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Pandemic Silver Lining? Court Modernization Hopefully Here to Stay

As we approach the two-year mark of a global pandemic and there is a new “variant of concern”, it may be difficult to look on the bright side of these “unprecedented times”. However, for legal practitioners in Ontario, it’s easy to see that the pandemic has forced some overdue and welcome modernization. Below is a list of what we think are the top 5 court modernizations introduced in 2020 and 2021.

#5 – Remote Commissioning of Affidavits

The Administering Oath or Declaration Remotely, O Reg 431/20 took effect on August 20, 2020. The regulation permitted, for the first time, the practice of remote commissioning. With the use of a specially-worded jurat, lawyers and commissioners are able to forego time-consuming in-person meetings, and commission affidavits electronically. This practice saves time for clients requiring commissioning services, who no longer need to attend in-person to swear affidavits. Time-saving measures for lawyers and clients? We love to see it!Lawyers and paralegals who plan to take advantage of this modernization should be sure to comply with the legislation by reviewing the Law Society’s Best Practice for Remote Commissioning resource. The Law Society has also developed a helpful Remote Commissioning Checklist.

#4 - Increased Email Communications with Court Staff

Legal practitioners who interact with courts in busy jurisdictions like Toronto and Brampton have long despaired of being able to ask court staff questions over the phone. The pandemic forced courts to shut down for several months. Even as courts have begun resuming many of their services, courts have tried to reduce procedures that require staff to attend in person. The positive outcome is that court staff, in particular intake clerks and trial coordinators, are much more accessible via email. This is thanks to the addition of Rule 4.12 to the Rules of Civil Procedure.So far, there is no central repository of all court staff email addresses. However, it is often possible to find these email addresses through local practice associations and networks, or by emailing courthouses asking to be directed.

#3 - Uploading Court Documents Online

Many practitioners may remember a time of having to hire a process server to physically wait in line at a courthouse in order to file court documents. Lawyers may have had to courier originally signed legal documents to a different jurisdiction so that a process server could file the document with the court. This process could take several days, and would involve significant disbursements for the client.Before the pandemic, there was already an effort to modernize this process. The Small Claims Court of Ontario had recently introduced the ability to issue a claim or file a defence electronically. This initiative was deeply popular, particularly for self-represented litigants, and dramatically reduced the strain on Small Claims Court staff.Now, most civil and family court documents can be filed electronically through the Civil Submissions Online portal. Family court documents may be filed electronically with the Family Submissions Online portal.In busy jurisdictions, it may take some time to get confirmation that your document has been filed (or rejected for filing). If the filing is successful, the date of the filing will be the date you submitted it.It should be noted that some jurisdictions have introduced naming conventions for electronic file submissions (see for example the Central South Document Naming Convention). Practitioners should make sure to check notices to the profession and practice directions regularly to stay on top of these conventions.

#2 – Virtual Hearings

Once upon a time, I attended a 10-day trial in Walkerton, spread out over a year. I commuted from Toronto six times over that year, driving over 2,000 km in the process. I can also recall flying into Sudbury one morning to argue a motion, and flying home that afternoon.Such travel can be costly for clients and can be a huge inconvenience for lawyers. Not to mention the carbon emissions of short-haul domestic flights!Most (if not all) administrative and court hearings are being conducted virtually with the exception of criminal jury trials. Not only is this convenient (unless you have kids at home), it has also brought us perhaps the funniest court footage of all time.

Virtual hearings have many positive aspects: convenience, cost savings, time savings, and increased comfort (not having to wear robes, as well as being able to wear pajama bottoms without anyone knowing).However, virtual hearings also have some drawbacks: audio issues, connection issues, disturbances arising from attending court in-home, having to download every video conferencing software known to man, are but a few. More significantly, litigators know that some of the hallmarks of testing witness credibility involve a judge personally assessing the witness’ demeanor. How accurate are these judgments through a computer screen?What will be the future of virtual hearings? Will they stick around once attending court is safe again? Or will virtual hearings be the new default format for proceedings? Perhaps some steps, such as motions and pre-trial conferences will be virtual, while trials will be in-person. Or perhaps proceedings will be in person unless the parties consent to a virtual alternative.Let us know what you think with the poll below![poll id="2"]

#1 – Email Service Allowed!

In the grand scheme of things, perhaps the other modernization efforts are more dramatic than email service. However, this one has been so overdue, we rank it very highly.Before the pandemic, parties could only serve court documents, other than originating processes, via email with the court’s permission or where the receiving party consented. Copies of the receiving party’s consent would have to be attached to affidavits of service. This was often done by wrote, however, could be needlessly frustrating when the receiving party withheld consent.Now, Rules 16.01 and 16.05 have been amended to allow the service of documents, other than originating processes, to be served by email without the need for the parties’ consent or a court order. Because of this, a certificate of service is no longer required to prove service by email.Additionally, fax of court documents via fax machine is no longer a proper service. In the electronic age, we are one step closer to retiring the fax machine forever! That is a reason to celebrate! Hurrah!

Research Lawyer

Tamar Friedman is a research lawyer at Alexsei.

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