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British Columbia Supreme Court Chambers applications: the simple practical things you need to know for your first application

This article was written by Michael Dew, a Vancouver lawyer who practices civil litigation. Click here for contact information and further details about Michael’s practice. This article provides only information, not legal advice. If you require legal advice you should consult a lawyer.

 

Introduction
Many books and papers have been written on British Columbia Supreme Court chambers practice. Few, if any, explain the really simple procedural issues that are known to all persons who have made a chambers application, but unknown and sometimes not easily discoverable by an articled student or young lawyer about to make their first application.
 
This article briefly sets out some of the basic procedural steps in making a simple chambers application. For higher level strategy advice and guidance on complicated chambers applications, consult the books listed on the civil practice page (www.legaltree.ca/node/9) of Legaltree, the PLTC materials on civil practice, or search the B.C. legal literature database of the British Columbia Courthouse Library Society: http://www.bccls.bc.ca/cms/index.cfm?group_id=2632.
 
Filing documents in advance of the hearing
A notice of motion and notice of hearing must be filed with the court registry in advance of the hearing. These, and other filing requirements which make up the chambers record are set out in part in Rule 51A of the Rules of Court, B.C. Reg. 221/90.
 
If counsel would like the chambers record filed with the court returned, it can be collected from the registry within two weeks of the hearing, after which time it will be shredded.  
 
What to take to court
Chambers record:
The court clerk will take the chambers record filed with the registry to the courtroom on the day of the hearing. The record will be provided to the judge or master when the matter is called. However, it is worth taking two copies of the chambers record to court; one copy for yourself and one to hand up to the judge or master in case the materials filed with the registry don’t make it to the courtroom.
 
Order:
The purpose of chambers applications is to obtain court orders. For complicated applications it may be difficult to predict what the order will say and so drafting of the order may be left until after the application is complete. However, for simple applications it is worth preparing a draft order which you will hopefully be able to have the judge or master sign at the end of the application. Preparing the order in advance also forces one to consider what exactly one should be asking for. Take two copies of the draft order to court – for reasons explained below.
 
The following points regarding the form of orders may not be obvious from the standard forms or from the texts dealing with court forms:
 
Signature line for the court:
Court orders are signed by a judge or master and also by the Registrar. Court form 43 (see link above) is to be used for chambers orders (form 42 is used for trial orders) and includes a left aligned signature line for the judge or master, and a right aligned signature line for the Registrar.
 
The word “Registrar” should be placed under the right aligned signature line. No text should be placed under the left aligned signature line. 
 
Approval as to form:
Court orders should be approved as to form by counsel applying for the order, and opposing counsel, if any: October 17, 1990 Practice Direction Re: Counsel Signatures - Orders. This should be done by placing left aligned signature lines for counsel just above the signature lines for the judge or master, and the registrar.
 
The signature lines for counsel should be underlain by words indicating approval as to form e.g. “Approved as to form by Joe Jamail a.k.a the King of Torts, Solicitor for the Plaintiff”. Signature lines should be provided for all counsel appearing on the application. Signatures lines are generally not included for self represented litigants because problems can arise of they refuse to approve the form of the order because they do not like the contents of it. In such cases, if the order is signed by the judge or master in court, they will see that no signature line was provided for the self represented litigant and will probably say nothing of it.
 
If for whatever reason the order is not signed by the judge or master in court but will be prepared by the parties and submitted to the registry for approval, the applicant should ask the judge or master that “the requirement for approval as to form by [self represented party] be dispensed with” under Rule 41(8). Without this direction from the court the registry may object to the order not being approved as to form by all parties. 
 
Backing sheets:
These are pages that have the name and contact information of the party applying for the order printed sideways on them, and that are placed facing backwards behind the last page of the order. For an explanation of these mysterious sheets, see www.legaltree.ca/node/669
 
On the day of the hearing, go to the registry before the courtroom
The first thing to do upon arriving at the courthouse is to check the daily court lists which are posted on the notice board in the foyer of the registry. Check the lists to ensure that your matter has been included on the list, and make a note of the following:
o       the number of the matter on the list;
o       the courtroom; and
o       the name of the judge or master presiding.
 
If you have prepared a draft order, take it to the registry to have it “vetted” by a registrar. The registrar will check for errors as to form. As explained below, the practice is to assure the judge or master you hand your draft order to for signing that it has been vetted by the registry, and so you should do this before appearing in court.
 
Orders may be rejected at the vetting stage, or the final approval stage, for the following reasons:
o       The order has hand-written changes on it.
o       The order is not in the proper form – use form 42 for chambers orders.
o       The preamble of the order is incorrect.
o       Incorrect dates.
o       Orders under Rule 26(11) for production of documents that fail to include provision for payment of the reasonable costs of copying.
o       The order is not signed by counsel for all parties represented at the hearing or consenting to the order: Rule 41(8).
o       The description for the signature line for approval as to form is in the name of the law firm and not in the name of the individual lawyer. Although statements of claim and defence may be signed in the name of the law firm, chambers order must be approved as to form by an individual lawyer.
o       The order does not contain the full style of proceeding.
o       The name or title of the adjudicator is not correct.
o       The order is signed in quotation marks.
o       The order calls for signature by a master in circumstances where the master does not have jurisdiction See Rule 53 and the 22 May 1990 and 7 March 1996 Practice Directions regarding master’s jurisdiction. Generally, masters may hear interlocutory matters that do not represent a final disposition of a case on its merits.
 
