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| B.C. Reg. 221/90 O.C. 1039/90 |
effective September 1, 1990 |
| This archived regulation consolidation is current to August 31, 2007 and includes changes enacted and in force by that date. For the most current information, click here. |
[includes amendments up to B.C. Reg. 193/2007, July 1, 2007]
Rule 46 — Detention, Preservation and Recovery of Property
(1) The court may make an order for the detention, custody or preservation of any property that is the subject matter of a proceeding or as to which a question may arise and, for the purpose of enabling an order under this rule to be carried out, the court may authorize a person to enter upon any land or building.
(2) Where the right of a party to a specific fund is in dispute in a proceeding, the court may order the fund to be paid into court or otherwise secured.
(3) Where property is the subject matter of a proceeding and the court is satisfied that it will be more than sufficient to answer all claims on it, the court at any time may allow the whole or part of the income of the property to be paid, during such period as it may direct, to a party who has an interest in it or may direct that part of the personal property be delivered or transferred to a party.
(4) Where a party claims the recovery of specific property other than land, the court may order that the property claimed be given up to the claimant, pending the outcome of the proceeding, either unconditionally or upon terms relating to giving security, time, mode of trial or otherwise as it thinks just.
(5) Unless the court otherwise orders, if an order is made under subrule (4) the order shall contain the claimant's undertaking to abide by any order which the court may make as to damages arising out of delivery of the property to the claimant or compliance with any other order.
(1) The court may appoint a receiver in any proceeding either unconditionally or on terms, whether or not the appointment of a receiver was included in the relief claimed by the applicant.
(2) Unless the court otherwise orders, a receiver shall give security as the court may direct in either Form 57 or Form 58, and until that security is given, the order appointing the receiver shall not be presented for entry.
(4) Unless the court otherwise orders, a receiver shall file and deliver his or her accounts annually.
(1) Where a person (in this rule called the "applicant") is sued or expects to be sued in respect of property in the person's possession or under the person's control or in respect of the proceeds from a disposition of the property, or receives a claim in respect of the property or proceeds by or from 2 or more persons (in this rule called the "claimants") making adverse claims and the applicant claims no beneficial interest in the property, the applicant may apply to the court for relief by way of interpleader.
(2) A person who makes a claim to or in respect of property taken or intended to be taken by a sheriff in the execution of any process, or to the proceeds from a disposition of the property, shall deliver to the sheriff written notice of the person's claim and the person's address for delivery.
(3) On receipt of a notice of claim, a sheriff shall forthwith deliver a copy to the person who caused the process to issue, and that person shall, within 7 days after receiving the copy, deliver to the sheriff a written notice stating whether that person admits or disputes the claim.
(4) On receipt of a notice admitting a claim, a sheriff shall release any property the claim to which is admitted, and the court may restrain the bringing of a proceeding against the sheriff for or in respect of having taken possession of the property and, unless the court otherwise orders, a person who admits a claim is only liable to the sheriff for any costs, fees and expenses incurred by the sheriff before receipt of the notice admitting the claim.
(5) On receipt of a notice disputing a claim or on the failure of the person who caused the process to issue to give the sheriff the notice within the time required by paragraph (b), the sheriff may apply for interpleader relief.
(6) An application for interpleader relief shall be made by petition, unless it is made in a proceeding already commenced, in which case it may be made by notice of motion.
(7) An application for interpleader relief shall be supported by an affidavit stating the names and addresses of the claimants of whom the applicant has knowledge and that the applicant
(a) claims no beneficial interest in the property in dispute, other than for costs, fees or expenses,
(b) does not collude with any claimant of the property, and
(c) is willing to deliver the property to the court or to dispose of it as the court may direct.
(8) An application for interpleader relief may be made without notice, and the court may deal with the matter summarily or may give directions for service.
[am. B.C. Reg. 191/2000, s. 10.]
(9) On the hearing of an application for interpleader relief the court may
(a) order a claimant to be made a party in a proceeding already commenced in substitution for or in addition to the applicant,
(b) order an issue between the claimants to be stated and tried and may direct which claimant is to be plaintiff and which defendant,
(c) on the request of the applicant or a claimant, determine the rights of the claimants summarily,
(d) if a claimant fails to attend, or attends and fails or refuses to comply with an order made in the proceeding, make an order declaring the claimant and all persons claiming under the claimant be forever barred from prosecuting the claim against the applicant, and all persons claiming under the claimant without affecting the rights of the claimants as between themselves,
(e) stay any further step in a proceeding,
(f) where there are interpleader applications pending in several proceedings, make an order that shall be binding on all the parties to the various proceedings,
(g) order the costs of the applicant to be paid out of the property or proceeds,
(h) declare that the liability of the applicant with respect to the property or the proceeds is extinguished, and
(i) make any other order it thinks just.
[am. B.C. Reg. 55/93, s. 17.]
(1) Where by an enactment, an appeal or an application in the nature of an appeal from the decision, direction or order of any person or body, including the Provincial Court, is authorized to be made to the court or to a judge, the appeal shall be governed by this rule to the extent that it is not inconsistent with any procedure provided for in the enactment.
[am. B.C. Reg. 301/97, s. 1 (a).]
(2) An appeal shall be commenced by filing in a registry a notice of appeal in Form 59 or 59A.
[am. B.C. Reg. 275/95, s. 1.]
(3) A notice of appeal must include
(a) the standard set of directions, in the form directed by the Chief Justice, governing the conduct of the appeal, or
(b) an application for directions as to the conduct of the appeal.
[en. B.C. Reg. 147/95, s. 5.]
(3.1) If the notice of appeal includes a standard set of directions under subrule (3) (a), the appeal must be conducted in accordance with those directions unless the court otherwise directs.
[en. B.C. Reg. 147/95, s. 5.]
(3.2) An application for directions under subrule (3) (b) must be set for hearing on a date not less than 7 days after the notice of appeal has been served in accordance with subrule (4) unless the court otherwise directs.
[en. B.C. Reg. 147/95, s. 5.]
(4) A notice of appeal shall be served upon the person or body which gave the decision or direction or made the order and on all other persons who may be affected by the order sought, unless the court otherwise directs.
(5) The court may give directions it considers necessary for the proper hearing and determination of the appeal and, without limiting the generality of that, may make an order
(a) that documents or transcripts or minutes be produced,
(b) that evidence be adduced by way of affidavit, or that it be given orally,
(c) that the appeal be determined by way of stated case, or argument upon a point of law,
(d) prescribing time limits for taking steps in and for the hearing of the appeal, or
(e) that the appeal be disposed of summarily,
and may exercise the powers of the court as on an originating application.
(6) A person who intends to oppose the appeal shall enter an appearance under Rule 14 (1) (b.1).
[en. B.C. Reg. 165/97, s. 13.]
(7) After obtaining from the registrar a date for the hearing of the appeal, if the appellant wishes to proceed with the appeal, the appellant must set the appeal for hearing on that date by
(a) filing a notice of hearing of appeal in Form 59B, and
(b) serving a copy of the notice of hearing of appeal on each respondent.
[en. B.C. Reg. 301/97, s. 1 (b).]
(8) An appellant may abandon an appeal by
(a) filing a notice of abandonment of appeal in Form 59C, and
(b) serving a copy of the notice of abandonment of appeal on each respondent.
[en. B.C. Reg. 301/97, s. 1 (b).]
Rule 50 — Foreclosure and Cancellation
(1) A proceeding for foreclosure of the equitable right to redeem mortgaged property or for redemption shall be commenced by petition.
(2) All persons whose interest in or claim to the mortgaged property is sought to be extinguished and all persons against whom any relief is sought shall be made respondents, and unless the court otherwise orders, it is not necessary to join any other person as a respondent.
(3) Notwithstanding Rule 8 (1) a petitioner under this rule may join in the proceeding any claim arising out of the mortgage or out of any bond or collateral security or obligation given for the mortgage debt and may join as a party any person who is liable to pay the mortgage debt.
(4) A person who registers or files in a land title office an interest, right or claim in or to the mortgaged property after the petitioner has registered a certificate of pending litigation in respect of the proceeding against the mortgaged property, need not be served with the petition and is bound by an order made in the proceeding, but the person may enter an appearance in the proceeding.
[en. B.C. Reg. 55/93, s. 18.]
