What To Do When The Courts Are Closed?

On March 18, 2020 the Supreme Court of British Columbia announced the suspension of regular operations at all courthouses in BC. This unprecedented move underscored a commitment to the health and safety of all British Columbians – the people who need to come to court and the people who work in our courthouses. Only essential and urgent applications are being heard in criminal and family cases (including matters related to COVID-19 and public safety). But what if you have a civil case – a personal injury matter or a business dispute? Maybe your trial has been adjourned or your lawyer had recommended an application to obtain evidence, collect a debt or get a ruling that would resolve your dispute but now you can’t get into court. Other processes related to your case such as discoveries and mediations have been disrupted, cancelled or postponed. As of today the Courts have only said that they will be closed until the end of April but we expect that to be extended as this virus works its way through our community. Here are some practical suggestions.

If your trial has been adjourned you will go to the back of the line. E.g. if you had a trial in April 2020 and the Courts were closed for two months you will not just be postponed for two months. The earliest your trial can be rebooked will be when the Court (and the parties and their lawyers) have an opening. That is often a year or more away. Get creative. If your trial was set to go ahead in April then you probably have all the evidence you need. Consider a mediation. You can serve a Notice to Mediate on the other party which requires them to attend a mediation. Remote mediations are available through platforms such as Zoom which allow the mediator to host a video conference. All of the parties can be safely by themselves but Zoom allows you to have sessions with everyone participating or to break into separate groups so that you and your lawyer can confer privately or invite the mediator to join you. See my article about remote mediations for more information.

You can still move your case along with a discovery. Remote discoveries are also becoming popular. Similar to remote mediations they are hosted by the court reporter on a platform such as Zoom. The parties can all be in separate locations. The discovery process is practically unchanged. The court reporter will swear in the party being examined and the other lawyer will ask questions. The Court Reporter takes down the evidence and will produce a written transcript. If paper exhibits need to be marked they can be emailed to the court reporter and emailed back or the parties can use the more modern practice of simply identifying the document by its number on a List of Documents.

Arbitration is another option if the Courts are closed. Both parties would have to agree to have their dispute decided by an arbitrator. The BCICAC has a roster of qualified arbitrators. In an arbitration the parties pay for the arbitrator (who is often a lawyer) and can chose the rules they want to use (e.g. Commercial Arbitration Rules, Supreme Court Rules). http://bcicac.com/

If you have not yet started a civil action or if you have been served with a claim but haven’t responded yet you can still file documents with the Supreme Court using e-file, fax, regular mail or a secure dropbox.

The Small Claims court, for claims from $5,001 to $35,000 is not accepting new filings until at least May 16th. All non-urgent matters are adjourned until at least May 16, 2020.

Don’t forget the Civil Resolution Tribunal for claims up to $5,000. This is, and always was, an online court: https://civilresolutionbc.ca/

If you are worried about a limitation date expiring while the courts are closed, on March 26, 2020 the Province of BC announced that limitation dates would be suspended during the COVID-19 crisis:

Limitation periods in court proceedings

2 Every mandatory limitation period and any other mandatory time period that is established in an enactment or law of British Columbia within which a civil or family action, proceeding, claim or appeal must be commenced in the Provincial Court, Supreme Court or Court of Appeal is suspended.

Don’t forget to talk to your lawyer about good old fashioned negotiation. COVID-19 has created a great deal of economic and financial uncertainty. That often makes parties in a dispute more amenable to resolving it.

The trial lawyers at FH&P are available to assist you with your civil litigation needs. Call us.