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Start of the Electronic Age?

In late January, the Federal Courts Rules were amended to permit the maintenance of court files in electronic form. The changes to the Rules, for the first time, removed the requirement that the official court docket for a proceeding be kept in “paper”. These changes open the door to improved electronic service and filing of court documents in the Federal Court.

Justice Brown’s comments regarding the Ontario Court, seem applicable, “Consign our paper-based document management system to the scrap heap of history and equip this Court with a modern, electronic document system.”

The changes to the Federal Court Rules have been several years in the making. A discussion paper released in 2011 by the Federal Court’s Sub-Committee on Technology proposed changes to make the Rules technologically neutral and facilitate the use of information technologies. Proposed rules were then published in the Canada Gazette in January of 2014, almost a year before the final rules came into force.

For example, the previous rule required that ‘books and records’ be maintained in Ottawa for each proceeding:

21. The Administrator shall keep, in the National Capital Region, all books and records necessary for recording the proceedings of the Court and shall enter therein all orders, directions, foreign judgments ordered to be registered, pleadings and other documents filed in proceedings.

The new rule does not refer to ‘books’ and does not require the records be physically maintained in the capital region.

21. The Administrator shall keep all records necessary for documenting the proceedings of the Court and enter in them all orders, directions, foreign judgments ordered to be registered, pleadings and other documents filed in a proceeding.

The amendments also contemplate the filing of electronic materials with the Court. The rules clarify that only a single electronic ‘copy’ is required, rather than the three or five [paper] copies previously required. After the amendments came into force, the Federal Court of Appeal issued a Notice to the Profession noting in part that:

As a result, the amendments to the Rules dealing with electronic filing and electronic records should be read as enabling, in the sense that they allow electronic filing and the use of electronic records by the parties as and when the Service acquires the capacity to give full effect to those amendments. That is not presently the case.

The Federal Court does currently permit electronic filing in many instances through its website and, for those proceedings which are case managed, accepts correspondence in some instances by email.

One amendment that addresses problems with electronic filing in a court that spans the entire country – time zones. The amended rules specify that for electronically filed documents, “the time of its receipt by the Registry is that time in the Eastern time zone.” The Regulatory Impact Analysis Statement mentions that objections had been raised to this change during consultation due to its particular impact on the Pacific time zone.

One of the more substantive changes is to the definition of ‘Document’ in Rule 222. This definition is part of the section on discovery obligations of parties. The amendments remove reference to “computer diskette” and instead refer to:

data that is recorded or stored on any medium in or by a computer system or other similar device and that can be read or perceived by a person or a computer system or other similar device”

All relevant ‘documents’ as that term is defined must be listed and described in the affidavit of documents.

Consent to electronic service of documents has been formalized in the Rules. Parties to proceedings in the Federal Court can serve and file a short statement consenting to be served electronically by email. Form 141A allows a party to list the email addresses to which documents may be served. Previously, the Court had a Practice Notice which established procedures for electronic service although in practice, many counsel dealt with electronic service and exchange of documents informally.

The Federal Court of Appeal’s practice direction states that the Courts Administrative Service “requires a significant infusion of funds in order to give full effect to the modifications contained in the amendments to the Rules. The Service is actively pursuing this additional funding.”

Hopefully soon, the Federal Court will be able to make more of its materials available electronically, including online and have less reliance on paper. This is particularly important to the Federal Court which has registries and court rooms across the country. Currently, the court administration must physically transport materials from office to office as needed by judges, parties and their counsel. The changes to the Rules are a welcome move towards a more electronic and modern court.

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