Changes to Our Courts: How COVID-19 Is Changing the Landscape

“How will COVID-19 change the legal industry and what will it look like After Coronavirus? Short answer: the coronavirus will turbocharge legal industry transformation. It will propel law into the digital age and reshape its landscape. The entire legal ecosystem will be affected—consumers, providers, the Academy, and the judicial system.” – Marc Cohen in the article “COVID-19 Will Turbocharge Legal Industry Transformation

Marc Cohen explains that the timeline for digital transformation has been truncated. We will not see a permanent return to the old ways. “The coronavirus has turbocharged law’s move to a virtual workforce and distance learning. The well-fortified walls of resistance have been breached with breathtaking speed… The genie is out of law’s bottle, and it will not return.”

Similarly in the article “Access to Justice: Justice in the time of social distancing“, former Supreme Court Judge, The Right Honourable Beverley McLachlin, writes about the changes in the legal world. She laments the lack of investment in our courts, which have left our courts dependent on one mode of hearing cases, in-person hearings. “There has been minimal investment by governments across Canada in the infrastructure required to provide these in-person services remotely or alternatively. As a result, across Canada, courts have shut down to all but the smallest number of cases.”

As a result of the shut-down of our physical courts, our courts are scrambling to move services online and into digital formats. In Ontario it has been announced that some hearings will be heard remotely. In a Memo to the Profession, Justice Morawetz states “the scope of events that may be heard remotely by the Superior Court of Justice will expand, effective April 6, 2020.”

However, until we can file more documents online, our courts will be limited to what they can hear remotely. Presently only a few types of documents can be filed online for civil matters, as can be seen here.

I am hopeful that our courts will continue to modernize. However, even after this current crisis is over, we need to continue pushing for change. We need to be able to:

  1. File all court documents online. We need to re-conceptualize what is a “court copy” and how affidavits should be commissioned and signed by the affiant.
  2. Revise the rules to allow service by email or into a portal system (as the default, for all non-originating processes).
  3. Schedule motions, case conferences, Chambers appointments, pre-trials, and trials through an online portal. We should avoid in-person attendances for routine scheduling.
  4. We need to have court dates for motions available online. It is absurd that we have complex methods for securing motion dates, with multiple emails or faxes to and from the court to find out dates for motions. Eventually, scheduling for routine matters should be automated.
  5. Court forms should be fillable online, ideally in a fillable form. For example, the program asks you questions and you type in the response. Court forms currently require legal training to complete. But with the rise of self-represented litigants, this is problematic. Instead, these forms should be easy to understand and to complete online. These forms should be in plain language. We should also think about what forms can be eliminated.
  6. Virtual hearings for uncontested matters or for low-value disputes should be the default. I have written about online courts here. In virtual hearings, some or all of the participants participate by video. This includes the judge, lawyers, court clerks, and clients.

Although these changes seem daunting, they are necessary and long overdue. There will be a large backlog of cases once social distancing is over. Reverting back to in-person hearings and paper based courts will only increase that backlog over the long-run. Access to digital court records helps judges too. It allows judges to write decisions faster, as they can write from wherever, whenever.

We will also need to hire more judges, deputy judges, adjudicators, and masters to hear more cases. Waiting years for your day in court undermines the legitimacy of our courts.

As Justice Brown wrote, then of the Superior Court of Justice, in Bank of Montreal v Faibish, 2014 ONSC 2178, “Why should we be able to expect that treating courts like some kind of fossilized Jurassic Park will enable them to continue to provide a most needed service to the public in a way the public respects? How many wake-up calls do the legal profession and the court system need before both look around and discover that they have become irrelevant museum pieces?”

Unfortunately, COVID-19 has been the wake-up call to the courts and our legal profession that radical change is needed and it is needed now.

(Views are my own and do not represent the views of any organization.)

 

 

Comments

  1. II don’t know if you are aware but today but the Saskatchewan court of appeal held the first web based appeal.
    Because of court leader ship some 10 years ago and with the support of the government The court went fully electronic.The cost at that time was under $300,000.When one complains about the lack of resources I suspect you can find in virtually every jurisdiction in the country that in the last 10 years there has been significant investment by governments in court Modernization but most initiatives have failed.This is just a brief comment to let you know what is happening in the Saskatchewan court of appeal

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