In 2018, I researched over a hundred cases on the topic of Summary Judgment and Summary Trial to learn and understand all there was to know about this very important process. I spent 5 months researching and over 20 pages of writing. It is a paper I am proud of and sadly to say, I likely need to review another 100 cases from 2018 to current to update this paper. I am sharing it in full copy here. If any counsel or paralegal has a recent decision that has clarified the law further in relation to Summary Judgment or Summary Trial, please send it to me!
Enjoy over 20 pages of learning!
Summary Trial – Introduction
A brief history is not only interesting, but helpful to understand the creation of Rule 18A, which is now referenced as Rule 9-7 of the BC Supreme Court Civil Rules.
To begin, we want to ensure we understand the difference between Rule 18 Summary Judgment (now referenced as Rule 9-6) in comparison to Rule 18A Summary Trial (now referenced as Rule 9-7).
Summary Judgment applications are intended to issue final orders in claims or defences that have no merit and will likely fail at trial. If you can prove that there is no real defence, you can seek a final order under Rule 9-6 (Rule 18).
Hauf v. Bell, 2016 BCSC 1468 (CanLII):
“As to the appropriate approach to take on an application under Rule 9‑6, I refer to the reasons of Justice Savage, as he then was in, in two cases, 4 Corners v. Boffo, 2013 BCSC 1926 (CanLII), and Haghdust v. B.C. Lottery, 2011 BCSC 1627 (CanLII). First from 4 Corners:
 The summary judgement rule serves an important purpose. In the civil litigation system, it prevents claims or defences that have no chance of success from proceeding to trial. As the Supreme Court of Canada noted in Canada (Attorney General) v. Lameman, 2008 SCC 14 (CanLII) [Lameman],“[t]rying unmeritorious claims imposes a heavy price in terms of time and cost on the parties to the litigation and the justice system”(para. 10). It is therefore essential that claims without any chance of success be weeded out at an early stage. Conversely, it is essential to justice that claims which disclose real issues should proceed to trial.”
Rule 18 has been in existence for quite some time. In 1976, new Rules of Court referenced Rule 18, from prior rules. The purpose of Rule 18 was to seek a final Order in cases in which a defence did not exist. If there was a question of fact, or a “triable issue”, than the matter did not proceed under Rule 18 and a conventional trial was required. See Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 1989 CanLII 229 (BC CA). A notable difference is that under Rule 18, the entire claim is before the Court. You are not severing issues under Rule 18.
It was determined that Rule 18 was not serving an efficient purpose. Rule 18 did not assist the process of unjust delays, or reduce the cost of litigation. Many cases were not successful in seeking a final Order as a dismissal of such an application was easily reached by simply raising issues of contested facts, which prevented the Court from granting final Orders under Rule 18.
Accordingly, in 1983, Rule 18A was introduced and referenced as “summary trial.” Its purpose was to reduce “unjust delays in the civil justice system, avoid unnecessary costs to the parties and reduce public distrust of the legal system.” This process has been known as a trial by affidavit.
The current governing Rule for summary trial is outlined in Rule 9-7 of the Supreme Court Civil Rules and Rule 11-3 of the Supreme Court Family Rules. A summary trial procedurally is a chambers application that allows you to pursue final judgment before a Judge without having to attend a full conventional trial. It allows matters in dispute to be heard by affidavit evidence and supporting documentary evidence. Certain trial rules apply such as evidentiary rules. Furthermore, the burden of proof must be established in order to succeed in seeking a final Order. It avoids, generally speaking, the requirement of having witnesses testify or be cross-examined. The process is also an efficient use of Court resources.
The Ontario Ministry of Attorney General website has also observed BC’s rules for summary trial, and posts the following comments:
British Columbia’s rule 18A has been very well received and is said to be successful. As noted by one commentator in British Columbia . “[N]ot since the introduction of the summary trial under rule 18A has such a versatile and useful tool been placed in the hands of litigators wishing to have a civil dispute of modest dimensions adjudicated in a speedy, comparatively inexpensive, yet just manner….When Rule 18A was first introduced, no one could have imagined the way, and the extent to which, it would change (for the good) the practice of civil litigation in the province.” Indeed, the British Columbia rule is being employed in 60% of cases;”
An Order sought under Rule 9-7 (Rule 18A) is final, but of course, subject to the right to appeal. While these applications can be complex, there are a number of benefits in proceeding in this fashion, if it is determined that the case is appropriate to be heard summarily. First, a Rule 9-7 hearing can be heard much sooner, and of course, this procedure costs far less than a conventional trial. It is also a far more efficient use of court resources in comparison to a conventional trial. These hearings also assist parties with access to justice, especially in scenarios where resources are not available to pursue a conventional trial.
This paper will go over key rules, legal principles and criteria that you should be familiar with prior to preparing for a summary trial application. Keep in mind that a thorough review of the case law is important, as the case law assists with the interpretation of the rules.
The Importance of Proportionality
An application under Rule 9-7 can be heard much sooner than a conventional trial and most importantly, it can cost far less. The principle of proportionality and efficiency is often discussed and considered in summary trial applications.
The principle of proportionality speaks to access to justice, which was further highlighted in the Supreme Court of Canada decision referenced as Hryniak v. Mauldin, 2014 SCC 7.
The Hryniak decision was an appeal from a decision of the Ontario Court of Appeal which overturned a decision in connection with a summary judgment application. As a side note, the Ontario rules are not similar to the BC rules. The matter went before the Supreme Court of Canada, and the Court of Appeal decision was overturned. Justice Karakatsanis of the Supreme Court of Canada appealed to the industry with her plea that a shift needed to occur in the industry across the Country in connection with favouring these hearings.
