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BC Sessional Papers

A FURTHER RETURN To an Order of the House for a return of the Rules and Regulations framed and made by… British Columbia. Legislative Assembly 1889

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 52 Vic. Correspondence—Supreme Court Rules. 24c
To an Order of the House for a return of the Rules and Regulations framed and made
by a Commission of three persons appointed under the powers conferred on the
Government by " An Act regulating the Practice and Procedure of the Supreme
Court, 1887," together with the amendments or alterations of such Rules and
Regulations, if any, that have been made by the Lieutenant-Governor in Council,
and all correspondence relating to such subjects.
Provincial Secretary.
Provincial Secretary's Office,
Wth February, 1889.
The Law Courts, Victoria,
18th February, 1889.
Sir,—We have the honour to acknowledge the receipt of your letter of the 11th Last.,
favouring us with the views of the Executive Council in respect of the objections recently
made to some of the New Rules of Court by certain members of the Bar.
With great respect to the Council, we must take exception to those views in so far as
they imply, as they undoubtedly do, that the Commissioners, in the first place, failed, when
compiling the Rules, to consult the profession ; and in the next place, neglected their duty in
not arranging a conference with that body, for the purpose of settling, if possible, the
objections referred to.
Fully sensible of the value of any suggestions which any member of the Bar might think
lit to offer, and recognizing the desire of the Legislature, as intimated in the Statute, that such
suggestions should be made and fairly considered, the Commissioners took the following precautionary measures to secure them :
A notice of their sittings, naming time and place, was posted up in the office of the
Registrar of the Supreme Court near the doorway, where practitioners could not fail to see it.
This notice was only taken down from its place by the Registrar when the Courts were being
removed to the new building, and was lately shown by him to the Honourable the Attorney-
Again, lest the attendance at the sittings, which the Legislature contemplated by section
3 of the Act, should prove ineffectual, or be inconvenient to any of the members of the profession, the Commissioners took measures to consult them individually, and in a manner which
they venture to think the Council will, in view of what is about to be stated, consider the
best that could have been adopted to achieve its purpose; especially as an influential portion
of the Bar resided at New Westminster, while others resided at Nanaimo and Kamloops.
It was arranged, as you will remember, between the Commissioners and yourself, that
the draft Rules should, owing to their bulk and the inability of the Printing Department to
print them as a whole, be printed in consecutive parts ; and the type of each part, when
finished, be distributed for use on further parts of the work. This arrangement proved of
greater advantage than was anticipated; for it gave the Commissioners an opportunity, which
they embraced, of sending a corrected proof of each part, as it was issued, to every practitioner
in the Province, for his consideration and suggestions. 246 Correspondence—Supreme Court Rules. 1889
The Registrar kept a list, which we now have, of those to whom the proofs were sent;
and it shows that none were, on any occasion, overlooked.
Accompanying the first proofs so circulated was the following printed notice, which speaks
for itself.
" Memorandum.
" In consequence of the inability of the Printing Department to keep a large
quantity of type set up for any extended time, only proofs of the draft New Rules
of Procedure, as the same shall be published consecutively, can be sent by the
Commissioners to the members of the legal profession for their consideration.
"Supreme Court House,
"25th May, 1888."
After each distribution of proofs a fortnight, at least, was allowed to elapse before they
were finally settled and printed, so as to give practitioners ample time to offer any objections
or amendments which might occur to them.
Again, in July last, one of the Commissioners issued a circular inviting such members of
the profession as were then in Victoria to meet him at a time named, in the Law Library, for
the purpose of discussing several unsettled questions, and the rules which should regulate
them.    The meeting, as he reported to us, was held accordingly and well attended.
The questions upon which he sought advice were discussed and settled; and a minute
made by him of the result, which, it may be added, was subsequently embodied in Rules, some
of which the Commissioners now find are objected to.
Up to the time of the meeting 533 rules had been printed and circulated, and upon the
Commissioner asking whether any of them required amendment, one only was mentioned as
defective ; and that defect was subsequently amended, as then suggested.
Now, however, several of the 533 rules, including the amended one, are declared to be
objectionable. The Commissioners also drew the attention of the meeting to the arrangement
made for printing, and to the manifest importance of objections or proposed amendments being
submitted before  it became necessary to distribute the type.
