Service and Filing by Email: Courts Are Being Forced to Adapt

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In March 2020, courts across Canada have been forced to confront issues arising from social distancing measures. The Supreme Court of Canada is now allowing documents to be filed by email, with original paper copies to be filed subsequently at a later date. Further information can be found here.

Similarly, the Ontario Court of Appeal is allowing material to be filed by email. More information can be found here.

In Morris v Onca, 2020 ONSC 1690, Justice Myers dealt with an urgent matter, wherein he allowed material to be filed by email. In this case, the judgment creditor alleged she was at risk of the judgment debtors moving assets abroad to avoid paying her back. The case conference was scheduled to proceed on Monday, March 23, 2020.

In anticipation of the case conference, Justice Myers ordered that materials for the motion be filed by email to the Motions Coordinator in searchable PDF Format, copying all parties. Service of the materials could be made without acknowledgment of receipt for email service. No Books of Authority or statutory materials were to be sent. References to case law or statutes could be made by hyperlink to CanLII. The motion was to be heard by Skype or Microsoft Teams.

Justice Myers’ reasonable solution should be copied by other judges. We should consider extending this approach beyond the COVID-19 crisis. We should take a hard look at how paper moves through our courts and how we can eliminate paper.

Our court rules should be revised to facilitate service and filing by email. Serving and filing by paper should be the exception. Ideally, our courts will eventually have electronic files that can obviate the need for email. Instead litigants and judges would be able to upload documents to the file.

(This article was originally posted on slaw.ca. Views are my own and do not represent the views of any organization.  heatherdouglaslaw.com)

 

Changes in Court Process due to COVID-19 Social Distancing

This post is from an interview with lawyer Heather Hui-Litwin, co-founder of Self-Rep Navigators. It is posted on Self-Rep Navigators website.

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Courts in Ontario have implemented changes to accommodate the rapidly evolving Covid-19 situation. Lawyer Heather S. Douglas explains to Heather Hui-Litwin (Self-Rep Navigator Co-founder) what these changes are.

QUESTION 1: What is the current situation on court closure? Are all Ontario courts closed or just GTA? Which website is best for this update?

ANSWER: Around March 16, 2020, the Ontario Superior Court of Justice, the Ontario Court of Justice, and the Small Claims Court suspended all hearings until further notice. Only emergency matters will be heard by the court. It is my understanding that all scheduled matters up to May 31, 2020 are adjourned, except for urgent matters. https://www.ontariocourts.ca/scj/

QUESTION 2: So, what is considered an “urgent matter”?

ANSWER: The following is considered an urgent matter: public health and safety, child and family protection matters, and urgent civil matters where there is significant financial repercussions if there is no hearing. https://www.ontariocourts.ca/scj/covid-19-suspension-fam/

The Supreme Court of Canada is allowing filing of all documents by email. https://www.scc-csc.ca/ar-lr/notices-avis/20-03-eng.aspx

In my opinion, the best place to find information is the Twitter page: https://twitter.com/SCJOntario_en

QUESTION 3: Court procedures have all kinds of deadlines. Do you know what the court is doing about this? For example, what if you want to sue someone, and the limitation period is due say next week, what should you do?

ANSWER: Under the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9, section 7.1(2), an order was made to suspend any limitation period for the duration of the emergency. The suspension is retroactive to March 16, 2020. Any provision of any statute, regulation, rule, or bylaw establishing any period of time in which a step must be taken in Ontario, subject to the discretion of the court, tribunal, or a decision maker, is suspended from March 16, 2020 for the duration of the emergency.

QUESTION 4: Has the Law Society of Ontario changed the new client intake identification and verification requirements to accommodate self-isolation?

ANSWER: The Law Society of Ontario has provided the following guidance:

At this time, the client identification and verification requirements of By-Law 7.1 continue to apply. However:

  • Lawyers and paralegals should review the information below as they do not need to verify the identity of their clients for all matters.
  • If only client identification is required, lawyers and paralegals are able to comply with their professional obligations without meeting face-to-face or via video conference.
  • As a result of COVID-19, until further notice, the Law Society will interpret the requirement that lawyers and paralegals verify the identity of their client face-to-face as not requiring the lawyer or paralegal to be in the physical presence of the client. Rather, alternative means of verification such as face-to-face verification via video conference will be permitted. Nonetheless, lawyers and paralegals should conduct a risk assessment to ensure that it is appropriate in their circumstances to verify identity via video conference. If a lawyer or paralegal chooses to verify identity via video conference, they should also attempt to manage some of the risks associated with this practice as outlined below…

 

The Future of Our Courts: Online Courts

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“The Future Has Arrived — It’s Just Not Evenly Distributed Yet.” – William Gibson

In “Online Courts and the Future of Justice”, Richard Susskind proclaims that our courts are moving towards radical change. Conceived in the dark ages and modified in the 19th century, our courts are now overwhelmed by paper and archaic processes. The operations of our courts seem increasingly out of place in our digital society.

