Law Times

Page 10 OctOber 2, 2017 • Law times www.lawtimesnews.com More judges want materials electronically Modern technology needed in civil courts BY SHANNON KARI For Law Times D uring 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 shortcom- ings 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 or- der to continue to provide their particular service. Why should courts and lawyers be any dif- ferent? Why should we be able to expect that treating courts like some kind of fossilized Jurassic Park will enable them to con- tinue 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 de- lay 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 re- turned from a break, Brown had this to say in his ruling. "What if our Court had a sys- tem 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 an- other 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 oc- cur," 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 fil- ing of small court claims. The Court of Appeal, on its own initiative, has for many years required e-filing of docu- ments in addition to a hard copy. For civil litigators who regu- larly appear in Superior Court, though, they say there have been few substantive changes in terms of utilizing technology to streamline the process and re- duce the reliance on paper cop- ies of documents. "The present system is still stuck in the 1980s and 1990s," says Iain MacKinnon, a partner at Linden & Associates in To- ronto. "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 Jona- than Rosenstein, a civil litigator who heads Rosenstein Law. "What has changed? Very little in an institutional way, although there are some pi- lot projects," notes Rosenstein. "There is still a lot of paper get- ting shuff led 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 mil- limetre is specified, as is the size and quality of paper in court documents. "Good quality white paper or good quality near white re- cycled paper 216 millimetres by 279 millimetres shall be used," states a section within Rule 4.01. A more recent amend- ment 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 autho- rized by the Ministry of the At- torney 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 ma- terials." Rosenstein and MacKinnon both point to Superior Court Jus- tice 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 au- thorities, 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. FOCUS Jonathan Rosenstein says that, when it comes to technology in the courts, there has been 'very little' progress in an insti- tutional way. See System, page 12 There should also be a database to file and retrieve documents. 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