With the main trial court in the province, the Supreme Court of British Columbia, all but shut down by COVID-19, it is informative to review the official report of the Court on its operations in 2019, which was issued on March 30: the Annual Report of 2019. That report shows that the Court was already struggling to meet the demands upon it before COVID-19.
As a first point, the Court was understaffed. As of December 31, the court was short 9 judges, 10% of its statutory complement. To make matters worse, the number of judges had not been increased since 2010, even though the population of the province had grown by more than 14% and proceedings filed were up 33%. To add to these difficulties, there was an increase in long trials. An historically high number of trials had to be adjourned (“bumped”) for lack of judges.
The report also discloses the slow progress of the court in moving to digital filing. More than half of court filings are still paper (44% are electronic) although electronic filing has been available since 2008.
Most people in judging the operations of the Court focus on the conduct of trials, but in civil matters, only a tiny fraction of proceedings end in a trial: 490 civil trials with more than 69,000 civil proceedings filed. So for almost everyone a trial is not the forum where their dispute is resolved. For almost all parties the Court is the true “alternate dispute resolution”: the fall-back process, while everyone’s first choice is negotiation, mediation or some other less expensive, less stressful, and more timely procedure.
Many lawyers and judges have argued in this vein for years and have pushed for reform. The former Chief Justice of Canada has called again for systemic change. The arguments to make those reforms are not present in the Annual Report, but many of the facts are.
The progress made in 2019 towards such reform is not discussed. The government’s ambitious plans to effect a digital transformation of the Court Court Digital Transformation Strategy 2019-23 are not even mentioned. With the COVID-19 shutdowns, this strategy now needs wholesale revision and acceleration.
In the meantime, the government has developed the Civil Justice Tribunal, which minimizes the role of adjudication and focuses on the needs of litigants for simpler, faster, less expensive dispute resolution.
For car accidents occurring after April 1 2019, claims arising from those accidents of a value up to $50,000 have been assigned to be heard by the Civil Resolution Tribunal. It is perhaps too early to note changes in the court’s workload from this change, but that change is underway. On February 6, 2020, the government announced that they intend to move almost all motor vehicle litigation out of the court and into the Civil Resolution Tribunal, effective May 2021.
There is no discussion of these major changes of jurisdiction (see ICBC plan) in the 2019 Annual Report. The impact however on the workload of the court will be significant, with perhaps 25% of the workload of the court removed.
Even with these changes, which reduce the volume of litigation before the Court, the ability of the court to sufficiently respond without substantial reform remains in question.
The traditions of the Courts in British Columbia bear favourable comparison with courts anywhere. Integrity, respect for the parties, and adherence to legal principles of adjudication which have characterized our courts are qualities of profound importance. The changes that we need to make cannot jeopardize our adherence to those qualities.
What changes will come for the Court in the coming year are truly unclear, but there can be no doubt that the Annual Report for2020 will be very different.
Court reform will be the subject of further posts in the coming months. The present needs for court reform are more urgent and serious than they have been at any prior time.