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E-filing, efficiency, and access to justice

On April 24, Supreme Court Justice Rosalie Abella published an op-ed in the Globe and Mail titled “Our civil justice system needs to be brought into the 21st century”. In it, she writes that the justice system is unusable to the general public and in desperate need of reform, having undergone no significant reform over the past hundred years.

On his site Double Aspect, where he blogs about Canadian law, Professor Leonid Sirota critiqued Justice Abella’s op-ed in a piece of his own titled “One does not simply”. Professor Sirota notes that Justice Abella does not suggest a solution to the access to justice problem, but rather focuses on what she sees as an aversion to experimenting on the part of the legal profession.

Neither of these two commentaries points out that actually, the Supreme Court of Canada has already tried to implement the sort of reform to which Justice Abella alludes. In Hryniak v. Mauldin, [2014] 1 S.C.R. 87 (“Hryniak”), Justice Abella herself concurred with Justice Karakatsanis, who wrote for a unanimous court that “a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system” (Hryniak at para. 2). The decision greatly expanded judicial powers to decide the outcome of cases on the basis of motions for summary judgment and established that a decision made under the new summary judgment rule attracts deference. Summary judgments are therefore meant to replace trials as a far less protracted and expensive way to litigate a case to a conclusion.

Before too long, however, the Ontario Court of Appeal started to diverge from the Supreme Court’s decision, beginning with Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, and Butera v. Chown, Cairns LLP, 2017 ONCA 783. In those cases, the court took particular exception to motions brought for partial summary judgment because of the possibility of divergent findings between the summary judgment decision and the trial decision. It concluded in both cases that resolving a case by summary judgment should remain the exception, not the rule. This line of thought culminated in Mason v. Perras Mongenais, 2018 ONCA 978 (“Mason”), in which the Court of Appeal noted that “the culture shift mentioned in Hryniak is not as dramatic or as radical as the motion judge would have it”. In doing so, the court seems to reverse the trend that the Hryniak case had put in play.

All of this is to say that Justice Abella is correct in her diagnosis of the illness in the system, but that prescribing a cure is no easy task. Another alternative for modernizing the litigation system is an increased use of technology, which may also be what Justice Abella had in mind. That, too, however, imports as many difficulties as it addresses.

During the current COVID-19-induced economic shutdown and suspension of in-person courts, the court administration has at long last managed to dispense with the need for in-person service and filing of documents, which one would think might contribute to the efficiency of the court system. The trouble is, of course, that while technology solves some problems, it creates others. One need only look at what litigation was like in the 1970s to confirm this. In those days before computers, evidentiary records and other court materials were the definition of brevity compared with what they are today. In making things easier on one hand, technology has raised expectations on the other, which in turn has made litigation more expensive.

As lawyers, we applaud the recent innovations in digital filings and online hearings. At the same time, one has to acknowledge that the deeper part of this problem is the balance between efficiency and fairness in litigation.

Abbreviated procedures such as summary judgment motions and even motions done completely in writing play into the hands of parties with well-resourced lawyers capable of making their point strongly in those types of venues. A party struggling to represent themselves, or with a busy sole practitioner who cannot produce volumes of documentation in a short period of time, may be at some disadvantage. Ironically, if not done carefully, the attempt at increased access to justice may work against the very people who need it most.

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