Ontario Courts to Paperless? COVID-19 Could Drive Digital Change – Part One
It’s far too early to tell what the short-term future holds for us, after the COVID-19 pandemic is over. Clearly, the world as we know it will be different. In some ways, it will be better. In some ways it will be worse (though we hope only temporarily).
From the standpoint of the Canadian justice system – including its judges and decision-makers, courts staff, lawyers, and the individual litigants – the long-term impact of COVID-19 can only be revealed with the passage of time. But one thing for certain is that when the health and economic crises are eventually under control, there should also have to be a “New Normal” in terms of the procedures and protocols that allow justice to be dispensed in the province.
Call for Reform
With clients complaining that the Court, and Judges, are running for the hills and starting to hibernate during this time of crisis, we respectfully put out a clarion call to the Ontario government, its lawmakers, and the judiciary to take the opportunity presented by the COVID-19 crisis to help spearhead reform to make justice more efficient, and more accessible to all Canadians in the aftermath of the pandemic.
Specifically, we call upon all those who have influence in the current system, including the judges themselves, to support a new, modernized system of electronic filing and tracking, and a fully paperless procedure to be used throughout the courts in the province.
This is the first in a multi-part series of Blogs, that outlines our suggestions for how the build a new “Roadmap to Recovery” in the post COVID-19 era.
The Present: All Paper-Based
Before we offer our suggestions for what the New Normal should look like, let’s revisit the current procedural regime used by the Ontario judicial system.
Regrettably, the synopsis is very short: It’s virtually all about paper.
All court actions, applications and other types of legal proceedings and documents start with hardcopy Forms, mandated by the Ontario Family Law Rules. These can be obtained from the court offices, and electronic versions can be downloaded from the courts’ Family Law Forms website.
However, once completed, court forms must be printed and filed in hardcopy at the court office – with only a few minor exceptions (namely those Forms that are specifically allowed to be filed electronically through the Family Claims online portal, as prescribed under the Family Law Rules).
This means that Family Courts are subject to a daily deluge of litigants’ and lawyers’ hardcopy filings: Every application, answer/reply, set of motion materials, conference brief, conference confirmation, and trial record or continuing record must be filed with the court in paper format. The same goes for supporting documentation, such as each spouse’s Financial Statements, which can be voluminous.
And – to make the paper trail even worse – each spouse must be personally served with their own, separate hardcopy of whatever the other spouse has filed with the court. The spouse who is doing the serving must then file an Affidavit of Service (also on paper) with the court as well, attesting to the fact that the other spouse received the documents.
In our view, this is an area in the Ontario justice system that is not only archaic, cumbersome, and downright behind-the-times, but is also woefully oblivious to the environmental cost of this needless waste of paper.
Court Closures – The Right Juncture to Reflect and Modernize
Now, with the COVID-19 pandemic, this flurry of paperwork has necessarily come to a screeching halt.
This past week, all regular operations of the Ontario Superior Court of Justice are suspended until further notice. All matters, including Family Law matters, which were originally scheduled to be heard anytime after March 17, 2020 have been adjourned. This includes telephone and video conference appearances, unless the presiding judge orders otherwise. There are narrow exceptions for urgent paper-based court filings, certain permitted electronic filings, and hearings for injunctions relating to matters prompted by the COVID-19 pandemic.
Likewise, the Ontario Court of Appeal is no longer conducting in-person hearings, and is encouraging parties to consider appearing by video and teleconference in appropriate cases.
In other words: Access to justice for Family Law litigants is temporarily at a complete standstill. For the time being, there is no substantive legal activity – and no paper-filing – going on in the Ontario courts anywhere.
In our view as seasoned Family Lawyers, now is the time to seize the opportunity and modernize the court system.
For the next Blog in this series, we will canvass some of the existing suggestions for improvement and modernization that have made the legal and judicial rounds in the past few years.