Why We Won’t Go Back to Paper-Based Chambers Proceedings

Why We Won’t Go Back to Paper-Based Chambers Proceedings

The savings in time and money from virtual electronic or telephone hearings are too compelling to ignore.  The COVID-19 crisis is going to make us save a lot of money by forcing us to conduct virtual Chambers applications!

Mostly the savings will come from not having to physically show up at the courthouse and to wait for your turn to be heard.  This allows the lawyers to be productively engaged on other matters back at their offices, or for that matter anywhere there is a phone and good internet connection.  

To consider the extent of the savings, I have used an hourly rate for the lawyer of $400 per hour and a typical opposed half hour civil Chambers application. compelling  Some lawyers charge less, and some more, but whatever the legal rates and the length of the hearing, the financial savings from a virtual hearing are very substantial. 

With a remote electronic hearing, lawyers do not have to pack up and travel to the courthouse for the hearing. For those close by the courthouse, this is perhaps only a twenty minute commute. For travel to the court from across the city this can be as much as an hour each way. Such travel charges may be explicitly covered in retainer agreements to be paid in full by the client. More commonly they are not fully charged to the client or if charged, on a review of a lawyer’s accounts, the time charges are reduced by half. E.g. Sokolowski v Lorne N. MacLean Law Corp. [2016] B.C.J. No. 1179 at paragraph 27-29. Thus either the client or the firm, or both absorb the cost of actually getting to the courthouse.  For the sake of illustration, assume a half hour each way for packing up and travelling to the Court. At $400 per hour this comes to a charge to the client of $200.

Then a lawyer is supposed to check in with the Clerk of the Court at 9.45 am to confirm that the matter is proceeding and the time estimate for the hearing. ($80) Then after 10 am, lawyers must wait their turn to be heard. “First reading matters”, i.e. matters that are unopposed go first, and thus have shorter wait times. (In the case of these matters it needs to be examined whether these matters should require an appearance in court at all.) Then the contested matters are heard in order of their time estimates.  

A typical half hour hearing may require an hour’s wait to be heard. It could be less or more. If the matter is not completed before the 15 minute morning break at or about 11.15 that time is added to the wait. Thus, after checking in, a lawyer can wait an hour and quarter for a typical half hour application. Such wait time is typically billed to the client at the hourly rate of the lawyer. At $400 per hour, this comes to $500.

The additional costs in this example come to about $780 per party, plus taxes at 12% which brings the cost to about $875 per party.

In addition the costs of the physical preparation of paper briefs may be avoided if the material is presented to the court electronically.  For example a typical contested Chambers application with two parties might require ten tabs in a chambers brief and ten case authorities totalling say 100 pages. Three copies of the Chambers materials and authorities are needed. The typical charges for preparing the photocopies of this material are $.25 per page. This works out to about $75 for the photocopying.  Add the costs of 3 binders ($30) and tabs ($15) and paralegal time (say an hour at $100) and this comes to $220. Again taxes at 12% apply to bring the savings to about $250

Even if one assumes that these latter savings are divided between the two parties, on a fairly typical Chambers application the total savings from a remote hearing can easily be $1000 per party or more.

These estimates are conservative. They assume no prolonged delay from being heard on a crowded chambers list. If the delay due to the court calendar extends into the afternoon, the cost of time wasted can be significantly higher. 

The electronic process for such applications may also free counsel from having to attend at their office on court days. With paper briefs, lawyers must typically go there to access photocopies, binders, tabs, paper punches, labels and the support staff to produce a final paper product. With an electronic process those accoutrements of the paper world can be jettisoned.

So, while no one would wish COVID-19 upon us, as a side effect and benefit, we may be forced to conduct hearings virtually and save money too.…

Can the Supreme Court of British Columbia Lawfully Conduct Online Trials?

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 [2014] 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 [2016] 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.…

What we can learn from Texas Family Court to Conduct Zoom Proceedings

What we can learn from Texas Family Court to Conduct Zoom Proceedings

A lot. Here are some links to what the courts in Texas are doing to meet the physical shutdown of the courts due to the Corona virus.

They are proceeding with some full hearings with witnesses using Zoom sessions hosted by the Court, and they are maintaining the open public hearing nature of the proceedings by streaming to YouTube.

Here is a link to TV coverage of what they are doing:


This is a resource page on how to make Zoom Court proceedings work which is very good:


Here is a link to a recording of two judges and a senior family law lawyer about what they are doing to conduct urgent matters. I would suggest getting a coffee and watching it.

Stay healthy.

We are all in this together.

Bill MacLeod…

Analyzing Issues in Disputes


Analyzing Issues in Disputes

I find it useful to break down the issues in disputes into:

  • factual and evidentiary issues – what happened and how can that be shown
  • legal issues – what does the law say about situations like this
  • financial issues – what are the costs and benefits of various options for dealing with the matters in dispute
  • tactical issues – issues of timing, the sequence of dealing with issues and procedural choices for resolving the dispute
  • emotional issues – how the parties feel about the dispute

Lawyers in dealing with disputes have traditionally focused on legal issues and they have focused on the courts’ litigation procedures. But now, in a time when almost all cases outside court lawyers must also deal with this larger range of issues. Of these different kinds of issues, the emotional issues are often the most important. Lawyers see many cases when the facts, the law, finances, and their tactical considerations all very much against them, but they will not settle. Anger or some other compelling emotion governs what they will do, and that emotion must be given at least as much attention as the other issues if settlement is to be achieved.

