B.C. lawyers worry about cost to clients as return to in-person court hearings approaches

As the courts in B.C. continue to revert to a way of doing business that looks like pre-pandemic times, some lawyers in the province are upset that certain hearings are returning to in-person proceedings — a move that could cost clients hundreds, or even thousands of dollars for short appearances before a judge.

B.C. Supreme Court is currently carrying out case management — or scheduling conferences — virtually, along with what's known as chambers hearings. But beginning in August, the court has ordered lawyers to appear in person for chambers hearings.

"I think 99 per cent, everybody's shocked and against this, because we all know the cost and the consequence of this," said Leena Yousefi, who practises family law in Metro Vancouver.

Most other court business, including trials, has already returned to in-person proceedings, but lawyers have been able to dial in, or appear remotely for minor issues.

For family law as well as other types of cases, some of the proceedings take place in chambers. Lawyers can make applications on behalf of their clients, request interim orders, or deal with other parts of a case.

Occasionally, a matter in chambers can take a day or two, but often it's as short as 10 or 20 minutes, according to Yousefi, who says 90 per cent of a family law case can take place in chambers, before a trial or resolution at the end.

Travel and wait time gets billed

She said lawyers often have to travel to different courthouses, and for most chambers matters, they have to wait along with many other lawyers on different cases — each trying to get some time in front of a judge or master to make arguments. The wait can sometimes be hours, or even all day, forcing them to come back a second day.

According to Yousefi, a mid-level lawyer doing family law bills $300-$350 per hour, meaning a short chambers hearing can quickly end up costing a client $1,500 or more, most of which is just travelling and waiting time.

"You know the clients, it's their life savings. This is not two corporations suing each other, it's two parents or married people trying to figure out things with the children or support," she said. "So if I have to spend their money — you know, two, three, four hundred dollars an hour — just to travel to court and wait around, that can really hurt them."

Yousefi said that throughout the pandemic, she and her fellow lawyers have been able to continue with other work in their offices until their hearing comes up, and she's able to bill her clients just for the time it takes, even if it's less than an hour.

Access to justice issue

For Scott Morishita, a personal injury lawyer in Vancouver and second vice-president with the B.C. branch of the Canadian Bar Association, requiring lawyers to return to in-person hearings when virtual appearances would be suitable amounts to an access to justice issue. 

"Well in our view, it's really the clients that lose," Morishita said of the requirement that lawyers attend minor, brief hearings in person.

"It matters a lot. The pandemic had the impact of essentially propelling the justice system into a long-awaited modernization," he said. "There really is no turning back."

Morishita said it's his organization's recommendation that all courts and tribunals should permanently implement remote hearings for procedural, uncontested, shorter and less complex matters.

'A massively backwards step'

A B.C. Supreme Court spokesperson declined to comment on the upcoming changes for chambers hearings, except to note that there is an application process for lawyers who want to appear remotely for any given matter.

According to Yousefi, the default, unless a hearing is scheduled for a day or two, should just be remote appearances — or it should be a simple choice at the time of scheduling. She's skeptical of the application process and whether judges will allow remote appearances.

"I feel like this is a massively backwards step for access to justice," she said.