Orders of the Day

Hon. M. Farnworth: I call committee stage, Bill 11.

Committee of the Whole House

BILL 11 — COURT OF APPEAL ACT

The House in Committee of the Whole on Bill 11; S. Chandra Herbert in the chair.

The committee met at 2:43 p.m.

On clause 1.

M. de Jong: Here’s what I was going to propose for the purpose of the discussion this afternoon. I’ve got a series of sort of general questions about how the act came into being. I don’t actually anticipate a lot of time being spent. There will be a few questions on some of the sections after that, but if the Attorney is agreeable, I’ll propose to lump some of these general questions into section 1, and then we can move beyond that.

[2:45 p.m.]

The first question. Because of the uniqueness of the bill, dealing as it is with this third very independent branch of governance, the judiciary, I thought it worthwhile for the Attorney to put on the record just a general description of the process — he touched on some of this in second reading remarks — that was followed in terms of the bill coming together — there was obviously a white paper — and particularly the interaction that would have occurred between the executive branch, his ministry and the judiciary, leading to the statutory product we have before us.

Hon. D. Eby: I can advise the member that the road to this act arriving in front of us was a long and…. Not particularly winding, but it was a long one.

There were two significant public consultations that occurred in relation to the Court of Appeal Act. The first one — the member would have been in executive council at that time — was in 2015-2016. The Court of Appeal invited members of the public and the profession to identify needs and suggestions to make court procedure and process more user-centred, efficient and effective. That consultation resulted in a decision to move forward with revisions to the act. That was the original engagement, done under the B.C. Liberal government.

The second public consultation period took place in 2019 and provided members of the public an opportunity to comment on the revised act, rules and forms. This public consultation was held for a six-week period from October 25, 2019, to December 6, 2019. That was done through the govTogetherBC website.

There were letters sent to a number of stakeholders to draw their attention to the consultation. Letters went to the Canadian Bar Association, B.C. branch; Law Society of B.C.; Trial Lawyers Association of B.C.; Justice Canada, B.C. regional office; Ministry of Attorney General, legal services branch; Access Pro Bono Society B.C.; Justice Education Society; justice access centre; First Nations Justice Council; Métis Nation B.C. leadership circle; Native Courtworker and Counselling Association of B.C.; Access to Justice B.C.; and the National Self-Represented Litigants Project. That resulted in feedback that informed changes to the revised act and which will also inform changes to the revised rules and court forms.

Specifically to Indigenous communities, ministry staff presented at the First Nations Justice Council, Métis Nation B.C. leadership circle meetings in fall 2019. Invitation letters advising of that consultation were sent to First Nations Justice Council, Métis Nation B.C. leadership circle and Native Courtworker and Counselling Association of B.C. We received feedback from a number of these organizations. I can go into detail if the member is interested.

As part of that consultation process…. The member referred to a white paper that was provided, and it included a proposed draft of the act. It wasn’t conducted in a vacuum. The feedback was provided in relation to that white paper. I understand that that may be of some interest to the member, as well, in terms of changes between the white paper and the version that’s in front of us today. I’ll leave it at that and await his next question.

M. de Jong: That’s helpful. I can advise the Attorney that at a certain point in this initial conversation, my colleague from Skeena may have some more specific questions about the level of engagement that took place with the First Nations Justice Council and the Métis leadership council.

If I could just back up for a moment. With one exception, the level of consultation, or the manner in which consultation takes place here, would not be that different than in any other piece of legislation. To cut to the chase, I can put this to the Attorney, and maybe he can determine the best way to provide the committee of the House with the level of comfort — I think he’ll understand — I’m trying to secure on the record.

[2:50 p.m.]

The court itself, which this act proposes to continue and delineate powers and jurisdiction to, is precluded from providing the same kind of public commentary that other stakeholders would historically be in a position to make, whether they made it through a consultation exercise like the one described by the minister or chose to speak out in other forums.

That’s not an avenue open to the court itself. My understanding — and I’ll be really direct with the Attorney — is that the court is relatively content and sees the act as an appropriate continuation and replacement for the existing act that it seeks to replace. But is there a way for the Attorney to signal to this committee and to the House that that is so? That the court itself has had an opportunity to review — I think it has — and that it has signalled that it believes the proposed legislation, Bill 11, is appropriate and workable going forward?

Hon. D. Eby: I do understand the context of the member’s question, given that the courts are, as he rightly noted in his second reading speech, the third branch of governance in our province. I appreciate that nuance in his speech. I’ll use it going forward, even if it may not be with the total approval of the court.

One thing that does…. I do not presume to speak for the court, but I can advise the member that the court has been very involved in this process. The Court of Appeal has an internal Court of Appeal rules and practice committee. The mandate of that committee is to review, enhance and simplify the practice and procedure of the court. They meet regularly, throughout the year, to discuss proposals by the justices of the court, the registrar, lawyers and the public for amendments to the Court of Appeal Act, the Court of Appeal rules and the Court of Appeal criminal appeal rules.

The committee consults with members of the bar and other organizations such as the Canadian Bar Association, many of them that I’d list — I won’t go through all of them — when there is a proposal that would significantly change the court’s practice and procedure. The members of this committee are obviously the Chief Justice, Chief Justice Bauman; Hon. Madam Justice MacKenzie; Justice Harris; Justice Goepel; Justice Finch; Justice Fisher; the registrar; and two legal counsel that are in-house with the court, Sally Rudolf and Shirley Smiley.

To the member’s question, that committee was consulted throughout the legislative drafting process and had the opportunity to provide comment on the proposed amendments to the act. The member may recall from a 2013 MOU between the then Attorney General and the chief justices and the chief judge of our various courts in the province that the Attorney General must consult with the courts for any initiatives that may affect judicial administration.

These amendments that are in front of the House today were developed in close consultation with the Court of Appeal and within the framework of the MOU. In accordance with the MOU, the chief justice of the Supreme Court and the chief judge of the Provincial Court were also consulted. Any concerns raised by the courts were, to the best of our knowledge, addressed.

M. de Jong: That, too, is helpful and, I think, worthwhile to have been placed on the record, including the reference to the MOU that guides the delicate relationship that exists between the executive branch and the judicial branch.

I’d like, in a few moments, to come back to the draft rules, insofar as a key part of this legislative initiative is to re-organize the act versus the rules. I’ll be interested to pose a few questions about how, going forward, the rules and practice committee will be engaged, assuming it will — and I think it will — with respect to the rules.

[2:55 p.m.]

Before we get to that, however, can I ask the Attorney to confirm that specific responses were received from the Law Society of British Columbia and to what extent, if at all, there were concerns expressed by the draft legislation, Bill 11, before us?

Hon. D. Eby: We did have one letter from a lawyer associated with the Law Society of B.C., but it indicated that those were personal views and not those of the society as a whole. The society as a whole did not provide any feedback to us that we received. We did receive feedback from the Canadian Bar Association, B.C., appellate advocacy section; DOJ Canada, B.C. regional office; and a number of lawyers and members of the public.

Some of the feedback we received from CBABC and the DOJ was positive feedback about the focus and reorganization of the act and the rules, the filling of procedural and technical gaps that can confuse counsel and self-represented litigants. They appreciated the streamlining of procedures, the incorporating of practice directives and using more plain language. They proposed amendments to empower a single justice to make a number of different orders, sitting as a case management judge.

General support of the changes was indicated from the correspondence received from lawyers or groups of lawyers, with notable comments being appreciation of the increase in the use of case management, greater involvement of the registrar, improvement to the forms and a clarification in a number of identified existing ambiguities.

M. de Jong: In the list of agencies that the Attorney General read off who have provided feedback, did I hear him refer to the Trial Lawyers Association as well? Were they included in that list?

Hon. D. Eby: They were invited to provide feedback, but I don’t believe we received any feedback from them on the rule amendments.

M. de Jong: I’ll refer back, as I did in second reading, to the briefing that the minister and the ministry kindly provided. I won’t ask the minister to, at this point, go through, chapter and verse, the changes, because some of them are quite minor.

This is more of a thematic question for the Attorney General that he has, in part, touched upon with his earlier comment. But in general, if we were to take the draft bill that was attached to the white paper and hold it next to Bill 11, where, if at all, would we see any significant departures, substantive departures?

Hon. D. Eby: As the member notes, there was a white paper provided in the second round of public consultations, the 2019 consultation, which included a proposed draft of the act. The member is right that there were some very minor changes, but there were some more significant changes.

I’ll go through the highlights, but there were changes made to over 30 sections of the proposed draft of the act or clauses of this bill that’s in front of the House — actually, 38, to be exact. Many of these were refinements to wording or placement of punctuation to clarify ambiguities identified during and since the consultation.

The more notable sections that were added and modified include clause 1 of the bill that’s in front of us. That’s the interpretation clause. It was renamed from the white paper to interpretation. The definitions for “appellant” and “party” were clarified from the version that was in the white paper. Subclause (2) was added to disapply section 5 of the Offence Act, which is a current drafting convention.

[3:00 p.m.]

Subclause 13(3), concerning appellate jurisdiction, was clarified to preserve the possibility of seeking leave to appeal to match the existing subsection 6(2) of the act. So it’s different from the white paper in that regard.

Clause 20, related to preliminary objections. It is intentional to have the justice quash an appeal if the justice believes an appeal is so devoid of merit that it amounts to abuse of process, but only the court may dismiss an appeal for the purpose of giving effect to a preliminary objection.

Clause 21 was modified from the white paper. This concerns referral to the court for summary determination. This was an addition that was welcomed by CBABC and DOJ Canada, because they both suggested removing “significantly irregular” from the original version, as an appeal may be irregular but still have merit and the court would still want to proceed with it.

Clause 26 concerns limiting hearings and requiring preparation of written arguments. I wasn’t there, but I suspect this may have been informed a bit by COVID. The ability to conduct hearings by telephone, video conference or other means of telecommunications was added to maximize clarity of the court’s powers to proceed remotely.

Clause 5 was modified to preserve flexibility for members of the court to appear remotely and is consistent with subsection 9(2) of the Supreme Court Act. The member will see some differences from the white paper there.

Under clause 30, the general powers of a justice, modifications were made to sub (a), sub (d) and sub (i). Some were minor edits to wording to ensure consistency of language. Sub 30(d) was changed to clearly indicate that “the purposes of a matter that is to be decided by a justice,” applies to both sub 30(d)(i) and 30(d)(ii).

Clause 35 was changed from the white paper. This concerns varying orders of a justice or registrar. It was re­phrased to avoid ambiguity and clearly indicate that the “material change in circumstances” threshold applies to both clauses 33 and 34, because in the white paper it was not as clear as everyone wished it to be.

Clause 45, in relation to powers of court or a justice in relation to costs. This was raised by counsel, who provided feedback. The phrase “the court or” was added before “justice considers appropriate” to clearly indicate that the power should be to the court and a justice.

Clause 51 varies from the…. This is the last one. I don’t know if this is maybe a bit more micro than the member hoped. Clause 51 was the last of the significant departures from the white paper. It’s the transition, regulations section.

A clause was added to ensure there is sufficient authority for the Lieutenant-Governor-in-Council to be able to provide that the new Court of Appeal rules have retrospective application to appeals that commenced before the new act and rules come into force. This clause provides explicit authority for the LGIC to, in repealing and replacing the Court of Appeal rules, apply the new Court of Appeal’s to existing appeals, which, of course, is only something that would happen following engagement with the court.

M. de Jong: Thank you to the Attorney.

I mentioned a few moments ago, on the question of the consultative work that took place, that my colleague will have a couple of questions relating to the First Nations Justice Council and the leadership council. I’m just going to introduce the topic by asking this and trying to be forthright with the Attorney, so he knows where I’m coming at this from.

[3:05 p.m.]

Since the passage of Bill 41, I guess, over a year ago now, and the incorporation of the United Nations declaration, the Attorney will have noted that the official opposition in this House has been trying to ascertain what the triggering point is, or the test, in the minds of the government, for engagement and consultation around proposed pieces of legislation.

Now, in this case, the Attorney has already indicated that there was consultation work that took place. My colleague will pursue that. I’m interested, in a general way, as to whether the Attorney can offer a more definitive articulation of what kinds of pieces of legislation trigger that obligation in the minds of the government.

