BarTalk October 2000
Volume 12, Number 5

The following questions on registry practice and procedure have been asked by Registry staff, and members of the Bar throughout BC. The answers are formulated by Katherine Wellburn, Registrar and Dawn Levert, Manager of the Registrar Program, and are vetted by their panel of editors. The questions and answers are published in the Registrar’s Newsletter, distributed quarterly to BC Supreme Court Registries. If you have a question or comment, please contact at 604.660.3258 or facsimile 604.660.4631.

What material should be submitted to the Registrar for taxation of a bill for legal fees rendered to a trustee in bankruptcy? Bankruptcy and Insolvency General Rules s. 18,19,20

The material submitted to the Registrar should include:

• a draft certificate for the Registrar’s signature;

• a copy of the bill with the declaration and signature of the trustee as required by rule 20 of the Bankruptcy and Insolvency General Rules; and

• an affidavit of the solicitor in support of the fees setting out the nature of the services, the hours spent, hourly rate, experience of the lawyer, results, amount involved and any complexities, so that the Registrar can assess the reasonableness of the bill.

How is a file opened under s. 18 and 19 of the Commercial Tenancy Act?

S. 18 states “apply to the Supreme Court”. An originating application may be made by petition or praecipe. Since the application must be served, a petition is appropriate.

How is a show cause summons under s. 25 of the Commercial Tenancy Act issued?

The show cause summons is filed with an affidavit that must contain the information required in s. 25. The Registrar issues the summons calling on the tenant, three days after service, to show cause why an order should not be made for delivering up possession of the premises to the landlord. The filing fee is $208 and the matter is set on the chambers list on the date counsel have chosen for the hearing.

What is the process for varying a child support order under the Divorce Act when one of the parties lives in another province?

The Honourable Madam Justice Huddart addressed this issue recently in a Court of Appeal decision – Metanczuk v. Medeiros Kamloops CA24892. See www.courts.gov.bc.ca/jdb-txt/ca/00/02/c00-0233.htm.

What is the authority that allows a Labour Relations Board decision to be filed in Supreme Court?

S. 102 of the Labour Relations Code sets out the circumstances when a decision of the Labour Relations Board may be filed and enforced through the court and the relevant procedure.

A client wants to transfer her file to a new lawyer, but the first lawyer is claiming a lien over the file. Does the Registrar have any jurisdiction to deal with the solicitor’s lien?

No. As set out in s. 78 of the Legal Profession Act, the client or the new lawyer may apply to the court for an order concerning the delivery of the file.

Should a copy of the document served (i.e., the writ of summons and/or statement of claim) be exhibited to the affidavit of service in support of a default judgment application? Rule 17 & 25

Yes. Before issuing default judgment the Registrar must be satisfied that the time to file an appearance or defence has expired, and that the address of the registry and, if applicable, a form 6 endorsement appears on the copy of the writ which was served.

Rule 24(1)(b) says that an amendment to a pleading or originating process can be made at any time with the written consent of all the parties. What form must that consent take?

Consent may be an endorsement anywhere on the document, usually on the first or last page or a covering letter(s) signed by all parties to the proceedings. Note: the rule doesn’t make reference to an order or an application to the court.

Counsel for the petitioner in foreclosure proceedings submitted a praecipe requesting the transfer of a file to Vancouver for the hearing of an application “by consent of all parties of record”. There were no appearances filed. Should the file be transferred? Rule 44 (14) & (16)

The praecipe does not provide enough information for the registrar to transfer the file. As set out in section 21 of the Law and Equity Act, every foreclosure proceeding must be commenced in the municipality or judicial district in which the land is located and all applications in the proceedings must be heard at the location of that registry, unless the registered owner of the land consents or the court otherwise orders, or subject to the rules of court. The rule with respect to transfers of files for applications is Rule 44(16). If the request for the transfer is on the basis of consent, evidence should be provided as to which parties have consented to the transfer and how they have indicated their consent. If all parties have not consented the registrar will consider whether the transfer is urgent or convenient to all parties. If the request for transfer of the file is based on urgency, the basis for the urgency should be set out. If the request is based on convenience, counsel should indicate the address for delivery given for any respondents who have entered appearances. Counsel should also include evidence as to the position of each respondent or relative convenience for each respondent with respect to the transfer. Generally, the file should not be transferred unless the registered owner and any tenant (whether or not they have entered an appearance) have consented unless the registrar is satisfied that the registered owner or tenant has no interest in the application and it is convenient for the other parties.

How does the registry process desk order divorce applications? Rule 60

If the application and supporting material is in order the application is referred to a judge. If information or material is incorrect or missing, registry staff will return the application to the applicant with a checklist showing the reasons for rejection. When an application is submitted with an explanation for missing or incorrect material, registry staff refer the application to a judge noting the deficiencies.

Is a plaintiff who recovers a judgment within the monetary jurisdiction of the Provincial Court entitled to Appendix C, Schedule 1, costs on taking default judgment?

No. Rule 57(10) states: A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.

How can a party obtain a stay of an order of a master pending appeal? Rule 53(9)

Either the master or the court may stay execution of the order. A party may apply to the master to stay the order at the time it is made or make an application to the court afterwards.

Can a garnishing order be issued if the garnishee is not within the Province of BC?

No. S. 3(2) (e) of the Court Order Enforcement Act provides that the affidavit in support of a garnishing order must include a statement that the garnishee is in the jurisdiction of the court.

Can a judgment creditor who sues on a judgment before the 10 year limitation period expires obtain default judgment?

Yes. As there is no mechanism to renew a judgment, the judgment creditor sues on the original judgment. The amount is a liquidated sum because it is specified in the previous judgment. The creditor may obtain default judgment for the amount owing and continue trying to collect the debt. Under s. 3(3)(f) of the Limitation Act, an action cannot be brought after the expiration of 10 years “on a judgment for the payment of money or the return of personal property”.

What is the process for entering a consent judgment when no action has been commenced? Rule 41(16), Rule 10(2)

Open the file with a praecipe, and file the material required by Rule 41(16): a praecipe in Form 56 and a draft order in Form 56A endorsed with the consents of the parties. The fee for commencing a proceeding will be charged.

This article was published in the October 2000 issue of BarTalk.