Re Cameron 2020 BCSC 157 discusses the test to convert a petition to an action and to refer the matter to the trial list.
Under the Supreme Court rules many actions such as proof in solemn form actions must be commenced by petition, as opposed to notice of civil claim. ( See rules 1-2 (4) and 2-1(2)(b).)
When the petition is opposed it is necessary to apply to court to convert the petition to an action on the basis that there is a triable issue.
One of the leading case in British Columbia Milk Marketing Board v Saputo Products 2017 BCCA 247.
The Supreme Court chambers judge dismissed the application to convert the petition to an action and refer the matter to the trial list, and the Court of Appeal reversed that decision.
The appeal court stated that on the hearing of a petition, judge must be satisfied that there is no dispute as to the facts are law, which raises a reasonable doubt, or which suggests that there is a defense that deserves to be tried. If such a dispute exists, the judge may refer the matter to the trial is pursuant to rule 22 –1 (7) .
The test is not that used to determine a summary trial, but rather it is akin to that on an application for summary judgment under rule 9-6.
The cases do not establish an invariable rule as to what steps must be taken to resist a summary trial application.
On all such applications the issue is whether on the relevant facts and applicable law, there is a bona fide triable issue. The onus of establishing that there is not such an issue rests upon the applicant, and must be carried to the point of making it manifestly clear, which the court interpreted as much the same as beyond a reasonable doubt. If the judge hearing the application is left in doubt as to whether there is a triable issue, the application should be dismissed.
In essence, if the defendant is bound to lose, the application should be granted, but if he is not bound to lose then the application should be dismissed.
Thus the test for determining whether matter should be converted into an action is not that used for determining suitability for summary trial, but rather is akin to that applied on application for summary judgment. Accordingly, unless the judge is satisfied that there is no dispute as to the facts are law that raises a reasonable doubt, or which suggests that there is a defense that deserves to be tried, an application brought by convert petition should be converted into an action.
This approach was confirmed by the Court of Appeal in Kerfoot v Richter 2018 BCCA 238, which involved the petition to prove a will in solemn form. One of the deceased children oppose the application on the ground that the deceased lacked testamentary capacity and applied to have the petition converted into an action. The chambers judge dismissed the application, but the Court of Appeal reversed it, emphasizing that the test in Saputo required proceedings brought by petition to be referred to the trial list where there are disputes of fact or law, unless the party requesting the trial is bound to lose.
On the other hand, the party seeking to establish a triable issue cannot rely on “mere allegations”, and the court is entitled to draw inferences that are strongly supported by undisputed facts.