Canada: Court Of The Future

Last Updated: April 23 2014
Article by Eric Sherkin

The Honourable Mr. Justice Brown is known for both his thorough and considered judgments as well as his occasional venting about inefficiencies in our court system. For instance, his 2012 endorsement in Romspen Investment Corp. v. 6176666 Canada Ltee begins with the heading "Just how broken is the document management system in the Superior Court of Justice" and included a call to "consign our paper-based document management system to the scrap heap of history and equip this Court with a modern, electronic document system."

Earlier this month, Justice Brown again delivered his views on the need for a shift to a more paperless system, particularly in cases with mountains of documents. In a simple case conference memorandum on Bank of Montreal v. Faibish His Honour made his feelings on the subject known once again:

[2]               Let me express my profound frustration as a judge who has tried to encourage both counsel and fellow judges to make greater use of modern information technologies in our Court.  Those who make up the public court system – be they the judges adjudicating the cases or the counsel pleading them – provide a service to members of the public who face legal problems.  While that service possesses some distinctive attributes – constitutional status, part of the foundation of a democratic system of government, etc. – it still remains a service.  As a service it must be alive to the way in which the community it serves handles and communicates information.

[3]               Our community has undergone radical changes in the way it handles and communicates information.  Take music, as an example.  As a teenager I treasured my collection of 45 rpms; today, my grandchildren would not know what they were looking at if shown one of the 45 snap-in inserts.  A decade later 8-Tracks and cassettes were the rage; they have gone the way of the Dodo bird.  Then CDs began their dominance, but are now rapidly fading under the onslaught of MP3s and other digital storage mechanisms.

[4]               Providers of music to the public have had to adapt to changes in technology in order to continue to provide their particular service.  Why should courts and lawyers be any different?  Why should we be able to expect that treating courts like some kind of fossilized Jurassic Park will enable them to continue to provide a most needed service to the public in a way the public respects?  How many wake-up calls do the legal profession and the court system need before both look around and discover that they have become irrelevant museum pieces?

[5]               Our Court must choose: are we a Court of the Past or a Court of the Future?  I vote for a Court of the Future, and therefore I will not accept counsel's suggestion that the six-week trial for this complex commercial litigation on the Toronto Region Commercial List proceed using both paper and digital information.  I know there are judges available who are chomping at the bit to conduct more e-trials.  Paper must vanish from this Court and, frankly, the judiciary cannot let the legal profession or our court service provider hold us back.  Accordingly, I order that the six-week trial of the Loretta and Brome Actions be conducted as electronic trials.  More than enough time exists before the October 6 start date to organize the trial materials electronically.  I order counsel to provide me with a formal e-trial plan at the June 26, 2014 case conference.

Justice Brown is certainly not alone in his desire for a shift to a more electronically-friendly system for both file management and the conducting of trials and long motions. Perhaps sooner than later, the Court of the Future will become the Court of the Present.

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