Update needed to reflect modern times, technology, regulator's president says
More than 40 years is a long time to use the same Rules of Court, and the Law Society of New Brunswick thinks it’s time for a change, says the legal regulator’s president Carley Parish.
“Our rules are really dated. So much has happened since they were last reviewed, other than a change to family law about a decade ago,” says Parish. Costs for things like serving documents that were outlined back in the late 1970s are woefully out of sync with today’s reality.
Even the idea of “technically” being required to fax documents is more than a quaint anachronism when technology allows for uploading, downloading, and emailing documents.
The use of technology such as virtual hearings also needs to be built into court rules and should acknowledge that the New Brunswick bar is relatively small. Lawyers like herself must often travel great distances.
“Why travel five hours one way for a hearing that could be done virtually, especially if it’s not a trial and is pretty straightforward,” she says. “It’s happening, but it needs to be acknowledged more fully in the rules.” A family law practitioner at Lutz Parish Garrish, Parish notes a recent situation when travelling to a trial about three hours away, where the courthouse was double booked, the case had to be adjourned, and she drove back the same day.
So, to try to rectify this situation, Parish says the governing council of the province’s law society decided in February to reactivate the Rules of Court Review Committee with a mandate to look for ways of improving the Rules of Court of New Brunswick.
The emphasis would be on finding efficiencies, improving access to justice and utilizing technology, where possible, to meet better the needs of all stakeholders, including lawyers, their clients and the justice system’s administrative structure.
Parish says the committee’s goal will be to focus on specific rules and develop strategic recommendations that would be presented to New Brunswick’s Attorney General for improvements and amendments to the Rules of Court of New Brunswick.
The society recently sent out a call for expressions of interest from those members who wish to serve on this committee. Those chosen for the limited number of spaces on the committee will be notified by the end of April.
She figures there will be about a dozen committee members representing lawyers, the judiciary and the government, along with subcommittees to look at specific issues. “It will likely be a group of 30 or more involved.”
The response to the call-out for interest in sitting on the committee among the society’s 1,300 members has been good Parish ways. “We’ve been pleased.”
Parish adds that the society is also hoping that it can hire someone who could work full-time on changes to the rules of court because it is an involved process that will likely take two or three years to see to the end.
Parish acknowledges that the old court rules have, in many cases, stood the test of time. “It’s not that we haven’t been able to function or anything like that,” she says. But she adds there are many parts of the roles of court that need an update to reflect what’s possible and what’s happening today.”
The COVID-19 pandemic that shut down courts until new methods of doing things were devised is a good indication of the changes that need to be made and institutionalized.
“Luckily, COVID-19 has forced the courts, lawyer and clients to adapt, but the rules haven’t caught up to those adaptations,” she says.
Parish notes that provinces like Ontario and Nova Scotia are ahead of New Brunswick in looking at changes in this regard, with Ontario recently making amendments. She also says that making changes to the Rules of Court can be an involved process, with consultations needed between all players and any changes having to be passed by the New Brunswick legislature.
“We need to look at what other provinces have done, we’ll also likely want to engage with court staff, to get buy-in from them and find out what they need to make new rules of court work better for everyone.”
Parish also says she’s hoping any new rules of court consider the potential for future technology, which we might not even know. Something that builds into the rules the idea of new technology and ways of doing things would be great.