In the last few years, a lot has changed Canadian Family Justice system, especially from a procedural standpoint.
Not surprisingly the pandemic had a lasting effect on how things are now being done. But there have been several independent leaps of technology as well: Zoom trials have become a familiar option for participants. Artificial Intelligence is being explored as a means to make the system more cost-efficient for litigants. And the Family Court filing system – which until only recently was entirely paper-based – has been replaced by a fully electronic document-filing regime. It also works alongside something called CaseLines, which is a cloud-based document sharing and e-hearing platform. It’s used in both virtual and in-person Family Law hearings, with great success.
All of this is a huge and irreversible leap towards a more modern and accessible Justice system. But not everyone has embraced the technological switch – and at least one Ontario court has issued an admonishment accordingly.
In Anthony v. Oqunbiyi, the man and woman had separated, and one of the issues was whether they were ever legally married. The woman said they’d had a religious ceremony at their church; the man disagreed. Not only were they never married, he said, but the home they lived in (which was in his name alone) was never a “matrimonial home” subject equalization under the Family Law Act.
Against this background there was a great deal of conflicting evidence, including some documents relating to a rental property the woman owned in Toronto. Ultimately the court found some issues were more complex that could be resolved on summary judgment, and there needed to be a trial to reconcile them.
As part of that ruling the court complained about a procedural aspect related to technology: Apparently neither of the two lawyers representing the parties were familiar with how to use CaseLines. The court explained its specific concerns:
Lastly, I must comment on the use of CaseLines. The day before the hearing, my assistant contacted counsel to request that the material uploaded to CaseLines have proper hyperlinks. This means that there must be an index, identifying each exhibit, properly named, with hyperlinks. Each exhibit must be hyperlinked in the body of the affidavits. List of authorities must be hyperlinked. Affidavits and caselaw must be hyperlinked in the body of factums. The respondent failed to do so. At the commencement of the hearing, I expressed my concern. Counsel for the applicant graciously assisted counsel for the respondent and inserted hyperlinks for him in his material.
I also informed counsel, the day before the motion, that they would have to use CaseLines page references. I also indicated that my preference was that counsel use the present or direct to page mode during submissions. Neither counsel knew how to do so.
In this region, we have been using CaseLines for some time. It is expected that counsel and their staff are trained in how to properly upload and hyperlink their material. Counsel must become familiar in using CaseLines during their submissions. Material must also be uploaded to the proper bundle.
The ineffective use of CaseLines cannot continue. All counsel have a responsibility and duty to their clients and the court to properly use CaseLines and electronic documents. The days of paper are over.
Although in Anthony v. Oqunbiyi the parties were both represented by lawyers, it’s an important message for self-represented litigants to hear as well.
For the full text of the decision, see:
Anthony v. Oqunbiyi, 2023 ONSC 861 (CanLII), <https://canlii.ca/t/jv9b3>