Law Times

lAw Times • April 2, 2012 NEWS Justice Brown's missing document Has Ontario finally got the message about court technology? BY MEREDITH MORRISON For Law Times ways to get around the problems identified by Superior Court Jus- tice David Brown in his scathing ruling about the search for a miss- ing document this month. "It is sort of standard practice L at our firm to take an extra copy of the materials to court because of the possibility that the judge may have never gotten the materi- als that get filed because the mis- laying of paper files is a relatively frequent occurrence," says David Outerbridge of Torys LLP. Outerbridge, who's also chair- man of the joint e-discovery implementation committee of the Ontario Bar Association and The Advocates' Society, has had his own experiences with the hic- cups in the system. He believes creating a fully functioning elec- tronic filing system of the sort called for by Brown will make dealing with the courts "a heck of a lot easier." Brown, of course, raised eye- brows in the profession this month as he made his feelings unmistakably clear in Romspen Investment Corp. v. 6176666 Canada Ltée. "The problem is that from the perspective of the members of the public who use this court, delays caused by our antiquated, wholly- inadequate document manage- ment system impose unnecessary, but all too real, costs on them," wrote Brown. "And yet the entity that op- erates that part of the court's awyers who have strug- gled with the court sys- tem's outdated technol- ogy have found their own administration system — the court services division of the Ministry of the Attorney General — seems complete- ly indifferent to the unneces- sary costs it is causing to the members of the public who use our court." Brown went on to de- scribe how a missing docu- ment had cost his court an hour of its time. This disor- ganization, he noted, means lost time and money for the various parties. Law firms have to hire more people or suffer lost productivity be- cause they need people to wait at the courthouses while those involved in proceed- ings must pay extra legal fees due to delays. Also, the courts have to hire the people to deal with the mountains of paper they receive every day. Patrick Cormier, CEO of the through the court informa- tion management system. Ministry spokesman Bren- dan Crawley said in an e-mail that the system will enable the courts "to incrementally in- troduce enhanced services for court staff, the judiciary, and litigants over the next decade, which will provide greater ac- cess for all court users. These enhancements will include e-filing, online court event in- formation, and access to elec- tronic documents." The new system is re- The one courtroom for electronic trials is rarely in use, says David Outerbridge. Canadian Centre for Court Tech- nology, says such delays are no longer acceptable in today's world. "Technology has accustomed us to instant gratification," he says. "If you need something, you get it." Another area of technologi- cal advancement that Ontario falls short in is electronic trials, accord- ing to Outerbridge. When he tried to run one, he had to bring in his own computers, duct tape the wires down because the court was ill-equipped to handle them, and still had to present documents in paper form. He notes there's only one court- room for civil matters in Ontario equipped to handle electronic tri- als. However, he says it's rarely in use because it's so small. According to Cormier, elec- tronic trials can't even start to be- come normalized until the system resolves the electronic filing issue. The other problem standing in the way of electronic trials is the need for pen-and-paper signatures. Cormier notes there are no guidelines in Canada for what an electronic trial should look like, meaning there are no standards for hardware or soſtware. His organi- zation is working on creating those recommendations. The Ministry of the Attor- ney General acknowledges the problems in courtroom technol- ogy and is working on a solution placing three existing ones: FRANK, ICON, and Estates. But the ministry has had problems with such efforts in the past. Before the new system came about, the ministry was working with a company called CourtCanada Ltd. that had developed one for court scheduling. In 2006, it created OSCAR, a web- based system that allowed people to see court availability as well as a back end that let court officials ac- tually do the scheduling. Aſter a pilot release of OSCAR for use in the estates list, the min- istry submitted a request for pro- posals for more technology from CourtCanada and for the com- pany to continue to maintain, op- erate, and build upon it. By 2008, CourtCanada had plans to expand OSCAR to all court divisions. However, the expansion never happened. In a lawsuit, Court- Canada alleged the ministry had systematically deleted informa- tion from OSCAR and breached the agreement the parties had reached. CourtCanada submitted a statement of claim against the ministry in July 2010 seeking $12 million in damages. In its statement of defence, the ministry denies all allegations of wrongdoing. It admits, however, to working with CourtCanada on OSCAR. It notes the matter is on- going but says there are no dates set in the case. The ministry started working on the new system in 2009 and has slated it for testing this spring and phased implementation this fall. But for Brown, those changes fast enough. Even can't come though he acknowledged that his tone was "unjudicial," Brown said that "the state of this court's document management and case scheduling systems is a scandal, and the poor excuse of a system which currently is employed should be subject to relentless criticism — judicial and other- wise — until it is discarded and the people of this province are provided by the provincial gov- ernment with a court adminis- tration system of a quality which they deserve." LT PAGE 3 SPEARHEADING RESPONSIBLE ENERGY POLICY DEVELOPMENT NEW PUBLICATION CANADIAN GREEN ENERGY LAW AND POLICY FRED D. CASS This text is the first of its kind – designed to provide a comprehensive introduction to the topic and analysis of different policy approaches to green energy. Directed towards environmental law practitioners and those involved in the development of green energy policies, its perspective is Canadian yet, as the international shift towards renewable energy intensifies, our role on the global stage is illuminated. ORDER # 804528 $120 Hardcover approx. 425 pages March 2012 978-0-88804-528-7 Canadian Green Energy Law and Policy launches at a time when a thorough knowledge of the subject matter is critical. This book offers essential practical guidance on the issues involved in getting these projects organized, approved and built, providing you with a comprehensive overview of the legal and policy frameworks involved – providing context from both sides of the inherent arguments. AVAILABLE RISK-FREE FOR 30 DAYS Order online at www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. CANADA LAW BOOK® www.lawtimesnews.com

• Cover