The Courts have commented that many inadequate Notices of Application have been presented in chambers.  Careful drafting is required in completing the “Legal Basis” as this section is often found to provide inadequate analysis.

This post is a reminder that careful attention is required when preparing your application materials.  It will also outline a few good points on completing the “Legal Basis” section on any Notice of Application, including Responses and provides a link to a paper on Preparing Chambers’ Applications in BC.

A recent decision referenced as Nelson and District Credit Union v Fiserv Solutions of Canada, Inc., 2017 BCSC 1139 (CanLII) reminds us all of the importance of taking the time to carefully draft your application materials, specifically the Legal Basis, in addition to the Response, and also enumerates a number of other decisions that have identified the importance of preparing adequate, detailed materials for chambers.

A quick summary is enumerated:

Notice of Application – The Standard Expected by the Court:

1.       the rule, enactment or other jurisdictional authority relied on for the orders sought;

2.       applicant’s legal argument that supports the orders sought should be clearly set out in the Legal Basis;

3.       This includes a comprehensive legal analysis (more than 2 paragraphs);

4.       Authorities should be outlined in the Application Records (Rule 8(1)(4);

5.       Factual basis must also be detailed and complete;

6.       opposing party and the court must be provided with full disclosure in the Notice of Application of the argument to be made in chambers;

7.       Careful thought as to the necessary content is required in completing the Notice of Application and this task falls under the responsibility of counsel;

8.       Do not submit an application that simply outlines the Rules that support the argument being made or the Order being sought;

9.       common law authorities can and should be included as well as a brief legal analysis;

a.       Such an analysis is particularly helpful given that parties are not able to present a separate written argument in civil chambers unless the application is scheduled to take two hours or more of court time.

10.   a comprehensive legal analysis can easily be included in a 10-page notice of application;

a.       By providing an effective analysis of the legal basis for (or against) making the order, the parties may well be able to resolve the application without attending court.

By not complying with these requirements:

1.       judges and masters are placed in a very difficult position;

2.       inadequate motion materials, which fail to comply with the Rules, are incompatible with the efficient and timely disposition of applications;

3.       defective application materials is to be discouraged;

4.       If a notice of application does not contain the information now required under the Rules, the party filing it has failed to give proper notice – to the opposing party and to the court – of the nature of the application; and

5.       Written arguments are only for applications that will take more than 2 hours for hearing;

Quote from this decision:

“I wish to comment on the notice of application, specifically, the “Legal Basis” section. On any application, the applicant’s legal argument that supports the orders sought should be clearly set out in the Legal Basis. Unfortunately, the Legal Basis in this case contains no comprehensive legal analysis and consists only of two skimpy paragraphs:

25.    NDCU relies on Rules 7-1(1), (10), (11), and 7-2(16), (18) and (25).
26.    The documents and answers sought are of core relevance to the disputed facts in the litigation. They are all expressly pleaded (as indicated by the references to the pleadings in Part 1, above). The defendant has refused to provide them.

No authorities were cited in the Legal Basis section, although counsel for NDCU did tender a book containing twenty authorities at the hearing of the application, not all of which were referred to in oral submissions.

Several judges and masters have commented on the all-too-common inadequacy of application materials. In Zecher v. Josh, 2011 BCSC 311 (CanLII), Master Bouck was faced with a Legal Basis in a notice of application that was wholly inadequate. Master Bouck said:

[29] The defendants’ application for production of wage loss particulars and a calculation of any wage loss claim was dismissed due to the inadequacy of the material and argument presented. Both the factual and legal basis for the application are wanting.

[30] Form 32 of the SCCR [Supreme Court Civil Rules] lends itself to providing both the opposing party and the court with full disclosure of the argument to be made in chambers. Parties should put in as much thought to the necessary content of that Form as is done when preparing the supporting affidavits. When a party is represented, responsibility for that content lies with counsel.

 [31] No doubt the Lieutenant Governor-in-Council intended Part 3 of Form 32 to contain more than a cursory listing of the Rules that might support the particular application. For example, common law authorities can and should be included as well as a brief legal analysis. Such an analysis is particularly helpful given that parties are not able to present a separate written argument in civil chambers unless the application is scheduled to take two hours or more of court time.

[32]      In my experience and observation, a comprehensive legal analysis can easily be included in a 10-page notice of application. As well, Rule 8-1 (4) allows the parties to include a list of authorities in the application record.

[33]      By providing an effective analysis of the legal basis for (or against) making the order, the parties may well be able to resolve the application without attending court.

[34]      As an aside, I should note that the sparse content of this particular notice of application is unfortunately not unique; many such inadequate notices have been presented in chambers. As well, this particular document is not reflective of the generally good quality of work emanating from the office of defence counsel.

