissions which might facilitate the trial,
(d) the quantum of damages,
(e) fixing a date for the trial, and
(f) any other matters that may aid in the disposition of the action or the attainment of justice.
(3.1) An interlocutory application may be heard and decided at a pre-trial conference and Rule 44 applies to that application.
[en. B.C. Reg. 95/96, s. 15.]
(4) At a pre-trial conference, the judge or master may, whether or not on the application of a party, order that
(a) the trial, or part of it, be heard by the court without a jury, on any of the grounds set out in Rule 39 (27),
(b) the pleadings be amended or closed within a fixed time,
(c) a party file and deliver, within a fixed time, to each other party as specified by the judge or master, a list of documents or an affidavit verifying a list of documents in accordance with the directions that the judge or master may give,
(d) interlocutory applications be brought within a fixed time or by a specified date,
(e) a statement of agreed facts be filed within a fixed time or by a specified date,
(f) a general application for directions be brought within a fixed time or by a specified date,
(g) all procedures for discovery be conducted in accordance with a schedule and plan that the court directs, and the plan may set limitations on those discovery procedures,
(h) the obligation to pay conduct money to any of the parties or persons to be examined be allocated in the manner specified in the order,
(i) a party deliver a written summary of the proposed evidence of a witness within a fixed time or by a specified date,
(j) the parties attend a mini-trial or a settlement conference,
(k) experts who have been retained by the parties confer, on a without prejudice basis, to determine those matters on which they agree and to identify those matters on which they do not agree,
(l) the action be set for trial on a particular date or on a particular trial list, subject to the approval of the Chief Justice, and
(m) the trial be adjourned,
and, on making an order under this subrule, the judge or master may give other directions that he or she thinks just or necessary.
[am. B.C. Regs. 165/97, s. 10; 149/99, s. 4.]
(5) Where the judge or master orders or directs that the parties attend a mini-trial, the parties shall attend before a judge or master who shall, in private and without hearing witnesses, give a non-binding opinion on the probable outcome of a trial of the proceeding.
[am. B.C. Reg. 83/2002, Sch. s. 3.]
(6) Where the judge or master orders or directs that the parties attend a settlement conference, the parties shall attend before a judge or master who shall, in private and without hearing witnesses, explore all possibilities of settlement of the issues that are outstanding.
[am. B.C. Reg. 83/2002, Sch. s. 3.]
(7) A judge who presides at a pre-trial conference is not seized of the action, and a trial of the action may be heard by that judge or by any other judge.
(8) A judge who has heard a mini-trial or who has attended at a settlement conference shall not preside at the trial, unless all parties of record consent.
Rule 36 — Discontinuance and Withdrawal
(1) At any time before an action is set down for trial, a plaintiff may discontinue it in whole or in part against a defendant by filing and delivering a notice of discontinuance in Form 26 to each party of record.
(2) After an action has been set down for trial, a plaintiff may discontinue it in whole or in part against a defendant with the consent of all parties of record or by leave of the court.
(3) A defendant may withdraw his or her defence or any part of it with respect to any plaintiff at any time by filing a notice of withdrawal in Form 27 and delivering a copy of it to each party of record.
(4) Subject to subrule (2), a person wholly discontinuing an action or wholly withdrawing his defence against a party shall pay the costs of that party to the date of delivery of the notice of discontinuance or withdrawal and if a plaintiff, liable for costs under this rule, subsequently brings a proceeding for the same or substantially the same claim before paying those costs, the court may order the proceeding to be stayed until the costs are paid.
(5) Where a plaintiff discontinues the whole or any part of an action in which a person has been joined as a third party, the third party, if the discontinuance disposes of the claim against the third party, is entitled to costs and may apply to the court for a direction as to who should pay them.
(6) A plaintiff's right to recover costs from a defendant under subrule (4) does not preclude the plaintiff from recovering other costs properly incurred.
(7) Where a defendant wholly or partly withdraws his or her defence under this rule, the plaintiff may proceed under Rule 25 as though the defendant had delivered no statement of defence or only a partial statement of defence.
(8) Unless otherwise ordered, the discontinuance of an action in whole or in part is not a defence to a subsequent proceeding for the same or substantially the same cause of action.
(9) This rule applies to a counterclaim, a third party proceeding and a petition.
Repealed. [B.C. Reg. 130/2008, s. 1.]
Rule 37A — Offers of Settlement
Repealed. [B.C. Reg. 130/2008, s. 1.]
