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Supreme Court Act *a superior court having original jurisdiction in ALL cases (s.9)
The line that separated
Canada's common law and civil law in Quebec no longer exist, per
summary judgment trial Rule18A implemented by Justices
such as Madam Chief Justice Beverly MCLachlin and Mr. Justice McEarchen,
amongst others.
Rule 18A within the Supreme Court, is like an arbitration
hearing, the only difference is the hearing are held in
public. What is referred to in British Columbia and other parts
of the country, as Rule 18A, in the United States, it is referred
as what it is, an arbitrary hearing, within the Supreme Court.
The definition of Rule 18A as per the Canadian Legal Dictionary
A Rule of the Supreme Court of British Columbia providing for the
SUMMARY TRIAL [--kangaroo
court--]
on affidavits, of civil actions where a judge is able FAIRLY
to decide the case or an issue in the case, usually without hearing
witnesses. This process is available only in British Columbia. Fairly
is the operative word in this definition
Rule18A allows for the parties in a proceeding to deal with one
or all of the issues in an action without undergoing all the procedures
and complexities involved in a conventional trial. Rule18A was brought
into force in1986 to meet the needs of the day: a rising volume
of litigation with concomitant increases in costs and delay. A SUMARY
trial is now accepted as an essential tool in the administration
of justice. Surveys conducted in Vancouver as early as 1991 indicated
that close to the same number of actions was disposed of by way
of Rule18A as were disposed of by a conventional trial (Orangeville
Raceway Ltd. v. Wood Gundy Inc. (1995), 6 B.C.L.R. (3d) 391 (C.A.)).
A Notice of Motion for use under Rule65 (Vancouver Chambers Pilot
Project) is set out at FP 45.
On a Rule18A application, the Court must grant judgment unless:
(1) the court is unable on the whole of the evidence to find the
facts necessary to decide the issues; or
(2) it would be unjust to decide the issues on the application (Rule18A
(11)).
A party may apply, on or before the hearing of the Rule18A application,
to dismiss the Rule18A application on the grounds that the issues
are not suitable for a summary trial or that the application will
not assist the efficient resolution of the proceeding (Rule18A (8)).
A sample argument is set out at FP51.
When determining whether it would be unjust or unsuitable to decide
the issues on a Rule18A application, the court should take into
account:
(1) the amount involved;(2) the complexity of the matter in issue;(3)
the urgency of the matter;
(4) the likelihood of prejudice from delay;(5) the cost of proceeding
to a conventional trial in relation to the amount involved; (6)
the course of the proceedings; and (7) any other matters which arise
for consideration.
See Canadian Imperial Bank of Commerce v. Charbonnages de France
International S.A. (1994), 95 B.C.L.R. (2d) 104 (C.A.) at para.
101.
A full discussion of the judicial interpretation of Rule18A (11)
is beyond the scope of this chapter. In general, judgment will not
be given if there are serious issues of credibility of the deponents
and there is no other evidence supporting one position over the
other. Similarly, judgment will not be given if there are violent
and vital conflicts on the evidence.
Under Rule18A (13), the court may make a number of directions if
it is unable to grant judgment. Similarly, under Rule18A (10), the
court may give preliminary directions, including cross-examination
on affidavits.
Jury Notices [12.12]
The filing of a jury notice does not bar a summary trial application
(Rule18A (16); Baigent v. Gruber, [1995] B.C.J. No. 2841 (QL) (S.C.)).
However, it is a factor to take into account in deciding whether
it would be just to decide the issues summarily (Otto v. Holburn,
[1997] Civ. L.D. 583 (B.C.S.C.); Hagerty v. Connor (1998), 56 B.C.L.R.
(3d) 104 (S.C.)). Rule18A is not an appropriate Rule for LIBEL/SLANDER.
The Undemocratic part of Rule 18A, as per a well known pro se, who
was the first to challenge Rule 18A in respect to a fair and just
hearing before a Jury of his peers v. a Summary Trial before a Judge;
According to the Supreme Court of BC, the purpose of Rule 18 is
to provide a procedure which allows for “a less expensive
and more expeditious resolution of some case.” A view of the
meaning of ADMINISTRATIVE
CONVENIENCE with respect to trial procedures could
entail “a less expensive... resolution of some cases.”
That being the case the two propositions is inconsistent with each
other. In fact, Rule 18A which is a final order, leads to more expense
as most litigants end up appealing the Judge's decision, which leads
to delays, which means Justice denied. Further, Rule 18A contains
the means to deny litigants their prima facie right to be heard
by a jury. This places the court in a position where justice will
not always be seen to be done.