After the above meeting the practice which had been adopted at the outset with respect
to the circulation of proofs was strictly adhered to until the Rules were finally completed.
With the exception of a solitary protest against certain Rules intended to protect suitors
against costs occasioned by carelessness on the part of their solicitors, uo objections or amendments were submitted to the Commissioners during the further progress of the work.
In your letter you observe that " the members of the profession seem to have thought
"that the most opportune time and manner of formulating their views was after completion
"of the Rules and deliberation upon them amongst themselves." But the Legislature very
distinctly thought otherwise, and considered that this should be done at the sittings of the
Commissioners, as appears by section 3 of the Act (c. 10 of 1887),  which is as follows :—
" Every member of the Legislature of British Columbia, and every member of the Law
" Society of British Columbia, shall be entitled to be present at such sittings ; and may offer
" suggestions concerning such rules, &c."
In view of this section, and of what has already been stated with respect to the arrangements for printing, it is difficult to conceive how any member of the profession could have
come to such a conclusion.
This conclusion was certainly never mentioned to the Commissioners during the compilation of the Rules; for if it had been, they would have respectfully suggested to the Government
the manifest propriety of stopping the work, to prevent a further useless expenditure of
The Commissioners trust that the statement thus far made will convince the Government
that, prior to the Rules being completed and forwarded for the consideration and approval of
His Honour in Council, as required by the Act, every reasonable effort was made by them to
consult the Bxr and secure its co-operation ; and that, in circulating proofs of the Rules as they
did, they gave enlarged advantages to the profession and opportunities for expressing their
views which were not even contemplated by the Legislature, as appears by the section above
With reference to the opinion of the Council, as expressed in your letter, that the Commissioners should have held a conference with the profession " after the completion of all the 52 Vic. Correspondence—Supreme Court Rules. 247
"Rules, and especially when notice of objections had been given, with a view of reconciling
" conflicting views," the Commissioners would respectfully observe that they could not, in view
of the following circumstances, have done so with any degree of propriety or with any hope of a
useful result.
In the first place, after waiting the usual time for objections or suggestions, and receiving
none, the last of the series of Rules was finally settled and printed on the 6th of September last,
and the type, as in former instances, distributed.
Secondly—The Rules thus completed were forwarded to the Government for the consideration of His Honour in Council, on the 6th  day of November last.
Thirdly—The objections taken to them were only made known to the Commissioners on the
9th of December last, viz : fully three months after the Rules had been completed, and the last of
the type distributed, and several weeks after they were out of the hands of the Commissioners
and were laid before the Executive for their consideration.
Now, apart from the obvious inutility, in consequence of the total distribution of the type
months previously, of any such conference being held at the instance of the Commissioners, such
a proceeding, it is respectfully submitted, would have been most objectionable on higher grounds.
When the Commissioners had the honour to forward the Rules, as complete, for the consideration of the Executive, their statutory duties and authority fui ther to deal with them,
ceased for the time being, and it rested with His Honour in Council to affirm or disallow them.
or return them to the Commissioners for re-consideration, with such recommendations as His
Honour might be pleased to consider expedient.
The members of the Bar recognized this as being the correct constitutional practice, for
they very properly addressed the objections referred to, as well as other correspondence on the
subject—not to the Commissioners, but—to members of the Executive.
As the Commissioners had no intimation whatever of the wishes of His Honour in Council
in respect of these objections, they could not, under the circumstances, and without express
authority from him, have dealt with them at all, without improperly interfering with the deliberations of the Council, and unwarrantably trespassing upon their exclusive functions.
As the Commissioners understand from your letter that the Executive recommend a conference with the Bar, they will have much pleasure in giving effect to their desire in that respect
as soon as practicable, and in making the result of the Conference the subject of a Special
And we have the honour to be,
Your obedient servants,
(Signed) Henry P. Pellew Crease,
„ Geo. A. Walkem,
To the Honourable „ M. W. Tyrwhitt Drake.
The Provincial Secretary, Victoria, B. C.
VICTORIA: Printed by Richard Wolfenden, Government Printer,
at the Government Printing Office, James' Bay.


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