Antiquated technology holding Ontario's justice system back during COVID-19 crisis

The unprecedented directive to minimize social contact in an effort to battle the novel coronavirus pandemic is having a significant effect on the Ontario justice system, forcing the courts to curtail operations for weeks, if not months.

The Chief Justice of the Superior Court of Justice, Geoffrey Morawetz, has issued a series of notices outlining the moves, telling jurors to stay away unless contacted and effectively suspending all regular operations of the court.

While some degree of disruption was inevitable due to the unique challenges posed by the pandemic, most observers — including judges, lawyers and litigants alike — agree that the extent of the curtailment in Ontario has another cause: that the justice system has never caught up with modern technology, and thus is totally unequipped to operate under the current conditions.

The developments in Ontario escalated on March 15, when the Chief Justice, in what is believed to be a first in Canadian judicial history, made a sweeping order: “All criminal family and civil matters scheduled to be heard on or after Tues. March 17, 2020 are adjourned,” he declared, confirming that only “urgent matters” during this “emergency period” would be heard.

A separate notice was issued for all criminal matters before the court, with all accused persons with matters to be heard by the court in March adjourned to June 2, 2020.

During the emergency period, Chief Justice Morawetz set the rules for what would qualify as an urgent and emergency matter. Cases related to public health and safety and COVID-19, including any applications by the Chief Medical Officer of Health have priority.

In family and child protection matters, only requests relating to the safety of the child or parent — including such things as an essential medical decision or the wrongful removal or retention of a child — may qualify. Family financial issues will meet the threshold only if circumstances are “dire.” For civil and commercial matters, only urgent and time-sensitive cases “where immediate and significant financial repercussions may result if there is no judicial hearing” make the list.

All urgent matters were ordered to be conducted either in writing, by teleconference or videoconference unless the court ordered otherwise. Each courthouse appointed a triage judge to determine whether the urgent matter filed met the threshold test of urgency and would be heard.

The March 15 notice made it clear that Ontario’s courthouses remained open for business: while the courts would have reduced hours and matters might not be heard for some time, court filings to start lawsuits or motions for interim relief would be received, and litigants were still expected to comply with orders and rules regarding the service of documents and delivery of documents between lawyers.

Bu this process, too, abruptly changed. By noon on March 23, all Superior Court courthouses in Ontario were closed, given the need for physical distancing.

On March 24, Chief Justice Morawetz advised that during the first week of operating under the court’s emergency protocol, triage judges across the province had deemed only 120-140 matters urgent. Of those, fewer than 40 were commercial matters; the balance were family and criminal, with the criminal cases all involving the review of a bail order.

According to Ontario’s Senior Family Justice, Suzanne Stevenson, all urgent family law matters appeared to involve children and were either child protection matters or high-conflict parenting issues. A number involved children out of the country or breaches of earlier orders requiring the return of children.

No family cases involving financial matters had been heard, given that the financial circumstances of the applicant be “dire.”

With about 150,000 new cases a year coming to the Superior Court of Justice in Ontario, it is obvious that Ontarians who need to access the court in a timely way have been unable to get it.

While many businesses and essential services have been able to continue to function near capacity by shifting to remote work, the courts have found themselves without the ability to do so.

That is because — despite decades of efforts by judges, lawyers and many in both the provincial and federal governments — court technology is antiquated.

With few exceptions, documents on which judges and litigants rely are still paper copies. Judges working outside of courthouses during the emergency period do not have remote access to court files which can, in complex cases, be many hundreds or thousands of pages. Litigants and lawyers cannot easily access video-conference technology, nor are enough conference-call lines available.

According to the Associate Chief Justice of the Superior Court of Justice, Frank Marrocco, the real bottleneck in Ontario’s Superior Court is the lack of technology on the front lines. Administrative employees who ordinarily work in the courthouses dealing with cases being filed and tasked with scheduling a forever-changing case load have been unable to work remotely.

There was no remote technology at all available to the justice system’s front line workers when COVID-19 hit. This is what led to the Superior Court’s extreme — but necessary — emergency measures.

Both Chief Justice Morawetz and Associate Chief Justice Marrocco expressed hope that there would be an expansion of technology for administration employees to work remotely over the coming weeks, with Justice Marrocco musing on March 24, that, “The only good news here is that we can’t go back …. Somehow, this crisis has to advance our judicial system down the technological road.”