Today’s post is written by Hugh Trenchard: “I’ve been employed in the BC Public Service since the late 1990s as a paralegal, an adjudicator of driving prohibition disputes, and presently as a Branch Advocate, in which my role is to present the Branch’s evidence at liquor and cannabis enforcement hearings. Though I have no desire to be a lawyer, I have worked alongside many over the years, and in September I am slated to begin a Masters of Law in Administrative Law through Osgoode Law School at York University.”
On May 5, 2020, I had the opportunity to participate in the first BC Court of Appeal Zoom hearing, as a self-represented appellant.
Living in Victoria, it was nice that I didn’t have to travel to Vancouver for the hearing where it was originally scheduled. This made for less stress, some cost-savings, and allowed me a little more last-minute preparation time, and more time to gather my focus the day before and the morning-of. I was even able to do a light 10-minute workout on the rowing machine in my kitchen to help clear my head. Likely I slept a little better too because I did not have to anticipate a tiring journey the following morning.
On the other hand, there was some added stress in that I was not certain that my Zoom platform would work. I had tested it out twice before, and it worked for those meetings, but I was still nervous that for some reason it might not work.
Being self-represented, I found it less intimidating to see the judges at eye level, rather than elevated and looking down at me. The Zoom hearing had a less formal feeling, which I found less intimidating and more conducive to articulating my thoughts. In the past I have found myself subject to nerves in a courtroom, and likely to get a bit lost for words. I didn’t feel that way for this hearing, although that could also be due to having been well-prepared and well-slept. Of course, one always feels afterward that you may have missed important things, but at least I felt I made good use of my time.
My telephone, right beside the microphone, rang during the hearing. That was probably distracting for everyone. I simply picked up the receiver and hung up on the caller, but this does highlight a potential distraction.
I feel this format should be an option available to litigants regardless of physical-distancing requirements. It is progressive and conducive to access to justice. I had no difficulty hearing the participants, and I think this would be beneficial to public observers. In a courtroom, observers will often have difficulty hearing the participants.
There was a notice from the Court of Appeal to say the parties did not need to stand when the court clerk was calling “order in court”. This was a bit awkward since counsel for the Respondent elected to stand when order was called before breaks and at the end of the hearing. I felt it was appropriate for me to follow their lead, even though I had seen the notice saying that parties needn’t stand. Perhaps this is a practice point that will be ironed out in future.
Overall, the hearing felt more relaxed, and more like the sort of setting one should expect when resolving a dispute. Basic dispute resolution need not be mired in formal tradition that can put those less familiar with such traditions at a disadvantage. This hearing was a quantum leap in shifting time-honored customs of court decorum, and this is conducive to access to justice.
Speaking from the perspective of a self-represented litigant, litigating necessarily involves a massive commitment to hard work. But if the stress associated with that process can be reduced just a little by knowing that you have the option of making your presentation from the comfort of your home, it may all seem less intimidating. At the end of the day, when we engage the civil courts, all we are doing is seeking to resolve a dispute. Yet the current adversarial process can sometimes leave people feeling like they are pushing a train uphill. It doesn’t have to be that way, and Zoom hearings lift a boxcar from the train. This is a huge step for access to justice in BC, and I applaud the court’s decision to move in this direction.
On a side note, if I were to offer any advice to self-represented litigants, it is to consider that at the end of the day we are all in this together – the parties to the dispute, the judges, the lawyers on the other side, and the countless court staff. For my part anyway, regardless of the outcome, I hope to remember best the times that we expressed mutual respect and compassion, and “gave an inch” to the other side. Of course, there will be some sense of bitterness regardless of the outcome, but once you have exhausted your legal remedies as far as you are willing to take them, be prepared to let it all go and to move on. Even if you do not get what you are seeking, if you can look back and say, “I did my best with integrity, respect, and compassion”, I think you will be enriched by the experience, and so will the others who were part of it with you.
As a supporter of Hugh during his four years as a self-represented litigant challenging our landlord, it was obvious that the video-conference hearing was easier on him and more convenient for him and also observers like me. ‘No travel costs and layover(s), ‘no struggle to hear presenters and– best of all–a non-intimidating setting. -Gerald
This hearing may be one of the few examples of how COVID-19 has been a benefit to people. There are clearly advantages to this means of conducting a civil hearing. It is economical and definitely not intimidating to a self-represented litigant such as Hugh Trenchard. Because of the high cost of the judicial system generally this procedure should begin the process of bringing the benefits of the law within the reach of those who fear going to court because of the sheer cost involved. Not only that but this kind of proceeding has been able to make a civil hearing available to the public more rapidly and without the countless transcription errors that inevitably make their way into printed transcripts. It is a sad but true circumstance that justice is too often more accessible to the rich than the poor. This sort of hearing might be the first step in leveling the odds and making justice truly available to all.
Maybe. The potential is evident, but I wouldn’t bet on video-conferencing being some sort of great leveller. All technologies tend to be seductive. We are still as a society seduced by the automobile. But look at what that technology has done to our cities. I see everyday drivers in exotic machines capable of ridiculous speeds idling with everyone else in traffic and fully engaged playing with their state-of-the-art electronic gizmos (and thus breaking the law).
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How long will it be before a Zoom conference features the sound of a crash, not just a flushing toilette?
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The pitfalls with new technologies are myriad, and mostly unanticipated. Have a look at this article – https://www.theglobeandmail.com/canada/article-zoom-fatigue-heres-why-videoconferencing-leaves-you-feeling-tired/ .