(1) In this rule, "offer to settle" means
(a) an offer to settle made and delivered before July 2, 2008 under Rule 37, as that rule read on the date of the offer to settle, and in relation to which no order was made under that rule,
b) an offer of settlement made and delivered before July 2, 2008 under Rule 37A, as that rule read on the date of the offer of settlement, and in relation to which no order was made under that rule, or
(c) an offer to settle, made after July 1, 2008, that
(i) is made in writing by a party to a proceeding,
(ii) has been delivered to all parties of record, and
(iii) contains the following sentence: "The ….[name of party making the offer]…. reserves the right to bring this offer to the attention of the court for consideration in relation to costs after the court has rendered judgment on all other issues in this proceeding."
(2) The fact that an offer to settle has been made must not be disclosed to the court or jury, or set out in any document used in the proceeding, until all issues in the proceeding, other than costs, have been determined.
(4) The court may consider an offer to settle when exercising the court's discretion in relation to costs.
(5) In a proceeding in which an offer to settle has been made, the court may do one or both of the following:
(a) deprive a party, in whole or in part, of costs to which the party would otherwise be entitled in respect of the steps taken in the proceeding after the date of delivery of the offer to settle;
(b) award double costs of all or some of the steps taken in the proceeding after the date of delivery of the offer to settle.
(6) In making an order under subrule (5), the court may consider the following:
(a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or on any later date;
(b) the relationship between the terms of settlement offered and the final judgment of the court;
(c) the relative financial circumstances of the parties;
(d) any other factor the court considers appropriate.
(1) By consent of the parties or by order of the court, a person may be examined on oath before or during trial, before an official reporter, or any other person the court may direct, in order that the deposition be available to be tendered as evidence at the trial.
[am. B.C. Reg. 147/95, s. 3.]
(2) In exercising its discretion to order an examination under subrule (1), the court shall take into account
(a) the convenience of the person sought to be examined,
(b) the possibility that the person may be unavailable to testify at the trial by reason of death, infirmity, sickness or absence,
(c) the possibility that the person will be beyond the jurisdiction of the court at the time of the trial, and
(d) the expense of bringing the person to the trial.
(3) Where a party is entitled to examine a person under this rule, by serving on that person or a party a subpoena in Form 21, the party may require the person or the party to bring to the examination
(a) any document in the person's possession or control relating to the matters in question in the action, without the necessity of identifying the document, and
(b) any physical object in the person's possession or control which the examining party contemplates tendering at the trial as an exhibit, but the subpoena shall identify the object.
[am. B.C. Reg. 95/96, s. 12.]
(4) Unless the court otherwise orders, or the parties to the examination consent, an examination under this rule shall take place at a location within 10 kilometers of the registry that is nearest to the place where the person to be examined resides.
[am. B.C. Reg. 136/2005, s. 4; 193/2007, s. 5.]
(5) So far as is practicable this rule applies to the examination of a person residing outside British Columbia, and the court may order the examination of a person in the place and the manner it thinks just and convenient.
[am. B.C. Reg. 101/2001, s. 2.]
(6) If the person to be examined is willing to testify, the order shall be in Form 31 and the instructions to the examiner appointed in the order shall be in Form 32.
(7) If the person to be examined is unwilling to testify, or if for any other reason the assistance of a foreign court is necessary, the order shall be in Form 33 and the letter of request referred to in the order shall be in Form 34.
(8) Where an order is made under subrule (7), the letter of request shall be sent by the party obtaining the order to the Under Secretary of State for External Affairs of Canada (or, if the evidence is to be taken in Canada, to the Deputy Attorney General for the Province of British Columbia), and shall have attached to it
(a) any interrogatories to be put to the witness,
(b) a list of the names, addresses and telephone numbers of the solicitors or agents of the parties, both in British Columbia and in the other jurisdiction, and
(c) a copy of the letter of request and any interrogatories translated into the appropriate official language of the jurisdiction where the examination is to take place and bearing the certificate of the translator that it is a true translation and giving his or her full name and address.
(9) The solicitor for the party obtaining the order shall file with the Under Secretary of State for External Affairs of Canada (or the Deputy Attorney General for the Province of British Columbia, as the case may be) his or her undertaking to be personally responsible for all the charges and expenses incurred by the Under Secretary (or the Deputy Attorney General, as the case may be) in respect of the letter of request and to pay them on receiving notification of the amount.
(10) Notice of examination of a person under this rule shall be given by the examining party delivering copies of the subpoena to the person to be examined and to all parties of record not less than 7 days before the day appointed for the examination.
(11) The examining party shall examine the witness, who shall be subject to cross-examination and re-examination.
(12) If an objection is made to a question put to a witness in an examination under this rule, the question and the objection shall be taken down by the official reporter and the validity of the objection may be decided by the court, which may order the witness to submit to further examination.
(13) Unless otherwise ordered, the deposition shall be recorded either by
(a) the official court reporter in the form of questions and answers, or
(b) on videotape or film.
