People in masks walk past the court house at 361 University Avenue in Toronto, on April 27, 2020.Christopher Katsarov/The Globe and Mail
Forced to adapt by the COVID-19 pandemic, courts in Ontario are now holding virtual hearings and accepting documents filed online, changes leaders in the legal system say are long overdue and should become permanent.
Physical access to courthouses has been limited since March, and most trials are on hold, but judges are still presiding over proceedings such as bail hearings, insolvency cases and some family law and estate matters using conference calls and online video technology. Even appeals are being heard.
One of the most politically contentious cases in Ontario has also proceeded. In mid-April, a panel of judges from the Divisional Court in Toronto heard arguments for and against the Doug Ford government’s decision to cancel a wind turbine project, and about 200 people watched a livestream on YouTube.
The result has been an almost overnight transition from a paper-based, in-person system to a remote operation.
“We generally do this by way of pilot project. This is no pilot project,” said Chief Justice Geoffrey Morawetz of the Ontario Superior Court of Justice, the largest trial court in Canada, with more than 50 locations and more than 340 judges.
“If there is one positive that’s going to come out of this crisis, it’s that we have been forced, and the ministry has been forced, to accelerate its plans and to move into electronic hearings and also into electronic filings,” Justice Morawetz said during an online fireside chat with the Advocates’ Society on April 6. “We cannot go back.”
A wide array of legal organizations and private businesses are helping the courts and the Ministry of the Attorney General – rounding up laptops, training judges and providing conference call lines and virtual meeting technology.
This leap forward comes after years of frustration. "The overall pace of court system modernization in Ontario remains slow,” the province’s Auditor-General, Bonnie Lysyk, said in a report last autumn. Unlike other jurisdictions, the province’s court system remains heavily paper-based. Out of 2.5 million filings in 2018-19 surveyed by Ms. Lysyk’s staff, 96 per cent were paper documents.
Senior judges had also previously called for greater government investment in technology. While discussion of details will come later, Justice Morawetz said, “there has to be an increased flow of funds. Commitment for hardware, software.”
Ontario Attorney-General Doug Downey said in an interview that the province has committed new resources to the courts during the pandemic, including 600 new laptops and more than 600 dedicated teleconference lines. He said he will consider further investments in a multiyear plan he intends to put forth internally.
“I don’t want to make [those plans] public yet, but we can approach our business in a different way. And it doesn’t necessarily have to be new money. It could be money allocated in a different space than it was going to be,” he said. “Our government is interested in modernizing, regardless, and now we have an opportunity where all the justice partners are with us and everybody wants to do it.”
The Ontario Bar Association, which has trained about 300 judges on video conferencing and has provided virtual meeting technology for courtroom use, is co-chairing a task force on electronic hearings. Long-term structural changes will be costly, said OBA president Colin Stevenson, but they can be implemented through small projects that are later rolled out more extensively.
Lawyers say the changes spurred by the COVID-19 crisis have come with some challenges, including parties speaking over each other on video calls, trouble directing judges to relevant passages in filings, documents too large to be e-mailed and dropped internet connections during hearings. Courts are also grappling with security concerns around virtual technology, and the need to ensure the public and media can attend open court hearings online.
But there have been benefits, too. The format encourages counsel to be brief, and streaming allowed more members of the public to watch the wind turbine appeal than could have attended in person. A virtual appearance is also far less costly for clients than paying lawyers by the hour to travel to a courthouse and wait their turn to be heard.
“We often think of the court system as a bit archaic, but I think lawyers and judges are both problem solvers, and when an urgent change to how we operate was required to have matters heard, everybody stepped up to the plate and got it done,” said Ewa Krajewska, a partner at Borden Ladner Gervais LLP in Toronto, who took part in the first-ever virtual appeal heard by the Divisional Court on April 9.
Changing legal institutions is often like trying to turn a large ship around, she said, but the technology to implement many changes already existed at many law firms and service providers. BLG, for example, has been moving to a paperless document management system and training its lawyers on virtual hearings for court or private dispute-resolution proceedings.
Shawn Irving, a partner at Osler, Hoskin & Harcourt LLP, has attended several virtual hearings since March. With a focus on insolvency cases, Mr. Irving often appears before judges on the Commercial List, a team with expertise in complex business disputes.
When the pandemic is over, Mr. Irving expects routine scheduling matters to be heard virtually. The Superior Court already allows such matters to be heard by phone, but Justice Morawetz said the uptake of the service has been “disappointing.”
“I think that we will see more and better use of technology in the courtroom, and that’s going to put pressure on governments to find funding to modernize the courtrooms as we all get more comfortable with relying on electronic materials as opposed to paper records," Mr. Irving said.
Estate lawyer Kavina Nagrani, counsel at Loopstra Nixon LLP in Toronto, agrees that electronic filing should remain an option, noting that it is much less expensive for clients who are often charged hefty fees by process servers who line up at courthouses to file material. “This whole thing has forced the courts to get with the times.”
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