THE BENEFITS OF REMOTE HEARINGS

By Fayme Hodal and Jenson Leung

In response to the COVID-19 pandemic, the B.C. courts, like many others, implemented a policy that allowed for remote appearances. In particular, the B.C. Supreme Court allowed chambers applications estimated to take two hours or less, trial management conferences (“TMCs”) and case planning conferences (“CPCs”) to take place remotely via video or telephone conference, by default. Parties could, of course, apply to the court to seek to appear in person.

During the pandemic, many of our courts and tribunals proved themselves to be capable of hearing even trials via telephone or videoconference. Unfortunately, despite this success, the B.C. Supreme Court has indicated that in-person attendance is being resumed as the default method for all appearances including matters that are proceeding by consent.

With the utmost respect and deference, we suggest that resuming inperson hearings as the default mode for all court proceedings is effectively forcing the profession to abandon and discard nearly all the progress toward a more modern and efficient court system that was made during the pandemic.

Remote appearances provided many benefits to the public, the courts and the legal profession. Resuming in-person proceedings as the default mode is, in our respectful opinion, a missed opportunity for bettering our court system. This opinion is shared by many of our colleagues and friends.

Increasing Access To Justice

An overarching benefit of remote proceedings is that they improve a key component of access to justice by extending the availability of lawyers to individuals in the province beyond their immediate geographic area. In other words, clients benefit from the ability to seek assistance from lawyers based on expertise, rather than physical proximity to either the client or the local courthouse. The ability even of lawyers in the Lower Mainland to assist countless individuals and small businesses in smaller, remote and historically underserved communities in the province during the pandemic was made possible in large part by the availability of remote appearances.

Some areas of British Columbia do not have lawyers in close proximity. In some cases, there are local counsel, but they may not have the expertise needed to properly address a given situation, or may be conflicted for any number of reasons. With remote appearances being available by default, individuals may choose the lawyer they believe will best represent them, regardless of the lawyer’s geographical location within the province.

As noted by the Ontario Superior Court’s Justice M. Edwards in a recent case, “[t]ime is in very short supply”.1 By allowing proceedings, particularly routine and relatively short proceedings (such as TMCs, CPCs, uncontested applications and consent applications), to proceed remotely by default, the court eliminates wasted time that would normally be spent on activities that do not serve to advance a matter, such as physically waiting in court for the matter to be called, and travelling to and from the courthouse. This in turn reduces the cost to clients and maximizes use of the lawyers’ time.

Lawyers would, therefore, have increased capacity to take on new clients or advance existing matters more expeditiously, thus further improving access to justice. They can also, if they so choose, use that additional time to tend to personal matters, thus improving mental well-being in the profession.

Travel requirements for in-person appearances can be unnecessarily onerous even for those in a small geographic area like the Lower Mainland. There remains an unnecessary cost imposed on litigants in the form of travel time rather than attending to the matter itself. Further, it is entirely possible for a lawyer in the Lower Mainland to have multiple appearances on the same day at different courthouses and, as a result, to have to allocate large amounts of time to travel between the courthouses.

Helping Lawyers Stay In The Profession And Lawyer Health

Remote appearances can allow a lawyer who is a parent or other caregiver, who otherwise would have needed to frequently make childcare or similar arrangements, or take an absence from or leave the profession altogether, to give care and continue to practise at the same time. Without the flexibility of remote appearances, the lawyer could be forced to make an often difficult choice between their profession or their loved one. Gone are the days when most people had a partner who could drop what they were doing to pick up the pieces in our personal lives when our profession demanded more of us.

Remote attendance also has indirect positive effects on lawyers’ mental health. In general, lawyers are exceptionally cognizant of the opportunity cost of their time, and any time spent on “unproductive” tasks. Many of us become stressed when time is wasted or otherwise lost, especially when we could have been, and wanted to be, productive, or would have otherwise been engaged in an activity we enjoy.

