I. Introduction
We know that prior institutional reforms of superior trial courtsFootnote 1 have failed to meaningfully move the needle on access to civil justice and that efforts to narrow the civil justice gap have been elusive. While person-centred justice has been identified as a promising new paradigm for improving access to justice by focusing on the engagement and needs of those navigating legal disputes, key questions about the implementation of a person-centred vision in traditional, formalistic legal venues such as superior civil courts remain unanswered. Through qualitative exploration of institutional practices in the civil chambers courts of the Vancouver Supreme Court—British Columbia’s busiest superior civil trial court—this article will outline some key tensions and trade-offs to navigate when seeking to implement person-centred justice aims.
The primary research question animating this article is whether, and to what degree, congruence exists between the emerging concept of person-centred justice and the existing institutional practices within Vancouver’s superior civil chambers courts. To answer this question, Part II will begin by outlining the importance of relationality in effecting equitable institutional change. Then, in Part III, qualitative civil chambers courts observation data from the Vancouver Supreme Court of British Columbia will be analyzed through two concepts distilled in Part II as the key relational building blocks that underlie person-centred practices: time and relational proximity. This analysis will illuminate possibilities and tensions between existing institutional dynamics and the normative ideals of person-centred justice. It will do this by showing the ways in which some parties are able to meaningfully engage with presiders in Vancouver civil superior chambers courts by staying “on script,” as compared with epistemically disadvantaged and relationally distant parties, who take up additional resources and experience a lower quality of engagement.
This analysis will reveal that limited, externalized and unevenly distributed legal resources impede the ability to further person-centred justice in formal civil adjudication, and that defining the relationship between person-centred justice and the public functions of adjudication is a complex undertaking. Finally, this article contributes to knowledge about how to enact person-centred justice in practice, and highlights areas in which the conceptualization of person-centred justice requires further scholarly attention.
II. Formal Adjudication and Person-Centricity
This article is focused on exploration of the contours of the emerging concept of person-centred justice in the context of interlocutory superior civil court adjudication. As will be further described throughout this article, I take the position that the examination of courts through a relational lens is essential to understanding institutional dynamics and mechanisms of change. This position derives from Tomaskovic-Devey and Avent-Holt’s sociological Relational Inequality Theory (RIT), which posits that proximate social relationships within and between organizations and institutions are key drivers of inequality.Footnote 2 Given the scale of the civil justice gap and pervasive privatization within the civil justice system,Footnote 3 the intersection of inequality and relationality provides a rich avenue for delineating the possibilities and pitfalls that we face in moving towards a person-centred civil justice system.
Several scholars have provided excellent accounts of the landscape of access to justice and person-centred justice, both globally and in Canada, which will not be reviewed extensively here.Footnote 4 Instead, in this section, I will deconstruct some elements of Carl Rogers’s original person-centred approach and provide examples from encounter groups, caring institutions, and transformative mediation practices that embody person-centricity in relational and institutional contexts. These concepts, as distilled into foundational elements of time and proximity as preconditions of institutional change, will underpin Part III’s qualitative study of civil chambers court observations in Vancouver’s superior trial court.
The concept of person-centred justice is a relatively new phenomenon that has evolved from discourse on the need for equal access to justice, documentation of the ubiquity and consequences of unmet legal needs, and the application of human/user-centred design principles as a means of centring the experiences of users.Footnote 5 As recently surveyed by Pilliar (2022), in Canada, access-to-justice debates have progressed from a narrow court-centric conception of access to justice to a more expansive vision that is articulated in the legal academy and within various stakeholder discourses.Footnote 6 The concept has global reach, including adoption by the OECD, which defines person-centricity as “inclusive, tailored to people’s needs and high quality” while highlighting that it “differs from justice systems whose reforms are primarily inspired by the needs or views of the service providers.”Footnote 7
Other fields have undergone similar developments, namely the health field, which has deployed patient-centred and people-centred care terminology for longer than those interested in access to justice.Footnote 8 The term “person-centred” originates from renowned humanistic psychologist Carl R. Rogers, who developed, advocated, and practised what he termed a “client-centred” or “person-centred” approach to the therapeutic relationship. Key tenets of unconditional positive regard (meeting someone as and where they are), empathy (willingness and sensitive ability to understand a client’s thoughts and feelings), and congruence (genuine and authentic relationships) are foundational to Rogers’s approach.Footnote 9 Rogers’s primary goal in developing a person-centred approach was to facilitate the individual’s “actualizing tendency” by promoting the inherent capacity of humans to “self-heal and self-right” through experiencing and adaption to their environment.Footnote 10
Rogers did not limit the person-centred approach to the individual therapeutic relationship. For example, encounter groups were conceived by Rogers as nondirective and unstructured therapy groups in the 1960s and have since been taken up by person-centred practitioners in several domains, including groups with nontherapeutic goals.Footnote 11 In fact, Rogers discussed the role of encounter groups specifically in the context of institutional change, arguing that they “lead to more personal independence, fewer hidden feelings, more willingness to innovate, more opposition to institutional rigidities […] [t]hey breed constructive change.”Footnote 12
