This week’s blog is written by the Honourable Robert Bauman, Chief Justice of British Columbia, who is a member of The Access Revolution Blog Steering Committee.
In mid-March I made the unprecedented decision to strictly limit the BC Court of Appeal’s operations. Although I see firsthand each day the importance that appeals in our Court have to the parties involved, it was a necessary step to comply with the public health directives issued to prevent the spread of disease during the COVID-19 global pandemic.
The Court is deeply concerned about adding to the uncertainty so many people are already experiencing during the evolving and, for many, extraordinarily harmful effects of the pandemic. We have read in recent weeks how quarantines and social distancing can aggravate pre-existing pressures and inequalities, and can lead to serious mental health issues, including post-traumatic stress disorder.
On a legal level, the Court has a constitutionally-mandated role in our society to adjudicate the many disputes that cannot be resolved by other means. Access to justice is not an ornament: it is an essential right held by everyone in Canada, and people must be able to exercise that right as fully as possible, including during a public health emergency.
Meeting an unprecedented challenge
The challenge posed has been how the Court can continue to do its part to prevent harm to public health, while also moving forward to ensure people’s legal issues are not left in limbo, especially where the problems that led to the legal issues might be intensified by the pandemic – for example, co-parents navigating tense shared parenting arrangements, difficulties paying support that are exacerbated by loss of a job, contract delays, etc.
Unfortunately, the Court is ill-equipped to respond quickly to the crisis, despite repeated requests to government for funds to upgrade our decades-old legacy filing systems and to provide stable enterprise video-conferencing. The Court has made efforts to innovate with the few resources we do have, however I’ll be first to admit that simply layering some technology over existing processes is not enough to meet the public’s needs.
Despite the many challenges, I was proud to announce that the Court of Appeal will be able to continue all operations beginning May 4, 2020. In a relatively short time, and thanks to the dedication of Court and registry staff, we have:
- secured broader access to electronic and other distance filing methods (while still preserving paper filing for those who need it – anyone unable to file electronically can call the registry to find a method that works, such as filing by mail or Dropbox; see part 3.2 of the Court’s April 20, 2020 Public Notice for details);
- tested and approved the use of Zoom for video hearings, to at least temporarily fill a gap that needs eventually to be filled by a stable, long-term solution; and
- generated procedures to provide access to our proceedings moving forward.
To get critical information and guidance about these changes out to the public we have also:
- provided guidance to court participants on how to participate in a videoconference appeal, and have attempted to reassure participants that judges appreciate that people’s home circumstances vary, such that interruptions by children or other sounds during hearings are understandable;
- updated a resource for people unfamiliar with the appeal process, which needs to be used with the other Public Notices and rules, but which at least gives a concise picture of the main steps of an appeal;
- planned for a recording of a sample video appeal to be made public so that anyone can get a real sense of how the appeal will run in advance of their own appeal (coming soon); and
- collaborated with other justice system people and organizations, including the NSRLP, to get the word out about the Court’s operations during the pandemic, and to provide education, such as an upcoming webinar organized by the Canadian Bar Association BC and Trial Lawyers Association BC (available on the BC Court of Appeal after the webinar) and a guide for Zoom conferencing published by the Canadian Bar Association BC, both of which are going to be available to anyone to view.
After the pandemic
What do these changes mean, if anything, for the future of the system?
In my opinion, we shouldn’t be too quick to assume that we’ve found the answers to how the system should permanently be changed. Certainly the courts in BC need a proper electronic filing system, and the expansion of this capacity during COVID-19 should remain in place after the pandemic is over – and indeed, should have been in place long ago. Likewise, the courts need to be able to conduct hearings virtually on a long-term basis, not just during the pandemic. The benefit to litigants of being able to appear in court via electronic device are obvious from an access to justice perspective, although it bears mentioning that it won’t be appropriate in all cases, such as where a party has limited bandwidth or where there are privacy or safety issues.
My hope is that the changes are a sign that the culture of the justice system is able to shift. I believe the changes the Court of Appeal and other courts are implementing demonstrate that there is a genuine willingness to take risks and try new things. Even one month ago, I would never have guessed that this week I would be presiding over a hearing via a popular videoconferencing system with two other judges, a court clerk and the litigants all in separate locations. Unimaginable. But why unimaginable? What does that say about me, and about the system more broadly?
We need to hold onto the “can do” and “need to do” attitude and spirit of collaboration that we are seeing throughout the justice system to keep pushing for further, long-term, and sustainable changes that will improve access to justice. The justice system cannot congratulate itself for fixing the access to justice problem simply by digitizing some processes or transitioning to remote hearings (important as those changes are). Much more is needed, including imaginative ideas for transforming how disputes are resolved.
