Ontario Courts to Paperless? COVID-19 Could Drive Digital Change – Part Four
This is the fourth in a series of Blogs devoted to promoting the prospect of a “paperless justice” system for Ontario Family Law matters. These Blogs come at a time of unexpected and unprecedented challenges to the efficiency of the justice system, including concerns over public access in light of mandated court closures across the province.
In the last Blog we canvassed the achievements of courts in several U.S. jurisdictions that have long-ago adopted a mandatory paperless justice model – and have been operating it with resounding success for many years.
In this next installment, we humbly propose some initial steps that Ontario Family Courts should take, both short- and long-term, towards installing a paperless document-filing and document-service system in courts across the province.
They are:
- Switching the default vantage-point to create a “new normal”. Currently, the hardcopy-based mode of serving and filing documents is the so-called norm – and electronic filing is viewed as more of a “novelty” or a “special” scenario. This script must be immediately flipped: Paperless service and filing of documents must become the accepted default, and filing of hardcopy documents must become the (rare) exception.
- Pivot to an entirely paperless system. There are many non-Ontario jurisdictions that already have paperless document service and filing systems in-place (such as the courts of Colorado and Texas, as we noted in the previous Blog). In many cases, these court systems have been in place for more than a decade, and are a fertile source of information on what does / does not work. Ontario courts should plumb these sources for information on how best to proceed with its own paperless justice initiative.
- Impose limits on paperless filing only when absolutely necessary. Nobody expects to fully and permanently eliminate hardcopies from the Ontario justice system altogether, or all at once. There will be exceptions and limits on what can be filed electronically. However, these exceptions should be scrutinized to ensure that – from an administratively or privacy standpoint – they truly cannot be avoided.
- Eventually, evolve to digital court rooms. Many of the in-person hearings that arise or are currently required as part of a typical Family Law matter could easily be conducted remotely instead. These include case conferences, first appearances, motions to change, etc.
- Limit in-person hearings to only trials, and to determinations involving credibility assessments. Courts should not require in-person attendance in a physical courtroom except where findings relating to credibility are required, or where viva voce testimony is essential.
In person trials with viva voce evidence can still be paperless and digital. Lynn Kirwin, a lawyer at Galbraith Family Law, notes:
Electronic trials (paperless trials), while not the norm, have been embraced by some members of the judiciary as early as 2014. For example, Justice D.M. Brown, in Bank of Montreal v Fabish, a commercial litigation case, called upon members of the judiciary and counsel to make greater use of modern information technologies in court.
The Ontario Superior court of Justice, Chandra v CBC, Justice Graeme Mew in 2015 held an electronic trial, in that all documents referred to at trial were stored on a databased managed by the registrar and displayed on video screens in the courtroom. Witnesses testified remotely by video conference and were shown trial documents displayed on a screen both in the courtroom and in the room in which the witness was present. In the courtroom was seen a split screen with one frame displaying the document and the other frame showing the live witness. According to Justice Mew, sound quality was excellent, counsel and registrar were able to efficiently manage the process, the flow of testimony was not markedly less spontaneous than it would have been if the witness had been present in court. The entire experience was, from the perspective of Justice Mew, “entirely satisfactory.”
Clearly Justices D.M. Brown and Mew were ahead of their time in implementing technology into their court rooms.
Although these proposed changes will not happen overnight, the COVID-19 crisis may be the impetus for immediate change, and may serve to hasten the Ontario courts’ evolution. And not a moment too soon.
It has been reported by the Federation of Ontario Law Associations that on March 27, 2020, the Ontario Court’s Chief Justice Morawetz has dispatched a letter to the legal profession. It advises that as of April 6, the scope of matters eligible to be heard by a court remotely will be expanded, in keeping with the Court’s plan to expand its virtual operations. The Chief Justice specifically noted that one of the challenges faced by the Court, however, was that it currently had only limited ability to receive materials in electronic format, and that there is a present lack of uniformity across the province in this regard.
As the fallout from the COVID-19 crisis continues to unfurl, it has become clear that the Ontario justice system was unprepared for the inevitable constraints and adjustments made necessary by the pandemic.
However, as the adage goes: Better late than never.
