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Supreme Court Civil

BC

This publication guides practitioners through the conduct of civil proceedings in the Supreme Court of British Columbia.

2 Matter Plans

Overview

The commentaries cover key topics including the pre-action protocol and practice direction, settlement, initiating and responding to proceedings, default and summary judgment, case management, disclosure, and trial.

The Reference materials folder includes guidance on electronic signing and remote witnessing, and the Getting the matter underway folder contains essential compliance and client engagement documents. The comprehensive Retainer Instructions ensure that all necessary information is gathered from the client at the outset of the matter.

Precedents in this publication include:

  • Letters to clients explaining the process;
  • Retainer agreements, including contingency fee;
  • Library of notice and demand letters;
  • Library of events for claim;
  • Settlement agreements;
  • Affidavit in support of default judgment;
  • Example application record index, file brief, and trial record index.
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2 Matter Plans Included

  • Item icon ALERTS - Nil
  • Item icon Full Commentary - Supreme Court Civil - Acting for the Plaintiff (BC)
  • Folder icon Reference materials
    • Item icon AI Prompts
    • Item icon Electronic Signing and Remote Witnessing
    • Item icon Further information
  • Item icon Overview
    The Supreme Court of British Columbia hears many types of claims, including civil claims arising out of debts, claims for damages, commercial proceedings, and bankruptcy proceedings. This commentary focuses on the process involved in civil litigation for the plaintiff in the Supreme Court of ...

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  • Folder icon A. Getting the matter underway
    • Item icon File cover sheet - Civil litigation
    • Item icon To do list - Supreme Court Civil - Acting for the Plaintiff
    • Item icon First steps
    • Item icon Client details, verification, and source of funds
    • Item icon Retainer instructions - Civil matters
    • Item icon Retainer instructions - Debt collection
    • Item icon Conflict of interest check
    • Item icon Initial letter to client enclosing retainer agreement
    • Item icon Retainer agreement - British Columbia
    • Item icon Retainer agreement - Contingency fee - British Columbia
    • Item icon Letter to client re non-engagement
    • Item icon Time and costs estimates
    • Folder icon If required - Costs disclosure update and a non-engagement letter
      • Item icon Letter to client updating costs disclosure
      • Item icon Non-engagement letter
    • Folder icon General deeds, agreements, execution clauses, and statutory declarations
      • Item icon Deeds and Agreements
      • Folder icon Deeds
        • Item icon Confidentiality deed
        • Item icon Deed for general use
        • Item icon Deed of assignment of agreement
        • Item icon Deed of gift
        • Item icon Deed of guarantee
        • Item icon Deed of release
        • Item icon General deed of indemnity
        • Folder icon Library of standard clauses for deeds
          • Item icon Amendment clause
          • Item icon Confidentiality clause for defined information - All parties
          • Item icon Confidentiality clause for defined information - One party
          • Item icon Confidentiality clause for terms of agreement - All parties
          • Item icon Confidentiality clause for terms of agreement - One party
          • Item icon Costs clause
          • Item icon Counterparts clause
          • Item icon Dispute resolution clause
          • Item icon Events beyond control clause
          • Item icon Governing law and jurisdiction clause
          • Item icon Interpretation clause
          • Item icon No assignment clause
          • Item icon Notices clause
          • Item icon Severance clause
          • Item icon Waiver clause
          • Item icon Whole agreement clause
      • Folder icon Agreements
        • Item icon Agreement for general use
        • Item icon Heads of agreement
        • Item icon Non-disclosure agreement - Formal
        • Item icon Non-disclosure agreement - Informal
        • Folder icon Library of standard clauses for agreements
          • Item icon Amendment clause
          • Item icon Confidentiality clause for defined information - All parties
          • Item icon Confidentiality clause for defined information - One party
          • Item icon Confidentiality clause for terms of agreement - All parties
          • Item icon Confidentiality clause for terms of agreement - One party
          • Item icon Costs clause
          • Item icon Counterparts clause
          • Item icon Dispute resolution clause
          • Item icon Events beyond control clause
          • Item icon Governing law and jurisdiction clause
          • Item icon Interpretation clause
          • Item icon No assignment clause
          • Item icon Notices clause
          • Item icon Severance clause
          • Item icon Waiver clause
          • Item icon Whole agreement clause
      • Folder icon Execution clauses
        • Item icon Execution clauses - Agreements and contracts
        • Item icon Execution clauses - Deeds
      • Folder icon Statutory declaration
        • Item icon Statutory declaration
      • Item icon Standard annexure note for documents
  • Folder icon B. Settling it early
    • Item icon Notice and demand letters
      A first step is to write to the other party setting out the nature of the client’s claim with sufficient particulars. This information may include, for example:

