Court Forms: Confusing by Design


You name it, there is probably a court form for it. A form for service. A form for requisitioning something. A form for confirming something. A form for costs. A form for a back page. And so on. Navigating these forms requires experience and ideally a law degree. But the increasing numbers of self-represented litigants means that our forms need to be examined. They need to be user friendly.

I have watched countless self-represented litigants struggle with understanding court forms and court processes. All the while, watching government clerks guide them through these forms. And who can blame the self-represented litigants? Does it make sense that you get the forms online, fill them in, then file the form in-person? Does it make sense that the forms do not include rules about service? Does it make sense that the way lawyers count days in Ontario is different than the way everybody else counts a day? Does it make sense that sending someone a document after 4pm equals service on the following day? Does it make sense that serving someone by email is a pain in the a**?  Does it make sense that you go to court to book a date with the court?

But the longer I interact with the system, the less absurd it looks to me. I become more and more desensitized to the structure. I become used to the confusing design of it all. Instead, it begins to look normal. Of course, you don’t count a holiday. Of course, you fax it. Of course, you file it in person. Of course, you need to have the original (even though the whole document was created electronically). Of course it takes years to resolve your claim.

But how does our court system maintain its legitimacy if it remains out of date. If it continues to cling on to paper? If it continues to communicate in legalese? If it continues to process cases slowly? If it puts civil cases on the back burner? If it continues to go on like the Internet is some kind of phase, like a moody teenager.

Why do we think that treating our 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?” (Bank of Montreal v Faibish, 2014 ONSC 2178)

Luckily, it appears that our government is beginning to change things. The Ministry of the Attorney General will be launching an e-filing service in five locations on April 24, 2017.

The Ontario Bar Association announced that “Phase 1 of the service will enable e-filing of the documents required to initiate a civil action in the Superior Court of Justice, auto-issuance of statements of claim and notices of action, and online payment. The pilot will be launched in Brampton, Ottawa, London, Newmarket and Sudbury, with a province-wide rollout to commence later in the year. The second phase of the service will be introduced shortly after the full rollout of phase 1, and will enable the e-filing of additional document types.”

I eagerly await these changes. I hope that the electronic filing assists users with the confusing rules about service. Ideally by incorporating prompts about service in its design and prompts about other rules (like adding a party).

(This is not a sponsored post. Views are my own and do not reflect the views of any organization.)

Law Society of Upper Canada: A Call to Arms


You don’t have to look very far to see that platforms are dominating the Internet. Just look at Facebook, Twitter, LinkedIn, Uber, and PayPal. Twenty years ago none of these companies existed.

Unlike those technology companies, the Law Society of Upper Canada has been around since 1797. The motto of the Law Society is “Let Right Prevail.” On its website, the Law Society states it “has a duty to protect the public interest, to maintain and advance the cause of justice and the rule of law, to facilitate access to justice for the people of Ontario, and to act in a timely, open and efficient manner.”

Currently, the Law Society connects members of the public to lawyers through its inadequate, little known Law Society Referral Service.

How can the Law Society facilitate access to justice if it fails to seamlessly connect members of the public to lawyers AND lawyers to each other?

The Law Society needs to initiate change before change is thrust upon it, like in the taxi industry. The cab companies could have created a platform years before Uber did. However, complacency, government protection, and arrogance kept the industry stagnated. These same forces lull the Law Society into a false sense of security.

As Justice Brown said in Bank of Montreal v Faibish, “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?”

It is only a matter time before we begin to see some sort of platform that successfully connects legal consumers to lawyers gain traction. Perhaps this platform looks like LinkedIn meets Uber.

It is not too late for the Law Society to take control and hire computer developers. The Law Society should not waste time with years of consultations. Instead, they should use the design-thinking method to create a program that easily connects people to vetted Ontario lawyers. All of the hassles attached to using the current Service need to be removed.  The profits from this new service can even go towards funding other equity initiatives.

The Law Society is uniquely positioned to create and deliver an excellent platform. They have the financial resources, political clout, and database to create this platform. And not only can it, but it must.

With great power comes great responsibility. The Law Society of Upper Canada must exercise power today to protect the public tomorrow. I highly doubt that the future Uber of the legal world will be so kind.

Bank of Montreal v Faibish: Jurassic Park

DCF 1.0

Justice Brown wrote an excellent decision in 2014, where he called out lawyers’ obsession with tradition. An obsession that is quickly making lawyers look out of touch with technology and paving the way for alternative providers of legal services and dispute resolution to take root. Justice Brown stated:

[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.

The full case on CanLII: