Tuesday, June 02, 2020
This article is the first of a three-part series examining our courts’ response to the pandemic and what it means for the future of the civil justice system.
When COVID-19 set the world askew, Canada’s justice system seemed ill equipped to confront the warnings and restrictions that emanated from public health authorities, epidemiologists and governments, and that threatened to collapse the in-court, in-person and paper-based operations that have so rigidly and for so long defined legal process in this country.
After all, Canada ranked a shameful 100 of the 189 countries that were part of the World Bank’s Enforcing Contracts indicator. The indicator (about which much more will be said later in this series) measures the time and cost for resolving a commercial dispute through a local first-instance court, and the equality of judicial processes index that evaluated whether each economy has adopted a series of practices that promote quality and efficiency in the court system.
Allison Speigel of Toronto commercial litigation boutique Spiegel Nichols Fox LLP believes that Ontario’s civil justice system is “broken and on the fritz.”
“It’s economically unfeasible to litigate any contract under $300,000, so in many cases the contract is not worth the paper on which it’s written except for people who can afford to litigate,” she said. “Every year, every day, I get more and more calls from people I just can’t help, and until recently, nobody seems to care.”
For her part, Chantelle Cseh, a partner in the dispute resolution, competition litigation and class actions practices at Davies Ward Phillips & Vineberg LLP’s office in Toronto, says Canada’s poor ranking is “well-deserved.”
“It’s slow, expensive, complicated and difficult for individuals and businesses to enforce contracts,” she said.
As it turned out, the system hasn’t collapsed in the face of the pandemic. But its physical walls did, yielding — perhaps ironically — to the demands of physical distancing. So did the antiquated paper-based communication process. In Ontario and elsewhere, government, lawyers, judges, professional associations, arbitrators and support staff joined to tunnel through the debris and found order in virtual hallways.
Weeks into Ontario’s lockdown, the government started the digital rush by permitting the virtual signing of wills and powers of attorney. The Ontario Bar Association (OBA) and the Ministry of the Attorney General contributed hundreds of teleconference lines for the court system. The Advocates’ Society, the OBA, the Federation of Ontario Law Associations and the Ontario Trial Lawyers’ Association established an E-Hearings Task Force to work with the Ontario Superior Court of Justice to expand virtual access to the courts.
Superior Court Chief Justice Geoffrey Morawetz sprang into action, with considered, practical and remote guidance and media interviews that put his appreciation of affected sensibilities on full display. Soon, remote virtual discoveries, cross-examinations and hearings multiplied even in the face of the usual cacophony of concerns about privacy, procedural fairness and other germinations from the minds of certain counsel still rooted in the morbid excesses of the adversarial system and denuded of connection to the realities of the pandemic and the needs of their clients.
So it was with the plaintiffs in Arconti v. Smith 2020 ONSC 2782 whose objections to a videoconference mini-trial included fear of physical separation from their lawyer that would impair their ability to assist counsel, concerns that the defendants would engage in “sleight of hand,” and — from on high, no doubt — trepidation that proceeding remotely would strip the trial of “solemnity and a morally persuasive environment.”
Ontario Superior Court Justice Frederick Myers would have none of it. He compared costly personal attendance to writing with a quill and ink, characterized the objections as nothing more than an “amorphous risk of abuse” and opined that “… in 2020, use of readily available technology is part of the basic skillset required of civil litigators and courts.”
A review of recent jurisprudence suggests that many of Myers’ judicial colleagues agreed with him.
Indeed, when the lights went on in the new virtual hallways, more than a few stakeholders found — somewhat surprisingly, it must be said, given that the historical pace of change in our justice system would probably produce a last-place finish in a race that pitted it against both the tortoise and the hare — that the ambiance was not at all unpleasant.
“Before COVID-19, modernization was moving at a glacial pace,” Cseh said. “But now, in a matter of weeks, the pandemic has created a sense of urgency, and we’ve made huge strides both in terms of technology adoptions and political will.”
Evidence of the political will appeared in the Ontario legislature’s passage on May 12 of an omnibus bill, Covid-19 Response and Reforms to Modernize Ontario Act 2020, codifying the process for remotely commissioning or notarizing a document. Three days later, amendments to the Personal Property Security Act allowing protection of security interests by control of electronic chattel paper were proclaimed into force.
In the aftermath of all this, Attorney General Doug Downey told media that some of the justice system changes responding to COVID-19 would “absolutely” become permanent. And Morawetz, in a virtual fireside chat with The Advocates’ Society president, Scott Maidment, declared that a “paper-based system is not going to exist anymore.”
But questions remain. Even as the pandemic continues, there are disturbing rumblings that the systemic changes that have occurred are not appropriate in a normal environment — or perhaps even the new normal.
So just how far will Ontario and other provinces go? How far do they have to go? Are the dismal rankings at the World Bank justified? And if so, why? How fast will Ontario and other jurisdictions move? Will there be a new more efficient and less costly “gold standard” for justice that of necessity sacrifices certain sacred cows? Or will the profession’s inherent attachment to traditional values change only the camera, but not the lens or the focus?
This is the first of a five-part series.