COVID-19 has led to paradigm shift in legal profession: B.C. bar association president

Law360 Canada (September 15, 2020, 3:11 PM EDT) -- The COVID-19 pandemic has led to courtroom doors being shuttered and hearings being held on online platforms rather than boardrooms. But the new president of the Canadian Bar Association, B.C. branch (CBABC) says it has also led to the reshaping of a profession which still had many of its traditions rooted in the past.

Jennifer J.L. Brun took over as CBABC president Sept. 1. Brun, a managing director at Harris & Brun Law Corporation where she practises law with an emphasis on claims arising from professional liability, occupiers’ liability, recreational accidents and motor vehicle accidents, said the pandemic has led to a legal industry facing the danger of inertia seizing the opportunity for durable improvement. She said she has closely followed the career of Supreme Court Justice Rosalie Silberman Abella, and recalled a speech Justice Abella made in 1999 to the Law Society of Upper Canada about how the profession of law is in many ways stuck in old traditions.

“[Justice Abella] said that, despite the profound changes in how we travel and live and govern ourselves, if you took a good litigator from the early 1900s and put them in today’s courtrooms they would be able to quite proficiently advocate on behalf of their clients,” Brun said. “And raises the question of could a doctor from the early 1900s feel the same way in an operating room today — and clearly the answer is no.”

Brun, who has a bachelor of laws from the University of Calgary and a master’s degree from Osgoode Hall Law School, said until the current pandemic those comments were still holding true.

“But what we have seen over the past several months is the pandemic forced the closure of the courts to all but emergency matters, and the insufficiency of our very traditional and outdated system became painfully apparent,” she said. “And that is where I see this cultural paradigm shift coming into play, because I really think we can take a step back now in this new normal and say how can we move with this technological innovation but make sure that we are still maintaining the parts of our profession that we want to — and move forward with other culture change that we want to see.”

And this shift does not just involve technology. Brun said embracing diversity, shattering the glass ceiling and validating flexible work arrangements are all part of the process.

“While CBABC welcomes the overdue leveraging of technology necessitated by the pandemic, we recognize durable improvement starts with culture change — not technology,” she said. “It requires a collective pledge from the bench and bar to define the profession by new metrics. The line between work and personal lives is imprecise in this virtual world we now occupy.”

But there are still long-simmering issues which predate COVID-19 on the mind of many in the legal profession in British Columbia, such as changes to the province’s automobile insurance system and the possible role of paralegals in family law. Brun said CBABC still has serious concerns around the fairness of the province’s new insurance system, which she said could adversely affect public confidence in the administration of justice.

“One of the main reasons is the lack of independence in this new system — the determination of the availability of benefits will be made by ICBC, a quasi-Crown corporation which has a vested interest in limiting payouts to the public,” she said. “And if you disagree with that determination you have to take that disagreement to the Civil Resolution Tribunal. And while we recognize and there is certainly a role for tribunals in the justice system in B.C., typically that is where there is a certain level of expertise the tribunal could bring to the subject matter, but here you have this very general administrative tribunal and it is very hard to say they have expertise the courts should defer to when a judicial review is being brought of their decision.”

The CBABC has not formally taken a position on alternate legal service providers in family law, but Brun said she anticipates that will become more of an issue in the coming year and the association plans to canvass its provincial council members to gauge their thinking on the issue.

“About a year and a half ago we had a split position on the issue, and we are working on reconciling those two points of view,” she said. “Our access to justice committee sees this as an opportunity to facilitate access, but there is that perspective of worrying about having somebody who doesn’t have those three years of legal training even knowing whether or not there was a legal issue that they haven’t contemplated or whether or not there really can be that possibility of giving legal services without necessarily giving legal advice.”

Brun’s term as president runs until Aug. 31, 2021.

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