Civil juries, litigation rights on chopping block

Eby searching for ways to ease backlog of 90,000-plus motor vehicle court cases

A one-year moratorium and possible elimination of civil juries and mandatory arbitration on motor vehicle litigation are being considered by Attorney General David Eby to ease the burgeoning backlog in B.C. Supreme Court.

Confronting 90,000-plus outstanding MVA cases, Eby on June 24 asked legal system stakeholders for urgent advice on two proposals:

“The temporary, one-year suspension of civil jury trials with a view to broader discussions about civil jury trial reform, including the prospect of eliminating civil jury trials completely; and ‘binding arbitrations’ in motor vehicle actions.”

The curtailment of litigant’s rights to cure a symptom of the pandemic was given “qualified support” by the Trial Lawyers’ Association of B.C., which coincidentally urged Eby to abandon his transformation of ICBC and the province’s vehicle insurance scheme to a system of no-fault.

John Rice, president of the TLABC, said the group wanted to work with the NDP minister to address the debilitating effects on the legal system of COVID-19, but his 1,500 members had qualms.

In particular, they believe ICBC’s recent litigation strategy represents a concerted effort to break the system to justify the reforms now before the legislature.

“In the case of ICBC-defended MVA claims, and over the last few months, it is the experience of plaintiffs that ICBC is frequently insisting on jury trials and looking to adjourn trials over proceeding by judge alone during the pandemic,” Rice said in a seven-page reply to Eby’s request for input.

Given the Crown corporation is the province’s biggest litigant, Rice insisted such efforts to delay trials represented an abuse of process and should be stopped.

Eby, the minister responsible, should instruct ICBC to stop the practice of “meat chart” offers, and “get back to good faith litigation,” Rice added.

The trial lawyers’ association also hedged support for “voluntary, plaintiff-only choice for arbitrating MVA cases provided that certain criteria are met.”

“We would need to find common ground on the rules of procedure and costs and disbursements which we presume would follow the event. ... The costs of the arbitration itself, the associated administration costs and the arbitrator’s fees, would all have to be borne by ICBC and/or the Province.”

Rice emphasized the court had to agree with the move — which Eby agreed would be the next step.

Some Canadian jurisdictions already restrict civil jury trials to only matters such as defamation, false imprisonment and malicious prosecution. Quebec does not use them.

Still, the trial lawyers’ association maintained: “Recourse to jury trials in our system of civil justice is a critical civil right.”

It could support a moratorium only.

Without civil juries, individuals are denied the opportunity to have their case heard by their peers.

Neither ICBC nor Eby responded to requests for comment Tuesday by deadline.