Along with being nondirective and unstructured spaces, successful encounter groups unfold as a process over multiple sessions in which the initial stages are not initially productive. In the words of one encounter group practitioner, “when not enough space is allocated, the experience often feels unresolved or truncated; in these instances the shift from the ‘negative’ to the ‘positive’ does not occur.”Footnote 13 For example, Bazzano (2019) details attempts to “smuggle” encounter groups into programs training students in the person-centred therapeutic approach itself.Footnote 14 Bazzano details an evolution in which participants, when first faced with unstructured time, tend to initially voice difficulties and complaints about the object of the course itself.Footnote 15 Then, later in a session or in following sessions, a shift to general debates and the sharing of personal content and feelings occur, including disclosures of negative experiences and emotions.Footnote 16 Finally, groups tend to shift the focus onto immediate matters that are taking place in the room alongside an increase in disclosures of affection, tenderness, and love.Footnote 17
In the justice-system context, the transformative mediation model, which is characterized as a client-centred practice with party self-determination at its heart,Footnote 18 incorporates similar features to encounter groups. Mediators engage participants through opening conversations (in which participants themselves establish the ground rules and articulate goals),Footnote 19 by encouraging and supporting each party’s freely chosen efforts to achieve understandings of the other participant,Footnote 20 and by inviting participants to share lengthy narratives (or sit in silence).Footnote 21 Through these mechanisms, which require time and space, the mediator and parties are given the opportunity to generate relational proximity, which supports agency and can achieve conflict transformation in previously intractable disputes.
Separately, care scholars, many of whom advocate for person-centred approaches,Footnote 22 have detailed what is required for an institution to be responsive and caring. For example, in the context of care-based institutions such as hospitals, Bourgault (2020) surveys how care theorists have shown that “temporal factors are critical for the provision of care that is competent and responsive to particular needs.”Footnote 23 In addition to outlining similar features to encounter groups and transformative mediation, care literature incorporates discussions about the role of inequalities in addressing needs.
In particular, a key reason why more time and a slower pace are critical features of responsive care stems from philosopher Miranda Fricker’s articulation of epistemic injustice, which posits that testimonialFootnote 24 and hermeneutic injusticesFootnote 25 arise from disparities in social power. When socially constructed epistemic disparities are present, it simply takes more time to practise the quality of dialogue and listening, or “virtuous hearing,” that is required to be responsive to needs.Footnote 26 In this way, Bourgault and other care scholars explicitly link care with relationships, which require “sufficient time and proximity” to build.Footnote 27
Returning to the emerging idea of person-centred justice, the OECD Framework and Good Practice Principles for People-Centred Justice defines a people-centred approach as “promoting a justice system that […] puts people at the centre and has as its purpose and design the goal of equally meeting the needs of all people […] by enabling their effective participation and engagement in the process.”Footnote 28
How do the practices surveyed above—encounter groups, transformative mediation principles, and caring institutions—connect to furthering person-centred justice in formal adjudication? Formal adjudication under the adversarial model has distinct purposes and aims, including prescribed procedures and impartial decision-making that serve to intentionally limit some elements of individual agency.Footnote 29 At first blush, the comparison is not intuitive. Yet, I argue that a focus on relationality and care, and the time and proximity they take to achieve, are essential elements of any person-centred practice because they are fundamental to making the shift towards understanding and responsively addressing needs.
In other words, time and relational proximity speak to the nature of engagement that is required to generate institutional transformation, though time and proximity alone do not guarantee change. While courts are considered formal legalistic institutions, they are ultimately constituted by social action and relationships.Footnote 30 Statz’s (2021) ethnographic study of rural courts in Wisconsin and Minnesota illustrates this point powerfully by highlighting that, in the absence of civil legal aid and other social support, rural judges with high degrees of social acquaintanceship with self-represented litigants—and judges’ care for their communities—provide the primary means of access to justice.Footnote 31 The civil justice gap, existing literature on courts and inequality,Footnote 32 and documented challenges that are faced by self-represented litigantsFootnote 33 all illustrate the failure of the system to meet the legal needs of most, suggesting that processes with transformative potential are required.
At their core, the legal needs of individuals who are involved in court processes can often be traced to underlying human needs that are not altogether different from those that are engaged through the therapeutic relationship, attending a hospital for treatment, or trying to resolve a legal dispute through mediation. For example, an individual who is involved in a legal dispute might be seeking to be heard, to be treated fairly, to keep another accountable for harm caused, to defend their reputation, or to protect their socioeconomic security. Throughout history, law has been implicated in both creating harm and furthering social justiceFootnote 34 but, as argued in therapeutic jurisprudence literature, it has the potential to be designed to meet psychological needs.Footnote 35
Admittedly, given their limited role in a dispute and the nature of formal adjudication, it will be rare that individual adjudicators can address all of the human needs that underlie a legal dispute when two or more parties have opposing interests. However, the humanization of law in formal adjudication through person-centred practices can promote engagement with courts that, at a minimum, does not exacerbate the harms connected to the underlying dynamics driving conflict. More broadly, shifting to a system of formal adjudication aligned with person-centricity will necessarily require changes that enable a wider diversity of individuals to effectively navigate court processes, which in turn has the potential to generate legal changes that are more attuned to underrepresented legal needs through common-law development.Footnote 36 Enabling effective engagement also supports aims to increase agency by enabling justice-system users to make informed decisions about how to proceed through adjudication.