Often times, you will see this quote in various summary trial applications across the Country:
“Our civil justice system is premised upon the value that the process of adjudication must be fair and just. This cannot be compromised. However, undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes. If the process is disproportionate to the nature of the dispute and the interests involved, then it will not achieve a fair and just result. “
“A shift in culture is required. The proportionality principle is now reflected in many of the provinces’ rules and can act as a touchstone for access to civil justice. The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure. Summary judgment motions provide an opportunity to simplify pre-trial procedures and move the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. Summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims.”
Although the importance of proportionality was addressed in this case, there has been much debate in BC with respect to the impact that the Hryniak decision had on the law in our Province. It has been clarified in a recent decision that Hryniak did not change the law in British Columbia. Please refer to N.J. v. Aitken Estate, 2014 BCSC 419 (CanLII), in which the Honourable Mr. Justice Ehrcke states:
In my view, Hryniak v. Mauldin does not change the law regarding summary trials in British Columbia, and does not render the jurisprudence from our Court of Appeal obsolete.
It must be remembered that Hryniak v. Mauldin was dealing with the Ontario rules, which are different from our rules in British Columbia. In particular, at para. 68, the Court stressed the fact that under Ontario Rule 20.04 (2) “The Court shall grant summary judgment if, (a) the court is satisfied that there is no genuine issue requiring a trial…” In contrast, our Rule 9-7(15) uses the word “may” rather than “shall”. I therefore do not take Hryniak v. Mauldin to derogate from the proposition that in British Columbia, the question of whether a matter is suitable for summary determination is within the discretion of the trial judge, provided, of course, that the decision must be exercised judicially.
The principle of proportionality is outlined in the BC Supreme Court Civil Rules under Rule 1-3:
- The object of these Supreme Court Civil Rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits.
(2) Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are proportionate to
(a) the amount involved in the proceeding,
(b) the importance of the issues in dispute, and
(c) the complexity of the proceeding.
Rule 9-7 of the Supreme Court Civil Rules
A review of Rule 9-7 (Civil rules) in its entirety / or the parallel Rule 11-3 (Family rules) should be undertaken, although this paper will only refer to key sections of Rule 9-7.
One of the considerations that must be analyzed when proceeding with a Summary Trial application is whether the subject case is appropriate for summary disposition. Having a strong comprehension of the rules and the legal principles will allow you to have a better understanding of this process.
Rule 9-7 (2) and (15) – are common provisions often referenced by the courts in Summary Trial applications.
Rule 9-7 (2) provides:
(2) A party may apply to the court for judgment under this rule, either on an issue or generally, in any of the following:
(a) an action in which a response to civil claim has been filed;
(b) a proceeding that has been transferred to the trial list under Rule 22-1 (7) (d);
(c) a third party proceeding in which a response to third party notice has been filed;
(d) an action by way of counterclaim in which a response to counterclaim has been filed.
We review the words “either on an issue or generally”. This allows an applicant to apply to court under Rule 9-7 on an issue that may be severed from other issues that will proceed to a conventional trial. We will review the test for severance within this paper.
Rule 9-7 (15)
(15 ) On the hearing of a summary trial application, the court may
(a) grant judgment in favour of any party, either on an issue or generally, unless
(i) the court is unable, on the whole of the evidence before the court on the application, to find the facts necessary to decide the issues of fact or law, or
(ii) the court is of the opinion that it would be unjust to decide the issues on the application,
(b) impose terms respecting enforcement of the judgment, including a stay of execution, and
(c) award costs.
Rule 9-7 (15) provides a two-part test. Both factors in 9-7(15) (a) must be satisfied in order for a Court to conclude that a final Order can be issued. This is a discretionary function of the Court.
Also note the language in (15) “the court may grant judgment….” which provides the BC Courts with the discretionary authority to determine if a matter is appropriate for hearing under this rule, which was discussed in the decision referenced above in N.J. v. Aitken Estate, 2014 BCSC 419 (CanLII).
Rule 9-7 (11):
(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 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),  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
Suitability Factors to Consider
Once the court has found that there are sufficient facts necessary to decide on the issues, it must then be determined whether it would be “unjust” to grant judgment (Rule 9-7(15)).
The court will consider a number of factors, which were outlined in Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 1989 CanLII 229 (BC CA), a leading authority that has clarified the principles of summary trial. This decision is frequently referenced and relied on in summary trial applications. It is recommended this case law be reviewed and summarized.
The factors to be considered in preparation of a summary trial application are:
- the amount involved
- the complexity of the matter
- its urgency
- any prejudice likely to arise by reason of delay
- the cost of taking the case forward to a conventional trial in relation to the amount involved
- the course of the proceedings and any other matters which arise for consideration on this important question
- the cost of the litigation and the time of the summary trial,
- whether credibility is a critical factor in the determination of the dispute,
- whether the summary trial may create an unnecessary complexity in the resolution of the dispute, and
- whether the application would result in litigating in slices.
These factors should be considered when you are preparing for a Summary Trial application. This is where careful analysis is required, professional skill (your lawyers) and careful organization of your materials. Consider the facts of your case, and consider these factors. Ask yourself “What is a Judge going to consider based on the facts of your case and how are these factors relevant to your case?” For example, if there is urgency, be sure to identify the urgency in your application materials. If prejudice will occur due to a delay, than the facts and basis of this prejudice should be outlined in your materials. Careful consideration of each and every factor must be made during your preparation of your application materials.
