Date: Friday, May 14, 2010
Time: 8:30 am to 1:30 pm

I am excited to be able to participate in this year’s CBA BC Branch Women Lawyers Forum Education Day event. Along with Elizabeth Watson and Stacey Handley, I will participate on a leadership panel which will be led by Marion McAdam of Fourth Wall Project Management & Consulting. Marion has worked extensively with women who are leaders already or who are aspiring to become one within their own context. In conjunction with this, she has also done a considerable amount of research on emerging and changing trends in women’s leadership.

I have been tentatively asked to speak to “defining success for yourself and making it happen.” My personal conception of what success is and my level of achievement in that regard are both rather fluid concepts, so this should be an interesting exercise.

I am particularly interested in the quotes contained in the draft discussion materials prepared by Marion McAdam, some of which I include here:

“Success has been defined by men all these years as movement high up the ladder. Women have to define success differently. It isn’t necessary to be the top person to be successful…Success is having work in your field that permits you to have a life as well. … A woman’s life is a horizontal journey rather than a vertical climb.”

“Women At Law: Lesson Learned Along the Pathways to Success” Phyllis Horn Epstein

Trying to act like men in the workplace creates a kind of dissonance. We can sense when people are not acting authentically and we don’t trust them. “Women bring a unique set of behaviours to the workplace that are needed, especially in today’s climate. Our tendencies to collaborate rather than compete, listen more than talk, and use relationships rather than muscle to influence are the very same behaviours I coach men to acquire. But it’s all about balance. Just as men can overuse their stereotypical characteristics, so can women.” (p. 62 Nice Girls Don’t Get the Corner Office)

“In order to be effective leaders, women need to be comfortable practicing law as women – in their own way. Women don’t need to practice law the same way that men do in order to be successful.”

It should be an interesting discussion!

During a proceeding, sometimes issues may arise that cannot be resolved by negotiation or by consent and must be resolved by an interlocutory application.

Usually your lawyer will begin by telling you what orders she/he would like the court to make. There are many considerations to think about before preparing your documents such as the timing and form of your application, applicable Rules and Court authority, relevant and attainable relief, venue, supporting persuasive evidence and service. No matter what your role is in getting the file ready for a chambers application, you need to consider one or all of these considerations so that the matter can be before the court in an expeditious and cost efficient manner.

First, you must decide if a Notice of Motion or a Petition will bring the application to the Court. Either document notifies the court and other parties of the relief being sought. If you already have an existing action, you will prepare a Notice of Motion in Form 55. Rule 10(1) sets out the types of matters that can be started by a Petition, but generally if you are seeking a final order with undisputed facts, you could consider the use of a Petition in Form 3.

Once the appropriate relief is determined by discussing this with the lawyer or reviewing the file, is to be listed in numbered paragraphs in the body of your motion. The relief should be listed in order of importance or urgency with substantive issues first, followed by procedural ones.

Take the time to draft your motion correctly, as you can later use the same clauses in your draft order. You can ask for as many claims of relief as you want, but the court will not grant relief that is not included in your materials. If the terms of relief in the motion are particularly long or complex, you can attach a draft order to your motion specifying that the relief sought is “in the form attached”.

It is important to consider whether the court has authority under BC Laws to grant the relief. For example, the court has no authority under the Federal Income Tax Act to order the CCRA to produce a party’s income tax return. Careful consideration must be used when corporate entities are named, as you must ascertain their proper legal name. The court can generally only make an order against a “person” within British Columbia.

Spend some time reading the Rules of Court under which you are bringing the application. The relevant Rules/enactments must be specified in the motion because if they are not, the court will not have the authority to grant the additional relief. If you cannot find a specific rule or enactment that applies to your terms, you must rely on the inherent jurisdiction of the court.

You also must consider whether a judge or a master can hear the application. This is also set out in the preamble of your motion.

