Progress of the Court System – It is Time

May 6, 2013

As we move further into the twenty-first century, examples abound of the modernization of industry and various professions. The medical profession has seen tremendous advances in imaging, diagnostic, and preventative medicine. Engineering and construction have benefited from new materials that are more durable, malleable, and stronger than ever before. Students have benefitted tremendously as various Boards of Education utilize digital white-boards, computers in classrooms or libraries, as well as curriculum development designed to spur the greatest possible learning. Even professional sports teams are now using advanced metrics and statistical analysis to achieve greater results.

These industries have been willing to adopt new innovations that make them more efficient and able to provide superior service. However, notable in its omission from those willing to move forward aggressively is the legal profession, and specifically the court system. Whereas other industries embrace progress, the court system seems reluctant to deviate from its customs. When this makes you the exception, rather than the rule, perhaps it is time for lawyers to wonder why the courts are reluctant to change or improve upon their practices.

In a typical litigation file, multiple trips to the clerk of the court – whether by process server or not – is an absolute. The claim must be issued and entered; the statement of defence will be treated likewise. Affidavits of Service, Requests to Clerk, Third Party Claims, Motion Records, Confirmation of Motion, Request for Summary Judgment and every other form imaginable throughout the course of litigation necessitates a trip to the courthouse so that the documents can be filed with a clerk. These filing requirements take up hours of time spent waiting in line with each trip to the courthouse.

One way for the Ontario court system to improve upon its stasis would be the introduction of e-filing. If you have an Affidavit of Service, or a Notice of Motion or any other court document to file, that documentation should be able to be filed with the court electronically.

In most instances, after waiting in line for an interminable length of time, the court staff will very closely scrutinize the document presented, and if there happens to be the slightest hint of error or inaccuracy, they will often reject the document. Some may see this as a good use of court staff to ensure that the courts only deal with properly formatted and presented forms. However, this same function can be served through e-filing. Electronic documents can still be very closely scrutinized by the same staff that sits behind the desk at the court offices. If a document is filed electronically, and ultimately rejected, upon notice of that rejection, the lawyer can make the necessary corrections and resubmit the document electronically.

Similarly, when orders from a Judge or Master are finally prepared after an opinion has been reserved, it is incumbent upon the lawyers to attend at the courthouse to receive their copy of the order. Considering every single court has a scanner and access to the internet, it seems logical that the order should be scanned and e-mailed to the parties involved.

This would not be a unique technology to adopt. Many counties and states throughout the United States allow attorneys to file documents with the county clerk electronically. Closer to home, the Federal Court of Canada issued a notice in 2009 allowing electronic filing of certain documents. Perhaps most convincingly, the Supreme Court of Canada has been using e-filing of appellate materials since the fall 2008, albeit on CD-ROM.

Ultimately, no one can force the courts to adopt modern best practices. With the calls for change ringing louder and louder, it seems all but inevitable that the courts will adopt some innovative technologies. After all, the legal community is a part of the service industry; we are in the business of providing valuable service to our clients. When there are obvious ways in which to improve upon the quality of service to our clients, it would behoove the legal industry and the court system to sit up, take notice, and effect some positive change.