(14) A person who, under the circumstances alleged by the person to exist, would become entitled, on the happening of any future event, to an estate or interest in property, the right or claim to which cannot by the person be brought to trial or hearing before the happening of the event, may apply by originating application for an order to perpetuate any testimony which may be material for establishing the right or claim by examination under this rule.
(1) This rule applies to
(a) an action, and
(b) an originating application that is transferred to the trial list under Rule 52 (11).
(c) Repealed. [B.C. Reg. 161/98, s. 11 (a).]
[am. B.C. Reg. 161/98, s. 11 (a).]
(2) Notice of trial in Form 35 may be delivered by a plaintiff after the time has expired for the delivery of a statement of defence or by any party after the close of pleadings.
(3) A party may obtain a trial date from the registry where the trial is to be held.
(4) The court may direct that an action be set down for trial at a particular time and place and that the notice of trial be issued by the registry.
(5) The notice of trial must be issued from
(a) the registry where the writ was issued, or
(b) the registry to which the proceeding has been transferred for all purposes.
[en. B.C. Reg. 201/2004, s. 5; am. B.C. Reg. 193/2007, s. 8 (a).]
(6) Within 7 days after issue of the notice of trial, and not less than 28 days before trial, the notice of trial shall be delivered by the party obtaining it to all other parties of record.
(7) The place of trial shall be the place named in the statement of claim, but the court may order that the place of trial be changed or that the trial be heard partly in one place and partly in another.
(8) The trial shall be heard on the day appointed by the notice of trial or so soon thereafter as may be convenient.
(9) The court may order the adjournment of a trial or fix the date of trial of an action or issue, or order that a trial shall take precedence over another trial.
(10) Each party to an action entered for trial shall give the registry without delay all available information as to the settlement of the action or affecting the estimated length of the trial.
(11) The party who obtained the notice of trial shall file a trial record for the court, which trial record must contain
(a) the pleadings as amended,
(b) particulars delivered pursuant to a demand, together with the demand made,
(c) a statement in Form 89 delivered in a proceeding under Rule 60D, and
(d) any order made governing the conduct of the trial.
[en. B.C. Reg. 143/94, s. 8; am. B.C. Reg. 149/99, s. 6.]
(11.1) The registrar may direct inclusion in the trial record of any document the registrar thinks necessary or may reject a trial record that, in the registrar's opinion,
(a) does not contain all the pleadings,
(b) contains a document other than those set out in subrule (11), or
(c) is illegible.
[en. B.C. Reg. 143/94, s. 8.]
(11.2) Each document referred to in subrule (11) that is required for the trial record shall contain in the upper right hand corner of the first page of the document
(a) the registry office and number of the proceeding, and
(b) below the registry office and number, the date that the document was filed, or, where it was not filed, the date that the document was prepared, completed or made.
[en. B.C. Reg. 143/94, s. 8.]
(12) The party referred to in subrule (11) shall file the trial record not more than 30 days and not fewer than 14 days before the scheduled trial date and shall deliver a copy of the trial record forthwith after filing to all other parties of record.
[en. B.C. Reg. 143/94, s. 8.]
(13) Where a pleading is amended after delivery of the trial record, the party who obtained the notice of trial, at least one day before the trial, shall file an amended trial record and deliver a copy to all other parties of record.
[en. B.C. Reg. 143/94, s. 8.]
(14) Where the court directs that an action be set down for trial under subrule (4), it may also direct one of the parties to prepare, file and deliver a trial record.
[am. B.C. Reg. 143/94, s. 8.]
(19) Each party of record shall, not more than 30 days and not less than 14 days before the scheduled trial date, file a trial certificate in Form 37 in the registry where the trial is to be held.
[am. B.C. Regs. 55/93, s. 12 (a); 165/97, s. 11.]
(20) The trial certificate must contain the following:
(a) a statement that the party filing it will be ready to proceed on the scheduled trial date;
(b) the current estimate of the length of the trial;
(c) a statement certifying that the party has completed all examinations for discovery.
[am. B.C. Reg. 95/96, s. 16.]
(21) After filing the trial certificate, the party shall serve it forthwith on all other parties of record.
[en. B.C. Reg. 55/93, s. 12 (b).]
(22) Where no party of record files a trial certificate, the trial shall be removed from the trial list.
(23) A party who fails to file a completed trial certificate under subrule (19) is not, without leave of the court, entitled to make further interlocutory applications.
[en. B.C. Reg. 55/93, s. 12 (b).]
(24) Subject to subrule (26), a trial shall be heard by the court without a jury.