(5) The court may
(a) make a final order of foreclosure or order that a respondent shall, within a redemption period that the court may fix, or forthwith, pay to the petitioner what is due under the mortgage and for costs, and that, in default of payment, the respondent shall be foreclosed of his or her equity of redemption,
(b) determine summarily or order that an account be taken of and that the registrar certify, what is due to the petitioner or to any person on the date of hearing of the petition or the accounting and either
(i) the daily amount of interest, or
(ii) if the daily amount of interest may fluctuate, the method for calculating such interest
from the date of the hearing of the petition or the accounting to the expiration of the period of redemption,
(c) determine summarily or order an inquiry to determine any issues raised between respondents, including priorities,
(d) determine summarily or order an inquiry to determine whether a person should be served with the petition,
(e) order at what times, on what terms and in what order of priority respondents may redeem the mortgaged property and that in default they shall be foreclosed of any interest, right or claim in or to the mortgaged property,
(f) grant judgment for any amount found due, or which may be certified to be due on an accounting,
(g) order a sale of the mortgaged property,
(h) grant further or corollary relief, and
(i) make an order under Rule 52 (11).
(6) In default of payment in accordance with an order made under subrule (5), a final order of foreclosure may be granted against a respondent on application by the petitioner.
(7) A party of record may apply at any time for an order that the mortgaged property be sold or be put up for sale.
(9) Notwithstanding that the time for redemption has not expired, the person having conduct of a sale may apply to the court for an order confirming the sale, directing the disposition of the proceeds and vesting title in the purchaser.
(10) A respondent desiring to redeem may, upon paying to the petitioner the amount due under the mortgage, give notice to the petitioner to assess costs, and if, within 14 days of delivery of the notice, the petitioner has not filed a bill of costs for assessment, the petitioner shall not be entitled to costs.
(11) This rule applies to a proceeding by a vendor on an agreement for sale of land in which a claim is made for specific performance of an agreement for sale and for its cancellation upon failure to perform.
[en. B.C. Reg. 55/93, s. 19.]
(2) An affidavit must
(a) must be expressed in the first person and show the name, address and occupation of the deponent,
(b) if the deponent is a party or the solicitor, agent, director, officer or employee of a party, must state that fact,
(c) must be divided into paragraphs numbered consecutively, and
(d) may be in Form 60.
(2.1) An affidavit, other than an affidavit of service or of delivery, must be endorsed, in the top right hand corner of the title page, with
(a) the initials and surname of the deponent,
(b) the sequential number of the affidavit made by that deponent in the same proceeding, and
(c) the date on which the affidavit was made,
as in the following example:
| J. Doe #3 | |
| July 24, 2000. |
[en. B.C. Reg. 191/2000, s. 11.]
(3) An affidavit is made when
(a) the affidavit is sworn or affirmed by the deponent,
(b) the deponent
(i) signs the affidavit, or
(ii) where the deponent is unable to sign the affidavit, places his or her mark on it, and
(c) the jurat of the affidavit is signed by the person before whom it is sworn or affirmed.
(4) In an affidavit or in a certificate placed on an exhibit, the word "sworn" shall be deemed to include the word "affirmed".
(5) Where it appears to a person before whom an affidavit is made that a deponent is unable to read it, he or she shall certify in the jurat that the affidavit was read in his or her presence to the deponent who seemed to understand it.
(6) Where it appears to a person before whom an affidavit is to be made that the deponent does not understand the English language, the affidavit shall be interpreted to the deponent by a competent interpreter who shall certify by endorsement in Form 60 on the affidavit that he or she has interpreted the affidavit to the deponent.
(7) An exhibit referred to in an affidavit must be identified by the person before whom it is made by signing a certificate placed on the exhibit in the following form:
This is Exhibit .......... referred to in the affidavit of .............................. made before me on .................... [date].
(8) An exhibit referred to in an affidavit need not be filed, but must be made available for the use of the court and for the prior inspection of a party to the proceeding and, in the case of a documentary exhibit not exceeding 5 pages, a true reproduction must be attached to the affidavit and to all copies served or delivered.
(8.1) Each page of the documentary exhibits referred to in an affidavit, other than an affidavit of service or of delivery, must be numbered sequentially, beginning with the first page of the first exhibit and ending with the last page of the last exhibit,
(a) on the original exhibits and on all copies that are served or delivered, and
(b) even though one or more of those exhibits is not attached to the affidavit.
[en. B.C. Reg. 191/2000, s. 11.]
(9) The person before whom an affidavit is made shall initial all alterations in the affidavit, and unless so initialled the affidavit shall not be used in a proceeding without leave of the court.
(10) An affidavit may state only what a deponent would be permitted to state in evidence at a trial, except that, if the source of the information is given, an affidavit may contain statements as to the deponent's information and belief, if it is made
(a) in respect of an application for an interlocutory order, or
(b) by leave of the court under Rule 40 (52) (a) or 52 (8) (e).
(11) With leave of the court an affidavit may be used in evidence notwithstanding an irregularity in form.
(12) An affidavit may be used in a proceeding notwithstanding that it was made before the proceeding was commenced.
(13) If an affidavit is required for use in a proceeding and the proposed deponent is a patient as defined in the Patients Property Act, the affidavit may be sworn, on information and belief, by the litigation guardian of the patient.
[en. B.C. Reg. 161/98, s. 15; am. B.C. Reg. 83/2002, Sch. s. 1.]
Rule 51A — Setting Down Applications For Hearing
[en. B.C. Reg. 367/2000, Sch. s. 5.]
(2) In this rule:
"applicant" means a person bringing an originating and interlocutory application;
"court day" means a day on which the registry is open;
"respondent" means a person who has delivered a response in Form 124.
[am. B.C. Reg. 203/2001, s. (b).]
(3) An applicant wishing to set an application down for hearing must file
(a) 2 copies of a notice of hearing in Form 126,
(b) the original notice of motion, if not already filed, and
(c) 2 copies of one of the following documents setting out or marked up in such a way as to indicate the relief that is to be sought at the hearing:
(i) a requisition;
(ii) the notice of motion or the claim for relief in the petition, as the case may be.
[am. B.C. Reg. 201/2004, s. 1.]
(4) Except as provided for by subrule (12) (f), a notice of hearing must be filed,
(a) in the case of an application without notice or an application to be made by consent, at any time before the hearing of the application, and
(b) in any other case, at any time before noon on the day before the date set for the hearing of the application.
[am. B.C. Reg. 198/2003, s. 8 (a).]
(5) The hearing must be set for 9:45 a.m. on a date on which the court holds chambers or at such other time or date as has been fixed by the court or a registrar.
(6) If the application is estimated to take more than 2 hours, the date and time of hearing must be fixed by the registrar.
(7) The notice of hearing, whether filed or unfiled, must be delivered to each respondent in accordance with subrule (8) unless the application is to be made without notice or is to be made by consent.
[am. B.C. Reg. 198/2003, s. 8 (b).]
(8) The applicant must deliver the notice of hearing to each respondent,
(a) if the applicant or any respondent has estimated that the time required for the hearing of the application will be more than 30 minutes, at least 7 clear days before the date set for the hearing, or
(b) in any other case, at least 2 clear days before the date set for the hearing.
(9) If the application is to be made without notice, the applicant must file, with the notice of hearing, the original of every affidavit, and of every other document, that
(a) has not already been filed in the proceeding, and
(b) is to be referred to at the hearing.
(10) If the application is to be made by consent, will be unopposed, or will be opposed but is not estimated by the applicant or by any respondent to take more than 30 minutes, the applicant must file, with the notice of hearing and other documents referred to in subrule (3),
(a) the original of every affidavit, and of every other document, that
(i) is delivered by the applicant to a respondent with respect to the application, and
(ii) is to be referred to at the hearing, and
(b) a copy of every response, affidavit and other document that
(i) was delivered by a respondent to the applicant with respect to the application, and
(ii) is to be referred to at the hearing.
(11) If the application will be opposed, each respondent must, before the hearing commences, file the original of every affidavit, and of every other document, that
(a) was delivered by that respondent to the applicant with respect to the application, and
(b) is to be referred to at the hearing by that respondent.
(12) If the application will be opposed and the applicant or any respondent has estimated that the time required for the hearing of the application will be more than 30 minutes,
(a) the applicant and each respondent must prepare an outline in Form 125 and
(i) the applicant must deliver the applicant's outline to each respondent with or after delivery of the applicant's reply affidavits and at least 7 days before the date set for the hearing, and
(ii) each respondent must deliver that respondent's outline to the applicant and to each other respondent at least 2 days before the date set for the hearing,
(b) the applicant must compile a chambers record in a ring binder or in some other form of secure binding,
(c) the chambers record must contain, in consecutively numbered pages, or separated by tabs, the following documents in the following order:
(i) a title page bearing the style of proceeding and the names of counsel;
(ii) an index;
(iii) a copy of the applicant's outline;
(iv) a copy of the outline of each respondent;
(v) a copy of the petition or notice of motion, as the case may be;
(vi) a copy of each response in Form 124;
(vii) a copy of every affidavit, and of every other document other than a written argument, that is to be referred to at the hearing,
(d) the chambers record may contain any of the following:
(i) a draft order;
(ii) a written argument;
(iii) a list of authorities;
(iv) a draft bill of costs,
(e) the chambers records must not contain
(i) affidavits of service,
(ii) copies of authorities, including case law, legislation, legal articles or excerpts from text books, or
(iii) any other documents unless they are included with the consent of all the parties.