Again, I don’t want to unnecessarily belabour the discussion, but here’s the starting point. When we had the discussion around Bill 41, the Attorney’s then colleague, in response to a question I posed to him, said that that obligation exists for all legislation, including laws of general application with no specific reference to First Nations, Aboriginal, Indigenous peoples. Since then, colleagues of mine have posed questions to other ministers, whose responses have been: “Well, the piece of legislation being considered was not of particular concern. There was nothing unique about that legislation that attracted or engaged the attention of First Nations, so there was no consultation that took place.”

I’m curious to know whether the Attorney can offer to the committee and the House a clearer enunciation of when it is, with respect to proposed pieces of legislation, that that obligation and the obligations under the Bill 41 are triggered.

Hon. D. Eby: I can advise the member that from my own perspective, given the importance of the courts in our province to holding government accountable to the rule of law and as a critical branch of governance in our province independent of government, to me, it made a lot of sense that we would engage directly with Indigenous organizations about this act.

I can also share — it’s my belief, anyway — that through his actions and leadership in the court, Chief Justice Bauman would expect no less from government before we put a piece of legislation like this in front of the House — that Indigenous organizations were, indeed, consulted and meaningfully consulted.

That is why the ministry staff on this file presented at the First Nations Justice Council and Métis Nation B.C. leadership circle meetings in the fall of 2019. In advance of those presentations, letters were sent to the First Nations Justice Council, Métis Nation B.C. leadership circle and Native Courtworker and Counselling Association of B.C. so they could be assured of the opportunity to invite members and those who were interested in this bill or in this consultation process to their membership so that they could attend and hear about it and understand it and provide feedback to government.

This was, to me, quite a straightforward matter and not one requiring the application of an onerous test or a legal test of some kind.

M. de Jong: Rest assured, the Attorney will get no argument from me about the conclusion he came to. I think it was, in the context and certainly in the aftermath of Bill 41, the right conclusion.

I was more interested, though, in the first part of…. Well, that’s not true. I was interested in everything the Attorney said. But where he said: “I, as the Attorney General, came to the conclusion that this was something of paramount interest.” I’m now paraphrasing, but he concluded it was entirely appropriate for the following reasons.

[3:10 p.m.]

Is that the process? Is it for the sponsoring minister to make a determination? Because we’ve heard from other ministers who have said that, in other circumstances, they came to a different conclusion.

I’m not arguing with the conclusion the Attorney came to in this instance. I think it was the correct one. But it does suggest that the determination is left to individual ministers. Is that a correct assumption for me to make?

Hon. D. Eby: The decision to engage Indigenous leadership groups in relation to this bill is certainly made in the context of our commitments under UNDRIP and, my understanding, as best as possible, those provisions, given the fact that we’re one of the first jurisdictions in the world to adopt this kind of legislation and to make these kinds of commitments.

It was my understanding that for my obligations, both through my mandate letter, directed by the Premier, to engage Indigenous organizations in the work that we do in the justice system, and our commitments under UNDRIP, that this bill required that work to happen.

E. Ross: Following up on my colleague’s comments, regarding the consultation regarding Bill 11. It goes back to the idea of the latest legislation regarding Bill 41, Declaration on the Rights of Indigenous Peoples Act.

To be fair, when we were debating this back in 2017, in estimates and the UNDRIP bill itself, I did get some broad, general answers that didn’t actually answer the question that I was asking. The only answer I really got was from the Attorney General, who at the end of his comments said that the issues would be viewed, under UNDRIP, through the lens of section 35. That was the only comment that I heard through estimates, from all of the different ministers, that made any sense.

That’s what I was looking for, trying to reconcile section 35, with all of its case law — 300 court cases and counting, I guess — with a broad, general statement that came from the United Nations.

In terms of the consultation, normally this type of bill would have been adequate to consult the organization you refer to, which is the Justice Council, normally. As chief councillor back in my band, if I ever heard about this happening, it wouldn’t have occurred to me to stand up and protect my rights and title, especially the consultation and accommodation of it. But this is all changed with the NDP government’s introduction of Bill 41.

I’m not really trying to redefine any of these clauses, but I just want to know: how does the government decide — this is a follow-up to my colleague’s question — on which bills to consult First Nations with? How do they decide which body they consult and accommodate with, in terms of these types of legislations?

Hon. D. Eby: It may assist the member to understand what my thinking was about why this bill required consultation.

I see what the Chief Justice of the Court of Appeal has done around reaching out to Indigenous people and leadership organizations across the province in the work of the court, the leadership that he and his staff have shown on this important matter.

[3:15 p.m.]

I know our own government recognizes the importance of the courts as an independent branch of government that holds us accountable to the rule of law — that includes in relation to rights and title cases, but every aspect of the law that affects all British Columbians, including Indigenous people.

I know of our commitments that we made, whether explicit in the act or otherwise, through adopting UNDRIP. I say “otherwise” not in the sense that there’s some sort of secret unwritten piece. The commitment that was spoken — not unspoken — in the adoption of that act was a commitment to work with Indigenous people and to work in partnership. So when we’re talking about reforms to a branch of government in the province, in the spirit of UNDRIP and the spirit with which we adopted that legislation, it just didn’t seem to me to be controversial or particularly thought-provoking about whether we would do this.

The question turned to, really, how we would do it most effectively. I think that’s something that is still evolving. How do we engage with Indigenous people in this province around matters like the Court of Appeal Act? Is it sufficient to engage with the groups that I listed? Should we be doing more? This is an ongoing conversation. It’s an evolving conversation as we work through this in partnership with Indigenous people in the province.

E. Ross: That’s quite troubling to hear that this is an evolving process, because according to the bill, the government actually commits to working with the Indigenous governing body. Under the definitions of Bill 41, the NDP government’s own bill: “‘Indigenous governing body’ means an entity that is authorized to act on behalf of Indigenous peoples that hold rights recognized and affirmed by section 35 of the Constitution Act, 1982.”

The Justice Council, the Assembly of First Nations, the Union of B.C. Indian Chiefs don’t hold rights and title. Rights and title are held on behalf of communities. If you’re going to consult — and this does lead to the bill that we’re talking about today — on Aboriginal rights and title issues or issues related to rights and title, it only stands to reason that the government consults rights and title holders.

I’m just trying to reconcile what the government said when they introduced UNDRIP and how they reconciled that with the case law in section 35 of the constitution.

I want to know if the Attorney General…. I’ve heard him say before: “It’s my opinion” or “It’s my perspective.” I’m really asking: does the government have any intention of living up to its own promises within Bill 41 in relation to consultation with the rights and title holders of B.C., in terms of First Nations?

Hon. D. Eby: I understand the member is taking the position that the engagement in consultation was not adequate. This is, to my mind, not a partisan issue.

If the member has suggestions on how government can better engage on these questions, I’d love to hear his suggestions, especially given his experience and leadership roles in the Indigenous communities in British Columbia. I think his insights would be invaluable.

I have no hesitation, no compunction, about putting the bill in front of the House. I feel we’ve discharged our responsibilities around engagement with Indigenous people in the province. But I always think that there’s opportunity for us to do better, so I’d be glad to hear feedback that he had.

E. Ross: I can tell you how to consult with First Nations rights and title holders, and that’s basically to go sit down with those rights and title holders in B.C., the leaders of the communities that hold rights and title. The Justice Council does not hold rights and title.

[3:20 p.m.]

The Attorney General says that he feels it’s adequate, that they did enough consultation around B.C. with First Nations leaders. That is not what I heard. In fact, when we were talking with ministers in this House, every minister has basically said something other than consulting with First Nation rights and title holders. On some occasions, some ministers got up and said: “This doesn’t even relate to rights and title, so therefore, we didn’t see any duty to consult.”

Well, previous to Bill 41 being introduced, that was probably true. But the NDP government has actually raised the standards of consultation to a level where I don’t think they understand, truly, what it means. There are 203 bands in B.C. that hold rights and title. Now, if the Attorney General is saying that there was some form, directly with these 203 bands, to consult on this bill, then I applaud the Attorney General. But if it was just one-stop shopping through the justice council, the leadership council or the AFN, in terms of addressing rights and title, not only have you not abided by case law set out under section 35 of the constitution, but you haven’t actually abided by your own bill.

The advice, I guess, that you’re looking for, through my extensive experience, is, basically, that the government could at least try to understand its own bill and the high standards set and really speak to the consultation and accommodation that this government aspires to.

Hon. D. Eby: The answer is yes. I will continue to try to do my best to work in partnership with Indigenous organizations and uphold both the spirit and the letter of our own law, as well as our intentions around our relationship with Indigenous Peoples. I thank the member for his feedback.

E. Ross: Thank you to the Attorney General. I’ll get off that topic. I don’t think I got the answer.

In terms of the rights and title impact here, without Bill 41, the Declaration on the Rights of Indigenous Peoples Act, I don’t think this would have stirred any interest from me as a chief councillor. Bill 41 has changed that, and this does. I’ve been in this House when I’ve heard ministers say that there’s some legislation that doesn’t affect rights and title. So the government made their own decision, without talking to anybody, to say that they would not consult Aboriginals on the legislation, even though UNDRIP says that every single piece of legislation will be aligned with UNDRIP and that all of the laws in B.C., for that matter, will be aligned with UNDRIP.

I won’t be here for the next 50 years. I won’t be here for the day when that’s accomplished. But in terms of this bill we’re talking about here today, Bill 11, the Court of Appeal Act, this does affect rights and title, because the Court of Appeal is just one of the stops that B.C. First Nation rights and title holders actually fight in to get their rights and title recognized. Any technicality, any misunderstanding of the procedures, costs a lot of money and takes a lot of time. Those two concepts are inseparable when it comes to First Nations going through the courts to fight for what’s promised to them in section 35 of the constitution, as well as now with Bill 41.

My question to the Attorney General: in your consultations, was there any feedback given as to the amount of time and money it would take for First Nations to understand this, in preparation for their own court cases that might end up in the Court of Appeal?

Hon. D. Eby: I’m sure the member understands the challenge of the government purporting to go and educate First Nations about how to prepare their cases to go to the Court of Appeal. That is something that would never happen, for several different reasons.

[3:25 p.m.]

I must be misunderstanding what he was suggesting. It may be that what he’s suggesting is what we actually did — that is, do a presentation about the proposed changes to the act; invite, as broadly as we could, Indigenous people from across the province that may be interested in this to come and hear about the proposed changes and provide feedback; and incorporate that feedback into the final product.

I heard something slightly different in his question. I will, with respect, draw a line, and an important right line, between a nation that wants to use the court system to have its rights and title recognized and the role of government. The courts are a neutral arbitrator between the parties, whoever they may be, when they’re on appeal. For one party to go to the other party and purport to tell them how to bring their case forward would not be something that could work.

If the member is raising a separate issue, and one that I am inclined to agree with him about…. That is that court processes for recognition of rights and title are lengthy, expensive and not ideal. They’re artificially — and intentionally artificially — adverse in structure and colonial in structure. I’m inclined to agree with all those things.

Part of the bill that he raised questions about, about UNDRIP, is trying to find different ways of working together in the province on really tough and difficult questions like rights and title, where there are overlapping claims or other challenges, and less fraught disputes. How do we work together around what environmental assessment looks like in the province? How do we ensure that we’re operating as a government in a way that’s respectful of the fact that Indigenous people have been here since time immemorial?

I don’t pretend to have all the answers, and I don’t know that anybody here does. But we’re trying to set a path — where we want to go, how we want to get there. For this bill that’s in front of the House today, that involved specific engagement with Indigenous people in the province.

E. Ross: I guess we agree to disagree. The government did not work with First Nations leaders around the province. They worked with the justice council.

[N. Letnick in the chair.]

I’ve already pointed out that the justice council, as put together by the founding organizations themselves, does not have rights and title. My point is that in the court system, it’s already complicated enough without arguing UNDRIP, without the changes that are proposed in Bill 11.

I mean, one technicality that was highlighted in the Tŝilhqot’in title case basically lost that Tŝilhqot’in case in terms of the pleading. One technicality. So the First Nation has to go and recalibrate, fix that flaw in their pleadings, and they’ve got to go back, and they’ve got to do it again.

First Nations have learned how to navigate their way through the court system to address Aboriginal rights and title. Nuu-chah-nulth is the latest one.

The first part of my question has been answered, in terms that the B.C. government did not consult with rights and title holders. They consulted with the justice council. What I wanted to know was: were the changes that are proposed through Bill 11 communicated in a way that would explain to First Nations that you might have to reconsider your arguments in terms of the technicalities that might pop up arising from Bill 11?

[3:30 p.m.]

