Justice David Brown expressed his “profound frustration” in case conference notes for Bank of Montreal v. Faibish, being heard at the Ontario Superior Court.
He had asked counsel involved in the case to consider conducting the proceedings as an electronic trial. In e-trials, digital files typically replace paper documents and video testimony may be used. But in Faibish, “some counsel (I will not indicate whom) communicated a desire to work in paper,” wrote Justice Brown on April 4. This was despite the fact that doing so would result in 10 binders of documents, according to BMO’s Bennett Jones LLP lawyers.
Brown wrote: “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.
“. . . As a service it must be alive to the way in which the community it serves handles and communicates information.”
Changes to music publishing meant his “treasured” teenage collection of 45 rpms, along with 8-tracks and cassettes had “gone the way of the dodo bird,” Brown added.
He said: “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?”
He ordered that the six-week commercial litigation trial should be held as an e-trial, dismissing counsel’s suggestion that paper should also be used.
Blaney McMurtry LLP partner Lou Brzezinski represented plaintiffs Brome Financial Corporation Inc. in the action. He agrees with Brown’s decision, saying it would lead to “a much more rational and simplified way of dealing with a complex documentary trial.”
As well as allowing lawyers to turn up to trials with a USB key instead of many boxes of documents, e-trials are faster and more efficient, he believes.
“At some of these trials, the documents are put on a larger screen. The witness can look at the decision in an enlarged form, [instead of] squinting at a document that might have been produced in 1964 and that no-one can read it because it’s so smudged,” he says.
This is not the first time Brown has raised the need for courts and lawyers to embrace modern technology.
In 2012’s Romspen Investment Corp. v. 6176666 Canada Ltée, he criticized “delays caused by our antiquated, wholly-inadequate document management system.”
Two years earlier, in Pershadsingh v. Thompson, Brown pondered “how much the document and file management systems maintained by the Government of Ontario in this court differ from those that existed back in 1867.”
But David Whelan, a published author on legal technology, says the bar is getting mixed messages.
He points to memorandums such as a Court of Appeal for Ontario e-filing notice posted 14 years ago, and still apparently active, that says printed documents are required during the “transition.”
Meanwhile, an Ontario Court of Justice protocol allows electronic devices to be used – unless a judge prohibits them.
“Taken together, there seems to be an aspirational direction in the courts to use more technology but the mixture of paper requirements and individual judicial discretion suggest that parties may not be completely certain about when they should or could prepare for an e-trial,” says Whelan.
There does not seem to be any leadership on using technology to improve the administration of justice across Ontario, he adds.
Document-heavy cases like Faibish lend themselves well to e-trials, but there may be situations in which technology can be unhelpful, according to Whelan. For example, iPad apps that need to be fiddled with can be distracting to judges or juries.
“If a court or process mandates using technology, there should be a benefit to doing so,” he notes.