Go to the courtroom and check in with the court clerk
Chambers applications are typically set for 9:45 a.m. which is when the courtroom opens and check-ins begin. The proceedings get underway at 10:00 a.m.
 
With your vetted order in hand, go to the courtroom and tell the court clerk that you are reporting on behalf of the applicant for matter #X i.e. the number on the court list. If applicable, indicate that you are an articled student. Do not hand any further material to the court clerk when checking in – it is not practical for them to file such material while everyone is checking in.
 
The clerk will want to know whether your matter is contested and will ask for a time estimate to determine whether your matter should be called on the first reading – the first run through the list to deal with short (less than 5 minutes) matters - or on a subsequent reading.
 
Matters dealt with on the first reading are generally dealt with in the order they appear on the list. Matters in subsequent readings are often dealt with in order of seniority of counsel.
 
Communicating with the clerk when court is in session
Do not speak to the clerk while the court is in session. If you need to communicate with the clerk, write a note which states:
o       the number on the list;
o       the style of proceedings;
o       the question you have or the information you require; 
o       your name; and
o       your message.
 
It is acceptable to walk to the side of the clerk’s table to pass the clerk the note while the court is in session. Return to your seat and wait for the court clerk to provide an answer to the note.
 
Form of address
Judges of the British Columbia Supreme Court are addressed “My Lord”, “My Lady”.
 
Masters of the British Columbia Supreme Court are addressed “Your Honour”: September 6, 1991 Practice Direction, Masters – Mode of Address.
 
The court clerk should be addressed “Madam Registrar” / “Mr Registrar”. (In criminal cases the court clerk is referred to as “Madam Clerk” / “Mr. Clerk”).
 
When your matter is called
When your matter is called, approach the lectern and say something like “Your Honour, my name is Jamail, spelt J-A-M-A-I-L, first initial J., and I represent the applicant Mr. Slippenfall”.
 
Then state, in one short sentence, what you are asking for e.g. “the applicant seeks adjournment of the trial date”. Do not launch into a “helpful” description of background information without first telling the judge or master in brief simple terms what you are seeking in the application before them.
 
By this point the court clerk would likely have handed the file containing the notice of motion, notice of hearing, and other supporting material (affidavits etc.) to the judge or master. But, you should have your spare copy of the chambers record on hand should it be required.
 
What happens next will depend on the nature of your application, but if it is by consent or unopposed you should tell the court at the outset. If the application is unopposed you should soon tell the court that all interested parties have been served with notice of the application – your chambers record should contain affidavit’s of personal service.
 
If all goes well, hand up your draft order for signing
If it appears that the court may be willing to grant an order in the terms set out in your draft order which you had vetted by the registry (see above), you should hand up your order (which has already been approved as to form by counsel) and say something like “Your Honour, I have a draft order which has been vetted by the registry”.
 
The judge or master will hand the order back to you, hopefully having signed it.
 
Give an unsigned copy of the order to the court clerk, and leave the courtroom
The court clerk is required to report on the court file what occurred at each appearance. If the order is approved by the court, the clerk will often want a copy of the order which they can place in the file to save themselves having to write out what the terms of the order were. Give a copy of the order to the clerk – it can be a clean printout without the registry clerk’s vetting signature or the judge or master’s signature.
 
When entering or leaving any courtroom in session, it is polite to face the bench and bow. 
 
Have the registry give the order final approval
If the judge or master signs your order you will be able to take it back to the registry for signing by the registrar and to have an official registry stamp affixed. You will then have a fully authenticated order.
 
Procedure if the court does not sign the order during the hearing
If the judge or master is not satisfied with the form of the draft order, or the applicant does not prepare a draft order for signing at the hearing because it was not clear what the terms of the order would be, the applicant will prepare an order after the hearing and submit it to the registry for approval.
 
As explained above, if any of the parties are self-represented counsel should ask the judge or master that “the requirement for approval as to form by [self represented party] be dispensed with under Rule 41(8)”.
 
Take careful notes of the terms of the order the judge or master is prepared to grant to ensure you are able to accurately draft an order afterwards.  Ask the judge or master to clarify where necessary. If the applicant would like a copy of the chambers notes made by the court clerk to assist in preparing the order, the registry will provide a copy. If further detail is required, a transcript can be ordered.  
 
The registry will check the contents of the order submitted by counsel against the court clerk’s notes of the proceedings to ensure that the order granted matches what the judge or master agreed to. Before submitting the order to the registry counsel for all parties to the application should approve the order as to form: see discussion above.
 
If the order is approved, the registry will return it to counsel via the pigeon holes at the court registry: see article on backing sheets: www.legaltree.ca/node/669
 
Good luck.
 
Research articles :