Hon. D. Eby: Thanks to the member for his patience. I had a bit of a back-and-forth with staff.

We’re just not aware of a section in here that would require a nation to redraft argument on an appeal. These are rules about how the proceedings go in the court or what the forms look like that people fill out. But no such notice was given, because there’s just really no understanding of how this bill would affect that.

I would invite the member, although I suspect his concern is sort of more general…. Is there a section that would require arguments to be rewritten, in which case, have you provided notice? My answer would be: none that I’m aware of. If he does have a specific section he has identified that he’s concerned about that would require redrafting of arguments or would cause a litigant to face, as he describes it, a technicality that would prevent them from arguing their case, I would encourage him to point it out.

I would also add that the intention of the bill — and the member will have seen this — compared with the old act, is that it’s in what some people might call just plain language now, as opposed to what is also sometimes called legalese. Under the old act, there were practice directions. There was the act itself and the rules. The way to negotiate your way through the Court of Appeal was to work through several different documents of varying levels of accessibility. This bill puts it into a language that we hope a self-represented litigant can understand, someone who’s just in court by themselves, without a lawyer.

[3:35 p.m.]

An example of that. It used to be you had to choose between two different forms to start your appeal, and it caused a great deal of confusion and concern. “Should I use form 7? Should I use this other form?” Now there’s just one form to start your appeal. You just check a box if you think that you have a right to appeal or you think you don’t have a right to appeal and you’re seeking leave of the court. You don’t even have to be 100 percent right about that, because the court has discretion, even when people are confused when they’re filling out the form.

The intent of this is actually not to increase the technicalities but to reduce them and to make it easier for people to get in front of the court if they don’t have a lawyer. There is no provision in the bill — that we’re aware of — that would cause a party to need to redraft arguments that they had prepared already or that they were in the process of preparing under the existing act.

E. Ross: This is the complication of two topic areas. One is Aboriginal rights and title, which is complicated enough. Then we’re trying to match it up with the vague generality of Bill 41 of 2019.

For the most part, I’m just trying to figure out whether or not the government is actually going to live up to its promises that they made in Bill 41. So far, the answer is no, with the legislation that we’ve seen presented here in this session.

One final point here in terms of the consultation. We know the government does not want to consult with the rights and title holders. They would prefer to consult with Indigenous organizations that don’t have rights and title. Yet the government is actually breaching its own bill, Bill 41, on the UNDRIP.

What I’ll leave this House with is that basically, when we’re talking about the consultation with true rights and title holders, the Attorney General mentioned the justice council. My point was, one: is the government living up to its own commitments in terms of consulting First Nations on every single piece of legislation that passes through this House? The answer is no. The second one is that the Crown, the government, is actually going to representative — and I use that word loosely — organizations to get that check box of consultation.

The justice council. Who they are, who the justice council is and what they do…. They “challenge approaches that contribute to the growing overrepresentation of First Nations children and youth in the care of government and First Nations men and women in incarceration.” They also “productively engage with the government to advance effective strategies that can achieve better outcomes for Indigenous people in the justice system.” There’s no mention of rights and title.

Not in this bill specifically but in every single bill so far, the government has admitted they have not consulted with rights and title holders. Not only are they breaching the case law under section 35 of the Constitution of Canada; they’re breaching their own UNDRIP bill, including article 40. It says: “Indigenous peoples have the right to access to and prompt decision through just and fair procedures for the resolution of conflicts and disputes with States or other parties, as well as to effective remedies for all infringements of their individual and collective rights.”

My only point was…. Two points. One is that government made a commitment to consult First Nation title holders on every single piece of legislation that passes through this House. They’re not doing it. Two was that if the idea is reconciliation, then procedural changes to something like the Court of Appeal Act do matter. They will matter to Nuchatlaht, coming up in the title court case.

My only point was: has this been communicated to the true rights and title holders?

Hon. D. Eby: I was just trying to figure out if it was a rhetorical question at the end of his closing remarks or if he was asking the same question again.

[3:40 p.m.]

I’ve run through who we engaged with several times now. The member has communicated quite clearly that he disagrees with the sufficiency of that. I appreciate his clarification about what he feels government should have done. It’s what I asked for, and I appreciate him sharing that with me. I will definitely take his comments under advisement and reflect on them about how we can do a better job.

M. de Jong: I’ll just pose one last question, by way of summary, deriving from the exchange that we have just heard in the committee between the Attorney and my colleague from Skeena, who asserts to the Attorney that, yes, there is clearly an obligation to consult, which derives from a variety of sources, including an enhanced requirement to consult, out of Bill 41. My colleague asserts that despite the work that the Attorney has referred to, the obligation that arises out of Bill 41 and the UN declaration requires consultation with specific groups — those that hold rights and title.

My understanding from the exchange is that the Attorney believes, notwithstanding those remarks, that he and the government have discharged their obligations sufficiently under Bill 41 and the declaration. Is that correct?

Hon. D. Eby: I can advise the member — as I did his colleague and as I did, I think, advise him before we started down this line of questioning: I would not have brought the bill to the House if I thought we had not discharged our responsibilities in terms of engaging Indigenous People in the province in relation to this bill. Its existence here, I’ll advise the member, is consistent with my belief that we had to discharge that responsibility. But I want to put a caveat on that and say: I always think we can do better.

I invited the member for Skeena to provide his feedback on where he thought we should be going and what we should be doing better. I heard him on that. I take that under advisement, and I take it seriously. It doesn’t mean that I’m pulling the bill, but it does mean that there’s always opportunity for us to do better and to learn how to work better. I take his comments in the spirit that I assume they were intended, which is a constructive criticism of how to ensure we’re meeting our stated obligations.

M. de Jong: I wonder, now, if we can turn — again, within the context of Bill 1 on these general matters — to the rules. As the Attorney has pointed out, we’ve got a bill that empowers the court and provides it with jurisdiction and then rules that provide for its operation. Part of the intent of this exercise was to clearly delineate between the two.

The rules and practice committee. The Attorney went through membership on that committee, the chief justices of the various courts. I can’t recall if he mentioned representation from the Ministry of Attorney General.

If we think about this going forward, when Bill 11 has been proclaimed and we are some time down the road — the evolution of court processes is never-ending — how does that function in practice? Where does the impetus for changes to the rules come? Does it come from the ministry? Does it come from the court? Does it come from both? How does that operate?

[3:45 p.m.]

Hon. D. Eby: The member is right in recalling when I recited the members, current to 2019, of the Court of Appeal Rules and Practice Committee. There is not a member or representative of the Ministry of Attorney General on that committee. It is distinct and different from the Supreme Court’s rules committee and a different process.

The way, I’m advised by staff, that it works is: either the court will reach out to government and request or suggest changes to the rules or the act, or vice versa. That will initiate the conversation between the Court of Appeal Rules and Practice Committee and government. Then, in partnership, amendments to legislation or to the rules are brought forward. It is a different process from the Supreme Court process, but it’s one that has worked well for us and, I’m hopeful, for the court as well.

M. de Jong: Where does the rules and practice committee derive its form and authority from? I must confess. It isn’t a question I’ve thought about until this bill hit the floor. Is it a function? I’m sure there has been one for many, many years, if not decades. Is it most recently a function of the MOU? Is it a creature of the chief justice? Is there an OIC underpinning for it? I’m just not sure.

Hon. D. Eby: I’m advised that the authority for the committee derives from the authority of the Chief Justice of the Court of Appeal. As chief justice for British Columbia, it is his working group. I would assume that the basis for its authority is that the chief justice gives it authority. We’re not aware of a statutory basis for the existence of the committee, nor are we involved in the selection of the members or its operations as government.

M. de Jong: Maybe the easiest way and the quickest way, then, to move through this part of the discussion….

We have seen in the past — I’m not just talking about the most recent past — situations with respect to the Supreme Court rules, where differences of opinion have arisen but, ultimately, the government and the Attorney General proceed with what they believe are the appropriate changes to the rules.

Does a similar authority exist with respect to the Court of Appeal rules? Or is there a mechanism that would preclude that from happening — an ultimate, unilateral decision by the executive branch, by the Attorney General, to change the rules?

[3:50 p.m.]

Hon. D. Eby: The nature of the committee that we’ve been talking about, the Court of Appeal committee, is to provide advice to government and, explicitly, to me, as Attorney General, around reforms to the Court of Appeal Act or rules. The Court of Appeal Act and rules are statutes, responsibility for which resides in the Ministry of Attorney General.

We have an MOU, which I know the member is familiar with, from 2013 with the chief justices and the chief judge that obligates us to consult before any changes are made. The technical situation is such that these are government regulations and laws. The practice, though, obviously is co-development of legislation and rules. That is what has taken place here.

When we had concerns raised by the Court of Appeal in relation to this bill, or by the Chief Justice of the Supreme Court or the Chief Judge of the Provincial Court, I’m advised by staff that any concerns that were raised by the courts were addressed. So, happily, we don’t have a situation that bedeviled either the previous B.C. Liberal government or our government, in relation to some rule changes. It is a dynamic relationship between the two, but at the end of the day, the statute and the rules do sit in the Ministry of Attorney General as government laws, essentially, in function.

M. de Jong: Maybe we can pursue that, then, rather than doing so in the abstract, in the context of the work that has been undertaken in the white paper, which included not just the draft act but the draft Court of Appeal rules. Is it fair for me…? Were those draft Court of Appeal rules a product of work by the Rules and Practice Committee and reviewed by that committee?

Hon. D. Eby: Behind the curtain that developed this bill and the rules, the process, I’m advised, worked like this. The draft legislation and the rules were both provided to the court, and an iterative process ensued from that — both based on feedback and consultation engaged in by the Practice Committee of the Court of Appeal that we’ve discussed and then further engagement and discussion with the public — and has resulted in the draft that’s in front of us today.

The process is the same for the rules. The rules were drafted by leg. counsel in consultation and partnership with the Court of Appeal.

[3:55 p.m.]

M. de Jong: That’s helpful, from the Attorney. It’s my understanding that there is work underway now to draft or redraft or make changes to the Court of Appeal rules and changes to the version of those rules that was attached to the white paper and the draft legislation that has given rise to Bill 11. Am I correct? Are there changes?

We understand that the committee has before it Bill 11, the act. We don’t have the rules before us. The Attorney would be entitled to point that out, but he has also correctly pointed out the significant interplay between the two.

Is he able to offer to the committee confirmation that there are changes in the works to the draft rules and the relative significance of those changes? I don’t know how widespread those changes are or how significant they are, but given the significance of the rules, it would be of interest, I think.

Hon. D. Eby: I can confirm for the member that the ministry is actively working with the Court of Appeal to update the rules. Our target is completing the drafting this year. Amendments are intended to simplify and streamline the existing rules and procedures. Forms are being redesigned to improve user experience and comprehension. The conduct of this, in terms of engagement with various stakeholders, will take place within the Court of Appeal Rule and Practice Committee.

This committee, as I advised the member in an earlier question, does engage in its own consultations with members of the bar and other organizations. That includes the Canadian Bar Association, justice access centres, Legal Services Society, B.C. Access Pro Bono, Native Courtworker society and others. This is their practice any time there’s a proposal that would significantly change the court’s practice and procedure. That work is underway. The engagements, though, will be led by the court and by the practice committee, not by government.

M. de Jong: Again, that’s helpful. My question was long-winded, and maybe I’ll try to shorten it up. When that work is complete, it’s my understanding that the Court of Appeal rules, the final product, will be somewhat different than the draft Court of Appeal rules that were attached to the white paper. Is that the case? And if so, how different?

Hon. D. Eby: Yes, that is the case, but I can’t advise how different as the work is happening right now. There will be an answer for the member when the drafting is completed, but that won’t be until…. That will be sometime this year, but it’s not right now, so I’m afraid I don’t have an answer that would be sufficiently reliable for him to base his analysis on.

[4:00 p.m.]

M. de Jong: The Attorney almost anticipated my question, which is: (a) when does he anticipate the rules to be in the form suitable for enactment? He had said later this year. Can he offer a little more specificity around that? Then (b), once they have been drafted in their, we’ll call it, final form, does he anticipate the rules and practice committee providing them one final time to stakeholder groups for review and comment?

Hon. D. Eby: I’m not able to provide a specific timeline to the member, given that the processes involve the court working with the Ministry of Attorney General. We’re kind of reliant on each other.

I’m extremely reluctant to provide any timeline other than the fact that we hope to have the drafting complete this year. I can advise the member that it’s my understanding that any engagement on the newly drafted rules or forms will be led by the court itself, not by government.

