‘It’s not a pirouette’ but our justice system pivoted in a new direction

By Paul Russell, LegalMatters Staff • While the COVID-19 pandemic has slowed the operation of Ontario courts, everyone involved has made major strides to make the best of a difficult situation, says Brett Harrison, president of the Toronto Lawyers Association (TLA).

“The Ministry of the Attorney General (MAG) has moved quickly to adapt to the new reality,” Harrison says. “Is it perfect? No. Some things have fallen through the cracks, but we are in much better shape than we would have been if this had happened 20 years ago.”

He acknowledged that some areas of the judicial system have been harder hit by the lockdown than others, particularly criminal law and civil jury matters, such as personal injury cases.

“This is a challenging time for any law practice,” Harrison tells LegalMattersCanada.ca, “but it’s a work in progress. I think MAG has made a real effort to utilize technology as well as they can, such as allowing for the electronic filing of documents and having some cases conducted virtually. I hope those efficiencies will be retained once we start to open up.”

Chief Justice raised the alarm

To show how far the Ontario judicial system has come in the last year, he points to a March 2020 opinion column by former Chief Justice of Canada Beverley McLachlin, who lamented “the courts’ woeful inability to pivot.”

“COVID-19 is highlighting for us what we already knew – that the justice system needs to be revamped and reformed,” she wrote. “The system has been running on the edge of viability for years, struggling to maintain backlogs and reasonable hearing times … if we care about accessible justice, we must stop living on the edge and make our procedures and hearings more efficient.”

Harrison says many of the concerns she raised – such as the court’s reliance on paper documents, the use of outdated technology and the requirement for in-person hearings – have been addressed.

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“I think the government, MAG and practitioners have indeed pivoted in response to the pandemic,” he says. “Has it been perfect? No, it’s not a pirouette, but everyone is doing their best and I think that we’re adapting, and delivering justice as well as possible in the circumstances.”

Harrison points to recent amendments to the Rules of Civil Procedure. Changes include encouraging videoconference sessions for hearings, pre-trials and case conferences.

Virtual hearings ‘hyper-efficient’

“That will allow people to access justice from the comfort of their home, while drastically reducing costs and travel time,” he says. “Video-conferencing is actually hyper-efficient and is one of the positive things that have emerged during this pandemic.”

Harrison says he is pleased to see the Rules now allow for service of documents by email.

“Allowing for affidavits to be sent remotely will make a huge difference,” he says. “It will speed up the process make justice more accessible for everyone.”

Harrison is also grateful to see all references about the faxing on documents to be expunged from the Rules.

“We are finally getting rid of our reliance on this outdated piece of technology,” he says.

COVID backlog

“We now have a huge backlog caused by the COVID-19,” says Harrison. He adds that one consequence of that is that some accused are pleading guilty to minor crimes they did not commit. That allows them to be released from overcrowded jails where they fear being infected by the coronavirus in exchange for time served

He says he is hopeful that the worst of the pandemic is over and that the province’s legal system will return to some semblance of normalcy.

“Many lawyers were extremely busy during the second half of 2020, going flat out after a lull that stretched from March to August,” Harrison says.

“It’s been super active on the litigation side,” he explains. “Even though there’s not the same access to courts, people are going forward with other parts of their case. There are many hearings, just not that many trials.”

He says he is confident new technologies will be part of the legal landscape for years to come, such as CaseLines, a cloud-based document sharing and storage e-hearing platform for remote and in-person court proceedings.

“In the past year, electronic filing and virtual hearings have become part of our day-to-day work lives, so I’m hoping that they will be a cultural change and we can maintain some of these changes,” Harrison says.

“I think we have crossed the Rubicon and we can’t go back,” he adds.” With all the efficiencies we have gained, we should be left with a stronger, fairer justice system.”