Inventory of Reforms

BC Summary Trial (Rule 18A)

Year:
1983

Description:
BC Supreme Court summary trial rule authorizing a judge in chambers to give judgment based on affidavits or similar evidence.

Status:
Permanent Implementation

Jurisdiction:
British Columbia

Court:
British Columbia Supreme Court

Timeline:
1983: Rule 18A introduced
July 2007: Draft Rules released
January 2010: Projected implementation of new rules

Publications:
Summary judgment in the Federal Court and in the Federal Court of Appeal: A discussion paper of the Rules Subcommittee on Summary Judgment (Federal Court of Appeal, 2008). [Discussion Paper]
Paul Monahan & TJ (Tajesh) Adhihetty, Summary Disposition of CasesPDFExternal Link (Fasken Martineau DuMoulin LLP, February 2006). [Summary Disposition]
Civil Justice Reform Working Group, Proposed New Rules of Civil Procedure for the Supreme Court of British Columbia: Concept Draft GuidePDFExternal Link (Vancouver: Justice Review Task Force, 2007).
Civil Justice Reform Working Group, Proposed New Rules of Civil Procedure of the British Columbia Supreme Court: Concept DraftPDFExternal Link (Vancouver: BC Justice Review Task Force, 2007). [Draft Rules]
David Wotherspoon, Keri Gammon and Stephanie Sanger, Summary Trial at the Federal CourtPDFExternal Link (Fasken Martineau DuMoulin, May 2009). [Summary Trial]

Related Reforms:
See also Alberta Summary Trial Rules

Development:
Rule 18A was introduced in British Columbia in 1983 in response to a concern that Rule 18, governing applications for summary judgment, was often found to be ineffective in that motions for judgment could easily be defeated. Introduction of Rule 18A was meant “to expedite early resolution of cases by authorizing a judge in chambers to give judgment in any case where he can decide disputed questions of fact on affidavits or by any of the other proceedings authorized by the rule unless it would be unjust to decide the issues in such a way” (Summary Disposition at 5).

Purpose:
To reduce unjust delays in the civil justice system, avoid unnecessary costs to the parties and reduce public distrust of the legal system.

Description of Reforms:
Rule 18A
A party brings their application by way of a Notice of Motion in the action. The application must be heard at least 45 days before the date set for trial if one has been set.

Although often referred to as “trial by affidavit”, Rule 18A generally permits parties to adduce a variety of forms of evidence. In addition to affidavits, parties may rely on answers to interrogatories, discovery evidence, formal admissions, and statements of expert opinion provided that the statement appears in the proper form or, failing that, is ordered admissible by the court. The usual rules regarding the use of discovery transcripts and interrogatories apply in the summary trial context…

In some cases, the court might expand the scope of permissible evidence to include cross-examination on affidavits, either before the court or before another person. In other cases, a party may be precluded from obtaining one or more of the above forms of evidence because it left it too late in the day to do so. In some cases the court will order that the Rule 18A application proceed absent, for example, the examination for discovery of one party because the requesting party had ample time to conduct the discovery in advance of the hearing but opted not to do so.

Summary Trial at 3

Rule 18A has been interpreted by the courts to allow for summary trials and judgments in a broad range of circumstances. A judge should only decline to hear an application for a summary trial where he or she is unable to make critical findings of fact necessary for a determination of the issues and where cross-examination of the affidavits or other means of clarifying the evidence would not remedy this problem, or where it would be unjust to determine the issues raised in the application.

The chambers judge should consider the amount involved, the complexity of the matter, and any prejudice due to delay if the matter is set down for trial under the normal procedure, including the costs consequences of so ruling.

Discussion Paper at 4

Proposed Rule 9-8 (Summary Trial)
The proposed new Rules of Civil Procedure incorporate Rule 18A as Rule 9-8. A new major proposed change to the Rule is that parties may only apply to the court for judgment under this rule if they are authorized to do so by a case plan order.

Comparison to a conventional trial
Many of the differences between a summary trial and a full trial are also the advantages of a summary trial. Parties proceeding under Rule 18A can expect to secure an earlier hearing date than they would for a conventional trial simply because of shorter length of time required. The time, expense, and resources required will generally be far less in the summary process because of the shorter hearing, the absence of live witnesses, and often, the truncated discovery process.

Although bringing an 18A application does not operate to stay all pre-trial discovery procedures such as document production and examinations for discovery, the court retains discretion to order the postponement of an examination for discovery pending the hearing of an 18A application that has the potential to dispose of the claim or some part of it. However, the court will not do so where the discovery evidence might contradict the documentary evidence on which the moving party relies. Furthermore, because a summary trial application might only dispose of some of the issues between the parties, it should not be used to prevent the other party from presenting their larger case.

Other differences of note are that there are no juries in summary trials, and because there will generally be no viva voce evidence, parties may not subpoena witnesses. In terms of costs awards, the general rule is that where the applicant is unsuccessful and the matter is referred to the trial list, the costs of the application will be costs in the cause. However, where the summary trial court finds that there are exceptional circumstances, such as an application that could be described as frivolous, the court may award costs of the application against the unsuccessful applicant.

In B.C., summary trials proceed in chambers and counsel appear un-robed.

Summary Trial at 5-6

Results:
In evaluating the rule, the British Columbia courts stated that the elusive and unattainable goal of perfect justice in every case could not always be assured even after a conventional trial and the safeguards furnished by the Rule and the common sense of the chambers judge were sufficient for the attainment of justice in any case likely to be found suitable for this procedure. Chambers judges were cautioned to be careful, but were encouraged not to be timid in using the Rule for the purpose for which it was intended.

Summary Disposition at 6

Of the proceedings commenced in the B.C. Supreme Court, approximately 1.4% are decided by full trial and approximately 1.2% are decided by summary trial. This has allowed British Columbia to not increase its number of trial judges in approximately 20 years. Rule 18A has proven to be an effective means of increasing access to justice, while reducing costs to litigants and to the judicial system.

Summary Trial at 2

Revision History:
This summary was last reviewed in Oct 07, 2013