Goodbye Paper, Hello Technology.

By Catherine DiMarco, LL.B., Heal & Co. LLP

We have all had our share of experiences that highlight the flaws inherent in the paper-based system: fax transmissions not arriving at their destination, and material filed with the court which somehow goes astray. There is also the tedium of reams of paper to print and bind multiple copies of motion material, and what feels at time like the need for an 18-wheel truck to get your boxes of material to the courthouse.

There can be little disagreement that, as a profession, we have been slow to modernize. In 2020, service still needs to be effected by fax, courier or regular mail. If you are fortunate enough to have a good relationship with opposing counsel, you can agree upon service by email and the electronic exchange of documents. This is isn’t always the case, however, and even today we can still find ourselves in skirmishes with opposing counsel who insist on delivering productions in paper form (yes, large cerlox bound volumes of material packed into bankers’ boxes and shipped to your office), just like they were doing in the 1980s.

The various provincial governments have not invested in technology to a sufficient degree. There is cause for optimism, however, that the tide is turning, driven largely by the COVID-19 pandemic, which forced everyone to adapt, quickly, and to a significant degree.

“…the world of a paper-based system is not going to exist anymore”.

In April of this year, Chief Justice Geoffrey Morawetz provided examples of how the COVID-19 pandemic has highlighted the need for additional electronic hearings, both teleconference and video. From the court’s perspective, it needs to ensure that the media and public have access to hearings, that there are adequate security measures in place to ensure that the privacy of the proceedings is respected, that the court has a user-friendly platform that the less technologically-inclined can use properly, and which will also allow every Judge to access the entire court file from wherever he or she is. The Chief Justice went so far as to opine that “the world of a paper-based system is not going to exist anymore”.¹

As a bar, together with the bench, we need to move these issues forward.

The COVID-19 pandemic has also brought to the forefront the usefulness of online dispute resolution. Canada’s first online tribunal was the British Columbia Civil Resolution Tribunal (“CRT”). It began with the intake of strata (condominium) disputes in July 2016,² then expanded to the implementation of small claims under $5,000 on June 1, 2017.³ At present, the CRT resolves: (i) motor vehicle injury disputes up to $50,000; (ii) small claims disputes up to $5,000; (iii) strata property (condominium) disputes of any amount; and (iv) societies and cooperative associations disputes of any amount.⁴

In Ontario, the Condominium Authority Tribunal (“CAT”) became Ontario’s first fully-online tribunal. CAT uses an online dispute resolution system (CAT-ODR) to help resolve certain types of condominium-related disputes, online. The scope of CAT’s jurisdiction is limited, however, to disputes relating to entitlement by owners to the records condominium corporations are required to keep, and disputes involving a party’s failure to comply with a settlement agreement from a case already decided by CAT.⁵

We must remain mindful of the potential for “digital exclusion” and the risk that an online approach to justice may exclude those who need it most. That said, we can expect to see an increase in the use of online hearings and online dispute resolution tools. The potential downside of a litigant not being entitled to his or her “day in Court” must be balanced against the less expensive, quicker, and more flexible, online model.

1. “’Paper-based system is not going to exist anymore,’ Chief Justice Morawetz says of post-COVID-19 court”, Lawyer’s Daily, April 22, 2020 Lexis-Nexis online at https://www.thelawyersdaily.ca/criminal/articles/18576
2. https://www2.gov.bc.ca/gov/content/justice/about-bcs-justice-system/legislation-policy/legislation-updates/civil-resolution-tribunal-act
3. https://www2.gov.bc.ca/gov/content/justice/about-bcs-justice-system/legislation-policy/legislation-updates/civil-resolution-tribunal-act
4. https://civilresolutionbc.ca
5. https://www.condoauthorityontario.ca/tribunal/