Legal research can be undertaken on these specific factors for further understanding of how the Courts assess these factors. There are a number of cases noted below which will provide further insight on this subject:
The Amount Involved
As an example: the factor of the amount involved, the Court in Rai v Wilson, 1999 BCCA 167 (CanLii) noted:
“The amount in issue should not preclude summary disposition if the case is otherwise appropriate for summary trial.”
In light of this decision, you could perhaps argue that a summary trial hearing should not be precluded from going forward under Rule 9-7 if the only factor that impacts the case is “the amount involved.”
In a family law matter, the court was unable to find the facts to determine the issues due to the financial complexities that existed between the parties, and a lack of evidence, ie: an appraisal report had not been adduced into evidence and therefore, the court could not determine the equity in the home. A sale of the family home could not be granted, and the matter was referred to trial. S. M. v. B. M., 2016 BCSC 2126 (CanLII).
In a case between real estate agents and a development company in which commission was alleged to be owed, the Court concluded that there was urgency in proceeding summarily as the developers only owned one condo from their development, and if it sold, the Plaintiff might not have any proceeds to execute on. KCC 264 Holdings Inc. v. Circadian (Atkins 2010) GP Ltd., 2014 BCSC 1183 (CanLII).
In a complex construction litigation claim Greater Vancouver Water District v. Bilfinger Berger AG, 2015 BCSC 485 (CanLII), the court outlined the prejudice that would result if the summary trial did not proceed: (But after a review of all the factors, the Court concluded that this matter was in fact not suitable for summary trial disposition.) The factors of prejudice that were raised are:
- a considerable amount of time has already passed since the disputed events occurred.
- locating and maintaining the meaningful participation of witnesses will be increasingly difficult as time passes
- The lawyers too are not going to get any younger; and
- it will be of no assistance to the clients if due to the passage of time members of their legal team move on and they are required to hire new counsel
- there is some duplication in legal preparation time each time there is a hearing, as well as duplication of judicial resources
The Cost of Taking the Matter Forward to a Conventional Trial
In Kalmiakov v. Shylova, 2016 BCSC 2095 (CanLII), it was deemed that neither party had the resources to proceed to a conventional trial. The Court stated that the delay would result in the wife going further into debt and the evidence supports that the ongoing litigation is stressful on her. She has recently been hospitalized for a panic attack, and each of her sons has filed an affidavit, describing their concern about their mother’s health and the financial strain she is under.
Credibility Issues that Impact Rule 9-7
Where there exists conflicts in the evidence, this results in a question of credibility. A common argument you will see raised in a summary trial applications relates to the credibility of the parties. Counsel for one party will argue that due to the credibility of the parties, the case in question should not proceed summarily, but rather, should proceed to a conventional trial. However, the case law suggests that the credibility issues must be assessed to first determine whether the credibility issues relate to an essential matter or a critical matter. The law suggests that where credibility is an issue on critical issues, and it prevents the Court from ascertaining the necessary facts to decide the case (Rule 9-7 (15), then a conventional trial would be appropriate to allow witnesses to be called and cross examined in person. The reason for this is that a Judge is better equipped to assess credibility issues by viewing the witnesses in person at a conventional trial. As we know, a summary trial application does not allow for witnesses to be called to testify and be cross examined (although there are a few exceptions to this rule).
Ahlwat v. Green, 2014 BCSC 1865 (CanLII) has provided a framework to clarify the argument that can often be raised on whether credibility will prevent a matter from proceeding pursuant to Rule 9-7.
“It is true that there is a limit to the extent that the court can assess credibility based on affidavit evidence, as stated in the same paragraph of the case cited above. In particular circumstances, a judge may find it impossible to find the facts necessary to determine the case for this very reason. However, when there is a credibility conflict on an essential issue, the case may still proceed summarily if the conflict can be resolved another way, such as by weighing the evidence or giving it different value based on collateral evidence, the contents of the documents or the conduct of the parties.”
A common quote you will see in the case law in Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 1989 CanLII 229 (BC CA), 36 B.C.L.R. (2d) 202; 36 C.P.C. (2d) 199 (C.A.), the Court of Appeal held at ¶43 that, on a summary trial under Rule 18A, the trial judge can resolve credibility issues in the appropriate circumstances.
“However, in cases such as this where the evidence of the parties on critical issues differs significantly, the proper approach is to conclude that it is not possible to find the facts necessary to determine the case. The credibility of the deponents must be tested by their being examined and cross-examined before the court or at least be cross-examined on their affidavits, although given the parties’ differing positions, the latter might not be sufficient in this case.”
To assess if credibility will be an issue, review the Affidavit material to identify any contradictions that exist. Consideration will need to be placed on whether the conflicts relate to an essential issue or a critical issue. Keep in mind, the Court can refer to collateral evidence or any pre-trial documents to determine which evidence bears more weight. Arguments can be made to suggest that a Court can not fairly assess the credibility of the parties, without seeing them testify in person at a conventional trial.
If there are multiple claims, overlapping issues that are intertwined and there will be a duplication of resources and hearings – a court will consider putting a matter over to a conventional trial if the summary trial hearing would create unnecessary complexity.
Litigating in Slices – Severance Issues on Summary Trial
Severance is often considered by the court in a summary trial application. Rule 12-5 (67) provides the Court with the discretionary authority to determine if severance is appropriate:
Trial of one question before others
(67) The court may order that one or more questions of fact or law arising in an action be tried and determined before the others.
