Status of British Columbia’s Courts & Tribunals During COVID-19 Pandemic

Introduction

Extraordinary measures are being taken to control the spread of COVID-19 in courts and administrative tribunals across British Columbia. As this situation continues to progress, we know you will have many questions and concerns. This post summarizes the latest procedural updates from courts and tribunals across the province and will be updated regularly as this situation continues to unfold.

Contents:

1. 1. Supreme Court of British Columbia
   2. Provincial Court of British Columbia
   3. Court of Appeal of British Columbia
   4. Federal Court of Canada
   5. Commissioning of Affidavits
   6. Human Rights Tribunal of British Columbia
   7. Land Title and Survey Authority of British Columbia
   8. Employment Standards Tribunal
   9. Residential Tenancy Branch of British Columbia
   10. Access Pro Bono Society of British Columbia

Supreme Court of British Columbia

I. Suspension of all regular operations

Effective March 19, 2020 and until further notice, all regular operations of the Supreme Court of British Columbia have been suspended at all locations.

II. Adjournment of civil matters

All civil matters scheduled for hearing between March 19, 2020 and May 1, 2020 are adjourned, unless the Court otherwise directs. This automatic adjournment extends to all trials, conferences, and chambers applications or other hearings currently scheduled for hearing before May 1, 2020.

III. Essential and urgent matters to be heard

While regular operations are suspended the Court will hear only essential and urgent matters. The Court has discretion to hear urgent matters other than those listed, and to decline to hear a matter listed. The following matters have been deemed to be essential and urgent proceedings:

a. Matters related to public health and safety and COVID-19, including:

• • orders under the Quarantine Act; and
  • orders under the Public Health Act.

b. Matters where there is a prima facie urgency, including:

• • • refusal of treatment and end of life matters, including applications under the Health Care (Consent) and Care Facility (Admission) Act;
    • detention of individuals, including under the Mental Health Act and the Adult Guardianship Act;
    • emergency adult guardianship and committeeship orders, including under the Adult Guardianship Act and Patients Property Act;
    • housing evictions, including interim stays of orders of possession under the Residential Tenancy Act; civil restraining orders; preservation orders; urgent injunction applications; and urgent orders in the nature of habeas corpus, certiorari, mandamus and prohibition.
    • civil restraining orders;
    • preservation orders;
    • urgent injunction applications; and
    • urgent orders in the nature of habeas corpus, certiorari, mandamus and prohibition.

c. Essential and urgent insolvency matters, including:

• • • • shareholder disputes or oppressive conduct that may require some immediate relief under the CBCA/BCA;
      • an application for an interim and/or final order for an arrangement under the CBCA/BCA;
      • the appointment of a liquidator, receive, interim receiver or receiver-manager under the CBCA/BCA/BIA/Law and Equity Act of BC;
      • an application for a bankruptcy order under the BIA;
      • an application for an initial order under the CCAA or the extension of a stay of proceedings under the CCAA;
      • an application for relief specific to restructuring procedures in a context of proceedings under the BIA or CCAA, such as authorization of a sale of assets, interim financing, claims process orders, adjudication of claims, meeting orders and sanction orders; and
      • a time-sensitive application in a foreclosure proceeding, such as approval of a sale.

IV. Procedures for essential or urgent matters

The Court has established procedures to allow for parties to request the hearing of essential or urgent matters. A judge will first review the applicant’s unfiled materials to determine if a hearing is required. If the judge determines that a hearing is required, the Court will give directions to both the applicant and the respondent(s) to provide filed materials for the hearing. Parties will appear at the hearing by telephone where possible and appropriate or by video where appropriate and available.

V. Limitation periods and filing deadlines

A. Filing timelines under the Supreme Court Rules

Effective March 18, 2020, filing deadlines under the Supreme Court Civil Rules are suspended until May 1, 2020. The suspension of regular operations and adjournment of trials scheduled up to May 1, 2020 necessarily suspends the usual time frames under the Rules for holding Trial Management Conferences, for filing Trial Briefs, and for filing Trial Certificates, as these time frames all count back from the scheduled trial date. Trials scheduled for hearing following May 1, 2020 will also be affected.

B. Filing with the Supreme Court

Effective March 26, 2020, limitation periods and mandatory time periods for the commencement of a civil or family proceeding have been suspended pursuant to Ministerial Order No. M086.

