A recent case conference memorandum issued by the Honourable Mr.
Justice David M. Brown of the Ontario Superior Court of Justice has
received interest from the Commercial List bar, due to its focused
discussion with respect to a desire to increase the use of e-trials
at the Commercial List.
"Our community has undergone
radical changes in the way it handles and communicates information
... 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?"
Could this be the wake-up call to the legal profession?
In Bank of Montreal v. Faibish, 2014 ONSC 2178, 2014
CarswellOnt 4364, Justice Brown's often colourful memorandum,
including the quotation above, provides guidance with respect to
the court's support for greater use of e-trials. Justice Brown
asked counsel to consult as to whether the trial should be
conducted as an e-trial, and in response to some counsel's
communication of a desire to conduct a traditional
"paper" trial, Justice Brown stated at paragraph 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 trial] be conducted as electronic
Accordingly, financial institutions, receivers, monitors and
other parties who interact primarily with the legal system via the
Commercial List should review their current practices and capacity
to conduct e-trials, and bring to bear other electronic means to
ensure compliance with the future direction of the Commercial
In support of this electronic disclosure trend, the judiciary
has also informally disclosed to bankruptcy and insolvency
professionals, including, without limitation, receivers, monitors
and trustees in bankruptcy, of the court's expectation that not
only will orders and reports be posted online, but these websites
will also include, as appropriate, motion records and all other
relevant court materials. Accordingly, insolvency professionals
should review current practices to ensure that all relevant
documents will be properly posted and that electronic means are
brought to bear in any process, even those of the most traditional
(and sometimes archaic) nature, to make such matters more efficient
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