Ashley Donald – April 2020
After a couple weeks of settling into our new normal during the COVID 19 pandemic, one thing has become apparent: we were not ready for this. Apparently, we were not ready with proper hand washing, enough toilet paper, or proper bandwidth for working from home. I think I can speak for everyone when I say our lives have been infinitely impacted and as such, we have all made adjustments.
Something I took for granted two weeks ago is this – our court systems heavily relies on bodies. Bodies in court rooms, bodies protecting people in court rooms, bodies to sign documents, to send document, bodies accepting filed documents, reviewing documents and processing documents. We rely on bodies to get documents to and from the court, to and from clients, and to and from other lawyers or self-represented litigants. We rely on bodies to write cheques, send cheques and cash cheques.
Not surprisingly, the court process frequently requires physical appearances. At Family Division in Halifax, we attend conferences, settlement conferences, hearings and interim motions in person. We exchange paper documents (sometimes hundreds and thousands of pages of paper), sit side by side with our clients, and cross examine witnesses in close proximity.
We’ve learned, in the last few weeks, that when we put a restriction on how close bodies can be (six feet apart, no more than five people gathering), our court system breaks down.
The justice system is considered an “essential service”, so it cannot totally shut down. Instead, the courts in Nova Scotia have moved to an essential service model, which significantly restricts what types of matters are being heard. The idea is to limit that face to face contact that we are so used to temper the spread of the virus and comply with recommended social distancing guidelines.
Though we may have been unprepared, the courts in Nova Scotia have made some changes to the ordinary course of business to further limit the possibility of spreading the virus while ensuring the show can go on in some respects. In her Blog Post titled ‘The Impact of COVID-19 on the Courts and your Personal Injury Claim’ my colleague, Alix Digout, provided a full accounting of the changes the courts have implemented as protective measures for civil law matters. Most impactfully, the courts are not accepting applications or petitions for matters that are not deemed to be an emergency. The court is accepting pleadings via fax or email, to limit the exchange of paper documents and the number of people coming in and out of the courthouse. As much as possible, court appearances are occurring over the phone or through video conferencing.
The Right Honourable Beverley McLachlin, former Chief Justice of the Supreme Court of Canada, penned an interesting opinion piece for The Lawyer’s Daily on this issue, titled ‘Access to Justice: Justice in the time of social distancing’[1].
To quote Madam McLachlin:
Our reliance on only one mode of dispensing justice is wholly and woefully inadequate. It is incumbent on governments to prioritize justice as a critical and essential part of the functioning of our society and ensure that the people at the heart of the system have the tools to meet the demand. Our court system must be sufficiently funded to be able to function in a modern fashion — no longer reliant on paper, a bricks-and-mortar-only approach to the courthouse and a mode of interaction that requires people to be physically in the same space.
Our courts may have been paper and bricks-and-mortar reliant, but these circumstances have shown its ability to pivot towards a more technology-reliant approach.
For example, child protective services applications are still being heard, as there are provincially legislated deadlines by which certain stages have to be completed. So far, my appearances for these matters have gone ahead by telephone by the parties and court dialing into a conference line.
We provided documents to the court and the other parties and lawyers by email or fax in advance of the hearing. All parties and the judge were able to be part of proceeding, while all staying in our own homes or offices and complying with social distancing requirements.
Not only have there been no issues (so far), my clients saved money. They did not have to pay the gas, taxi or bus fair to get to and from the courthouse. My legal fees were charged only for the time spent on the conference call, saving the client fees for my travel to and from the courthouse, and the inevitable 15 minute (or more) wait in the waiting room or barristers lounge to be called into the courtroom. The client did not have to pay to courier or mail documents to multiple parties and the court.
We are hopeful that these unexpected and uncertain circumstances have shown the judiciary, the bar, clients and the public that we do not have to rely on the same methods we have always used to continue to provide essential services. We don’t need bodies in the building. We can move forward, even when the restrictions are lifted and we head back to the office, the gym, the movies, out to eat and back to buying one pack of toilet paper at a time, with these time saving and cost saving measures we have been forced to implement.
Why not? E-filing documents results in the use of less paper. When we file a document with the court, we file no less than three copies. One for the court, one for the other party and one for the file. On most occasions, though, we file four to five copies of each document. These extra copies are needed for trial. But in reality, most family law matters settle before going to trial, resulting in significant paper waste. Less paper is a good thing. It saves costs and our environment. When we e-file documents, the client saves on courier fees, postage and printing costs.
If more conferences and docket appearances can occur by telephone or video-conference, clients save money by paying less time for lawyers travelling to and from the court.
Self-represented parties could e-file documents from work, the library or home instead of taking time off from work to drive down to the court, wait in line at the court administration office and file their documents. Documents can be filed at any of time day, which helps and supports those individuals who work 9-5 who may not be able to get to the courthouse during the work day, as well as those individuals who work shift work or have different schedules.
All in all, we can learn from this time of uncertainty and change to ensure we are prepared next time. We can take this time of innovation to propel the legal system to be environmentally conscious and provide better access to justice to those that need it most.
If you have questions about how MDW Law is promoting access to justice and embracing the new technological landscape, then please reach out at infor@mdwlaw.com or calling us at 902.422.5881.
[1] https://www.thelawyersdaily.ca/articles/18386/access-to-justice-justice-in-the-time-of-social-distancing-beverley-mclachlin