In Edward Jones v. Mirminachi, 2011 BCCA 493 (CanLII) it is noted that when “an issue” is being tried rather than the whole case “litigating in slices” can occur and this may become a hindrance to the “just, speedy and inexpensive determination” of the dispute “on its merits”. However, if there is sufficient evidence to determine the severed issue, the alleged problem of litigating in slices disappears. KCC 264 Holdings Inc. v. Circadian (Atkins 2010) GP Ltd., 2014 BCSC 1183 (CanLII)
A review of the test pertaining to severance is helpful.
Severance as it relates to personal injury law is common when a party seeks a final order on the issue of liability only. The principles governing an application for severance have been confirmed in numerous authorities. For example, in Burg Properties Ltd. v. Economical Mutual Insurance Company, 2013 BCSC 209 (CanLII), Madam Justice Gerow said at para. 27 outlined a two-part test:
 There is authority for the proposition that in a summary trial application where a party seeks to proceed only on liability, a two step approach should be followed: the first step is to determine whether there should be severance, and the second step is to determine if a summary trial on the issue of liability is appropriate: Chun v. Smit, 2011 BCSC 412 (CanLII) at paras. 8-9. In Chun, the court stated that the test for severance is whether there are extraordinary, exceptional or compelling reasons for the severance. A compelling reason to order severance is a likelihood of a significant savings in time and expense realized by a summary trial: Bramwell v. Greater Vancouver Transportation Authority, 2008 BCSC 1180 (CanLII) at para. 12.
Reference is made in K.M.W. v. M.D.W., 2016 BCSC 228 (CanLII), on factors the Courts will consider in severing an issue for summary trial purposes.
In Nguyen v. Bains, 2001 BCSC 1130 (CanLII), Martinson J. summarized some of the jurisprudence under former British Columbia Rule 39(29):
 Courts have considered the question of when some issues should be tried before others. These are some of the points that have been made:
a. A judge’s discretion to sever an issue is probably not restricted to extraordinary or exceptional cases. However, it should not be exercised in favour of severance unless there is a real likelihood of a significant saving in time and expense.
b. Severance may be appropriate if the issue to be tried first could be determinative in that its resolution could put an end to the action for one or more parties.
c. Severance is most appropriate when the trial is by judge alone.
d. Severance should generally not be ordered when the issue to be tried is interwoven with other issues in the trial. This concern may be addressed by having the same judge hear both parts of the trial and ordering that the evidence in the first part applies to the second part.
e. A party’s financial circumstances are one factor to consider in the exercise of the discretion.
Any pre-trial severance ruling will be subject to the ultimate discretion of the trial judge
Where credibility issues on critical issues exist in a case, this may be a compelling argument to prevent the issue of liability being severed from quantum on a summary trial application. Chun v. Smit, 2011 BCSC 412 (CanLii)
Evidentiary Criteria Rule 9-7(5)
The evidence relied on in a Summary Trial hearing is by written evidence. The type of evidence that is typically relied on is outlined under Rule 9-7 (5) as enumerated:
Evidence on Application
(5) Unless the court otherwise orders, on a Summary Trial application, the applicant and each other party of record may tender evidence by any or all of the following:
- by an answer, or part of an answer, to interrogatories;
- any part of the evidence taken on an examination for discovery;
- an admission under Rule 7-7; (Notice to Admit)
- a report setting out the opinion of an expert; if
- the report conforms with Rule 11-6(1), or
- the court orders that the report is admissible even though it does not confirm with Rule 11-6 (1).
This paragraph sums it up as noted in Canadian Western Bank Leasing Inc. v. SSC Ventures (No. 98) Ltd., 2016 BCSC 223 (CanLII):
Summary trial applicants and respondents may avail themselves to examinations for discovery (Rule 7-2), interrogatories (Rule 7-3), use of admissions (Rule 7-7), and expert reports pursuant to Rule 9-7(5). Of course, if they wish to tender any of this evidence at the summary trial, they must give proper notice to the other side pursuant to Rule 9-7 (10). In the case of expert reports, reasonable notice must be given to the other side: Cai v. Insurance Corporation of British Columbia, 2013 BCSC 2213 (CanLII) at para. 13.
Affidavit evidence must be based on personal knowledge. Where facts are based on “information and belief” these facts should not be included in your affidavit material. The reason for this is facts based on “information and belief” are in breach of the hearsay rule, and therefore, these facts will be deemed inadmissible. In order to have hearsay admissible, a test must be established of necessity and reliability, which was outlined in R. v. B. (K.G.),  1 SCR 740, 1993 CanLII 116 (SCC), which was highlighted in Castellan v. Muncey (Estate), 2004 BCCA 128 (CanLII):
With respect to the principled approach to the hearsay rule as discussed in R. v. K.G.B., 1993 CanLII 116 (SCC),  1 S.C.R. 740, the test of necessity was found to have been met because Mrs. Muncey was deceased, but the test of reliability was not thought by the chambers judge to have been met. The reliability, of course, is all bound up with credibility and, with respect, it seems to me that to make adverse findings on reliability without seeing the witnesses on whom the whole assessment of credibility depends, is a poor foundation for a finding of reliability or unreliability.
Affidavits on information and belief can be used in a Summary Trial application when the evidence is used for the purposes of persuading the Court that the matter should not proceed summarily. Calder v. King (1994), 1994 CanLII 2758 (BC SC), 91 B.C.L.R. (2d) 336.