As Part III will show, courts serve public functions and contend with adversarial relational dynamics that create tension with person-centred aims. In addition, while not the focus of this article, much of superior court civil practice is focused on the legal aims of corporate and institutional entities, which creates additional distance between core human needs and the civil justice system. This means that envisioning person-centricity in formal adjudication includes unavoidable complexities, discussion of power dynamics, and the detangling of legalistic mythologies. This article does not resolve all of these questions, but seeks to take one step in this direction.
I now turn to Part III’s qualitative study, which analyzes chambers court interactions through the themes of time and relational proximity as necessary (but not sufficient) building blocks of person-centred practice. This analysis will highlight the importance of temporal and epistemic resources within chambers court interactions and their uneven distribution between lawyers and self-represented litigants. The study will necessarily invite questions about the material resources that are required to fulfill the aims of person-centred justice.
III. A Qualitative Analysis of Temporal Resources and Relational Proximity in Vancouver Supreme Civil Chambers Courts: The List Is Long Today, and Every Day
1. Study Background
Judicial decision-makers in the Vancouver’s superior trial court chambers courts include both judges and associate judgesFootnote 37 who make a wide range of interlocutory choices, including decisions to move litigation towards trial or settlement. Given the shorter nature of interlocutory decisions, chambers courts are interactionally rich environments that are suitable for studying institutional practices and social dynamics. As detailed throughout this article, I argue that the development of better social and institutional understandings of civil justice processes is essential to fostering effective change, including those that align with a person-centred vision.
In my dissertation research on access to justice in British Columbia’s civil justice system, I broadly define civil justice to include any matters that fall under the jurisdictional purview—either at first instance or through the more limited avenues of appeal or judicial review—of the Supreme Court Civil Rules. Footnote 38 This definition captures a wide range of matters: for example, the Supreme Court of British Columbia might decide a trial on a contract dispute or a wrongful dismissal from a job, determine who is responsible for causing a catastrophic injury, hear a judicial review of a decision made by a provincial tribunal that affects an individual’s entitlement to benefits, or decide a public law action that challenges the validity of a law passed by the provincial government. I exclude family-law matters from my analysis, as family-law dynamics and power relations involve distinct elements. While the family-law system is plagued by similar access-to-justice problems as civil justice more generally,Footnote 39 due to the subject matter of intimate familial relationships, appropriate policy responses might differ from those that I propose.
Superior trial courts warrant particular attention. Superior courts have wide powers,Footnote 40 deal with important rights that affect many people, and their role in our justice system is poised to persist due to the constitutional protection of their “core jurisdiction” as created by section 96 of the Constitution Act, 1867.Footnote 41 Despite the ubiquity of alternative fora within British Columbia’s civil justice system landscape, and increasing reliance on them,Footnote 42 I argue that an examination of the institutional practices of superior trial courts can tell us much about the mechanisms of change and stagnation within the civil access-to-justice landscape, particularly given the close relationship between legal professionals and civil litigation in superior courts.Footnote 43
As an institution, superior courts retain wider discretionary powers than those whose authority derives solely from statuteFootnote 44 and benefit from constitutional protection and judicial independence. I argue that this means that, despite persistent institutional inertia, superior courts always hold latent promise in promoting social change. For example, on a global scale, and in the absence of coordinated global and government action, individuals, communities, and groups are turning to civil courts for answers to pressing and urgent problems such as climate change.Footnote 45 Increasing diversity of participation in superior civil justice processes has the potential to generate positive legal change. While changes are clearly needed well beyond the formal venues of superior courts to promote a person-centred vision of access to justice, they play an important role in influencing the overall civil justice ecosystem.
This article focuses on a specific element of civil access to justice in British Columbia superior trial courts: what observable chambers court interactions can tell us about the potential of an embodied person-centred approach in the courtroom. My dissertation research, and the larger empirical study from which this article draws data, focuses broadly on relationality as an understudied mechanism of inequitable access to civil justice through Tomaskovic-Devey and Avent-Holt’s sociological RIT. RIT argues that proximate social relationships within and between organizations and institutions are a key driver of inequality in society through inequality-generating processes that include the appropriation of resources, social closure, and claims-making.Footnote 46
In the context of this article and Special Issue, I relate the idea of person-centred justice to RIT based on the OECD’s vision of a person-centred justice system as being one that equally meets the needs of all people. Person-centred justice encompasses more than the notion of equality in isolation—for example by prescribing normative shifts within justice systems away from “autonomous law” or rule-of-law conceptions towards responsive law ideals.Footnote 47 However, key distributional questions arise from the reality of entrenched inequalities in Canadian society and their clear manifestation in civil justice processes, and thus are interwoven with all normative person-centred justice questions. In particular, I question the extent to which effective and meaningful engagement in a justice process is possible without directly addressing significant underlying social, epistemic, and material power imbalances. The nature of these limitations will become more apparent through the qualitative analysis that follows.
