Ira Marcovitch, Summer Law Student
“The times,” Bob Dylan once eloquently quipped, “they are a changin’.” However, as evidenced by a recent decision of the Ontario Superior Court, they may not be changing fast enough for one commercial list judge. In a recent decision, Justice David M. Brown, no stranger to vocal criticisms of the justice system, lambasted the antiquated paper system on which the Court relies, arguing that the legal profession and the Court must enter the technologically adept 21st century or risk becoming “irrelevant museum pieces.”
In Bank of Montreal v. Faibish, Brown J. was dealing with a request by counsel who wished to have the trial conducted as a ‘paper’ trial as opposed to an e-trial, where technology is employed to make the trial process cheaper, quicker and more expeditious. Citing what he refers to has his “profound frustration as a judge,” he chastised the requesting party and the larger legal community for not being quick to embrace the use of modern informational technologies. While noting the special status of the legal system in society, he reasoned that, at its core, the legal profession is still a service industry, and must remain attuned to the “way in which the community it serves handles and communicates information.” Analogizing to the bygone days of 45 RPM records, 8 tracks and CD’s, Brown J demonstrates how an industry must adapt to technological realities or risk extinction.
Stinging as it may be, the dicta in Faibish does not stand alone. Justice Brown has been a noted advocate on the subject, and has used the forum of judicial decisions to make his opinions known. In George Weston v. Domtar, Brown J. chided the Court’s lack of modern administrative infrastructure, and its potential to protract litigation times and balloon costs. In Romspen, another piece by Justice Brown, he takes the Court Services Division of the Ministry of the Attorney General – the body responsible for administering the court system, to the proverbial woodshed. Dedicating twice as much ink and paper to “Just How Broken is the Document Management System of the Superior Court” than to the actual law of the case, Brown provides a systemic run-down of how the proceedings epitomized all that was wrong with the civil justice system. Referring to the court document management system as a ‘scandal’ and a ‘poor excuse of a system [that] should be subject to relentless criticism – judicial and otherwise’ the case read like the airing of frustrated grievances by a man who had spent too long banging his head against a wall. “The real solution?” Justice Brown notes as much rhetorically as practically, “consign our paper-based document management system to the scrap heap of history” and update the failing infrastructure of an institution seen as so central to the proper functioning of our society.
Conducting e-trials has become somewhat of a new vogue for 21st century litigators, with documents and exhibits being shown to witnesses and sent between counsel via electronic means, and having the ability to have witnesses testify from another continent. However, e-litigation (as I refer to it) is not limited to conducting trials. There have been a number of ways in which electronic media and communication has shaped the practice of law. A number of Canadian courts now have electronic filing registries, and parties to litigation can file documents with the court without having to take a number and waiting for the often affable court staff to process your request. The principles of e-discovery, which were incorporated into the Ontario Rules of Civil Procedure during the last round of amendments, is also a noteworthy endeavor. The principles, which were derived from the Sedona Principles on Electronic Discovery, are meant to expedite the process of discovery, which can often see tens of thousands of documents exchanged between parties.
The proliferation of e-trials and a general shift towards a more paperless justice system is heralded by many in addition to Justice Brown. Many praise paperless proceedings as being cheaper and more efficient for all parties involved. It is estimated that an e-trial can reduce the overall time needed to conduct a trial by 25%. It has the ability to save witnesses the cost and hassle of attending days of hearings, instead allowing them to give evidence through Skype. And let’s not forget the environmental toll. As I sit in my cubicle, flanked by rows of file folders and cabinets, I am reminded that law is not a particularly paperless endeavor. It is not a far stretch to imagine how an electronic document system could save at least a few trees.
So what’s stopping this? Not all courtrooms are equipped for e-trials, and judges and counsel who aren’t as technologically adept may be reticent to the move. As well, the use of paper in court proceedings, be it for the comfort of familiarity, or the potential it allows for a little artistic flourish, is attractive to many litigators. Finally, as many who still buy paperback books, LPs, and newspapers off the stand will attest, there is no substitute for being able to physically hold something in your hand while you read or listen to it.
As that old truism goes, the wheels of justice grind exceedingly slow. However, one hopes that with the recent global push towards more environmentally friendly ways of ‘doing business,’ the Court Services Division will heed the call of those attuned to the views of Mr. Justice Brown, and will present a workable and realistic plan for bringing our province’s courts into the 21st century.