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SCC begins testing e-filing procedures

|Written By Robert Todd

The Supreme Court of Canada begins testing e-filing procedures this week hoping to work out any kinks in the system before the fall, when parties to appeals must start filing electronic versions of notices of appeal, factums, records, and books of authorities.

‘Assuming that the paper savings will result in cost savings for the client - the ultimate users of the court - there may be a question of access to justice being expedited,’ says Carole Brown.

“We definitely want to test the waters, start small,” says the court’s registrar, Anne Roland. “That’s the only way we can learn - using a real situation, because we can test all we want.

It’s in the courtroom that [we’ll see] what works, how we need to improve what we have before we launch a more comprehensive use of electronic documents in the courtroom.”

The new e-filing procedures take hold with all appeals to be heard starting Oct. 6.

The court will continue to require submission of a reduced number of printed versions: 13 copies of factums, 13 copies of parts one and two of appellant’s records and five copies of any other volumes, five copies of respondent’s records, and 13 copies of books of authorities. This is nearly half the paper load previously demanded.

The court will allow e-filings to be made up to five business days after printed versions are submitted, and will continue to require condensed books be provided on hearing dates.

Materials filed on CD-ROM will be accessed during hearings via electronic equipment installed throughout the court chambers, including computers installed in the judge’s bench, the lectern, and counsel tables.

The new guidelines for e-filing apply only to appeals. Leave to appeals will continue to operate with paper filings.

“It’s quite exciting, and with some anxiety, we’ll have to see how this works,” says Roland. “We know it’s a test and it won’t be perfect,” she adds, noting paper copies also will be available should things go awry.

Roland says Supreme Court staff has been working hard to make the pilot project, which involves cases set for April 17, 18, and 25, run as smoothly as possible. They have focused specifically on making it easier for lawyers and judges to search documents on courtroom computers.

“At this point it’s just a big change . . . It’s a real learning curve for everybody,” she says.

While court staff has faced inevitable technological roadblocks in preparing for the pilot project, Roland says none have been “showstoppers.” She says the court has been using computer applications most people are used to, such as PDF documents.

A number of other courts in the country have taken on e-filing initiatives. The Federal Court of Canada, Tax Court of Canada, Alberta Court of Appeal, Ontario Court of Appeal, and P.E.I. Supreme Court are some of the places where e-filing has been introduced.

But Roland says that the SCC, while aware of the work in those courts, has had to carve fresh tracks when it comes to creating its practices.

“Our situation is really very different, in a way, from lower courts,” she says. “For instance . . . at most they’ll have three judges, and our hearings are timed.”

While Roland is wary - due to the price of technology - of suggesting the e-filing system will lead to cost savings, she hopes it will shrink the paper load the court deals with.

“This won’t happen overnight. We are doing it step-by-step and testing the water and we will be tweaking it for the next little while,” she says.

A couple years down the line, says Roland, the court hopes to have an e-filing portal on its web site that will eliminate the need for materials to be filed on disc format.

Carole Brown is a partner at Borden Ladner Gervais LLP’s Ottawa office. She heads the firm’s Supreme Court agency practice, which is acting for the respondent’s counsel in the April 25 case RBC Dominion Securities Inc. v. Merrill Lynch Canada Inc. It is one of the three cases involved in the e-filing pilot project.

Brown says lawyers will increasingly rely on agents when it comes to working through the e-filing system.

“The Supreme Court rules require that there be an agent for filing, and I think now as a practical matter you really need one, just in navigating through these unknown waters,” she says. “Having been part of the pilot project . . . BLG certainly will be well placed to help develop all the electronic materials required by the court.”

Brown adds, “I think this is going to be an interesting shakedown period.”

While lawyers will have to get up to speed in terms of the court’s new electronic procedures, the e-filing system also could have a broader impact on the administration of justice, says Brown.

“Assuming that the paper savings will result in cost savings for the client - the ultimate users of the court - there may be a question of access to justice being expedited,” she says.

Lawyers are working to balance the open-court principle aspects of e-filing and the online accessing of court information, which touches upon matters of confidentiality, says Brown.

“The work, in terms of what is going to be necessary to protect the confidential information, but to also permit open access to the courts, is something that’s being talked about right now between bench and bar,” she says.

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