I’ve written about these principles and ideas on the blog I write in my capacity as chair of Access to Justice BC, and this is what I see as the most important point: the justice system needs to work much harder at putting users of the system at the centre – most importantly members of the public. That means investing resources and designing processes that accommodate the needs of the people seeking justice – both now, during the terrible circumstances brought on by the pandemic, and on a permanent basis going forward.
what is the BC governments approach to the jonesson V lymer case mentioned in this same post. I was declared vexatious, and so many more were, just in the same sort of circumstances. Maybe the courts of BC would like to state, what the so designated person should do now, take our cases one by one to have the vexatious litigant designation and the contempt orders reversed one by one, or have the courts of BC, do it as one move, removing any of these decisions, and allowing the public to once again, access the courts.
You should hear my stories about our “justice system”. How are you g address the culture of judges who do not listen and seem to have complete contempt and respect for self-represented litigants. Then you need to solve the issue with lawyers who force litigants to self-represent.
I just had a quick look at the CBA guide for Zoom conferencing. Having been involved in the 90’s in a professional capacity in the public role-out of the Internet in B.C., I’m chagrined to admit that I’ve been a Luddite for quite some time. I’ve been an SRL at the Vancouver courthouse a number of times starting at the end of 2002. It was totally about paper then and I didn’t see any noticeable change as my train of litigation continued – for at least ten years.
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I hadn’t even heard of Zoom until it came up now in these discussions about the COVID-19 crisis. I’ve recently got Internet access in my apartment (I was a fixture at the courthouse library – many people thought I was a lawyer). My challenges include significantly impaired hearing. I don’t trying listening to any audio through my computer. My impairment is probably getting worse.
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Maybe with enough investment of time and money I could get to the point where I could actually use an application like Zoom but I’m not very optimistic about that. And I’ll note that impaired hearing is a common problem.
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One other point. Ultimately perhaps technology will fix all problems, including the ones created by technology. But I note what the technologists at Boeing did when they cobbled together an intricate technological fix for a fundamental design flaw in the 737 MAX.
This is further to what I’ve already commented here. If I accept that the efforts we are now being told about are being pursued in good faith – by B.C.’s chief justice and others – I continue to have the concerns that I developed years ago, at one point being compelled to engage in litigation at the Labour Relations Board and the Court of Appeal simultaneously. The BCCA overturned what I had won at the BCSC in a hearing I was then told by the registrar hadn’t been recorded.
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How many people and institutions have really changed their attitudes? I certainly don’t see that that has happened in the labour board’s record. I’ve just accessed this new page – http://www.lrb.bc.ca/guidelines/Guidelines_for_Online_Proceedings.pdf. If there was one thing the LRB always wanted it was to ensure that the almost invariably self-represented “duty of fair representation” complainants would never have their cases heard in person – at the LRB’s offices or elsewhere. The evidence of that is in the record one can review on CanLII. One of my concerns even before I got to the Court of Appeal was that hearings weren’t being recorded. That didn’t happen in the grievance arbitration that kicked off my long sojourn. These are held in hotel rooms. Undoubtedly had I got to a hearing at the LRB they and the other parties would have vigorously opposed having the hearing recorded. Failing everything else they would have insisted that I pay for the recording (probably meaning a court reporter) and the preparation of transcripts for all parties. Read to the end of this new page on the LRB’s website and what does it say? “No recording of any part of the proceeding is permitted.”
I need a copy of whatever document is underworks to remove the vexatious and contempt of court issues that are now attached to the most of us on this site, SOON. I am experiencing a continued experience of domestic abuse and need to file to get a restraining order, and an order for support, I simply cannot do this any longer. Please let me know when I can obtain this document,.
Hi Sandra, if you are experiencing domestic abuse we urge you to seek help from a local women’s shelter. If you are in Ontario, you can call Legal Aid’s domestic abuse hotline at 1-800-668-8258. You can also find info on women’s shelters across Canada, as well as a list of provincial/territorial crisis hotlines at ShelterSafe.ca
As for vexatious litigant orders, we need to clarify that there is no procedure to remove a vexatious litigant order that we are aware of. When we are able to put out a resource on the Lymer decision, it will likely be similar to our Pintea summary – a summary of the case and decision, that self-reps can use to draw a judge’s attention to the decision and the issues around vexatiousness.
today in the Vancouver sun, a story run by Ian Mulgrew entitled Justices tell tribunal to reconsider use of lawyer. One comment in particular that applies to all of us, Justice Nathan Smith concluded the tribunal was “undoubtedly correct that participation of counsel on one side can put the other side at a significant disadvantage”. Now since the courts cannot say this applies only to the tribunal, that means that all of us, have been at a significant disadvantage in the courts, Without representation, that is the permanent situation for the self represented, That really means that no justice can be obtained properly if you are self represented. That is a state we have all been in.