Hundreds of family, civil suits backlogged

  • January 17, 2021

Analysis: Court data indicates the pandemic last year displaced 1,112 trials — 785 civil, 160 criminal and 167 family trials.

By Ian Mulgrew for The Vancouver Sun

The B.C. Supreme Court continues to be hobbled by the pandemic with more than 440 delayed civil and family trials remaining in limbo.

The disputes may require further action before continuing, but the backlog underscores the challenges of COVID-19 and how access to justice in the province has been reeling.

B.C. Supreme Court Chief Justice Christopher Hinkson was not able to estimate when the still-unscheduled 443 cases will be cleared.

He added Tuesday that he has not seen the kind of demand for court time that he experienced pre-pandemic, and he suspects that the backlog will continue to increase until he does.

Hinkson said he is not happy about the number of hearings that were adjourned and not yet rescheduled, but he has to accept a situation that he cannot change.

Over the past 10 months, the province’s top trial court and the B.C. Court of Appeal have maintained urgent and essential operations.

Both courts resumed operations within a few months of the first public health orders, delivering some services remotely, and all matters regularly heard by the Supreme Court are now proceeding in person, virtually or by telephone.

But court data indicates the pandemic last year displaced 1,112 trials — 785 civil, 160 criminal and 167 family trials.

Since then, 80 delayed trials have been heard, 456 are scheduled or being heard, and 133 are no longer proceeding.

Hinkson has been lobbying for more judges to be appointed, saying they are needed to deal with the volume of cases.

The provincial bar agreed.

“When parties arrive for a trial date only to have their trial adjourned because there is no judge available to hear it, it will often take 18 months or more to re-schedule,” said Kevin Gourlay, president of the Trial Lawyers Association of B.C.

“The cost to the parties can be significant, and having their rights in limbo can be devastating. Government needs to ensure that B.C.’s courts have a full complement of judges as that will ultimately bring down costs in the system.”

Criminal jury trials resumed on Sept. 8, and 59 were scheduled between then and the end of the year — although many of those were not from the pandemic backlog but had been booked for those dates.

Eleven trials were completed, another is underway, and two ended in mistrial — one due to a hung jury.

Of the criminal jury trials, two were a week or shorter in length, four lasted two weeks, three took three weeks, one took four weeks, one five and one was six.

Still, 47 criminal jury trials did not proceed — seven because of a guilty plea, two defendants re-elected to have a trial by judge alone, five re-elected to the Provincial Court to plead guilty, seven did not proceed because the Crown stayed proceedings, one was abated because the accused died, one was waived to another province, and 24 have future trial dates.

There continue to be some adjournments and delays linked to the pandemic, usually because a party or counsel has to self-isolate due to COVID-19 symptoms or exposure.

Civil jury trials were suspended Sept. 28 and cases are being heard only by judge alone, a situation the lawyers do not think is healthy.

“The right to a jury trial — where the community has a voice in deciding what behaviour is acceptable in society and what the appropriate response is when those standards are breached — is a hallmark of our system,” underscored Gourlay, of Vancouver’s Murphy Battista LLP.

“We hope that restrictions on the right to trial by jury are temporary and lasting only as long as the public health situation requires it.”

As a result of physical distancing measures, fewer matters remain being heard in person than normal, with priority for in-person hearings given to matters that cannot be held remotely, such as trials.

Where courthouses were deemed unsafe, cases are either moved to other courts or, in some instances, held in off-site locations.

For example, jury trials were held at the Chilliwack Cultural Centre and at the Capitol Theatre in Nelson in September.

In March, judges and masters began to hear matters remotely, mostly by telephone.

Microsoft Teams has also been used as a videoconferencing platform since the middle of 2020 to hear some trials or portions of trials where appropriate, including oral arguments, voir dires, and testimony from expert witnesses.

The Vancouver registry has piloted masters’ chambers hearings using Microsoft Teams.

This month, the court plans to expand the use of Teams to other locations where masters’ chambers are proceeding by telephone.

The technology upgrades have largely occurred and are of considerable assistance in allowing the court to proceed with remote hearings, Hinkson said.

But the electronic-document management issue was two-pronged, he explained: On the one hand, the court has largely solved access to filed documents for judges, but the use of documents with witnesses is still being worked on.

Judges are conducting most chambers hearings by videoconference or telephone, and without all parties present in the courtroom, unfiled documents that would normally be shared in court during a proceeding now must be provided ahead of time so they can be transmitted.

“The pandemic has highlighted the fact that the technology in B.C.’s courtrooms was already falling far behind the times,” Gourlay said.

The court of appeal has no backlog and is currently hearing all appeals by videoconference using Zoom.

Starting in March, the court rapidly re-tooled its processes to support virtual hearings and expand the civil e-filing system.

Major overhauls to its internal systems as well as swift decisions concerning the transition to videoconferencing and associated infrastructural and training needs, allowed the court to resume operations within six weeks on May 4.

Appeals adjourned last spring were quickly rescheduled and a perfected appeal now can be heard within a normal timeframe.

From May 4 to July 7, the Court heard all of its appeals by videoconference only.

After July 7, COVID-19 numbers had dropped to a point where the high bench provided parties with the choice between virtual and in-person hearings.

Between July and October, the court heard 91 appeals, 45 by Zoom and 46 in person.

As the second wave numbers increased, the court returned to hearings by videoconference only on Nov. 9.