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COVID-19 has done more to improve access to justice than decades of initiatives | Jessica Gagné

Monday, March 14, 2022 @ 11:20 AM | By Jessica Gagné

Last Updated: Monday, March 14, 2022 @ 3:57 PM


Jessica Gagné %>
Jessica Gagné
When I started practising family and child protection law in 2014 at 25 years old, I noticed that few lawyers in my practice areas kept electronic records, preferring hard copy files and off-site storage. Fax machines were an “approved” method of serving documents, but e-mail was not, unless the other side consented (and many would not, because they would then bear the cost of printing the documents for their hard copy files).

Before COVID-19, if I wanted to file documents with a court or wanted to serve more than 20 pages on opposing counsel (such that I could not serve them by fax unless they expressly consented, pursuant to the Family Law Rules), I had to pay a process server to do it. The process server would have to come to my office to pick up the documents, drive them over to the courthouse, go to the filing office, take a number, and then wait around (sometimes for hours) before it was their turn at the counter. Cost to my client: about $65 for each attempted filing (or more, if the courthouse was further from my office). It may not seem like a lot, but this had to be done each and every time my client needed to file a document with the court.

Add to this the cost of couriering documents to other lawyers who refused to accept service of more than 20 pages by fax and refused to accept service by e-mail, and all in all, it was not uncommon for a client to spend at least $1,000 over the course of a litigation file on process servers.

As a result of COVID-19 forcing lawyers, judges and court staff to work from home and not in their offices next to their fax machines, service of documents by e-mail was finally allowed without having to obtain prior consent. Even more exciting, all courthouses in Ontario developed e-filing systems. I can now file documents for all of my cases online, through Family Submissions Online, within seconds. And it’s free! The courts also created e-mail accounts for filing more urgent documents that can’t wait the five business days. In short: clients don’t have to pay process servers for anything except service of a very select number of “special” documents (i.e. originating pleadings, notices of motion for contempt of court, etc.), and they never have to pay process servers for filing documents with the court.

The bigger change, however, has been the ability to attend court appearances via Zoom. Before the pandemic, in over five years of practice, I had not attended a single court appearance via Zoom. Since March 2020, I have attended over 25 court appearances via Zoom (and none in person). The ability to attend via Zoom saves each family law litigant thousands of dollars per appearance. It is so much more expensive for lawyers to attend court in person — there is travel time, traffic, finding parking, etc. But most notably, there is the way courts scheduled court appearances before the pandemic compared to how they do it now through Zoom. Before the pandemic, it was common for six to 10 cases to be given the exact same date and time and judge. I recall being in courtrooms with eight to 10 other lawyers, for hours, just sitting there and waiting our turn (at huge cost to our clients).

As a result of the pandemic and switching to Zoom court appearances, at least in my areas of practice, lawyers and litigants have been assigned their own date and time to Zoom with a judge. In my experience, the Zoom appearances generally start on time, and when they haven’t — well, I’m at my private desk in front of my laptop, so it’s easy to get work done while I’m waiting. With Zoom, I have participated in court appearances that would have likely cost $2,000 for me to attend in person, and they have instead cost the client less than $500.

Lawyers and courts have also adopted electronic signatures. Before the pandemic, any document that had to be commissioned or sworn required my client to attend my office in person. Documents filed with the court had to have original ink signatures. Both of these rules made everything more time-consuming and expensive.

For instance, if I wanted to file a sworn financial statement in Newmarket, Ont., after the client had attended at my office to swear the document, I had to then pay a process server to come to my office to pick up the originals and drive them all the way to Newmarket to file them. I could not even scan the sworn financial statement and e-mail it to a Newmarket process server to print and take into the Newmarket courthouse (because then the signature on the documents would not be in original ink). I do not know the origin of this rule. Perhaps if a handwriting expert was asked to determine whether a signature on a court document was valid, they would want to have an original ink signature to examine. But hundreds of thousands of dollars in additional costs borne by litigants across the province for an eventuality that I had never even heard of happening?

As a result of the COVID-19 pandemic, the Law Society of Ontario (LSO) permitted lawyers to commission documents virtually via Zoom. Meanwhile, courts began to permit electronic signatures on documents. The combination of this means that if I now want to file a sworn financial statement in Newmarket, I can watch my client (via Zoom) sign the document from the comfort of their own home using my electronic document signing software, and then I can file the sworn financial statement myself through Family Submissions Online. The entire process takes a few minutes, whereas before, the entire process took hours, if not days.

Before the COVID-19 pandemic, everything I filed with the court had to be in hard copy. For some appeals, that meant filing three copies of every single document — one for each of the three judges on the panel. In some files, even though I’ve always had a paperless practice, just the costs of printing and binding materials for opposing counsel and the court often ran in the thousands of dollars, and that was using an outside legal printing service — far cheaper than doing it myself at my hourly rate. Not a single one of my clients has paid a penny in printing or binding costs since the court moved, as a result of the pandemic, to accepting the filing of electronic (PDF) documents.

There will of course be litigants who want to appear in court, in person. We need to give people the option. What I object to is preventing people from accessing efficiencies that the COVID pandemic has brought about. Already there are notices going out from courthouses that appear eager to get back to their pre-COVID ways of doing things. It seems to be a tug of war between generations, and I can already feel the rope of progress slipping through my millennial fingers. In an industry that is in crisis (unrepresented litigants outnumber represented ones at Toronto’s Superior Court of Justice), it is crucial that we hold on to these efficiencies, which lower the costs of providing and obtaining legal services, and tangibly improve access to justice.

Jessica Gagné is a solo family and child protection lawyer based in downtown Toronto. After graduating from law school, she clerked at the Supreme Court of Canada and then worked for a leading family law boutique before starting her own solo practice in 2015 at the age of 26. She has a particular interest in appeals.

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