1. Introduction
In 1982 British Columbia’s executive branch of government added Rule 18A to B. C’s. 1883 rules of civil procedure rules. It called the process a “Summary Trial.” The rule allows either party to try a case before a judge alone using evidence taken from paper affidavits rather than evidence from live witnesses. Like many executive rules in the last 100 years, it was done with little research or much thought about the consequences.
The apparent reason for the rule was to cut down on the number of ordinary trials with live witnesses. They took more court time to hear because of the antiquated 1883 rules and ineffective case management systems. Despite Rule 18A’s obvious defects, the executive’s proposed new 2006 Rules incorporates Rule 18A as Rule 9-8.
The following précis tries to illustrate the damage Rule 18A has done and that new Rule 9-8 will continue doing to B.C.’s civil justice system.
2. Testimony and evidence of witnesses at an ordinary trial
In an ordinary trial before a judge or jury, witnesses testify under oath and are cross-examined. Judges or jurors may believe all the evidence given by a witness, some of the evidence given by a witness or none of the evidence given by a witness. Their belief is based upon the credibility of the witnesses.
To arrive at a belief, judges or jurors consider such intangible things as the demeanour of witnesses, their ability to perceive or remember events, to express themselves confidently without appearing to guess, etc.
3. Testimony and evidence of witnesses at a Rule 18A trial
While the parties may call witnesses to testify at a Rule 18A trial, probably this happens in just 1% - 2% of Rule 18A Summary Trials. Almost always the witness’s testimony is reduced into evidence in the form of a typewritten affidavit drafted by counsel and signed under oath by the witness.
Rule 18A trial judges rarely see or hear any witness testify so they can decide whether the witness is credible or not.
4. Evidence and fact –two totally different concepts
Trial judges and jurors are not simply receptacles for the collection of evidence. They have a far more important practical duty to perform. That duty is to find facts from the evidence they heard and believed.
Since Rule 18A trial judges seldom see and hear witnesses testify, they cannot find facts. Hence, they cannot arrive at a proper judicial decision.
5. The 5 stages of every civil trial
As mentioned elsewhere on this site, there are five important stages or steps in every civil trial. They are:
1) Evidence (testimony of witnesses)
2) Fact
3) Law
4) Proof on a balance of probabilities
5) Remedy
In other words, a judge or jury hears all the evidence. They then reduce it to facts based on the evidence they believed. They then apply those facts to the law. They then decide whether the plaintiff proved its case on a balance of probabilities. If the plaintiff met that standard of proof, the plaintiff’s remedy usually is damages. If not, the defendant’s remedy is dismissal of the action. Since judges seldom see or hear witnesses testify on a Rule 18A trial, they must skip the crucial stage of finding facts based on witnesses’ credibility. Thus, they can only review the contradictory affidavit evidence and make a guess at what appears to be the facts. They then apply that guess to the law and follow the remaining steps.
Put another way, many if not all Rule 18A decisions are based on mere guesswork; hardly a resounding tribute to any judicial system.
6. Appellate court mistakes that equate evidence with fact
Perhaps the 1982 executive was led astray by Canadian appellate courts’ unprincipled decisions in other areas of the law that equate evidence with fact. Those errors are discussed in previous postings on this site such as;asonable Doubt - 4 February 2008; Jury Instructions-Reviewing the Evidence – 15 December 2007 and 11 February 2008.
7. Rule 18A – additional costs to many litigants
After trial judges hear a Rule 18A application they can make one of two rulings. They may decide in favour of the applicant and render judgment accordingly. Or, they may dismiss the application and order that the case proceed to trial in the ordinary way. Whatever ruling is made, the losing party then has a right of appeal to the British Columbia Court of Appeal (BCCA). That court may allow or dismiss the appeal.
If the trial judge, or later the BCCA, orders the trial proceed in the ordinary way then, there will be a trial with witnesses. After a judge decides that case, there is another right of appeal to the BCCA. This means there can be two trials and two appeals under Rule 18A instead of one trial and one appeal in ordinary circumstances.
All of these Rule 18A trials and appeals can add substantially to the time and cost of litigation.
8. Appellate court judges should hear all or most Rule 18A applications
Trial judges just have numerous affidavits before them when deciding Rule 18A applications. Because they seldom if ever see or hear any witnesses testify in person, appellate court judges are in just as good a position to guess at the facts as are the trial judges. On appeal from a Rule 18A decision, appellate courts may find different facts from those found by the trial judge even though appellate courts are not supposed to be fact finders.
It would save litigants a great deal of money if every Rule 18A application was heard first by the BCCA.
7. Losing a generation of trial lawyers
Rule 18A came about in 1982 for a number of reasons. One was the length of time it took to get on for trial. On average parties applied for a trial date about two years after filing. The court then assigned them a date about 12 to 18 months later. When lawyers and litigants showed up on their promised trial dates, about one third of them got “bumped”. Some cases got bumped more than once; often rescheduled to commence six months later and sometimes later than that. This happened frequently since the court booked too many cases for too few judges.