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    • Item icon Letter to other side to cease and desist
    • Item icon Letter of demand to other side - Debt collection
    • Item icon Letter of notice to other side - Accident
    • Item icon Letter of notice to other side - Slip and fall
    • Item icon Letter to other side's insurer with notice of claim
    • Folder icon Offers and resolution
      • Item icon Offers and resolution
        Litigation can be expensive for everyone involved. Early settlement may be appropriate depending on the facts, litigation risk, and client. A client who makes a concession and settles early will avoid litigation costs but may not recover as well as they might in court.

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      • Item icon Letter to other side's lawyer with formal offer to settle
      • Item icon Letter to other side's lawyer with Calderbank offer
      • Item icon Giving effect to settlement
        If a matter is resolved, the parties then need to decide on:

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      • Item icon Letter to other side's lawyer accepting offer
      • Item icon Full and final release
      • Item icon Authority to settle
      • Item icon Letter to other side's lawyer enclosing settlement release
      • Folder icon If required - Notice of discontinuance
        • Item icon Discontinuance
          If an action has been started but is not yet set down for trial, the plaintiff can discontinue their claim by filing and serving a Notice of Discontinuance. If the matter has been set down for trial, the plaintiff can only discontinue its claim with the parties' consent or by an order of the court.

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        • Item icon Notice of Discontinuance
        • Item icon Letter to other side's lawyer enclosing notice of discontinuance
        • Item icon Affidavit of Ordinary Service
        • Item icon Affidavit of Personal Service
  • Folder icon C. Going to court
    • Item icon Going to court
      Before starting an action, a client should be aware of:

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    • Item icon Practice Directions – Civil
    • Item icon Starting an action by petition to the court
      Rule 2-1(2) of the Supreme Court Civil Rules provides when an action can be started by a petition to the court. A claim started by petition has limitations. These limitations include, for example:

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    • Item icon Petition to the Court
    • Item icon Starting an action by notice of civil claim
    • Item icon Notice of Civil Claim
    • Folder icon Library of events for claim
      • Item icon Example content - Claim pleading against company and guarantor
      • Item icon Example content - Claim pleading debt recovery lawyer's costs
      • Item icon Example content - Claim pleading for goods sold and delivered
      • Item icon Example content - Claim pleading for motor vehicle accident - Damage to property
      • Item icon Example content - Claim pleading for personal injury - Motor vehicle accident
      • Item icon Example content - Claim pleading for personal injury - Other than motor vehicle accident
      • Item icon Example content - Claim pleading money lent
    • Item icon Filing the action
      Once completed, the plaintiff’s Notice of Civil Claim can be filed at any registry of the Supreme Court or online at Court Services Online. The party issuing the claim pays a prescribed fee to the court. The claim is fixed with a seal, court file number, and date.

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    • Folder icon Service
      • Item icon Service
        Personal service A sealed copy of a Notice of Civil Claim must be served personally on each defendant within one year from the date of issue, otherwise it expires.

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      • Item icon Letter of instruction to process server
      • Item icon Affidavit of Ordinary Service
      • Item icon Affidavit of Personal Service
      • Folder icon If required - Application to serve outside British Columbia
        • Item icon Service outside British Columbia
          Service outside British Columbia is governed by r 4-5 of the Supreme Court Civil Rules 2009.