Lawyers and others often make the mistake of believing that settlement is, or at least should be, governed by the same rules of evidence, relevance and logic as the legal issues that are the substance of legal analysis and of the court process for adjudicating disputes. But these different sorts of issues have their own dynamics and considerations, especially in the context of negotiations leading to settlement. Lawyers need to be alive to these differences and to expand the range of approaches that they bring to bring to the table. For there is no doubt that the reality is that parties in dispute are affected by all of these sorts of issues and the skill of counsel is often in balancing the particular balance of trade-offs among these factors in coming to a settlement which best meets their clients’ interests.

Defining Our Terms: Why We Call Ourselves “Legal Counsel”


Defining Our Terms: Why We Call Ourselves “Legal Counsel”

“Trial lawyer”
Most civil disputes in British Columbia do not go to a trial. The fraction of law suits that are resolved by a judgment after trial have in recent years been less than 3%. There is room for debate whether the small portion of claims that are formally tried is a good thing or a bad thing. But there is no room for debate that the overwhelming majority of cases that are brought are not tried, but are settled. Any particular lawyer in British Columbia who tried the majority of his or her cases and could thus claim to be a “trial lawyer” would thus be a rare statistical outlier. The term “trial lawyer” then is not accurate for lawyers who conduct civil disputes in British Columbia.

Nor is the term barrister accurate in its historical sense. This is a title which we can properly claim. All lawyers qualified in British Columbia are “barristers and solicitors.” We are so described in the formal record of lawyers qualified to practice law – “the barristers and solicitors roll” which is kept by the Law Society. In England and Wales, which is the historical source of our use of the term barrister, barristers are a separate legal profession from solicitors and their main role is limited to advocacy in court, and not even the necessary gathering and organization of evidence for court, which is the one of the functions of solicitors there. For a fuller discussion, see: http://en.wikipedia.org/wiki/Barrister#Differences

Thus the term “barrister” even in the different sense it has been used in Canada speaks to a function of representation in court.

“Litigation Counsel”
The term “litigation lawyer” is also implicitly tied to representation of clients in law suits.
But many claims are resolved without litigation – by negotiation, mediation or arbitration.

“Legal Counsel”
Lawyers qualified to practice law in British Columbia must be members of the Law Society of British Columbia.

The functions that are restricted to members of the Law Society [from the definition of “practice of law”, section 1 (1)] include:
a) appearing as counsel or advocate,
b) …
c) doing an act or negotiating in any way for the settlement of, or settling, a claim or demand for damages,
d) …
e) giving legal advice;

These core functions of a lawyer engaged to act in a civil dispute are well-captured in the term “legal counsel.” They are an advisory function to the client and a representative function in dealing with other parties. The term does not refer only to the court process.

Apologies and the Law


Apologies and the Law

It is now generally the case in English speaking Canada that an apology cannot be used in evidence in a civil trial. However this is not true in criminal cases. In 2006, British Columbia enacted the Apology Act, S.B.C. 2006, c. 19, the first such legislation in Canada. Other provinces have subsequently enacted similar legislation so that all provinces except Quebec, New Brunswick and Prince Edward Island now provide similar protections. Such legislation had ample precedents in the United States and in Australia. (For a critical history and analysis of such legislation see the thesis of Graham Barr Disingenuous or Novel? An Examination of Apology Legislation in Canada.

Various grounds were argued as reasons to enact such legislation in Canada. Some argued that such legislation was good social policy in encouraging early and less costly resolution of disputes. Some referred to experience in the U.S. particularly in the field of medical malpractice where early apologies to patients coupled with early and fair offers of compensation had dramatically reduced volumes of litigation and the overall cost of compensating for medical errors. Some argued that making an apology for causing harm was simply the “right thing to do” on moral grounds. Some saw the enactment of such legislation as a step in moving towards less adversarial means of dispute resolution.

It is perhaps early days to assess the extent to which the actual experience in Canada with such legislation shows progress in meeting these aims. However, because criminal law in Canada is exclusively under the jurisdiction of the federal government such legislation would have to be enacted by the federal government before such protections would apply to criminal proceedings. In criminal law, apologies made to a victim of a crime or perhaps to a related person are generally considered to be “admissions” which may be used in court to help prove the guilt of the party making the admission. In some situations where the person to whom the apology is made is considered to have some ability to control the laying of a charge, the more stringent legal rules which apply to the proof of confessions must be met.

In a case before the Supreme Court of Canada last year, the charge was one of sexual assault upon a child by a step father. An apology made in an email to the mother of the child was held by the Supreme Court of Canada to be admissible against him. R. v. S.G.T., 2010 SCC 20, [2010] 1 S.C.R. 688. Such decisions affirm the obvious point that in criminal matters, the courts are applying rules in the treatment of apologies from the rules that now govern civil matters in most provinces. Those considering the advisability of making an apology will obviously continue to bear this important distinction in mind.