C. Changes to registry services

Courthouse registries are no longer providing in-person services during the suspension of the Court’s regular operations. However, all courthouses will continue to receive documents for any civil matters. Requests for an urgent hearing should, where possible, be made using the online process.

VI. Hearings will be scheduled at seven centralized registries

Hearings of the Supreme Court of British Columbia will only be scheduled at the following seven central locations, unless otherwise ordered by the Court:

• Vancouver Law Courts
• New Westminster
• Victoria
• Kamloops
• Kelowna
• Prince George
• Nanaimo

Hearings will occur by telephone or video where appropriate and available, unless otherwise directed by the Court.

Other registries will continue to receive documents in the manner set out in this notice.

Provincial Court of British Columbia

I. Court closures

Effective March 25, 2020 regular operations of the Provincial Court of British Columbia at all of its locations have been suspended.

II. Small Claims

Small claims settlement conferences and small claims trial conferences scheduled between March 16 and May 16, 2020 will not proceed and parties should not attend court. Parties whose appearances have been adjourned will receive notification by May 4, 2020 regarding the next date they must attend Court.

All non-urgent small claims matters, including trials and Rule 9.1 Simplified Trials, scheduled to proceed between March 18, 2020 and May 16, 2020 are adjourned without the parties having to attend court. Only urgent small claims matters as determined by a judge will be heard by telephone.

Small claims trials that are currently scheduled to continue between March 23 and May 16, 2020 are adjourned and parties will be notified of new dates.

No new non-urgent small claims filings will be accepted by the Provincial Court registries between March 18, 2020 and May 16, 2020. In person filings at all court locations are suspended.

Court of Appeal of British Columbia

The Court of Appeal is limiting its operations effective March 18, 2020 and until further notice.

I. New Appeals and Applications for Leave to Appeal in civil appeals

Effective March 26, 2020 the Minister of Public Safety and Solicitor General issued an order suspending the required time periods to commence civil or family proceedings in the Court of Appeal. These will remain in effect until the state of emergency declared under s. 9(1) of the Emergency Program Act on March 18, 2020 expires or is cancelled.

II. Required Time Periods to Commence Civil or Family Proceedings between March 18, 2020 and March 26, 2020

Any notice of appeal or application for leave to appeal that needed to be filed prior to March 26, 2020 is still subject to the usual timeline to initiate. Ministerial Order No. M086 does not apply to required time periods for commencing civil and family proceedings in the Court of Appeal between March 18, 2020 and March 26, 2020.

III. Existing Appeals and Applications

The filing and service deadlines for all existing appeals, existing applications for leave to appeal, or other existing matters before the Court are suspended and will start to run again beginning May 4, 2020, except for those matters designated as matters that must proceed or unless otherwise directed.

New materials related to existing appeals, existing applications for leave to appeal, or other existing matters must not be filed prior to May 4, 2020, unless the Court has advised that the appeal is a matter that must proceed or unless otherwise directed.

IV. Appeal Hearings and Chambers Applications Currently Scheduled to occur between 18 March 2020 and May 1, 2020

All appeal hearings, chambers applications and other matters currently scheduled to occur between March 18, 2020 and May 1, 2020 are adjourned unless designated as matters that must proceed. For matters that are not designated as matters that must proceed, parties who consent to have their appeal, chambers application, or other matter heard by teleconference or in writing may contact the registrar in writing to request the permission of the Chief Justice, or his delegate, to proceed by alternative means.

Federal Court of Canada

On April 4, 2020, the Federal Court provided an updated Practice direction which supersedes the Practice Direction and Order date March 17, 2020.

I. Extended Suspension Period

All Federal Court hearings previously scheduled to be heard between March 16 and May 15, 2020 (the “Suspension Period”) are being adjourned indefinitely. This includes hearings that were scheduled to proceed by way of a telephone conference.

Likewise, all General Sittings falling within the Suspension Period are cancelled. Matters already made returnable at a General Sittings during that time will be placed on the roll of the first General Sittings that is scheduled to be held at least two weeks after the end of the Suspension Period, for that city.