Also be mindful that correspondence marked “Without Prejudice” due to settlement privilege should not be exhibited to any affidavit as they will be deemed inadmissible. Further, where an affidavit is being translated to a client, a reminder that an Endorsement of Interpreter is required. The Court comments in Chun v. Smit, 2011 BCSC 412:
“The affidavits were, however, translated, and this was not evident on the face of the original affidavits tendered. This was a serious omission, which I granted the plaintiffs leave to correct. All affidavits that are prepared with the benefit of an interpreter must bear an “ENDORSEMENT OF INTERPRETER” as required by the Rules. Failure to do so deprives the court of significant information that may affect its assessment of the reliability of the evidence contained in the affidavit.”
As a final Order is being sought, it is imperative that your counsel is fully involved with finalizing the affidavit evidence. Paralegals who are knowledgeable on the facts and issues can certainly assist with drafting the affidavit evidence, but supervision is necessary under this application.
A defence often raised in Court to support an argument that a matter is not suitable for Summary Trial is that there exists conflicting evidence, and therefore, the matter should not proceed by way of Summary Trial. It is noted by the leading authority, however, that this is not necessarily a basis to deny a claimant’s right to proceed with Summary Trial on this ground. The Courts can make a final Order despite the existence of conflicting evidence. Also note, in MacMillan v. Kaiser Equipment Ltd., 2004 BCCA 270 (CanLII), the summary trial judge determined that the case was suitable for summary trial despite the conflicts in the evidence.
The Court of Appeal said:
 The principles relating to the applicability of the summary trial procedure are not in dispute. It should be noted that the mere fact that there is a conflict in the evidence does not in and of itself preclude a chambers judge from proceeding under Rule 18A. A summary trial almost invariably involves the resolution of credibility issues for it is only in the rarest of cases that there will be a complete agreement on the evidence. The crucial question is whether the court is able to achieve a just and fair result by proceeding summarily.
In Salem v. Priority Building Services Ltd., 2005 BCCA 617 (CanLII) the Court states:
“The fact that there is conflicting evidence in the affidavits filed on an application under Rule 18A is not an automatic bar to a summary trial. In Placer Dev. Ltd. v. Skyline Expl. Ltd. (1985), 1985 CanLII 147 (BC CA), 67 B.C.L.R. 366 (C.A.), Taggart J.A., speaking for the Court, said, at 386,
. . . I am far from saying that the judge is precluded from finding facts where he has before him affidavits which conflict. The ability of the judge to find the necessary facts and to decide if it is just to resolve the issues before him will to a large extent depend on the nature and quality of the material before him. I think the rule contemplates that the judge may make the necessary findings of fact on conflicting evidence.”
The governing rule of Interrogatories is noted under Rule 7-3, which should be reviewed. Responses to Interrogatories can be appended to an Affidavit and relied on in a summary trial application. Interrogatories should not be overlooked as the Court often will rely on the documentary evidence to assist them with the finding of facts or resolving of issues that exist. Where conflicts in the Affidavit evidence exists, Interrogatories may be useful and may add weight to the facts outlined in your affidavit material.
In Pearlman v. Critchley, 2011 BCSC 1479 (CanLII), helpful comments were shared on Interrogatories that are worthy of mention:
“The purpose of interrogatories was helpfully explained by Madam Justice Baker in Tse-Ching v. Wesbild Holdings Ltd. (1994), 98 B.C.L.R. (2d) 92 (S.C.)
Interrogatories are a pre-trial tool designed to narrow and focus the issues in the lawsuit, reduce the length and expense of trial and eliminate the element of surprise at trial. The Rule with respect to Interrogatories is to be interpreted in accordance with the general purpose of the Rules which is to secure the just, speedy and inexpensive determination of every proceeding on its merits. The leading decision in British Columbia on the purpose and scope of interrogatories is that of our Court of Appeal in British Columbia Lightweight Aggregate Ltd. v. Canada Cement LaFarge Ltd. [citation omitted]. At page  of that case, Justice Taggart adopted this passage from Kennedy v. Dodson [citation omitted]:
The legitimate use, and the only legitimate use, of interrogatories is to obtain from the party interrogated, admission of facts which it is necessary for the party interrogating to prove in order to establish his case; and if the party interrogating goes further, and seeks by his interrogatories to get from the other party matters which it is not incumbent on him to prove, although such matter may indirectly assist his case, the interrogatories ought not to be admitted.
Other British Columbia authorities have established these requirements for and limitations on interrogatories:
- Interrogatories must be relevant to a matter in issue in the action.
- Interrogatories are not to be in the nature of cross-examination.
- Interrogatories should not include a demand for discovery of documents.
- Interrogatories should not duplicate particulars.
- Interrogatories should not be used to obtain the names of witnesses.
- Interrogatories are narrower in scope than examinations for discovery.
- The purpose of interrogatories is to enable the party delivering them to obtain admissions of fact in order to establish his case and to provide a foundation upon which cross-examination can proceed when examinations for discovery are held.
- Interrogatories are only one means of discovery. The court may permit the party interrogated to defer its response until other discovery processes have been completed, including examinations for discovery.
It is clear, therefore, that interrogatories are not intended, and indeed should not be used, as a means of conducting a less expensive examination for discovery. They are fundamentally different tools, if I can use that expression, in litigation.”
