Summary Trial Review – BCSC Rule 9-7 (11) / Preliminary Suitability Hearing

There is alot to learn about Rule 9-7 (11).  Let’s begin!

Rule 9-7

(11)        On an application heard before or at the same time as the hearing of a summary trial application, the court may

(a) adjourn the summary trial application, or

(b) dismiss the summary trial application on the ground that

(i)  the issues raised by the summary trial application are not suitable for disposition under this rule, or

(ii)  the summary trial application will not assist the efficient resolution of the proceeding.

This rule provides the Judge a broad discretion to adjourn or dismiss a Rule 9-7 hearing.

Where a judge is unable to find the facts necessary to decide the issues of fact or law or if it would be unjust to decide the issues under Rule 9-7, than a dismissal will be ordered. In other words, where there is a clear conflict on the facts, and the evidence does not resolve the dispute, than the matter will likely proceed to a conventional trial.

In applying to Court under Rule 9-7 (11) to oppose suitability, the Court in Eisler v. GWR Resources Inc., 2018 BCSC 162 (CanLII) states:

[56] The purpose of a preliminary application under R. 9-7(11) is to spare the court and the parties the time and expense of preparing for and hearing a summary trial that is clearly inappropriate. In this regard, the learned authors of Fraser, Horn and Griffin, Conduct of Civil Litigation in British Columbia (2nd Ed.) state at 29-10 as follows:

[57] It seems clear now that a party may bring a preliminary application as of right to determine the suitability of a case for summary disposition. [Rule 9-7(11)] enables a respondent to address the issue of suitability in advance of the summary trial application without having to file material addressing the merits of the case. It removes the risk that, having chosen not to file such materials, judgment may be given against the respondent upon the hearing of the summary trial application.

[58] A key element of a R. 9-7(11) application is the recognition that some matters are simply not appropriate for summary determination on affidavits and in such cases, it would be a waste of time and resources to require the parties to prepare materials on the merits of a proposed summary trial when it is clear that the dispute cannot be resolved summarily.

The role of Rule 9-7(11) was discussed in Cirius Messaging Inc. v. Epstein Enterprises Inc., 2017 BCSC 1751 (CanLII) and is definitely worth summarizing.

This decision outlines that while an Order under Rule 9-7(11) to dismiss a summary trial application may fail, that does not preclude the summary trial judge from determining at the summary trial hearing that the application before the Court is not suitable for disposition under Rule 9-7 (15).

This makes good sense – but let’s summarize the key points raised by the Court:

  1. A party has the right to bring on a preliminary hearing under Rule 9-7(11) to determine the suitability of the case for summary disposition;
  2. Such a party has a very high standard to meet to establish that a case is not suitable for summary disposition;
  3. This preliminary hearing to object to suitability under Rule 9-7(11) should only be made in cases where a summary trial is “clearly” inappropriate due to the heavy onus that lies with the applicant;
  4. The reason for this approach is that a Rule 9-7 (11) is made without the full evidence and materials that would be available under a summary trial hearing, and therefore, these missing facts and/or materials may shed further light on suitability, which is why a Judge at a Rule 9-7 hearing is not bound by a prior Order made under Rule 9-7 (11);
  5. Further reasons for this approach is that a Rule 9-7 (11) hearing can be heard by a Master;
  6. Furthermore, a Rule 9-7(15) hearing can only be heard by a Judge (Practice Direction 50); and
  7. The Court also states that it is not clear that Rule 9-7 (11) enables a Judge to dismiss a summary trial application because it is not “suitable” for summary disposition as it only offers two options. First option is to dismiss the application.  Second option is to dismiss the application either for a) that the issues raised are “not suitable for disposition” or b) on the basis that the application will not assist the “efficient resolution of the proceeding.”

The Court therefore states:

“Rule 9-7 (11) serves a useful winnowing function.  It prevents such applications from proceeding in circumstances where the difficulties associated with the application are readily apparent.”

In Kemp v. Vancouver Coastal Health Authority, 2015 BCSC 1319 (CanLii) speaks to the discretionary powers that exist:

“McEachern C.J.B.C., in Mariotto v. Waterman (1996), 1996 CanLII 2741 (BC CA), 32 B.C.L.R. (3d) 125 at 126-127 (C.A.) “a judge should be “careful but courageous” in assisting the parties to resolve an action under this rule if it can be done without injustice. When this injustice can be avoided, it is always hoped that judges will give judgment, although there are cases for which it would be unsafe to do so.”

 Also, in Crest Realty Westside Ltd. v. W&W Parker Enterprises Ltd., 2015 BCCA 447 (CanLII), the Court of Appeal stated:

“This Court (Court of Appeal) will not interfere unless this discretion was not exercised judicially or was exercised on a wrong principle: Salem v. Priority Building Services Ltd., 2005 BCCA 617 (CanLII) at para. 19. Further, as Madam Justice Karakatsanis observed in Hryniak v. Mauldin, 2014 SCC 7 (CanLII), [2014] 1 S.C.R. 87 at para. 5, summary judgment rules must be interpreted broadly, favouring proportionality and the affordable, timely, and just adjudication of claims.

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