(f) the applicant must file, with the notice of hearing and other documents referred to in subrule (3), between 9:00 a.m. on the second court day before, and noon on the day before, the date set for the hearing, or within any other time period set by the Chief Justice by practice direction in relation to the registry in which the filing must occur,
(i) the original of every affidavit, and of every other document, that
(A) was delivered by the applicant to a respondent with respect to the application, and
(B) is to be referred to at the hearing, and
(ii) the chambers record, and
(g) the applicant must deliver a copy of the chambers record index to each respondent by noon of the court day before the date set for the hearing.
[am. B.C. Reg. 73/2001.]
(13) If a respondent intends to bring on an application for hearing at the same time as the applicant's application and the applications together are estimated by any party to take more than 30 minutes to hear, subrule (12) applies and the parties must, so far as is possible, prepare and file a joint chambers record and agree to a date for the hearing of both applications.
(14) Subject to the direction of the judge or master in chambers, the registrar's clerk must return the chambers record to the applicant
(a) at the conclusion of the hearing, or
(b) if the hearing of the application is adjourned to a date later than the following court day, after that adjournment.
(15) If the chambers record has been returned to the applicant under subrule (14) (b), the applicant must refile the chambers record between 9:00 a.m. on the second court day before, and noon on the day before, the new date set for the hearing of the application.
(16) If any additional affidavits are filed and delivered under Rule 10 (8) or 44 (9), the applicant must file an amended chambers record containing those affidavits.
(17) The court file need not be brought into chambers unless
(a) the judge or master hearing the application requests it, or
(b) a party requisitions the court file, by noon on the court day before the date set for the hearing of the application, by filing a requisition to that effect.
[am. B.C. Reg. 201/2004, s. 1.]
(18) If the applicant does not set an application down for hearing within a reasonable time after a respondent has requested the applicant to do so, a respondent may apply by requisition on 2 days notice for directions.
[am. B.C. Reg. 201/2004, s. 1.]
(1) All originating applications and, unless made in the course of trial, all interlocutory applications, shall be heard and disposed of by the court in chambers.
(2) Without limiting the generality of subrule (1), the following matters shall be heard and disposed of by the court in chambers:
(a) appeals from and applications to confirm, vary or set aside orders, reports, certificates or recommendations of a master, registrar, special referee or other officer of the court;
(b) actions or issues in actions that have been ordered to be proceeded with by affidavit or on documents before the court, and special cases and hearings on a point of law;
(c) applications for judgment under Rules 17, 18, 18A, 25 and 31;
(d) applications to vary or set aside a judgment;
(e) matters which, being otherwise proceeded with by action, are ordered to be disposed of in chambers.
(3) In this rule, "application" includes all proceedings that may be heard and disposed of in chambers.
(4) If a party to an application fails to attend, whether on the return of the application or at the time appointed for the consideration of the matter, the court may proceed if, considering the nature of the case, it thinks it expedient to do so, and may require evidence of service it thinks necessary.
[en. B.C. Reg. 55/93, s. 20 (a).]
(5) If the court has proceeded under subrule (4), the proceeding shall not be reconsidered unless the court is satisfied that the party failing to attend was not guilty of wilful delay or default.
[en. B.C. Reg. 55/93, s. 20 (b).]
(6) If an application is not disposed of on the return date, the parties shall attend from time to time without further notice at such time as may be appointed.
(7) Each application to be spoken to, when set down for hearing, must be entered in the registry in a list kept for that purpose.
[en. B.C. Reg. 367/2000, Sch. s. 6.]
(8) On an application, evidence shall be given by affidavit, but the court may
(a) order the attendance for cross-examination of a deponent, either before the court or before another person as the court directs,
(b) order the examination of a party or witness, either before the court or before another person as the court directs,
(c) give directions required for the discovery, inspection or production of a document or copy thereof,
(d) order an inquiry, assessment or accounting under Rule 32, and
(e) permit other forms of evidence to be adduced.
(9) Except in cases of urgency, an application shall be heard in a place open to the public when the application is made, unless the court, in the case of a particular application, directs that for special reasons the application ought to be dealt with in private.
(10) Where an application has been made returnable on a day on which the court does not hold chambers, the application will stand adjourned without order to the next day on which the court holds chambers.
(11) On an application the court may
(a) grant or refuse the relief claimed in whole or in part, or dispose of any question arising on the application,
(b) adjourn the application from time to time, either to a particular date or generally, and when the application is adjourned generally, a party may set it down on 2 days' notice for further hearing,
(c) obtain the assistance of one or more experts, in which case Rule 32A applies, and
(d) order a trial of the proceeding, either generally or on an issue, and order pleadings to be filed, and may give directions for the conduct of the trial and of pre-trial proceedings, and for the disposition of the application.
[am. B.C. Reg. 10/92, s. 8.]
(12) If it appears to the court that a petition or notice of motion ought to have been but was not served on or delivered to a person, the court may
(a) dismiss the application or dismiss it only against that person,
(b) adjourn the application and direct that service or delivery be effected, or that notice be given in some alternate manner, to that person, or
(c) direct that any order made, together with any other documents the court may order, be served on or delivered to that person.
[en. B.C. Reg. 191/2000, s. 12.]
(12.1) If the nature of the application or the circumstances render service of a petition or notice of motion impracticable or unnecessary, or in case of urgency, the court may make an order without notice.
[en. B.C. Reg. 191/2000, s. 12.]
(12.2) If an order is made without notice by reason of urgency, a copy of the order and the documents filed in support must be served by the party obtaining the order on each person who is affected by the order.
[en. B.C. Reg. 191/2000, s. 12.]
(12.3) On the application of a person affected by an order made without notice, the court may vary or set aside the order.
[en. B.C. Reg. 191/2000, s. 12.]
(14) The registrar or the registrar's clerk shall attend at and keep notes of all proceedings in chambers with a short statement of the questions or points decided or orders made at every hearing.
Rule 53 — Masters, Registrars and Special Referees
(1) A master hearing an application has the powers of the court set out in Rule 52 (4) to (12).
(3) A master has the powers of the court to dispose of all non-contentious business in the administration of estates.
(4) A registrar may, in respect of any registrar’s hearing, whether before that registrar or any other registrar,
(a) extend, shorten or limit the time for any step in the registrar’s hearing,
(b) exercise the powers set out in Rule 32 (5),
(c) exercise the powers that, under Rule 52 (4) and (5), may be exercised by the court, and
(d) direct the parties to attend a pre-hearing conference.
[en. B.C. Reg. 136/2005, s. 5.]
(4.1) Without limiting Rule 32 (5), a registrar conducting a pre-hearing conference may give directions for the conduct of any registrar’s hearing, whether or not that registrar’s hearing is before the registrar conducting the pre-hearing conference, including, without limitation, directions respecting the following:
(a) the production of documents;
(b) oral examinations for discovery;
(c) delivery of notices to admit;
(d) delivery of experts’ reports;
(e) delivery of witness lists;
(f) any other matter that may assist in the just and efficient determination of the issues.
[en. B.C. Reg. 136/2005, s. 5.]
(5) If a matter appears to the master proper for the decision of a judge, the master may refer it to a judge, and the judge may either dispose of the matter or refer it back to the master with directions.
[en. B.C. Reg. 165/97, s. 14.]
(5.1) If a matter appears to the registrar proper for the decision of a judge or master, the registrar may refer it to a judge or master, and the judge or master may either dispose of the matter or refer it back to the registrar with directions.
[en. B.C. Reg. 165/97, s. 14.]
(6) A person affected by an order or decision of a master, registrar or special referee may appeal the order or the decision to the court.
(7) The appeal may be by way of summary reference from the master, registrar or special referee at the request of a party or by filing a notice of appeal in Form 61 within 14 days after the order or decision complained of.
(8) Unless otherwise ordered, there shall be at least 2 days between the service of the notice and the hearing.
(9) An appeal from the decision of a master or registrar is not a stay of proceeding unless so ordered by the court or the master.
[en. B.C. Reg. 55/93, s. 21.]
(1) In this rule:
"reciprocally enforceable judgment" means a judgment that may be registered under Part 2 or Part 4 of the Court Order Enforcement Act;
"convention" means the Convention for the Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters, the English language version of which is set out in Schedule 4 of the Court Order Enforcement Act.