Examination for Discovery
Rule 7-2 Examination for Discovery transcripts can also be appended to an affidavit. Ensure that the evidence is “organized and not prolix or overwhelming” as noted in Chu v. Chen, 2002 BCSC 906 (CanLII), and referenced in Charest v. Poch, 2011 BCSC 1165 (CanLII), in which the Judge comments on the usefulness of the discovery and documentary evidence and states: “With reference to these materials, in addition to the affidavit evidence, I am satisfied that the evidentiary conflicts can be addressed in a manner other than by preferring one view over the other.”
The evidence you intend to rely on must carefully be considered, and meticulously organized.
Rule 12-5(46) which provides:
(46) If otherwise admissible, the evidence given on an examination for discovery by a party … may be tendered in evidence at trial by any party adverse in interest, unless the court otherwise orders, but the evidence is admissible against the following persons only:
(a) the adverse party who was examined;
“Summary applications are based on affidavit evidence. However, they are still trials and as such are governed by the rules and evidentiary requirements of a regular trial.”
- A party is not entitled to attach as an exhibit portions of their own examination for discovery transcript to their affidavit
- A party can not seek to rely on their own evidence they gave on their examination for discovery
- A party can not rely on their own discovery evidence for the truth of its contents Eg: the plaintiff cannot rely on the Plaintiff’s discovery evidence for the truth of its contents, only the Defendant can append portions of the Plaintiff’s discovery evidence on their affidavit and vice versa;
- It can however, be relied on for the more limited purpose of whether the litigation is capable of being summarily resolved.
Admission under Rule 7-7 (Notice to Admit)
A Notice to Admit can be strategically utilized to have certain facts admitted. The admissions under Rule 7-7 can be relied on in a Summary Trial application.
As quick reference to the purpose of Rule 7-7 (Notices to Admit), this except is taken from Piso v. Thompson, 2010 BCSC 1746 (CanLII),
The Notice to Admit is available in our Rule 7-7 to increase efficiency in the conduct of cases and to deal with matters that are not contentious and should be admitted. The rule in fact provides that a party’s failure to admit a fact or document which should be admitted may be punished in costs.
Silence on the part of the party receiving such a notice results in a deemed admission of the assertion or document contained in the Notice. Rule 7-7(5) provides that a party is not entitled to withdraw a deemed admission without leave of the court.
Expert Reports and 11-6-1
Evidentiary rules require that your reports must be properly tendered in evidence as expert evidence, pursuant to Rule 9-7, but furthermore, they must comply with Rule 11-6(1), which is highlighted for ease of reference:
Requirements for report
(1) An expert’s report that is to be tendered as evidence at the trial must be signed by the expert, must include the certification required under Rule 11-2 (2) and must set out the following:
(a) the expert’s name, address and area of expertise;
(b) the expert’s qualifications and employment and educational experience in his or her area of expertise;
(c) the instructions provided to the expert in relation to the proceeding;
(d) the nature of the opinion being sought and the issues in the proceeding to which the opinion relates;
(e) the expert’s opinion respecting those issues;
(f) the expert’s reasons for his or her opinion, including
(i) a description of the factual assumptions on which the opinion is based,
(ii) a description of any research conducted by the expert that led him or her to form the opinion, and
(iii) a list of every document, if any, relied on by the expert in forming the opinion.
[am. B.C. Reg. 119/2010, Sch. A, s. 24.]
The medical evidence that you rely on in a summary trial application should be carefully reviewed. Ensure that the evidence is on point and from an appropriate expert to speak on the relevant issues. Be advised that an expert report has been thrown out due to the “argumentative nature” of the report and that the expert was not qualified to speak on the issue. Rai v. Wilson 1999 BCCA 1967 (CanLii).
You must be well prepared for a Summary Trial application. Ensure you have the appropriate evidence before the Court.
Service of Medical Reports
Rule 9-7 (5) does not identify the time limit for service of medical evidence. However, case law has made it clear that reasonable notice to the opposing party must be given, and arguably 60 days may be deemed to be reasonable.
Serving your medical evidence in an Affidavit is not deemed to be notice that you intend to rely on the evidence.
In Cai v. Insurance Corporation of British Columbia, 2013 BCSC 2213 (CanLII),
“While it is doubtful that the 84-day rule regarding notice of expert opinion evidence in R. 11-6(3) applies to summary trial in light of the restrictive language of R. 9-7(5), the Court has a discretion to exclude such evidence where reasonable notice has not been provided to the other party.”
Proceed with caution when relying on 11-7(6)(c) which allows the court to dispense with the requirement of Rule 11-6(1)(c) if the interests of justice require it. If the court is not persuaded by the arguments, then the expert report will be deemed inadmissible.
In Perry v. Vargas, 2012 BCJ 21, where the court stated that:
“In my view the discretion provided for in R.11-7(6)(c) must be exercised sparingly, with appropriate caution, and in a disciplined way given the express requirements contained in Rules 11-6 and 11-7. That is, the “interests of justice” are not a reason to simply excuse or ignore the requirements of the other Rules. There must be some compelling analysis why the interests of justice require in a particular case the extraordinary step of abrogating the other requirements of the Supreme Court Civil Rules. None was provided.”
Notice of Evidence
In order to tender evidence at a Summary Trial application, proper notice must be given to the opposing party pursuant to Rule 9-7 (9) and (10)
Notice of evidence to be used on application
(9) If a party intends, on a summary trial application, to rely on
(a) evidence taken on an examination for discovery,
(b) answers to interrogatories, or
The party must give notice of that fact in accordance with subrule (10).
(10) Notice under subrule (9) must be given
(a) by an applicant, in accordance with Rule 8-1 (7) and (8), and
(b) by a party who is not an applicant, in accordance with Rule 8-1 (9).