2. Methodology
In this article, I focus on analyzing one component of an ongoing ethnographic studyFootnote 48: civil chambers observations in Vancouver’s superior trial court.Footnote 49 In Vancouver civil chambers, short chambers applications (typically under two hours) are heard every day of the week in set chambers courtrooms. I attended the Vancouver superior trial court in person to observe a week of chambers proceedings in the early months of 2023 and observed a total of seventy-two chambers court applications that I draw upon in my qualitative analysis.Footnote 50 During my court observations, I took contemporaneous notes of court proceedings. As recording devices are not allowed in courtrooms except for use by accredited journalists,Footnote 51 quotations are paraphrased to be as accurate as possible. When required to protect anonymity, certain identifying details about cases may be obscured or omitted in ways that seek to remain true to the interactions and their potential meanings and interpretations.
In addition to contemporaneous note-taking, I kept a field diary on days I observed court proceedings covering general impressions, developing interpretations, and exploring positionality and reflexivity. On positionality, it is essential to acknowledge that, prior to undertaking academic study, I was licensed and worked full-time as a civil litigation lawyer in British Columbia. I continue to practise on a part-time basis. Naturally, this fundamentally changes how I observe and interpret court proceedings. For example, I understand legal jargon, I come to the court with an understanding of the work that goes on behind the scenes to prepare for an application in court, and I am familiar with some of the cases and laws that are referred to and applied in court. Furthermore, I have preconceived notions about what constitutes effective court practice that arise from my prior experiences in courtrooms and mentorship from other lawyers.
I initially analyzed my chambers observation data by coding observations that were related to discrete interactions, exchanges, and markers of relationality between actors in supreme chambers courts, which included judges, associate judges, lawyers, court clerks, represented litigants, and self-represented litigants. While much of what occurs in chambers courts can be characterized as interactive or relational in nature, I selected observations in which the interaction and the underlying dynamics between those observed were most apparent (i.e. through a conversation, interjections, or questions) as compared with periods of observation in which one individual was speaking for a lengthy period of time (i.e. through longer, uninterrupted submissions on technical legal points).
I then further coded interactive elements that spoke to the focus of this study: the management of temporal resources and relational proximity. Identification of these particular themes as the subject of qualitative analysis arose from an iterative process between data collection, literature reviews, engagement with other scholars, reflexive practice, and preliminary data analysis as my ethnographic study developed.Footnote 52 As alluded to in Part II, a focus on the concept of time and proximity reveals much about relationality in superior chambers courts and the respective roles of presiding decision-makers, lawyers, and self-represented litigants. In turn, this examination begins to illuminate and define the potentiality of superior courts as embodied person-centred spaces and highlights the tensions and trade-offs to contend with in navigating change.
In the context of the aims of person-centred justice, an important limitation of this study is that it does not engage with litigants directly through interviews or otherwise. As such, the study is limited to an examination of the observable contours of institutional practice in superior civil chambers courts. Understanding this terrain is only one of several steps that are required to enact change. As will be covered in the final sections of this article, engaging with those who are directly impacted by justice processes is essential to furthering person-centred justice. To this end, future phases of the ethnographic study referenced in this section will engage with litigants through surveys.
3. Qualitative Analysis: Time and Relational Proximity in Vancouver Superior Civil Chambers Courts
The notion of time is ever-present in Vancouver’s civil chambers courts.Footnote 53 On most days, short applications are split between two assigned court rooms: one in which a judge presides and another in which an associate judge presides.Footnote 54 A focus on time is most apparent in two respects: management of court time throughout the day and the progress of a case through judicial direction and management. Applications tend to move faster in courtrooms in which associate judges preside, given that their jurisdiction is limited to narrower or less-contested procedural matters; many applications that take place earlier in the day list a time estimate of five minutes.
In the busy Vancouver chambers courts, the chambers list serves as a constant reminder of the scarcity of time. It is several pages long, no matter the day of the week. When checking into the court for the day, parties are asked by the court clerks to confirm their previously provided time estimates. The shortest applications are typically called first, and it is not unusual for the longest applications at the end of the list to be “bumped” to another day. Chatter among lawyers frequently includes some version of the question: “Do you think we’ll get on today?”
