BC courts change rules to permit emailed document delivery

Jamie Nay was both surprised and pleased by the recent updates to British Columbia’s Supreme Court Civil Rules and Supreme Court Family Rules, especially the changes that permit documents to be served via email.

“What’s funny about law is that some lawyer from 100 years ago could walk into a courtroom, and it is going to look pretty much the same as it did back then. We have a lot of outdated rules, and it’s great that they’re finally starting to acknowledge the fact that we almost all correspond by email for everything, so why not [for serving documents]? I think it’s great,” said Nay, who is a partner with Peak Law Group in Pitt Meadows, BC.

The rules changes, which went into effect on September 1 via an order in council, require email addresses (if available) for represented and unrepresented parties appearing in court, and explain how emailed documents should be served. For example, Rule 4-2 of the Supreme Court Civil Rules, has now been amended to include a new subrule that reads: “(8) If a document is transmitted for service by e-mail and the person receiving the document requests, within 3 days of receiving that document, that a copy be sent to another address for service for that person, the party who served the document by e-mail must provide the copy at the requested address for service within 7 days of receiving that request or as agreed upon by the parties.”

While permitting email document service may seem like a tiny change, Nay believes it is an important one.

“[Peak Law Group] has accepted service by email for a while now, so it’s not going to change the way we do things, but it is certainly going to make it easier to communicate with other lawyers… Some lawyers are pretty easygoing about this sort of thing, and you can serve them documents by email, but you’ll get others who will insist on having a registered letter sent to their office, or they will insist on faxing. That kind of stuff really slows us down. I would like not to have a fax machine anymore in my office, but we do.

“The more efficient we can make things, the better, especially because we’re doing everything on the computer. A lot of times, we’re sending faxes from our computers and receiving faxes in our email. It’s silly the way we’ve been having to deal with things, so this is going to make everything more efficient for sure.”

As for why Nay thinks some lawyers have been reluctant to embrace email, he said there are likely two reasons. He suspects some older lawyers (and lawyers who may be more traditional in their approach to the practice of law) might have concerns about the security of the transmission method. However, the other group has a very different attitude about email and its uses.

“Some lawyers just like to make things more difficult for their opposing counsels, and that does a disservice to everybody in the profession. In courts, we call each other ‘my friend,’ but some lawyers just do things to make our lives difficult, and there’s no place for that,” said Nay.

“It’s not incredibly common, but it certainly happens. I’ve always got a few files going on with lawyers who do things just for the sake of doing them, just knowing that they will annoy me.”

According to the British Columbia Ministry of the Attorney General, the email notification change got its start during the pandemic in March 2020, “when the legal profession, self-represented parties, and the court were required to find ways to communicate without immediate access to fax machines, couriers, counter service at the courts, and governmental agencies.”

The ministry also believes that the use of technology, such as email, “can improve efficiency, flexibility, and access to justice. Requiring email addresses for service, if available, is a faster, easier-to-track method of delivery, in particular when under urgent timelines.”

The changes were implemented on the recommendation of the British Columbia Supreme Court Civil and Family Rules Committee based on feedback from court users. The committee, which meets bi-monthly, includes private bar members that represent the Law Society, the Canadian Bar Association–BC Branch, and the Trial Lawyers Association.

The other rule changes touch on issues such as outlining when a trial management conference is required and the proper procedure that needs to be followed when filing trial briefs.

“Stuff like that makes the process more streamlined, but it is nothing that will really affect our practice on a day-to-day basis,” said Nay. “Those are all good improvements, but really, the big one is the email service.”

As for the next change he wants to see, Nay explained that he’d like to go back to the video appearances for short court applications that were permitted as a pandemic accommodation.

“Every lawyer I’ve talked to cannot understand why that was taken away. I can certainly see the need for in-person hearings when witnesses will be called to give testimony in court. But, for short appearances, we’re all using affidavits, so there’s no need for the judges to evaluate credibility.”