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Modern technology needed in civil courts

Focus on: Litigation
|Written By Shannon Kari
Modern technology needed in civil courts
Jonathan Rosenstein says that, when it comes to technology in the courts, there has been ‘very little’ progress in an institutional way.

During his tenure on the Superior Court, the frustrations expressed in rulings by Justice David Brown about the failure to make use of modern technology in the civil courts was not noted only by the legal community in southern Ontario. His rulings that called out the shortcomings of the administration of the courts were also reported widely in large daily media outlets.

“Providers of music to the public have had to adapt to changes in technology in order to continue to provide their particular service. Why should courts and lawyers be any different? Why should we be able to expect that treating courts like some kind of fossilized Jurassic Park will enable them to continue to provide a most needed service to the public in a way the public respects?” wrote Brown in a 2014 commercial proceeding, ordering the parties to agree to electronic filing of documents.

Two years earlier, after a delay was caused in a bankruptcy proceeding because a document could not be found and court staff had to retrieve it in person waiting until the clerk had returned from a break, Brown had this to say in his ruling.

“What if our Court had a system under which documents were filed electronically and accessible to judges and others through a web-based system, with sealed documents specially encrypted to limit access to judges only? Yes, Virginia, somewhere, someone must have created such a system, and perhaps sometime, in an another decade or so, rumours of such a possibility may waft into the paper-strewn corridors of the Court Services Division of the Ministry of the Attorney General and a slow awakening may occur,” he wrote.

Brown was elevated to the Court of Appeal at the end of 2014. In the nearly three years since that time, there have been changes to permit electronic filing of small court claims.

The Court of Appeal, on its own initiative, has for many years required e-filing of documents in addition to a hard copy. For civil litigators who regularly appear in Superior Court, though, they say there have been few substantive changes in terms of utilizing technology to streamline the process and reduce the reliance on paper copies of documents.

“The present system is still stuck in the 1980s and 1990s,” says Iain MacKinnon, a partner at Linden & Associates in Toronto. “There has been very little progress since Justice Brown made his comments.

“Unless there is an allocation of significant resources, it will not improve,” he says.

That view is echoed by Jonathan Rosenstein, a civil litigator who heads Rosenstein Law.

“What has changed? Very little in an institutional way, although there are some pilot projects,” notes Rosenstein. “There is still a lot of paper getting shuffled around. There is no widespread electronic filing or electronic scheduling.”

The requirements related to paper in the province’s civil courts continue to take up a number of sections within the Rules of Civil Procedure.

The width of the left hand margin, down to the exact millimetre is specified, as is the size and quality of paper in court documents. 

“Good quality white paper or good quality near white recycled paper 216 millimetres by 279 millimetres shall be used,” states a section within Rule 4.01. A more recent amendment permits text filed with the court to be printed on one side or both sides of a sheet of paper. Electronic filing is permitted in some circumstances, if there is court approval and “it meets the standards of the software authorized by the Ministry of the Attorney General,” the rules state.

The extent of electronic filing of documents among the lawyers in a case and the court depends on the “technological savvy” of the judge, says Rosenstein.

“More judges are saying they want an electronic copy of materials.”

Rosenstein and MacKinnon both point to Superior Court Justice Fred Myers as an example of a judge who is regularly seeking to reduce the amount of paper in cases over which he presides. Rather than filing a book of authorities, for example, Myers asks for links to court rulings so he can access and read them online.

The slow implementation of technological advances in the courts is very different from how lawyers interact with each other, notes Marc Sauvé, a civil and commercial litigator and partner at CazaSaikaley LLP in Ottawa.

“We will send materials over to another firm that can be accessed securely over a cloud,” he says. The use of technology and how it impacts on a lawyer’s practice is a topic at every legal conference he attends, says Sauvé.

Some lawyers in Ottawa, for example, have made tablets available to jurors in civil trials to access all relevant documents, rather than print out thousands of pages of paper, he notes.

When it comes to the policies of court services in Ontario, though, in-person attendance with a trial co-ordinator is required to set a trial date and even schedule motions and can involve emails or phone calls back and forth.

“Why can’t we access a system to see if a date is available and click on it?” asks Sauvé.

“There should also be a database to file and retrieve documents,” he adds.

The level of technology available can also differ widely throughout the province and may depend on how recently a courthouse was constructed.There is Wi-Fi access in courtrooms in the Ottawa courthouse if you are a member of the County of Carleton Law Association, which provides the service, Sauvé says.

Lawyers in Toronto must try to set up a hot spot to have online access in nearly every courtroom, with a few exceptions.

“Even seeking to connect your laptop to a video screen, that can be dicey,” says MacKinnon.

There are some civil and commercial courtrooms in Toronto that are equipped with the necessary technology so a person can testify from another location through a secure video link. Outside of the city, that is not necessarily the case.

Rosenstein says he is acting in a trial in Hamilton and has a court order permitting an Alberta-based witness to testify by video, since the evidence is expected to last less than 30 minutes. “We don’t have those facilities,” Rosenstein says he was recently told by court staff. Ultimately, the witness was able to testify by video link in an electronically equipped courtroom normally used for criminal matters.

While there are many issues to be resolved in terms of the civil courts in Ontario and technology, two pilot projects were announced in recent months to make e-filing possible in certain jurisdictions. A six-month pilot project launched by the Ministry of the Attorney General permits the online filing of a statement of claim in Superior Court in Brampton, London, Newmarket, Ottawa and Sudbury.

A Notice of Action and a few other types of documents can also be filed and paid for online as part of the project. In the Central East region, the Superior Court joined with the ministry this summer to start a pilot project to permit most “long motions” materials to be filed electronically, in civil, criminal and family court.

The materials must be stored on a USB stick and a paper copy must also be filed. The electronic versions are to be submitted in PDF and Microsoft Word format.        

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