Case Summary by John W. Bilawich
 
Re: Rule 7-5(1)
Case: Virk v. Brar 2010 BCSC 1363
 
Decision of Master Taylor dated September 28, 2010; date of hearing was September 1, 2010
 
Application pursuant to Rule 28 of the old Rules of Court to cross examine two witnesses under oath. The most interesting aspect of this decision is the fact that it was argued and decided long after the new rules came into effect.  The reasons given for this include:
(a) the notice of motion was dated June 25, 2010 (just days before the new rules came into effect); and
(b) the parties agreed that Rule 28 of the old Rules would apply.  
 
At para 2:
[2]  Even though this matter was heard some two months after the new Rules came into force, the parties have agreed that Rule 28 of the former Rules would be the applicable rule for determining the issue as the plaintiffs’ notice of motion is dated June 25, 2010. 
 
Thereafter the reasons are framed using the old rules and referring to authorities applicable to the old rule.
 
The parties and master treated this as a transitional situation where they appear to have decided they had discretion to apply the old rule … no authority is given to support that that decision, though.
 
A comparison of the language in the old Rule 28(1) and (3) to the new rule Rule 7-5(1) and (3) shows they are very similar in the relevant sub-sections, so it is not clear why they avoided using the new rule references.
 
New Rule 1-2(2) says the Rules apply to every Supreme Court proceeding (with some exceptions).  New Rule 1-2(3) says that on application and if all parties agree, the court may order that some provision in the new rules does not apply to a proceeding.  This decision is not framed as a waiver situation.