How to Bring an Urgent Application at the B.C. Supreme Court While the Courthouses Are Closed

Friday, April 3, 2020 – Effective March 19, 2020, the B.C. Supreme Court suspended regular operations of the Supreme Court of British Columbia until further notice. While the courthouses are closed, applications may be made to the Court only for essential and urgent matters. The move is part of the Court’s efforts to protect the health and safety of court users and to help contain the spread of COVID-19.

The procedural approach of the Courts to the present crisis may be expected to continue to evolve. Those wishing to have matters brought before the Court will need to check frequently the Court’s website for its updated requirements.

On March 30, 2020 and April 2, 2020, the Court provided updated notices regarding lists of civil, family and criminal matters which are presumptively considered to be of an essential and urgent nature, and insolvency matters which can be considered to be of an essential or urgent nature. We list them at the end of this post.

The Court also has discretion to hear urgent matters other than those listed, and to decline to hear a matter listed.

New court process for hearing essential and urgent applications

The Court has created an online procedure to hear only essential and urgent applications. The procedure contemplates an electronic process for filing application materials, and a phone or video hearing.

The Court provides a new, online form titled “Request for Urgent Hearing” which you must fill out to have your matter heard. You will receive an email confirming receipt, and instructions for providing the Court with relevant unfiled materials so that it may determine if matter is of sufficient urgency to require a hearing. In its notices, the Court notes that a paper process can be used if it is not possible to use the online process, and it particularly remarks the “size limit of 10MB for documents submitted through CSO or email, which may require documents to be sent in stages or filed by the paper process.”

Presumably the judge or master hearing the application will also want to provide direction regarding how to proceed with a remote application according to the needs of the application, and the convenience of the parties and the Court.

We suggest that you consider adding to the Request for Urgent Hearing that the parties will:

• use CaseLines software to produce application materials to the Court and to present application materials in Court; and
• use video conferencing software such as Skype for Business or Zoom to facilitate the hearing.
• You may like to include a link to this post to support your request.

Presenting application materials when the courthouse is closed

CaseLines uses a cloud-based document repository based in Canada. It is designed to help parties present documents electronically to the court. It has already been successfully used in the B.C. Supreme Court in Hutchison v. Moore and The Nuchatlaht v. BC. Its use aligns with BC’s Court Digital Transformation Strategy 2019-2023.

An example of an application file in CaseLines. You can customize and change the name of the case, the titles of folders and documents in the left pane. You can also “lock” the file prior to the application hearing.

In CaseLines, there is no 10MB size limit on documents you upload.

Once the documents are uploaded, you can arrange them exactly as you would arrange your Application Binder. In the example application file above, we organized the documents into folders for pleadings, Plaintiffs filed documents, Defendants filed documents, authorities and written submissions.

There is no software to install. You only need to create an online account with Caselines, and you are ready to start using Caselines. This will be the same for the other parties and the judge.

You do not need to purchase licenses to use CaseLines. CaseLines charges 40c/page for documents to be uploaded. It is a one-time charge. You, as the applicant’s counsel, upload your documents, and then the responding parties and the Court can all access those documents with no further charges. Responding parties will pay similar charges related to their posted material. This can be clarified by agreement.

During the hearing, as you speak to a document, you will tell the other parties exactly what page you are referring to, and the parties and the Judge will be able to instantly navigate to the same document and review it. You can also use the software to send a pop-up message to the other parties and the Court that you are asking them to review a specific page.

CaseLines adds Bates numbers to the top right corner of all pages. Those numbers make it easy to communicate to others the document, and page, you are discussing. For example, the document in the example application file above has the number “A1” in the top right corner.

There are also annotation and presentation features in the software that facilitate effective presentation to the court. In the example above, the menu bar in orange shows where you would click to draw a box, highlight text, or draw freehand on the document. On the right of the example above is our note to you: we highlighted the Vancouver court registry number and created a “widely shared note” welcoming everyone to the test case. You can also make notes that are private to you, or shared only with your team.

Why CaseLines?

Some people will tell you that there are lots of different ways to conduct your E-Application, and you do not need to pay CaseLines 40c/page. That is true. However, they still involve you organizing your documents somewhere and communicating with the other parties and the Court that you intend to use memory sticks or a cloud-based repository for documents. You have to think through the organization of your documents. You have to explain to all involved how the parties and the Court will have access. You may or may not have to deal with size limits on documents. All of this may cost you more in terms of time and effort.

Also:

• CaseLines has added functionality that you will not get on a memory stick. For example, it gives you the ability to direct others to the page you are talking about, and different ways to make notes on documents (and share those notes with your team). It also lets a person download all the documents in one giant PDF at the end of the hearing if that is needed for court records.
• The process is scalable. Once you have learnt how to do your first e-Application in CaseLines, you will be able to follow the same process for the next one, and the next one.

Finally, you’ve got enough on your plate right now. This post is all about sharing something that works. CaseLines has been running successfully in every Crown Court in England and Wales for the last four years. Its record includes 39,000 users and over 400,000 E-Trials.

Coupled with the free use of video conferencing software such as Zoom, this is a solution that meets the needs of all parties and it is one that can be used efficiently and effectively while the courthouses are closed, and without any risk of exposure to COVID-19.

We are all in this together. If you have concerns or questions about electronic applications or E-trials generally, don’t hesitate to reach out to co-author of this column, Kate Gower. You can also contact CaseLines directly: they are based in the UK and providing support and assistance up to at least 3pm Vancouver time.

— William G. MacLeod Q.C. and Kate Gower

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Appendix: List of matters considered to be Essential and Urgent

From: The Courts of British Columbia – Important Announcements – COVID-19: SUSPENSION OF REGULAR COURT OPERATIONS, Online at: https://www.bccourts.ca. See specific notice citations below.

FAMILY MATTERS

Essential and urgent matters in family proceedings include those in which the following relief is sought:

• Orders relating to the safety of a child or parent due to a risk of violence or immediate harm (e.g., a protection order, conduct orders, or exclusive possession of the home);
• Orders relating to the risk of removal of a child from the jurisdiction (e.g., relocation, non-removal, wrongful removal or retention of a child); and
• Orders relating to the well-being of a child (e.g., essential medical decisions, urgent issues relating to parenting time, contact or communication with a child that cannot reasonably be delayed).

CIVIL MATTERS

Essential and urgent matters in civil proceedings include:

• Matters related to public health and safety and COVID-19, including:
  • orders under the Quarantine Act; and
  • orders under the Public Health Act.

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

Source: Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings – Date: revised March 30, 2020

INSOLVENCY MATTERS

The following are examples of insolvency matters that can be essential or urgent:

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

Source: Notice to the Profession, the Public and the Media Regarding Civil Proceedings – Insolvency – Date: April 2, 2020

CRIMINAL MATTERS

Essential or urgent criminal matters include the following:

• Judicial interim release (bail) and bail review hearings;
• Scheduling and detention review hearings under s. 525 of the Criminal Code;
• Habeas corpus applications, or other applications by in-custody accused persons and offenders that require prompt attention;
• Applications under Part VI of the Criminal Code, applications for search warrants or arrest warrants, or other related applications that should not be delayed.

See: Notice to the Profession, the Public and the Media Regarding Criminal Proceedings – Date: revised March 30, 2020