Bumped: How Judicial Vacancies Impact Access to Justice


Bumped: How Judicial Vacancies Impact Access to Justice

Imagine making an appointment for surgery, spending time and resources preparing, and showing up only to find that your appointment has been postponed weeks or even months due to a lack of surgeons. Most would consider the situation intolerable.

Yet, something similar happens in our courts every day. BC Supreme Court hearings are routinely bumped because there aren’t enough judges. From an access to justice perspective, the situation is intolerable. As part of the solution, the government should fill the existing judicial vacancies urgently.

Bumped Hearings

According to the BC Supreme Court’s 2022 Annual Report, in 2022, more than 13% of booked trials in British Columbia were bumped (i.e., not heard on the appointed date due to lack of capacity). The situation was especially bleak in Vancouver, where more than 25% of booked trials were bumped. The problem is not limited to trials: more than 10% of long chambers applications in the province were bumped. And 2022 was no outlier: in 2021, more than 18% of trials were bumped across the province.

These statistics are harrowing.

Empty Benches

At least part of the cause, and perhaps even the main factor, is the federal government’s ongoing failure to fill judicial vacancies. In recent years, the BC Supreme Court has often been down more than 10% of its full judicial complement — loosely approximating the percentage of long chambers applications bumped in 2022. The situation in Canada has become so severe that the Federal Court recently found in Hameed v. Canada (Prime Minister), 2024 FC 242 that there is a “vacancy crisis” in Canada’s judiciary and issued a declaration that appointments should be made within a “reasonable time.”

The lack of appointments cannot be explained by a lack of qualified candidates. According to the Office of the Commissioner for Federal Judicial Affairs Canada, between October 2021 and October 2022, the federal government received 318 applications for appointment to superior courts. Judicial Advisory Committees in Canada “highly recommended” 45 of these candidates, and “recommended” an additional 53. Of course, these figures exclude outstanding applications from prior years. Yet, the federal government made only 58 appointments.

If left unaddressed, the problem may even worsen in our province. A number of BC Court of Appeal judges are expected to retire over the coming year. Since BC Court of Appeal vacancies are often filled by elevating BC Supreme Court judges, the gap on the trial court may grow even wider. This would only increase the strain on trial judges who are already carrying a heavy caseload.

The Impact on Access to Justice

These judicial vacancies are hindering access to justice. Simply put, if the BC Supreme Court had more judges, it could hear more cases. But because the court remains well below its full complement, cases are falling through the cracks. And although the court takes steps to prioritize urgent and important cases such as child protection matters, cases of all kinds are affected.

This impacts public confidence in the justice system. People affected by bumping may reasonably perceive the justice system as dysfunctional — unable to deal effectively with the caseload in the system. Some may even avoid court altogether as a result.

To be sure, judicial vacancies are not the sole cause of bumped hearings. Even if the courts had a full judicial complement, some hearings would be bumped nonetheless due to scheduling issues and other resource limitations. But judicial vacancies remain a substantial part of the problem.

Call for Action

As CBABC recommended in its August 3, 2023 letter to the Minister of Justice and Attorney General of Canada, the federal government should fill the existing judicial vacancies urgently. As members of the profession, we should speak out and urge action. We cannot stand by as cases are bumped and our clients suffer the consequences.