Judges and associate judges (collectively “presiders” or, in the context of a given application, “the presider”) make a point to remind parties of their time estimates and confirm their accuracy when first called up, relying on their role as decision-maker and lawyers’ ethical obligationsFootnote 55 to seek compliance. For example, during one application that was estimated at ninety minutes, the presiding judge asks at the outset whether the parties will be able to stick to their time estimates. In response, the lawyer who is bringing the application indicates “I will try my best,” while the other assures that they “will be no more than fifteen to twenty minutes.”
When a lawyer is making submissions on a topic that the presider feels has gone on too long or is off topic, a clear signal to move on is often communicated by saying “I take your point.” Alternatively, the presider might prompt the lawyer to address a specific point in a legal test or ask the lawyer to direct them to a portion of affidavit evidence of central importance to their decision-making process. Time compliance is generally sought through signals and reminders as compared with strict cutoffs or interruptions—though the latter do happen.
As presiders talk through their directions and decisions, it is apparent that they are concerned with two interrelated and sometimes opposed objectives: balancing time management with procedural fairness and the right to be heard.Footnote 56 However, this preoccupation with the right to be heard is legally constrained, and time given for fulsome submissions is oriented towards points that have some bearing on what legal decision will be made and, if disagreed with, potentially challenged on appeal. The time taken for subjects that are extraneous to this goal, such as submissions detailing the unreasonable positions of opposing counsel, are given less leeway.
Tone-setting starts early: for example, during one day of observation, one judge remarked to the room at the outset: “We have a long list today.” There is a sense that many lawyers in the room take in this message and adjust their expectations accordingly. Adjustments include working with a presider to present their materials efficiently or talking with an opposing lawyer to see whether they can come to a last-minute agreement. Lawyers who fall under this category stay on script—not their own, which they might deviate from, but the script that aligns with the presider’s expectations.
3.1 Staying on Script
Effective lawyers are attuned to the presider by taking heed of their verbal signals or watching their body language, which manifests as their ability to adapt and change course in their submissions in response to signals that are sometimes subtle. In a simple but common example, an attuned lawyer watches the presider to ensure that they are on the same page. I mean this literally: if a presider has not yet turned their materials to the page or exhibit that the lawyer has directed them to, then the lawyer will pause or slow down without the presider having to ask them to. More substantively, these lawyers understand when to move on and when a point needs to be expanded on for clarity. Applications run smoothly, even when dealing with difficult or contested matters, and time is used efficiently.
In one series of legally routine but consequentialFootnote 57 foreclosure applications, such as the granting of an order authorizing a bank to conduct the sale of a home whose mortgage is in default, attunement between the lawyer and the presiding associate judge was on clear display. A lawyer who was representing a large bank brought several similar foreclosure applications, for which it is common that the individual(s) being foreclosed upon do not show up to court or participate in the proceedings. The presider had read the materials in advance. During the first few applications, once the lawyer had introduced the file and set out the initial background, the presider verbally indicated that they were granting the order as sought.
Once this pattern was established, subsequent orders were granted in what was essentially a wordless exchange. In each, the lawyer briefly introduced the name and number of the file for the record and described the order being sought. In response, the presider reached out their hand—a gesture indicating that the order would be granted and signed without need for submissions. The lawyer then silently handed up the order, the associate judge signed it, and the order was returned to the lawyer. Then, the next file would be called by the clerk and the process would repeat.
Other lawyers—or articled students new to court—have a more rigid presence. In contrast to the effective and attuned lawyers described above, they deviate off the court’s expected script and take up more of the court’s time, usually by rigid adherence to a preset notion of what needs to be covered. They fail to follow the plot.
3.2 Losing the Plot
Applications tend to run on for a long time when the lawyers who are involved struggle to cooperate or communicate effectively outside of court. It is apparent that this has occurred when the substance of an application relates to matters that more cooperative lawyers or parties could have agreed upon without court intervention, such as when scheduling an inevitable procedural step in the case. This communicative dysfunction bleeds into the courtroom as each lawyer, through commentary on the actions of the other party, seeks to ensure that the presider does not view them as the one who is in the wrong. In the limited context of observing civil chambers courts, it is difficult to parse out whether these disagreements originate from the lawyers’ professional methods, acrimony between litigants, or both.
In addition, when a lawyer arrived in court unprepared, I observed instances of visible frustration of presiders that resulted from the wasted time. In some of these instances, the presider communicated their frustration directly to rebuke the lawyer. These messages also serve as cautionary tales to all lawyers in the room of what not to do in court. In one example, a junior lawyer attended court to request an adjournment on behalf of another lawyer. When the presiding associate judge asked when they would be available to reset the matter, the lawyer professed that they did not have the availability of the other lawyer at hand. The associate judge was quick to call this out, projecting their voice to the entire gallery: “When coming to court seeking an adjournment, parties should come with available dates ready, otherwise the application has to be stood down […] it is annoying when parties don’t come with this ready.” When a lawyer is chastised in this way, the general reaction is to quickly apologize, stand down, and rush out of the courtroom to gather the information that is needed before returning to the courtroom and letting the court clerk know that they are ready to be called up again.
