Practice Material - Civil - Law Society of British Columbia

1 CAUTION The Professional Legal Training Course provides the Practice Material to users as an aid to developing entry level competence, with the understanding that neither the contributors nor the Professional Legal Training Course are providing legal or other professional advice. Practice Material users must exercise their professional judgment about the accuracy, utility and applicability of the Material . In addition, the users must refer to the relevant legislation, case law, administrative guidelines, rules, and other primary sources. Forms and precedents are provided throughout the Practice Material . The users also must consider carefully their applicability to the client s circumstances and their consistency with the client s instructions. The Law Society of British Columbia and the Professional Legal Training Course can accept no responsibility for any errors or omissions in the Practice Material and expressly disclaim such responsibility.

2 A requirement for admission to the bar of British Columbia , the Professional Legal Training Course is supported by grants from the Law Society of British Columbia and the Law Foundation of British Columbia . 2022 The Law Society of British Columbia . See > Terms of use. Professional Legal Training Course 2022 Practice Material Civil Recent Contributors: Trevor Bant Timothy H. Pettit Kelsey Croft Julia Roos Brian Duong Gurminder Sandhu Ellen Hong Adrienne Staley Iman Hosseini Kent Douglas Wiebe Nicholas Peterson Practice Material Editors: Susan MacFarlane, Katie McConchie February 2022 Civil CONTENTS PRELIMINARY MATTERS [ ] Introduction to These Materials1 [ ] Effective Advocacy1 [ ] Meeting the Client1 Covered2 [ ] The Retainer2 Instructions3 Off the Record3 [ ] Limitation Periods3 [ ] Notice/Conditions Precedent5 [ ] Investigating the Facts5 [ ] Jurisdiction6 Jurisdiction Generally6 Court6 Court ( Civil )

3 Small Claims Court6 Court7 to File7 [ ] Parties to a Civil Case in Supreme Court7 Nations7 and Partnerships7 Under Legal Disability7 in Status8 Parties8 [ ] How to Start a Proceeding in Supreme Court9 [ ] Pleadings in Supreme Court9 Purpose of Pleadings9 Drafting Guidelines11 the Facts12 the Relief Sought12 ding the Law13 [ ] Service Supreme Court13 or Personal Service SCCR 4-2, 4-313 Methods of Service SCCR 4-414 Outside British Columbia SCCR 4-514 of Service and Relief SCCR 4-6, 4-714 Civil (ii) [ ] Responding to a Civil Claim in Supreme Court 14 1. Submitting to the Court s Jurisdiction 14 2. Response to Civil Claim and Counterclaim 15 [ ] Clarifying the Issues 15 1. Reply SCCR 3-6 15 2. Particulars SCCR 3-7(18) to (24) 15 3. Applications to Strike Out Pleadings SCCR 9-5 16 4.

4 Amending Pleadings and Changing Parties SCCR 6-1 and SCCR 6-2 16 5. Third Party Proceedings SCCR 3-5 17 [ ] Case Planning Conference 18 1. General 18 2. Content 18 3. Orders 18 [ ] Setting Action Down for Trial in Supreme Court 19 1. General 19 2. Jury or Judge SCCR 12-6 20 [ ] Class Proceedings 21 [ ] Fast Track Litigation 21 [ ] Petition Proceedings 22 [ ] Requisition Proceedings 23 [ ] Communications With the Supreme Court 23 [ ] Small Claims Court Procedures 23 [ ] Tribunals 25 1. Civil Resolution Tribunal 25 2. Other Tribunals 26 [ ] Further Reading 26 1. Supreme Court Civil Rules Annotations 26 2. Practice in Supreme Court 26 3. Advocacy 26 4. Small Claims Court 26 5. Civil Resolution Tribunal 26 6. Federal Court 26 DISCOVERY [ ] General 27 [ ] Discovery of Documents 27 1.

5 Requirements Under the Supreme Court Civil Rules 27 2. Claims of Privilege 30 3. Consequences of Failure to Properly List and Disclose Documents 31 [ ] Discovery of Documents and Duty of Counsel 31 [ ] Examination for Discovery 32 1. Who May Be Examined 33 2. Where Examination Takes Place 33 3. Arranging the Examination 34 4. Who May Attend 34 Civil (iii) of Examination34 is in Charge of the Record35 to be Covered35 of Questioning35 the Client37 the Examination37 Bill of Discovery37 [ ] Interrogatories38 [ ] Medical Examination38 [ ] Witnesses39 Lists39 Examination of Witnesses39 [ ] Admissions39 [ ] Discovery in Fast Track Litigation40 CHAMBERS Practice [ ] Matters Heard in Chambers41 to Apply41 [ ] Procedures on Applications in Chambers42 Without an Oral Hearing42 an Application to be Heard in Chambers42 Time46 Leave Applications and Applications to Extend Time Requirements46 Matters Down in Chambers46 Day of the Hearing47 and Electronic Filing48 Trial48 Proceedings48 [ ]

6 Affidavit Drafting48 and Use of Affidavits48 or Affirming49 an Affidavit May Be Sworn49 of an Affidavit49 Deponent49 and Signature53 of Defects in an Affidavit54 Affidavits54 , Erasures and Reswearing56 as a Notary or Commissioner56 and Style56 Civil (iv) 14. Cross-Examination on Affidavits 57 15. Common Errors in Affidavits 57 [ ] Chambers Advocacy: View From the Bench 58 1. Introductions 59 2. The Opening 59 3. Organization and Preparation 60 4. Oral Argument, Relevance, and Brevity 61 5. Reasonable Position 62 6. Candour and Professionalism 62 [ ] Drafting and Entering Orders 63 1. Approval as to Form and Clarifying Terms 63 2. Drafting the Order 63 3. Forms and Precedents 63 4. Format 63 5. Entering the Order 65 6. Amending an Entered Order 65 7.