II. Timelines and Hearings during the Suspension Period

A. Suspension of Timelines

During the Suspension Period, and subject to the caveat and the three exceptions discussed below, the running of all timelines established pursuant to the following instruments is suspended:

• Orders and Directions of the Court made prior to March 16, 2020;
• the Federal Courts Rules;
• the Federal Courts Citizenship, Immigration and Refugee Protection Rules;
• subsection 18.1(2) of the Federal Courts Act;
• subsection 72(2) of the Immigration and Refugee Protection Act; and
• subsection 22.1(2) of the Citizenship Act.

Parties will pick up from where things stood before the Suspension Period, as if the intervening period never existed. A party who requires an extension of a deadline may make an informal request for such extension. Timelines set out in any Orders or Directions issued since (and including) March 16, 2020 remain in effect.

However, deadlines for commencing actions, appeals or applications under other statutes continue to apply and cannot be extended or varied unless permitted under the terms of and in the manner prescribed by those statutes. Parties will be able to request an extension of time for deadlines set out in other applicable statutes if they are unable to meet the filing deadlines in light of current circumstances. However, they should refrain from doing so until after the Suspension Period.

B. Suspension of Hearings

Aside from urgent or exceptional matters, case management hearings and by request of a party, all hearings that had previously been scheduled to take place during the Suspension Period are adjourned indefinitely and all General Sittings are cancelled. Parties are responsible for contacting the Court to request that their matters be placed upon a General Sittings list once the Suspension Period is lifted and General Sittings have resumed.

III. Rescheduling

If, by May 1, 2020, the Court has not extended the Suspension Period beyond May 15, 2020, then parties will need to provide the Judicial Administrator with their mutual dates of non-availability up to December 18, 2020 for the rescheduling of hearings that have been adjourned, or may be adjourned as a result of the Suspension Period. Unless a matter is urgent or otherwise time-sensitive, and subject to the availability of the parties, the scheduling of matters that have been or will be adjourned due to the Suspension Period will be broadly undertaken on a first-in first-out basis.

IV. Adjudication in Writing

During the Suspension Period, the Court will continue to adjudicate motions in writing made pursuant to Rule 369, as well as any other matters that the Court is requested to determine in writing, provided the following conditions are met:

1. All parties consent; and
2. All documents required for the matter to be determined have been or will be filed electronically.

V. Service and Filing of Documents (including affidavits) during suspension period

A. Court Fees

Effective April 6, 2020, for the duration of the Suspension Period, all fees payable on filing or issuance under item 1 of Tariff A of the Federal Courts Rules are waived. With respect to fees relating to a proceeding against the Crown, the statutory filing fee ($2.00) contemplated by section 48 of the Federal Courts Act is to be paid only after registry operations return to normal. In the meantime, the Registry will accept the documents for filing.

B. Electronic Filing

Parties should use the Court’s E-filing portal to file all documents that do not contain confidential information. Parties who are not able to submit documents electronically may contact the Registry.

C. Service of Documents between Parties

A party may serve a document electronically pursuant to the Federal Courts Rules.

D. Timelines for service

Where service of a document that is required to be served personally cannot practicably be effected, parties may apply informally by letter (sent electronically) for an order for substituted service (Rule 136) or to validate service (Rule 147).

E. Commissioning of Affidavits.

Affidavits sworn or affirmed remotely using modes deemed acceptable in any Superior Court of any province will be accepted for filing during the Suspension Period. A scanned version of an affidavit may be accepted for filing, provided that the original version is filed with the Court within two weeks (14 days) of the resumption of its regular operations.

VI. Access to Court during Suspension Period

While Federal Court facilities are closed to members of the general public, the Court remains accessible through electronic means.

Commissioning of Affidavits

Effective March 20, 2020 and until further notice the Court of Appeal for British Columbia, the Supreme Court of British Columbia, the Provincial Court of British Columbia, and the Law Society of British Columbia have made accommodations for the commissioning of affidavits in circumstances where it is not possible or is medically unsafe for the deponent to attend before a commissioner. All three levels of court will follow the same processes for the commissioning of affidavits as outlined below:

