This brief article is on the factual requirements to comply with what a Notice of Application requires in order to comply with the Supreme Court Rules.
I am indebted to lawyer Mark Slay for the following argument which he used against an application for an injunction brought on in Supreme Court chambers by myself. Fortunately we were able to resolve the matter by consent.
- When the Plaintiffs Notice of Application does not set out an adequate basis for the Order sought in the Notice of Application it is therefore not in compliance with the Supreme Court Rules. This Court has been clear that where a party chooses to proceed in this fashion the application should be dismissed or adjourned and costs can be awarded to the other party. In Dupre v Patterson, 2013 BCSC1561, Adair, J, stated the following at paragraph 51 of the decision:
If a notice of application does not contain the information now required under the Rules, the party filing it has failed to give proper notice – to the opposing party and to the court – of the nature of the application. However, all too frequently, counsel in both civil and family cases are signing and filing inadequate notices of application and application responses. The notice of application filed in this case was not at all unique. However, such documents do not comply with the Rules
At paragraph 55 and 56 of the decision Adair, J went on to add as follows:
When counsel come to court with inadequate materials, which fail to comply with the Rules, judges and masters are placed in a very difficult position. What often happens is that, to avoid the inconvenience and expense of an adjournment, matters proceed despite the inadequate materials, and judges and masters do the best they can in the circumstances. But inadequate motion materials, which fail to comply with the Rules, are incompatible with the efficient and timely disposition of applications.
If counsel are coming to court with inadequate material that clearly fails to comply with the Rules, and counting on being heard, they are misguided. Judges and masters are entitled to expect that counsel will prepare application materials (including affidavits) that comply with the Rules, and do no less than this. Counsel who come to court with application materials that do not comply risk having their applications at least adjourned, with potential cost consequences, until proper materials are filed.
Adair, J. in Dupre v. Patterson cited with approval of the case of Zecher v Josh, 2011 BCSC 311 (M). At paragraph 30 of that case, Master C. P. Bouck stated as follows:
Form 32 of the SCCR lends itself to providing both the opposing party and the court with full disclosure of the argument to be made in chambers. Parties should put in as much thought to the necessary content of that Form as is done when preparing the supporting affidavits. When a party is represented, responsibility for that content lies with counsel.
At paragraph 32, Master C.P. Bouck went on to note that, “In my experience and observation, a comprehensive legal analysis can easily be included in a 1- page notice of application”
The Claimant’s Notice of Application is clearly lacking a proper legal argument which makes it difficult for the Claimant to respond.
- The content of a Notice of Application and Application Response should provide “notice” to the other party and to the court setting out both the factual basis and details of the legal basis including case authorities and argument. Inadequate notice can result in an adjournment of the application and costs. Judicial commentary and principles have been made in multiple cases including the following:
- The requirements under the SCR represent a “fundamental change” from the practice under the former Rules Dupre v Patterson, 2013 BCSC 1561.
- If a notice of application does not contain the information required under the SCR the party filing it has failed to gibe proper notice to the opposing party and to the court of the nature of the application. Dupre supra.
- Failure to comply with providing notice may result in adjournment of the application until proper materials are filed and cost consequences. Dupre supra.
- The absence of notice cannot be rectified with delivery of written submissions the day of the hearing. Dupre supra.
