Commercial Litigation and Dispute Resolution Blog

After the initial phase of suspension of non-urgent hearings due to the COVID-19 pandemic, courts in British Columbia have started to move towards alternative ways to resume the operation of the justice system. With the increasing prevalence of remote communication options, courts have developed procedures to conduct hearings remotely using video or audioconferencing.

We have outlined remote hearing procedures from all levels of courts in British Columbia, and collected some practical tips from our lawyers on how to more effectively conduct a remote court appearance. This process, however, isn’t static and we would encourage everyone to check frequently as to updates from the Courts. You can find the links to the relevant court notices at the end of the post*.

B.C. Court of Appeal

• The Court of Appeal will hear all appeals, urgent or not, via video conference hearing using Zoom from May 4, 2020. All chambers applications will be either by teleconference or in writing. Parties will not be permitted to adjourn appeals on the sole basis that they would prefer not to proceed by videoconference.
• 14 days before the hearing, counsel must complete and submit the Court Proceedings by Video Conference Form where they explain the style of proceedings, list the people who will be on the call, any privacy concerns and proposed steps to mitigate those.
• After downloading the Zoom application, you must check that your webcam, speakers and headphones are working properly and familiarize yourself with the mute and start/stop functions in a Zoom meeting. This can be done via a test meeting.
• Participants should confirm that their Zoom username is the same as the one they indicated on the Court Proceedings by Video Conference Form.
• The day before the hearing, parties will be sent an invite link for the video conference. This link must not be shared with anyone other than co-counsel. If the client or any other member of the public wishes to observe the viewing from another device, they must submit a Request to attend Video Conference Proceedings Form. Counsel is recommended to join the Zoom meeting five minutes before the hearing is set to begin.
• The Court will publish separate public links to the video conference hearings on the Weekly Hearing List. The public will be able to see and hear the judges, counsel and litigants in real time.
• Lawyers and self-represented litigants are expected to wear business attire, but lawyers are advised not to gown. None of the participants are required to stand or bow at any time during the hearing.
• Participants must mute their microphones when they are not speaking. When they are speaking, they must pause frequently to allow the Court to ask questions.
• When the Court stands down, the hearing session will remain active. Participants will be responsible from turning off their own microphone and camera. Participants will remain in the Zoom hearing until the court clerk (Zoom host) terminates the session.

B.C. Supreme Court

The Supreme Court’s remote hearing procedure is limited to teleconference and is only applicable to specific matters.

• Trial Management Conferences that were already scheduled to take place on or after June 1, 2020 as well as those that were scheduled to take place between March 19 and May 29, 2020 (these were adjourned), will be conducted via teleconference.
• Other matters scheduled for a hearing between March 19, 2020 and May 29, 2020 can be can be conducted by a teleconference hearing if they satisfy three criteria: The matter must be (i) limited to one issue, (ii) suitable for determination by teleconference, and (iii) can be addressed on the basis of a single affidavit no longer than 10 pages per party.
• Chambers applications, other than short leave applications estimated for 2 hours or less, will also be conducted via teleconference starting from June 8, 2020.
• Parties are required to submit a Modified Notice of Application and indicate there that the hearing is by telephone.
• At least one day before the hearing date, the Court Registry will send the parties a hearing confirmation email with instructions about how to join the telephone conference and the time that the parties must check in with the court clerk.
• Parties will check in with the court clerk at 9:00 am the morning of the hearing, and remain muted on the line until their matter is called and heard. This is unless the hearing confirmation email provides otherwise.
• It is forbidden to record teleconference proceedings.

B.C. Provincial Court

The Provincial Court is currently holding certain hearings in person, and others by remote hearings, depending on the nature of the proceeding and the date it was scheduled for.

• Remote hearings will be held via Microsoft Teams (video or audio conference) starting from May 7, 2020. Participants can join this platform on a computer or by dialing in with a phone.
• Audio and video recordings are explicitly prohibited in the guidelines.
• Microphones must be muted when not speaking, and cell phones must be on silent mode.
• Participants are required to identify themselves upon joining the remote proceeding. For an audioconference proceeding, parties are to say their names whenever they start speaking.
• Presenters must pause frequently to allow the judge to ask questions.
• If it is necessary to object, respond, or comment, participants must raise their hands to signal to the judge that they wish to speak. On the phone, this should be done by respectfully interrupting the conversation when appropriate.
• Notes must be taken using pen and paper as the sound of typing can be distracting.
• It is not allowed to eat or drink anything but water during the proceeding.
• For audioconference proceedings, parties must not use the speaker phone function.
• For videoconference proceedings:
  • Parties must dress as if they are attending an in-person proceeding.
  • They must join the videoconference at least 15 minutes before the start time and wait in a virtual waiting room.
  • None of the participants are required to stand or bow at any time during the hearing.
  • Speakers must look directly in the camera when they are speaking.
  • Participants can share their screen with others on Microsoft Teams (in order to show a document) only if directed by the court.
  • If the court needs to stand down, the hearing session will remain active. Participants will be responsible from turning off their own microphone and camera.
  • If Microsoft Teams is not working, parties will be connected by Telus teleconference.
  • After downloading Microsoft Teams, parties must check that the webcam, speakers and headphones are working properly. The Court may also schedule a test call prior to the proceeding.
  • Participants should switch off their cameras when they are not speaking or not required to be seen, as the Judge directs.

Remote Hearing Tips from Practitioners

Pre-hearing:

Do a test call with colleagues to get feedback about the quality of the voice and video. Headphones with built in microphones are reported to work best for voice quality. Be sure to pay attention to lighting in the room you are going to connect from.

Test the internet connection. It is best to do a test call at the same location and with the same internet source that will be used during the remote hearing. It is prudent to plan for alternative internet sources, such as your phone’s hot spot or a wifi dongle, in case your primary connection fails unexpectedly. You should also consider installing the appropriate software on alternative devices as a back-up.

To the extent you can, agree with co-counsel and confirm with the court about what platform and procedure to use for document exchange. This can be crucial especially if additional documents relied on in argument need to be exchanged.

Again, to the extent you can, agree on a private means of communication with your co-counsel or client. Your co-counsel or client might not be in the same room during the hearing. In this case, instant messaging platforms such as iMessage, Whatsapp or Jabber work best.

During the hearing:

Look at the camera when making submissions. Especially if you are using a big screen, looking at the screen might be different than looking at the camera. It is distracting for the judge to see counsel staring elsewhere while they are speaking. Moreover, as can be appreciated, submissions will be less effective with improper eye contact. Test this out beforehand.

Use two screens. The videoconference screen takes up considerable space on a computer screen. A second screen (computer, tablet, smart phone) is useful for viewing documents while making submissions.

Be patient, go slow, and be methodical.

Adapt your presentation to take into account that fact that the judge is dealing with electronic documents. Navigating electronic files may be more time consuming than hard copies. Accordingly, counsel should allow time for the judge to find the material referred to in the submissions.

Refer to PDF page numbers. It can be confusing to find the page numbers on the document itself, so it is practical to refer to PDF page numbers.

Come back from breaks on time. It is prudent to be ready to resume the hearing a few minutes earlier than the agreed upon time, in case there are any glitches in the technology.

*_{BCCA, 29 April 2020; BCCA, 14 May 2020; BCSC, Notice No. 25, 3 June 2020; BCSC, Notice No. 26, 3 June 2020; BCSC, Notice No. 28, 5 June 2020; BCPC, 12 June 2020; BCPC, 7 May 2020; BCPC, 26 May 2020}