Court Forms: Confusing by Design

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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But how does our court system maintain its legitimacy if it remains out of date.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.)

Paper Filing: For Shame!

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In Ontario, our courts love paper. Maybe the judges and the staff loved the 1990s. I certainly did. But some things are better left in that decade, like the annoying toy Furby and paper filing.

This past week, I had to file two motion records with the court. Unfortunately, I was cutting it close to the deadline. Both motion records had to be filed the day they were due. In other jurisdictions, at a click of mouse, I could file the material from my office. But instead, in Ontario litigants have to wait in line to file the material with the court. And what happens if you’ve waited there all day, just to be told at 4:00pm that something is deficient and the court won’t accept it? You are out of luck.

This is unacceptable!

In 2016, entire industries are being disrupted by the Internet. Taxi cabs, the food industry, the music industry, just to name a few. So why does our court think that they are invincible? Why do they insist on paper filing? Are they just trying to keep legions of people employed, whose jobs depend on moving paper around the court system?

In Israel, the courts have implemented the Next Generation Court System. It has five basic features: an electronic file, the judge’s workspace, task assignment, calendar, and e-filing. Under this system, the public has access to publicly available court documents, while the litigants and judges have access to the entire court file through smart cards and passwords.

The judge’s workspace displays all outstanding matters that require attention and includes court documents like pleadings, affidavits, and exhibits. The inclusion of court documents allows judges to search for a key term while writing or hearing testimony. The task assignment feature assigns each step in a proceeding to the appropriate person. The calendar feature allows judges to schedule matters without cumbersome hearings, like scheduling court. The e-filing of complaints and motions reduces the cost of storing and transmitting documents and enables people to access court documents from anywhere. Further access from anywhere helps judges too. The ability to view all materials digitally during trial or at home shortens proceedings and the time needed to write decisions.

Other jurisdictions have entered the new millennium. And so should we. Our government should be ashamed of the lack of resources invested in our judicial system.

E-Filing: The Time is Now for Ontario Courts

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Technology allows us to move from paper filing to electronic filing. But, justice demands that we move from paper to electronic filing. In a democracy, people are entitled to have access to public records.

Currently, the Supreme Court of Canada has electronic filing. I recently wrote about the assisted dying case Carter v Attorney General of Canada http://bit.ly/1GYYAwK. Anyone can read the factums by the parties and can watch the proceedings online: http://bit.ly/1xc4FTA

Ontario should follow the Supreme Court of Canada’s lead. First, it would provide people with a bank of precedents. Lawyers and self-represented litigants could look at similar cases and review how lawyers framed their case and which authorities they relied on. This prevents clients from having to pay for unnecessary duplication of work.

Second, e-filing provides for a more fulsome record. Being able to read the pleadings (and ideally watch the proceedings) allows people to better understand how and why the court came to its conclusion. Law professors could even incorporate the materials into their courses.

Third, e-filing removes barriers to access to justice. If people want to access pleadings filed in an Ontario court, they have to physically go to the registrar. People with mobility issues are discriminated against. In the digital age, this borders on undemocratic.

I look forward to the Ontario courts embracing electronic filing. Delaying doing so provides grounds for a section 15 (equality rights, Canadian Charter of Rights and Freedoms) lawsuit against the government. People with disabilities are unjustifiably discriminated against by the status quo.