You need to determine if your application can be brought without notice or if notice is required and, if so, to which parties. Sometimes short leave is required in urgent applications that require little or no notice to other parties. If notice is required, you need to think about which parties of record, counsel and non-parties must be served. You must serve any party who may be affected by the relief sought. All parties who require service must be listed on the front page of the motion. If a party is not served with the application, you run a risk of having the hearing dismissed or adjourned by the court.

You can file your motion in any registry within the same judicial district without the consent of the respondents. The Vancouver/Westminster Supreme Court Judicial District includes the registries located in Vancouver, New Westminster, Powell River and Chilliwack, so you can consider which registry will be most convenient for all parties.

You must also list the evidence that will be considered at the hearing in the motion. The application must be supported by at least one affidavit. Consider who would be the best person to swear an affidavit to support the relief. You must list the affidavits and any other material (such as pleadings) in numbered paragraphs in the motion. An affidavit previously made and filed in the proceeding may be used in support of a new notice of motion (Rule 44(4)). It is a good idea to list them, together with the new affidavits, in your motion (Rule 44(5)).

Consider a realistic time estimate for the court to hear your case and the case of anyone else who intends to reply. Include some extra time for the judge or master to ask any questions and give a ruling. If your time estimate is over 30 minutes, you will need to prepare additional documents and consider extra deadlines and you must first obtain a hearing date directly from the court.

Finally, you must consider the timing of your application. If there is a specific date you need to have the order granted by, you need to calculate in advance the date your application materials should be served on the parties and also allow for the appropriate time for the respondents to deliver their reply.

Once you consider the above issues, you will be able to prepare a motion with ease.

In my last blog, which introduced the coming changes to discovery practice under the new Supreme Court Civil Rules, my focus was document production. In Karen Redmond’s recent blog, she discussed the possible negative consequences of new restrictions to be placed on the use of written interrogatories.

The other key tool in the discovery process is the oral examination, which is my focus today.

According to the Civil Justice Reform Working Group (CJRWG), feedback from litigants and other members of the public brought to light that our civil justice system was perceived as “too expensive, too complex and too slow.” The CJRWG concluded that excessive oral examinations contribute to these problems, primarily because there are no time limits imposed on the examiner. Theoretically, a person could be subjected to several days of questioning, with much of that ‘evidence’ never to see the light of day at trial. Not surprisingly then, a lengthy oral examination process can add dramatically to the cost of litigation without necessarily advancing resolution of the dispute. To curb this, under new Rule 7-2 the total duration that a person can be examined is limited to seven hours, unless that person consents. But in the case of someone who is unresponsive, evasive, or gives lengthy, irrelevant answers ( which in my experience happens more often than you might expect), the examiner may have no option but to obtain a court order to extend the time in which to question that person. That in itself would compound costs and delay the process.

A good move in my view, again with the objective of limiting the duration of the oral examination, Rules 7-2 (23) and (24) formalize a common practice that exists now. Quite often the person examined may not know off hand the answers to some of the questions that arise in the examination, such as names and addresses, or have documents in hand that have relevance to the case, but can certainly gather that information or documentation given the time to do so. Instead of adjourning and rescheduling the examination for continuation at a later date, the examiner can request, by letter, that certain questions be answered, in turn, by letter. Those questions and their responses are deemed to be as if given under oath in the examination itself.

In the weeks to come, I will explore key aspects of the new Supreme Court Civil and Family Rules that will come into effect in British Columbia on July 1, 2010. The current rules governing the discovery process, including the production of documents and oral examinations, were among those targeted for revision.

Existing Rule 26 outlines the process by which a party can discover and inspect documents. A party can prepare a Demand for Discovery of Documents (often combined with a Notice to Produce) that, once delivered to another party, starts the clock ticking, requiring the recipient to prepare and deliver a list of documents within 21 days (in practice a strict deadline is often neither observed nor enforced). One difference found in the new Civil Rules, which falls within Part 7, “Procedures for Ascertaining Facts,” is the provision that each party must prepare and serve on all other parties of record a list within 35 days at the close of the pleading period, thereby eliminating the need for a formal demand.