Susskind predicts that we will see court services delivered in a blend of physical, virtual, and online courts. The 2020s will be a period of redeployment of lawyers and judges. By 2030, our courts will be transformed by technologies, many of which are yet to be invented.

Access to justice requires that we work towards transformation of our courts. There is a growing number of self-represented litigants and even more people that opt-out of using our courts altogether. Whether that be due to money, inconvenience of using the courts, or the complicated processes that seem decipherable only to lawyers, people feel excluded by the court system.

Susskind writes that online services can bridge the gulf between people knowing the law and enforcing their rights. These services can take the form of virtual hearings or online courts.

In virtual hearings, some or all of the participants participate by video. This includes the judge, lawyers, court clerks, and clients. Events happen contemporaneously.

In online courts, the evidence, arguments, and judicial decisions are submitted through an online platform. There is no oral hearing. Events do not happen contemporaneously. The process is akin to an email chain.

Susskind champions the use of online courts for low-value claims, which tend to be dominated by a small number of life events. The adversarial system can still be protected in this forum. At the heart of the adversarial system is not the oral hearing but that arguments are presented by both sides to an impartial adjudicator, whose decision is backed by the coercive power of the state.

Susskind sees online courts providing a far wider range of services beyond the adjudication of claims. Additional services include:

  • tools to help the users to understand their rights, duties, and options available to them;
  • facilities that assist in marshalling evidence and formulating arguments; and
  • systems that promote alternative dispute resolution.

These tools would incorporate animations, cartoons, videos, flowcharts, and other visual guides.

The first generation of online courts would involve humans delivering decisions through an online platform. In the second generation of online courts, artificial intelligence would be used to adjudicate and contain claims.

Artificial intelligence systems would help users categorize their problem, understand the applicable law, guide them through available remedies, and facilitate settlement by letting users know the likely outcome of the case.

The tasks of building online courts include redesigning the underlying processes, drafting new rules of procedures, consultation on new services, piloting new services, procurement, system development, adjusting services, training, and roll-out.

Presently, the Civil Resolution Tribunal in British Columbia is the most advanced online court in the world. Launched in 2016, the tribunal resolves claims under $5,000, condominium disputes of any amount, and motor vehicle cases up to $50,000.

  • There is a tool that helps users understand their legal position, using a rule based expert system called Solution Explorer.
  • Then there is an online negotiation facility that allows users to try and reach an agreement informally between themselves.
  • Finally, there is an adjudication process.
  • All CRT forms can be submitted in paper or online. However, only 1-2% of people choose to do so in paper.

In the book the Future of the Professions, Richard Susskind and Daniel Susskind write that “Many professionals seem to have lost sight of the reasons why we have personal interaction in the first place. It is a feature of the one-to-one nature of the traditional approach. As a consequence of its longstanding presence, it has gained an aura of indispensability. But we have to remember its origins – only as a feature … of sharing practical expertise. If, however, we can find better ways of sharing that expertise that require less personal interaction, then we should not defend this interaction for its own sake.”

Susskind encourages designers to think of the outcome that litigants want. Litigants do not want courts, judges, or lawyers. “They want to not have a problem at all. They want their disputes resolved with finality…Outcome thinking leads us to worry far less about perpetuating old processes and methods than whether reforms will bring about better results.”

Controversially, Susskind proclaims that “we should dilute the adversarial process if it enables us to deliver court services more widely, more quickly, at a lower cost, in a less combative way, and in a form that is intelligible to lay users.”

(Views are my own and do not reflect the views of any organization. This post was originally published on slaw.ca. heatherdouglaslaw.com)

When are Contracts of Adhesion Binding?

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In the Internet age, contracts of adhesion are common. Consumers routinely confirm their acceptance to terms and conditions that they have not read or understood.

In Apps v. Grouse Mountain Resorts Ltd., 2020 BCCA 78, the court addressed when contracts of adhesion are binding. In this case, a snowboarder from Australia was injured in the terrain park. He brought an action for negligence, the failure to warn, and for breaching the Occupiers Liability Act. The BC Court of Appeal found that the trial judge erred in upholding the waiver.

