Law Times

Page 4 February 12, 2018 • Law Times www.lawtimesnews.com NEWS NEWS NEWS Far fewer formal faxes or letters OBA considering request to change email service rules BY ALEX ROBINSON Law Times A s civil litigators and even judges warm to using technological tools, lawyers say the court's Rules of Civil Procedure need to be updated to keep up. The Ontario Bar Associa- tion is currently considering a proposal to the province's Civil Rules Committee, which rec- ommends rule changes to the attorney general, that would improve the ability of litigants to serve materials using email without requiring information from the opposite side or a court order. This would mean litigants would be allowed to serve ma- terials — other than originating processes — via email as a matter of course. "The issue with the rules is that they don't incorporate or ref lect the way in which lawyers are communicating today," says Nadia Campion, a partner with Polley Faith LLP. Under the current rules, lawyers cannot serve claims through email unless they re- ceive a response confirming the service from the other side. But Campion says lawyers to- day are communicating through email and text message more than ever. There are far fewer formal faxes or letters being sent between lawyers as there were 10 years ago, she says. She adds that as the technol- ogy being adopted by a younger generation of lawyers is advanc- ing so quickly, it is hard for the rules to keep up. Using new tools to serve claims has been a hot topic of conversation in the bar since a Toronto lawyer recently received a court order allowing her to serve a lawsuit using social me- dia app Instagram. The topic came up at a panel discussion that Campion mod- erated about civil litigation and the digitization of the courts at the OBA Institute conference in Toronto. Campion says that another way the rules are lagging behind technologically is in how they treat electronic trials. She says that as the profession moves to- ward paperless trials, she expects to see changes to the rules that will assist and encourage lawyers to pursue the more technologi- cally driven way of running cases. "You don't see any of that in the Rules of Civil Procedure," she says. "They were formulated on the basis of paper records — not digital records." The Ministry of the Attorney General has made some prog- ress recently in its attempts to further digitize and modernize the courts with the rollout of an online filing system for civil claims. Critics have said MAG's at- tempts to digitize the courts have been slow and incremental. Christopher Johns, from MAG's innovation office, said changes have been made incre- mentally to make sure the tran- sition is smooth and the systems are implemented properly. "Change is very hard in an organization this big from a pro- cess and a people perspective," he told the panel. "What we do, we have to do incrementally." In family courts, MAG is going to launch a pilot project in April 2018 that will allow joint divorce filing online. And in criminal courts, Johns says, MAG is looking to expand re- mote video access, digitize the intake process and implement digital evidence management. When asked about the prov- ince's service rules, Johns said he hopes the rules will catch up with technological advances. "We have email available to us. We have lots of electronic ser- vices or technologies and we're hopping right to Instagram. So let's just go for it," he says. Court of Appeal Justice Da- vid Brown, who has been an out- spoken critic of the court's reli- ance on paper, predicted there is less than a 10-per-cent chance that the Ontario Superior Court will have advanced paperless ca- pabilities provincewide in four years. However, he gave the Court of Appeal a 60-per-cent chance of attaining that goal, where he said movement appears to be underway. At the OBA panel, Brown said Ontario's court system is "behind the curve" not because of the unavailability of technol- ogy but because "the problem is in our heads." He said lawyers are having diminishing importance in the court system, being gradually replaced by self-represented liti- gants because practitioners are unable or reluctant to deliver services using contemporary delivery models. He said judges also share this inability and that their jobs are not safe either. Brown noted that the Cana- dian Judicial Council does not require judges to have some technological competence. While lawyers are not subject to a professional obligation of technological competence ei- ther, Brown said, there have been some rumblings that such a change to obligations might be in the works in Ontario. Brown said that the legal in- dustry needs to realize it is a con- sumer retail business that is go- ing to be in trouble if it does not develop an infrastructure and service mindset to serve litiga- tors in the way they are expect- ing the delivery of services. "There's no guarantee that we will necessarily be around in 25 years," he said. LT Nadia Campion says lawyers today are communicating through email and text message more than ever. 18th Annual TLA Awards Reception © 2017 Thomson Reuters Canada Limited 00238SJ-88292-NP The Honourable Justice John I. Laskin will be honoured with the Toronto Lawyers Association Award of Distinction. Ian Hull will be honoured with the Honsberger Award. 18th Annual TLA Awards Reception Thursday, March 8, 2018 OMNI KING EDWARD HOTEL Vanity Fair Ballroom 37 King Street East, Toronto Reception at 6:00 p.m. Presentation to follow at 7:00 p.m. Hors d'oeuvres and food stations. Business attire is requested. tlaonline.ca/event/2018Awards Untitled-1 1 2018-01-16 9:06 AM

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