Trouble in Digital Court Paradise
Over a year after Ontario introduced CaseLines to civil courts, nearly all matters are using this digital case management system. But it doesn’t mean they’re using it properly.
An unsuccessful partial summary judgment motion before Justice Dunphy in Basaraba v. Bridal Image Inc. illustrates this problem,
[5] I shall first refer to the unsatisfactory state of the record I am asked to rely upon to reach the level of confidence necessary to sustain a judgment on the merits. Collectively, the parties uploaded more than 2,000 pages of evidence in the form of affidavits, expert reports, discovery transcripts and cross-examination transcripts. Three moving party defendants and one responding party plaintiff filed motion records for use on this motion. Only one… contained hyperlinks that might enable the user to navigate through the evidence she filed. The factum she filed however lacked hyperlinks to the relevant evidence, but at least the motion record had some.
[6] I cannot stress enough the degree to which this seemingly simple failure hampers to the point of destroying the ability of the judge conducting the hearing to arrive at a decision with any degree of confidence that he or she is able to render a decision on the merits that is fair and reasonable.
[7] The parties have lived with this case for five years at this point and the incident in question occurred two years before then. A judge hearing a summary judgment motion comes to the task with none of that history. He or she has the benefit of facta which are intended to walk the judge through a summary of the relevant evidence leading to the desired conclusion. Absent hyperlinks, the task of checking the actual evidence against the summary narrative of the factum is pretty much impossible in a record of this size and complexity. None of the parties hyperlinked the references to the evidence contained in their facta. Each such reference was to a motion record or transcripts with neither hyperlinks nor even a reference to the relevant Caselines page number.
[8] This failing alone is more than sufficient to warrant dismissal of this motion. We have been working with virtual hearings for almost two years at this point. The potential benefits in terms of cost, efficiency and access to justice are huge and will certainly outlive the pandemic. However, the system will grind to a halt if the parties do not shoulder their part of the burden seriously. The practice directions and notices to the profession have been highlighting the need for serious attention to be paid to the manner in which documents are uploaded to Caselines for a long time. Tabs do not survive uploading. Hyerlinks and, in appropriate cases, separate uploading of individual tabs or exhibits serve to make the task of navigating large volumes of documents feasible. That was simply not done here. The result was to drop a task in my lap akin to asking me to sort through an overturned bowl of spaghetti.
This wasn’t an isolated case either, as Justice Dunphy pointed to another case in Davidson v. Seepaul, where he made similar observations of the volume of information involved.
In this case, which involved a slip and fall at a strip mall. The unsworn and undated photos provided by the parties appeared to be taken on different days. The defendant’s photos showed a pile of snow, but the plaintiff’s did not,
[17] The evidence of the provenance of the two [defendant’s] photos came down to a “witness” statement that was itself unsworn from a store manager who was not herself present on the day of the incident. This statement describes photos as having been taken without identifying who took them. The moving parties’ decisive photographic evidence was, to all intents and purposes, useless as presented. This was not “best foot forward” being applied to the single most crucial piece of evidence on which the defendants’ joint motion relied.
[18] The plaintiff for her part had a photo taken the same day but at night. Footprints visible in the ice in the plaintiff’s photograph at least raise the suggestion that the plaintiff was not the first person to have the idea to walk along that verge which, to a casual observer at least, is where a sidewalk around the perimeter of the mall building might be expected to be located.
[19] Suffice it to say that the case on liability and standard of care was about as clear as mud when examined by me. None of the photos showed the actual location of the accident which was apparently a few feet to the right of the area depicted in the photos.
Justice Dunphy further indicated the extent of the problem by explaining his need to provide written reasons in the case,
[26] I initially formed the view that there was no need to write and publish detailed reasons in this case. I have changed my view on the matter not from a desire to single out any of the counsel involved. They are in good company. The problem of parties failing to upload usable motion materials to Caselines is endemic. It will not improve if light is not shone upon it. The message needs to get out to the profession that these “motions in a box” are simply not going to work without more effort on the part of the parties. Properly hyper-linked motion records and facta are quite frankly the exception and not the rule these days.
[27] My closing comment would be to exhort ALL counsel to check back on their case after they have uploaded their documents to Caselines and verify that a judge reviewing it will be able to navigate through the evidence, case law and written argument in the way they would like. Hyperlinks in facta and motion records are a MUST. Separately loaded and clearly identified tabs should be considered. It must be usable.
CaseLines was recently introduced for the family law bar in Ontario, where disputes about unsworn and contradictory evidence are no rare feature.
The available resources for preparing bundles should be distributed to all law firm staff prior to any court appearance.
Looking at all the guides and guidelines needed to use this product it seems hardly user-friendly. This system requires a whole different skill set than is required to use social media or games which is what most people in possession of smartphones and tablets etc. use their devices to access. This could be very stressful for the already stressed.
Doesn’t this decision cross the line into judicial misconduct?
How is the judge entitled to determine that “Hyperlinks in facta and motion records are a MUST.” (para. 27) and then just decide the motion can’t succeed simply on those grounds? Where did this hyperlink requirement come from? How could any of the parties have known in advance that the case to be met included inserting hyperlinks in documents? This is a quintissential example of procedural unfairness — it’s no different than rejecting submissions because the judge dislikes receiving documents printed on both sides of the paper.
Not a solution for evidence, but at least for linking to primary legal information one can always uploads its factum to Lexbox. Its citator will automatically add links on legal citations pointing to the corresponding material on CanLII.
Verna,
It’s actually a pretty simple system, and is largely using dated and established technology that has been around for years.
The resources linked include videos, with step by step instructions.
To be clear, I have no affiliation with CaseLines or any service associated with it.
Simona,
All of the parties would have known the requirements in advance if they bothered to review the documents around CaseLines that have been in place now for over a year.
Procedural fairness doesn’t fit into this, any more than the use of a specific form or template for any specific procedure, within the court’s inherent jurisdiction. I find there can be a deep misunderstanding of what procedural fairness actually means.
Similarly, judicial misconduct is a very high threshold, and you’re not going to reach it with something like this. Animosity towards the judiciary is misplaced. Decisions around this platform were made by MAG(Ont), and while many of us support those decisions, there isn’t any power to stop it because it doesn’t cross the line into infringing on judicial independence. Instead, it comes from one of the valid powers of the province under the Constitution Act, to administer the courts.
Omar
Omar, thanks for your response. I’m sure the system is simple for people who’ve had much experience using computer systems and software. For many people however, their experience with computers consists of systems not requiring having to watch video instructions. Using an electronic system to file taxes doesn’t require watching video instructions or reading guidelines. Using an e-commerce platform or online gambling doesn’t require their users to follow a slew of instructions. Social media remains accessible, attractive and engaging primarily because of the simplicity of use. No need to read manuals or video instruction. They’re efficient, they want people to use their platforms. As novel as digital court is to the justice system there is still a way to go to accessibility and user-friendly can be user-friendlier. Simple is relative.