The plaintiff Mr. Apps raised “an issue that has troubled the courts ever since the Industrial Revolution: under what circumstances is such a waiver in a contract of adhesion (where the consumer must take it or leave it) binding on the consumer? This has been of particular concern where the waiver includes words excluding liability for the service provider’s own negligence.”

In the case of Mr. Apps he did not click any buttons or sign any forms. What brought the terms of the waiver to his attention?

Above the ticket booth was a sign that contained the terms of the waiver: “… As a condition of use of the ski area and other facilities, the ticket holder assumes all risk of personal injury, death or property loss resulting from any cause whatsoever including but not limited to: the risks, dangers and hazards of skiing…”

The Court of Appeal held that the defendant Grouse Mountain could only contract out of its duty of care under the Occupiers Liability Act if it took reasonable steps to bring the waiver clause to the plaintiff’s attention. The court held that insufficient steps were taken to bring the waiver of liability clause to the plaintiff’s attention. The more onerous the term, the more steps that must be taken to bring attention to the terms.

At paragraph 84, Justice Grauer wrote that “It will not avail the consumer to say, ‘I did not read the notice’, if the mountain took reasonable steps to draw the own negligence clause to the consumer’s attention. On the findings of the judge, it cannot be held to have done so.”

The trial judge was only permitted to consider what was posted on signs Mr. Apps could have seen at or before the time he purchased his ticket. “By the time Mr. Apps arrived at the Terrain Park, he had paid for his non-refundable ticket, taken the lift up the mountain, and had begun snowboarding. It was far too late to give notice of what was in the waiver. That had to be done at or before the ticket booth.”

After taking the “clear and easy to read” signs at the Terrain Park out of the equation, the court was left with the following findings from the trial judge.

•         The sign at the ticket booth was “difficult to read”;

•         The own negligence exclusion was “not highlighted or emphasized in any way”, but was buried in small print among many commas and semi-colons;

•         “It is unrealistic to believe that a person approaching the ticket booth would stop in front of the window to read the sign.”

Interestingly, Mr. Apps also signed a season pass for Whistler Mountain. “Of course, having signed it, he would be bound by its terms in relation to Whistler Mountain notwithstanding that he did not read it.”

Justice Grauer held that only actual knowledge of the terms through previous dealings is relevant. In this case, previous dealings with Whistler was not relevant. Mr. Apps did not read the Whistler season pass agreement. Constructive knowledge did not apply, and could not impute knowledge to him for the Grouse Mountain.

Despite the thoroughness of the Court of Appeal’s decision, the question remains for contracts of adhesion formed over the Internet – under what circumstances should a waiver of liability be binding? How many people read and understand those terms? For example, how many people are actually consenting to apps selling their data?

(Views are my own and do not represent the views of any organization. This article was originally posted on slaw.ca)

Should Judges Confront Big Companies for Failing to Pay Jurors for Time Off Work?

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Jury duty is an obligation dreaded by some and evaded by others. Medical reasons, familial obligations, travel plans, and the loss of an income are some of excuses used to avoid jury duty.

Recently, Justice Robert Goldstein of the Ontario Superior Court of Justice in Toronto wrote to Canadian Tire about their policy on paying jurors. While presiding over jury selection, a prospective juror told Justice Goldstein that Canadian Tire would not pay them while performing jury duty. In response Justice Goldstein wrote a letter to Canadian Tire’s general counsel, Jim Christie, and Timothy Tallon, the owner of the St. Clair West franchise.

The Toronto Star reports that the letter stated:

I find it surprising that Canadian Tire’s policy is that payment while on jury duty is a ‘company benefit… Citizens who serve on juries are not receiving a benefit; they are doing a civic duty. Trial by jury in serious criminal matters is a fundamental cornerstone of our democracy… It is vitally important that citizens be able to participate in the administration of justice in their communities, with the support of their employers… virtually all large Canadian corporations — including large franchised corporations — pay their employees while they fulfil their civic obligation to do jury duty.

I agree that employers should pay their employees while off work for jury duty. Currently, the Juries Act, RSO 1990, c. J. 3 states that every employer must allow their employee time off work if summoned for jury duty, with pay or without pay (section 41).

I can see how maddening it would be for judges to see large corporations take advantage of a loophole and fail to pay their employees while on jury duty. Especially if that company frequently uses the services of the court. However, is it okay for a judge to call a company out in the absence of a court case?

The Ethical Principles for Judges does not provide specific guidance on this issue. In the commentary, the Ethical Principles for Judges state that “While the ideal of integrity is easy to state in general terms, it is much more difficult and perhaps even unwise to be more specific. There can be few absolutes since the effect of conduct on the perception of the community depends on community standards that may vary according to place and time.”

