Reasonable Doubt: Getting your day in court (but without a judge)

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      It’s Monday morning at the B.C. Supreme Court in Vancouver. There are eight new trials on the docket. The lawyers for all of those cases have all crammed into a single courtroom. They are gowned in their court robes and surrounded by carts of banker boxes, books, and laptops. They all stand around, waiting, and the tension is palpable. There is one question written on all of their faces: will I get a judge?

      This is the courtroom for the dreaded overflow list. Lawyers and their clients have all come together here to find out if there are any judges left. That’s because all of the available judges are tied up in other cases. And they have already been warned in advance that they probably won’t get one for their trial. 

      The lawyers’ small talk stops abruptly when the court clerk announces that court is in session. A judge walks in and addresses each case, one by one. For a few lawyers, they are rushed to another courtroom because they are lucky enough to get a judge at the last minute. But for many on this day, it’s bad news. Their trials are bumped and they will need to reschedule. This delay could mean a new trial date that’s many months away. For the parties involved, justice will have to wait.

      The harsh reality is that this is not uncommon. According to Bentley Doyle, spokesperson for the Trial Lawyers Association of British Columbia, this is not a new problem. It has been going on for years. Doyle adds: “It’s not just judges. There are also not enough sheriffs at the courthouse. Without one or the other, you can’t have a trial proceeding.” 

      The shortage of judges is made worse by other factors. Trials are now longer and more complicated than ever. In the past, a one-week trial might be considered long. Now trials of civil disputes can take two or three weeks. Doyle also points to the lack of legal aid and the related increase in litigants without counsel. The courts try to accommodate self-represented litigants, but this slows down the proceedings. The limited resources of the court system are stretched even thinner.

      Prominent Vancouver-based lawyer Lyle Harris has a unique perspective on this issue. His law firm had three trials get bumped in just the last month due to the shortage of judges. Harris lamented the considerable time and money spent to prepare for those trials. Witnesses had to take time off work to take the stand.  Expert witnesses charged high fees for cancelled appearances. All three of those cases were motor-vehicle personal-injury cases and were defended by ICBC.  Significant costs were added as a result of the delays.

      These increased costs may be borne by ICBC. When considering the overall impact of these types of delays, Harris says: “The cost to the system is in the hundreds of thousands, and possibly into the millions. This is borne, ultimately, by the premium-paying public in British Columbia.”  In other words, that’s you and me.

      According to Harris, the B.C. Supreme Court judges should number about 100. “When I last checked, we were down eight”, Harris says. He expects that approximately five more judges will leave by the year’s end due to the legislated retirement age. “We will be down more than 10 percent”, he says.

      The shortage of judges affects everyone’s ability to have their day in court. Anyone with a matrimonial case, personal-injury claim, or business dispute is affected. “The ordinary person who wants to get into court has a very good chance that their case simply will not be heard,” Harris warns.   

      What can be done? As discussed in a previous article, B.C. Supreme Court judges are appointed by the federal government. “We can’t do anything until Minister of Justice Jody Wilson-Raybould appoints judges,” Harris says. He adds: “This one problem, with the federal government not appointing judges, is very fixable.  It needs to be fixed right now.”

      On that Monday morning in the courtroom of the overflow list, seven of the eight trials are bumped. The plaintiffs and defendants who looked forward to getting their day in court walk away, exhausted and frustrated. They don’t look like individuals who had access to justice. For them, it’s been a tough road that has just gotten longer.

      A word of caution: you should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer.

      Kevin thanks Bentley Doyle and Lyle Harris, QC, for their insight. 

      Kevin Yee is a lawyer at Stevens Virgin who practises general civil litigation and personal-injury law. Reasonable Doubt appears on on Fridays.