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What is Proportionality under the New Rules of Court?

By Herb Silber, Q.C. (posts)

One of the significant departures between the current B.C. Supreme Rules introduced in 2010 and it predecessor can be found with the addition of Rule 1-3 (2) under the heading Object of Rules which addresses expressly what is meant by the need to secure a just speedy and inexpensive result on the merits:

“Proportionality-Securing the just, speedy and inexpensive determination of a proceeding on its merits includes so far as is practicable, conducting the proceeding in ways that at proportionate to:

(a) the amount involved in the proceeding
(b) the importance of the issues in the proceeding and
(c) the complexity of the proceeding.

A recent Supreme Court of B.C. decision by Master Caldwell deals with the relative merits of items a and b and suggests that item b may be more significant than a. The decision, Isman v. City of New Westminster et al, 2011 SCBC 1066 involved an application by the Plaintiff for documents relating to a claim for malicious prosecution and wrongful arrest. The documents in question it was alleged may tend to prove the claim for malice and punitive damages insofar as they relate to prior litigation between the Plaintiff’s company and the City of New Westminster involving a contentious by-law regulating the conduct of the pawn broker business in New Westminster, which the Plaintiff’s company was successful in quashing. The Court held that, in effect, the importance of the issues between the parties insofar as it engaged the interaction between the government and a citizen and the role of the police in such an interaction trumped the allegation by Defence Counsel that the amount involved was relatively minor. The gravamen of that aspect of the Judgment can be found at paragraphs 12 to 14 of the Judgment reproduced as follows:

[12] Defence counsel also submitted that the concept of proportionality as contained in the new rules mitigated against the potentially extensive and expensive search for and production of such documents. He suggested that the arrest and incarceration of the plaintiff were of such a brief nature (a matter of hours) that damages were minimal or non-existent.

[13] I am unconvinced by any of the defendants’ arguments.

[14] In my view, the defendants’ argument regarding proportionality provides the spotlight under which all of their arguments should be examined. Proportionality does not only relate to monetary quantification; it also relates to the importance of the issue in question. This case involves potentially very serious questions involving the interaction between a government and one of its citizens and the role of the police authorities in that interaction. In a free and democratic society, it is hard to imagine an issue of greater import.

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