M. de Jong: Is it fair for me and others to assume, though, that the act itself — the bill that we are working on — will not be enacted by regulation until the rules themselves have been completed?

Hon. D. Eby: Yes, the member is correct. The act will be brought into force by OIC — only once the drafting of the rules is complete.

M. de Jong: The next, I think, second-to-last area, sort of a general matter that I would like to quickly canvass with the Attorney before moving on to the individual sections, relates to something he highlighted in both his introductory remarks and his second reading remarks.

As I understand it, the objectives, which have helped guide this fairly lengthy project around the updating of the legislation and regulations, were to reorganize the content of the act and the rules; secondly, redesign the court forms so that they’re more user-friendly; and then, thirdly, do those things with a view to recognizing the increased presence of self-represented litigants.

I wonder if the Attorney might offer some thoughts to the committee about that phenomenon. What is giving rise…? Well, I’ll package up a whole bunch of random questions and allow the Attorney to deal with them as he sees fit.

Does he have statistics and data on that phenomenon of self-represented litigants at the Court of Appeal? If he does, is he in a position to share them with the committee? What, in his mind, is giving rise to that? Is it a negative thing? Is it a positive thing? Is there a specific intention to facilitate it versus respond to it as a reality? I guess that’s the distinction I would make.

[4:05 p.m.]

Hon. D. Eby: Can I just say that I appreciate the member using the opportunity of second reading speech to advise of areas of potential interest that he may have. I don’t hold him to any of the topics he raised, but it enables me to prepare better answers both to respond to him and to respond to any interest in the public on these issues. Because he flagged this area of interest, I’m able to respond a bit more comprehensively than I might have otherwise.

I’m advised by staff that the Court of Appeal produces an annual report each year that includes a rolling ten years of statistics on the percentage of self-represented litigants, the number of cases filed and concluded, and so on. That is the source of these statistics, if the member or any other members are interested in the work of the court.

I can advise the member that in 2019, out of 633 civil appeals and applications for leave to appeal filed, 189 of those, or about 30 percent, were appeals or applications for leave to appeal involving at least one self-represented litigant. That’s an increase from 2018, where the figure was about 26 percent.

In 2019, out of 116 family appeals or applications for leave to appeal filed, 49 appeals, which is about 42 percent, were appeals or applications for leave to appeal involving at least one self-represented litigant. This is an increase from 2018, where the figure was 34 percent.

Also in 2019, out of 219 criminal appeals or applications for leave to appeal filed, 41 appeals — 19 percent — were appeals or applications for leave to appeal involving a self-represented litigant. This is a decrease from 2018, where the figure was 26 percent.

The rules are changed to make the experience of self-represented litigants easier by bringing together three different sources of information that currently litigants must assemble in order to understand how to get to court. Currently you’ve got to consult the act, the rules and practice directions to find the procedural instructions to get to court properly. Having the content of the act and the rules be reorganized to have the general powers in the act and all aspects of procedure in the rules should, we hope, make the rules become a more complete and easier-to-follow guide for the appellate process.

The courts made a number of other changes. I’m happy to go into them with the member if he has a particular interest in this area. They really are striving to both recognize the reality, as the member noted, of the number of self-represented litigants that are coming to court and to facilitate their appearing in front of the court with a minimum of procedural friction.

Without commenting on or passing a value judgment on whether this is good or bad, it is. When you’re talking about one in three cases, really, and almost one in two cases on the family side coming to the Court of Appeal with a self-represented litigant, having someone being more able to negotiate the process, which would be intimidating at the best of times, saves the court time, saves counsel time, is far more efficient and for the litigant — him or herself — spares a fairly significant amount of misery.

I will opine briefly on one area of concern for me as Attorney General, which is the growing number of self-represented litigants in the family side. The member will note that 49 out of 116 family appeals involved at least one self-represented litigant. The member will likely know about my concern in relation to the number of people involved in family disputes who are not represented by counsel, who can’t afford counsel and who find themselves in a court process that they little understand, at probably one of the most stressful times of their lives.

[4:10 p.m.]

The harm that that can do to families and children when conflict is escalated rather than assisted in being resolved by the courts is a very serious matter. I’m happy to go into that in some detail, but we start to stray away a bit from the bill. To the extent that I feel comfortable weighing in on an area of concern about self-represented litigants, the family area — I don’t know about the member’s time as Attorney General — is certainly the one that I receive the most correspondence about, of people just in misery about the court process.

We’ve done a lot of important work to try to address some of that. This is a very small piece of it, but there’s far more substantial work on the court of first instance, which brings a lot of people into the family law system — the Provincial Court of British Columbia — and more to do. I will flag that as an area where I am concerned. I do not think it is a good thing. I think it is really causing a lot of problems for families in the province, and I look to continue to do work to address that.

M. de Jong: I think we’re on relatively safe ground, given what we understand the partial objective of the act is, to explore this just for a few minutes. What accounts for the trend, in the Attorney’s mind? I’ll share with him my thoughts in a moment, but at least insofar as the family law cases are concerned, I detect, and I think he meant to convey, a tone of concern in the Attorney’s voice.

By the way, I think, in a slightly different context, a small family-owned business that lands in a Court of Appeal scenario is confronted by, perhaps, different emotions but similar challenges. What, in the Attorney General’s mind, accounts for the trend that we are seeing?

Hon. D. Eby: I guess I’d feel most comfortable…. I do feel that I’m wandering out on a bit of a ledge here, in any event, in opining a bit on the family side. It is an area of interest and concern for me. There are, just bottom line, an insufficient number of lawyers practising family law in the province. As a result, their services are very much in demand, and the consequence is that their services can be quite expensive. It’s a matter of economics.

To address that, the Law Society of B.C. has put forward a number of different initiatives. They continue to work on a number of reforms related to examining the possibility of paralegals being able to practise in some areas of family law, I’m advised. They have also set up a number of what they call regulatory sandboxes, allowing different professions or legal advocates to appear in different areas of law. I look forward to hearing about the results of that work.

I also believe that family law, because it involves issues as profound as custody of children, causes parents to be willing to go all the way to the Court of Appeal and to appear by themselves in order to ensure that their case is heard. The opportunity that we’re pursuing will, hopefully, reduce this number by going upstream to the families that are in the Provincial Court and try to divert them out of the court process, or at least narrow their issues before they get to court so they can come up with their own solutions rather than have a court fashion a solution for them.

[4:15 p.m.]

It’s admittedly not as grounded in research and data as I would like, but I think, given the Law Society’s efforts on this front, it is a concern that is not unique to me. Given the frankly admirable and heroic efforts of the chief judge in relation to our family justice reforms and getting them done and getting them implemented in the Provincial Court in Victoria and Surrey now, I think it must be — without attempting to put words in her mouth — a matter of concern to her as well.

It is not a unique issue to the Court of Appeal, but there are a number of factors driving it.

M. de Jong: Well, I am going to take advantage of the Attorney’s willingness to engage in a little unscientific speculation and make this proposition. In the vast majority of cases where someone is self-represented, it’s because they can’t afford a lawyer. I’m not actually sure I agree entirely with the supply-demand argument, although there are places in the province where it can be difficult to retain the services of a family lawyer. I think they’re out there. I just think people can’t afford it.

That brings me, then, to something I’m really pleased that the Attorney General mentioned in his response. I think we do need to move on here shortly, but I am anxious to get his thoughts on this. He mentioned the work that the Law Society has been doing around the, perhaps, expanded role of paralegals in the practice of family law.

A lot of the discussion around this, quite appropriately, has tended to be on the issue of diverting cases away from the courts to other, alternative dispute options. Fair enough. Hopefully, in the vast majority of cases, that can be done for reasons that the Attorney has mentioned. In some cases, that’s not possible or doesn’t happen.

This project seems to be rooted, in part, in the belief that self-represented individuals are a reality. We can have our theories about why that is so. I tend to think it has the most to do with the cost of retaining help. I’m not sure that anyone who can afford help to go to the Court of Appeal would choose to do it on their own, but maybe there are a few who have that confidence.

If that is the case, then the idea of creating some further assistance for self-represented individuals who find themselves in that very intimidating forum…. It’s intimidating at times for lawyers, let alone a self-represented person. My understanding is that when the question of an expanded role for paralegals came before the Law Society a year or a year and a half ago, it had been withdrawn and is still the subject of conversation.

I wonder — again, I won’t belabour this — if this is an opportunity for the Attorney, as a bencher, to share with the committee what he knows about the status of that initiative and whether he and the government are supportive of providing an expanded role. When I say that, I probably do mean a role that extends as far as appearing at the Court of Appeal with an otherwise self-represented litigant in a family law matter.

What’s the status of that initiative, and broadly speaking, what is the Attorney’s and the government’s view on that question?

Hon. D. Eby: Any time I get a chance to speak about access to justice, however tangentially related to the bill, I will take it. The member has hooked me, and now he’s just got to reel me in.

I will say that I trudged across the street from the Legislature to the hotel, to the Fairmont, where the Law Society special meeting was held in relation to paralegals being able to practise.

[4:20 p.m.]

There was a referendum, essentially, that was held by the membership of the Law Society around this very question.

I spoke in favour of opening practice to licensed paralegals. I support it. I think it is a necessary thing, and I don’t think it threatens the practice of family lawyers in the province at all, bluntly. I think it, actually, will make it easier for them to get to court with their clients if people are assisted through the process by a licensed paralegal. Oversight of the Law Society on those paralegals would be significant, at least under the proposal as it was then drafted.

Unfortunately, that measure, despite my support, was defeated, or perhaps, because of my support. Regardless, it was defeated, and although not binding on the Law Society benchers, it caused them to desire to pause and have a look at what they were doing and make sure they were proceeding in the public interest. That’s what I understand they’re doing, reviewing that proposal. It is not a dead letter, but it has not come back yet, either. I do check in regularly with them. I’m advised that it is still under active consideration at the Law Society.

To the member’s question, though, that is not the only effort that’s been underway. I do want to recognize benchers Lisa Hamilton and Jamie Maclaren, working through Access Pro Bono, because beginning in February 2019, the Court of Appeal overhauled the manner in which litigants access pro bono services. Through Access Pro Bono, the new civil appeals program allows every self-represented person who files a civil appeal to have an opportunity to contact a lawyer to assist them in the process.

During the pandemic Lisa Hamilton and Access Pro Bono, as well, have been using a form of software called Qase and facilitating free mediation services for families with counsel through Access Pro Bono, where they can resolve disputes, either in parallel with or even before they go to court. I’m very grateful for those kinds of efforts.

There are a number of initiatives that people are taking. We have family duty counsel through Legal Aid B.C. and family advice lawyers and Family LawLINE, criminal duty counsel, and so on. They’re all helpful, to a degree — Law Foundation, legal clinics, justice access centres, and so on. But they are not the same as having a lawyer standing beside you in court or even a friend or an advocate assisting you. That’s why I’m very grateful that the Law Society is using this sandbox method to explore different ways to support people in court processes and deliver access to justice.

That’s why I continue to support that experimentation, whether it’s the paralegals or otherwise, to assist people through court processes. I think it’s a net win for everybody, including lawyers, when people are able to access the court system and navigate it efficiently.

M. de Jong: I had one last general area that I wanted to explore with the Attorney, relevant to the overall operation exercise of jurisdiction by the court. It does relate to the use of technology. It may be better suited to section 26, which I think is the single section here that includes the addition around video conferencing and telecommunications. Maybe I’ll hold my commentary and questions on that matter until we get to section 26.

I end section 1 with this question, with respect to subsection 1(2) and the inclusion of the specific reference to section 5 of the Offence Act. I think I heard the Attorney say that is a new drafting convention, but that was different from the white paper and appears in the bill, not the white paper.

[4:25 p.m.]

Hon. D. Eby: At the time that the existing Court of Appeal Act was drafted, this was not a drafting convention. Since then, it has become one. I can advise the member that under the Family Law Act, the Civil Resolution Tribunal Act, the Justice Reform and the Transparency Act, section 5 of the Offence Act is disapplied.

Section 5 of the Offence Act is a section that deems con­travention of a provincial statute to be an offence punishable under the act. Obviously, the Court of Appeal Act is a procedural set of rules for the court. It’s not intended to become a provincial offence if you violate one of those rules.

It simply made sense in terms of drafting that it would be in section 1, but it’s not a unique use of this disapplication in justice-related statutes.

Clauses 1 and 2 approved.