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And, for as long as it remains accessible to non-subscribers, this one – https://www.thelawyersdaily.ca/articles/19174/post-covid-courts-could-see-less-oral-advocacy-more-paper-based-remote-adjudication-scc-s-wagner . The plan now apparently is to do away with civil jury trials. That is moving in the direction of doing away with any participation by the citizenry, by anyone except the system insiders.
Thank you Hugh for suggesting that there is light at the end of the tunnel, however cloudy. I am in year 5 of a judicial review that is a train winding its way, up and down, slow and fast, towards my freedom. Along the way I have lost my friends and family does not want to hear about it anymore. When I do finish, I can say I did my very best to obtain justice, despite the daunting obstacles that dissuades 99% of everyone else. Good for you!
Lorelei something has got to give with judicial reviews and it has to be sooner than later. The AGs are not taking their mandate seriously and so this has gone down the ally-the rabbit hole if you will. Vavilov is not going to cut it and only when the SCC releases a decision that outright states decision from panels that find case law inconvenient MUST subject correctness standard review will these judges take people seriously. The same goes for any of those decisions with more than three error of any sort especially any error of fact. The procedure should be applicants complete a form that requires listing errors (fact and then law) and once the applicant provides argument and/or evidence of those errors just overturn those decisions or automatically subject them to correctness standard review
Thank you Allen for your empathy! I don’t get a lot! I also don’t want to give the wrong impression about court here in BC. I have been before several different judges in small claims and Supreme Court. The judges have all been attentive, they listen, they ask questions, but most importantly, they don’t let me get beat up or taken advantage of by the sharp lawyers willing to take advantage of me as not only self represented, but also as disabled with impaired cognition. I can write but I can’t speak very well. I have nothing but good praise for the judges who try to make it work in an archaic system. Truly. Best to everyone as we plod along! 😎
FYI, in case you’re interested in sharing, you may want to join a Facebook group that has value, but a rather off-putting name. Just search Facebook groups for Strata Council, and you’ll find it.
I can surely relate to most of Hugh’s take on remote hearings. It definitely takes away a lot of stress. Between 2017 and 2018 I handled my Personal Injury Claim through Case Management by telephone for I had moved away to another province. The Case Management Justice was really accommodating, patient and very judicious (a rarity for me). He put his foot down and stuck to the rules. The usual tactics just could not take off against me at all including the constant refrain about how I was a vexatious litigant. When I asked him to clarify if and when I needed leave to proceed he said ” You do not need any leave” I plan to thank him profusely but COVID -19 delayed a meeting I am to have with him and I do not want to go giving thanks before everything is over lest the other side’s lawyer takes issue. But I owe him (and the JDR Judge) a huge debt of gratitude. He is actually yet to meet me. He was very alive and sensitive to everything that went down. For once when the judge said trust me, I felt I could so I just did. Then I asked for settlement by JDR (Judicial dispute resolution) and he provided all we needed to get it but he refused to do anything unless he saw proof of my consent. The JDR Justice was just as great. I had to go in person for the JDR meeting so he met me in person. It is such a shame when bad judges (and lawyers) put the courts name in disrepute. The judiciary needs to know SRLs are not demanding that we must win our cases. We demand not to be made into April Fools Jokes. Instead we want to be treated fairly, our rights respected, feel as though we were heard and when we lose we want it to be in keeping with the law and make sense.
I was so impressed at the how the hearing was conducted. Hugh was well prepared and presented well. Having easy access to a digital and video record on which to rely is a major benefit for others wishing to glean insight and information. This format is accessible, easy to follow, and I think might just be the way that trials and the adjudication process may be headed in the very near future. It will help bring the cost of litigation into the reach of the poor or less affluent. Much as the allowing of what is essentially class action suits which were not codified province by province beginning in the late 70’s. The federal government not doing so until 2002. Going forward levelling the playing field financially and ideologically as much as possible is the ultimate goal.
my case involves fraud of the evidence, Now I have an expert evidence review of the file, and it shows the many issues involved with the report, if I take this to the court of appeal, how do you enter new evidence, if it goes back to the supreme court, that judge was the one who disregarded me completely, declared me vexatious, and disregarded my rights as a self represented litigant to be made aware of court dates,, when I said I was setting up the Trial date for examination of evidence, that was completely disregarded, they went ahead, with a case, without me there, because I was waiting on the very same day for everyone to attend the examination of evidence i had set up 2 weeks previously. I do not believe going back to this judge will help, I ask for your comments,, is the court of appeal, or is it supreme and how do i enter the new expert evidence report, i am so sick of this bull, i expected justice,, that is not what i got at all.
Interesting blog, I learned a lot from here. Recently I bought Kemimoto’s Manual Windshield Wiper. Easy to install and highly recommended.
I just learned that due to Covid-19 social distancing, Manitoba Court hearings will be conducted either in the Microsoft Teams medium (similar to Zoom and Skype) OR plain Teleconferencing (audio only using a cellphone or a plain dial up telephone. Each party and their witnesses have the OPTION to choose either.
As a self-represented plaintiff, I believe Teleconferencing is to the defendant’s benefit and to his witnesses as I am unable to see their facial expressions nor will I be able to see whether the defendant’s lawyer is helping his witnesses with answers since most likely they will lie that they’re not all in the lawyer’s office!!! Their witnesses could be coached using prompt cards.
Also their presiding lawyer could have an assistant lawyer prompting him how to answer. The presiding lawyer could be getting hand signals from his more experienced boss and with Teleconferencing, I won’t know.
The only way to be fair is to have both the SRL plaintiff, the defendant’s lawyer and all witnesses be on Microsoft Teams and NOT use Teleconferencing unless the witnesses are truly calling from out of town.
Covid-19 is screwing SRLs in the court system as well!!