Shifting back to in-person risks going backwards on equity, mental health, environment: BC lawyers

Province resumed in-person trial management conferences for civil and family matters on Feb. 1

Shifting back to in-person risks going backwards on equity, mental health, environment: BC lawyers
Jenson Leung and Fayme Hodal

As BC courts resume in-person proceedings, two Vancouver-area lawyers are concerned that many of the gains that were achieved by proceeding virtually – for lawyers, clients, the public, and the environment – will be left behind.

On Feb. 1, trial management conferences at the Supreme Court of British Columbia will once again occur in person. The court announced the change in December. The end of virtual trial conferences means that all civil and family proceedings have now shifted back to in-person. The same is true for criminal matters, aside from regular fix-date appearances, pre-trial conferences, and case-management conferences.

With court proceedings reverting back to the pre-COVID norm, the system is sacrificing progress that came as a silver lining to the pandemic, say Jenson Leung and Fayme Hodal. Proceeding virtually boosted access to justice, made lawyers and everyone else involved more efficient, promoted equity and diversity, gave clients better representation, cultivated mental health, and benefited the environment, they say.

“One of the main benefits is efficiency,” says Leung, a labour, employment, and disability lawyer at KSW Lawyers in Vancouver. “When we're doing in-person proceedings, there's a cost – both in terms of the lawyer's time as well as to the clients…  You're spending, usually, several hours in the court for what could be a 10-or-30-minute proceeding.”

In addition to the lower fees, during the pandemic, lawyers were able to increase access to justice by assisting people in smaller, more remote communities, says Hodal, who practises tax and employment law at KSW Lawyers in Surrey, BC.

“When you're from the city, you have a little bit of a skewed view maybe of how big the country is, and how far away any given individual might be from a courthouse or lawyers or the ability to get somebody that has any expertise in their particular area.”

In communities such as Silverton (a four-hour drive from Kelowna), Lees Corner (a seven-hour drive north of Vancouver), and Hazelton (a three-hour drive inland from Prince Rupert), though there are residents – who may have legal issues – there are no nearby law offices, says Hodal.

With virtual proceedings, people in those towns had access to lawyers from larger centres, without paying a premium by adding travel costs to their legal bill, says Leung.

Last spring, a number of Ontario family lawyers raised the alarm over access to justice and higher legal costs when the province’s Superior Court of Justice announced most proceedings would return to in-person attendance. Family lawyer, Russell Alexander launched an online petition opposing the change, which currently has more than 1,400 signatures.

As Ontario Superior Court Justice Mark Edwards put it in Lepp v. The Regional Municipality of York, 2022 ONSC 6978, for judges and lawyers, “one of the most valuable commodities we have is time,” and “time is in very short supply,” says Hodal.

“Lawyers tend to be very cognizant of time spent being not productive. Every time we have to travel to and from a place, it's not-productive time that we're not working on someone's matter. When we're sitting waiting at the courthouse for our turn, it's time not spent advancing the person's matter.”

“So you can see how this all just circles right back into access to justice. If we have more time, we can help more people resolve their problems, we can help more matters advance.”

In addition to the professional advantages to proceeding virtually, time spent travelling and waiting while work piles up is a mental-health liability, note Hodal and Leung. And moving away from virtual hearings will have an environmental impact, they say. From the fuel consumption required to drive to the courthouse to the reams of paper eaten up to provide each party with every document, litigation takes a toll.

Virtual proceedings also helped level the playing field for lawyers with family obligations, or who were responsible for caring for a sick relative or friend, says Leung.

With virtual proceedings, lawyers could look after their children and still show up for court appearances. Taking that away also disproportionately impacts women, he says.

In this way, allowing virtual court appearances, and thereby not pushing parents, or lawyers with other types of caregiver responsibilities, toward making the tough decision to leave the profession, also aids the access-to-justice piece, says Hodal.

“If there are more lawyers available, more people can get our assistance.”

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