Madam Justice Adair expressed the problem this way in Dupre v. Patterson, 2013 BCSC 1561 (CanLII) at para. 55:

When counsel come to court with inadequate materials, which fail to comply with the Rules, judges and masters are placed in a very difficult position. What often happens is that, to avoid the inconvenience and expense of an adjournment, matters proceed despite the inadequate materials, and judges and masters do the best they can in the circumstances. But inadequate motion materials, which fail to comply with the Rules, are incompatible with the efficient and timely disposition of applications.

In Crossan v. Crossan, 2016 BCSC 2102 (CanLII), Mr. Justice Skolrood was faced with similarly inadequate materials and said at para. 26:

The practice of coming to court with defective application materials is to be discouraged.

Because the application before me was scheduled for more than two hours, the parties were each entitled to submit a written argument: Rule 8-1(16). NDCU did not avail itself of that opportunity, but Fiserv did. Fiserv’s written submissions were thorough and helpful, and supplemented Fiserv’s own rather sparse Legal Basis.

Although counsel for NDCU made extensive oral submissions, a Legal Basis that reflected the quality of the oral submissions would have been helpful. As predicted by Adair J. in Dupre, the deficiencies of the Legal Basis in the notice of application have impeded the efficient and timely disposition of this application.”

In Yake v. Chamberlain, 2014 BCSC 1582 (CanLII), discussion also focuses on the Application Response which should also be filed with careful analysis and detail.  The Court in this case quotes extensively from the Dupre decision:

 [48] I agree with and adopt Master Bouck’s comments concerning what a notice of application must contain. The same will apply with respect to an application response (Form 33), and the notice of application and application response under the Supreme Court Family Rules (Forms F31 and F32).

[49] In Fraser, Horn and Griffin, The Conduct of Civil Litigation in British Columbia, 2nd ed. loose-leaf (Markham: LexisNexis, 2007) one of the leading texts on practice and procedure, the authors say this concerning the “Legal Basis” section of a notice of application, at p. 32-3 [notes omitted]:

            The notice must set out the rule, enactment or other jurisdictional authority relied on for the orders sought and any other legal arguments on which the order sought should be granted (Rule 8-1(4)(c)). If appropriate, applicable cases may be cited. The argument to be made in chambers should be fully disclosed and should contain more than a cursory listing of the rules that might support the particular application.

[50] The requirements under the current Rules represent a fundamental change from the practice under the former Rules of Court. Under the former Rules, Rule 44(3) and Form 55 (the form of notice of motion) only required a bare statement of the Rule or enactment relied upon. An outline (see Form 125 and former Rule 51A(12)), outlining the legal arguments to be made, was then delivered later in the exchange of motion materials and prior to the hearing. That is not the practice under the current Rules.

[51] If a notice of application does not contain the information now required under the Rules, the party filing it has failed to give proper notice – to the opposing party and to the court – of the nature of the application. However, all too frequently, counsel in both civil and family cases are signing and filing inadequate notices of application and application responses. The notice of application filed in this case was not at all unique. However, such documents do not comply with the Rules.

[52] In contrast to the bare-bones notice of application filed on behalf of Ms. Patterson, the application response was comprehensive and, in the page limit allowed under the Rules, set out both a detailed summary of the facts and an analysis of the legal basis on which the plaintiff said the court should find the defendant liable. It represents the standard expected by the court.

[53] In this case, the inadequacy of the notice of application was compounded by defendant’s counsel tendering a 14-page written submission at the hearing. Since the hearing was estimated and set for 90 minutes, this was in breach of Rule 8-1(16).

[54] Rarely will a judge or master refuse to receive a written argument from counsel, provided it is not being used to “sandbag” or take the opposition by surprise. However, tendering a written argument at the hearing is neither an alternative to, nor a substitute for, setting out the “Legal Basis” in a notice of application or an application response in accordance with what the Rules and the case law require.

[55] When counsel come to court with inadequate materials, which fail to comply with the Rules, judges and masters are placed in a very difficult position. What often happens is that, to avoid the inconvenience and expense of an adjournment, matters proceed despite the inadequate materials, and judges and masters do the best they can in the circumstances. But inadequate motion materials, which fail to comply with the Rules, are incompatible with the efficient and timely disposition of applications.

[56] If counsel are coming to court with inadequate material that clearly fails to comply with the Rules, and counting on being heard, they are misguided. Judges and masters are entitled to expect that counsel will prepare application materials (including affidavits) that comply with the Rules, and do no less than this. Counsel who come to court with application materials that do not comply risk having their applications at least adjourned, with potential cost consequences, until proper materials are filed.

Useful information on the court website:  Chambers Application Package – The Courts of British Columbia

APPLICATIONS TO THE COURT – CHAMBERS

Notice of Application

When making an application to a judge or master in Supreme Court, Rule 8-1 of the Supreme Court Civil Rules and Rule 10-6 of the Supreme Court Family Rules set out the general procedures for bringing and responding to an application.