(2) An application to register a reciprocally enforceable judgment shall be made by originating application.
(3) The application for registration of a reciprocally enforceable judgment shall be supported by an affidavit
(a) exhibiting
(i) a certified copy of the judgment under the seal of the original court,
(ii) where section 29 (2) of the Court Order Enforcement Act applies to the application, the certificate referred to in section 29 (3), and
(iii) a certified translation of the judgment or certificate if made in a language other than English, and
(b) stating, to the best of the information and belief of the deponent,
(i) that the judgment creditor is entitled to enforce the judgment,
(ii) the amount presently owing on the judgment,
(iii) the full name, occupation and usual or last known residence or place of business of the judgment creditor and judgment debtor respectively,
(iv) whether the judgment debtor
(A) was personally served with the process of the original court,
(B) was served with the process of the original court other than through personal service, or
(C) participated in the proceeding or otherwise submitted to the jurisdiction of the original court, and
(v) that the judgment is not one which is disqualified from registration either under section 29 (6) of the Court Order Enforcement Act or under Article II, paragraph 2, or Article IV, paragraph 1, of the convention, whichever is applicable.
(4) Notice of an application to register a reciprocally enforceable judgment need not be given to the judgment debtor if
(a) the application is made under Part 4 of the Court Order Enforcement Act, or
(b) the application is made under Part 2 of the Court Order Enforcement Act and section 29 (2) of that Act applies to the application.
[en. B.C. Reg. 191/2000, s. 13.]
(6) If a reciprocally enforceable judgment is registered, and the judgment debtor had no notice of the application for registration, notice of the registration shall be given to the judgment debtor within one month after the registration.
(7) The court may order that the registration of a judgment under Part 4 of the Court Order Enforcement Act be set aside if the judgment debtor was not duly served with the process of the original court, unless the judgment debtor participated in the proceeding or otherwise submitted to the jurisdiction of the original court.
(8) The court may make an order staying or limiting the enforcement of a judgment registered under Part 4 of the Court Order Enforcement Act, subject to any terms and for any period the court considers appropriate if the judgment is not final, an appeal is pending, or the time for appeal has not expired.
(9) A defendant in an action on a foreign judgment, whether or not it is a reciprocally enforceable judgment, on proof that an appeal or other proceeding in the nature of an appeal is pending, or the time for appeal has not expired, may apply for an order staying the proceeding until the determination of the appeal or other proceeding on terms that the court may impose.
Rule 54.1 — Canadian Judgments
[en. B.C. Reg. 118/2006.]
(1) In this rule, "Canadian judgment" has the same meaning as in the Enforcement of Canadian Judgments and Decrees Act.
(2) A person wishing to register a Canadian judgment under the Enforcement of Canadian Judgments and Decrees Act must, for the purposes of section 3 (1) (b) of that Act, file in the registry a certified English translation of the Canadian judgment if the judgment was made in a language other than English.
Rule 55 — Admiralty Jurisdiction
(1) This rule applies where an action may be brought in rem against a ship or other property.
(2) Except to the extent that jurisdiction has been otherwise specially assigned, an action may be brought in rem against a ship or other property that may be brought in rem in the Federal Court of Canada in all cases in which a claim for relief is made under or by virtue of Canadian maritime law or any other law of Canada relating to navigation and shipping.
[am. B.C. Reg. 95/96, s. 20.]
(3) An action in rem shall be commenced by issuing a writ of summons in Form 107.
(4) An action in rem may be commenced with an action in personam by the issuance of one writ of summons in Form 108 and may be joined with another proceeding in accordance with Rule 5.
(5) In an action in rem the writ may be served in British Columbia,
(a) upon a ship or other property on board a ship by affixing a copy of the writ to a conspicuous part of the ship that is protected from the elements to the extent practicable, and
(b) upon property that is not on board a ship by
(i) attaching a copy of the writ to a conspicuous part of the property protected from the elements to the extent practicable, or
(ii) by personal service on the person having apparent custody of the property.
[am. B.C. Reg. 101/2001, s. 2.]
(6) In an action in rem an appearance may be filed in the name of the property named.
(7) No judgment may be taken in an action in rem in default of an appearance being filed except by application to the court.
(8) A person who files a statement of defence to an action in rem shall plead the nature of the interest that the person claims in the ship or other property.
(9) A party may, at any time after an action in rem has been commenced, apply for a warrant for the arrest of the property named by filing with the registrar an "Affidavit to Lead Warrant" in Form 109.
(10) The registrar may, after reading the affidavit,
(a) issue the warrant, or
(b) refer the matter to the court and the court may issue the warrant, subject to any directions that the court may give.
(13) The warrant shall be served by a person authorized to serve a writ of execution in the manner provided by subrule (5).
(14) The person who serves a warrant shall file proof of service forthwith after service is effected.
(15) The arrest of property that is authorized by the warrant to be arrested takes effect at the time the warrant is served.
(16) After arrest no person shall move the property that has been arrested, unless the court permits it or all parties interested in the action consent.
(17) After property has been arrested, the court may make an order for its safety and preservation on terms that the court considers just and in particular may,
(a) authorize the property to be moved, and
(b) order that perishable property be disposed of with the proceeds to be paid as directed by the court.
(18) The court may, on application of any interested party, authorize a person to take possession of, and assume responsibility for, property that has been arrested under this rule, but the possession and responsibility shall otherwise continue in the person or persons in possession of the property immediately before the arrest.
(19) The court shall not make an order under subrule (18) unless the court is satisfied that the party making the application has paid or given adequate security for all fees, charges and expenses that will be incurred while the property is in the possession of the person authorized under subrule (18).
(20) A person who wishes to prevent the release of any property that has been arrested under this rule or who wishes to prevent the payment out of court of proceeds of the disposition of property that has been arrested must file a caveat in Form 111 in the registry from which the warrant was issued.
(21) A person who has entered a caveat may withdraw it by filing a notice to that effect in Form 112.
(22) Any person who suffers damages or costs as a result of a caveat being filed without sufficient justification may apply to the court to have those damages and costs summarily determined.
(24) If the court finds that the caveator cannot show that there was sufficient justification for entry of the caveat, the court shall summarily determine the amount of damages and costs suffered by the applicant and make an order for payment accordingly.
(25) The court may, upon application of any person having an interest in property arrested under this rule, order the release of the property arrested upon bail being posted.
(26) Bail to answer judgment and obtain the release of property arrested under this rule may be posted by making a payment into court as bail in Form 113 or by delivering to the registrar the guarantee of a chartered bank of Canada or the bond of any surety company licensed to do business in British Columbia in Form 114 or in the manner as the parties may agree or the court may order.
(27) The amount of bail to be posted shall be the lesser of
(a) an amount sufficient to answer judgment in the proceedings against the property arrested, or
(b) the appraised value of the property.
(28) Unless the court otherwise orders, notice of an application for the release of property arrested under this rule shall be served at least one day before the application is heard
(a) on the party to the action at whose instance the arrest was made, and
(b) on any person having filed a caveat to prevent the property from being released from arrest.
(29) Notice of an application shall include the amount of any bail to be posted and the name of the bank or surety company to be posting the bail.
(30) The registrar shall issue a release from arrest in Form 115 when
(a) the court orders the release of the property arrested under this rule, or
(b) consent to the release of the property arrested under this rule is given by the party at whose instance the property was arrested and by any and all persons who filed caveats to prevent the release of the property from arrest.
(31) On delivery of the release from arrest to the person in possession and on payment of all fees to and charges incurred in respect of the arrest and custody if any, of the property arrested, the property is released from arrest.
Collisions at Sea — The "Preliminary Act"
(32) Unless the court otherwise orders, where there is an action arising out of a collision of ships at sea, the following special provisions in subrules (33) to (37) apply.
(33) Where this rule applies, the statement of claim, statement of defence, counterclaim and any other pleadings need not contain any particulars concerning the collision other than those particulars that are necessary to identify the collision to an opposing party.
