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Attorney General disregards bench/bar | Michael Lesage

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Michael Lesage

Responsible for the coordination and administration of court services across Ontario, the Ministry of the Attorney General has long fallen short of expectations. In addition to not noticing the advent of the internet or taking effective steps to digitize court operations before the pandemic (which most other jurisdictions had done years earlier), it operated irresponsibly and compelling, without soliciting public comment. or the job.

The result was an underperforming court system that could not try cases in a timely manner, with average attorney salaries that were proportionately lower than those in neighboring jurisdictions. Things seemed to be improving since the collapse of the justice system two years ago, but the Notice to the Public and Legal Profession of Friday, February 24 represented an important step backwards.

Before we get into the advice, it must be acknowledged that Ontario’s legal landscape is artificially “unique” in a bizarre, Kafkaesque way. Although, as in other jurisdictions, lawyers in Ontario represent the interests of their clients in (and outside) the courts, lawyers in Ontario are additionally required to continually fight with staff court services simply to accept routine legal documents for filing. In this regard, the personnel of the judicial services arbitrarily reject a third of all submitted (civil) documents. Even so, Friday’s notice expanded, rather than narrowed, the grounds on which court staff could reject documents. Despite rhetoric and conciliatory words, it was yet another example of the Ministry of the Attorney General ignoring the roles of the bench and the bar.

For those unaware, Friday’s advisory limited the acceptable formats for electronic signatures used in litigation beyond those provided by the Electronic Commerce Law, 2000, LO 2000, c.17. Acceptable signatures are now limited to certificate-based signatures, such as Adobe or DocuSign, signature scans “wet ink” and certain non-wet handwritten signatures generated using a stylus, touchpad, or touchscreen. Simply typing names, with or without changing fonts, is now prohibited, although no guidance has been given on whether to draw signatures, use a mouse, or use cursive fonts. Additionally, court staff had additional discretion to reject documents based on their subjective determination of whether or not the signatures met the new requirements.

At a minimum, Friday’s notice demonstrates a lack of understanding as to how these pretty tabbed and bookmarked court documents are actually created. Increasingly, this is done by lawyers working alone, who create the documents (usually affidavits) in word processing software. These are then sent to clients for review, modification and ultimately approval. Until now, a quick call could take place, in which case the lawyer could see the client sign the document (eg typing in their name) and email it back, after which the lawyer could order it. Subsequently, the lawyer would use his (expensive) secretarial toolkit to convert the document to pdf, then assemble it with all exhibits, residual tab pages, back pages and exhibit stamps. conviction and would add bookmarks, before depositing or attempting to deposit the same.

Friday’s notice adds additional time and expense to the process, for seemingly little benefit. Many motions are extremely routine; i.e. motions for amendment, business motions or revolve around non-payment of debts. To follow the precepts of the new notice, lawyers would need to acquire additional software, load the Word document into that software, and then guide clients through its use. Alternatively, their clients should print the documents, sign them, scan them, then email them back (or return to in-person meetings).

For lawyers’ own signatures, they would probably need to upload a copy of their signature once, and then insert that image (photo) into every document requiring their signature thereafter. While it is understandable that some documents require additional security (i.e. deeds), it is difficult to see the new requirements as doing anything other than making routine litigation in Ontario even less efficient or affordable, while the additional “security” offered is probably negligible and in most cases simply unnecessary (not to mention the security issues that arise from maintaining a large electronic database of attorney and party signatures).

Intentionally or not, with Friday’s notice, it appears the attorney general is also questioning the jurisdiction of the Ontario judiciary. More specifically, the rules of the Superior Court are established by various committees (including the Civil Rules Committee) whose members are mainly drawn from the upper judiciary. Is the Attorney General really suggesting that Ontario judges lack jurisdiction to determine whether an electronic signature is fit for a particular purpose? Likewise, if the Attorney General dictates the rules of the court, why even have rules of the court, a rules committee, or a separation of powers?

Like most problems in Ontario’s justice system, Friday’s notice stems from a lack of consultation, feedback or accountability. The Attorney General identified a real or perceived problem, then ordered a top-down solution, without any input or consideration from those who would be affected. In the process, he managed to take an inefficient system and make it even worse, which is contrary to the stated purpose of the court’s rules. He would have heard this if he had consulted the bench or the bar first, but as we know, this is rarely done in Ontario.

Prior to publication, I contacted the ministry regarding this notice. Specifically, I asked what evidence there was about the need for this new rule, what harm it was supposed to remedy, and what consultations, if any, had taken place beforehand. Similarly, I inquired about the expected impact this new rule would have on the rate of rejected documents, as well as the expected costs to the public and the profession. At the time of publication, no response had been received.

Unlike space exploration, running a justice system isn’t rocket science. In fact, most jurisdictions in Canada and the United States manage to do this much more effectively than Ontario. So we don’t need to ‘chart a new course’ so much as simply copy what is being done by jurisdictions that have better functioning justice systems.

For Ontario, this means having better feedback mechanisms (ideally at the local level) so that when problems are identified, quick corrective action can be taken. This is accomplished in the United States by (directly) electing attorneys general, judges, and clerks. Maybe it’s time to explore that kind of responsibility here?

Michael Lesage is a litigator and founder of Michael law firm, a litigation boutique specializing in complex cases involving malpractice, commercial litigation, insurance coverage disputes and serious personal injury cases. When not representing clients, he can often be found playing competitive sports. He also sits as a bencher of the Law Society of Ontario. You can email him at [email protected].

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