Of greater significance, the new rule attempts to narrow the scope of document production by stipulating that the list must set out all documents that can prove or disprove a material fact at trial and all others that the party intends to use at trial. Compare this to our current rule which requires a party to list the documents “relating to every matter in question in the action.” How can relevance be assessed in this context? In practice, the test for discovery has been the 19th century Peruvian Guano case (The Compagnie Financiere et Commerciale du Pacifique v. The Peruvian Guano Co. (1882), 11 Q.B.D. 55). Under that test, the scope of possibly relevant documents is so broad that what can or should be disclosed is potentially limitless. The new Civil Rule 7-1 reflects the conclusion of the Civil Justice Reform Working Group that adherence to that test is no longer viable given the greater complexity of modern litigation and the prevalence and proliferation of electronic data. In the absence of a new standard for discovery, existing practices have become a barrier to resolving disputes in a cost-effective and timely manner. Yet only time will tell whether the intent of the new rule will effect tangible change to current litigation practices.

The broad scope given to the question of relevance has also impacted practices governing oral discovery. Next time, I will look at how the new rules address the use of interrogatories and examinations for discovery.

You are not alone if you panic when you have to bring on a chambers application for short leave notice under Rule 3(3.1) of the Rules of Court.

A short leave application sounds simple but it is not. It is an application made either without notice to the opposing party or when the parties have not reduced the usual time limits set out in Rule 51A (11 days if under Rule 18A or 8 days otherwise). The applicant has the onus to apply to the Court and explain why the usual time limits are not appropriate and why the nature of the application is urgent.

There are many reasons for urgency, such as an adjournment of a trial, production of various records, an independent medical examination that is scheduled on short notice, restraining orders or injunctions. One counsel may need to get the time limits reduced in order to bring on a cross application that has already been set down.

The materials to be prepared for a short leave application are:

 The Notice of Motion for the original relief you are seeking;
 An Affidavit in support of the original relief;
 An Affidavit in support of the short leave application (if not included in the first Affidavit); and
 Short Leave Requisition requiring that leave be granted to reduce the time requirements.

Once these materials are prepared, counsel must take the documents to the Court registry for filing. Short leave applications are generally placed on the chambers list on the same day as they are filed in the court registry.

It is a good practice to notify opposing counsel of your intention to seek short leave and provide the materials to them before attending in Court. Also, try to obtain opposing counsel’s available dates for the hearing of the main application and their position with respect to any of the proposed new time limits set out on the Short Leave Requisition.

If you seek short leave without notice to opposing counsel, the Court will want to know what attempts you have made to contact the Respondent(s) and why no notice was given. These items should be set out in your Affidavit supporting the short leave application.

The Judge/Master or Registrar will make a decision on the facts whether urgency allows an application to be heard in chambers on short notice. If the short leave application is granted, the Court will then fix a date and time for the main application to be heard. The Court will also complete and sign the Order by Endorsement on the Short Leave Requisition. The Order sets out conditions and new time limits for delivery of the Notice of Motion, Affidavit(s), Response(s), reply Affidavits, Outlines and when the Chambers Record should be filed.

When short leave has been granted, the time limits set out in Rules 10, 44 and 51A do not apply. In addition, Rule 3(3.1)(iv) also states that the Court can “give such other directions as may be appropriate”.

Finally, you must prepare additional materials including:

• A Notice of Hearing;
• The original Short Leave Requisition; and
• the usual contents in the Chambers Record.

Once all the filed documents come back to the office, it is a priority to ensure that all the chambers materials, including the Order by Endorsement, are delivered according to the new time limits. Make sure that you retain proof of service of the documents upon all parties.

A good idea is to place the service confirmation documents in a separate tab at the back of the counsel’s chambers binder for their easy reference. When counsel attends for the hearing of the main application, they will need to advise the Court that all delivery conditions set out in the Order of Endorsement have been met.

Once you have completed one short leave application by following the above steps, any future urgent applications should proceed without any surprises.