(25) A trial shall be heard by the court without a jury where it relates to
(a) the administration of the estate of a deceased person,
(b) the dissolution of a partnership or the taking of partnership or other accounts,
(c) the redemption or foreclosure of a mortgage,
(d) the sale and distribution of the proceeds of property subject to any lien or charge,
(e) the execution of trusts,
(f) the rectification, setting aside or cancellation of a deed or other written instrument,
(g) the specific performance of a contract,
(h) the partition or sale of real estate,
(i) the custody or guardianship of an infant or the care of an infant's estate,
(j) a matter referred to in Rule 10 (1), or
(k) a family law proceeding.
[am. B.C. Reg. 161/98, s. 11 (b).]
(26) Subject to subrules (25) and (26.1), a party may require that the trial of an action be heard by the court with a jury by
(a) filing and delivering to all parties of record, within 21 days after delivery of the notice of trial and not later than 30 days before trial, a notice in Form 38, and
(b) paying to the sheriff, not less than 30 days before trial, a sum sufficient to pay for the jury and the jury process.
[en. B.C. Reg. 76/98.]
(26.1) The court may transfer a proceeding to the Provincial Court of British Columbia under section 15 of the Supreme Court Act notwithstanding that a party has filed a notice under subrule (26).
[en. B.C. Reg. 273/95.]
(27) Except in cases of defamation, false imprisonment and malicious prosecution, a party to whom a notice under subrule (26) has been delivered may apply
(a) within 7 days for an order that the trial or part of it be heard by the court without a jury on the ground that
(i) the issues require prolonged examination of documents or accounts or a scientific or local investigation which cannot be made conveniently with a jury, or
(ii) the issues are of an intricate or complex character, or
(b) at any time for an order that the trial be heard by the court without a jury on the ground that it relates to one of the matters referred to in subrule (25).
(28) The court may at any time order a trial to be heard wholly or partially by the court sitting with an assessor, and the court may fix the remuneration for the assessor and the remuneration shall form part of the costs of the action.
(29) The court may order that one or more questions of fact or law arising in an action be tried and determined before the others, and upon the determination a party may move for judgment, and the court, if satisfied that the determination is conclusive of all or some of the issues between the parties, may grant judgment.
(30) The court may order that different questions of fact arising in an action be tried by different modes of trial.
(31) In an action in which it appears that the amount to be recovered is substantially a matter of calculation, the court may direct an inquiry, assessment or accounting under Rule 32.
(32) If no party is in attendance when the trial of an action is called, the action shall be struck off the trial list.
[en. B.C. Reg. 55/93, s. 12 (b).]
(33) If a party is not in attendance when the trial of an action is called, the court may proceed with the trial, including hearing a counterclaim, in the absence of that party.
[en. B.C. Reg. 55/93, s. 12 (b).]
(34) The court may set aside a verdict or judgment obtained where a party does not attend the trial.
[en. B.C. Reg. 55/93, s. 12 (b).]
(36) Subrules (19) to (23) do not apply if a trial is or has been scheduled to begin before February 1, 1991, but if such a trial is adjourned to begin after February 1, 1991, subrules (19) to (23) apply to that proceeding.
[en. B.C. Reg. 387/90, s. 3.]
Rule 40 — Evidence and Procedure at Trial
(1) This rule does not apply to summary trials under Rule 18A, except as provided in that rule.
[en. B.C. Reg. 10/92, s. 7.]
(2) Subject to any enactment and these rules,
(a) a witness at a trial of an action shall testify in open court, and
(b) unless the parties otherwise agree, the witness shall testify orally.
(3) An order made under this rule concerning the mode of proving a fact or document or of adducing evidence may be revoked or varied by a subsequent order made at or before the trial.
(4) Where a witness is dead, or is unable to attend and testify because of age, infirmity, sickness or imprisonment or is out of the jurisdiction or his or her attendance cannot be secured by subpoena, the court may permit a transcript of any evidence of that witness taken in any proceeding, hearing or inquiry at which the evidence was taken under oath, whether or not involving the same parties to be put in as evidence, but reasonable notice shall be given of the intention to give that evidence.
(5) In an action in which evidence or argument is taken down by an official reporter or is recorded digitally or on audio tape, it shall be the duty of the plaintiff, if required by the court, to furnish it with a certified transcript of the evidence or argument or any portion of it, the costs of which shall form part of the costs of the action, but where payment of the costs of providing a transcript would be a hardship on a party, the court may order that the transcript be prepared at the expense of the Crown.
[am. B.C. Reg. 227/97, s. 1.]
(6) Counsel for a party may use a recording device to record evidence, provided it does not interfere with the trial.