(34) The statement of claim, statement of defence and any counterclaim shall be accompanied by a sealed envelope that bears the style of proceeding and in which has been enclosed a statement of particulars, to be known as a "preliminary act", that contains the following particulars:
(a) the names of the ships which came into collision and the names of their masters;
(b) the time of the collision;
(c) the place of the collision;
(d) the direction and force of the wind;
(e) the state of the weather;
(f) the state and force of the tide or, if the collision occurred in non-tidal waters, of the current;
(g) the course being steered and the speed through the water of the ship when the other ship was first seen or immediately before any measures were taken with reference to her presence, whichever was the earlier, and all subsequent alterations to the course or speed of the ship up to the time of the collision;
(h) the lights, if any, carried by the ship;
(i) the distance and bearing of the other ship if and when her echo was first observed by radar;
(j) the distance, bearing and approximate heading of the other ship when first seen;
(k) the lights, if any, of the other ship which were first seen;
(l) the lights, if any, of the other ship other than those first seen which came into view before the collision;
(m) the measures which were taken and when to avoid the collision;
(n) the parts of each ship which first came into contact and the approximate angle as illustrated by an appropriate sketch annexed, between the two ships at the moment of contact;
(o) the sound signals that were given, if any, and when;
(p) the fault or default, if any, attributed to the other ship;
(q) the sound signals, if any, that were heard from the other ship and when.
[am. B.C. Reg. 201/2004, s. 7.]
(35) The preliminary act shall be in parallel columns such that the respective particulars referred to in subrule (34) (a) to (q) in respect of each ship can be easily compared.
(36) A preliminary act shall not be opened unless all parties consent or the court, on application of one of the parties, orders it to be opened.
(37) After a preliminary act has been opened, it shall form part of the appropriate pleadings of the party.
(1) The power of the court to punish contempt of court shall be exercised by an order of committal or by imposition of a fine or both.
(2) An order against a corporation wilfully disobeyed may be enforced by one or more of the following:
(a) imposition of a fine upon the corporation;
(b) committal of one or more directors or officers of the corporation;
(c) imposition of a fine upon one or more directors or officers of the corporation.
(3) Instead of or in addition to making an order of committal or imposing a fine, the court may order a person to give security for the person's good behaviour.
(4) A person who is guilty of an act or omission described in Rule 2 (5) or 40 (19), in addition to being subject to any consequences prescribed by those rules, is guilty of contempt of court and subject to the court's power to punish contempt of court.
(5) Where the court is of the opinion that a person may be guilty of contempt of court, it may order, by warrant in Form 63 directed to a sheriff or other officer of the court or to a peace officer, that the person be apprehended and brought before the court. On the person being brought before the court, the court in a summary manner may adjudge the innocence or guilt of the person and punish the person for the contempt, if any, or may give the directions it thinks fit for the determination of the person's innocence or guilt and punishment.
(6) Where the court is of the opinion that a corporation may be guilty of contempt of court, it may order by its warrant in Form 63 directed to a sheriff or other officer of the court or to a peace officer, that any director, officer or employee of the corporation be apprehended and brought before the court. On the person being brought before the court, the court in a summary manner may adjudge the innocence or guilt of the corporation and punish the corporation for the contempt, if any, or may give the directions it thinks fit for the determination of its innocence or guilt and the punishment to be imposed.
[am. B.C. Reg. 143/94, s. 11.]
(6.1) The court may order the release of a person apprehended under subrule (5) or (6) on receiving an undertaking in Form 121 from that person.
[en. B.C. Reg. 143/94, s. 11.]
(6.2) A release order under subrule (6.1) shall be in Form 122.
[en. B.C. Reg. 143/94, s. 11.]
(7) A party taking proceedings for contempt shall serve the alleged contemnor with a copy of the notice of motion and all affidavits in support of it at least 7 days before the hearing of the application.
(8) An application under subrule (7) shall be supported by affidavit setting out the conduct alleged to be contempt of court.
(9) The court may give directions as to the mode of hearing the application, including an order that the matter be transferred to the trial list under Rule 52 (11).
(10) Where the court is satisfied that a person has actual notice of the terms of an order of the court, it may find the person guilty of contempt for disobedience of the order, notwithstanding that the order has not been served on the person.
(11) The court at any time may direct that the punishment for contempt be suspended for the period or on the terms or conditions it may specify.
(12) The court, on application by or on behalf of a person committed to prison for contempt may discharge that person, notwithstanding that the period of the committal may not have elapsed.
(13) Where the court orders a person committed without specifying in days, weeks or months the period of the committal, the sheriff shall bring that person before the court at intervals of not more than 7 days, in order that the court may review the committal and determine whether relief as set out in subrule (11) or (12) should be granted.
(1) Where costs are payable to a party under these rules or by order
(a) by another party,
(b) out of a fund of other parties, or
(c) out of a fund in which the party whose costs are being assessed has a common interest with other persons,
they shall be assessed as party and party costs under Appendix B, unless the court orders that they be assessed as special costs.
(2) On an assessment of party and party costs, the registrar shall allow those fees under Appendix B that were proper or reasonably necessary to conduct the proceeding.
(3) Where the court orders that costs be assessed as special costs, the registrar shall allow those fees that the registrar considers were proper or reasonably necessary to conduct the proceeding to which the fees relate, and, in exercising that discretion, the registrar shall consider all of the circumstances, including
(a) the complexity of the proceeding and the difficulty or the novelty of the issues involved,
(b) the skill, specialized knowledge and responsibility required of the solicitor,
(c) the amount involved in the proceeding,
(d) the time reasonably expended in conducting the proceeding,
(e) the conduct of any party that tended to shorten, or to unnecessarily lengthen, the duration of the proceeding,
(f) the importance of the proceeding to the party whose bill is being assessed, and the result obtained, and
(g) the benefit to the party whose bill is being assessed of the services rendered by the solicitor.
(4) In addition to determining the fees that are to be allowed on an assessment under subrule (1) or (3), the registrar must
(a) determine which expenses and disbursements have been necessarily or properly incurred in the conduct of the proceeding, and
(b) allow a reasonable amount for those expenses and disbursements.
[en. B.C. Reg. 83/2002, Sch. s. 6 (a).]
(5) Unless the court on application otherwise orders, where costs are payable for any non-contentious business under Rule 61, those costs
(a) shall be assessed as special costs, and
(b) may be assessed without an order of the court
and subrules (3) and (4) apply.
(7) Where the court has made an order for costs,
(a) any party may, at any time before the registrar issues the certificate under subrule (32), apply for directions to the judge or master who made the order for costs,
(b) the judge or master may direct that any item of costs, charges or disbursements be allowed or disallowed, and
(c) the registrar is bound by any direction given by the judge or master.
[am. B.C. Reg. 165/97, s. 15.]
(8.1) If tax is payable by a party in respect of legal services or disbursements, the registrar must, on an assessment under subrule (1) or (3), allow an additional amount to compensate for that tax, which additional amount must,
(a) if the tax is payable in respect of legal services, be determined by multiplying the percentage rate of the tax by,
(i) in the case of a judgment entered on default of appearance or of pleading, the costs allowed under Item 1 or 2, as the case may be, of Schedule 1 of Appendix B,
(ii) in the case of a writ of execution, a garnishing order or a process in Form 51, 52 or 53, the costs allowed under Item 1 or 2, as the case may be, of Schedule 2 of Appendix B, or
(iii) in any other case, the monetary value of the units assessed, or
(b) if the tax is payable in respect of disbursements, be determined by multiplying the percentage rate of the tax by the monetary value of the disbursements as assessed.
[en. B.C. Reg. 83/2002, Sch. s. 6 (b).]
(9) Subject to subrule (12), costs of and incidental to a proceeding shall follow the event unless the court otherwise orders.
(10) A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.
(11) A party is not disentitled to costs on the ground only that the lawyer who represented the party is an employee of the party.
(12) Unless the court hearing a motion otherwise orders,
(a) the party making a motion that is granted is entitled to costs as costs in the cause, but the party opposing it is not entitled to costs as costs in the cause,
(b) the party making a motion that is refused is not entitled to costs as costs in the cause, but the party opposing it is entitled to costs as costs in the cause, and
(c) where a motion made by one party and not opposed by the other is granted, the costs of the motion are costs in the cause.
(12.1) If an entitlement to costs arises during a proceeding whether as a result of an order or otherwise, those costs are payable on the conclusion of the proceeding unless the court orders otherwise.
[en. B.C. Reg. 83/2002, Sch. s. 6 (c).]
(13) With the consent of the parties, the court may fix a lump sum as the costs of the whole proceeding, either inclusive or exclusive of disbursements and expenses.
[en. B.C. Reg. 10/92, s. 9; am. B.C. Reg. 83/2002, Sch. s. 6 (d) and (e).]
(13.1) The court may award lump sum costs of an interlocutory application and may
(a) fix those costs, either inclusive or exclusive of disbursements, or
(b) order that the costs amount be in accordance with Schedule 3 of Appendix B and fix the scale of those costs in accordance with section 2 (2), (4.1) and (4.2) of that Appendix.
[en. B.C. Reg. 83/2002, Sch. s. 6 (f); am. B.C. Reg. 120/2006, Sch. 2, s. 1.]