Similarly, applications that involve self-represented litigants consistently take longer than the allotted time estimates.Footnote 58 This occurs for various reasons, the most prevalent of which is the simple fact that it takes more communicative effort to get everyone on the same page. While some self-represented litigants develop an ability to navigate court practices with varying degrees of success, the majority arrive in court with scripts that are written in a different language from that of the court.
3.3 Translating the Script
In applications that involve self-represented litigants, presiders seek to manage time through questions that are directed towards ascertaining legally relevant information and clarifying what the self-represented litigant is there to achieve. As compared with interactions with lawyers, there is significantly less emphasis on seeking compliance with time through signals or commentary on what is proper court practice that is directed towards the lawyer as a legal professional with ongoing professional and ethical obligations to the court. Instead, the presider takes on the responsibility of time management directly by moving the self-represented litigant(s) through the application up to the limit at which the presider feels that they risk making a determination without authority or crossing the line into providing direct legal advice to one party.Footnote 59
The temporal nature of this direction is illustrated by the following example that involves two self-represented litigants. An applicant appeared, asking the court to cancel a certificate of pending litigation (CPL) that had been registered on title to their property; the respondent to the application was the one who had registered it. It took several rounds of conversation to clarify the basic background to the application and the nature of the underlying legal matter that led to the CPL. After the applicant’s description to the court, the respondent’s reply, and some intervening questions from the presiding associate justice, it was apparent from observing the proceedings and interactions that the presider held the view—though they did not say this outright—that the applicant had a reasonably strong basis upon which to challenge the registration of the CPL. It was also apparent that everyone involved in the application was becoming increasingly weary.
Ultimately, the associate judge did not rule on whether the CPL should be cancelled. Instead, they explained to the applicant that, although they had put together some elements of a proper application record,Footnote 60 there was no sworn affidavit on the record that spoke to the required elements of the legal test for cancelling a CPL—namely, that set out the required background and why the registrant had no real or potential interest in the land. The presider explained that, because of the rules of court, they could not simply decide based on the applicant’s unsworn verbal representations.
The presider explained that they would adjourn the matter and coached the applicant to go to the courthouse library to seek out assistance with swearing an affidavit that spoke to the required elements. Although this direction did not resolve the application, it nudged matters forward. Despite the time taken, the resolution was not complete or satisfactory to the presider or the party who came to court hoping that the CPL would be cancelled.
In this example, one of Fricker’s hermeneutical injustices has clearly taken place: had the self-represented known how to render their situation intelligible and actionable, they would have arrived in court with the materials that were necessary to achieve their aim of cancelling the CPL. This occurred despite the presider’s real effort to give time and direction to the self-represented litigant. At most, the presider’s relational work blunted the full force of the hermeneutical injustice without resolving it. Finally, the additional time that was taken up by the application impacted the courtroom more generally by reducing the temporal resources that were available for the remainder of the day.
It is easy to imagine that the response to a lawyer coming to court without a sworn affidavit in support of a chambers application, while unlikely to occur, would be quite different: a lawyer is expected to know foundational evidentiary requirements. Certainly, the associate judge would not describe these foundations and might instead sharply send the lawyer away to correct the application record. While this interaction might be unpleasant, relying on the lawyer to go away and fill in the blanks would take less of the court’s time. This contrast highlights the relationship between temporal resources in courts and reliance on legal professionals to ensure the smooth operation of adjudication. In other words, the court often relies on externalized elements of the civil justice process to function smoothly. However, antagonistic players who intentionally misuse court processes interrupt this flow, and presiders adjust their approach accordingly.
3.4 Flipping the Script
While time is of key importance in chambers courts and perennially in short supply, the temporal relationship between the scarcity of judicial resources and the judicial process is not straightforward. During applications that speak to adjournments or other elements of case management, presiders balance urging the parties forward while simultaneously seeking to ensure that a case is developing in line with the procedural ambit of the Supreme Court Civil Rules and civil litigation practice norms, including case development through the adversarial processFootnote 61 and the overriding principle of proportionality.Footnote 62
For example, one presiding associate judge dismissed a defendant’s application to adjourn a trial that was scheduled for approximately three months from the date of application for a claim that was filed in 2019 in which no examinations for discovery of the plaintiff had yet occurred. The presider explicitly addressed each element of the legal test for granting an adjournment, which involves a weighing of interests and asking whether a fair trial on the merits can occur.Footnote 63 Primarily, the presider focused on steps that the defendant could have taken but did not, and was “not satisfied the grounds for adjournment are met […] no satisfactory answer has been provided for discoveries not occurring sooner despite this claim ongoing for three years […] the parties can get ready in three months.”
