Is Rule 37 law in this Province?

The 1993 revision to our Rule 37 is of such an order that we have had no gap since then. It is a complete code and there is no room for any judicial discretion save that given by it. Calderbank v. Calderbank should not be considered law in this Province today. As to the construction of Rule 37, see Jamieson v. Duteil (2001), 92 B.C.L.R. (3d) 208 (C.A.), 2001 BCCA 516.

In Brown v. Lowe, consideration was given to the pertinence of subrule (31) of Rule 37, which reads as follows: (31) Other than in an action for defamation, if several defendants are sued jointly, a plaintiff may not make an offer to settle except jointly to all defendants, and a defendant may not make an offer to settle except jointly with all other defendants. In his dissenting reasons, the Chief Justice concluded that this subrule precluded one of several defendants from making a Rule 37 offer to settle independent of the other defendants and in such circumstances a role remained for a Calderbank letter: see paragraphs 103 to 110. However, Madam Justice Southin, writing for the majority, concluded that subrule (31) of Rule 37 had no application because the defendants had not been sued "jointly" within the meaning of that subrule, so there was nothing to prevent the party in question from making an offer to settle as prescribed by Rule 37: see paragraphs 155 to 158.