(14) Where anything is done or omitted improperly or unnecessarily, by or on behalf of a party, the court or the registrar may order
(a) that any costs arising from or associated with any matter related to the act or omission not be allowed to the party, or
(b) that the party pay the costs incurred by any other party by reason of the act or omission.
[am. B.C. Reg. 83/2002, Sch. s. 6 (g).]
(15) The court may award costs that relate to some particular issue or part of the proceeding or may award costs except so far as they relate to some particular issue or part of the proceeding.
(16) Where it is ordered that any costs shall be paid out of an estate or property, the court may direct out of what portion of the estate or property the costs shall be paid.
(17) Where a party entitled to receive costs is liable to pay costs to another party, the registrar may assess the costs the party is liable to pay and may adjust them by way of deduction or set-off or may delay the allowance of the costs the party is entitled to receive until the party has paid or tendered the costs the party is liable to pay.
(18) Where the costs of one defendant against a plaintiff ought to be paid by another defendant, the court may order payment to be made by one defendant to the other directly, or may order the plaintiff to pay the costs of the successful defendant and allow the plaintiff to include those costs as a disbursement in the costs payable to the plaintiff by the unsuccessful defendant.
[en. B.C. Reg. 10/92, s. 9.]
(19) Where after pronouncement of judgment a party puts another party to unnecessary proceedings or expense, the registrar may award costs as the registrar thinks proper against the offending party.
(28) A bill of costs shall be in Form 67, or, if the bill of costs pertains to a judgment under Rule 17 or 25, Form 67A.
[en. B.C. Reg. 149/99, s. 7.]
(29) Except as provided in subrule (30.1), a person who seeks a review of a bill or an examination of an agreement under the Legal Profession Act or who seeks to have costs assessed must
(a) obtain a date for an appointment before the registrar,
(b) file an appointment in Form 24 to which is attached the bill to be reviewed, the agreement to be examined or the bill of costs to be assessed, and
(c) subject to subrule (30), at least 5 days before the date of the appointment, serve a copy of the Form 24 appointment and any affidavit in support,
(i) in the case of a bill to be reviewed, on the lawyer whose bill is to be reviewed, on the person who is charged with the bill or on the person who has agreed to indemnify the person charged, as the case may be,
(ii) in the case of an agreement to be examined, on the lawyer who is a party to the agreement to be examined, or
(iii) in the case of a bill of costs to be assessed, on the party against whom costs are to be assessed.
[en. B.C. Reg. 462/98, s. 2.]
(29.01) An appointment for review of a bill, examination of an agreement or assessment of costs must be taken out,
(a) in the case of a bill to be reviewed or an agreement to be examined,
(i) if the bill or agreement relates to a court proceeding, in the registry at which the proceeding was commenced or to which the proceeding was transferred, or
(ii) if the bill or agreement does not relate to a court proceeding, at the registry nearest to the place of business of the lawyer concerned,
(b) in the case of a bill of costs to be assessed, at the registry at which the proceeding was commenced or to which the proceeding was transferred, or
(c) at any other registry to which the parties may agree.
[en. B.C. Reg. 462/98, s. 2.]
(29.02) The registrar may order further particulars or details of
(a) a bill under review,
(b) an agreement under examination, or
(c) a bill of costs being assessed.
[en. B.C. Reg. 462/98, s. 2.]
(29.1) If a sheriff who has charged fees for services set out in Schedule 2 of Appendix C or a person affected by those fees wishes to have those fees assessed, the person seeking the assessment shall
(a) obtain an appointment from the registrar in Form 24 and attach to that appointment a copy of the bill to be assessed, if available, and
(b) at least 5 days before the assessment, deliver a copy of the appointment and any affidavit in support to all persons affected by the fees.
[en. B.C. Reg. 165/97, s. 15.]
(30) Service of an appointment for assessment of costs, the bill of costs and an affidavit in support is not necessary where the party against whom costs are to be assessed has not entered an appearance.
[am. B.C. Reg. 462/98, s. 2.]
(30.1) On signing a default judgment, the registrar may, without an appointment, fix the costs to which the plaintiff is entitled against the defendant in default, and enter the amount allowed on the judgment, or on a separate certificate.
[en. B.C. Reg. 55/93, s. 22 (d).]
(31) On an assessment of costs, on review of a solicitor's bill or on an examination of an agreement, the registrar may order notice of hearing to be given to a person whose interest, whether in a fund or estate or otherwise, may be affected.
[en. B.C. Reg. 55/93, s. 22 (e); am. B.C. Reg. 462/98, s. 2.]
(32) On the conclusion of an assessment, or where the party charged has consented to the amount, the registrar shall, either by endorsing the original bill or by issuing a certificate in Form 68, certify the amount of costs awarded, and the party assessing costs shall file the certificate.
[am. B.C. Regs. 10/92, s. 9; 143/94, s. 12; 165/97, s. 15.]
(32.1) On the conclusion of a review of a bill under the Legal Profession Act, or where the parties to the review have consented to the amount due under the bill, the registrar shall, by issuing a certificate in Form 68A, certify the amount due, and either party to the review may file the certificate.
[en. B.C. Reg. 143/94, s. 12.]
(33) A party who is dissatisfied with a decision of the registrar on an assessment may, within 14 days after the registrar has certified the costs, apply to the court for a review of the assessment, and the court may make an order as it thinks just.
(34) A bill for special costs or a bill under the Legal Profession Act may be rendered on a lump sum basis.
(35) A lump sum bill shall contain a description of the nature of the services and of the matter involved as would, in the opinion of the registrar, afford any solicitor sufficient information to advise a client on the reasonableness of the charge made.
(36) A party to an assessment or a review of a lump sum bill may put in evidence the opinion of a solicitor as to the nature and importance of the services rendered and of the matter involved and the reasonableness of the charges made, but no party shall put in evidence the opinions of more than 2 solicitors, and a solicitor giving an opinion may be required to attend for examination and cross-examination.
(37) Where the court considers that a solicitor for a party has caused costs to be incurred without reasonable cause, or has caused costs to be wasted through delay, neglect or some other fault, the court may do any one or more of the following:
(a) disallow any fees and disbursements between the solicitor and the solicitor's client or, where those fees or disbursements have been paid, order that the solicitor repay some or all of them to the client;
(b) order that the solicitor indemnify his or her client for all or part of any costs that the client has been ordered to pay to another party;
(c) order that the solicitor be personally liable for all or part of any costs that his or her client has been ordered to pay to another party;
(d) make any other order that the court considers appropriate.
(38) Where the court makes an order under subrule (37), the court may
(a) direct the registrar to conduct an inquiry and file a report with recommendations as to the amount of costs, or
(b) subject to subrule (41), fix the costs with or without reference to the tariff in Appendix B.
(39) An order against a solicitor under subrule (37) or (38) shall not be made unless the solicitor is present or has been given notice.
(40) A solicitor against whom an order under subrule (37) or (38) has been made shall promptly serve a copy of the order on his or her client.
(41) An order by the court under subrule (38) (b) in respect of the costs of an interlocutory application shall not exceed $500.
(43) If a party entitled to costs fails to assess costs and prejudices another party by failing to do so, the registrar may certify the costs of the other party and certify the failure and disallow all costs of the party in default.
(44) Unless the court otherwise orders, fees to counsel, accountants, engineers, actuaries, valuators, merchants and other scientific persons to whom any matter or question is referred by the court shall be determined by the registrar, subject to an appeal to the court.
(45) This rule applies to all assessments under Appendix B that take place after September 1, 1990 pursuant to an order entitling a party to costs, whether or not that order is made before or after that date, but, for assessments that take place after September 1, 1990 and before March 1, 1991, the maximum amount that is allowable, exclusive of expenses and disbursements, in any proceeding where an order is entered upon a settlement after pleadings are closed or where judgment is obtained after trial or hearing, is
(a) $10 000, or
(b) where the amount that would have been allowed under the former Appendix B before September 1, 1990 would have been greater, that greater amount.
[am. B.C. Reg. 387/90, s. 4.]
(46) For the purposes of subrule (45), a party becomes entitled to costs
(a) when an order for costs is pronounced, or
(b) where a judgment is silent in the matter of costs, from the time that judgment in the proceeding is entered
whichever date first occurs.
(1) In this rule, unless the context otherwise requires:
"financial institution" means a bank, credit union or trust company designated by the minister;
"funds" means any money that has been paid into or deposited in court, except money paid
(a) under the Court Order Enforcement Act,
(b) for security for costs,
(c) in satisfaction of a claim, or
(d) for bail;
"minister" means the Minister of Finance and Corporate Relations;
"registrar" means the Registrar or District Registrar of the court into whose registry the funds or securities have been paid or deposited;
"securities" means any bonds, stocks, shares, debentures or other securities.
