By Ian Mulgrew for The Vancouver Sun
A one-year moratorium and possible elimination of civil juries and mandatory arbitration on motor vehicle litigation are being considered by Attorney General David Eby to ease the burgeoning backlog in B.C. Supreme Court.
Confronting 90,000-plus outstanding MVA cases, Eby on June 24 asked legal system stakeholders for urgent advice on two proposals:
“The temporary, one-year suspension of civil jury trials with a view to broader discussions about civil jury trial reform, including the prospect of eliminating civil jury trials completely; and ‘binding arbitrations’ in motor vehicle actions.”
The curtailment of litigant’s rights to cure a symptom of the pandemic was given “qualified support” by the Trial Lawyers’ Association of B.C., which coincidentally urged Eby to abandon his transformation of ICBC and the province’s vehicle insurance scheme to a system of no-fault.
John Rice, president of the TLABC, said the group wanted to work with the NDP minister to address the debilitating effects on the legal system of COVID-19 but his 1,500 members had qualms.
In particular, they believe ICBC’s recent litigation strategy represents a concerted effort to break the system to justify the reforms now before the legislature.
“In the case of ICBC-defended MVA claims, and over the last few months, it is the experience of plaintiffs that ICBC is frequently insisting on jury trials and looking to adjourn trials over proceeding by judge alone during the pandemic,” Rice said in a seven-page reply to Eby’s request for input.
“By one example only, I attach a June 2, 2020 interlocutory decision from Supreme Court of BC Master Terry Vos where this very tactic was pursued by ICBC and rejected by the court in ordering that the matter proceed by a judge alone trial.”
Given the Crown corporation is the province’s biggest litigant, Rice insisted such efforts to delay trials represented an abuse of process and should be stopped.
Eby, the minister responsible, should instruct ICBC to stop the practice of “ ‘meatchart’ offers, and get back to good faith litigation,” Rice added.
“In this vein, our support for the moratorium on jury trials is predicated on the expectation that ICBC will not apply to defer trials until the moratorium ends.”
The trial lawyers’ association also hedged support for “voluntary, plaintiff-only choice for arbitrating MVA cases provided that certain criteria are met.”
“TLABC agrees that if properly structured, arbitrations could allow a much broader resource base for addressing the MVA case backlog, but the devil of course is in the details. Most important, which you recognize, choice of arbitration must lie with the Plaintiff … The arbitration be administered through the British Columbia Commercial Arbitration Centre (BCICAC), which has the necessary infrastructure and resources and arbitrator roster.
“We would need to find common ground on the rules of procedure and costs and disbursements which we presume would follow the event … The costs of the arbitration itself, the associated administration costs and the arbitrator’s fees, would all have to be borne by ICBC and/or the Province, just like all administrative, facility and staffing costs are assumed by the Province in the BCSC. If there is any risk of a Plaintiff incurring any such expenses, few if any will participate in an arbitration process.”
Rice emphasized the court had to agree with the move — which Eby agreed would be the next step.
Some Canadian jurisdictions already restrict civil jury trials to only matters such as defamation, false imprisonment and malicious prosecution. Quebec — with a distinct system founded on Roman civil law traditions rather than English common law — does not use them.
Still, the trial lawyers’ association maintained: “Recourse to jury trials in our system of civil justice is a critical civil right. While there is room to discuss rule changes, for example, which allow for the extension of Rule 15 fast-track, judge-alone trials to longer hearings with increased quantum of damages, TLABC regards jury trials as a civil liberty which you as the Attorney General of British Columbia should safeguard.”
It could support a moratorium only.
Without civil juries, individuals are denied the opportunity to have their case heard by their peers and, some suggest, their absence further entrenches the divide between the marginalized and judiciary.
As a result of the COVID-19 pandemic, however, assembling potential jurors for selection (eight are required, only six of whom must agree on a verdict), the need for adequate social distancing within the courtroom and the deliberation room, all represent health risks that have led to the suspension of their use.
And, given the financial toll and job losses from the coronavirus, a civil jury subpoena and the low pay for duty could well compound a juror’s hardship, the TLAC acknowledged.
“Weighing and measuring the comparative prejudices between the public health safety risk caused by civil jury duty during the current state of the COVID-19 pandemic, and the right of a litigant’s choice to mode of trial, TLABC endorses the one-time, temporary suspension of civil jury trials in British Columbia,” Rice explained.
“Hopefully within a year’s time the public safety risks are diminished.”
Ontario’s Progressive Conservative government suggested a similar change to the use of civil juries last month and the Federation of Ontario Law Associations also raised concerns over their potential elimination.
ICBC did not respond to a request to comment by deadline Tuesday and Eby said he was busy in the Legislature but would respond Wednesday.