Chambers Practice: Costs Consequences For Incorrect Time Estimates

Underestimating your time estimate in chambers may get you heard sooner but can lead to unexpected costs. Learn more in our latest blog.

Intro

When setting down a chambers hearing under the Supreme Court Civil Rules or the Supreme Court Family Rules, applicants are required to provide the court with an estimate of how much time they expect their application will take.¹ Some unopposed matters may take 5 or 10 minutes. Some opposed matters may take 30 or 60 minutes. Complicated opposed matters will regularly exceed 60 to 90 minutes. And while matters beyond 120 minutes are supposed to be scheduled for long chambers, it can be difficult to secure dates, which have to be booked two months in advance.

The reality is the longer your time estimate is, the less likely you are to get heard. If there are too many 60 to 90-minute matters on a chambers day, those with 2 hour matters simply won't get heard, particularly if they are non-urgent. The system indirectly encourages applicants to give low time estimates so they can get heard and avoid wasting time sitting in court. Aside from the fact counsel should not mislead the court with an inaccurate time estimate, counsel should also be aware that in some cases, providing an inaccurate time estimate can result in costs consequences for your client.

Cases

In Sangha v. Goel, 2018 BCSC 2267, the petitioners provided a time estimate of 1 hour and 45 minutes on an apparently busy chambers day. At the start of the hearing, counsel for the petitioners applied for an order allowing them to file their application record which had not been done in the timeline set by the SCCR. The hearing of the petitions took nearly 2 hours and 45 minutes "with the result that applications by other litigants could not be heard that day". Chief Justice Hinkson ruled that:

[37] Given the circumstances... I decline to award the costs of the applications to any party. Counsel who underestimate the time required for the hearing of their applications in chambers at the expense of other counsel or litigants must be discouraged from so doing. It serves no one's interests to terminate a hearing whose required time has been underestimated at the completion of that time estimate, and the only means by which such inaccuracy can be addressed is by refusing costs where such conduct occurs.

In Tait v. van Wollen, 2022 BCSC 1509, the applicant provided a 1-hour time estimate. The hearing before Associate Judge Muir ultimately lasted for the afternoon of July 28, 2022, was adjourned to August 4, and continued for more than an additional hour on that date. The hearing lasted both more than the time originally set, but also more than the maximum 2-hour time limit for regular chambers hearings.

AJ Muir in her decision wrote that:

[70] Failure to properly consider and accurately estimate the time required for applications is legion. It does, however, play havoc with our chambers system.

The applicant was ultimately unsuccessful. She was a self-represented litigant and took up most of the time at the hearing for her own submissions: para 72. However, AJ Muir noted that the other parties should have also recognized that their submissions would exceed the time estimate. For that reason, while the application respondents would have received their costs of preparing for and attending the hearing, AJ Muir ordered that all parties would bear their own costs of attendance.

AJ Muir had decided a case two years earlier, Kerr v. M.R.G. Ventures Ltd., 2020 BCSC 275, in which the parties had scheduled a 2-hour application which lasted approximately 2 hours and 45 minutes. She commented:

[59] Time estimates are notoriously difficult, particularly where there are more than two counsel involved. Counsel are all expected, however, to tailor their submissions so that they can conclude within the time estimated, including time for reply, argument on costs and for the court to give reasons. Obviously here, that was not done.

[60] When it became clear that the parties were not going to finish their submissions on the application in the two-hour time estimate, I warned them that I was considering costs consequences.

[61] Had I been given time, I would have delivered reasons from the bench and the parties would not have had to wait for a decision. In the circumstances, however, I could not in good conscience keep the clerk and the sheriffs involved any later.

[62] In submissions on costs, the plaintiff took the position that he had always been of the view that this should have been a long chambers application, although that is not what the plaintiff's application response indicates. I have already noted that plaintiff's counsel wasted significant time on a point that had no persuasive value to me.

[63] The parties argued, essentially, that they had kept to their time estimates. If that was the case, however, we would have concluded at 4:20 p.m., allowing time for the afternoon break, with me having given reasons.

...

[65] Although the underestimation here was not as egregious [as the one in Sangha v. Goel, referred to above] I have concluded for the same reasons that costs should be refused. It is entirely possible that this application, which clearly should have been scheduled as a long application, bumped other matters that could properly have been heard in Chambers. As a result, the parties will not have costs of this application.

While there were no costs consequences in L.E.S. v. J.C.S., 2021 BCSC 1733, AJ Muir again reprimanded counsel for taking up more than their estimated 1 hour. Submissions ultimately lasted for over the time estimate and had to be adjourned until 9:00 a.m. the next morning. The issues AJ Muir set out were threefold:

1. By providing an unrealistically short time estimate, counsel likely jumped the queue, meaning that they likely would not have ben heard had their provided an accurate time estimate.
2. Counsel hurried to complete their submissions, which left the court with a mass of materials on which to make a decision and little guidance from counsel.
3. Counsel failed to leave time for AJ Muir to give reasons, which she would have ordinarily given from the bench; as a result, she had to reserve judgment for a month following the hearing.

Similarly, in Trinity Western University v. Johnson Controls LP, 2022 BCSC 1632, Associate Judge Harper hypothecated upon the cost consequences had the applicant university been successful:

[36] The time estimate for this application was woefully inaccurate. Although set for ninety minutes, the hearing was spread over three hearing days and took far more than ninety minutes. New evidence and new arguments from TWU materialized during the gaps between hearings. The protracted hearing delayed the issuance of these reasons. I can only add my voice to the chorus of concern that inaccurate time estimates must be avoided... Given that the Johnson Defendants were successful on this application, there is no further remedy I can impose by way of costs. If I had dismissed the application, it would have been with costs to the Johnson Defendants in any event of the cause because of the delays and inefficiencies caused by TWU's approach to the application.

Conclusion

A time estimate is just that: an estimate. How long a hearing will take inevitably depends on many factors, including whether your application is opposed, the number of application respondents, the complexity of the issues involved, how long your own submissions take, and how many questions the Judge or Associate Judge asks. Many of these factors are out of our control.

To ensure they do not incur costs consequences for their clients by providing an inaccurate time estimate, counsel should be sure to do the following.

1. Time your submissions in advance. Read your submissions aloud with a timer or, if you're in a time crunch, take the number of words in your submissions and plug them into a "words to time" calculator.
2. Anticipate what questions the Judge will have for you and how long it will take to answer them.
3. Anticipate how long the other counsel or party's submissions will take.
4. Leave time for reply.
5. Leave time to speak to costs.
6. Leave time for the Judge to issue reasons.
7. Leave extra time just in case.
8. If your total estimate is near or in excess of 2 hours, consider reducing the number of issues in your application, pairing down your submissions, or setting your application for a long chambers hearing instead.

Footnote

1 SCFR R. 10-6(3)(e); SCCR R. 8-1(4)(e).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.