Monday, 7 November 2011

Written Submissions for Short Chambers Applications are OK If Nothing New is Raised

Rule 8-1(16) contains what appears to be a prohibition against filing or submitting "...a written argument in relation to the application other than that included in the party's notice of application or application response."

In Labrecque v. Tyler, Master Bouck referred to R. 8-1(16) and held, without analysis, that:
[48] ... There is no discretion under the Rule to receive written argument in other circumstances. [other than applications over two hours]

[49] Thus, no written argument can or should have been considered by the court.
However, in Simon Fraser University v. A&A Plumbing & Heating Ltd., released today, Master McDiarmid applied a somewhat more contextual analysis and found that only submissions which expand on the Notice of Application by raising additional facts or additional legal issues are considered "written arguments" prohibited by R. 8-1(16). Helpful written submissions which do not create surprise arguments and issues are permitted:

[12] The “Plaintiff’s Submissions” document was essentially the oral submissions I heard, written out. I found it helpful to have the document which included references in the affidavits to the facts set out in the notice of application.

[13] The concern, of course, is that the plaintiff had an unfair advantage. I was alive to that concern.

[14] I interpret “written argument” to refer to an expansion of Parts 2 and 3 of the notice of application by the addition of facts and/or by the raising of legal issues which takes the opposition by surprise.

[15] The “Plaintiff’s Submissions” document did not in my view raise additional facts; nor raise additional legal issues, and thus was not “written argument” within the meaning of Rule 8-1(16).

[16] This is a new provision in the Rules designed to ensure that sufficient details of the applicant’s argument are disclosed in the notice of application so that the response can deal with all points sought to be argued by the applicant. Presumably, the subrule is also aimed at reducing costs.

[17] The question is: does Rule 8-1(16) prevent the presentation of helpful written submissions which do not create surprise arguments and issues?

[18] I have decided it does not.

Two things are notable:

First, notwithstanding the above cases, the practice of handing up written arguments remains common, albeit sometimes counsel refer to them as "speaking notes", and it appears that judges and masters usually accept them.  As summarized in the recently completed CBA survey on the new Rules, opinions differ on whether or not this is a problem:
Several comments (8) noted that the courts regularly end up accepting revised written applications from the parties at the hearing of the application, notwithstanding the prohibition in SCCR 8-1(16), although the comments differed on whether this was a problem:
Despite the new rules, in most chamber applications there continues to be a written submission provided to the court. I see nothing wrong with that.
Unfortunately, counsel continued to arrive on the hearing date with new legal argument and authorities not cited in their Notice of Application, thus defeating the purpose of requiring full argument in the original Notice of Application.
Second, the above decisions are consistent with the court's (or at least Master Bouck's) approach to forcing parties to comply with the Rules by limiting themselves to what they put in the Legal Basis of their Notice of Application.  Thus, in Zecher v. Josh, Master Bouck held that the Legal Basis is an essential part of the Notice of Application or the Response and a failure to include an “effective legal basis for (or against) making the order” may justify dismissing the party’s argument outright.  She also reiterated this conclusion in Balderston v. Aspin:
[26]           Nonetheless, it is worth reiterating that the litigants who ignore the processes under the SCCR risk the application being adjourned or even dismissed: Sutherland v. Banman, 2008 BCSC 1194 (CanLII), 2008 BCSC 1194; Zecher v. Josh, 2011 BCSC 311 (CanLII), 2011 BCSC 311.
 So, counsel beware.