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Coming out of the Stone Age | Michael Lesage

Monday, April 27, 2020 @ 1:36 PM | By Michael Lesage


Michael Lesage %>
Michael Lesage
Since being forced to close last month, the Ontario court system has made great strides. No longer only operating under an effective “weekend/holiday” schedule, it is now able to handle certain unopposed motions in writing and even emergency motions via Zoom and other videoconferencing technology. While still not accessible to the majority of the public nor able to handle everyday disputes, it appears to be moving in the right direction.

According to Ontario Superior Court Chief Justice Geoffrey Morawetz, the court system has been forced to accelerate its plans on moving to electronic hearings and electronic filings. Interestingly, filings, where currently permitted, are now much more seamless and less painful than had been the case only weeks ago during “normal” operations. To a casual observer, it would appear that change has finally come to Ontario’s institutional Encino Man.

For those readers who did not come of age in the ’90s, Encino Man was a cinematic marvel that chronicled the adjustments of a caveman (portrayed by Brendan Fraser) who suddenly woke up in the modern world, after literally being frozen in time. Early in the film, there is a poignant moment, where the caveman is using sticks in an attempt to start a fire, only to be astounded by the existence and functionality of a lighter. Perhaps too sophisticated for its time (or ours), it boasts a 15 per cent rating on Rotten Tomatoes, which coincidentally, is not terribly different than the Google Star rating earned by our various courthouses across the province.

In a recent fireside chat, Justice Morawetz expounded upon some of the challenges the system faced, along with some of the interim solutions found. While generally quite positive, several of his comments were troubling and reflective of the prevailing groupthink that led our court system to fail in the first place (and yes, the fact that our courts could not operate and hear disputes remotely is our system’s 737 Max style failure).

For instance, Justice Morawetz appeared to promote CourtCall a third-party platform, that requires only three business days of notice, and a fee between $65 and $78 to allow a party to attend hearing remotely. Having appeared at numerous hearings remotely when I practised in Florida a decade ago, by doing no more than indicating same on the Notice of Motion and picking up my phone, I can’t say I’m convinced. Perhaps the associated cost and hassle goes a long way towards explaining why uptake has been disappointing?

Likewise, Justice Morawetz indicated that the crisis has put an “increased premium on communication and cooperation.”

I’m not sure exactly how that works in adversarial litigation, which our courts accept is “not a tea party.” If I’m prosecuting a case, and defence counsel won’t proceed with virtual discoveries or otherwise take a necessary step to advance the action, should I instead change the conversation and request a dismissal without costs, or with even with costs, if that’s all defence counsel will agree to?

Perhaps counsel should instead hold hands (wearing gloves of course) and sing “Kumbaya” together? Normally, I could seek a timetable through the courts to advance the action, but that functionality is currently lacking.

The justice’s dismissive tone concerning refusals and undertakings motions was also troubling. Specifically, he doubted whether judges would have the patience to deal with same, and once more, that counsel would need to work it out amongst themselves.

Does that mean that parties are no longer entitled to answers to relevant questions or to obtain relevant productions? Refusals and undertakings motions exist in large part because the Rules Committee, to which Justice Morawetz belongs, has implemented unworkable rules which themselves generate conflict.

Rather than implore others to “get along” it will be interesting to see whether he rolls up his sleeves and pushes through meaningful reform of the Rules. For instance, prior to the outbreak, our trial wait times were nearly on par with Pakistan, a statistic I find hugely troubling. If our justice is increasingly doled out on an attritional basis, what is the point of paying judges, lawyers or experts? Let the last survivor to the conflict prevail.

Much like the caveman in Encino Man determining how to behave after waking to a much different reality, our courts are faced with a choice. They can graft what increasingly wasn’t working online (doing the same thing again but hoping for a different result), or they can borrow from the playbook of business, and ask which steps in the court process add value and what can be done better and more efficiently.

The latter approach has completely revolutionized the world, leading to everything from sending people to space to nearly everyone having a car and cellphone (among other complex goods). The approach adopted by the courts to date has instead led to a systemwide access to justice crisis, where increasingly only the wealthy (or most severely injured) have counsel.

As lawyers and interested stakeholders in the system, we should be prepared to encourage the courts to make necessary and potentially painful changes where necessary, and to give them a swift kick in the rear where they fail to do so on their own accord.

Michael Lesage is a trial lawyer and the founder of Michael’s Law Firm, a litigation boutique that specializes in complex cases involving professional negligence, business litigation, insurance coverage disputes and cases of serious injury. When not representing clients, he can often be found playing competitive sports. You can e-mail him at michael@michaelsfirm.ca.

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