7 Alternatives to Formal Orders 65 8. Identifying the Sender 66 AFFIDAVIT PRECEDENTS NOT AVAILABLE IN ONLINE VERSION Precedent 1 General Affidavit 67 Precedent 2 Affidavit for Petition Proceedings 68 Precedent 3 Identification of Affiant/Deponent 69 Precedent 4 Deposing on Information and Belief 70 Precedent 5 Referring to Exhibits 71 Precedent 6 Endorsement on Exhibits 71 Precedent 7 Jurat 72 DISPOSITION OF THE ACTION BEFORE TRIAL [ ] General 73 [ ] Default Judgment 73 [ ] Non-Compliance with Rules 74 [ ] Summary Judgment 74 [ ] Summary Trial 75 [ ] Summary Trial and Simplified Trial in Small Claims Court 77 1. Simplified Trial Small Claims Rule 77 2. Summary Trial Small Claims Rule 77 [ ] Negotiation and Settlement 77 1. Why Settle? 77 2. Preparation for Settlement 78 3.

8 Settlement Conferences 78 4. When to Settle 78 5. Confirmation and Release Letters 79 [ ] Formal Offers to Settle 79 1. Offers to Settle in Supreme Court SCCR 9-1 79 2. Offers to Settle in Small Claims Small Claims Rule 80 Civil (v) [ ] Mediation80 to Mediate80 Claims Mediation 81 PREPARATION FOR TRIAL [ ] Introduction82 [ ] Organizing the Case for Trial Documents and Witnesses82 the Case File82 and Preparing Documents for Trial82 Lay Witnesses83 the Expert Witness83 Brief84 Management Conference84 Record and Trial Certificate85 [ ] An Alternate Strategy85 With the Closing Argument85 the Argument With Evidence85 Binders and Documents86 Your Opening Last86 [ ] Planning and Presenting a Civil Case86 [ ] Preparing Court Briefs87 Binder87 Book87 [ ] Trial Before Judge Alone88 Remarks89 of Discovery Evidence89 Effect of the Evidence90 Terminology90 Issues90 Closing Argument90 and Text Authority91 [ ]

9 Trial Before a Judge and Jury91 Brief91 Book91 Remarks to the Jury91 of Discovery Evidence91 Questions91 Charge Checklist91 Submission92 [ ] Conclusion92 APPENDICES NOT AVAILABLE IN ONLINE VERSION Appendix 1 Sample Pleadings Brief Contents 92 Appendix 2 Outline of Trial Book 92 Civil (vi) TRIAL [ ] Resources on Trials 93 [ ] Jury Trial Selecting the Jury 93 [ ] Opening 93 [ ] Direct Examination 93 [ ] Cross-Examination 94 [ ] Common Methods of Proof at Trial 94 1. Knowing How to Prove a Fact 94 2. The Methods 95 3. Summary 98 [ ] Objections 98 [ ] Exhibits 99 [ ] Order of Witnesses 99 [ ] Re-Examination 99 [ ] Reply 99 [ ] Judgments and Orders 99 COSTS [ ] Entitlement to Costs 100 1. General Principles 100 2. Specific Principles 100 3. Orders 102 [ ] Ordinary Costs 103 1.

10 Scale of Costs 103 2. Assessment by the Registrar 104 [ ] Increased Costs 105 [ ] Special Costs 105 [ ] Interest on Costs and Disbursements 106 INTEREST [ ] Court Order Interest 107 1. Introduction 107 2. Prejudgment Interest 107 3. Postjudgment Interest 108 4. Default Judgments 108 Civil (vii) COLLECTIONS [ ] Law and Practice109 of Materials109 the Law109 Change: Enforcement of Money Judgments Act109 Rules109 [ ] Source Material109 [ ] Opening a New File110 Client Expectations110 Required111 of the Action111 Fees112 Payment112 [ ] Initiating Proceedings113 of Registry115 Track Litigation SCCR 15-1116 the Action117 of Process117 [ ] Proceeding to Judgment117 Judgment117 for Summary Judgment118 Currency119 Interest119 [ ] Registration and Actions on Foreign Judgments120 [ ] Prejudgment Execution121 Injunctions121 Garnishment123 [ ] Acting for Debtors Before Judgment127 Concerns127 [ ] Postjudgment Execution128 Examinations128 ishment130 Against Real Property133 Against Personal Property135 Execution136 [ ] Execution Priorities137 [ ]