Lengthy S. 35 Trials And Access To Justice: Malli v. British Columbia

In January 2024, the British Columbia Supreme Court released the Malli v. British Columbia, 2024 BCSC 85 decision. This case reiterates that lengthy and complex s. 35 trials create an access to justice concern that can be strong enough to counterbalance against arguments to add defendants to a s. 35 action. Moving forward, BC courts are taking seriously the access to justice concerns raised by the burdens of multi-year s. 35 trials, seeking solutions at the early stages wherever possible, such as reducing the number of defendants.

However, with the current tests to prove rights and title requiring lengthy and complex submissions, perhaps this case can act as a signpost that while reducing the number of parties is one way to improve efficiency in small steps, the larger steps may require a broader rethinking altogether.