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Settling an order in the BC Supreme Court
Fri, 2008-07-11 16:27 — Anonymous (not verified)
Research articles :
So you have to “settle an order” and you have no idea what that means.
Rule 41(18) of the Rules of Court, B.C. Reg. 221/90, provides:
An order shall be settled, when necessary, by the registrar, who may refer the draft to the judge or master who made the order.
The procedure for settling an order is set out by Dunn, McCallum & Turiff, in “Practice Before the Registrar” (British Columbia
Generally, a party will apply to settle an order when the parties are unable to agree about the content of the order. The procedure for setting an appointment to settle is set out in Rule 41(19): a party may obtain an appointment in Form 44, then deliver the appointment and draft order to all parties whose approval is required, at least one day before the appointment. Although not stated in the Rules, it is also advisable to include a copy of the clerk’s notes, a transcript of the proceedings, or a copy of the reasons for judgment with Form 44 and the draft order, to allow the registrar to distill the court’s directions into an order.
To summarize: the appointment to settle an order in Form 44 should be obtained and then filed with the registry, along with a draft order and a copy of the reasons for judgment, clerk’s notes or transcript. A copy of these materials must be forwarded to the other parties more than one day before the appointment.
The draft order presented to the registrar need not be separately vetted prior to appearing, and need not state that the order has been approved by counsel or parties. The draft order should, however, contain the following words above the registrar’s signature line: “Settled in this form on the [day] of [month], [year]”. Although the correct way to address the registrar is as "Madam Registrar" or "Mr. Registrar", this may become academic, as masters (referred to as "Your Honour") may hear matters as a registrar.
In settling an order, the registrar should distill the judge’s reasons, but must not venture too far in interpreting those reasons: see e.g. Re P, 2000 BCSC 71; Will Millar Associates Co. v. William (1995), 44 C.P.C. (3d) 398 (B.C.S.C.). Rule 41(18) also provides that the registrar may refer the draft order to the judge or master who made the order.
Where the trial judge, chambers judge or master has not made an order with respect to costs, the registrar may include a term in the order entitling the successful party to costs: see Chernoff v. Insurance Corporation of British Columbia (1992), 12 C.P.C. (3d) 220 (B.C.S.C.).
Finally, although an order may be entered after it is settled, this may not conclude matters. Rule 41(21) provides that the court may review and vary the order as settled, though there appear to be no reported cases of this sub-rule being invoked: see Morton v. Harper Grey Easton (July 24, 1997, BCSC, Prince George Registry); Will Millar Associates Co. v. William.