On clause 3.

M. de Jong: I tried to check. I’m not sure this is different from the existing provisions. I read this…. Is there a supernumerary justice in place for each of the court justices? Is that the present alignment of the bench at the Court of Appeal level?

[4:30 p.m.]

Hon. D. Eby: The section creates an upper limit on the number of supernumerary justices, and the wording is slightly changed. The member will note that the goal here is increased clarity about the number of supernumerary justices, the upper limit of which is 15.

In the 2019 annual report of the court, there were ten. I wish I had a more recent number for the member, but that’s the best that we can do currently. If I get an update from staff during our other discussions, I’ll pass on to the member how many supernumerary justices we have in the Court of Appeal currently. But as of the 2019 annual report, there were ten.

M. de Jong: I will ask this respectfully. Do they sit regularly? Are they paid?

Hon. D. Eby: We’re just trying to track down some specifics. We all have some sort of vague responses for the member. Yes, they do sit, but beyond that — really hesitant to guess.

[S. Chandra Herbert in the chair.]

If the member wants to move on to another question, I will…. Staff are continuing to work on this question to provide him with some detail about the role of supernumerary judges in the court, if there’s another area that he wanted to canvass while they were doing that.

M. de Jong: Okay. Well, let’s do that. It’s not an area that you want to be guessing at. But I was, candidly, a bit surprised to learn that for each sitting justice and the chief justice, there is contemplation of an additional supernumerary — a 1-to-1 ratio.

[4:35 p.m.]

The concept of the supernumerary judges in the other courts, in the lower courts, is well known, but it doesn’t, I don’t think, exist at a 1-to-1 ratio, and apparently there were ten. So we’ll wait and see what the staff can come up with.

I’m in the hands of the committee. If the Attorney is happy to come back to this towards the end, we can do it that way. We could stand down the section — whatever is easiest.

Interjection.

The Chair: Thank you, Minister. Clause 3 is currently stood down.

Clause 3 stood down.

On clause 4.

M. de Jong: Quorum and divisions of the court. It’s my sense from my comparison that the quorum hasn’t changed. Has the reference to divisions changed in this section at all?

Hon. D. Eby: For the most part, the provisions remain substantially the same, but there’s a simplification of the wording and a reorganizing of the order of the subsections. There are some exceptions to that, though.

I draw the member’s attention to subsections 13(5) and 13(6), which have been reorganized to provide for…. In subsection (5), that a division may continue to hear an appeal if a justice is unable to act after the hearing commences, and subsection (6) provides options that the remaining justices have after the hearing concludes.

The amendments to these two subsections will clearly separate the provisions for the continuation of the division in subsection (5) and the options for a division at the conclusion of the hearing in subsection (6), as the member can see.

Clause 4 approved.

On clause 5.

M. de Jong: Let me do this, hopefully, efficiently, in stages. The court regularly sits in Vancouver. It has sat in Victoria at times. I recall it has sat in Prince George. Does it regularly sit in any other locations in the province?

Hon. D. Eby: There are three filing registries in the province: Vancouver, Victoria and Kamloops. The court sits in four locations across the province: Vancouver, Victoria, Kamloops and Kelowna.

M. de Jong: Sorry. The Attorney referred to registries. I didn’t get the number, and this comes up a little bit later. How many registries did he refer to?

Hon. D. Eby: There are three filing registries in the province: Vancouver, Victoria and Kamloops. And the court sits in four locations across the province: Vancouver, Victoria, Kamloops and Kelowna.

M. de Jong: Thanks. I will make this statement, but it is a question. I presume the authority to sit electronically or by video conference derives from the other section, section 26, and not from section 5, which allows the court to…. This allows the court to sit wherever. The other section allows the court to sit however it wishes. Have I summarized that correctly?

[4:40 p.m.]

Hon. D. Eby: The member is, for all intents and purposes, accurate in his summary. But I’ll restate it just out of an abundance of caution.

The amendment gives authority to the chief justice to direct the court to sit or conduct business at any place. “Directed” has been used to ensure consistency with the language in the Supreme Court Act. The amendment’s intention here is to allow the court the flexibility to sit anywhere in the province and not just in places where the registry is established. The member will note that I listed four locations where the court sits, but only three registries.

This amendment does draw on lessons from COVID and gives the court the ability to sit virtually by video or audio conference in smaller centres and preserves flexibility to appear at remote video hearings or other means as they’re developed and as the court directs. This provision has a lot of potential, in one of the legacies of COVID, to expand access to justice for litigants who are at long distances in our gigantic province — expensive travel costs for remote communities — and who would otherwise have to travel for their appeal hearing.

I’ll just take this opportunity to express my appreciation and gratitude for the efforts of the court during COVID to transition so quickly to virtual appearances. They used the Zoom platform, and they have no existing COVID backlog because of that decision.

Now, people will unfairly compare the Court of Appeal to other courts in the province. I say unfairly because, obviously, the Court of Appeal doesn’t have the same challenges with evidence and witnesses and juries that our Supreme Court has or our Provincial Court has, to some degree. While noting those differences and the unfairness in comparing court levels, it certainly doesn’t take away from the accomplishments and efforts of the court to respond to COVID so quickly. I wanted to express my gratitude around that.

M. de Jong: I’d like to come back to that topic, but I’ll do so when we get to section 26, if that’s all right with the committee.

Last question on section 5. Do I understand, therefore, that the Court of Appeal no longer sits even occasionally in Prince George?

Hon. D. Eby: The section obviously allows the court to sit in Prince George. Staff are not aware of recent sittings in Prince George. It’s not one of the filing registries, certainly, or a typical sitting location, of which there are four. So perhaps that’s the answer to the member’s question. The court may have sat in Prince George recently, but there’s just nobody that’s assisting me…. Certainly, I don’t have personal knowledge of that.

Clauses 5 and 6 approved.

On clause 7.

[4:45 p.m.]

M. de Jong: The Attorney has mentioned several times the desire to inject a greater element of plain language into the documents. Perhaps a measure of the success of that is the degree to which this quaint phrase “rank and precedence” stands out in this section and the continued need to articulate statutorily that the “Chief Justice of the Supreme Court has rank and precedence over all other judges of the courts of British Columbia, other than the chief justice” — literally, a ranking order of the importance.

What does that mean to the average person? Can the Attorney explain, beyond protocol and how high the bench has to be in a particular courtroom: is there a relevance that relates to the precedential value of a decision, for example?

Hon. D. Eby: I know the member is familiar with it, but just for people who may be watching or reading the transcript later or otherwise interested.

The chief justice has an important role in any court, or the chief judge. The chief justice is the administrative head of the court and responsible for assigning justices to hear various matters and coordinate the administrative responsibilities of the court. It’s a very critical role. I won’t draw any parallels to anything else, because it would not do the role justice. It’s a very unique role in our constitution and in the role of the courts as an independent branch of governance in the province.

In that role, the Chief Justice of the Court of Appeal has a twofold role. One is, obviously, the administration of the Court of Appeal, as I just said, but the other is that the Chief Justice of the Court of Appeal is also the chief justice for British Columbia — indicating that that chief justice is the functional chief justice for the entire province.

In terms of the responsibilities or other duties that flow from that, happily, I’m not aware of a situation in which the chief justice has had to use that authority, but it is an important recognition of the chief justice as the chief justice for the entire province.

With respect to the significance of decisions made by the court and the precedential impact of them, I’m not aware of a sort of hierarchy of Court of Appeal decisions based on whether or not the chief justice or other justices were involved in the decision. The decisions of the court are binding on lower courts in the province.

M. de Jong: I think it was that last part of the Attorney’s answer that I was anxious to confirm.

[4:50 p.m.]

The binding nature and precedential nature of the decision derives from the court as opposed to the individual judge. However, on the administrative front, the position of the individual judge as the chief judge of one level of court or another is very significant. Have I summarized that correctly?

Hon. D. Eby: I just wanted to consult with the team. It sounded correct, what the member had said, and I do believe that his summary is correct.

Clauses 7 to 10 inclusive approved.

On clause 11.

M. de Jong: Just a question, as much for illustrative purposes. I’m looking at sub 11(2). This refers to the position of chief administrator, a significant position in terms of the operation of the court, and empowers her or him — compels them, in fact — to “direct and supervise facilities, registries and administrative services for the court, subject to the direction of (a) the chief justice for matters of judicial administration, and (b) the Attorney General for other matters.”

Perhaps intuitively we know what the difference is, but we don’t get to debate or discuss the Court of Appeal Act very often. It’s probably worthwhile, my posing the question to the Attorney. Explain the difference between a judicial administration, where the chief administrator is taking direction from the chief justice, and all other matters where the Attorney General possesses authority to direct.

[4:55 p.m.]

Hon. D. Eby: I guess I would characterize the responsibilities this way. The responsibilities around those related to the Attorney General for other matters really fall in the category of being a manager of the court location.

These are things like the building itself, making sure it’s well maintained and that it’s looked after — if a lightbulb is burned out or if their computer is not working, that maintenance is done in the building. The chief administrator is responsible, under the AG side of things, for making sure that those issues are addressed, as the manager of the court location.

Supervising staff, the technical side of a webcast, making sure that the clerks and the registry staff are following the procedures and the rules — that kind of management role is the AG side of things.

For the chief justice side of things, the chief justice may draft an administrative notice or a notice to the profession, and then there’s responsibility that comes from the chief to the chief administrator to distribute that notice.

As well, the chief administrator has an additional role of being deputy registrar in the court. In the absence of the registrar, there are some certificates and documents that the chief administrator can sign in certain circumstances and certain responsibilities that come with being deputy registrar, which is more in the nature of judicial administration concerning the decisions and processes of the court.

Then, for the Attorney General, it’s the machinery, the staff, the technical side.

They’re broad categories, but I hope that I’ve sufficiently drawn out the distinction between the two so that the member could anticipate which category a particular duty would fall into.

M. de Jong: Again, I don’t want to bog us down. We’re dealing with the administrator here, as opposed to the registrar. Does subsection (2) and sub (b) capture, as well, the ultimate authority of the presiding Attorney General around, for example, the rules of court?

[5:00 p.m.]

Hon. D. Eby: Mr. Chair, I have to apologize to the member. I was asking for an update on the supernumerary issue as he began his question, which distracted both me and everybody that is assisting me from hearing his question. So it was entirely my responsibility. I apologize. If he could ask his question again, I would greatly appreciate it, with apologies.

M. de Jong: Understood. With respect to sub (2)(b) — we are discussing the authority vested in the Attorney General to provide direction with respect to court services, facilities, registries and administrative services for the court — does that definition extend far enough?

We were talking earlier about the rules of court itself, and we settled on the process by which they evolve and change. The reference to administrative services — is that broad enough, in subsection (2), to capture rules and the role that the Attorney General plays in the development of those rules?

Hon. D. Eby: The section really concerns the role of the chief administrator. To the extent that the rules are a creature of or the…. The statute resides within the Ministry of Attorney General is the best way to describe it. Because they reside there, the role of the chief administrator, on the AG side, is to ensure that staff are following those rules at the registry, that they’re using the rules and interpreting them in accepting applications and vetting forms that come in, and so on.

That is a rule that’s established that lives within the Ministry of Attorney General as a function of the way our government works. Although, really, it is — as I regard it, anyway — a co-managed authority between us and the court. So in terms of the chief administrator’s role in subsection (b), with regard to the rules, it would be making sure that the staff are following the rules, that they’re following the processes, and so on.

With regard to subsection (a), where there’s a matter of judicial administration…. Someone needs to sign a certificate required under the rules. The registrar is not available, and the deputy registrar, who would be the chief administrator, could do that judicial duty. So it’s a quasi-judicial role of fulfilling the purposes of the rules by, in this case, signing a particular form or acting as deputy registrar.

In giving effect to the rules, it’s a quasi-judicial responsibility. It would fall under section (a). In ensuring that staff are following the rules within the registry, supervising staff, making sure the quality of work is good, it falls under subsection (b).

Clause 11 approved.

On clause 12.

M. de Jong: A few moments ago we talked about the existing filing registries in the court. I must confess, my note is undoubtedly wrong, but when I was speaking with the staff — the fault is, as I say, undoubtedly my own — I made a note that they referred to a vastly larger number of registries. I thought that the type of registry they were describing is one that included some capacity for communicating with the Court of Appeal.

