Roger writing the LAWmag
23
Sep 2008

It’s War: British Columbia Lawyers Take on the Judges and the AG

At the risk of butchering an honest hockey expression, a fight broke out at a law society meeting; to wit, the September 23, 2008 Law Society of British Columbia AGM.

Of all things, this staid and conservative group (362 lawyers showed up for the meeting including 290 in Vancouver and 64 in Victoria) experienced the closest thing to riot it’ll ever see; an unprecedented drawing of a battle line in the sand not only between the Attorney General and lawyers, frequent combatants, but this time against the judges that preside over their trials.

At issue is an avant garde proposal spearheaded by a team of judges and officers of the provincial attorney general, and even a member purporting to represent the Law Society; all on a task force that has been kicking around since 2002.

Justice reform loggerheadsThe proposal will substantially overhaul the superior court civil rules by eliminating interrogatories, obliging any expert to act for the Court and not for a particular litigant, limiting document discovery and examination for discoveries, and implementing a more hands-on trial management approach by the bench: "active case management", sweet words to the ADR department of the AG but poison to the minds of barristers.

These reforms are far-reaching and if passed, may re-define civil litigation.

And not just in BC.

Provincial reforms may have a trickle-down effect across Canada as with the formidable cost of legal representation, all provinces seem keen on simplifying the litigation process and all are watching what's happening in BC.

Whole chapters of the practice manuals will have to be rewritten.

The changes are deep, numerous and they scare the hell out of lawyers.

Active case management means mandatory case meetings presided over by a judge, or, to hear the lawyers tell it, a further 30,000 new judicial hearings a year in BC alone.

"Scare-mongering myths" retorted a lonely proponent to the reform package at the Law Society meeting.

But the scope of the proposed reform seems unparalleled in Canada although, on some points of detail, similar items have been brought forward elsewhere, such as in Ontario, of which, apparently, the Chief Justice of Ontario recently admitted both failure and added costs.

Put bluntly, the proposals have the lawyers up in arms.

Lawyers as a rule, tread carefully when commenting on anything judge-suggested.

But this time, what might be emboldening lawyers is the strong rumour that many of the judges themselves dislike the proposals.

The gloves are off.

The headline of the BC trial lawyer’s magazine reads "Takes Longer, Costs More". TLABC is also brandishing the trademark "Don't Let Them Take Away Your Day In Court!" and has started a website called protectingjusticeforbc.org.

A real concern is that the internal squabble causes the public to lose confidence in the justice system.

What is irksome to many is the public service superhero cape the lawyers wrap around themselves. The trial lawyers association asserts: "for people who cannot afford hourly rate lawyers, the prejudice still exists."

To which that lonely Vancouver lawyer replied:

"Lay litigants are not in Court because they enjoy the wonderful experience of going to court."

Another very interesting point, hidden in the fine print of more spectacular objections is the political role that the judges are taking in leading the proposal, in concert with the elected Attorney General.

Lawyers say it’s basic Constitutional Law 101, division of powers etc., not to mention the provincial Rules of Court Act that specifically limits their judges’ role as one of consultation.

Chief Justice D. Brenner The chair of the task force is the chief justice, former pilot Donald Brenner (pictured), as well as four other members of the bench. Indeed, that the judges have stepped into the shoes of political salesmen is implicit from the Task Force’s own website and fancy new logo:

"Easy Solutions. Faster Justice".


At the law society meeting, one speaker remarked that while the trial lawyers were rebuffed in their demands to be part of the Task Force group, the response from the reform group was that they had consulted with the general counsel for Telus!

Ouch!

That the Law Society "disapproves" of the civil law reform proposals, Resolution #3,  was tabled at 1:12 PM, along with a plethora of motherhood terms, such as to increase legal aid and public legal information funding.

Only Vancouver lawyers took to the microphones but in the result, it seemed that they were speaking for all:

•    The new rules cost more by adding unnecessary steps such as case management costs. You can’t add steps to litigation without it costing more money. If 92% of cases settle, why would you want to add steps?

•    There is gross unfairness in that only the plaintiff has to personally attend the CMCs, not the defendant (who can attend by agent).

•    Reforms such as these which were implemented in England, caused legal fees to increase by "800%"!

To this latter remark was whispered back the call that civil justice reform has been studied to death and that the rules are proportionate to the amount at issue in any particular litigation, using the advent and success of summary trials as an example.

Case management is simply obliging the litigants to agree on a business plan, said the speaker against the resolution. Holding parties to a scheduled process reduces delay and prevents a deep-pocket litigant from running amuck with the rules in order to dry out the other side, adding:

"The problem in Great Britain, was the isolated issue of pre-trial protocols - not the reforms at large".

BC had a mini-reform a few years ago, known to lawyers by the rule number: "51A", which still leaves a bad taste in the mouths of some trial lawyers. One Castlegar lawyer:

"To cater to lay litigants is a disservice as we, technicians of the law. We don’t spend our time in case management nor do we need judges to help us manage our cases."

One oldtimer spoke eloquently:

"This is the most important issue to come before our Society in my 40 years as a member. The mandatory case management (CM) is not just about proportionality or discovery restrictions. It is about the power sought to be conferred on judges and in CM conferences who may amend pleadings without any application by a party or any evidence. It is a naked exercise of judicial discretion.

"I cannot imagine proposals more paternalistic or dictatorial then these.

"Fundamental tenets of our justice system, especially the adversarial system, may become a thing of the past."

You could of heard a pin drop during those remarks and the applause in Vancouver went on for half a minute.

A Canadian Bar Association representative opposed the resolution, something that must of made the CBA uneasy, they most recently humbled by a lost battle for mandatory CBA membership for BC lawyers.

He named-dropped for a few minutes, naming so-and-so, judge this and judge that, members of the "blue ribbon" Task Force members, past and present, while the barristers grew restless and ran for coffee.

"You are being called upon to throw out the civil reform package and start again. Shall we say ‘it’s all for naught’? Who will, then, step forward?"

He quoted the American Trial Lawyers Association as stating that the similar US discovery system is broken and is too expensive.

In concluding on his objection to the resolution, the speaker added:

"The light at the end of the tunnel may be an emerging train."


By 1:47, with Courts in the province resuming in 13 minutes, it was moved that the question be called. That faced opposition and in accordance with the law society rules, a two-thirds vote required, which took a few seconds to resolve by show of hands.

Then, the question was put at 1:48. White voting cards were raised en masse in favour like a Vancouver Canucks playoff game, the final count being 354-57 in favour of the motion.

And the spat was over ... for now.

The attorney general has the final say so the fat lady is warming up.

In the result, the barristers will take to the airwaves and give it their all but if history is any harbinger, there will be discontent in the hallways of justice for years to come.

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