Desperate to get any kind of a resolution of their clients’ disputes in a more timely way, trial lawyers bought into Rule 18A enthusiastically. As they did so, they soon began losing their trial skills of preparing witnesses, presenting evidence and arguing before a judge or a jury. The thought of an ordinary trial with witnesses that they have not done in years, probably scares many plaintiffs’ lawyers today. They may settle for less than what a case is really worth. Many defence lawyers in the same situation probably pay more.
Besides that, the executive’s rules show its customary dark side against civil jury trials. Even if a party applies for a jury trial, Rule 18A deprives that party from having a jury trial if the opposing party applies for a Rule 18A Summary Trial.
Instead of increasing their conventional trial skills, after 1982 many trial lawyers began losing them. Newly admitted lawyers had fewer and fewer chances to participate in a real trial so they could learn to acquire the necessary skills. The problem grows with every passing day.
Rule 18A is a cancer on British Columbia’s civil justice system because it is so unprincipled. Without any published research papers on its efficacy, fairness, or savings to litigants, the executive proposes to perpetuate its life via new Rule 9-8.
Bottom Line:
1. When the executive enacted Rule 18A in 1982, it did not consider other alternatives for processing cases in a more timely fashion in use in other jurisdictions.
2. Rule 18A lacks principle because it considers evidence given by way of affidavit is equivalent to live witnesses giving evidence and being cross-examined at a real trial.
3. It was a complete change in the common law trial system and ought to have been enacted by the Legislature, not by the executive who can only make rules dealing with practice and procedure.
4. Trial judges who decide Rule 18A Summary Trial applications cannot make findings of fact in order to reach a principled decision because they did not see and hear the witnesses testify. They only read their affidavits.
5. If a judge dismisses a Rule 18A Summary Trial application and orders the dispute proceed to a normal trial that means litigants must pay for the cost of two trials.
6. The additional possibility of two trials and two appeals on a Rule 18A application makes the process even more costly and time consuming than one conventional trial and one appeal.
7. Due to the increase in Rule 18A applications, and the corresponding decrease in conventional trials, a generation of lawyers has lost or been unable to acquire the skills necessary to conduct a conventional trial.
8. Few if any criminal law judges or lawyers would advocate that a judge could decide a criminal case using affidavit evidence under a criminal rule similar to Rule18A.
9. No one would suggest a civil jury try a Rule 18A case using affidavit evidence. Intuitively, most lawyers and judges realize that civil jurors could not effectively find facts from those affidavits. Trial judges are no different.
10. Progressive jurisdictions that process civil cases in a timely fashion do not use a Summary Trial rule similar to Rule 18A. The executive’s failure to research these jurisdictions and lazily continue supporting Rule 18A emphasizes its scholarship failures.
15 May 2008
I agree with many of the comments you make. However, am I not correct in my view that where credibility issues arise, 18A trials are not an option? Surely some trials can be summary in nature, plus, the high cost of a full blown trial would reduce access to justice since, as one SCC judge remarked last fall "Litigation is the new sport of kings!"
The average guy e.g. a small contractor holding a Builder's Lien would have no recourse with a clint refusing to pay.
Are you not really saying that R.18 trials are not used appropriately?
Reply: Thank you for your comment. Many Rule 18A applications are dismissed at the first hearing after many hours of argument because they were not suitable for a trial by affidavit. That usually means the parties were unable to agree on the facts after they both prepared and filed a multitude of conflicting affidavits at great cost to their clients.
You may notice in other postings on this site that U.S. Rules seem to provide for much shorter trials than in B.C. and perhaps the rest of Canada. One reason for this is the right of U.S. litigants to examine witnesses before trial without having to get an order. B.C. Rules do not give litigants that right.
After these examinations, the issues in U.S. cases seem to narrow and the trials become shorter. In B.C. all of these witnesses get called at the trial, again at great expense, in the hope they may say something helpful.
My argument is that we should at least look at the U.S. system to see if it will reduce the cost of litigation and better serve the public. Canada's judicial and political heirarchies refuse to do so. Their stubborness reflects badly on their objectivity and severely handicaps Canada's judicial systems.
Posted by: Gerry Laarakker | May 17, 2008 at 06:48 AM
One of the things that I dislike about 18A when acting for a Defendant is that a Plaintiff can bring in a half baked case, the Defendant has to put in his whole case in response, but the Court seems reluctant to dismiss outright the half baked Plaintiff's case.
Reply: Yes this is just another failure of Rule 18A. Like most changes to the Rules it came into effect without the benefit of careful study, circulation of research papers and thoughtful respondes to valid criticism.
Posted by: Jan Christiansen | July 05, 2008 at 10:20 AM