Review the service requirements under Part 8 – Application, in which Rule 8-1 (7) and (8) are also relevant:
Service of application materials
(7) The applicant must serve the following, in accordance with subrule (8), on each of the parties of record and on every other person who may be affected by the orders sought:
(a) a copy of the filed notice of application;
(b) a copy of each of the filed affidavits and documents, referred to in the notice of application under subrule (4) (d), that has not already been served on that person;
(c) if the application is brought under Rule 9-7, any notice that the applicant is required to give under Rule 9-7 (9).
Time for service
(8) The documents referred to in subrule (7) of this rule must be served,
a) subject to paragraph (b) of this subrule, at least 8 business days before the date set for the hearing of the application, or
(b) in the case of an application under Rule 9-7, at least 12 business days before the date set for the hearing of the application.
Delay & Burden of Proof
The significance of a summary trial application must be in the forefront when preparing for such a hearing. Both parties must put their best foot forward in proving your claim and/or defeating a summary trial application. The burden of proof rests with the Plaintiff in proving his or her claim.
In Gichuru v. Pallai, 2013 BCCA 60 (CanLii), the Defendant had applied summarily to have the action dismissed, and succeeded based on the fact that there was an absence of evidence to prove the claim of defamation that the Plaintiff was alleging. This is a decision you should take the time to review as the Court’s analysis is informative. Further, be mindful that if appropriate notice of the summary trial application has been provided to you, any delay tactics to proceed with a discovery process will not be considered by the Court. Ensure that you communicate with your counsel on your plan of action immediately after being served with a summary trial motion, eg.: whether discoveries need to be arranged, and ensure you have undertaken all necessary steps to gather your evidence.
“The point was also made at greater length in Anglo Canadian Shipping Co. v. Pulp, Paper and Woodworkers of Canada, Local 8 (1988), 1988 CanLII 2879 (BC CA), 27 B.C.L.R. (2d) 378. There a plaintiff had sued for judgment under R. 18A, giving the defendant two months’ notice of its application. The defendant did not examine the plaintiff for discovery within that period and on the day scheduled for trial, argued that it had been prevented from exploring arguments it might wish to make with respect to mitigation. The trial judge nevertheless granted judgment to the plaintiff under R. 18A and awarded damages of some $42,000. On appeal, this court rejected the defendant’s argument that judgment should not have been granted. Lambert J.A. stated:
In my opinion, the summary trial procedure contemplated by R. 18A cannot be open to being frustrated by one of the parties delaying the pre-trial procedures until it is too late for the summary procedure to use them effectively.”
Finally, the further principle that was highlighted in this Court of Appeal decision was the fact that the onus to prove the claim remains with the Plaintiff, even when the application is that of the defendant:
The authorities are also clear that a summary trial, although heard on affidavits in chambers, remains a trial of the action for which the plaintiff (even if not the applicant) retains the onus of proof of establishing his or her claim(s) and the defendant (even if not the applicant) retains the burden of establishing any defence that is raised. Mr. Justice Wood, writing for the Court in Miura v. Miura (1992), 1992 CanLII 1040 (BC CA), 66B.C.L.R. (2d) 345 (C.A.), clarified this issue (at page 352):
There is no reason why the onus should be reversed simply because the defendant moves for judgment under Rule 18A, thus requiring the plaintiff to prove her case in a summary trial proceeding. ……
the onus of proof does not shift simply because a trial is conducted summarily under rule 18A [now R. 9-7]. As in an ordinary trial, the party asserting the affirmative of an issue must prove it on a balance of probabilities. I believe that such a result is also consistent with what was said by McEachern, C.J.B.C. in Inspiration Management et al. . McDermid et al. [citation omitted] at page 215 of the report:
The test for R. 18A, in my view, is the same as on a trial. Upon the facts being found the chambers judge must apply the law and all appropriate legal principles. If then satisfied that the claim or defence has been established according to the appropriate onus
As in trial, the successful party may succeed in costs being assessed against the opposing party and therefore, these applications need to be diligently and carefully prepared.
The Court in JEKE Enterprises Ltd. v. Northmont Resort Properties Ltd., 2015 BCSC 1202 (CanLII) states:
 Generally speaking, this Court has declined to award costs against an applicant if a summary trial application is dismissed and the parties are still required to proceed to trial. In Antrobus v. Antrobus, 2008 BCSC 1789 (CanLII), the court stated:
 The general, although not invariable, rule is that costs are not awarded against a party who makes an unsuccessful application under Rule 18A because that party may eventually be successful at trial. That rule was stated in Falkoski v. Osoyoos (Town),  B.C.J. No. 1346 where the court nevertheless awarded costs against a defendant in what were considered to be the exceptional circumstances of the case. One of those circumstances was a “David and Goliath” aspect to the action, in which the plaintiff was an individual and the defendants were a municipality and a corporate developer.
Any party seeking a final order should ensure that their pleadings are carefully drafted. Ensure that the cause of action is clear and all matters being claimed are enumerated in the prayer for relief. Failure to ensure that your pleadings are in order, may result in a dismissal of your action and a late application at the summary trial hearing to adjourn for the purposes of amending your pleadings may prove unsuccessful: do your pleadings disclose an arguable cause of action? As analysed in Charest v. Poch, 2011 BCSC 1165 (CanLII) and if not, your client may not have the legal right to seek the relief sought and the claim on that basis, may be dismissed.
