Since March 19, 2020, there has been a “suspension of all regular operations” of the Supreme Court of British Columbia to help contain the spread of COVID-19*. All hearings scheduled to proceed between March 19, 2020 and May 29, 2020 were forcibly adjourned. However, the Court is not entirely closed for business as it will hear “essential and urgent matters”**.
So what qualifies as “essential and urgent”?
The Court has provided some general guidance by way of a list of matters that are presumptively essential and urgent, including:
- Matters related to public health and safety;
- Matters related to refusal of treatment and end of life matters, or detention of individuals;
- Housing evictions;
- Civil restraining orders;
- Preservation orders;
- Urgent injunction applications; and
- Urgent insolvency-related matters.
While this list is helpful in suggesting what judges may consider essential and urgent, the Court has been clear that a judge has discretion to refuse to hear such matters (or to hear matters not listed). The judge will exercise that discretion after consideration of an online written submission made by the party seeking the urgent hearing.
Two members of our commercial litigation team, Hein Poulus Q.C. and Joseph Ensom, were recently successful in obtaining an urgent hearing in the context of a shareholder dispute between the two 50% shareholders of a private company. The shareholders, who were also the two directors of the company, were in a deadlock. The opposing shareholder was refusing to authorize the company to pay its suppliers in the ordinary course of business. As a consequence, the business was running low on inventory and, if the suppliers were not paid promptly so that inventory could be replenished, within a few weeks the business would be forced to cease operations and lay off dozens of employees. In the context of a broader oppression petition, our client sought an urgent order authorizing it to be the signing authority for all supplier payables in order to break the deadlock and avoid the shutdown of the business.
Within a day of making the online submission, we had a hearing date scheduled for the following week.
The above experience was instructive with respect to how the Court will assess urgency in a business context. Narrowly, it appears that the Court will consider applications seeking urgent orders to preserve the ongoing operations of business (and the jobs of employees), even if there is no suggestion of insolvency. Put more broadly, it is encouraging that the Court will consider imminent economic harm as a basis for an urgent hearing.
* This article relates solely to the procedure before the BC Supreme Court. Administrative tribunals, such as those handling labour and employment issues, are subject to different closure orders, or have made their own determinations with respect to what matters to hear, during the COVID-19 pandemic.
**As of April 20, 2020, the Court permits parties who had matters adjourned during the “Suspension Period” to schedule a “Telephone Conference Hearing” (“TCH”) with respect to matters that are not urgent and essential. There are restrictions on what may be heard at a TCH. Currently, this process is only available to parties who were subject to the forcible adjournment and not for newly-arising matters.
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