(7) Where a party omits or fails to prove some fact material to the party's case, the court may proceed with the trial, subject to that fact being afterwards proved as the court shall direct, and,
(a) if the case is being tried by a jury, the court may direct the jury to find a verdict as if that fact had been proved, and,
(b) unless the court otherwise orders, judgment shall be entered according to whether or not that fact is or is not afterwards proved as directed.
(8) At the close of the plaintiff's case, the defendant may apply to have the action dismissed on the ground that there is no evidence to support the plaintiff's case.
(9) A defendant is entitled to make an application under subrule (8) without being called upon to elect whether or not to call evidence.
(10) At the close of the plaintiff's case, the defendant may apply to have the action dismissed on the ground that the evidence is insufficient to make out the plaintiff's case.
(11) Unless the court otherwise orders, an application under subrule (10) may be made only after the defendant has elected not to call evidence.
(12) By delivering a notice in Form 39 at least 2 days before a trial, a party may require any other party to bring to the trial
(a) any document in the other party's possession or control relating to the matters in question in the action, without the necessity of identifying the document, and
(b) any physical object in the other party's possession or control which the party contemplates tendering at the trial as an exhibit, but the notice shall identify the object.
[am. B.C. Reg. 95/96, s. 12.]
(12.1) If a copy of a document is introduced as an exhibit,
(a) each page of the exhibit must be numbered sequentially, beginning with the first page of the exhibit and ending with the last page of the exhibit, or
(b) if the exhibit is divided by tabs,
(i) each page of the exhibit that is not behind a tab must be numbered sequentially, beginning with the first of those pages and ending with the last of those pages, and
(ii) each page of the exhibit that is behind a tab must be numbered sequentially, beginning with the first page behind the tab and ending with the last page behind the tab.
[en. B.C. Reg. 201/2004, s. 6.]
(13) Unless the court otherwise orders or the parties agree, no plan, photograph or object shall be received in evidence at the trial of an action unless, at least 7 days before the commencement of the trial, the parties have been given an opportunity to inspect it.
(14) A clerk of the registry shall take charge of each document or object put in as an exhibit, mark or label each exhibit with a number, and make a list of the exhibits, giving a short description of each and stating by whom it was tendered.
(15) After the time for appeal from judgment has expired or after the disposition of an appeal, new trial or further appeal, whichever is latest, the registry may return an exhibit to the party who tendered it. The parties may agree or the court may order that an exhibit be returned at an earlier time or to a person other than the party who tendered it.
(16) The registry may, with the approval of the Deputy Attorney General, destroy or otherwise dispose of an exhibit tendered in evidence in a proceeding if the return of the exhibit has not been applied for within one year after the later of
(a) the date of the judgment at trial in, or any other final disposition of, the proceeding, and
(b) the date of the judgment on, or any other final disposition of, any appeal, new trial or further appeal.
[en. B.C. Reg. 83/2002, Sch. s. 5.]
(16.1) If an exhibit is tendered in evidence in a proceeding and nothing is filed in that proceeding for a period of 2 years, the registry may deliver to the parties of record notice that the registry intends to destroy or otherwise dispose of the exhibit unless, within 30 days after the date of the notice,
(a) an application is made for the return of the exhibit, or
(b) a Notice of Intention to Proceed is served on all parties of record and a copy of the notice and proof of its service has been filed in the proceeding.
[en. B.C. Reg. 83/2002, Sch. s. 5.]
(16.2) After a notice is delivered under subrule (16.1), the registry may,
(a) if a person applies to the registry within 30 days after the date of the notice for a return of the exhibit, return the exhibit to the party who tendered it or to such other person as the parties may agree or the court may order, or
(b) if no such application is made and if none of the parties comply with subrule (16.1) (b) within 30 days after the date of the notice, destroy or otherwise dispose of the exhibit with the approval of the Deputy Attorney General.
[en. B.C. Reg. 83/2002, Sch. s. 5.]
(16.3) If an exhibit is disposed of under subrule (16) or (16.2) (b),
(a) any money received as a result of the disposition must be paid to the Minister of Finance, and
(b) the exhibit list must be endorsed to indicate the date and method of disposition and the amount of any money recovered.
[en. B.C. Reg. 83/2002, Sch. s. 5.]
(16.4) If an exhibit is destroyed under subrule (16) or (16.2) (b), the exhibit list must be endorsed to indicate the date and method of destruction.
[en. B.C. Reg. 83/2002, Sch. s. 5.]
(17) Subrules (17.1) to (17.4) apply where a party wishes to call as a witness at the trial
(a) an adverse party, or
(b) a person who, at the time the notice referred to in subrule (17.1) is delivered, is a director, officer, partner, employee or agent of an adverse party.
[en. B.C. Reg. 95/96, s. 17 (a).]
