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Bumping of civil actions, court vacancies contributed to 2019 access struggles: B.C. Supreme Court

Thursday, April 16, 2020 @ 10:15 AM | By Ian Burns

The bumping of civil trials and long chambers applications in B.C. reached “critical” proportions in 2019 and played a part in the struggle to ensure timely access to justice, according to the B.C. Supreme Court’s most recent annual report.

The report, which was released March 31, said the bumping issue was the worst it had experienced to date. A matter is considered “bumped” if its hearing is delayed and cannot be rescheduled within a week of the original date because judicial resources are not available. The court noted there is no forecast for improvement in 2020, and the court’s move to suspend regular operations during the COVID-19 pandemic seems to suggest that this prediction could bear fruit.

“Bumping causes additional expense and inconvenience to litigants as a result of wasted preparation time and travel costs for witnesses and experts,” the report said. “It is anticipated that bumping will continue as long as the Court remains below its full judicial complement.”

The court said it has been “chronically short” of its full complement for several years. It noted B.C.’s ratio of superior court judges to population as of Dec. 31, including supernumerary judges, was 1 to 48,568, as compared to 1 to 38,962 for the rest of Canada. There were also nine judicial vacancies at the end of 2019, amounting to 10 per cent of the statutory allocation of full-time judges to the court (the federal government appointed two new justices in March).

“Judicial vacancies continue to impact the court’s capacity to provide hearing dates for litigants in a timely manner, resulting in bumping and rescheduling of trials and long chambers applications,” the report said. “Vacancies increase the already heavy burden on the court’s existing judges, who are assigned more work in order to make up the shortfall. Filling judicial vacancies would certainly assist the court in providing more hearing times, but over the longer term, enlarging the judicial complement is also necessary.”

The shortage of judges at the court also causes delays in scheduling of matters for trial, with continuations becoming more common. The report said the lack of available trial dates has been most acute for civil proceedings, whereas in criminal matters, due to the liberty interests at stake and the fact that accused are sometimes in custody awaiting trial, dates are generally made available as needed.

“Because of the urgent nature of many family proceedings, family trials and long chambers applications are often given scheduling priority over civil proceedings. In 2018, dates for a five-day family trial in Vancouver were generally available in seven and a half months, while outside Vancouver, the wait was six and a half months,” the report said. “For civil trials apart from motor vehicle accident trials, the wait for available dates was generally 17 months for Vancouver and New Westminster, and an average of 15 months for other registries.”

The court also noted it heard more than twice as many long trials as it did in 2018. It said long trials can take anywhere from several months to several years to complete and generally involve complex subject matters such as serious criminal offences involving death, bodily harm, organized crime, Aboriginal rights, title cases and Charter challenges to provincial and federal legislation.

“These cases typically require extended periods of hearings with few breaks and frequent rulings on admissibility of evidence. Judges assigned to them are therefore unavailable to hear other matters, including in regular civil chambers rotations,” the report said. “As a result, while these cases result in only modest increases to the number of cases heard, the relative burden of resources required for them can be quite heavy.”

In an e-mail, B.C.’s Ministry of the Attorney General said British Columbians “deserve a court system that can hear and resolve their disputes in a timely manner.” It added it was working with the courts to improve timeliness and efficiency to further reduce delays in courtrooms across the province, pointing to the fact it has increased the number of sheriffs, upgraded existing courts and has introduced a bill in the legislature which would allow the appointment of five more judges to the Supreme Court.

“We are working with the courts to improve timeliness and efficiency to further reduce delays in courtrooms across the province,” the Ministry said. “We are also investing in new facilities and where appropriate diverting cases out of court to, for example, the Civil Resolution Tribunal. Our government is committed to investing in the justice system to ensure we provide an innovative and timely system that serves the needs of British Columbians.”

Rachel Rappaport, press secretary to federal Justice Minister and Attorney General David Lametti, said the government will fill the remaining vacancies on the court “in due course.”

“[Lametti] is in close touch with his provincial and territorial counterparts. On a recent call, several counterparts voiced support for continuing to appoint new justices amid the COVID-19 crisis to bolster the capacity of the courts when regular operations resume,” she said. “Our government is proud of our strong record appointing highly qualified members of the legal community to the judiciary in British Columbia and across Canada.”

B.C. Supreme Court Chief Justice Christopher Hinkson declined to comment for the article.

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