(2) All funds shall be deposited forthwith by the registrar in a financial institution and shall after that be paid by the registrar to the minister, accompanied by a certified copy of the order directing payment in, or, if the funds have been paid into court without an order, with a statement showing the particulars of the payment in.
(3) All securities deposited in court shall be accompanied by a certified copy of the order directing deposit in court and listing the securities or, if the securities are deposited without an order listing the securities, by a statement listing the securities.
(4) The securities shall be transmitted forthwith after deposit by registered mail, insured to the extent of their par value, or through a financial institution, by the registrar to the minister, together with a certified copy of the order or the statement.
(5) Funds and securities shall be paid out or delivered, on authority of an order of the court, on production of a certified copy of the order or authorization by the registrar for payment out, and shall be paid or delivered to the person named in the order or authorization.
(6) All funds held in court shall draw interest, payable by the minister, for each 6 month period after December 31, 1992 at 2% below the prime lending rate of the banker to the Province on January 1 and July 1 respectively, in each year, with interest to be compounded on January 1 and July 1 in each year.
[en. B.C. Reg. 432/92.]
(7) The interest paid under this rule is instead of any interest earned upon an investment made by the minister under subrule (10).
(8) Interest under subrule (6) is payable on all funds up to $100 000 from the first day of the month following payment into court until the last day of the month before payment out of court, and on all funds in excess of $100 000 from the date of payment into court until the date of payment out.
(9) For the purpose of segregating the funds from other money held by the minister, the minister shall create an account in the treasury designated "Investments, Supreme Court Act", and the funds held in this account shall constitute a trust, and shall, at all times, be substantially equal to the funds held by the minister under this rule.
(10) The minister may invest as he or she sees fit all or any part of the funds and convert securities into money.
(11) Where, by an order of the court, funds are directed to be dealt with, delivered or paid out, the order shall be a direction to the minister to that effect.
(12) Money paid into court, other than funds, shall be deposited by the registrar in the financial institution and be paid out in accordance with the existing practice of the court, but the registrar shall pay to the minister all moneys on deposit for more than 2 years.
[am. B.C. Reg. 143/94, s. 13.]
(13) Money paid to the minister under this rule shall be held by the minister in the same manner as funds deposited under subrule (2), except as to payment of interest.
(14) In a proceeding in which a sum of money or a security is awarded to a person under a disability, the court may, at or after the trial, order that the whole or any part of the sum or the security be paid,
(a) if the person is an infant, to the Public Guardian and Trustee in trust for the infant, or
(b) in any other case, into court to the credit of the person.
[en. B.C. Reg. 279/94; am. B.C. Reg. 191/2000, s. 3.]
(14.1) Where a sum of money or a security is paid into court under subrule (14) (b), the sum or the security may be paid out of court as the court may direct.
[en. B.C. Reg. 279/94.]
(15) When money is paid into court to the credit of an infant, a copy of the birth certificate of the infant, or other proof to the satisfaction of the registrar of the name and date of birth of the infant, shall be filed, unless the registrar dispenses with the filing.
[en. B.C. Reg. 55/93, s. 23.]
(16) In support of an application for payment out of money paid in under subrule (15), the applicant shall file a declaration in Form 30.
[en. B.C. Reg. 55/93, s. 23.]
Rule 59 — Sittings and Hearings
(1) The court shall dispose of the business before it at the times and in the places the Chief Justice directs.
(2) In case of urgency, an application may be made personally to a judge of the court, to a master or to a registrar.
(3) In case of urgency or convenience, the court, a master or a registrar may hear an application or matter and may make an order or decision by telephone.
(4) On application by a party or on its own initiative, the court may direct
(a) that an application be heard by way of video conference, and
(b) the manner in which the video conference is to be conducted.
[en. B.C. Reg. 149/99, s. 8.]
Rule 60 — Divorce and Family Law
[en. B.C. Reg. 161/98, s. 16.]
(1) In this rule, "undefended divorce proceeding" means a family law proceeding in which a claim for divorce is made and
(a) no statement of defence has been filed,
(b) a statement of defence has been filed that disputes the claim for divorce, or a counterclaim has been filed that makes a claim for divorce, but the statement of defence or counterclaim, as the case may be, has been
(i) withdrawn under subrule (14), or
(ii) struck out, discontinued or dismissed,
(c) all claims other than the claim for divorce have been settled, and the parties have filed a statement to that effect signed by the parties or their solicitors, or
(d) a joint action for divorce has been commenced and no party has filed a notice of withdrawal.
(2) Except as provided in this rule, the Rules of Court apply to a family law proceeding.
(3) Except as provided in subrule (5) and in Rule 10 (1) (c) and (2), a family law proceeding must be commenced by issuing a writ of summons to which is attached a statement of claim.
(4) If a divorce order has been granted and no corollary relief was sought in the proceeding in which that order was granted, any subsequent claim for corollary relief must be brought in a family law proceeding in accordance with subrule (3).
(5) If there is no existing family law proceeding in the court within which, under these rules, it is appropriate to bring one of the following applications by motion, the person wishing to bring that application, may, for that purpose, commence a family law proceeding by originating application:
(a) an application to rescind, vary, suspend or supersede a support order, maintenance order or custody order of another court;
(b) an application in respect of a marriage settlement under section 68 of the Family Relations Act;
(c) an application by a person who is not a spouse or former spouse, for leave under section 16 (3) or 17 (2) of the Divorce Act (Canada);
(d) an application under section 36 (1) or 48 (1) of the Family Relations Act.
[am. B.C. Reg. 101/2001, s. 6.]
(6) If a person seeking the leave referred to in subrule (5) (c) is granted the leave sought, the application for substantive relief under section 16 or 17 of the Divorce Act (Canada) may be brought in the proceeding in which the leave was sought.
(7) An application to rescind, vary or suspend an order made by the court in a proceeding brought under the Family Relations Act or the Divorce Act (Canada) must be brought by notice of motion in the proceeding.
(8) Without limiting subrule (7), if no step has been taken in a proceeding referred to in that subrule for one year,
(a) the applicant must
(i) comply with Rule 3 (4), or
(ii) by a means other than that contemplated by Rule 11 (6), serve the other parties of record with the notice of motion, in which event the applicant need not comply with Rule 3 (4), and
(b) Rule 11 (6) and (10) does not apply to service of
(i) the notice of intention to proceed required under Rule 3 (4), or
(ii) the notice of motion.
[am. B.C. Reg. 149/99, s. 9 (a).]
(9) In a family law proceeding,
(a) a writ of summons must be in Form 127 or 127A,
(b) a statement of claim must be in Form 128 or 128A,
(c) a statement of defence must be in Form 129, and
(d) a counterclaim must be in Form 130.
[am. B.C. Reg. 136/2005, s. 6 (a) and (b).]
(10) If it is alleged in a pleading that a spouse has committed adultery,
(a) the name of another person alleged to have been involved in the adultery must not be set out in that pleading unless that person is made a party to the proceeding,
(b) the other person must not be made a party to the proceeding unless relief is claimed against that person, and
(c) particulars of the identity of the other person may be demanded from the plaintiff, but any particulars provided in response to that demand must not be filed before the trial or hearing.
(11) Spouses may commence a family law proceeding jointly, without naming a defendant, if all relief, except any claim for divorce, is by consent.
[am. B.C. Reg. 136/2005, s. 6 (c).]
(12) In a joint family law proceeding under subrule (11),
(a) the writ of summons must be in Form 127A and the statement of claim must be in Form 128A, and
(b) the writ of summons and statement of claim need not be served.
[en. B.C. Reg. 136/2005, s. 6 (d).]
(13) A spouse may withdraw from a joint family law proceeding by filing and delivering a notice of withdrawal in Form 135 and if that spouse wishes to oppose a claim for divorce or wishes to claim other relief, that spouse must, at the time of filing that notice, file a statement of defence or counterclaim or both.
[am. B.C. Reg. 136/2005, s. 6 (e).]
(14) A party who has filed a pleading in a divorce proceeding may withdraw the pleading or any part of it by filing and delivering a notice of withdrawal in Form 135.
(15) Before the issuance of a pleading or an amended pleading in which a claim for divorce, nullity or judicial separation is made, a certificate of the marriage or of registration of the marriage must be filed unless
(a) the pleading states that
(i) it is impossible to obtain such a certificate, or
(ii) the certificate will be filed before the action is set down for trial or before an application is made for an order of divorce, nullity or judicial separation, and
(b) the registrar is satisfied with the reasons given for the failure or inability to file such a certificate.