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        • Item icon Notice of Application
        • Item icon Clause - Application to serve outside British Columbia
        • Item icon Affidavit
        • Item icon Clause - Affidavit to serve outside British Columbia
        • Item icon Exhibit stamp
        • Item icon Order made after Application
        • Item icon Clause - Order to serve outside British Columbia
        • Item icon Application record index
      • Folder icon If required - Application for substituted service or renewal of time to serve
        • Item icon Alternatives to personal service or defects with service
          Serving a defendant within the prescribed time, either properly or at all, is sometimes impossible. In these cases, the plaintiff may bring an application for substituted service or renewal.

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        • Item icon Notice of Application
        • Item icon Clause - Application for substituted service and renewal
        • Item icon Affidavit
        • Item icon Clause - Affidavit in support of application for substituted service and renewal
        • Item icon Exhibit stamp
        • Item icon Order made after Application
        • Item icon Clause - Order for substituted service and renewal
        • Item icon Application record index
    • Item icon Letter to other side's insurer enclosing claim
    • Item icon Fast track litigation proceedings
      The purpose of the fast track process is to reduce legal costs and time spent in litigation. A matter proceeding by fast track litigation is tried by a judge only.

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    • Item icon Notice of Fast Track Action
    • Item icon Letter to other side's lawyer enclosing notice of fast track action
    • Item icon Responses to the action
      If an action is started by a petition to the court, the responding party must serve a response to petition. If an action is started by a Notice of Civil Claim, the defendant must provide a response to civil claim.

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    • Folder icon If required - Counterclaims
      • Item icon Counterclaim
        A defendant with a claim against the plaintiff may bring a counterclaim against the plaintiff. A person who is not a party to the action may be added as a defendant by counterclaim. This can occur when the defendant alleges they are indemnified or the party contributed to or caused the dispute. ...

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      • Item icon Counterclaim
      • Item icon Letter to other side's lawyer enclosing counterclaim or third party notice
      • Item icon Response to Counterclaim
      • Item icon Letter to other side’s lawyer serving response to counterclaim or response to third party notice
    • Folder icon If required - Reply
      • Item icon Reply
        If appropriate, a plaintiff files and serves a Reply in response to a defendant’s response to civil claim. A reply is appropriate only in limited circumstances – for example, when a plaintiff intends to rely on a matter not raised in the Notice of Civil Claim that might take the defendant by ...

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      • Item icon Reply
      • Item icon Letter to other side’s lawyer serving reply
    • Folder icon If required - Third party claims
      • Item icon Third party claim
        A defendant may have grounds for a third party claim against a person who is not already a party to the main action. A defendant has grounds to claim when that person:

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      • Item icon Third Party Notice
      • Item icon Letter to other side's lawyer enclosing counterclaim or third party notice
      • Item icon Response to Third Party Notice
      • Item icon Letter to other side’s lawyer serving response to counterclaim or response to third party notice
  • Folder icon D. Default judgment
    • Item icon Default judgment
      Rule 3-8 governs default judgment. A defendant is in default if a claim has been validly served and no defence entered in time. Depending on the type of claim, the plaintiff may pursue default judgment for either:

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    • Item icon Letter to other side warning of default judgment
    • Item icon Letter to client regarding pursuing default judgment
    • Item icon Requisition - General
    • Item icon Default Judgment
    • Item icon Bill of Costs
    • Item icon Affidavit
    • Item icon Clause - Affidavit in support of default judgment
    • Item icon Letter to other side enclosing application for default judgment
  • Folder icon E. Applications
    • Item icon Applications
      Applications are mini contests conducted before the final hearing. An application is brought by a Notice of Application and supported by affidavit evidence.

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    • Item icon Preparing a notice of application
      A Notice of Application must:

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    • Item icon Notice of Application
    • Item icon Affidavit
    • Item icon Exhibit stamp
    • Item icon Consent Order
    • Item icon Letter to other side's lawyer enclosing application
    • Item icon Responding to a notice of application
      A party responding to a notice of application must file and serve an application response with a supporting affidavit on the applicant and every other party. A party who responds to a notice of application is an application respondent.

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    • Item icon Application Response
    • Item icon Letter to other side's lawyer enclosing application response
    • Item icon Application record
    • Item icon Application record index
    • Item icon Affidavit of Ordinary Service
    • Item icon Cross-examination on an affidavit
      No right to cross-examine on an affidavit exists. A party who wishes to cross-examine an affiant must apply to the court for an order to do so. In determining whether to allow cross-examination on an affidavit, the court considers whether there are material facts in issue. It also considers whether ...