Further to that, as our mental health is unquestionably tied to our physical health, allocating time previously used to travel to and from in-person appearances, or waiting for our turn at those appearances, to healthful activities results in better physical health, and therefore better mental health. We will leave it to another article to more fully address the mental/physical health piece.

Environmental Considerations

While much of the profession was already functioning reasonably digitally, shortly following the onset of the COVID-19 pandemic, our profession showed that it could continue to assist the public with their matters by taking up and using any number of helpful elements of technology, en masse Anything that would have, up to that point, occurred in person was occurring via phone or video, and did so for an additional two or so years. Over that period of time, fewer tonnes of fuel were burnt and fewer trees were sacrificed in service of in-person attendance. Instead, participants attended examinations for discovery, mediations, CPCs and TMCs by video, and could provide materials electronically in advance to the other parties. Additionally, the digitization of documents not only reduced the sheer amount of paper, but also markedly reduced guesswork and uncertainty about any given document, as all could be sure they were viewing the same one.

What The Small Claims Court And Court Of Appeal Are Doing Currently

In contrast to the direction taken by the B.C. Supreme Court, the B.C. Court of Appeal and Provincial Court have both continued to embrace remote appearances as the default mode for many proceedings.

In particular, the B.C. Court of Appeal allows for parties to file a “request to appear remotely” for appeals and chambers, and automatically allows parties to appear by Zoom in chambers.

Similarly, our Provincial Court has continued to have videoconferencing via Microsoft Teams as the default mode of attendance for settlement conferences and trial conferences.2

As aptly noted by our Provincial Court, “Remote attendance options provide the flexibility to support greater access to justice, including for those living in remote communities, vulnerable people served by the Court, and those who test positive for COVID-19 and need to stay home pursuant to the [BC Centre for Disease Control] guidelines.”3

SOMETIMES, IN-PERSON HEARINGS ARE BETTER

Remote appearances are not without their shortcomings, such as lapses in decorum, lack of an appropriate sense of occasion by those appearing or challenges with documents added at the last moment, all of which we note are not unique to remote appearances. Nevertheless, the B.C. Court of Appeal and other courts have amply demonstrated that these issues can be overcome with well-established procedures.

Naturally, some matters should and will continue to be heard in person. However, the authors suggest that in-person appearances should not be the default method for all court proceedings. Rather, when parties are represented by counsel in less complex matters, remote appearances should be the default, with parties at liberty to proceed in person by consent or court order. For example, this approach would be appropriate for matters including consent or uncontested applications, non-complex chambers applications under two hours, TMCs and CPCs. Indeed, the overwhelming consensus within the bar seems to be that the majority of court proceedings with time estimates under the two-hour threshold for long chambers could also usually be dealt with by remote means.

By contrast, matters such as trials (of any length), long chambers applications and summary trials should proceed in person. Similarly, complex matters and matters involving self-represented litigants should generally proceed in person.

If, as a profession, we want to continue to say we care about access to justice, the health of our own and the environment, we must not only hold onto the progress made during the pandemic, but continue to make improvements in our judicial system where necessary. For example, we do not allow for service of court documents on opposing counsel via e-mail in British Columbia except by consent. By contrast, the Ontario Superior Court allows for e-mail service of court documents, except originating pleadings, and has committed to continuing the use of video and phone options for some types of proceedings. They have similarly continued to allow for remote commissioning of affidavits, another key pillar of increased access to justice.

Endnotes

1. Lepp v The Regional Municipality of York, 2022 ONSC 6978 at para 14.

2. BC Provincial Court, Practice Direction SM CL 02, online: <www.provincialcourt.bc.ca/downloads/ Practice%20Directions/SM%20CL%2002%20 Small%20Claims%20Proceedings%20During%20 COVID-19.pdf>.

3. BC Provincial Court, Notice to Profession NP28, online: <www.provincialcourt.bc.ca/downloads/ Practice%20Directions/NP%2028%20Court%20 Operations%20During%20Communicable%20 Disease%20Phase%20of%20COVID-19.pdf>.