Can a plaintiff proceed by petition under Rule 10(1) of the BC Rules of Civil Procedure to determine whether there were implied terms as alleged?
British Columbia, Canada
The following excerpt is from Collette v. Cartier Partners Securities Inc., 2005 BCSC 501 (CanLII):
The question of construing the contract to determine whether there were implied terms as alleged is important but it is not “the sole or principal question at issue” such as would permit the plaintiff to proceed by petition under Rule 10(1). To fit within the exclusion set out in Rule 39(25) on the basis that the trial relates to a matter referred to in Rule 10(1), the defendant must demonstrate that “in reality, [the] main or central issue to be tried” squarely falls within one of the subject matters enumerated in Rule 39(25). See Leffler v. Flanagan, [1993] B.C.J. No. 1568 (S.C.) at para. 4.
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