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Federal Court takes step towards e-filing system

|Written By Elizabeth Thompson

OTTAWA — The Federal Court and the Federal Court of Appeal are looking at changing the rules to allow for electronic filing and service of documents in what one judge says is the first step towards a full electronic system in the future.

‘I would like to see us have a full-fledged e-filing system in place,’ says Justice Richard Mosley.

In a notice of proposed changes published in the Canada Gazette on Jan. 25, the court proposes to change the rules for the two courts to repeal references requiring the filing of certain documents only on paper and instead give parties the option to file either an electronic version or the required number of paper copies.

If a party consents, litigants will be able to serve documents electronically as well.

If all goes well, after a 60-day consultation period, the changes could be in place by the fall.

Justice Richard Mosley of the Federal Court’s rules committee says the changes have been roughly four years in the making.

“We’ve recognized for some time that . . . the courts have to attempt to keep up with technological developments.”

In 2011, the court’s subcommittee on technology issued a discussion paper designed to sound out the legal community on ways to update the Federal Court’s rules to take into account new advances in technology. Based on the reaction, the committee decided to proceed by first eliminating hurdles to using technology.

“Having done that initial work, the rules committee decided that rather than try to be all things to all people at the same time that we would proceed with identification of obstacles to the use of technology,” says Mosley.

“We weren’t going to try to recreate our rules entirely but to go through them and try to pick out those which, as written, since the last major iteration of the rules in 2002-03, would actively prevent someone from filing electronically if they so wished.”

At the same time, the court launched a pilot project to allow for electronic filing.

While the current proposal is limited in scope, Mosley sees the proposed change as the first step towards an eventual electronic filing system for the two federal courts.

“I would like to see us have a full-fledged e-filing system in place. That, however, requires additional funding resources that the Courts Administration Service does not have at present because the rule changes are only part of a move in this direction. They have to be coupled with having the adequate infrastructure that requires an investment.”

However, Mosley argues that investing in an electronic filing system would save money in the end. “The return on the investment would be considerable both for the government, which is the single greatest litigator in our court, and for the private sector.”

The large number of tax certificates filed in the court for enforcement is also an area where moving to electronic filing would save the government a lot of money, he says.

Mosley says he’s already relying on electronic copies of documents in his own cases.

“Right now, when I have a major case, I ask for all of the pleadings to be provided by the parties in electronic form and that is all I use. I rarely, if ever, go to the paper. I will only go to the paper if for some reason it could not be reproduced electronically.”

The Federal Court’s move comes as Ontario’s Ministry of the Attorney General has dropped plans to implement its planned Court Information Management System.

Mosley, however, argues that moving to electronic filing would bring the federal courts into step with other courts.

“A number of the tribunals that operate in Ottawa and Gatineau and are subject to review by this court or by the Federal Court of Appeal already are functioning in an electronic environment and their records, rather than being printed off and delivered to us on paper, should be delivered to us electronically and ultimately there should be a seamless transition [in electronic form] from the lowest decision-maker right up to the Supreme Court of Canada if the case gets that far.”

Even if the court moves to electronic filing, there will still be a need for staff to help people like unrepresented litigants who don’t have access to a computer or the Internet and who come to the counter with a stack of papers, says Mosley.

As for lawyers, Mosley notes some are embracing technological changes more rapidly than others. “The intellectual property bar, for example, is very far advanced, as you might imagine, in the use of technology. Other bars are less but are moving in that direction.”

Paul Harquail, chairman of the Canadian Bar Association’s federal courts bench and bar liaison committee and a lawyer with Stewart McKelvey’s Saint John, N.B., office, describes the proposed changes as “a step forward” that could save lawyers money in time and things like the cost of paper.

“Really, it reflects the reality that we do so much electronically these days that it makes sense.”

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