New rules went into effect Jan. 1
The Ontario Government’s recently enacted changes to the Rules of Civil Procedure will save clients money, save lawyers time and enhance access to justice, say lawyers.
The changes came into effect Jan. 1 and make permanent many of the temporary measures implemented to allow courts to operate virtually amid the COVID pandemic.
“Essentially, from a litigation perspective, COVID was a pilot project for a bunch of new initiatives that are going to help in terms of dragging the court system into the 21st century,” says Joseph Cescon, partner at McLeish Orlando.
Lawyers and the courts will continue to file, issue and share documents virtually.
The rule changes provide that, aside from originating processes, documents can be served via email, without need for a court order or the other parties’ consent. The courts can issue electronic orders and judgments, and transcripts will be provided in electronic format, unless otherwise ordered by the court. Documents can now also be authenticated and issued electronically, as there is no longer a requirement that the commissioner and deponent both be physically present.
Generally, fax is out, and email is in. Court documents must now include the email addresses of parties and their lawyers and fax numbers are no longer necessary.
“I think nothing is lost in this transition to online documentation, and a lot is gained,” says Cescon. “…There is a lot of non-essential time that's going to be recouped by having these electronic documents.”
Virtual processes also eliminate geography as an impediment to access to justice, he says. A litigant in Thunder Bay who requires the help of a specialist based in Toronto, is no longer inhibited by the costs of travelling back and forth to meet.
“The assumption that you have to be physically present to meet with your lawyer, to interact with your lawyer, to get legal advice, should be a thing of the past,” he says. “It should really equalize the playing field for lawyers, irrespective of where their practice is resided.”
The use of virtual documentation also has a significant environmental impact, says Cescon.
“We're no longer distributing reams of paper unnecessarily,” he says, “most of which was going from one law firm to another, being scanned and imported back into someone's laptop anyway.”
For hearings, mandatory mediations and oral examinations for discovery, parties will now be able to choose between in-person, telephone conference or videoconference. CaseLines, the electronic document sharing software, will be used for virtual hearings.
“I think that that right there is a huge change,” says Ashlee Common, a labour and employment lawyer. “Because at the beginning of COVID, the court was at a bit of a standstill as to whether or not things could proceed via Zoom. So, at least with the ability now in the rules to allow for video conferencing, it's helpful.”
When a party objects to a hearing method, the issue will be handled in a telephone case conference. Unreasonable objections to a hearing method will be a factor in the court’s costs assessment.
“I think that that's going to prevent people from trying to delay things by saying that they want to wait for in-person when it can easily proceed by telephone or by video conference,” says Common, who practises at Hicks Morley Hamilton Stewart Storie LLP.
Depending on how the changes play out, Cescon says he expects to see more rule changes by the end of the year or into 2022, to further modernize the system.
“Those are pretty clearly the stated goals from The Ministry of the Attorney General and the courts,” he says.