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    • Folder icon Summary judgment
      • Item icon Summary judgment
        Rule 9-6 deals with summary judgment. Summary judgment is appropriate when problems with a claim prevent it from proceeding to trial. For example, a plaintiff’s claim may appear to be limitation-barred based on the date the cause of action was discovered. The defendant may then bring a notice ...

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      • Item icon Clause - Affidavit in support - Summary judgment - Plaintiff
    • Folder icon Security for costs
      • Item icon Security for costs
        A defendant who is concerned they will not be able to recover their costs from the plaintiff may bring an application for security for costs. If the defendant’s application is successful, the plaintiff must pay a sum to secure the defendant’s litigation costs before the matter can proceed in court. ...

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      • Item icon Bill of Costs
    • Item icon Summary trial
      A summary trial is heard by a judge in chambers before the scheduled court trial and is based on written evidence. This form of trial allows some actions to be resolved more quickly than a court trial. In accordance with r 9-7(2) of the Supreme Court Civil Rules 2009, a party may apply for a ...

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  • Folder icon F. Challenging pleadings
    • Item icon Challenging pleadings
      A pleading is defined in the Supreme Court Civil Rules to mean a Notice of Civil Claim, a response to civil claim, a reply, a counterclaim, a response to counterclaim a third party notice or a response to third party notice. A pleading contains a party’s allegations of fact that establish their ...

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    • Item icon Demand for particulars
      When the factual allegations in a pleading lack particularity or are insufficient to permit a party to plead a response, the responding party may demand particulars. Unless the particulars are required to respond to a notice of application, a demand for particulars should be served after the ...

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    • Item icon Letter to other side's lawyer demanding particulars
    • Item icon Application to strike out a pleading
      Rule 9-5 deals with applications to strike a pleading. An application to strike out a pleading is appropriate when a pleading:

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    • Item icon Application to stay an action
      An application to stay an action does not dispose of the claim on its merits. The application can be brought in circumstances where the outcome of one action may depend on the outcome of another action between the parties. For example, a plaintiff who has started an action for damages arising from ...

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    • Item icon Application for dismissal
      A defendant can bring an application to dismiss the plaintiff’s claim for want of prosecution – that is, the plaintiff’s claim has not been prosecuted for so long that a fair trial is not possible. If granted, an order to dismiss will end the plaintiff’s claim.

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    • Item icon Determining a point of law
      On consent, the parties to an action can apply to have a point of law arising from the pleadings determined by the court before the trial. This is done by filing a Requisition to have the point of law set down for hearing. The Requisition should:

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    • Item icon Notice of Application
    • Item icon Affidavit
    • Item icon Exhibit stamp
    • Item icon Consent Order
    • Item icon Letter to other side's lawyer enclosing application
    • Item icon Application Response
    • Item icon Letter to other side's lawyer enclosing application response
    • Item icon Application record index
    • Item icon Affidavit of Ordinary Service
  • Folder icon G. Gathering and exchanging evidence
    • Item icon Gathering and exchanging evidence
      The pre-trial discovery process begins once pleadings have closed. Rule 7-1 of the Supreme Court Civil Rules 2009 deals with discovery. Discovery includes:

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    • Folder icon List of documents
      • Item icon Discovery of documents
        Each party must serve a List of Documents on all parties to the action. Rule 7-1 provides that each party must disclose in their list of documents:

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      • Item icon List of Documents
      • Item icon Affidavit of Ordinary Service
      • Item icon Letter to other side's lawyer with request for documents
    • Folder icon Examination for discovery
      • Item icon Examination for discovery
        Rule 7-2 of the Supreme Court Civil Rules 2009 deals with examination for discovery. In examination for discovery, an opposing party is questioned orally to obtain an admission that can be used at trial.

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      • Item icon Appointment to Examine for Discovery
      • Item icon Letter to client confirming examination for discovery date
      • Item icon Letter to other side's lawyer enclosing appointment to examine for discovery
      • Item icon Affidavit of Ordinary Service
    • Folder icon Interrogatories
      • Item icon Interrogatories
        Rule 7-3 of the Supreme Court Civil Rules 2009 deals with interrogatories. Interrogatories are written questions served on another party that must be answered in writing under oath.