1. 1. Any affidavit to be sworn using video technology must contain a paragraph at the end of the body of the affidavit describing that the deponent was not physically present before the commissioner, but was linked with the commissioner utilizing video technology and that the process described below for remote commissioning of affidavits was utilized.
   2. While connected via video technology, the deponent must show the commissioner the front and back of the deponent’s current government-issued photo identification and the commissioner must compare the video image of the deponent and information in the deponent’s government-issued photo identity document to be reasonably satisfied that it is the same person and that the document is valid and current. The commissioner must also take a screenshot of the front and back of the deponent’s government-issued photo identity document and retain it.
   3. The commissioner and the deponent are both required to have a copy of the affidavit, including all exhibits, before each of them while connected via video technology.
   4. The commissioner and the deponent must review each page of the affidavit and exhibits to verify that the pages are identical and if so, must initial each page in the lower right corner.
   5. At the conclusion of the review, the commissioner will administer the oath, the deponent will state what needs to be said to swear or affirm the truth of the facts, and the commissioner must watch the deponent sign his or her name to the affidavit.
   6. The deponent will then send the signed affidavit with exhibits electronically to the commissioner.
   7. Before completing the affidavit, the commissioner must compare each page of the copy received from the deponent against the initialed copy that was before him or her in the video conference and may affix his or her name to the jurat only upon being satisfied that the two copies are identical.
   8. The two copies will then be attached together with a certificate signed by the commissioner stating that the commissioner was satisfied that the process was necessary because it was impossible or unsafe, for medical reasons, for the deponent and the commissioner to be physically present together.
   9. The completed package would then be permitted to be filed.

Human Rights Tribunal of British Columbia

I. 1-Year time limit to file a complaint

If parties are unable to file a complaint within the 1-Year time limit, parties are asked to explain this on their complaint form.

II. Urgent complaints

If Complaints are considered urgent because of COVID-19 or any another reason parties are asked to mention this on the complaint by way of letter or email and to file an application in Form 7.1 – General Application for an Expedited Process.

III. How to file materials

Parties are asked to file materials by mail, fax or email as the reception desk is closed to the public.

IV. Mediations and hearings

Hearing and mediation rooms are currently closed to the public. Parties which have an in-person mediation or hearing in the near future will be contacted by the Tribunal to discuss alternative methods of proceeding.

V. Affidavits

The Tribunal will accept affidavits executed following the process identified by the BC Courts and approved by the Law Society of BC.

Land Title and Survey Authority of British Columbia

Effective March 17, 2020, the Land Title and Survey Authority of British Columbia (LTSA) is restricting access in all Land Title Offices to only its employees, direct access pass holders and Registry Agents until further notice. Land Title Office front counters will be closed but all other office operations will continue as usual. Individuals are asked to do the following electronically:

• file claim of builders lien;
• transmit title to surviving joint tenant; and
• transmit interest to an executor.

For less urgent requests such as changing information on title and changing addresses, applications can be mailed to the LTSA.

I. LTSA guidance on execution requirements

Part 5 of the Land Title Act is prescriptive and sections 42 to 48 require an individual executing an instrument to appear before an officer. However, to maintain social distance and prevent COVID-19 transmission, the Registrar of Land Titles will accept an affidavit of Execution sworn under section 49 of the Land Title Act.

II. Instruments executed and witnessed contemporaneously in counterpart

The Registrar will not be taking issue with instruments that are executed and witnessed contemporaneously in counterpart, where the transferor’s signature is on a different page from that of the officer. If the Registrar requires the applicant to produce the execution copy under section 168.57 of the Land Title Act, having the two signatures on separate pages will not trigger any action against the designate who certified the document.

III. Remote or videoconference witnessing

On March 31, 2020 the British Columbia Land Title and Survey Authority issued Practice Bulletin 01-20 Process for Remote Witnessing of Affidavits for use in Land Title Applications. This practice direction was approved by the Law Society of British Columbia and enables only BC lawyers and notaries who represent the parties to a property transaction to remotely witness affidavits. Lawyer and notaries who choose to remotely witness affidavits must first review the Law Society of British Columbia’s (LSBC) directions on best practices for using video-conferencing when providing legal advice or services, and must incorporate a statement in the jurat of the affidavit confirming this process was used and the best practices were followed.

