The following questions on registry practice and procedure have been asked by Registry staff, and members of the Bar throughout BC. The answers are formulated by Katherine Wellburn, Registrar, and are vetted by a panel of editors. The questions and answers are published in the Registrar’s Newsletter, distributed quarterly to BC Supreme Court Registries. If you have a question or comment, please direct it to Olivia Canete, Assistant to the Registrar at 604.660.3258 or fax 604.660.4631.

Question
What is the procedure to be used if a bankrupt applies to have a student loan debt discharged pursuant to s.178 (1.1) of the Bankruptcy and Insolvency Act – when the date of the bankruptcy occurred within 10 years after the date on which the bankrupt ceased to be a full-time student or before the date on which the bankrupt ceased to be a full or part-time student? Who opens the court file if there isn’t one already? Bankruptcy and Insolvency Act s. 178(1.1)

Answer
If the trustee has not been discharged, the trustee should open a court file. If the trustee has been discharged and there is no court file, the bankrupt may open the court file by filing a notice of motion, and affidavit in support. The bankrupt should try to obtain copies of the statement of affairs, the assignment, the certificate of appointment and the s.170 report.

If the bankrupt opens the court file, the bankrupt will be required to pay the fee for filing a notice of motion, but not the fee for opening a court file.

The notice of motion and affidavit in support should be served on Student Loans, the trustee and the Superintendent of Bankruptcy.

Question
Can a default judgment be issued if the statement of claim contains a liquidated claim and an alternative claim not for a liquidated demand? Default Judgment Rules 17 and 24

Answer
No. In oral reasons in Thom v Grainger (unreported) (based on the Court of Appeal decision, Stokes Exploration Management Ltd. v Advance Geophysics [1972] 1 WWR 197 BCCA), Mr. Justice Fraser found a claim for a liquidated demand which is coupled with an alternative claim not for a liquidated demand cannot support a default judgment.

If a party seeks default judgment for a liquidated amount based on this type of pleading, the registry cannot issue the default judgment unless the plaintiff amends the pleadings to delete the alternative claim, serves the amended pleadings and re-applies for default judgment after the expiry of the time for entry of appearance or statement of defence.

Question
Can a supplemental grant of probate be filed in any Registry? Estate Administration Act, s.15(1)

Answer
No. s.15(1) of the Estate Administration Act indicates all second and subsequent grants of probate or administration must be made in the registry where the original will is deposited or the original Grant of Probate or Administration was made. The procedure is set out in the Probate Practice Manual.

Question
Are all District Registrars and Deputy District Registrars commissioners for taking affidavits? Evidence Act, s.60

Answer
Yes. s.60 of the Evidence Act provides that Registrars, Deputy Registrars, District Registrars, and Deputy District Registrars of the Supreme Court are commissioners for taking affidavits for British Columbia because of their office or employment.

Question
The amended Legal Profession Act which came into force January 1, 1999 does not contain a section saying where the review of a lawyer’s bill must take place. Can an appointment now be taken out in any registry? Legal Profession Act Rule 57(29.01)

Answer
No, the provisions with respect to the place for review of a lawyer’s bill have been moved into the Supreme Court Rules. Rule 57 (29.01) states:

An appointment for review of a bill, examination of an agreement or assessment of costs must be taken out,

(a) in the case of a bill to be reviewed or an agreement to be examined,

(i) if the bill or agreement relates to a court proceeding, in the registry at which the proceeding was commenced or to which the proceeding was transferred, or

(ii) if the bill or agreement does not relate to a court proceeding, at the registry nearest to the place of business of the lawyer concerned.

(b) in the case of a bill of costs to be assessed, at the registry at which the proceeding was commenced or to which the proceeding was transferred, or

(c) at any other registry to which the parties may agree.

Question
Is it possible to register a certificate issued after a Legal Profession Act review against land? Legal Profession Act, s. 76(3)

Answer
Yes. s. 76(3) of the Legal Profession Act provides that after a review the certificate of the Registrar may be filed in a registry of the Court and after the expiry of the 14 day appeal period or such other period as the court or the Registrar permits the certificate is deemed to be a judgment of the Court. Therefore after the expiry of this time period, a certificate of judgment can be issued based on the certificate of fees and registered against land.

Question
What does the registry require when the Court has ordered that a letter of credit be deposited?

Answer
A letter of credit can be issued by any Canadian bank or credit union and must meet the requirements set out in the Practice Direction issued March 27, 1986, by Chief Justice McEachern (a copy is contained in British Columbia Annual Practice).

A Small Claims appeal was filed and the appellant paid the amount of the judgment and $200 security for costs into court. The appellant subsequently abandoned the appeal. How can the respondent obtain the funds paid into Court? Small Claims Act

The respondent will need a Supreme Court order for payment out of the money. If the appellant will not consent to the order the respondent must make an application to the Court.

This article was published in the April 2000 issue of BarTalk. © 2000 The Canadian Bar Association. All rights reserved.