You do not want your pleadings to fall short of seeking the relief your client claims. A late request for an adjournment in order to allow you the right to amend your pleadings may prove unfavourable.
Table of Cases
British Columbia Supreme Court
- Calder v. King (1994), 1994 CanLII 2758 (BC SC), 91 B.C.L.R. (2d) 336
- Gee v. Elvira, 2001 BCSC 1210 (CanLii)
- Chu v. Chen, 2002 BCSC 906 (CanLII)
- Dahl v. Royal Bank of Canada et al., 2005 BCSC 1263 (CanLII)
- Chu v. Lee, 2006 BCSC 547 (CanLII)
- Urban Holdings Ltd. v. MacDuff, 2007 BCSC 631 (CanLII)
- Antrobus v. Antrobus, 2008 BCSC 1789 (CanLII)
- Bramwell v. Greater Vancouver Transportation Authority, 2008 BCSC 1180 (CanLII)
- Piso v. Thompson, 2010 BCSC 1746 (CanLII)
- Chun v. Smit, 2011 BCSC 412 (CanLii)
- Charest v. Poch, 2011 BCSC 1165 (CanLII)
- Pearlman v. Critchley, 2011 BCSC 1479 (CanLII)
- Haughian v. Jiwa, 2011 BCSC 1632 (CanLII)
- Perry v. Vargas, 2012 BCSC 21 (CanLii)
- Burg Properties Ltd. v. Economical Mutual Insurance Company, 2013 BCSC 209 (CanLII)
- Cai v. Insurance Corporation of British Columbia, 2013 BCSC 2213 (CanLII)
- Ahlwat v. Green, 2014 BCSC 1865 (CanLII)
- N.J. v. Aitken Estate, 2014 BCSC 419 (CanLII
- KCC 264 Holdings Inc. v. Circadian (Atkins 2010) GP Ltd., 2014 BCSC 1183 (CanLII)
- Kemp v. Vancouver Coastal Health Authority, 2015 BCSC 1319 (CanLii)
- Greater Vancouver Water District v. Bilfinger Berger AG, 2015 BCSC 485 (CanLII)
- JEKE Enterprises Ltd. v. Northmont Resort Properties Ltd., 2015 BCSC 1202 (CanLII)
- Hauf v. Bell, 2016 BCSC 1468 (CanlLII)
- S. M. v. B. M., 2016 BCSC 2126 (CanLII)
- Kalmiakov v. Shylova, 2016 BCSC 2095 (CanLII)
- K.M.W. v. M.D.W., 2016 BCSC 228 (CanLII)
- Canadian Western Bank Leasing Inc. v. SSC Ventures (No. 98) Ltd., 2016 BCSC 223 (CanLII)
British Columbia Court of Appeal
- Placer Dev. Ltd. v. Skyline Expl. Ltd. (1985), 1985 CanLII 147 (BC CA)
- Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 1989 CanLII 229 (BC CA)
- Miura v. Miura (1992), 1992 CanLII 1040 (BC CA)
- Mariotto v. Waterman (1996), 1996 CanLII 2741 (BC CA)
- Rai v Wilson, 1999 BCCA 167 (CanlLii)
- MacMillan v. Kaiser Equipment Ltd., 2004 BCCA 270 (CanLII)
- Castellan v. Muncey (Estate), 2004 BCCA 128 (CanLII)
- Salem v. Priority Building Services Ltd., 2005 BCCA 617 (CanLII)
- Dahl V. Royal Bank of Canada et al, 2006 BCCA 369 (CanLII)
- Edward Jones v. Mirminachi, 2011 BCCA 493 (CanLII)
- Gichuru v. Pallai, 2013 BCCA 60 (CanLii)
- Morin v. 0865580 B.C. Ltd., 2015 BCCA 502 (CanLII)
- Crest Realty Westside Ltd. v. W&W Parker Enterprises Ltd., 2015 BCCA 447 (CanLII)
Supreme Court of Canada
- R. v. B. (K.G.),  1 SCR 740, 1993 CanLII 116 (SCC)
- Hryniak v. Mauldin, 2014 SCC 7.
Priscilla Cicek is a Legal Assessment Specialist who specializes in the quantification of claims and risk management of personal injury claims in BC and Alberta. She is also an instructor at Vancouver Community College and teaches the Paralegal Program on the topic of personal injury. She has developed the instructional plan for the course and offers mentorship and guidance to many students every year. Priscilla is also a paralegal, having graduated from Capilano University and has over 20+ years’ experience in the legal field. She has managed complex personal injury claims, occupier’s liability, and commercial/construction litigation claims in BC and has extensive experience and knowledge of all aspects of a file. Priscilla has assisted with legal strategy, problem solving, and negotiation of claims. She has also assisted with trial and appeal work. Priscilla has published materials on novel legal issues and often provides consulting work to counsel and other experts researching the law. She is a Director of the BC Paralegal Association of BC. She has been a speaker and a chair with the Trial Lawyers’ Association of BC and the Continuing Legal Education Society of BC. She enjoys counseling on a volunteer basis and in her spare time, Priscilla enjoys skiing in Whistler with her family.
This is an Article by Priscilla Cicek. Any views or opinions represented in this article are personal and belong solely to the owner and do not represent those of people, institutions or organizations that the owner may or may not be associated with in professional or personal capacity, unless explicitly stated. All content provided on this site is for informational purposes only. The owner of this site makes no representations as to the accuracy and completeness on any information found on this site.
Priscilla Cicek works with Viewpoint Medical Assessments as National Director of Business Development. See more info in the About Page.