For all of the emphasis on technology during the pandemic, there are still some basic fundamentals that need to be addressed to bring the justice system in Canada into the 21st century.
In Ontario, the provincial government has commenced a process last year to “modernize” the justice system, introducing electronic filing for over 400 court documents, a cloud-based e-hearing platform, and greater use of virtual hearings. Earlier this year, they passed new legislation for further changes, with the Attorney General stating,
Justice accelerated is justice delivered. No matter where you live in our province, the growth and well-being of our communities demands easier and faster access to a justice system that works for people.
But none of this is of any help if those at the center of the justice system are unable to access these online platforms. Aside from the many parties who have these difficulties, the actors within the justice system have significant challenges themselves.
A recent decision by the Ontario Superior Court of Justice helps illustrate this challenge. In Patkaciunas v. Economical Mutual insurance Company, 2021 ONSC 5945, the plaintiffs were attempting to commence a claim right before the limitations expiring on June 25, 2019. They attended the court just over half an hour before the court closed, and informed the court staff that this was an urgent matter. When called to the counter, the court clerk noted that the system would be shutting down at 5pm, and the Statement of Claim would not be issued.
Justice Dunphy decided these were the type of circumstances that warranted intervention, and stated,
 The plaintiffs did not fail to commence a proceeding within the time limit prescribed by s. 259.1 of the Insurance Act, RSO 199, c I.8. They did all that was necessary to commence a proceeding within the time period prescribed. The court staff failed to record that fact. Staff ought to have confirmed that fact and provided evidence of it in the form of a properly dated stamp on the statement of claim to evidence its issuance.
 I have the inherent jurisdiction to treat as done that which public officials had a duty to do and when they had a duty to do it. I am declaring the statement of claim was issued on June 25, 2019. I am not excusing the plaintiff’s failure to take a step in the time prescribed – I am finding as a fact on the evidence before me that the step required was taken even if not recorded by the court as if it ought to have been through no fault of the plaintiffs.
He explained that the court must still have the ability and the capacity to control its own processes where there is a demonstrated failing in the court processes that affect required steps that a party is required to take. This is part of the court’s inherent jurisdiction, which is described by the court as follows,
The Superior Court of Justice in Ontario is unique among the courts of the province: it is a court of “inherent jurisdiction”, meaning that it does not derive its existence from legislation, as the other courts of the province do. Instead, the Superior Court’s jurisdiction is rooted in the history of the first courts of England, whose authority over government actions were based in the Magna Carta. The Superior Court of today is entrenched in our modern Canadian Constitution, guaranteeing that the Court continues its inherent and protective authority. Members of the public who engage in proceedings in the Superior Court should know that they are participating in a court process that distinctively traces its foundation to the very beginnings of the Common Law system.
Justice Dunphy did have some sympathy for the court staff, and for others in the justice system, also stating at para 7,
For what it is worth, it takes this judge’s government-issued computer longer than 90 seconds to shut down (and considerably longer to start up).
This poses a significant problem, not just for the judges involved, but the justice system as a whole. The province is increasingly attempting to collect justice-based information, an important step to moving towards evidence-based decision making as to how the justice system can be improved. However, information in the justice system is different from all other forms of data in that there are unique concerns of confidentiality and privilege that can emerge.
Collecting justice-based information and making decisions on that basis can also potentially affect judicial independence, if it is used to constrain or influence how judicial decisions are made. Ineffective or slow technology, including simple tools like computers, also has a direct impact on independence, and even the ability of the courts to exert its inherent jurisdiction.
The solution to these necessary data silos may be to invest directly in the judiciary on these specific issues. Jena McGill and Amy Salyzyn recently illustrated in the Dalhousie Law Journal how judicial analytical tools have the potential to provide unprecedented insight into how our justice system functions. Recent appointments in Ontario also include several judges who are proficient and have backgrounds in artificial intelligence, and have contributed to the new text, Litigating Artificial Intelligence.
Protecting inherent jurisdiction may require the judiciary have the ability to sufficiently anonymize and sort data, before it is shared with the government or the public. Before they can do that though, they’ll probably need better computers.