Eby struggling to maintain access to justice in B.C.

  • July 09, 2020

By Ian Mulgrew for The Vancouver Sun

COVID-19 has ravaged the country’s legal system and precipitated a long backlog of cases that has Attorney General David Eby and his counterparts in other provinces scrambling.

The NDP minister has proposed a moratorium on civil jury trials, perhaps even their elimination. He has recommended mandatory arbitration for myriad ICBC claims and is puzzling over accommodating physically distanced juries in criminal trials.

“In order to empanel a jury, you have to call about 200 people together and there’s a whole process where social distancing and gatherings of more than 50 people, and the rules around that, are incredibly difficult to follow for the jury empaneling process,” he explained on Wednesday.

“At the best of times, a civil jury trial takes … the time of three non-jury trials covering similar turf. So we have public health orders that make it incredibly difficult to empanel a jury in the first place, it’s very difficult for a jury to do its work at a social distance, it takes significantly longer than a non-jury trial in a time when we know we have a backlog, and the courts are reluctant to grant them anyway.”

What a conundrum.

Pre-COVID-19, litigants were already facing lengthy delays for trial dates. Post-COVID, with a significant number of trials cancelled and backlogged matters now competing for court time with previously scheduled trials, delays are even longer.

Still, a discussion in Ontario last month about the elimination of civil jury trials as a potential solution inspired Eby. He wrote to the Trial Lawyers Association of B.C., the Canadian Bar Association–B.C. Branch and the Law Society of B.C. seeking input.

Judges are also having a conversation about the issue, Eby added. By the end of last month in the B.C. Supreme Court, more than 2,400 civil matters, 1,000 family law matters and 600 criminal cases had been adjourned.

“What I’m proposing is giving people an option — if they want to, they could opt into arbitration and that would be binding on ICBC,” Eby said.

“I understand from the B.C. arbitration centre that they have the capacity to take on these kinds of matters. Hopefully, individuals would be able to have a hearing significantly sooner, have a resolution significantly sooner and certainty for both them and for ICBC much faster.”

Former B.C. attorney general Barry Penner, now managing director of the B.C. International Commercial Arbitration Centre (soon to be called the Vancouver International Arbitration Centre), has been urging Eby since May to use the organization founded in 1986 by the federal and provincial governments.

“We do certain ICBC cases now through their underinsured protection plan,” he said. “We believe we have the capacity, experience and arbitrators on our roster with deep expertise in personal injury law. We’re neutral and we’re fair.”

The non-profit arbitration centre’s independent operations were barely affected by the novel coronavirus and it was part of the solution to a court backlog in the late 1990s, Penner said.

“If people want to stay on the track they’re on, with their court date and have their case go that way, there’s no problem,” Eby said.

The first group to reply to his suggestions was the Trial Lawyers.

They were concerned about the cost of the arbitration and the fees — wanting assurances they would be borne by ICBC or the province, just like administrative, facility and staffing costs in court.

“I would describe it as suspicious support in principle,” Eby quipped about the group that has aggressively opposed his plan to transform the provincial insurance scheme into a no-fault system.

“Tepid support. Tepid support, which is good, it’s a place to start from. They had some suggestions about ways these proposals could be modified to encourage greater support from them.”

Eby wasn’t sure how the other affected people in the legal system would respond.

“I understand from informal conversations there may be some appetite among lawyers to eliminate civil jury trials. They don’t find them to be helpful. And so I’m willing to have that conversation, too. But the urgent focus for me is the short term with civil jury trials and in the short term giving people with ICBC claims expedited access to a decision-maker.”

Criminal jury trials, however, cannot be put on hold, Eby said: There is no constitutional right to a civil jury trial but “without a doubt, the Criminal Code provides the unambiguous right to a jury trial for people accused of crimes.”

“It’s obviously incredibly complicated, time-consuming and space-consuming when you need to pull a significant number of people together to empanel a criminal trial jury. You need to have a huge venue, you have to keep the numbers to under 50 people, with those numbers of people have to spread out two metres apart and even once you have chosen the jury and have them in a room deliberating — you have to figure out a way for them to deliberate. It’s very challenging.”

In the U.K., there have been experiments with video-linked deliberation.

“Every common law jurisdiction with jury trials is grappling with this,” Eby said. “There’s no easy answer, but people do have the right to these trials and we have to solve it.

“We’re really hopeful that the federal government will provide some guidelines to courts through a criminal law amendment around Jordan timelines (the deadline for trials in provincial and superior courts) and how the pandemic period should be treated.”