This article was originally published in The Lawyer's Daily
Every Monday for the past five months or so, British Columbia Supreme Court Chief Justice Christopher Hinkson has asked some lawyers and litigants scheduled to be heard that week to come to his courtroom so he can inform them in person that regrettably, due to judicial vacancies at the busy trial court, their trials and chambers applications must be postponed — with all of the wasted time, money and energy that will entail.
“I think he figured it was unfair for the court services staff downstairs in the registry to have to explain it to people, and he’s taken that on himself, but there is just this long line of people in front of him on Monday,” Bill Veenstra, president of the Canadian Bar Association’s British Columbia (CBA-BC) branch told The Lawyer’s Daily. “Over the last few months it’s become the norm and it shouldn’t be.”
Veenstra of Jenkins Marzban Logan LLP in Vancouver recently wrote federal Justice Minister and Vancouver MP Jody Wilson-Raybould to urge her to expedite appointments to the B.C. Supreme Court’s vacancies that date back months (some to August and even earlier).
He pointed out that British Columbia began 2017 with nine vacancies, and started 2018 with 11 vacancies — a sign Ottawa is not keeping up with the rate of judicial retirements and supernumerary elections, and is still playing catchup as a result appointing only five judges in 2016 (however more than a dozen were appointed in 2017 to the court which is supposed to have 90 puisne judges).
“So the problem was we fell a long ways behind” following the October 2015 federal election, Veenstra said. “We had a number of retirements and supernumerary elections over the past couple of years and even though there were a number of appointments last year, they haven’t caught up. And in fact, they are slightly behind at the end of 2017 than they were at the end of 2016.”
In 2017 Wilson-Raybould made more than a dozen appointments to the B.C. Supreme Court, and on Jan. 19, 2018, she announced another — Jasvinder (Bill) Basran, a senior counsel at Justice Canada who replaced a judge who was promoted to the B.C. Court of Appeal Sept. 14, 2017.
“I am delighted to see this appointment, and hope that it will soon be followed by others,” Veenstra said.
Chief Justice Hinkson, who noted his court’s oldest continuing vacancy goes back to an April 4, 2016, opening in Chilliwack, B.C., told The Lawyer’s Daily via e-mail “the latest appointment will have a minimal effect on the needs of the litigants before the Supreme Court. It reduces the number of vacancies from 11 to 10, which is still over 10 per cent of the full-time complement of the court.”
The chief justice also pointed out the Supreme Court has had no associate chief justice since the start of 2018, despite the federal government having had notice of the previous incumbent’s Jan. 1 resignation since last September.
“Generally speaking, judicial resignations and retirements are communicated by judges in this province to the minister of justice, the commissioner for Federal Judicial Affairs and the Attorney General for British Columbia between three and six months before they will become effective,” Chief Justice Hinkson explained.
“The result of these vacancies and those that preceded them, some for as much as one year, has been the imposition of greater pressures and demands upon the members of our court, and the inability to afford a hearing judge for an increasing number of litigants. Our staff have worked hard to attempt to provide access to justice for those seeking hearings in our court for an extended period of time, but due to our numerous vacancies, have been forced to reduce the number of trials and other hearing scheduled in our court, thus exacerbating the challenge to provide litigants access to justice in our province.”
In Chief Justice Hinkson’s opinion, “the present system for vetting judicial applications should suffice to fill our vacancies shortly after they become effective — but only if the minister of justice acts upon the advice of the Judicial Advisory Committee in a timely manner.”
Wilson-Raybould’s communications director, David Taylor, told The Lawyer’s Daily via e-mail “the system is working,” in the government’s view. Taylor pointed out that the justice minister implemented a more transparent and accountable judicial appointment process last year, that has produced high quality and more diverse appointments — half of whom are women. “There were much-needed structural reforms in 2016, which were lauded by all stakeholders, including the Canadian Judicial Council,” he wrote. “That year there were relatively fewer appointments. In 2017, we had a record year to catch up. We also added new judicial complement positions, which added to the number of vacancies. Beginning with the appointments announced [Jan. 19] another record year is underway.”
Taylor said the minister made 100 appointments and elevations across Canada last year — a record for a single year in the past two decades.
In the CBA-B.C.’s view, “I would say that the system is working in one sense — in that it is, from time to time, resulting in judicial appointments that are of high quality and are very welcomed by the bar,” Veenstra said. “However, looked at through a different lens — is the system working in that it delivers timely access to justice to British Columbians who have matters before the court? It is difficult to say that it is. The fact that we are further behind in judicial complement at the start of 2018 than we were at the start of 2017, and resultant problems with trials and long hearings being bumped and long delays in having matters ultimately resolved, means that the issue of timely access to justice in the B.C. Supreme Court equipped with an adequate number of justices still needs to be addressed. “
Veenstra said the provincial bar hopes to see “continuing high quality appointments in 2018 to bring the court up to its full complement.”
There are positive recent signs that the federal government is cutting down significantly the time it takes to fill some vacancies across the country that were created by retirements and supernumerary elections of which it received timely notice. In 2017 Ottawa pushed for much of the year to fill vacancies that had languished for months — and even longer. However, the appointments in late 2017 and January 2018 revealed a much shorter lag.
While the latest B.C. appointment on Jan. 19 filled a four-month-old vacancy, a same-day appointment to the Ontario Superior Court replaced a judge who only went supernumerary Dec. 1, 2017. On the same day, a Quebec Superior Court judge was appointed to fill a Dec. 12 vacancy. As well, on Dec. 19 an Alberta Queen’s Bench vacancy that opened Oct. 12 was filled, as were two Ontario vacancies that arose only in November and December, and a Quebec Superior Court spot that opened up Dec. 1.
Notably on Nov. 29, Wilson-Raybould announced a Federal Court appointment in advance — appointing Paul Favel effective Dec. 11 to fill a Dec. 11 vacancy created by a judge electing supernumerary status. The problem of appointment delays has not been confined to B.C. On Jan. 11, CBA-national president Kerry Simmons wrote Wilson-Raybould urging the minister to ramp up appointments to the 65 vacancies across Canada that existed at the beginning of 2018 (an unusually high number).
“Maintaining full judicial complements is critically important to ensuring public access to, and confidence in, our justice system,” Simmons stressed.
Taylor said by e-mail both the judicial advisory committees and the justice minister are doing their jobs. He said 42 of the current vacancies are less than six months’ old. “Positions are being filled at an unprecedented pace and will continue to be,” he said. “They will get filled with the best possible jurists and the number of vacancies will fall.”