Law Times

PAGE 6 COMMENT Law Times Group Publisher ...... Karen Lorimer Editorial Director ...... Gail J. Cohen Editor ................. Glenn Kauth Staff Writer ...... Michael McKiernan Copy Editor ........ Katia Caporiccio CaseLaw Editor ...... Lorraine Pang Art Director ......... Alicia Adamson Account Co-ordinator ... Catherine Giles Electronic Production Specialist ............ Derek Welford Advertising Sales ... Kimberlee Pascoe Sales Co-ordinator ........ Sandy Shutt ©2011 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Editorial Obiter Courts' hypocritical stance on technology T he adult criminal docket in Burns Lake, B.C., last week was small. There were only two matters on the list: Paul Alec was to appear at 9:30 a.m. on a charge of possession of a controlled substance and Angus Hebert was set for the same time to face two alcohol-related driving charges. The list is rather mundane on the face of it, but the fact that someone in Ontario can find out what's hap- pening in B.C. courts on any given day is quite impressive. The infor- mation came from British Colum- bia's online court lists. That province makes much more information avail- able online than Ontario. As Superior Court Justice David Brown noted in his ruling in Harris v. Leikin Group on Sept. 21, Ontario's courts remain in the "Dark Ages of document management." That fact is fairly obvious, although it's something that's worth pointing out given the need for the justice sys- tem to move forward on technology. But what was perhaps most interest- ing about Brown's remarks — which he made in a costs ruling following a defendant's successful bid for sum- mary judgment — was his scathing criticism of the hypocrisy inherent in a system that requires lawyers to get on board with the Sedona Canada principles for electronic discovery while the courts themselves can't ac- cept documents filed in accordance with them. "At conference after conference, judges and masters of this court ex- hort counsel to educate themselves in the Sedona Canada principles," he wrote. "Yet, can we as a court accept the work product derived from par- ties nicely organizing and exchanging their litigation-related documents in electronic format? We cannot." Brown then went on to note a "most dangerous disconnect" that ex- ists "between what we as a court are telling litigants to do in managing their electronic litigation documents and what we as a court can accept from those who litigate before us." Brown's criticism was timely given that it came on the same day that Ontario Chief Justice Warren Win- kler was giving the keynote address at a conference on e-discovery. Empha- sizing the importance of proportion- ality and adhering to discovery plans, Winkler lectured lawyers about com- ing to grips with the digital age, par- ticularly on the question of manag- ing costs. "If the legal profession fails to adapt to the digital age in a proac- tive and constructive manner, there is a very real risk that lawyers will become irrelevant to dispute resolu- tion," Winkler said. Brown, then, has a point. While Winkler was rightly focusing on the costs and efficiency implications of e- discovery, it's fair to expect that the courts will practise what they preach by also coming to grips with the digi- tal age. So far, they've failed to do so. It's the province, of course, that has to make change in that regard happen. As we've seen with events at eHealth Ontario, introducing technology to massive, paper-based systems is difficult, so it's certainly fair for the government to proceed cautiously in order to avoid mistakes and waste. But if British Columbia can bring technological change to its courts, we can do it, too. The govern- ment, then, should be looking to the West Coast for lessons learned and then get down to the task of adapting to the digital reality. — Glenn Kauth What is JusticeNet and how will it affect your practice? J usticeNet, at justicenet. ca, is a Canada-wide non- profit service that con- nects low-income clients with lawyers who will accept their cases on a reduced-fee basis. Its motto is "Lawyers mak- ing justice more accessible to Canadians." It handles the tra- ditional legal aid areas such as criminal law, family law, and immigration, as well as some cases generally not covered by provincial plans. Some of the other areas in- clude alternative dispute reso- lution, bankruptcy, business law, consumer rights, employ- ment matters, estate planning, real estate, and tax. In Ontario and no doubt in other prov- inces, there has been a gap in civil litigation, something that JusticeNet will handle. This national program helps individuals whose net family income is less than $59,000. Lawyers agree to take on cases at rates rang- ing from $100 per hour to $150 per hour, but this pro- gram differs from legal aid plans in that they have to get the money themselves. At the same time, these hourly rates aren't tied to the law- yers' seniority but to the cli- ents' income. The $100 to $150 hourly range is the standard rate fee schedule. There's also a spe- cial case fee schedule. Lawyers who agree to take one of these cases reduce their fees signifi- cantly. In all cases, a client's eligibility is at the sole discre- tion of the lawyer. A directory of lawyers is available online. There's also a hotline number for the public at 1-866-919-3219. In Ot- tawa, 14 lawyers have signed up. Some senior defence coun- sel in Toronto have joined as A Criminal Mind By Rosalind Conway well. A search of JusticeNet's site shows that the plan is in its early stages with few law- yers participating outside ma- jor centres in Ontario. This will probably change rapidly. JusticeNet is actively contact- ing lawyers to invite them to sign up. One question for lawyers is how the different legal aid plans across Canada will in- teract with JusticeNet and how the program will affect their practices and solicitor- client relationships. The site indicates that clients should apply for legal aid first. A cli- ent of ours attended at a legal www.lawtimesnews.com this plan, there's a chance that the client may end up seeing another de- fence counsel. JusticeNet is privately fund- ed. I spoke with its executive director, Heidi Mottahedin, who said that while she's fund- ing it herself, the Ministry of the Attorney General is plan- ning to support it in the fu- ture. The annual registration fee for lawyers is $150 plus HST, but the organization is waiving it for the time being. The plan is a wonderful re- aid office but wasn't actually assessed and was referred to JusticeNet rather than back to us to work out a retain- er. So if a lawyer hasn't signed up for source for the public but it will require lawyers in certain areas of the law to be cautious before taking on matters. Criminal and family law lawyers, for example, are undertaking potentially OctOber 3, 2011 • Law times Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 Tel: 416-298-5141 • Fax: 647-288-5418 www.lawtimesnews.com Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 2075 Kennedy Rd., Toronto, ON, M1T 3V4 • 416-298-5141 clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $165.00 + HST per year in Canada (HST Reg. #R121351134) and US$259.00 for foreign addresses. Single copies are $4.00 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corporate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. Contact Jacquie Clancy at: jacquie.clancy@thomsonreuters.com or Tel: 416- 298-5141 Ext. 2732 or Fax: 905-841-6786. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 2075 Kennedy Rd., Toronto, ON, M1T 3V4 or call Karen Lorimer at 647-288-8018 karen.lorimer@thomsonreuters. com, Kimberlee Pascoe at 416-298-5141 Ext. 4052 kimberlee.pascoe@thomsonreuters.com, or Sandy Shutt at sandra.shutt@thomsonreuters.com Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. lengthy and complex matters in accepting cases. The web site recommends the use of a standard retainer agreement for all clients with disclosure of the lawyer's actu- al rates as well as the reduced fee. Accepting one case from a client doesn't oblige the lawyer to take another matter or ex- pand the services offered. We should commend Mot- tahedin for funding this pro- gram at its early stages. As a criminal practitioner, I hope that referrals to JusticeNet won't inadvertently disqualify eligible people from provincial legal aid plans because many clients of modest means really can't afford a lawyer even at $100 an hour. LT Rosalind Conway is a certified specialist in criminal litigation. She can be reached at rosalind. conway@gmail.com.

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