In the context of an ICBC injury claim, a Notice of Application is when one party seeks to obtain a court order on a particular issue. The party will file and serve the Notice of Application, which includes the relief being sought, as well as a supporting affidavit. The relevant rules for Notices of Application are contained in Part 8 of the Supreme Court Civil Rules.
A particular requirement that the Court expects from a Notice of Application is for there to be fulsome argument outlined in the Notice of Application.
This requirement was not adhered to in Dupre v. Patterson, which seemed to draw the Court’s ire. In this case, the Plaintiff was a cyclist who who was injured in a collision with a motor vehicle. The matter had proceeded via the fast track route, however the Defendant then brought an application for dismissal of the action by way of a summary trial on the basis that she was not liable in any way for the accident. The Court eventually dismissed the application, ruling that the Defendant was indeed liable for the accident. The Court also made reference to the quality of the materials filed on behalf of the Defendant.
[45] The defendant‘s notice of application filed July 3, 2013, did not comply with the Supreme Court Civil Rules. The complete “Factual Basis” for the summary trial was set out on about three pages, double spaced. The “Legal Basis” section said in its entirety:
1. Rule 9-7
2. Rule 14-1(12) – costs
3. Motor Vehicle Act, RSBC1996, c. 318, Part 3, section 183(2)(c).
[46] There was not even a brief statement to the effect of “The court should dismiss the action because” and then setting out the reason or reasons why, in the defendant‘s submission, that should be the result.
[50] The requirements under the current Rules represent a fundamental change from the practice under the former Rules of Court. Under the former Rules, Rule 44(3) and Form 55 (the form of notice of motion) only required a bare statement of the Rule or enactment relied upon. An outline (see Form 125 and former Rule 51A(12)), outlining the legal arguments to be made, was then delivered later in the exchange of motion materials and prior to the hearing. That is not the practice under the current Rules.
[51] If a notice of application does not contain the information now required under the Rules, the party filing it has failed to give proper notice – to the opposing party and to the court – of the nature of the application. However, all too frequently, counsel in both civil and family cases are signing and filing inadequate notices of application and application responses. The notice of application filed in this case was not at all unique. However, such documents do not comply with the Rules.
[52] In contrast to the bare-bones notice of application filed on behalf of Ms. Patterson, the application response was comprehensive and, in the page limit allowed under the Rules, set out both a detailed summary of the facts and an analysis of the legal basis on which the plaintiff said the court should find the defendant liable. It represents the standard expected by the court.
[53] In this case, the inadequacy of the notice of application was compounded by defendant‘s counsel tendering a 14-page written submission at the hearing. Since the hearing was estimated and set for 90 minutes, this was in breach of Rule 8-1(16).