Perhaps there’s a different term that describes that — a full filing registry that is attached to a location where the court actually sits — and then something else, because the number I wrote down was somewhat in excess of 30. Maybe the Attorney can disabuse me of whatever confusion I have caused myself.

[5:05 p.m.]

Hon. D. Eby: Staff advise me that there are more than 30 Supreme Court registries, which maybe is what the member is recalling. But we are all standing by the three registry number for the Court of Appeal.

I’m afraid that I’m not able to assist him, and staff are racking their brains but can’t, other than the number of Supreme Court registries, recall the context of that discussion.

M. de Jong: Okay. Well, as I say, undoubtedly my error. But I suppose it does beg the question. The Attorney presided over a happy event, and one that I will say, immodestly, I had worked several decades to see become a reality, which was the opening of the new courthouse in Abbotsford. I was pleased to play something of a role of that in my time in government. Then to see it come to fruition and become a reality….

In this age of technology…. It’s a great achievement in Abbotsford to have a Supreme Court registry, which is not a thing to say for the fifth-largest city in the province, but there we are.

For the litigant in…. I used Prince George earlier. Are there practical impediments to being able to utilize a Supreme Court registry for the purpose of filing appellate documents and facilitating their flow into one of the three main registries? It just strikes me, in this day and age, that there shouldn’t be as much magic attached to the physical location.

Hon. D. Eby: I want to answer the member’s question. But before, I do want to take the opportunity, on the record, to recognize his efforts around pushing ahead the new court location in Abbotsford. It’s a beautiful new building. It’s a project that I inherited as the Attorney General — I acknowledge that — from the previous government.

[5:10 p.m.]

I’m grateful to the Premier and my colleagues for supporting the continuation of funding of that project that was initiated under the previous government. I’m grateful to the member not just for initiating that to ensure that Abbotsford is well served but also for serving on the advisory committee as the building design process went through and throughout the construction process. I wanted to put that on the record.

The specific question about filing. I think the member raises an important question. In fact, that is the case in British Columbia today for civil matters. You are not allowed to physically file your materials because of COVID. You must e-file. There’s an e-filing system for the Court of Appeal. Again, they don’t have those same challenges that the Supreme Court or Provincial Court has with challenges of evidence and so on. As a result of COVID, they were able to transition to e-filing for the vast majority of their business. You can do that anywhere in the province. In fact, it is the only way to file a civil appeal right now.

With respect to the different registries, the courts are different and distinct entities. The Provincial Court registry, the Supreme Court registry and the Court of Appeal registry all operate independently. But to the member’s question, we are looking to expand on these silver-lining legacies of COVID around e-filing and electronic filing and so on, and ease of access to registries — no-wrong-door kind of approaches. But at this point, we’re still in very early discussions with the courts around that. As I have more information to share, I certainly will do so.

I think that addresses his question.

Clause 12 approved.

On clause 13.

M. de Jong: I guess to just have on the record for the Attorney to alert the committee to any changes in the appellate jurisdiction that derive as a result of the new act.

Hon. D. Eby: There may appear to be a change in jurisdiction under section 13(2)(b), in that it’s new, but this was an existing practice already. What the intention is in putting this section there is to assist self-represented litigants, or maybe lawyers who are not as familiar with the best way to appeal the decision of a master.

This amendment is meant to make it really clear and easy to know that you can’t appeal directly from the decision of a master to the Court of Appeal. So the process is, if you have a decision from a master, and you need to appeal it, you appeal it to a justice of the Supreme Court of British Columbia and not to the Court of Appeal.

[5:15 p.m.]

What it does is just try to avoid people making that very common mistake by making it explicit in the new act. It doesn’t change the current jurisdiction, and it’s not the intention of this clause or the bill to change the appellate jurisdiction of the Court of Appeal.

Clauses 13 to 17 inclusive approved.

On clause 18.

M. de Jong: So a general division around the conduct of appeals and, again, a reference to the act in the rules. And then this delightful phrase that has been used in the previous act, I think, in section 30 — that if we haven’t addressed it, we will regulate it by analogy.

Okay, I think that in the context of what’s being done…. But here’s the part that…. I read it, and I re-read it, and then I read it earlier today, and I got it. Then I didn’t get it.

Sub (a). So we’re at 18(2)(a): “If a matter of practice or procedure is not addressed in this Act or the rules, the practice and procedure of the court is to be regulated by analogy (a) to this Act and the rules.” It’s: “We haven’t thought about it in this act or the rules, but we’ll regulate it by analogy to this act or the rules.” Presumably, it will draw on something similar.

Maybe they’re here because the examples are so rare, but what’s an example that staff can pull out to describe where that section might be required or useful or has been used in the past, in the previous bill?

[5:20 p.m.]

Hon. D. Eby: This will be a bit of a miscellaneous answers act kind of approach.

On the instant question that the member asked about an example, I can advise that the example I’ve been provided with is that under the current section 16 of the act, it’s required to file an appeal book and a transcript in order to conduct an appeal. But for some tribunals, the appeal book and transcript approach may not work, so the court needs to improvise and devise a process for that tribunal and tribunal record — by analogy, what is the equivalent of the appeal book and the transcript for a given tribunal.

Now, the member…. I had discussed e-filing and said that it was mandatory. I didn’t provide a nuance, which is important that I should. It is that for e-filing, it’s counsel who must e-file if you’re represented in the Court of Appeal. But there was some concern that the e-filing-only directive might cause problems for some self-represented litigants, so there is a carve-out for self-represented litigants to file physical material still, even during COVID.

Then the member did ask about supernumerary judges, and I have an answer for him now about that. There are eight….

Interjection.

Hon. D. Eby: Oh, okay. I’ll save the request to the member for when we go back to that section.

That’s our best rules by analogy example that we can offer.

Clause 18 approved.

The Chair: We’re going to move back to clause 4, which had been stood down, as I believe the Attorney might have an answer for those questions.

Sorry. Clause 3, Members, not clause 4. Clause 3, the constitution of court clause.

On clause 3 (continued).

Hon. D. Eby: On clause 3, the member asked about supernumerary judges and the complement in British Columbia. Currently there are eight supernumerary judges in the province. It does vary. As I noted, in the 2019 report, there were ten.

These supernumerary judges and the role they play is very important because they support the court in responding to an increase in volume without having to increase the overall complement of judges. They sit at the discretion of the chief justice. Typically, they sit about half-time, about 50 percent of a full Court of Appeal judge, and they are paid judges.

Clause 3 approved.

On clause 19.

[5:25 p.m.]

M. de Jong: Sub 19(2)(c). The general section is about curing irregularities. I focused in on sub (2)(c), the general power for a justice to make any other order considered appropriate to address the irregularity or procedural error. Does that capture missed limitations or filing deadlines?

Hon. D. Eby: This section is intended to deal with minor errors in the conduct of an appeal, to prevent appeals from failing on the basis of a procedural mistake, especially for those less experienced litigants, like self-represented litigants.

The change of the wording reflects the fact that this section should deal with errors and not objections, and also just to clarify that a procedural error is not the subject matter of the appeal. If the tribunal or the court that you’re appealing from made an error and you’re going to the Court of Appeal about that, that’s not what this is about. This is about the conduct of the appeal in the Court of Appeal.

The member asked specifically about examples of the types of errors that people make — filing deadlines, limitation periods, and so on. This rule is drafted in a manner to give the court discretion about the fairness of its own processes. Whether or not the court would allow this section to be used to cure a procedural error related to a filing deadline or a statute of limitations would really be up to the court to decide, in terms of the fairness of its own processes, under this rule.

M. de Jong: I ask a question, again, with reference to the phenomenon we have discussed around the increased numbers of self-represented litigants.

My recollection, my experience, is that the court has drawn on its inherent jurisdiction and authority, in the past, to say to a litigant…. I shouldn’t pick on self-represented litigants. It can happen to those that are represented, as well — for a variety of reasons, I suppose — that an important document or an important deadline is missed.

[N. Letnick in the chair.]

Is this the codified authority for the court to say to a party: “Look, our rules say that you have disqualified yourself from continuing with this appeal, but we are prepared to accommodate your failure and to provide you with an extended deadline, or a new deadline, to meet your obligations under the rules”? Is this the section that provides that authority to the court? Does it need that authority?

[5:30 p.m.]

Hon. D. Eby: Yes. I mean, this is one of two candidate sections for such an approach to empower the court to be in control of its own process and whether to allow an appeal to go ahead despite an irregularity or procedural error.

The other one I’ll draw the member’s attention to is section 30, which discusses the general powers of a justice. It could also find some statutory grounding in that section, as well, which is meant to be a broadly empowering statute for the court to control its own process.

Clause 19 approved.

On clause 20.

M. de Jong: To the Attorney, I’m looking at sub 20(2) and, specifically, sub (a). I just want to make sure I’m reading the new wording correctly. Am I correct that the need for this section, or drawing on this section to quash an appeal, would never occur in circumstances where it was necessary to seek leave to appeal? If the Attorney understands.

Presumably, the question of jurisdiction would be dealt with at the time of leave. This section and this remedy would only become relevant in circumstances where there was a right of appeal directly to the Court of Appeal. Have I got that correct?

[5:35 p.m.]

Hon. D. Eby: I’ll do my best to give this the nuance that it needs.

Let’s just set aside appeals as of right. That is not at issue here, because if you have a right to go to the Court of Appeal — period — then obviously the court doesn’t lack jurisdiction. We’ll set that aside.

In this scenario of seeking leave to appeal, you’re asking the court’s permission to be able to go and appeal. It isn’t in front of the court until leave is actually granted. If leave is not granted, there is no need to quash it, because there is no appeal.

Leave is not granted. “Sorry, you can’t come in.” End of story. This section does not apply.

If leave is granted: “Okay, you can come to us. You can make your argument about the errors that were made in the levels below.” An application might be made, or there may be consideration by the court. In this section here, on application, a justice may “quash an appeal on the basis that the court lacks jurisdiction.”

The court has granted leave, and now the appeal is in front of the court. Then they hear the respondent, and they say: “Oh, we lack jurisdiction here.” Then the appeal has to be quashed. This scenario of rule 20(2)(a) is in the scenario where a party has been granted leave to appeal but then, on application, the court has determined that it lacks jurisdiction so therefore has to quash the appeal. It’s a very specific scenario. It is not the scenario where someone is seeking leave to appeal. This section does not apply.

M. de Jong: I had it right until the very end, where the Attorney described the application of the subsection in cases where leave to appeal has been granted and then there is a subsequent application to quash.

I think my confusion was: if the basis in sub (a) is the lack of jurisdiction of the court, wouldn’t that, as a matter of course, have been considered when leave was granted? Wouldn’t that issue have almost always been considered by the court at that point? Or perhaps it’s a situation where….

Well, maybe I’m answering the question myself. Maybe it’s a case where leave was granted, the question of jurisdiction wasn’t argued by a respondent, and the argument comes along later. I think the part I’m confused about is that in circumstances where leave is required, surely it is at that stage that the question of jurisdiction would have been argued.

Hon. D. Eby: We’ll use some legal terminology here, just to be clear for those of us in the House that may not be as intimately familiar with these things. The appellant, or the person seeking leave, is seeking the permission of the court to have an appeal heard.

[5:40 p.m.]

The respondent is the person who is responding to that request on the other side, in the court discussion. The appellant attends chambers, seeking leave of the court to be able to make the argument. The respondent either doesn’t raise the issue of jurisdiction, doesn’t attend, doesn’t appreciate on the basis of the leave materials the jurisdictional issue, and the court grants leave to appeal.

Then, on exchange of factums, it becomes apparent to the respondent that they should raise the issue of jurisdiction, that there is a jurisdictional problem here. They want to raise that as a preliminary objection: “Before you even hear this, Court of Appeal, I want to tell you that you don’t have the authority to hear this.”

That’s what this section deals with: the preliminary objection of the respondent that may not have been raised, for whatever reason, at the leave stage. They can come and raise that issue as a preliminary objection. The court can hear it, and they can actually quash the appeal. Even though they granted leave before, they can say: “Okay, this is an important jurisdictional issue. We don’t actually have the authority to hear this, so we’re going to kick it back out.” “Quash” is the word that’s used in the bill.

It is a very specific situation, but it is obviously a situation that does come up. The bill attempts to establish that the court has that ability to hear that application and to quash the appeal if jurisdiction is absent or make an order to cure it or address it in some other way.

M. de Jong: Well, it may seem odd to the throngs of people that are watching, but I actually understood that answer. It makes a measure of sense. A respondent who chooses not to argue or who doesn’t raise the question of jurisdiction at the time that leave by an appellant is being sought is not stopped from bringing an application later on that very point — to seek quashing of the action.

