In the Canadian commercial law context, electronic trials (paperless trials), while not the norm, have been embraced by some members of the judiciary as early as 2014. For example, Justice D.M. Brown, in Bank of Montreal v Fabish, a commercial litigation case, called upon members of the judiciary and counsel to make greater use of modern information technologies in court. Justice Brown ordered an electronic trial over the objection of counsel. In another commercial litigation case of the Ontario Superior court of Justice, Chandra v CBC, Justice Graeme Mew in 2015 held an electronic trial, in that all documents referred to at trial were stored on a database managed by the registrar and displayed on video screens in the courtroom. Witnesses testified remotely by video conference and were shown trial documents displayed on a screen both in the courtroom and in the room in which the witness was present. In the courtroom was seen a split-screen with one frame displaying the document and the other frame showing the live witness. According to Justice Mew, the sound quality was excellent, counsel and registrar were able to efficiently manage the process, and the flow of testimony was not markedly less spontaneous than it would have been if the witness had been present in court. The entire experience was, from the perspective of Justice Mew, “entirely satisfactory.”
Paperless trials and for that matter, paperless motions, reduce court time because counsel, witnesses and the judge don’t have to search through volumes of documents to find the correct document. Instead, the document is viewed by all on a screen in the courtroom. Documents can be easily located in an electronic document brief stored and managed by the court clerk. Documents that are presented to a witness during trial can be scanned at the end of each day and downloaded and marked as a trial exhibit in a separate Trial exhibit folder. Lawyers and the trial judge don’t have to transport huge boxes of documents and instead can simply carry multiple documents on their laptop, tablet or USB key.
Internet access and video monitors could be easily set up in courtrooms. There are already some courtrooms at particular courthouses that are wired for internet connectivity and are equipped with monitors. For example, a courtroom at the Barrie courthouse, used in criminal trials is equipped with this technological capability. There is the risk of technological failure but this can be remedied by backing up regularly and ensuring that documents can be printed in case the internet is interrupted. Document management software already exists and is being used in commercial litigation cases. Trial decisions could be made quickly as the judge can click on a hyperlink referred to in a factum or submissions to go directly to the case and paragraph that is being referenced. In Ontario, The Guide Concerning e-Delivery of Documents in the Ontario Superior Court of Justice provides the protocols in place and format requirements for electronic court documents in the Ontario Superior Court. Most judges already have laptops that they use in the courtroom. Scanners could be made available to clerks to download any documents presented during the course of a trial or at a motion.
In 2014, The Supreme Court of Canada stated in Hryniak v. Mauldin that a culture shift is needed to ensure a just adjudication of disputes that is proportionate, timely and affordable. In the family law context, The Ontario Family Law Rules and the Ontario Rules of Civil Procedure permit videoconferencing. E-filing of documents is permitted in a limited way but with the Covid- 19 crisis, the use of e-filing of documents has been expanded. In family law mobility cases, Video links up with courts in other jurisdictions, together with e-filing of documents would make family law cases much timelier and affordable. The technological capability has been proven in the commercial law context. It is now time to use this know how in the family law context.