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Court Rules - History & Research

The rules of court regulate the conduct of litigation in the courts. Courthouse Libraries BC has compiled the following guide to the court rules of BC.

Inherent Jurisdiction of the Courts

The rules are found within the inherent jurisdiction of the courts, the enabling legislation and the written rules.

 

The court has the jurisdiction to control its own processes. If a procedural matter is not covered by the written rules there may be a rule established by common law. Practice Directions/Directives also come from the inherent jurisdiction of the court. They do not have the same force of law as acts or regulations, however, litigants and practitioners are expected to comply with them. The sources below discuss the inherent jurisdiction of the court.

 

Fraser and Horn. The Conduct of Civil Litigation in British Columbia. Chapter 3. (KN352 F73 v.1)

 

McLachlin and Taylor. British Columbia Practice. 2nd Edition. Rule 1. (KN352 K693 v.1)
Enabling Legislation
Section 92(14) of the Constitution Act, 1867 (The British North America Act, 1867) made the provinces responsible for the administration of the courts. The courts are established under provincial legislation. The BC acts are:

 

  • Court of Appeal Act, R.S.B.C. 1996, c. 77
  • Provincial Court Act, R.S.B.C. 1996, c. 379
  • Small Claims Act, R.S.B.C. 1996, c. 430
  • Supreme Court Act, R.S.B.C. 1996, c. 443
Current BC Court Rules
The Court Rules Act, R.S.B.C. 1996, c. 80  gives the Lieutenant Governor in Council the authority to make rules by regulation. Also there are rules in the regulations made under the Criminal Code and the Family Relations Act. A rules committee is appointed by the Attorney General. They meet regularly, receive submissions and draft changes for the consideration of the Lieutenant Governor in Council..

 

The current BC rules are:

 

Sources for Researching Court Rules
The rules can be found in a number of publications.  For the rules only see Consolidated Regulations of British Columbia (KP35.5 C6).  The original rules and amendments can be found in the British Gazette Part II (KP36.5) The  following materials contain additional information about the rules and are available at most B.C. Courthouse libraries:

 