With respect to the right to be heard, Rinfret CJC, in Alliance
des Professeurs Catholiques de Montreal v. Labour Relations Board
(1953) said:
“The principle that no one should be condemned or deprived
of his rights without being heard, and above all without having
received notice that his rights would be put at stake, is of a universal
equity and it is not the silence of the law that should be invoked
in order to deprive any one of it. In my opinion, nothing less would
be necessary than an express declaration of the Legislature, in
order to put aside this requirement which applies to all Courts
and to all the bodies called upon to render a decision that might
have the effect of annulling a right possessed by an individual”.
Under Rule 18A a party has no right of subpoena, almost
the same as a tribunal like the arbitration proceedings.
JURISDICTION
An "APPEARANCE"
is a document that signifies an INTENTION TO DEFEND in
the matter. Generally speaking, it also signifies that the
defendant has ACCEPTED (attorned to) the JURISDICTION
OF THE COURT and waives any objections regarding the originating
process.
A defendant who wishes to argue that the originating process is
invalid or has expired, or that its purported service was invalid,
should REFRAIN FROM ENTERING AN APPEARANCE and
instead bring an application to the court under Rule 14(6) for a
declaration to that effect.
14 (6) Where a PERSON served with an originating process has not
entered an appearance and alleges that
(a) the process is invalid or has expired,
(b) the purported service of the process was invalid,
or
whether or not the person has entered an appearance, alleges that
(c) the COURT HAS NO JURISDICTION OVER HIM OR HER IN THE
PROCEEDINGS SHOULD DECLINE JURISDICTION,
the PERSON may apply to the court for a declaration to that effect.
The test to be applied comes from conflict of laws principles and
is whether there is a real and substantial connection between the
court and either the defendant or the subject matter of the litigation
(jurisdiction simpliciter).
Once jurisdiction is established, the court may decline jurisdiction
if there is clearly a more convenient or appropriate forum. - Jordan
v. Schatz (2000) BCCA
Rule 11 Service and Delivery of Documents
Rule 11 provides specific directions as to the manner in which such
documents must be served on particular parties. For example, an
individual MUST BE SERVED PERSONALLY: Rule 11(2)(a).
11(3) Where a writ of summons or petition has not been served on
a person, but the person files an appearance [intent
to defend] or attends at the trial or hearing, the writ
or petition shall be deemed to have been served on that person on
the date the person files or attends.
Require proof of service. Don’t need a process server, anyone
can do it. A person’s acceptance or signature is not required,
nor is physical contact. Only need to give notice. Company search
will turn up directors name. Can serve it to them. If they have
a lawyer, can send it to the companies/person’s lawyer. Serve
guardian. serve administrator/executor of an estate
Rule 12
Substituted Service
If service of a document in accordance with Rule 11 is not strictly
possible or convenient, the rules allow for two methods of substituted
service:
(i) without a prior court order 12(4)
(ii) with a court order 12(1)
Without a prior court order
12(4) if an attempt to serve a person personally has been "unsuccessful",
the document may be served without a prior court order by LEAVING
IT WITH AN ADULT [NOT SERVING the property!] at the person's
place of residence and subsequently mailing the document to that
residence by ordinary mail.
Alternatively
12(7) the document can be served by mailing it by ordinary
or registered mail to the person's residential, business
or postal address, in which case an ACKNOWLEGMENT OF RECEIPT is
REQUIRED
Limitations
12(10) Neither of these methods can be used for matters such as
family law matters, subpoenas, appointments to examine a person
in aid of execution, or documents related to contempt proceedings.
Expiry and Renewal
Rule 9 Renewal of Writ
Renewal of original writ of summons
(1) No original writ of summons shall be in force for more
than 12 months, but where a defendant named in the writ
has not been served, the court, on the application of the plaintiff
made before or after the expiration of the 12 months, may order
that the original writ of summons be renewed for a period of not
more than 12 months which, unless otherwise ordered, shall commence
on the date of the order.
Renewal of renewed writ of summons
(2) If a renewed writ of summons has not been served on a defendant
named in the writ, the court, on the application of the plaintiff
made during the currency of the renewed writ, may order the renewal
of the writ for a further period of not more than 12 months
which, unless otherwise ordered, shall commence on the
date of the order.
Trial by Jury:
39(24) Generally, civil trials are heard by the court sitting without
a jury:
39(25) lays out when trial without a jury is mandatory. These are
usually proceedings where the court must exercise its equitable
jurisdiction, including: the administration of an estate,
the execution of trusts, and the custody or guardianship of an infant
or the care of an infant's estate.