(17.1) If a party wishes to call as a witness a person referred to in subrule (17), the party may deliver to the adverse party a notice in Form 40 together with proper witness fees at least 7 days before the day on which the attendance of the intended witness is required.
[en. B.C. Reg. 95/96, s. 17 (a).]
(17.2) Notwithstanding subrule (17.1), a party may
(a) call as a witness, without payment of witness fees or previous notice, an adverse party or a current director, officer, partner, employee or agent of an adverse party if the person called is in attendance at the trial, or
(b) subpoena an adverse party or a current director, officer, partner, employee or agent of an adverse party.
[en. B.C. Reg. 165/97, s. 12.]
(17.3) The court may set aside a notice delivered under subrule (17.1) on the grounds that
(a) the adverse party is unable to procure the attendance of the person named in the notice,
(b) the evidence of the person is unnecessary,
(c) it would work a hardship on the person or the adverse party to require the person to attend the trial, or
(d) the person is not a person referred to in subrule (17) (a) or (b).
[en. B.C. Reg. 95/96, s. 17 (a).]
(17.4) On an application under subrule (17.3), the court may make any order it thinks just including, without limitation, an order adjourning the trial.
[en. B.C. Reg. 95/96, s. 17 (a).]
(18) For the purpose of subrules (17) to (17.3), "adverse party" means a party who is adverse in interest.
[am. B.C. Regs. 95/96, s. 17 (b); 165/97, s. 12.]
(19) If a person or party called as a witness in accordance with subrule (17.1) or (17.2) refuses or neglects to attend at the trial, to be sworn or to affirm, to answer a proper question put to the person or to produce a document that the person is required to produce, the court may do one or more of the following:
(a) pronounce judgment in favour of the party who called the witness;
(b) adjourn the trial;
(c) make an order as to costs;
(d) make any other order it thinks just.
[en. B.C. Reg. 165/97, s. 12.]
(20) A party calling a witness in accordance with subrule (17.1) or (17.2) is entitled to cross-examine the witness generally on one or more issues. Cross-examination of the witness by counsel for the adverse party shall be confined to explanation of matters brought out in the examination-in-chief. Cross-examination of the witness by other parties may be general or limited, as the court may direct. Re-examination shall be confined to new matters brought out in cross-examination.
[am. B.C. Regs. 95/96, s. 17 (d); 165/97, s. 12.]
(21) The court may permit a party
(a) to examine a witness, either generally or with respect to one or more issues,
(i) by the use of leading questions,
(ii) by referring the witness to a prior statement made by the witness, whether or not made under oath,
(iii) respecting the interest of the witness, if any, in the outcome of the proceeding, or
(iv) respecting any relationship or connection between the witness and a party, or
(b) to cross-examine a witness, either generally or with respect to one or more issues.
[en. B.C. Reg. 95/96, s. 17 (e).]
(22) A party may contradict or impeach the testimony of any witness.
(23) A transcript, videotape or film of a deposition under Rule 38 may be given in evidence at the trial by any party and, notwithstanding that the deposition of a witness has or may be given in evidence, the witness may be called to testify orally at the trial.
(24) Where a videotape or film of a deposition is given in evidence under subrule (23), a transcript of the deposition may also be given.
(25) A transcript of a deposition may be given in evidence if certified as an accurate transcription by the person taking the deposition, without proof of the signature of that person. A videotape or film of a deposition may be presented as evidence without proof of its accuracy or completeness, but the court may order such investigation as it thinks fit to verify the accuracy or completeness. A videotape or film given in evidence shall become an exhibit at the trial.
(26) Where a deposition is given in evidence,
(a) subrule (31) applies, and
(b) the deposition shall be presented in full, unless otherwise agreed by the parties or ordered by the court.
[en. B.C. Reg. 143/94, s. 9.]
(27) (a) If otherwise admissible, the evidence given on an examination for discovery by a party or by a person examined under Rule 27 (4) to (12) may be given in evidence at trial, unless the court otherwise orders, but the evidence is admissible only against
(i) the adverse party who was examined,
(ii) the adverse party whose status as a party entitled the examining party to conduct the examination under Rule 27 (4) to (12), or
(iii) if the person was examined under section 17 of the Class Proceedings Act as a member of a class, the members of that class.
(b) Where the person examined was, at the time of the examination, a former director, officer, employee, agent or external auditor of a party, any part of his or her evidence may be given at trial if notice has been delivered to all parties at least 14 days before trial specifying that part of the evidence intended to be given at trial.
(c) Any party may require the attendance at trial of a person whose evidence taken on examination is intended to be given under paragraph (b), and if the evidence is given, all parties may cross-examine that person.
