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COVID-19 exposes barriers to working remotely

Closing Ontario’s courthouses should be wake-up call to legal profession, argues Michael Lesage

Michael Lesage

The emergence of COVID-19 has placed a strain on civil society. Travel has been restricted, forcing airlines to reduce flights. Increased public anxiety appears correlated to increased demand for toilet paper, leading to frenzied buying at grocery stores that otherwise continue to function remarkably well. The markets have dropped precipitously, but trading continues.

To achieve the recommended social distancing in order to avoid spreading the virus, many employers have moved to allow employees to work remotely from home. Conversely, Ontario’s court system, ill-equipped for remote work, has largely shut down, given up and told people to go home.

In some respects, closing our court system is prudent. As COVID-19 spreads through person-to-person contact, it makes sense to limit in-person contact and large gatherings where possible. Such gatherings of course, are routine in motions court and criminal court. However, it does not follow that because large gatherings should be avoided, justice should no longer be achieved or even attempted between parties. Given technological advances over the past decades, there is little reason (or excuse) why court matters cannot continue remotely, by telephone, or even — gulp — by online video conferencing.

By largely shutting down the court system, do we not send the message to the public that, like the Apple stores, our legal system is a ‘nice to have’ luxury rather than an essential service in a democracy? (And, obviously, that comparison somewhat misses the mark as Apple continues to provide services online.)

Aside from jury trials perhaps, what court business cannot be performed remotely? There are off-the-shelf solutions available for filing and viewing court documents online; yet Ontario courts have stubbornly refused to adopt and roll out such a system, while at the same time maintaining that the filing of documents remains a two-person job, with one person serving the materials and another commissioning the affidavit of service. This archaic requirement will likely frustrate many lawyers attempting to work remotely.

It is likewise difficult to comprehend why most scheduled hearings cannot go forward via telephone conference, or through the use of an online meeting service. Recent technological advances have allowed doctors to perform surgery remotely, while businesspeople routinely hold important meetings online. By refusing to adapt as a profession, are we admitting that we are that much less competent than other members of society, or instead asserting that what we do is just that much more complex/important? Obviously, neither is flattering.

There are, of course, real-world consequences to the failure of courts leadership to plan for yesterday, today or tomorrow, with Ontario court closures being the most recent example. According to the World Bank, it takes nearly as long for a party to enforce a contract in Canada as in Pakistan, despite the fact that Canada holds itself out to be a developed country. If our courts are on par with those of Pakistan, and take twice as long as those in the United States or  United Kingdom to enforce written agreements, we are clearly doing something wrong (as further illustrated by the seven-year wait times for the resolution of personal injury matters).

I also wonder whether court leadership has considered the impact that closing the courts will have upon the thousands of lawyers in private practice, who in turn employ thousands of others? Does it now seem wise to have so strongly resisted online filing, or to have failed to make it easy to appear for a hearing remotely?

Likewise, I wonder whether any consideration has been given to the impact of this action (or inaction) upon firm revenues, and the government tax revenues arising therefrom? As partial penance, will the Law Society of Ontario be excusing the payment of dues, or Law Pro the payment of premiums? Or will our leadership continue to spend their time (and our money) debating a more perfect Statement of Principles, while like the dinosaurs before them insisting that nothing could ever disrupt their way of life?

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