Currently finding pleadings, motion records, or factums filed with the courts online is nearly impossible. It is not only an issue of access to justice, it is an issue of accuracy.
Reading decisions without the filed materials is like being a detective with only half of a magnifying glass. You have the ultimate decision, but you don’t have the underlying pleading, motion record, or argument that the decision is based on. This is problematic. Judges and lawyers need to have access to the material filed to truly appreciate the case law before them. Most decisions turn on the facts, and those facts tend to be found inside the filed material.
For example, in Polanski v Scharfe, 2016 ONSC 4892, the defendant (a lawyer sued by her former articling student) brought an application to dismiss an action for being vexatious on its face. The defendant argued “that the revised pleading is so deficient that the action should be dismissed for being vexatious on its face… She argue[d], that the events do not amount to professional negligence as pleaded. In addition, she object[ed] to a new claim added by the plaintiff for the infliction of psychological and emotional damage manifesting in loss of sleep and demoralization. That claim is supported by 14 heads of particulars.”
Justice Myers of the Ontario Superior Court of Justice decided that on:
[T]he facts as pleaded in the amended statement of claim, I cannot say that it is obvious on the face of the pleading that the claim is frivolous or vexatious. This is not to say that the claim has a good chance of being successful…Similarly the facts pleaded by the plaintiff, or at least some of them, appear to allege conduct that logically relate to a theoretical cause of action for breach of an articling principal’s duties. While one might raise one’s eyebrows at that plaintiff’s legal and practical judgment in bringing this case for a number of obvious reasons, this is not a case in which either branch of the Rule 2.1 test is engaged in my view. Scaduto v Law Society of Upper Canada, 2015 ONCA 733 (CanLII). I therefore decline to direct the registrar to send a notice to the plaintiff in Form 2.1A…
To truly understand the decision, we need access to the actual pleading. But those court documents remain practically obscure. Technically available but practically unavailable. Many hurdles must be overcome to access them. And court documents will remain obscure until they can be accessed online.
This is problematic. As stated, in the Discussion Paper Prepared on Behalf of the Judges Technology Advisory Committee for the Canadian Judicial Council on Open Courts, Electronic Access to Court Records, and Privacy (Canada, 2003) “Practical obscurity has precluded the realization of openness to court records and to docket information, and to a certain extent to court hearings.” And I would add, it has compromised the accuracy of the interpretation of court decisions.