Similarly, when a presider is alerted to a party’s efforts to evade or delay the judicial process, I observed instances in which strict and punitive mechanisms were applied to move the proceedings forward. In one case, a defendant’s lawyer had been retained that very morning and arrived in court seeking an adjournment of an application that was set by the plaintiff for the following week. In opposing the application, the plaintiff’s lawyer described the defendant’s prior history of delay, which included the allegation that the defendant’s prior filing of a CPL on title to property that was in the process of sale was an abuse of process, and further alleged that hastily retaining a lawyer at the last minute was another delay strategy. Acknowledging that the defendant’s lawyer had just been retained and would require time to get up to speed regardless of whether the plaintiff’s allegations about delay were accurate or not, the presider ultimately granted a short adjournment—but did so on strictly prescribed conditions.
The reset application was peremptory on the defendant, meaning that the possibility of asking for an additional adjournment was foreclosed. In addition, the deadlines for exchanging materials for the reset application were set out in detail. Lastly, the plaintiff was awarded costs thrown away of $1,000, payable forthwith (i.e. immediately after the application) as compensation for having to attend the adjournment application. This departs from the more typical default costs rule in which a successful party is the one who is entitled to costs, often ordered “in the cause” where payment is worked out at the conclusion of a case.Footnote 64
An order of costs payable forthwith, as awarded in this context, provides a clear signal that the court is wary of potential misuse of court time to delay inevitable applications.Footnote 65 Applications of this nature are often tense, with the presider taking the reins out of necessity when one or both parties blocks the litigation process from unfolding. This differs from judicially acceptable norms of superior court practice in which, in cases where both parties are represented and presumed to be acting in good faith, the presider relies on the parties to move the case forward whenever possible. When parties are antagonistic to the court’s process, methods of compliance shift from the softer relational strategies described above to punitive or compensatory measures.
Despite these moments of momentum and decisive action, which include affective and heated interaction (i.e. through changes in tone, increased interjections, and explicit accusations between parties), there are many instances in which lengthy or inefficient processes are accepted and normalized by lawyers or presiders. For example, when it takes time to check the details in lengthy affidavits to confirm that all statutory requirements are met to approve a given action,Footnote 66 the mood is methodical, not impatient or frustrated. Importantly, onerous or inefficient legal procedures are not an outward source of frustration for lawyers or presiders; in general, they are an accepted part of doing business. For example, one lawyer appeared seeking an extension of an order, which required several onerous procedural steps to effect. In working through these procedural mechanics and approving one such step, the presiding associate justice commented dryly: “There are hoops that one must jump through.”
In another example, I overheard two lawyers on opposing sides of an application who were returning to the court clerk to revise their time estimate after some informal discussions outside the courtroom. After communicating their revised estimate to the clerk, they were asked whether there was any urgency to their application. They agreed that there was no urgency. While walking away from the clerk and back into the gallery, one lawyer remarks to the other “I mean, it’s already been 13 years” and the other lawyer responds “exactly”; they both chuckle. With neither party arriving in court with the impetus to drive the litigation forward, and when the application itself does not substantively concern procedural timelines or delay, the presider has little reason to engage in pushing things forward.
In contrast, self-represented litigants more frequently express frustration about legal and procedural impediments to their aims, which is a primary sense of disconnect during chambers applications that involve self-represented litigants. Otherwise stated, these interactions are a source of incongruence for self-represented litigants, who struggle to make meaning out of these experiences. Nearly the opposite experience of expressed incongruence occurs for lawyers and presiders: it is when judicial resources are drained on matters that fall outside the constraints and norms of the legal process that tensions or frustration come to the fore the most.
4. Discussion: Time, Relational Proximity, and Resource Distribution
When a presider is called upon to actively drive the progress of a case that is not proceeding in line with civil litigation norms, whether it be through explaining process to a self-represented litigant or enforcing compliance of an unresponsive lawyer or evasive litigant with the litigation process, there is an expenditure of temporal, affective, and other judicial resources that I observed as being more intensive than for other types of applications. While this expenditure of resources is sufficient to get something done and cope with the problem presented before the presider, the interactions feel unsatisfying.
This shortcoming does not fall on the shoulders of the presider alone, but instead results from the interplay of relational dynamics that the presider is confronted with. For different reasons, those who are involved in draining resource-intensive applications lack relational proximity to the natural rhythms of court practice. In the case of antagonistic parties who engage in justice processes in bad faith, distance is chosen intentionally. For self-represented litigants or inexperienced lawyers, distance results from an epistemic deficit that requires time and proximity to overcome. Importantly, the playing field in this respect is not equal, as proximity and time are both embedded into the legal profession, and inexperienced lawyers gain competence over time. A self-represented litigant has little impetus or opportunity to gain epistemic experience before becoming embroiled in a legal dispute that affects them personally.
As established in Part II, both time and proximity are required to build the type of relationships that are necessarily foundational to transformative change. In the Vancouver superior civil chambers court, time is always in short supply, parties are only given a short window before the court, and disparities in epistemic and hermeneutical resources foreclose the possibility of relational proximity between the court and self-represented litigants.