Although Justice Goldstein’s comments could be seen as crossing a line, I think he raises an important point. Large corporations should be encouraging their employees to perform their civic duty by paying them fairly. Perhaps the problem isn’t the commentary but the law itself. The law needs rewriting.

(Views are my own and do not reflect the views of any organization. This post was originally posted on slaw.ca)

Should Law Society Fees Be Progressive?

Recently lawyer Elsa Ascencio @elsaasce tweeted about the Law Society fee structure. In her initial tweet she pointed out that the fees prevent her from servicing her clients.

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In response, many lawyers chimed in. Jessica Prince @jesshwprince tweeted that the barristers in England and Wales have a progressive fee structure based on last year’s earnings. Lawyer Rob Kittredge @RobKittredge pointed out that the annual fees in some American states range from around $100 to $535. “Illinios: $99. Minnesota: $114-$250. NY $60-$275. California: $535. Florida: $265. Colorado: $325.”

Elsa has started a petition to change the fee structure. To learn more: click here

I agree with Elsa that the Law Society fees should be progressive. However, if the Law Society institutes a progressive fee structure, then how do we verify the accuracy of lawyers’ earnings, especially given the increase in professional corporations?
(Views expressed are my own and do not reflect the views of any organization.)

Eliminating Waste in Your Law Practice

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In the New York Times article “5-Hour Workdays? 4-Day Workweeks? Yes, Please“, Dr.Newport discusses attempts to change the way we work in the knowledge economy. He gives the example of a German entrepreneur, who put in place a 5 hour workday. Employees arrive at 8am and leave at 1pm. Employees do not work until returning the next day.  “Once you remove time-wasting distractions and constrain inefficient conversation about your work, five hours should be sufficient to accomplish most of the core activities…”

To accomplish the 5 hour workday, employees leave their phones in their bags and are blocked from social media on the company network. Almost all meetings are reduced to 15 minutes or less. Employees check their work email twice a day. By checking emails less, distractions and useless emails are reduced.

Dr. Newport applauds the 5 hour workday. He believes that we should be changing the way we work. Knowledge work is where automobile manufacturing was before Ford streamlined the assembly line. The way we work is convenient and simple but not efficient. Work flows along as an unstructured conversation through the electronic ether.

To believe, in other words, that our current approach to knowledge work — which is brand-new on any reasonable scale of business history — is the best way to create valuable information using the human mind is both arrogant and ahistoric. It’s the equivalent of striding into an early-20th-century automobile factory, where each car still required a half day’s worth of labor to produce, and boldly proclaiming, “I think we’ve figured this one out!”

Further to Dr. Newport’s comments, lawyers may be able to find places to reduce waste. “Lawyers in small firms spend over 40% of their day on non-billable work.” – Gimbal Canada Inc., Lean Practice Management Advisors

At the Ontario Bar Association TECHXpo, Karen Skinner from Gimbal Canada Inc. spoke about reducing waste. She pointed to 8 common sources of waste:

  • defects (missing a filing date, incomplete forms, bad drafting, data-entry errors)
  • extra processing (too much research, triple checking, over-staffing a file, too many drafts of a document)
  • motion (unnecessary travel for meetings, too many keystrokes to find a document, poor office layout)
  • inventory (unanswered emails, filing sitting on your desk, overflow of stationary)
  • transport (sending documents via courier rather than email, using cheques instead of direct deposit, too many approvals or hand-offs)
  • non-utilized talent (under using assistants, lawyers doing administrative work, doing work that could be outsourced  – even to the client)
  • waiting (for people, for information, for printers, interruptions that reduce concentration)
  • over-production (printing too many copies, cc’ing too many people, getting work done earlier than required)

Skinner argues that to reduce waste, we need to see where the waste is. We can see the waste, by mapping out our work processes. Once we see the waste, we can change it.

Skinner also recommends that we take our long To Do List that we have scribbled on a legal pad and turn it into something visual. She recommends  using a matter management board, as seen below:

Kanban-Intro

(photo courtesy of Gimbal Canada Inc.)

You can use the TO DO, DOING, DONE model for an entire workload, one aspect of a single file, all aspects of an entire file, or work for your firm or group. The DOING section can be further broken down into the individual phases of a task.

There are digital boards that can also allow you to assign tasks, filter by team member, or filter by progress. To learn more go to gimbalcanada.com.

(Views are my own and do not represent the views of any organization.)