THE ADVOCATE 825
VOL. 79 PART 6 NOVEMBER 2021
PROPOSED BEST PRACTICES
IN THE PREPARATION OF
APPLICATION RECORDS FOR
A SUMMARY TRIAL IN THE
SUPREME COURT OF BRITISH COLUMBIA
By the Honourable Justice Geoffrey Gomery*
Summary trial applications require the Supreme Court to review a
body of evidence and make findings of fact. A summary trial is a
substitute for a trial in which evidence would be adduced through
witnesses. In a summary trial, the primary mode of proof is documentary;
while it is possible that witnesses will be called to supplement
the documentary record, it is very much the exception rather than the rule.
This article focuses on summary trial applications, but much of it would
apply to any application in which the court must review a body of evidence
and come to conclusions concerning what can or cannot be proved. Examples
include petition proceedings, certification applications, injunction
applications, applications to approve a settlement and so on.
Summary trials have become an indispensable tool for the conduct of
civil litigation in British Columbia, but they present challenges for the presiding
judge, especially by comparison to an ordinary trial. Some challenges
are inevitable, because it is in the nature of a summary trial that it is compressed,
and the judge must absorb a volume of material more quickly than
otherwise would be the case. However, additional challenges are imposed
on the judge by litigation practices that are not well suited to the task at
hand.
This article is intended to propose best practices to facilitate fact finding
in summary trials. These are only the views of a single judge. The intended
audience is litigation counsel. It must be borne in mind that it is counsel’s
responsibility to marshal and present evidence. The court’s role is to receive
* I am grateful to Chief Justice Hinkson and Justices Horsman, Marzari and Skolrood, who took the time to review drafts of
this article and offer comments. As stated in the body of the article, the views and proposals set out in the article are solely
mine.