Relational proximity and efficient use of time were most salient when observing attuned lawyers who were adept at following the court’s expected script. Attuned lawyers were epistemically prepared to nimbly respond to the presider through previous court experience, legal training, and the penumbra of professional, social, and ethical mechanisms that define legal culture and practice.Footnote 67
Although these relationships function well within the confines of the norms of civil litigation practice in British Columbia, experienced legal representation is costly and relational proximity between presider and lawyer in the courtroom exists independently of the engagement of those who are at the heart of person-centred justice: those with justice needs. This highlights an important point: although proximate relationships take time and resources to build, once they are established, efficiencies result. Notably, proximity in the courtroom is not built through individual relationships between lawyer and presider, but results from collective institutional experience.
Importantly, in the world of the billable hour and the near-total privatization of civil legal services, this epistemic imbalance takes on a distinctly material valence. Despite efforts to create public legal information and plain-language legal resources,Footnote 68 access to relevant hermeneutical resources—legal and strategic knowledge, and the ability to present one’s position in a legally comprehensible way and to understand one’s own legal position—remains heavily reliant on access to the privatized market for legal services. Because of this, access to legal expertise is deeply tied to experiences of epistemic injustice in formal adjudication. The analysis in this article reinforces that the role of legal experts is an important question in ongoing debates about person-centred justice, agency, and legal empowerment.Footnote 69
Ultimately, while the temporal and interactive practices of civil chambers courts at the Vancouver Supreme Court involve many judges and associate judges who seek to fulfill their roles with integrity and empathy, courtrooms remain time-starved, epistemically exclusionary, and institutionally rigid environments that structurally limit the potential of improving person-centricity in formal adjudication. Without changes to the distribution of legal resources in the landscape of civil justice, both within and outside of courts, institutional inertia will persist.
IV. Conclusion and Recommendations: Embedding Time and Proximity
There are several ways in which judges and associate judges can make individual parties feel heard and understood within the litigation process. Even within the narrow confines of short chambers applications, I observed several instances of presiders who treated self-represented litigants with empathy and respect, and empathetic interaction of this nature should be promoted. Yet, in an unequal society and in the distinctly epistemically unequal terrain of legalistic spaces such as superior civil courts, practices such as listening and empathy fall short of the quality of relationality and engagement that is required to generate sufficient momentum towards a person-centred approach. Without more time and resources, there is little hope that chambers courts, or superior courts more generally, will move the needle towards person-centricity. This reinforces what we already know: our access to civil justice barriers are structural and embedded more deeply than can be overcome within strategies for dealing with individual cases.
Similarly, the public roles that are played by courts and formal adjudication create tension with person-centred aims. Tenets of our adversarial system of justice, which includes a decision-maker’s impartiality between two or more parties who are opposed in interest, rightly circumscribes how far a decision-maker can go in providing direct epistemic assistance. Yet, privatization and externalization of civil justice resources through an expensive private market for legal services undermine the integrity of the adversarial system of justice and the ability of the justice system to meet legal needs.Footnote 70
Because courts are tasked with making ultimate determinations in a starkly unequal distributional landscape, they cannot avoid complicity and must think bigger about how to solve these problems. Fostering pathways that get litigants help at the right times, such as at the initiation of proceedings, embedding additional resources within courthouse spaces,Footnote 71 and expanding existing resourcesFootnote 72 are all strategies that would have some impact. These must happen in tandem with downstream efforts of government and legal professionals to provide effective resources when individuals first experience legal problems. In addition, obvious solutions exist that would ameliorate key access-to-justice challenges such as providing greater funding for civil legal aid.Footnote 73
Another puzzle that presents itself in this conclusion is that the contours of a person-centred approach within a particular institutional context must be cocreated with those that are meant to be served by justice processes. While we know some of what works through experience, we cannot prescribe what form effective engagement takes—including what the respective roles of legal experts, judicial decision-makers, and litigants should be—without doing the relational and searching work that underlies Rogers’s person-centred aims. It is only through time and proximity to those with justice needs and the development of an epistemically equal footing that the answers can unfold and, to date, superior trial courts in particular fall woefully short on generating opportunities for direct engagement. For example, existing mechanisms of institutional change, including the development of practice directionsFootnote 74 and revisions of the Supreme Court Civil Rules, are judicially driven, with engagement that is largely focused on the views of legal professionals.Footnote 75 Similarly, access-to-justice scholars, including the writer, should endeavour to incorporate participatory methodologies into their work.Footnote 76
The roles, functions, and limitations of superior civil chambers courts suggest that, as the first of many steps, courts must create additional spaces of dialogue outside the constraints of managing individual cases. In doing so, partnering with organizations that are practised in the principles of legal empowerment, participatory design, and systems thinking can provide valuable direction on the design of person-centred spaces, practices, and pathways.Footnote 77 Finally, in seeking opportunities to foster relationships that align with the aims of person-centred justice, we would be wise to not underestimate the relational skills, resources, and willingness that justice system actors must develop and practise over sustained periods of time to foster person-centricity.
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