An Introduction to Summary Trial – BCSC Rule 9-7

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:

[20]      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.

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