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The Future Is Now: Pandemic Driven Technological Advances in Civil Litigation

“It’s 2020”. We no longer record evidence using quill and ink. In fact, we apparently do not even teach children to use cursive writing in all schools anymore. We now have the technological ability to communicate remotely effectively. Using it is more efficient and far less costly than personal attendance. We should not be going back.[1]

With those words, Mr. Justice Myers, in his May 4, 2020 decision in Arconti v. Smith[2], championed the use of technology to keep court matters moving, where the pandemic had seemingly ground everything else to a halt. The pandemic has shone a bright light on the need for alternative ways of proceeding and the “imperative of technological competency”[3].

In that decision, the Plaintiff had objected to examining one of the Defendants by video conference, citing a number of concerns, including the potential for abuse or risk of fraud, such as having another individual off-screen influencing or prompting the witness. While Mr. Justice Myers acknowledged that this is a possibility, he also pointed out that there is a risk of abuse even in in-person settings, and stated:

While the court remains open to receive evidence of abuse of any examination or other process in a lawsuit, and should deal strongly with any proven abuse, I do not think an amorphous risk of abuse is a good basis to decline to use available technology.

While there may be shortcomings proceeding remotely rather than in person, the technology is readily available and is part of the basis skillset required of the profession now. Mr. Justice Myers concluded that the benefits of proceeding remotely outweigh the risks, as the litigation “will not be stopped in its tracks”.[4]

To that end, on May 13, 2020, Chief Justice Morawetz released a Notice to the Profession which, among other things, emphasized the responsibility of the profession to comply with existing orders of the court and procedural rules, and to work collaboratively to keep matters moving toward resolution, to the extent possible, using virtual means. The Notice has put the responsibility squarely on the litigants to utilize these technological tools to keep matters moving, failing which, the parties will be required to explain to the Court why COVID-19 has rendered compliance not feasible.[5]

While Rule 1.08 of the Rules of Civil Procedure permits virtual proceedings on consent of the parties, or at the court’s own initiative, the Notice of the Profession suspended the need to obtain consent, or a court order, for a hearing to proceed by virtual means.

Court filings have also become electronic, a significant change from the beginning of the year when generally only pleadings in civil matters could be electronically issued or filed. Prior to the pandemic, most court documents were filed in paper form, requiring someone to attend physically at the court house. Commencing August 2020, court documents can be uploaded into the new Civil Submissions Online and Family Submissions Online portal services, the proscribed fee submitted, and then court staff will review the submission to determine whether those documents can be accepted for filing and/or issuance. Filers will receive an email indicating whether their documents were accepted.

As well, the Ministry of the Attorney General has procured CaseLines for the Ontario Superior Court of Justice and been testing its implementation in Toronto. CaseLines is a cloud-based document sharing and storage e-hearing platform for remote and in-person court proceedings. Developed by Netmaster Solutions Ltd., it is currently used in courts in the United Kingdom, South Africa, and the U.S[6]. It is anticipated that CaseLines will be implemented province-wide by year end.

As we enter the autumn months with a heavy feeling of Covid-response fatigue, it is important to realize the pandemic has had positive effects as well, one of them being how rapidly the court system has embraced technology.

Contact Judith Hull, an experienced lawyer at McKenzie Lake Lawyers.

 

[1] Arconti v. Smith, 2020 ONSC 2782, at para.19

[2] Ibid

[3] Ibid, para 33

[4] Ibid, para 40

[5] https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/consolidated-notice/

[6] https://www.ontariocourts.ca/scj/notices-and-orders-covid-19-supplementary-memo-august-6-2020/

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