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      • Item icon Interrogatories
      • Item icon Example content - Interrogatories
      • Item icon Letter to other side's lawyer enclosing interrogatories
      • Item icon Example content - Response to interrogatories
      • Item icon Affidavit
      • Item icon Affidavit of Ordinary Service
    • Folder icon If required - Expert witnesses
      • Item icon Pre-trial examination of witnesses and experts
        Under r 7-5 of the Supreme Court Civil Rules 2009, a party may bring an application for pre-trial examination under oath of a lay witness or an expert possessing relevant material evidence. Only a person resident in British Columbia can be examined under this rule.

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      • Item icon Expert reports
        An expert’s report on the subject matter of the dispute may be required. A party retaining an expert must send the expert an instruction letter that sets out the requirements of rr 112(2) and 11-6(1) of the Supreme Court Civil Rules 2009.

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      • Item icon Client authority to provide documents
      • Item icon Letter to expert re instructions
      • Item icon Letter to other side's lawyer enclosing expert report
    • Folder icon Depositions
      • Item icon Depositions
        Rule 7-8 of the Supreme Court Civil Rules 2009 deals with depositions. A deposition is a recorded pre-trial examination of a witness that can be tendered at trial.

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      • Item icon Notice of Application
      • Item icon Affidavit
      • Item icon Exhibit stamp
      • Item icon Consent Order
      • Item icon Letter to other side's lawyer enclosing application
      • Item icon Application Response
      • Item icon Letter to other side's lawyer enclosing application response
      • Item icon Application record index
      • Item icon Affidavit of Ordinary Service
    • Item icon Compelling production of documents from non-parties
      An application to compel a non-party to produce a document for inspection in its possession, power, or control may be required. This application can be useful when non-parties such as police or medical professionals control important documents. An application to compel production of a document may ...

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    • Item icon Independent medical evaluations
      When a person’s physical or mental condition is in issue, the court may order the person to undergo an independent medical evaluation, known as an IME, with an appointed medical practitioner or other qualified person: r 7-6(1). In determining if the evaluation is appropriate, the court’s ...

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    • Item icon Notice to Admit
      Rule 7-7 of the Supreme Court Civil Rules 2009 deals with admissions. Admissions are:

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    • Item icon Certificate of Assessment of Costs
    • Item icon Responding to a notice to admit
  • Folder icon H. Mediation and pre-trial
    • Folder icon Mediation
      • Item icon Mediation
        Mediation is a without prejudice process that allows the parties to:

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      • Item icon Notice to Mediate
      • Item icon Letter to other side's lawyer enclosing notice to mediate
      • Item icon Letter to client confirming mediation date
      • Item icon Statement of facts and issues
        Before the mediation, the plaintiff and defendant each prepare and serve a Statement of Facts and Issues on the mediator and all parties to the action. In numbered paragraphs, the statement of facts and Issues sets out the:

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      • Item icon Statement of Facts and Issues
      • Item icon Letter to other side's lawyer enclosing statement of facts and issues
      • Item icon Settlement conferences
        At any stage, the parties can file a Requisition to request a settlement conference. The court can also order a settlement conference. Procedurally, a settlement conference:

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      • Item icon Requisition - General
    • Folder icon Pre-trial
      • Item icon Booking conferences and trial dates
        From November 1 2024 conferences and trial dates can be booked online using the Court Online Booking System (COBS). This replaces the traditional method of scheduling by telephone. Scheduling is still available by telephone or in person at the courthouse if litigants cannot access the online ...