  • The Advocate (KA1 A31).  Journal published by the Vancouver Bar Association. Contains discussion of court rules and the text of various practice directions issued by the courts. To find articles, do an Advanced Search: BC Legal Literature Index using the subject "COURT RULES" or "PRACTICE DIRECTIONS".
  • Annual Review of Law & Practice (KA1 A56).  This annual publication summarizes changes to the law each year including changes to the court rules. First published in 1992. The Vancouver Courthouse Library has all of the editions.
  • Bouck, Dillon and Turriff. British Columbia Annual Practice (KN352 A115 B75).  A new edition of this book has been published every year since 1988. It includes annotated court rules, related acts and practice directions. The Vancouver Courthouse Library has all of the editions.
  • Bouck, Hira and Bennett. British Columbia Annual Criminal Practice (KM570 A1151 B74).  In 1997 the publisher began publishing the criminal rules in a separate volume. It has a similar format to the British Columbia Annual Practice and a new edition is published each year. The Vancouver Courthouse Library has all of the editions.
  • Brinton. British Columbia Appellate Practice (KN352 B746).  This looseleaf text contains a discussion of the procedure for appeals. It includes a consolidation of the Court of Appeal Act and Rules. (Note: the publisher stopped updating this book in 2000).
  • Brinton. Civil Appeal Handbook (KN352 B747).  This looseleaf text contains a discussion of the procedure for appeals and replaces British Columbia Appellate Practice, also by Brinton. 
  • British Columbia Supreme Court Practice Directions (KN352 A115 S861).  The practice directions that are received by the Vancouver Courthouse Library are kept in this binder until they are published in British Columbia Annual Practice.
  • Canadian Abridgment. 3rd edition. Civil Practice and Procedure volumes. (KP312 C359).  Contains digests of cases organized by subject.
  • Fraser and Horn. The Conduct of Civil Litigation in British Columbia (KN352 F73).  This two volume set focuses on civil litigation in the Supreme Court of B.C. It is organized by subject and discusses the rules involved under each subject. It includes references to case law and commentary.
  • Kowarsky and Stephens. British Columbia Practice (KN352 K69).  This is a book of annotations for the Supreme Court Rules from the beginning of the Supreme Court in B.C. to 1977. The unreported cases referred to in this text were collected together in a three volume set called British Columbia Practice: Rules of Practice (abbreviated R.P.) (KN352 K691).
  • Kowarsky and Stephens. British Columbia Practice: Court of Appeal (KN352 K6 1972).  This book contains annotations for the Court of Appeal Rules and the Court of Appeal Act from the beginning of the Court of Appeal in B.C. to 1971. It also contains a paper by Judge Alfred Watts on the origin of the Court of Appeal in B.C. The unreported cases referred to in this text were collected together in a two volume set called British Columbia Practice Court of Appeal Unreported Cases Known as Appeal Rules Precedents (abbreviated A.R.P.) (KN352 K61 1972).
  • Lazare and Fisher. British Columbia Practice: Court of Appeal. 2nd Edition (KN352 K68 1978).  This is the second edition of Kowarsky and Stephens' book.
  • McLachlin and Taylor. British Columbia Practice. 3rd Edition (KN352 K694).  This three volume set is organized by Supreme Court Rule number and includes references to cases and commentary. The publisher issued the first set of binders in 1979 and updated them until December of 1982. In 1984 a new set was issued and was updated until December of 1988. The 1984 printing was then replaced by the current set in 1991. The Vancouver Courthouse Library has the first two printings and the second edition of this text in storage (Storage KN352 K692 1979, Storage KN352 K692 1984 and Storage KN352 K693).
  • McLachlin and Taylor. British Columbia Court Forms. 2nd Edition (KN352 A17 M342).  This four volume set of precedents accompanies British Columbia Practice.  The Vancouver Courthouse Library also has the first edition (KN352 A17 M34)
  • Provincial Court Small Claims Handbook (KN352 P76 C65).  This looseleaf text contains a discussion of Small Claims Court procedures and includes forms and precedents.
  • Seckel and MacInnis. British Columbia Supreme Court Rules Annotated (KN352 A115 B47).  Contains an annotated version of the Rules. It also includes practice directions.
  • Small Claims Act and Rules Annotated (KN352 S624).  Contains an annotated version of the act and rules. It also includes forms.
  • Stevenson and Côté. Civil Procedure Encyclopedia (KN350 S73 2003).  This five volume set discusses procedural law across Canada and England.  It makes note of some decisions from the High Court of Australia and is arranged by topic.
  • Western Practice Digest (KN350 P681 1993).  Contains digests of cases from the western provinces organized by subject. Also known as Power's Western Practice Digest. The first edition was published in 1921, the second in 1953 and the third in 1977. The third edition has two supplements which contain digests of cases up to 1993.
Updating the Current Rules
Check the "current to" date if using the rules on the internet or British Columbia Annual Practice, then look for amendments after that date in Amendments to the Court Rules of British Columbia (KN352 A115 B75 A43) available in most courthouse libraries.
Noting Up Court Rules
When looking for judicial consideration of the court rules try using electronic sources such as the Keycite option on LawSource (available on the computers in most courthouse libraries) There is a noteup feature on CanLii. You can also do a keyword search in a database, which contains the full text of cases using significant words from the rule as your search terms.   You may also want to check print sources such as the annotated versions of the rules listed under Sources for Researching Court Rules in this guide as well as the following citators and reports:

 

  • British Columbia Court Rules Citator (KN352 R8 B74).  This set covers 1988 to the present.
  • Rules Citator for the B.C. Supreme Court Rules (KN352 R8).  A two volume set which covers 1977 to 1995
  • Rules Judicially Considered (KP312 C3589 R8 1999).  This is a bound volume with supplements and covers court rules from all Canadian jurisdictions. It also includes some foreign rules and rules made pursuant to international treaties.
  • Law Reports (e.g. B.C.L.R., C.P.C., M.V.R., W.W.R.).  Check the "Rules Considered" section of the indexes to various topical and regional law reports. Remember to check bound volumes and paper parts published after the latest cumulative index.
History of the Supreme Court Rules of BC
The earliest known rules were the Rules and Manner of Proceedings of the Supreme Court of Civil Justice for Vancouver's Island, 1857 and the Divorce and Matrimonial Causes Rules, 1877.