(d) Where part of an examination for discovery is given in evidence, the court may review the whole of that examination and if, following the review, it considers that another part of the examination is closely connected with the part given in evidence, it may direct that the other part be put in as evidence.
[am. B.C. Regs. 10/92, s. 7; 101/2001, s. 4.]
(28) Where, at the time of an examination for discovery, the person examined was an infant or a mentally incompetent person, the examination shall not be given in evidence unless the trial judge, at the time the evidence is tendered, determines that the person, at the time of the examination, was competent to give evidence.
[en. B.C. Reg. 10/92, s. 7.]
(29) A transcript of an examination for discovery may be given in evidence if certified as an accurate transcription by the official reporter without proof of the reporter's signature.
(30) A party may give in evidence at the trial part or all of the examination of a person taken under Rule 28
(a) to contradict or impeach the testimony of the deponent at trial, or
(b) where the deponent is dead or is unable to attend and testify because of age, infirmity, sickness or imprisonment or is out of the jurisdiction or his or her attendance cannot be secured by subpoena and where it is necessary in the interests of justice,
but where part only of the examination is given in evidence, the court may look at the whole of the examination and if it is of the opinion that any other part is so connected with the part given that the last mentioned part ought not to be used without the other part it may direct the other part to be put in as evidence.
(31) At the trial a party may object to the admissibility of any question and answer in a transcript, videotape or film given in evidence, although no objection was taken at the examination.
(32) If a transcription of an examination for discovery, a pre-trial examination of a witness or a deposition examination is made, the party at whose instance the examination was held shall keep the original transcript unmarked and shall have it available at the trial.
(33) At the trial of an action a party may give in evidence an answer, or part of an answer, to interrogatories, but the court may look at the whole of the answers and, where it is of the opinion that any other answer or part of an answer is so connected with an answer or part thereof given in evidence that the one ought not to be used without the other, it may direct that the other answer or part thereof be put in as evidence.
(35) A party may prepare a subpoena and serve it on any person.
(36) A subpoena need not be filed in or bear the seal of the court.
(37) A subpoena must be served and, where an affidavit is filed for the purpose of proving the service, it must state when, where, how and by whom service was effected.
(38) A person served with a subpoena is entitled to tender of the proper fees at the time of service.
(39) A party, by subpoena in Form 21, may require any person to bring to the trial
(a) any document in the person's possession or control relating to the matters in question, without the necessity of identifying the document, and
(b) any physical object in the person's possession or control which the party contemplates tendering at the trial as an exhibit, but the subpoena shall identify the object to be brought.
[am. B.C. Reg. 95/96, s. 12.]
(40) The court may order the attendance of a witness who is in the lawful custody of another person, including the custodian of a penal institution.
(41) Upon proof
(a) of the service of a subpoena on a witness who fails to attend or to remain in attendance in accordance with the requirements of the subpoena,
(b) that proper witness fees have been paid or tendered to that witness, and
(c) that the presence of that witness is material to the ends of justice,
the court, by its warrant in Form 41 directed to a sheriff or other officer of the court or to a peace officer, may cause that witness to be apprehended and forthwith brought before the court and to be detained in custody or released on terms the court may order, and the court may order that witness to pay the costs arising from his or her failure to attend or to remain in attendance.
(42) A person who has been served with a subpoena may apply to the court for an order setting aside the subpoena on the grounds that compliance with it is unnecessary or that it would work a hardship upon the person, and the court may make any order, as to postponement of the trial or otherwise, as it thinks just.
(43) On each day of a trial, a clerk of the registry shall note the time the trial commences and terminates, the name of each witness and the time the witness' evidence begins and ends.
(44) On the application of a party at or before trial, a judge or master may order that the evidence in chief of a witness may be given by affidavit.
[en. B.C. Reg. 198/2003, s. 7 (a).]
(45) The party seeking to tender evidence by affidavit must furnish a copy of the affidavit to all parties of record at least 30 days, or such lesser period as may be ordered by the court, before the application referred to in subrule (44).
[en. B.C. Reg. 198/2003, s. 7 (a).]
(45.1) If an affidavit of a witness is furnished under subrule (45), any party may, unless the court otherwise orders, require the witness to be called for cross-examination at trial, provided that that party gives to the party seeking to tender the evidence by affidavit notice of the requirement within 14 days after receiving the affidavit.
[en. B.C. Reg. 198/2003, s. 7 (a).]
(45.2) If an affidavit is furnished under subrule (45) less than 30 days before the application referred to in subrule (44), the court may extend or abridge the time referred to in subrule (45.1) within which parties may require the attendance of the witness at trial for cross-examination.
[en. B.C. Reg. 198/2003, s. 7 (a).]