(16) Subject to Rule 5 (6), a claim that, on its own, would not be the subject matter of a family law proceeding may be brought in a family law proceeding, and a person by or against whom any such claim is made may be joined in that proceeding, if the claim is related to or connected with any relief sought in the family law proceeding.
(17) A minor who has attained the age of 16 years and who is a party to a family law proceeding may act without a litigation guardian and the provisions of Rule 6 do not apply to that party.
[am. B.C. Reg. 83/2002, Sch. s. 1.]
(18) Despite subrule (17), if the court considers that it is in the interest of a minor referred to in subrule (17) or of any child of the minor, it may, on application or on its own motion, appoint a litigation guardian for the minor or for the child of the minor.
[am. B.C. Reg. 83/2002, Sch. s. 1.]
(19) A writ of summons in a family law proceeding must be served by someone other than the plaintiff.
(20) An affidavit of service of a writ of summons in which a divorce is claimed must
(a) despite Rule 51 (8), attach as an exhibit a copy of the writ of summons and attached statement of claim, and
(b) state the means by which the deponent identified the spouse who was served.
[en. B.C. Reg. 193/2007, s. 9.]
(21) The court may, in a family law proceeding, make an order for payment of, or for security for, the costs of a party.
(22) Rules 17 (9) and 25 (12) do not apply to an undefended divorce proceeding.
[en. B.C. Reg. 267/98, s. 2.]
(23) In an undefended divorce proceeding, the evidence, and any information required to enable the court to comply with sections 10 and 11 of the Divorce Act (Canada), may be presented by affidavit, unless the court otherwise orders.
(24) In an undefended divorce proceeding, a party may apply for judgment
(a) by requisition in accordance with subrule (25), or
(b) by setting the proceeding for trial or hearing in the manner directed by the Chief Justice by practice direction.
[am. B.C. Reg. 201/2004, s. 1.]
(25) An application for judgment under subrule (24) (a) may be made to the court by filing
(a) a requisition setting out briefly the nature of the relief sought,
(b) a draft order or orders,
(c) if necessary, proof of service of the writ of summons, or proof of delivery of a counterclaim,
(d) proof that the action is undefended,
(e) the registrar’s certificate that the pleadings and proceedings are in order,
(f) an affidavit in Form 132, and
(g) if appropriate, a Child Support Affidavit in Form 133.
[am. B.C. Regs. 83/2002, Sch. s. 7; 201/2004, s. 1.]
(26) On being satisfied that an application under subrule (24) or (25) is appropriate, the court may give any directions that it considers necessary and may, without limitation,
(a) make an order or give judgment without the attendance of counsel or the applicant,
(b) direct the attendance of counsel or the applicant, or
(c) direct that further evidence be presented.
(27) If a trial record or an application for judgment is filed in a family law proceeding in which a claim is made for divorce, nullity or judicial separation, the pleadings and proceedings in the action must be reviewed by the registrar who must
(a) certify that the same are in order,
(b) require that any irregularity in the pleadings or proceedings be corrected, or
(c) refer to the court for its direction any irregularity or question arising in the pleadings or proceedings.
(28) A judgment granting a divorce must not be pronounced unless the court is satisfied that no earlier divorce proceeding was instituted and is pending anywhere in Canada.
(29) If a claim is made for divorce together with one or more other claims, the court may do one or more of the following:
(a) grant a divorce and direct that an order for divorce alone be entered;
(b) adjourn the hearing of the claim for divorce;
(c) give judgment on the other claims and direct that a separate order dealing with them be entered;
(d) adjourn the hearing of the other claims.
(31) The certificate of divorce referred to in section 12 (7) of the Divorce Act (Canada) must be in Form 131 and may be signed and issued by the registrar.
(32) Unless the court otherwise orders, the party who has entered an order for divorce must, promptly after entry,
(a) deliver a true copy to the other party at the other party's address for delivery, or
(b) if the other party does not have an address for delivery, mail a true copy to the other party's last known address.
(33) A restraining order under section 37, 38 or 126 of the Family Relations Act must be in Form 134 and must not include any provisions respecting matters that are not directly related to the matters set out in those sections.
[am. B.C. Reg. 149/99, s. 9 (b).]
(34) If a custody order, support order or maintenance order is appealed, the order remains in force until the determination of the appeal, unless the court that made the order otherwise directs.
Provisional and Extra-provincial Orders
(35) A provisional order made by the court under Part 8 of the Family Relations Act or under section 18 (2) of the Divorce Act (Canada) must show on its face that it is a provisional order and that it has no legal effect until it is confirmed in accordance with the applicable statutory provisions.
(36) The Attorney General must send all copies of a provisional order and other documents received from the Attorney General of another province under section 18 (4) of the Divorce Act (Canada) to the registrar of the registry of the court
(a) in which the original order varied by the provisional order was entered, or
(b) if the original order was not made in British Columbia, nearest to the place of residence of the respondent as shown in the documents.
(37) Unless section 19 (3) of the Divorce Act (Canada) applies, the registrar to whom documents referred to in subrule (36) are sent must
(a) serve on the respondent in the variation proceeding
(i) a copy of the documents, and
(ii) notice of the date of the hearing to confirm the provisional order, and
(b) ensure that notice of the date of hearing is sent to the applicant in the variation proceeding by ordinary mail addressed to the applicant's last known address.
(38) If an order that has legal effect throughout Canada under section 20 (2) of the Divorce Act (Canada) is made by a court other than the Supreme Court, the order may be registered without fee by filing a certified copy of the order in the Victoria Registry of the Supreme Court.
(39) The registrar of the court must, on request or if the court is required by section 17 (11) of the Divorce Act (Canada), and without a fee, send a certified copy of a custody order, support order or variation order made by the court
(a) to the registrar of a court in another province or to any person holding an equivalent position to that of registrar in relation to that court,
(b) to a public welfare organization in another province, or
(c) to any person designated by the Attorney General of another province.
(40) A support order or maintenance order made by the court or registered under subrule (38) may be filed in and enforced by the Provincial Court as if it were contained in an order of that court made under the Family Relations Act.
(41) Unless the court otherwise orders,
(a) no person, other than the following, may search a registry file in respect of a proceeding brought under the Divorce Act, R.S.C. 1970, c. D-8, the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) or the Family Relations Act:
(i) a solicitor, whether or not a solicitor of a party;
(ii) a party;
(iii) a person authorized by a party;
(iv) a person authorized by a party’s solicitor, and
(b) no person, other than the following, may search a registry file in respect of a proceeding under the Child, Family and Community Service Act:
(i) a party’s solicitor;
(ii) a party;
(iii) a person authorized by a party;
(iv) a person authorized by a party’s solicitor.
[en. B.C. Reg. 120/2006, Sch. 1, s. 2.]
(41.1) Despite any other power the registrar may have to compile and retain information, the registrar may compile and retain an index, in electronic format or otherwise, that contains the following information respecting proceedings referred to in subrule (41):
(a) the parties as identified in the style of proceeding;
(b) the case file number as set out in the style of proceeding;
(c) the category or type of the proceeding;
(d) the date the proceeding was commenced.
[en. B.C. Reg. 201/2004, s. 8.]
(41.2) Unless the court otherwise orders, any person may, in respect of a proceeding referred to in subrule (41), have access to the information retained in the registry under subrule (41.1) about that proceeding.
[en. B.C. Reg. 201/2004, s. 8.]
(41.3) Nothing in this rule requires the registrar to provide access to information in any form or format other than the form and format in which that information is available in the registry at the time that the request for access is made.
[en. B.C. Reg. 201/2004, s. 8.]
(42) The exhibits produced at the trial or hearing of a proceeding referred to in subrule (41) must be sealed by the registrar in a secure manner and, unless the court otherwise orders, no person other than a party's solicitor, a party or a person authorized by a party or by a party's solicitor, may search the exhibits.
(43) Unless the court otherwise orders, no person other than a party to the agreement or a person authorized by that party or that party's solicitor may search a separation agreement filed under section 122 of the Family Relations Act.
(44) Any agreement referred to in section 122 of the Family Relations Act may be filed for enforcement in the court, and if the agreement was made before July 1, 1995, the consent, in Form 90, of each party must be filed with the agreement.
(45) A summons under section 19 or 22 of the Family Maintenance Enforcement Act requiring a debtor to appear at a default hearing must be in Form 119.
(46) A summons under section 23 of the Family Maintenance Enforcement Act requiring a debtor to appear at a committal hearing must be in Form 119A.
Contents | Rules 1-15 | Rules 16-30 | Rules 31-45 | Rules 46-60 | Rules 60A-69 | Appendix A | Appendices B-C
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