The next set of rules were the Supreme Court Rules, 1880 which came into force November 15, 1880. They were made pursuant to the Judicature Act, S.B.C. 1879, c.12, s.17 which gave the Lieutenant Governor in Council the authority to make court rules. These were essentially a copy of the English rules. England revised their rules in 1883. BC followed suit, revising their rules in the 1890s. This time they copied the English rules and added some rules which were borrowed from Ontario. The Supreme Court Rules, 1890 came into force January 1, 1893. These were followed by the Supreme Court Rules 1906, 1925, 1943, 1961, 1976 and 1990. With each revision BC moved further away from the English rules.

 

For more on the history of the rules see:
  • Bouck, Dillon and Turriff. British Columbia Annual Practice. (KN352 A115 B75 1988).  This edition of B.C. Annual Practice contains a history of the court rules from 1879 to 1987.
  • Farr, David M.L. "The Organization of the Judicial System in the Colonies of Vancouver Island and British Columbia, 1849-1866." (1967) 3 University of British Columbia Law Review: 1-35. (KA1 B75 U55).  This article describes the court rules used during the colonial period.
  • Gouge, Jesse F. "Civil Procedure in the Superior Courts: The British Columbia Illustration 1849-1880." (1979) 13 University of British Columbia Law Review: 339-379. (KA1 B75 U55).  This article gives a detailed description of the early court rules.
  • Schmidt, Thea and Caird, Susan. B.C. Rules of Court (2002) 27 Canadian Law Libraries / Biblioteques de droit canadiennes. No. 5, 218-23.  This article gives an overview of the history of BC's court rules.
Using the Old Rules
The old rules (1880-1975) were divided into Orders and Rules. Each rule was also given a marginal rule number, which is the number assigned to each rule in sequence and appears in the margin. In the old rules there are historical notes at the end of each rule. "M.R." refers to the marginal rule in the previous revision of the BC rules. "E.R." refers to the English rules.

 

A Tables of Concordance between 1976 & 1990 rules and the 1961 & 1976 rules can be found in the Rules of Court and Related Enactments (KN352 A115 S86) A list of amendments to the court rules from 1976 onwards is available on request at the Vancouver Courthouse Library.

 

I. Colonial Rules

The Vancouver Courthouse Library has:

 

  • Vancouver Island Rules, 1858 (KN352 A115 G73 1858)
  • Vancouver Island Rules, 1865 (KN352 A115 G73 1865)

 


II. Provincial Rules

The Vancouver Courthouse Library has the following, shelved at KN352 A115 S8:

 

  • Supreme Court Rules, 1880  In force November 15, 1880
  • Supreme Court Rules, 1890  In force January 1, 1893
  • Supreme Court Rules, 1906  In force May 1, 1906 (The Library also has a 1912 consolidation of the 1906 rules)
  • Supreme Court Rules, 1925  In force September 1, 1925
  • Supreme Court Rules, 1943  In force July 2, 1943
  • Supreme Court Rules, 1961  In force January 1, 1961 (The library also has a 1972 and a 1975 consolidation of the 1961 rules)
  • Supreme Court Rules, 1976  In force February 1, 1977 (The library also has a 1989 consolidation of the 1976 rules)
  • Amendments to the 1976 Supreme Court Rules (B.C. Regs. 634/76, 635/76 and 517/79). These particular amendments were not published in the British Columbia Gazette, Part II.
  • Supreme Court Rules, 1990  In force September 1, 1990.

The Vancouver Courthouse Library also has the Supreme Court of British Columbia Divorce & Matrimonial Causes Rules 1877, shelved at KN173 A1151 B74 1877.

The Effect of New Rules on Court Proceedings

LEGISLATION

Section 36(1)(b) of the Interpretation Act, R.S.B.C. 1996, c. 238 states, "If an enactment (the "former enactment") is repealed and another enactment (the "new enactment") is substituted for it, every proceeding commenced under the former enactment must be continued under and in conformity with the new enactment so far as it may be done consistently with the new enactment. The definition of enactment can be found in section 1 of the Interpretation Act, it includes acts or regulations or portions of acts or regulations.  