(46) The deponent of an affidavit under subrule (44) may state only what he or she would be permitted to state were the evidence to be given orally.
[en. B.C. Reg. 198/2003, s. 7 (a).]
(49) Cross-examination under subrule (45.1) or (45.2) is not confined to matters contained in the affidavit.
[am. B.C. Reg. 198/2003, s. 7 (b).]
(50) Where a witness has been required to give evidence under subrule (45.1) or (45.2), and the court is of the opinion that the evidence obtained does not materially add to the information in the affidavit furnished under subrule (45), the court may order the party that required the attendance of the witness to pay, as costs, a sum the court considers appropriate.
[am. B.C. Reg. 198/2003, s. 7 (c) and (d).]
(52) At or before a trial, the court may order that evidence of a fact or document may be presented at the trial in any manner, including,
(a) by statement on oath of information and belief,
(b) by documents or entries in books,
(c) by copies of documents or entries in books, or
(d) by a specified publication which contains a statement of that fact.
(53) Addresses to the jury or the court shall be as follows:
(a) the party on whom the onus of proof lies may open his or her case before giving evidence;
(b) at the close of the case of the party who began, the opposite party, if that party announces his or her intention to give evidence, may open his or her case;
(c) at the close of all of the evidence, the party who began may address the jury or the court, and the opposite party may then address the jury or the court and the party who began may then reply and the court may allow the opposite party to be heard in response to a point raised in the reply;
(d) where a defendant claims relief against a co-defendant, that defendant may address the jury after that co-defendant;
(e) where a party is represented by counsel, the rights conferred by this rule shall be exercised by the party's counsel.
[am. B.C. Reg. 95/96, s. 18.]
(54) At or before a trial, the court may make one or both of the following orders in respect of a party's submissions to the court at the trial:
(a) all or any part of the submissions be in writing;
(b) all or any part of the submissions be of limited length.
[en. B.C. Reg. 95/96, s. 19.]
Rule 40A — Evidence of Experts
[en. B.C. Reg. 55/93, s. 14, eff. Aug. 30, 1993]
(1) This rule does not apply to summary trials under Rule 18A, except as provided in that rule.
(2) A written statement setting out the opinion of an expert is admissible at trial, without proof of the expert's signature, if a copy of the statement is furnished to every party of record at least 60 days before the statement is tendered in evidence.
(3) An expert may give oral opinion evidence if a written statement of the opinion has been delivered to every party of record at least 60 days before the expert testifies.
(5) The statement shall set out or be accompanied by a supplementary statement setting out the following:
(a) the qualifications of the expert;
(b) the facts and assumptions on which the opinion is based;
(c) the name of the person primarily responsible for the content of the statement.
(6) The assertion of qualifications of an expert is prima facie proof of them.
(7) If a statement that does not conform to subrule (5) has been delivered
(a) it is inadmissible under subrules (2) and (4), and
(b) the testimony of the witness under subrule (3) is inadmissible
unless the court otherwise orders.
(8) A party who delivers a statement shall, on delivery or when a trial date has been obtained, whichever is later, inform the expert of the trial date and that the expert may be required to attend at trial for cross-examination.
(9) A party to whom a statement has been delivered under subrule (2) and who is adverse in interest to the party delivering the statement may, by demand to that party, require the attendance of the expert at trial for cross-examination.
(10) The expert need not attend at trial unless the demand is made within a reasonable time after delivery of the statement.
(11) The convenience and other commitments of the expert shall be taken into account in determining whether the demand has been made within a reasonable time.
(12) If an expert has been required to attend for cross-examination and the court is of the opinion that the cross examination was not of assistance, the court may order the party who required the attendance of the expert to pay, as costs, a sum the court considers appropriate.
(13) A party who receives a written statement under subrule (2) or (3) shall notify the party delivering the statement of any objection to the admissibility of the evidence that the party receiving the statement intends to raise at trial.
(14) No objection under subrule (13) of which reasonable notice could have been given, but was not, shall be permitted at trial unless the court otherwise orders.
(15) At trial, the court may dispense with the requirement of delivery of a statement.
(16) Without limiting the generality of subrule (15), the court may dispense with the requirement of delivery of a statement on one or more of the following grounds:
(a) where facts have come to the knowledge of the party tendering the witness after the delivery of the statement of that witness's evidence, that could not, with due diligence, have been learned in time to be reduced to a further statement and delivered within the time required by this rule;
(b) where the non-delivery is unlikely to cause prejudice
(i) by reason of an inability to prepare for cross-examination, or
(ii) by depriving the party against whom the evidence is tendered of a reasonable opportunity to present evidence in response;
(c) where the interests of justice require it.
(1) No application for judgment is necessary except where an enactment or these rules otherwise provides.