Can the Supreme Court of British Columbia Lawfully Conduct Online Trials?
At present, no such power is expressly set out in the Rules of Court. Nonetheless, my conclusion is that it can, under its inherent jurisdiction over its procedure, do so. However, it would be better if this power was made explicit under the Rules of Court.
Supreme Court Civil Rule 23-5 (3) to (5) expressly allows for hearings of applications to the Court by “telephone, video conference or other communication medium” in cases of urgency or where the Court considers it appropriate. These provisions which were infrequently used up until now appear to be at least a procedural answer for how to bring applications to the Court during the pandemic. In urgent and essential matters this jurisdiction is being exercised by the Court. It is to be expected that the scope of applications that may be heard will be expanded.
However, the Rules of Court do not provide similar legal authority to the Court to conduct full virtual trials. Section 73 of the Evidence Act, R.S.B.C. 1996, c. 124 allows a witness in Court proceedings to testify by closed circuit television or other technology “if it allows the court, the parties and the witnesses to engage in simultaneous visual and oral communication.” This section has been in force since July 1, 2003 and it has been used many times. It allows witnesses to testify by video linkage where they are remotely located, where their costs of attending the trial are prohibitive or who for health or other reasons cannot easily attend the trial.
Section 73 does not give a party an unqualified right to call a witness in this fashion. The parties can agree that a witness may testify by video linkup. However in the absence of agreement, opposing calling the evidence by video linkup satisfies the court that receiving the testimony in that manner would be contrary to the principles of fundamental justice. This puts the onus on the party who would deny use of the technology, as in Nybo v Kralj 2010 BCSC 674. The court is given a broad range of criteria to consider. They include: the location and personal circumstances of the witness, the costs that would be incurred if the witness had to be physically present, the nature of the evidence that the witness is expected to give and any other circumstance the court considers appropriate. The case law under section 73 to date has not supported full virtual trials.
The BC Supreme Court has an “inherent jurisdiction” over its processes which is said to be inherited from the Courts of the United Kingdom when English law was imported into B.C. in colonial times. This inherent jurisdiction is recognized in the case law as the basis for many aspects of procedure under the Rules.
Such inherent jurisdiction has not traditionally been permissive of electronic innovations in the administration of justice. In Ribeiro v Vancouver (City) 2004 BCCA 482, the Court of Appeal considered an appeal of a judgment which allowed video recording of an examination for discovery. The effect of the order obtained in the Supreme Court was to preserve the role of the written transcript of the proceedings as the official record of the discovery, but to allow the trial judge to use excerpts of the video as he or she might allow at the trial. Madam Justice Southin, for the Court of Appeal gave the reasons of that court in overturning the judgment from the Supreme Court.
3. There is no provision in the Rules of the Supreme Court of British Columbia for the order which was pronounced in this case. Since time immemorial, that is to say since examinations for discovery were first permitted in this province which I think now is about 80 or 90 years ago, they have never been filmed by any method at all. If they are to be, there must be a change in the Rules of the Court to permit or authorize such a practice, or, in my view, there must be at least a practice direction emanating from the whole of the Supreme Court of British Columbia on the point. In making the latter remark, I am not saying that a practice direction would necessarily be valid in such circumstances. Matters of practice and procedure in the court below must be governed by its Rules, and those Rules must be duly enacted under the Court Rules of Practice Act. It is certainly open to the Lieutenant Governor in Council to permit what Mr. Potts says is a very good idea but she has not done so. It is not appropriate for a single judge of the court below to engage in matters of practice and procedure in what I call judicial individualism. The course of the court below is the law of the court and the course has never been to engage in such a practice.
4 For that reason, and without making any comment at all on whether Mr. Potts’ theories about the importance of being able to have this technological advance used in the courts, without any comment on that at all, I would allow this appeal and set the order below aside. In doing so, I wish to make it clear that I consider both the judgment of Mr. Justice Powers and the judgment which he followed to have been wrongly decided. They should not be followed in the court below and are overruled.
Ribeiro was followed by the Court of Appeal in Endean v Canadian Red Cross Society  B.C.J. No. 254,. In Endean the Court of Appeal was asked to consider an appeal from a judgment which had authorized a BC Supreme Court judge to sit with a judge in Ontario and a judge in Québec to make concurrent judgments on class action settlements which had engaged parties in the three provinces. In support of the order made it was argued the inherent jurisdiction of the Court upheld the power to make the requisite order. The Court of Appeal did not agree but allowed that a judge could so proceed if linked to a hearing that took place in a BC courtroom. The Court of Appeal found that it was neither desirable nor necessary to allow a BC judge to conduct a hearing outside British Columbia. The test for extensions of inherent jurisdiction seems to include these elements.
The Endean decision was appealed further to the Supreme Court of Canada. In the main reasons on behalf of the Supreme Court of Canada in Endean v British Columbia  2 S.C.R. 162, the authority of the judges to act outside the Province was found to flow both from their statutory mandate under class proceedings legislation, and also the inherent jurisdiction of the Court. Without expressly considering Ribeiro, the Supreme Court of Canada took a more expansive view of the inherent jurisdiction of the Supreme Court of British Columbia, than did the Court of Appeal.
Mr. Justice Cromwell gave the reasons of the Court (speaking for six of the judges). He said:
60 I mentioned earlier that the superior courts’ inherent jurisdiction is a residual source of power which a superior court may draw on in order to ensure due process, prevent vexation and to do justice according to law between the parties. One aspect of these inherent powers is the power to regulate the court’s process and proceedings: Jacob, at pp. 25 and 32-40. As Master Jacob put it, “it is difficult to set the limits upon the powers of the court in the exercise of its inherent jurisdiction to control and regulate its process, for these limits are coincident with the needs of the court to fulfil its judicial functions in the administration of justice”: p. 33. In short, inherent jurisdiction, among other things, empowers a superior court to regulate its proceedings in a way that secures convenience, expeditiousness and efficiency in the administration of justice.
There is no provision in the Rules of Court comparable to Rule 23-5 which would expressly allow trials to be heard virtually, so presently the inherent jurisdiction of the Court is the sole authority for such trials.
At any given time there are urgent and important matters pending before the court which call out for trials without delay. For those cases, deferment causes real harm to both plaintiffs and defendants. In some cases the issues in a case may be straightforward enough that little practical prejudice would result from a virtual hearing. In other cases the parties may agree that an early virtual proceeding is preferable to a proceeding which can only take place at some distant time. (Any such consideration by the Court under its inherent jurisdiction should also be qualified by the considerations set out in section 73 of the Evidence Act.)
The present need for access to justice is compelling. The Court’s inherent jurisdiction is sufficient to allow virtual trials and the Court should exercise that jurisdiction to do justice as it needs to do. However, for the reasons given by the Court of Appeal in Ribeiro, a new Rule of Court which codifies the circumstances governing virtual trials is highly desirable.