In order to comply with the practice bulletin, the LTSA has set out the following requirements:

1. 1. 1. Any affidavit to be sworn using video technology must incorporate a statement into the jurat describing that the deponent was not physically present before the lawyer or notary public, but was linked with the lawyer or notary public utilizing video technology, that the process described below for remote commissioning of affidavits was utilized and that the lawyer or notary complied with the Law Society of British Columbia best practices for using video-conferencing when providing legal advice or services issued by the Law Society of BC.
      2. While connected via video technology, the deponent must show the lawyer or notary public the front and back of the deponent’s current provincial or federal government-issued photo identification. The lawyer or notary public must compare the video image of the deponent and information in the deponent’s government-issued photo identity document to be reasonably satisfied that it is the same person and that the document is valid and current. The lawyer or notary public must also take a screenshot of the front and back of the deponent’s government-issued photo identity document and retain it.
      3. The lawyer or notary public and the deponent are both required to have a copy of the affidavit, including all exhibits, before each of them while connected via video technology.
      4. The lawyer or notary public and the deponent must review each page of the affidavit and exhibits to verify that the pages are identical and if so, must initial each page in the lower right corner.
      5. At the conclusion of the review, the lawyer or notary public will administer the oath, the deponent will state what needs to be said to swear or affirm the truth of the facts, and the lawyer or notary public must watch the deponent sign his or her name to the affidavit.
      6. The deponent will then send the signed affidavit with exhibits electronically to the lawyer or notary public.
      7. Before completing the affidavit, the lawyer or notary public must compare each page of the copy received from the deponent against the initialed copy that was before him or her in the video conference and may affix his or her name to the jurat only upon being satisfied that the two copies are identical.
      8. The two copies will then be attached together with a certificate signed by the lawyer or notary public stating that the lawyer or notary public was satisfied that the process was necessary because it was impossible or unsafe, for COVID-19 medical reasons, for the deponent and the lawyer or notary public to be physically present together.
      9. The completed affidavit would then be permitted to be submitted to the land title office with the rest of the land title package.

    

Employment Standards Tribunal of British Columbia

Staff of the Employment Standards Tribunal are primarily working remotely and there are no in person meetings taking place until further notice.

Residential Tenancy Branch of British Columbia

I. Options for filing applications and evidence

While both Service BC and the Residential Tenancy Branch (RTB) offices are currently open, parties are encouraged to file applications and evidence online.

Parties are expected to make reasonable efforts to file applications within the timelines set out in the legislation. For documents that cannot be filed online, parties are asked to email these documents. There are certain time limits the Director cannot extend and parties are asked to refer Policy Guideline 36: Extending a Time Period.

II. Options for serving applications and evidence

Service of documents in person is suspended. All other existing methods of service remain available. A Director’s Order has been issued for the length of the state of emergency allowing parties to use email to give or serve documents in order to minimize interactions between people.

III. Missing time limits set out by the Act or Rules of Procedure

The Director will consider the circumstances and impacts of COVID-19 for parties who are unable to meet the time limits set out in the Residential Tenancy Act or Rules of Procedure when deciding whether to grant an order extending a time limit or adjourning a proceeding. Where there is authority to extend time limits, arbitrators are directed to consider the COVID-19 pandemic as an exceptional circumstance.

A party will need to provide a reasonable explanation why they or someone on their behalf was unable to file an application within the legislated timelines. If a party does so, arbitrators should exercise their discretion to ensure a party affected by COVID-19 is not prejudiced. Arbitrators will also consider circumstances, set out in the practice directive, when deciding whether to accept evidence that has been filed outside of the time-frames of the Rules of Procedure.

IV. Adjournments

There may be circumstances where parties agree an adjournment is necessary. Parties can consent to rescheduling a hearing if they file written consent with the RTB not less than three days prior to the hearing.

If parties cannot consent to rescheduling the matter, arbitrators may adjourn a hearing to another date. Where parties have consented to reschedule a hearing, but consent is received less than 3 days before the hearing, both parties must phone in to the hearing. If a party is unable to phone into the hearing themselves, they may have someone call into the teleconference hearing on their behalf to request the adjournment. The arbitrator may grant an adjournment at the time of the hearing if the parties are impacted by COVID-19. Arbitrators are directed to consider the COVID-19 pandemic as a factor that is beyond the party’s control when determining if an adjournment is appropriate.

Access Pro Bono Society of British Columbia

Effective March 16, 2020, Access Pro Bono is in the process of moving nearly all services from in-person delivery to telephone and online delivery. The court-based Civil Chambers Program is being shut-down indefinitely. Other representation services are continuing for the time-being depending upon the willingness and availability of volunteer lawyers and the availability of court and tribunal resources.

Read more EKB Updates about the legal implications of COVID-19 and the impact on business in British Columbia.