If you file a notice of application you must provide an application record to the registry where the hearing is to take place, no later than 4pm on the business day that is one full business day before the date set for hearing.  Supreme Court Civil Rule 8-1(15) and Supreme Court Family Rule 10-6(14) set out what the application record must/must not contain.  The below referenced guidebook, Applications in Supreme Court, also includes a section on preparing your application record.

Administrative Notice-7 includes additional information with respect to cover page requirements for application records and may be found on the Supreme Court website at the following link:

http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/practice_directions/administrative_notices/AN%20-%207%20Cover%20Page%20Requirements.pdf

Practice Direction 28 – Chambers Practice – includes additional information to clarify chambers practice.  A copy of that practice direction is included in this package.

The Justice Education Society website includes a guidebook called, Applications in Supreme Court, which may be found at the following link:

http://www.supremecourtbc.ca/sites/default/files/web/Applications-in-Supreme-Court.pdf

Affidavit

The rules relating to affidavits are Supreme Court Civil Rule 22-2 and Supreme Court Family Rule 10-4.

The following may assist you when drafting an affidavit in support of or in response to an application to the court.

1. Affidavits are simply written evidence. A witness must state only what she or he saw, heard, did or said. Your Affidavit should not say “My son missed school twice” unless you saw that happen, in which case the affidavit should say “I took my son to school late only twice.” What you think is not evidence.
2. Affidavits must not contain irrelevant information. The application determines what is relevant. The evidence in the affidavit must relate to the issue or matter that is the subject of the application. You should include dates, either the day or the month or sometimes the season, or else the information may be rejected as irrelevant.
3. Affidavits must not contain argument. An affidavit must not say “I think it is unfair that …” or “My ex-husband should …” or include any rhetorical questions like “why should I do this when my ex-wife …”
4. Sometimes it is acceptable to quote what another person said. This is called “hearsay”. An affidavit may contain hearsay if either:a) The person quoted is the other party (eg. your ex-husband or ex-wife), and they admit a relevant fact. For example, an affidavit can say “My ex-wife said on January 5, 2010 that she took my camera.”b) The affidavit is being used at an application which is not a Summary Trial (Rule 9-7), and you state who told you the information and that you believe it to be true. For example, an affidavit on an application can say “I was informed by Constable Blogs of the Vancouver Police Department on January 2, 2010 and believe that the police closed their file on the criminal investigation.”c) The person quoted is a child and the court gives leave for that evidence to be presented as hearsay. The court will often permit such evidence to avoid children being witnesses.
5. Affidavits must not contain speculation. Don’t say “My son is sad.” You can say “I saw my son cry after …” or, with leave of the court, “my son told me he was sad because…”
6. Affidavits should not contain long exhibits, like long email chains or diary notes. Such documents usually include a great deal of inadmissible material, like argument, speculation and irrelevant information, which the judge or master deciding the application must ignore.

The Justice Education Society website also has a guidebook called, A Guide to Preparing Your Affidavit.  This guidebook may assist you in preparing your affidavit for your application.  The guidebook is available at the following link;

http://www.supremecourtbc.ca/sites/default/files/web/A-Guide-to-Preparing-Your-Affidavit.pdf

Order

At the conclusion of the hearing and if the court grants an order, one of the parties is responsible for preparing a court order which must then be submitted to the court registry to be checked and entered.  Supreme Court Civil Rule 13-1 and Supreme Court Family Rule 15-1 are the rules pertaining to orders.  The Justice Education Society website includes a guidebook called, Drafting Orders that may assist you in preparing your order.  The guidebook may be found at the following link;

http://www.supremecourtbc.ca/sites/default/files/web/Drafting-Orders.pdf

The orders included in this package are templates.  In order for your order to be accepted by the registry for filing and entry, you will need to prepare a “clean copy” of your order removing all of the instructions that appear in italics as well as any paragraphs that do not apply.  The below link is to the Ministry of Justice website where you will find online fill able forms which you may find helpful in preparing your order.  You will need to select the link leading to either Supreme Court “Civil” or “Family” depending on what type of proceeding you are involved in:

http://www.ag.gov.bc.ca/courts/forms/index.htm

Short Notice Applications

If your application is of an urgent nature (referred to as a Short Notice Application), Supreme Court Civil Rule 8-5 and Supreme Court Family Rule 10-9 set out the procedure that must be followed to bring a Short Notice Application.  Samples of the requisitions for urgent applications are included in this package.

Family Practice Direction 6 – Short Notice Applications are found on the Supreme Court website at www.courts.gov.bc.ca under Practice, Procedure & Policies

Fees

The filing fees are set out in Appendix C of the Supreme Court Civil and Family Rules.  The current fees are $80.00 for filing a notice of application and if you require your affidavit sworn at the court registry, the fee for swearing an affidavit is $40.00.

Links to the Supreme Court Rules may be found on the Court’s website at www.courts.gov.bc.ca under Practice, Procedure & Policies.

 

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