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How COVID-19 helped Ontario’s court system | Michael Lesage

Thursday, May 21, 2020 @ 8:42 AM | By Michael Lesage

Last Updated: Thursday, May 21, 2020 @ 9:39 AM


Michael Lesage %>
Michael Lesage
Prior to the emergence of COVID-19, the Ontario court system was barely functional. Intended to justly adjudicate matters in the most expeditious and least expensive manner, it had strayed badly off course. In the process, it had devolved into a nadir of bureaucratic rituals and pageantry that increasingly left it accessible only to big business and the most well off.

For example, despite the fact that it was 2020, filing documents typically required the assembly and binding of paper record books, along with the hiring of a process server, whose sole function was to walk the documents to the court, in many cases repeatedly (as court staff were incentivized to reject documents for any reason or no reason at all).

Likewise, it was typically easier to drive across the province to attend a 15-minute hearing in person rather than try to obtain permission to attend by phone, and attending via videoconference simply wasn’t an option. Partly as a result of these and other archaic procedures, Ontario ended up with a civil justice system that adjudicated disputes about as quickly as that of Pakistan, albeit at much greater cost.

With the onset of the COVID-19 pandemic, the Ontario court system failed spectacularly and for all intents and purposes ceased operations. Suddenly, it was no longer possible to do things the same way they had been done for the past 500 years (and yes, we essentially imported the British system and then failed to modernize it). Judges, heretofore valued and productive members of society, were resigned to sit at home and play Soduku, as it was simply no longer possible to assemble large numbers of people at court.

Given the system’s technological illiteracy, it was simply not possible to do things remotely, at least not initially.

With the status quo upended, our courts were suddenly forced to figure out what they could do, with the resources they had, as who would keep funding them if they did nothing? Within days, courthouses established means to file documents electronically, a process that had completely eluded them over the preceding 20 years.

Likewise, rather than requiring lawyers (and parties) to drive and wait for hearings, our courts discovered that same could be scheduled and occur remotely over the Internet. The parties could each present their arguments, the judge could decide, and the sky did not fall. It was truly a watershed moment.

While still in its early days and though much work remains to be done, the signs of modernization so far are encouraging. Almost overnight, our courts have moved to operate remotely. Such innovation will allow our courts to continue to function, disputes to be resolved and for lawyers to use their time much more productively (who do you think pays for lawyers sitting in traffic or in packed courtrooms?).

Likewise, having discovered e-mail and pdfs, our courts have learnt that they don’t have to manage warehouses of paper documents, and that forests don’t have to die to determine which of two separating spouses gets the toaster. While they have certainly not yet discovered the best way, they are no longer stubbornly insisting on doing things the “stupid way.”

Going forward, the next most pressing issue is for the modernization of the rules and processes themselves. Specifically, our current and largely unworkable discovery rules need be modernized, as the existing rules encourage obstructionism and generate additional conflict, rather than serve as a tool to resolve the underlying dispute. For instance, would it not make more sense to simply answer questions that are asked, and then fight about admissibility at trial, in those two to three per cent of civil cases that make it to trial, rather than tie up court resources to determine whether each question asked was in fact proper?

Likewise, steps need to be taken to reduce the delays in getting matters to trial. Currently, Ontario employs an unofficial policy whereby trials are so long delayed that one or both parties may have died before their matter is heard in court, resulting in the matter being decided by attrition, rather than the courts. This needs to change, as long trial delays incentivize institutional defendants (insurers) to play hardball, rather than making reasonable offers to resolve cases. This in turn means more cases need to go to trial, which itself generates more delays, further bogging down the system.

Hopefully, our courts will embrace this modernization as many lawyers have, and use the lessons learned through abject failure to see that justice is better delivered in a more timely manner. Otherwise, all talk of a “culture change” will truly ring hollow.

Michael Lesage is a trial lawyer and the founder of Michael’s Law Firma 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 amichael@michaelsfirm.ca.

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