I won’t ask the Attorney to respond. I think I have it. We’ll move on to the next section.

Clause 20 approved.

On clause 21.

M. de Jong: I think we made mention earlier, when we were still on section 1. The CBABC section deserves credit for having convinced the Attorney and the drafters to delete the phrase from sub 21(1)(a), “significantly irregular.”

I don’t, again, wish to belabour the point. Its original presence suggested that at least for some people involved in the drafting of the bill, there were circumstances that warranted a summary determination that might not be captured by the terms “frivolous” or “vexatious.”

So (a) was that so, and (b) is the Attorney satisfied that whatever those circumstances are, they are then covered by sub (b)?

[5:45 p.m.]

Hon. D. Eby: The CBA’s intervention with respect to irregularity, I think, was premised on the idea that something might be quite irregular in terms of not coming to the court in a typical, frequent or normal kind of manner but still raising an important legal issue that should be determined. The concern, which, to be blunt, I’m interpreting from the fact that they raised it as an issue, would be that someone might be deprived of the opportunity of having an appeal heard simply because it was irregular.

It was the feeling of, certainly, the drafters and myself in bringing this bill forward in the House that subsection (b) provides a sufficient catch-all for the court — for either the justice or the registrar — to be able to refer a matter over to the court for summary determination if it’s substantially irregular in a way that can’t otherwise be saved or redeemed but that it wasn’t necessary to call it out in subsection (a) as something to watch for.

An irregular or unusual appeal might actually be quite valuable, and putting it in subsection (a) may discourage people from bringing applications that should be heard by the court. So any irregular applications that need to be could be captured by subsection (b), and I appreciate the feedback of the CBA in this section.

Clause 21 approved.

On clause 22.

M. de Jong: I’m looking at the relationship between subsection 22(2)(b) and sub 22(4)(b). I’ll try in language that undoubtedly will be a bit flawed.

We’ve got the eternal litigant who has proven to be very proficient at accessing the courts but, over time, is establishing that he or she is doing so for purposes not contemplated by the courts. So the court is satisfied that there is someone attempting to come before it for vexatious reasons, for improper motives, and wants to make an order that says: “Well, you can’t actually come here until you have specifically applied for leave to do so.” In sub 22(2)(b), it says they can only make that order if they’ve been given an opportunity to either be heard or make a written submission. Fair enough. Got that.

Then we go down to sub 4(b), which says if the justice makes the order under subsection (1), which limits their access and requires them to make leave, “the court may, without receiving further written submissions…dismiss an appeal or application for leave to appeal previously brought to the court by the person.”

Roughly speaking…. I’m sure the Attorney is going to be able to explain the nuanced difference, but the first section limits the court’s ability to make a restrictive order unless the person has been heard. Then sub (4) says it actually can make an order dismissing an appeal, limiting their access to the court, without the person being heard.

[5:50 p.m.]

Maybe the Attorney could clarify the difference that is contemplated there, where, in one case, the litigant is entitled to be heard, and in the other case, he or she is not.

Hon. D. Eby: Perhaps an analogy might be a sort of progressive discipline process. The idea here is…. Someone is abusing the courts, and it’s reached the point that the court is considering making an order that the person is a vexatious litigant. The bill here requires that…. This is a serious matter, because you’re limiting someone’s access to the courts and all the remedies that flow from that.

That order can only be made if the person has an opportunity to be heard. However, if the person has an opportunity to be heard and the court still determines that no, this is a frivolous and vexatious appeal — but not only that — and the conduct of this person is such that we need some safeguards here in terms of their ability to access the court, they would make an order. That order would only be made after the person has had an opportunity to be heard.

Once that order has been made, though, it creates the possibility of the court being able to dismiss future filings from this person, future submissions, without an additional hearing. For your first time-out, the court will hear from you, and they’ll make a decision. If they do make a vexatious order following that hearing, then what flows from that is…. Afterwards, they don’t have to hear from you anymore. They can dismiss the matter or an application for leave to appeal without hearing you. So it’s kind of a stepped process.

M. de Jong: Is that a more specific codification of — to use the Attorney’s, I think, apt term — progressive discipline than what presently exists in the Court of Appeal Act?

Hon. D. Eby: The existing provision is much shorter. I’ll just read it for contrast.

“If, on the application of any person, a justice is satisfied that a person has habitually, persistently and without reasonable cause commenced vexatious proceedings in the court, the justice may, after hearing that person or giving that person an opportunity to be heard, order that proceedings must not be brought or commenced in the court without leave of a justice.”

This sets out more explicitly the authority of the court to make these orders and the process that the court may follow once one of these orders has been made in far more detail than the existing section 29 of the act.

Clauses 22 to 25 inclusive approved.

On clause 26.

M. de Jong: We’ve come to the provisions in Bill 11 that deal with the incorporation reference to technology. It’s unfortunate that the drafters chose to — I noticed this last night when I was reading through — caption as a heading “Limiting hearings.” Actually, if one thinks about it, it is precisely, hopefully, the opposite. It is to facilitate greater access to hearings.

In any event, subclause (1)(a) allows for the ordering of hearings to be conducted in writing, telephone, video conference and other means. The Attorney has hinted at this in earlier exchanges. Some of this drafting is, perhaps, in response to the reality of operating in the climate of the pandemic.

[5:55 p.m.]

To that extent, I think I alluded in my remarks to…. Then there are, perhaps, some positive developments that have arisen out of this calamity. The section, I think, speaks to participation by litigants. The Attorney may wish to offer up some explanation for the virtues and the positive nature of doing that, particularly these days.

I’m also interested in…. Not that the court, I think, requires the authorization that would be included in a section like 26. I think it can do so on its own. The Court of Appeal now — I think, on some occasions — has chosen to broadcast its decisions. I don’t know if it has yet broadcast submissions.

For reasons the Attorney has mentioned, it’s not a court that is concerned with witnesses or the presentation of evidence. But I will confess a bias that has placed me at loggerheads with the courts in the past. If we want people to regard with respect and greater legitimacy the work of the courts, to the greatest extent we can, we should allow them to watch that work.

I will say, candidly, that the courts, institutionally, have been very hesitant about that. I was pleased when I saw the Court of Appeal broadcasting…. When we say broadcast today, we’re not really talking about television anymore. We’re talking about live-stream access. I mean, we’re all sort of alive to the various platforms and the challenges and opportunities that are available in that respect.

To put this in the form of a question, is there anything in the section or the construction of the section that represents an impediment to the Court of Appeal being even more proactive in facilitating the public observing its proceedings? Then I suppose I’m obliged to ask: is that something that the Attorney General is inclined to favour and inclined to promote with the court?

[6:00 p.m.]

Hon. D. Eby: I’ve spoken about the Court of Appeal flipping a switch, essentially, and moving to Zoom in a very impressive way during the pandemic. It’s important to note that there have been, as well, webcast appeals processes. So they’ve not exclusively used Zoom.

The court provided a website this fall, as an example, for a high-security appeal that took place in person. As part of that, they provided access to webcast proceedings not through Zoom but through links posted to the court’s webpage.

I note that the Supreme Court of Canada does broadcast, both through streaming and television, hearings and argument and archives those for the public to review. I am certainly very supportive of the decision of the Court of Appeal to open up their proceedings in this way, such that people could watch appeals at home.

I understand, informally, that a number of people did take the court up on their offer and that the viewership numbers were impressive for some of their hearings. I agree with the member that it does assist people in understanding how the court operates, and that this has generally been a positive experience, from my perspective, for the Court of Appeal. I’ll let the court speak for itself about it, but I know it is a matter of some pride that they do not have a COVID backlog and that the broadcasts of the appeals were viewed by significant numbers of British Columbians.

There are obviously complications as you get into the other levels of court in our province — the Provincial Court, Supreme Court — with witnesses and evidence, and complications that flow from that. But certainly, I understand that it is an ongoing discussion and concern of both levels of court, Provincial Court and Supreme Court, about how the public can get access to and be able to hear and understand decisions that are being made by the court when they have transitioned many different processes to telephone hearings and other kinds of hearings.

We’re getting a little bit off the bill, but the open-court principle is one that I know the courts take very seriously, all of them. Some of the challenges of conducting a hearing by telephone, video conference or other means of telecommunication sometimes can be: does the public have access? This is a national conversation that’s actually happening with the courts in terms of various COVID-19 responses that have been implemented.

It’s a very timely question by the member and a very important issue that continues to evolve in response to the pandemic public health restrictions. Prior to, things were headed in that direction a little bit, but in a very different way. So it may be a legacy of COVID that people are more readily able to access the ability to watch proceedings in courts in British Columbia through telephone, video conference or other means of telecommunication.

With respect to 26(1)(a)(ii), “other means of telecommunication” is meant to be broadly inclusive to allow the court, when new technologies are available, to pursue those if they wish to, to conduct their hearings.

M. de Jong: I should take up the opportunity to add my thanks and congratulations to the court for adapting to very challenging circumstances through the use and deployment of technology that, as the Attorney points out, has left them able to boast of the absence of a COVID backlog. I won’t take off into a conversation about the other courts where, the Attorney is right, arguments are made about the challenges. I think they are all challenges that can be overcome, but that is a conversation for another day.

[6:05 p.m.]

I will merely take advantage of this platform to thank the court for the work it has done and urge upon it the further use of technology, as it reaches out and makes accessible…. The accessibility of justice to litigants is most assuredly important — the accessibility of justice to citizens as a whole who can, well, watch laws being created here. I would submit it is equally important, at least as equally important, that they be able to watch the courts — the high court, in this case, the Court of Appeal — apply those laws, interpret them and apply them in ways that have, in many cases, a direct and profound impact on their lives.

I have fulfilled the objective I set for myself to note the inclusion of the subsection, the opportunity it presents. I have detected, from the Attorney’s words, that he is not at all hostile to the notion that there be additional means found to provide people with the opportunity to observe the types of arguments and decisions that are rendered by the province’s highest court.

Clauses 26 to 31 inclusive approved.

On clause 32.

M. de Jong: In fairness, I should’ve referred to this when we were talking earlier about limitations and timelines, because section 32 does speak directly to that point. My question, though, since we did cover some of that. I should perhaps know this from the Interpretation Act. In sub 32(3)(a), does “person” in that case include government?

Hon. D. Eby: My understanding of the section is that person would include government, companies, non-profit societies, co-ops — any organization or individual that would have standing in front of the court.

I would note that the government…. I mentioned to my team on the phone that my understanding — and I heard from them, our understanding — is that government does file our materials on time, and then another staff member on the phone appropriately added the word “usually.” So the question is founded.

[6:10 p.m.]

Although, I will note that our counsel, in the vast majority of situations, do file within time limits, except in extraordinary circumstances. But I appreciate the member clarifying the meaning of the word “person.”

M. de Jong: I think what, in part…. Well, two things provoked the question. One is that with the resources available to government…. I know they’re limited, and I know people often exaggerate that, but government is government. One would think, an expectation, that basic timelines and limitation periods are adhered to.

Then it was the presence — we’ll come to it in a moment — two sections further, where government is excused from the need to pay security. Now, I think there’s probably a rational argument around that that the Attorney will offer, but it strikes me that the test that might be applied, in providing forgiveness to the Crown where it has missed a limitation period or a timeline, perhaps deserves to be stricter than for the average litigant. I’ll leave it at that on this section.

Clauses 32 and 33 approved.

On clause 34.

M. de Jong: The Attorney heard my question a moment ago — that is, the rationale for excusing government from the obligation to post security. I suspect I know the answer, but I’ll wait for the Attorney to give it.

Hon. D. Eby: The government is good for the costs and pays costs. Given that there’s not an enforcement issue with government paying costs, the administrative burden of collecting advance costs from government, administering them and then returning them to government is essentially just wasted money, time and energy. That is the basis for the exemption for government from providing security for costs in advance.

M. de Jong: I’m not going to quarrel with the logic of what the Attorney has just offered, except perhaps to add this. It is based, I guess, on some experience of a decade or more ago and the observation that government isn’t always a great client. I say that in defence of the lawyers that ply their trade within government.

Trying to get instructions from various departments of government, as I’m sure the Attorney can attest, can be a bit of a challenge. There are generally two times when it is possible to attract the attention of the governmental client.

