Civil, family trials to be adjourned because of 'unprecedented' number of jury trials

People with civil or family division trials, or small claims appeals slated to be heard in the Court of Queen's Bench of New Brunswick in the coming months will face adjournments due to an "unprecedented" number of jury trials, a "large volume" of child protection matters and judge vacancies, according to internal memos from the chief justice.

"The requirement to prioritize criminal matters in the trial division is compressing the available court time to manage civil matters," Tracey DeWare advised Court of Appeal Chief Justice Marc Richard, Justice Minister Ted Flemming and members of the New Brunswick Law Society.

"I fully appreciate the impact on individuals when long awaited court dates are adjourned and regret that such steps will be necessary."

It's unclear how many civil matters will be adjourned over the course of the next few months, DeWare said in an emailed statement to CBC.

"We are attempting to work with the lawyers/parties affected when an adjournment is necessary by offering to do settlement conferences where appropriate," she said.

Meanwhile, any new jury trials of more than two weeks will be scheduled roughly nine to 15 months ahead, "given the court's current schedule."

There are currently 43 jury trials scheduled in the Court of Queen's Bench over the next 15 months, according to the first of the two memos obtained by CBC News.

That's down from 62 in January, DeWare noted in her statement.

The court has "experienced an unprecedented number of jury trials being scheduled over the course of the last two years," she wrote in the memo, dated June 9. "This trend does not appear to be transient nor does it appear to be abating."

From 3 jury trials a year to 3 simultaneously

The reason for the significant increase in jury trials is unclear, but the phenomena is not unique to New Brunswick, DeWare told CBC. Superior courts across the country are grappling with the issue, she said.

"While initially it was thought the pandemic played a role in the significant number of jury trial elections, it is clear that this assumption is no longer appropriate."

A decade ago, New Brunswick could have had a total of three jury trials over the course of a year, she said. 

"Now we have had three jury trials running at the same time within the province."

While many of the jury trials may be resolved prior to the trial dates, they still have to be scheduled, with all the pre-trial appearances arranged, said DeWare.

"It is not uncommon in complex … trials that [two] or [three] pre-trial conferences are necessary along with a number of days of [voir] dires to consider applications on the admissibility of evidence or Charter issues," she noted.

"Following the Supreme Court of Canada's direction in R v. Jordan, it is necessary that these matters be heard on a timely basis."

The 2016 decision set hard limits on the amount of time that can pass between the laying of charges and the anticipated end of a trial — 18 months in provincial court and 30 months in superior court.

"Therefore, the scheduling of jury trials, as with all criminal trials, must be prioritized on the court's available dockets," she explained.

'Logistical challenges'

"Logistical challenges" will result in the adjournment of matters on the civil dockets, both in the trial division and family division, over the next few months, DeWare advised in the memo.

Nineteen of the jury trials are scheduled for Moncton, where only two judges handle trials.

This has "necessitated the reassignment of jury trials to justices from other judicial districts."

"Unfortunately, the reassignment of justices will require the adjournment of matters as the dockets are largely fully booked for the balance of 2022 and well into 2023," wrote DeWare.

While the large number of jury trials is straining judicial resources in the trial division, she said the large volume of child protection matters is taxing the resources of the family division, particularly in the southern part of the province.

"As with jury trials, child protection matters must be heard by the court on a timely basis and in consideration of the timelines set out in the Family Services Act.

"At the moment, the court is frequently unable to meet the statutory timelines given the challenges with both judicial resources as well as availability of counsel representing the parties."

All districts impacted

These challenges are further complicated by the judicial vacancy in Miramichi following Justice Fred Ferguson's decision to elect supernumerary status in October 2021 and work part-time, and the vacancy in the Moncton trial division following Justice Denise LeBlanc's elevation to the Court of Appeal this month.

LeBlanc's docket was fully booked for the balance of 2023, including five jury trials, DeWare told CBC.

"All of these jury trials have had to be reassigned to other judges whose schedules for 2023 were, as well, already fully booked."

"In order to ensure that priority matters are heard, it will be necessary to draw justices from across the province." DeWare wrote in the memo.

"Therefore, while individual judicial districts may not be affected by the judicial vacancies or increased jury trials, they will nonetheless be impacted as resources will be needed from these judicial districts to address urgent matters in other judicial districts."

Settlement conferences over small claims

To make room on the dockets for "pressing matters," and allocate available resources as efficiently as possible, the Court of Queen's Bench is also suspending the hearing of first instance appeals under the Small Claims Act for the balance of 2022, DeWare advised in a follow-up memo, dated June 14.

Dates previously assigned for these appeals will be "reallocated" and used for settlement conferences in the trial and family divisions.

"It is hoped that these additional settlement conference days can assist in resolving matters from the civil dockets that may otherwise be adjourned to accommodate priority matters or scheduled months down the road," wrote DeWare.

"It is my hope that by the end of 2022 we will have the benefit of a full judiciary complement and will reinstate the hearing of matters pursuant to the Small Claims Act in January of 2023," she added.