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      • Item icon Case planning
        A case planning conference is held by a judge or associate judge and attended by all parties to the action. The judge or associate judge at a case planning conference makes a case plan order. This order:

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      • Item icon Notice of Case Planning Conference
      • Item icon Case Plan Proposal
      • Item icon Letter to other side's lawyer enclosing notice of case planning conference and proposal
      • Item icon Case Plan Order
      • Item icon Setting a matter down for trial
        Several steps must be completed when setting a matter down for trial. A party who wishes to set a matter down for trial must:

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      • Item icon Notice of Trial
      • Item icon Letter to other side's lawyer confirming trial date
      • Item icon Letter to client confirming trial date
      • Item icon Trial brief
        Rule 12-1.1 requires the parties to file and serve a Trial Brief on all parties as follows:

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      • Item icon Trial Brief
      • Item icon Trial management conference
        On September 1, 2023, the circumstances where a trial management conference is mandatory changed. Rule 12-2(1) provides:

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      • Item icon Letter to client confirming trial management conference date
      • Item icon Affidavit of Ordinary Service
      • Item icon Trial record index
      • Item icon Trial Certificate
  • Folder icon I. Trial and costs
    • Item icon Trial
      Most civil litigation does not reach trial. However, parties who cannot resolve their dispute before trial will have it adjudicated by either a judge or jury.

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    • Item icon Example content - File brief
    • Item icon Lay witnesses
      The evidence of lay witnesses may be relevant to a claim. For example, potential witnesses in a claim for injuries arising from a car accident include:

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    • Item icon Subpoena to Witness
    • Item icon Documents
      A document can include the following:

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    • Item icon Notice to Produce
    • Item icon Trial preparation
      When parties to an action are in general agreement on any facts, an opposing party may agree to file an Agreed Statement of Facts. This limits the issues to be addressed at trial. A brief to assist with the trial should be prepared, which includes the:

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    • Item icon Requirements for impanelling the jury
      To have a matter tried by jury, at least 45 days before the trial date the party requesting a jury must:

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    • Item icon Notice Requiring Trial by Jury
    • Item icon Trial procedure
      Any preliminary applications should be brought at the outset of the trial. This may include applications for the exclusion of witnesses or about the admissibility of evidence. If the trial is being adjudicated by a jury, each party has a right to four peremptory challenges for jury selection. ...

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    • Item icon Costs
      Costs in fast track litigation are generally fixed depending on the length of the trial. However, the court retains discretion on costs. The court may consider an Offer to Settle when determining costs just as it would in the ordinary stream.

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    • Item icon Appointment
    • Item icon Bill of Costs
    • Item icon Affidavit
    • Item icon Letter to other side's lawyer enclosing bill of costs and appointment
    • Item icon Certificate of Costs
    • Item icon Affidavit of Ordinary Service
  • Folder icon J. Appeals
    • Item icon Appeals
      Appeals can be complex and costly. An appeal may culminate in a series of applications or even an application to quash an appeal for want of jurisdiction.

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    • Item icon Supreme Court of British Columbia
      The procedural framework for appeals to the Supreme Court of British Columbia is set out in r 18-3 of the Supreme Court Civil Rules. However, r 18-3 does not apply to appeals from orders made under rr 14-1(29) and 23-6(8.1). Appeals to the court are started by filing notice of an ...

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    • Item icon Notice of Appeal - Standard Directions
    • Item icon Notice of Appeal if Directions Required
    • Item icon Notice of Interest
    • Item icon Letter to other side's lawyer enclosing notice of appeal or notice of interest
    • Item icon Appeals to the Court of Appeal with leave
      A decision to grant leave to appeal is determined based on the circumstances of each case and the interests of justice. Whether leave is in the interests of justice requires an assessment of whether there is an arguable case. An arguable case for appeal applies when:

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    • Item icon Appeals to the Court of Appeal – General process
      An appeal that does not require leave of the court must be brought within 30 days from the date of the order under appeal.

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    • Item icon Notice of Appeal
    • Item icon Letter of instruction to process server
    • Item icon Affidavit of Ordinary Service
    • Item icon Affidavit of Personal Service
    • Item icon Notice of Application
    • Item icon Notice of Appearance - Appeal
    • Item icon Letter to other side's lawyer enclosing notice of application or notice of appearance
    • Item icon Notice of Cross Appeal
    • Item icon Notice of Hearing of Appeal
    • Item icon Factum
  • Folder icon K. Finalizing the matter
    • Item icon Finalizing the matter
      Closing the file

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    • Item icon Letter to client finalizing the matter
    • Item icon Invoice recital - Civil litigation
    • Item icon Closing the file
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