One is when the hearing is about to start and prospects for a successful outcome diminish. Maybe that’s not unique to governmental clients. The second one is when it’s time to cut a cheque. Again, I’m not going to argue the logic of what the Attorney has said with respect to government being good for the costs.

[6:15 p.m.]

I do know that he and I have seen examples where litigation has gone on far too long within government, to the detriment of another party, because government does have access to a potentially endless supply of resources. Sometimes forcing decisions upon clients within government is an effective way of having them confront the fact that perhaps the strategy of the case that seemed so ironclad when it started deserves to be reconsidered.

I’ll leave it at that on section 34 and advise the committee that my next question will be on section 46.

Clauses 34 to 45 inclusive approved.

On clause 46.

M. de Jong: It’s really a question as it relates to costs and a general question.

First of all, if there’s any appreciable difference between how costs are dealt with in this division, in this part of the bill, and what has existed in the Court of Appeal Act, I’d be obliged to the Attorney to set out what it is.

Then, secondly, I’d ask him to comment on whether or not the question of costs factors into the conversation we had earlier with respect to self-represented litigants. I don’t have an answer on this one. To what extent the prospect of costs represents an impediment to a self-represented litigant is, I suppose, an obvious question.

I’ll leave it there. I think the Attorney probably understands the nature of my inquiry.

Hon. D. Eby: Obviously, in the context of someone that is extremely limited in resources, they may apply for indigent status in the Court of Appeal, which would mean that they wouldn’t have to pay filing fees, either, or costs if they’re unable to do so.

This section does provide an authority to the registrar to consider, in the context of the hearing, the nature of the applicant and the nature of the application. They could consider such things as whether someone is self-represented or otherwise in their assessment of costs. This section provides that authority for the registrar to consider these things in their assessment for costs.

[6:20 p.m.]

I note that there is no existing provision in the act that mirrors this. Currently it’s in the rules. This would pull that section of the registrar’s authority into the act so that all the registrar’s authorities are contained within the act for greater clarity, part of the cleanup work that was happening under the act.

Clauses 46 to 57 inclusive approved.

Title approved.

Hon. D. Eby: I move the committee rise and report the bill complete without amendment.

Motion approved.

The committee rose at 6:21 p.m.

The House resumed; Mr. Speaker in the chair.

Report and
Third Reading of Bills

BILL 11 — COURT OF APPEAL ACT

Bill 11, Court of Appeal Act, reported complete without amendment, read a third time and passed.

Hon. M. Farnworth: I call committee stage, Bill 5, Insurance Corporation Amendment Act.

Committee of the Whole House

BILL 5 — INSURANCE CORPORATION
AMENDMENT ACT, 2021

(continued)

The House in Committee of the Whole on Bill 5; N. Letnick in the chair.

The committee met at 6:23 p.m.

On clause 2 as amended (continued).

M. Lee: Appreciate that we can come back to the discussion on clause 2 of Bill 5 as the member for Prince George–Mackenzie and myself have been discussing with the minister at the committee stage, as well as the Leader of the Third Party.

[6:25 p.m.]

I just wanted to come back to two principle concerns. One we’ve talked about at length, which has been, at least in our view, a concern regarding the lack of independence of the fairness officer under section 55 of the bill.

I just wanted to ask the minister to clarify. When we were having the discussion at committee stage relating to this particular section, the minister referred to, in the case where, certainly in terms of the budget process, that the expenditures would be…. The budget process for necessary expenditures would be determined by way of regulation. The minister made a comment that if there’s a disagreement between the fairness officer and the board on what is necessary for the officer to fulfil their mandate, then the officer can submit a special report to the minister regarding the budget.

By the description that the minister was providing, it sounds like there has been some consideration as to the process under which the minister would intervene in respect of, in this case, a disagreement as to the budget. Could I ask the minister if he could please describe further what the regulations that are contemplated…?

Obviously, there is reg-making power in this bill later on, but just in terms of this specific section, because it does refer to how the budgeting process, as prescribed by regulation…. If I could ask, again, for the minister to give further explanation of that process and the circumstance in which the minister would intervene. Clearly, by the previous statements, that budget process would require the agreement of the board.

Hon. M. Farnworth: I thank the member for the question.

Yup. The fairness officer will submit a budget to the board. The board will approve that budget. They may amend that budget. If the fairness officer is not happy with what the board’s decision is, then they have the ability to submit a special report to me as minister.

There is not a prescribed process for me as minister in terms of how I would deal with it. As minister, at the end of the day, there is considerable discretion in how to proceed on matters and to make a decision. I obviously would look at the report. I would obviously look at what the board has submitted and what the fairness officer submitted and make a decision accordingly.

At the end of the day, this is, again…. It’s also not something that I expect would happen particularly often. The reality is that you are dealing with professionals, both in the corporation and in terms of the fairness officer. But there is that mechanism there, if there is a dispute or a concern, that as minister, I have the ability to examine it and to make a decision.

M. Lee: I appreciate the response. I presume, though, that this will be an annual budgeting process. Is that correct?

[6:30 p.m.]

Hon. M. Farnworth: It will be an annual submission. The fairness officer will submit a budget. That budget will include a forecast for the two subsequent years as well.

M. Lee: I just wanted to continue this line of inquiry here. In terms of the forecast…. Presumably, of course, this is going to be a new establishment of an office, but let me just clarify that.

Given that there is a new transition under the no-fault regime, with this officer with these responsibilities, does the minister currently have, from the ministry, an overview as to what the expected budget envelope might be within ICBC for this new office?

Hon. M. Farnworth: It’s my expectation that this is something the new fairness officer will work with ICBC and the board to determine, once they’re appointed.

I would obviously expect that in terms of determining what that budget needs to look like, they will go back and look at the number of cases that have been dealt with in preceding years, for example, to give some sort of scope in terms of what that budget requirement would be.

M. Lee: I appreciate the response. I think this belies the challenge for the board of ICBC and the new fairness officer.

With the skill sets the minister spoke about last time, there really is no…. Although there has been previously some experience relating to a similar fairness office or function, this is an entirely different regime. So there isn’t really a firm track record in terms of what this will look like. I expect that there will be a great deal of working through and forecasting that will be determined on an annual basis. That will need to be adjusted as the new fairness officer goes forward and builds up an office to deal with this new regime.

If I can just ask a question before giving way to the Leader of the Third Party, who has some other questions before I come back. Given that we are sitting now on March 17, with the new no-fault regime to come in place on May 1, has there been, in terms of the search for the fairness officer…? Is there a process that’s underway right now, in terms of a posting and a job description, seeking the individuals who’ll potentially serve in this capacity?

[6:35 p.m.]

Hon. M. Farnworth: It will be a cabinet posting, and I can let the member know that the posting is imminent. It will be posted very shortly.

S. Furstenau: Back to the capacity of the fairness officer and what this person would and would not be able to do, in terms of helping people with situations they have. I have a fairly specific example that is actually happening in real time, something that’s been brought up to me by a constituent. It traces back to the Evidence Amendment Act.

The act puts a cap on disbursements for legal fees and other costs in cases where the fees have already been incurred, but there is a transitional period, as the minister would know very well, a transitional provision on that 5 percent limit of disbursement fees that would not apply if people had a notice of trial before February 6, 2020, for trials pre-October.

However, then COVID hit. There have been a lot of delays in court processes. A lot of people whose trials could have fallen before that time set in the transitional provisions — they’re not going to make it. There are clients now of lawyers who have some pretty significant costs for experts that have been accrued. With the changes in the legislation because of the Evidence Act, these clients may, in fact, be facing having to pay these themselves.

My question, I guess specific to this bill, would be: is that something the fairness officer would be able to weigh in on? Would the fairness officer be able to say to ICBC: “You need to address, basically, this unfairness that’s happened to people because of circumstances well beyond their control — a global pandemic”?

Then I guess second to that would be: if the fairness officer wasn’t able to do it, would the minister consider doing it?

Hon. M. Farnworth: The answer would be no. It will not be within the fairness officer’s jurisdiction.

S. Furstenau: I guess that brings us back to the question of the efficacy or the usefulness of the fairness officer when there is an example like this. That is kind of a structural unfairness that has resulted because of the pandemic and because of delays to court cases being able to be heard.

What would people be able to expect from the fairness officer in cases like this?

[6:40 p.m.]

Hon. M. Farnworth: They would not be dealing with anything to do with the Evidence Act or anything that’s before the courts. They could look at, maybe, ICBC processes, but that would be it. The rest that you have described would be a matter where the courts would be the ones making decisions.

S. Furstenau: I’ll turn it back over to the official opposition after this.

I think it just highlights, again, the kinds of fundamental questions around this legislation and the notion of a fairness officer for a Crown corporation that is ideally meant to be serving people. We would want to have it be operating in a way that people feel is fair in its actions, generally speaking.

I do feel a level of caution around this legislation and this proposed role in that, as it stands in legislation, it seems that it’s a pretty circumscribed position, circumscribed role, that would limit just how much this person would have the ability to really be somebody that the people of B.C. could turn to in a moment when they feel that they have not been treated fairly by this Crown corporation. I know we’ve discussed this at some length, and there’s going to be more of it, but I just wanted to put on the record that I still remain quite concerned with just how useful this could ultimately be — and costly.

M. Lee: Well, I certainly share the concern of the Leader of the Third Party. I know that my colleague the member for Prince George–Mackenzie has raised that issue in this House as well. We have a series of further questions relating to, as the Leader of the Third Party just described, the circumscribed nature — or otherwise, the very limited powers — of the fairness officer.

As we know, the powers and duties of the fairness officer…. As the member for Prince George–Mackenzie had gone through in detail in the last committee session, section 56 sets out the duties of the fairness officer. I’d like to, though, spend some time on the restrictions on the jurisdiction set out in section 57, which again, the Leader of the Third Party has noted — and myself — in comments on this bill, even at the committee stage.

[6:45 p.m.]

If I could ask the minister…. We had some discussion, last time around. The minister has continued to frame or state that the fairness officer would have every authority and ability to investigate the procedures and processes that were used to determine the benefits that an individual would receive and make a recommendation to ICBC about what they found in terms of those processes and procedures.

If we look at what a complaint is defined as under the bill, in terms of a “corporation process,” as the minister, certainly, noted in the last committee session, it refers to the subsections of the Insurance Corporation Act under (7)(b), (c), (d), (g) or (h). Of course, those sections refer to the administration of the plans of insurance, for example, under (7)(b).

If the policies and procedures that the minister is speaking of relate to that…. If I can ask the minister: how does the fairness officer separate out the review of those policies and procedures as to insurance from the amount payable by the corporation? Certainly, those policies and procedures get to a determination of the amount payable by the corporation, whether it’s through benefits or other compensation.

To the minister: if he could just walk us through how it is that we’re separating out those same policies and procedures from the amount payable by the corporation.

Hon. M. Farnworth: If someone believes or feels that they have an issue around fairness, they go to the fairness commissioner. The fairness commissioner will look at the issue that has been raised.

[6:50 p.m.]

If they find, for example, that there has been an unfairness — that the process has been unfair — they will make a recommendation to the board. The board can then take steps to remedy the unfairness in the procedural process. That, obviously, may or may not result in a different outcome.

M. Lee: Just to clarify, as we walk through this. Is the minister suggesting, then, that an individual complaint filed by one British Columbian will escalate in the manner of the review, under section 56?

Looking into the nature of the decision or recommendation made but not being able to comment on the amount determined payable by the corporation or make recommendations relating to the amount payable by the corporation, brings that up to the board…. Somehow it’s describing a policy or procedure that has led to some unfair result or determination by that individual in that individual’s case.

We’ll come back to the nature of what the fairness officer is escalating up the chain to the board. I just want to clarify one point first. It will be individual cases that the board is going to be reviewing, in terms of what policy and procedure was deployed by an ICBC staff member — whatever the individual is being called or termed after the no-fault regime. Is that the case?

Hon. M. Farnworth: It would be both. The fairness officer has the ability to deal with individual unfairness, in terms of policies and procedures, and also has the authority to look at potential systemic unfairness in policies and procedures.

Noting the hour, I move the committee rise, report progress and ask leave to sit again.

Motion approved.

The committee rose at 6:55 p.m.

The House resumed; Mr. Speaker in the chair.

The Committee of the Whole, having reported progress, was granted leave to sit again.

Hon. M. Farnworth moved adjournment of the House.

Motion approved.

Mr. Speaker: This House stands adjourned until 10 a.m. tomorrow morning.

The House adjourned at 6:55 p.m.