    Transitional Provisions in the New Rules
    Supreme Court Civil Rules, sections 9 and 10 of Appendix B (Re Costs)
    Supreme Court Family Rules, see Rule 23-1
    CASE LAW
    The following decisions comment on the process of applying new or amended rules.
    Regarding Costs
    Robinson v. Robinson Estate, 2007 BCSC 408
    Gook County Estates Ltd. v. Quesnel (City), 2007 BCSC 171, 168 BCAC 316
    Burrardview Neighbourhood Assn. v. Vancouver (City), 2002 BCSC 1770, 9 B.C.L.R. (4th) 334
    Regarding Appeals
    Regarding the Originating Process
    Jordan v. Jordan, (4 September 1998) New Westminster D41706, (B.C.S.C.) 

Research in Other Jurisdictions
The court rules in other Canadian jurisdictions and in England may be the same or very similar to those in BC and authorities from other jurisdictions may therefore be useful. The Vancouver Courthouse library has the court rules from all Canadian jurisdictions and England. The court rules from a number of jurisdictions are also available on the internet. 

 

For annotated versions, see the following publications available in the Vancouver Courthouse Library.

 

Alberta

  • Civil Procedure Guide (KN353 A115 A425). Contains an annotated version of the Alberta Rules of Court.

 

Manitoba

  • Manitoba Queen's Bench Rules Annotated (KN355 A115 M341 A1).  A looseleaf consolidation of the Manitoba rules with annotations.

 

Nova Scotia

  • Nova Scotia Civil Procedure Rules (KN359 A115 N682).  This is a looseleaf annotated version of the Nova Scotia rules. It also contains practice directions and the Judicature Act.

 

Ontario

  • Ontario Annual Practice (KN356 A115 C45). Contains annotated Ontario court rules, related acts and practice directions. The publisher puts out a new edition each year. The Vancouver Courthouse Library has editions from 1966 to the present.

 

  • Holmested and Gale on the Judicature Act of Ontario and Rules of Practice Annotated (KN356 H645).  This four volume looseleaf set contains an annotated version of the Ontario rules. Included in the notes for each rule are references to the corresponding rules in other provinces.

 

  • Holmested and Watson Ontario Civil Procedure (KN356 H646).  This six volume looseleaf set includes annotated statutes and rules and practice directions.

 

Saskatchewan

  • The Queen's Bench Rules of Saskatchewan: Annotated (KN354 A115 S38).  A looseleaf consolidation of the Saskatchewan rules with annotations.

 


Federal Court of Canada

  • Federal Court Practice (KN351 F4 F42).  An annotated version of the Federal Court Act and Rules. The Vancouver Courthouse Library has editions from 1988 to the present.

 

Supreme Court of Canada

  • Supreme Court of Canada Manual (KN351 S8 S86).  This looseleaf contains digests of recent decisions, an overview of the appeal process, annotated acts and rules, forms and notices to the profession.

 

  • Supreme Court of Canada Practice (KN351 S8 C72).  Includes an annotated version of the rules for the Supreme Court of Canada. The Vancouver Courthouse Library has editions from 1991 to the present.

 

England

  • Civil Procedure (KN365 A115 A554).  This is an annotated version of England's court rules. Previously known as The Supreme Court Practice and Annual Practice. Commonly known as the White Book. The Vancouver Courthouse Library has editions from 1892 to the present.

Committees and Working Groups

Rules Revision Committee


Members of the Committee are appointed by the Attorney General.  They draft changes for the consideration of the Lieutenant Governor in council who enacts the regulations.  A list of the members can be found in British Columbia Annual Practice (KN352 A115 B75) and on the British Columbia government website.

 

For information about the establishment of the Committee, see The Advocate, (1973) vol. 31, editorials: p. 8-10 and 80-81 and "The New Rules of Court: The Background", The Advocate (1976) vol. 34, p. 117-19. Minutes of the committee's meetings are subject to Freedom of Information and Protection of Privacy legislation. For more information about the minutes, contact the Chair of the Committee.

 

BC Justice Review Task Force

The Civil Justice Reform Working Group has been working on new court rules. A draft of the proposed rules as well as reports and discussion papers can be found on the BC Justice Review Task Force website.

 

The Vancouver Courthouse Library has a print copy of the draft (KN352 A115 S82 B24 2007) and selected papers and reports (KL211 B7 B24 C482) and (KN170 B24).

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