Electronic Filing in Ontario: Practices and Policies

John D. Gregory

General Counsel, Ministry of the Attorney General (Ontario)

[The views in this article do not necessarily represent those of the Ministry.]

(2004) 4 E-Filing Report No. 4 p. 1

            The province of Ontario has run two pilot projects on electronic filing in different parts of its court system in recent years.  This note describes them briefly and notes some of the practical and policy issues that we encountered in doing so.  A number of these issues have not been resolved.

            It may be helpful to note that the courts in Ontario, as in much of Canada, are administered by the provincial government, notably by the Ministry of the Attorney General.  The Ministry provides the court office facilities and the staff.  Many of the judges, including all in the Superior Court, are appointed by the federal government. The judges are independent of government by constitutional convention, and they themselves decide matters essential to their decision making, notably their workload and the assignment of cases.

            The result of this administrative setup is that the Ministry and the judiciary are called on to cooperate to make the court system work.  All the electronic filing initiatives discussed here grew out of cooperation between those two institutions, together with active participation by the practising Bar.  Sometimes the collaboration was ad hoc and sometimes it followed established institutional lines like the Civil Rules Committee, which is a tripartite body created by the Courts of Justice Act.

            The first e-filing project was established in the Superior Court of Justice in Toronto in 1996. At the time it was the only e-filing project in a court in Canada.  The Superior Court is the court of general jurisdiction in the province; e-filing was restricted to civil cases.  It was also restricted to law firms that volunteered to participate and that were accepted by the Ministry.  Over 80 firms with some 1300 litigators and a range of sizes and types of practice were selected. 

The law firms used software provided by the Ministry of the Attorney General to submit documents in standard forms prescribed by the Rules of Civil Procedure.  Most of the documents were pleadings: Statements of Claim, Statements of Defence, Counterclaims, and the like.  A list of the documents authorized for electronic filing appeared in the Rules.  The number approached 150 civil and family forms over the life of the project. They could be filed seven days a week, 22 hours a day.  Receipts were generated to prove filing. An automated payment system was set up with a bank, so fees were deducted directly from the firm’s account when the filing was accepted.  A good deal of technical support was available to firms through the court office.

            The documents once needed to be signed by the person submitting them. This requirement was abolished for electronic documents.  In any event the court system could tell who submitted the documents not only by the name of the firm contained in the document but also from the software itself, which identified the firm creating the document.  This identification was arguably a signature, or could have been taken as a signature if one had been needed.

            The documents could be submitted either in Word or in WordPerfect format.  The court, through the Ministry’s information technology staff and consultants, had to devise methods to make this software work for the court forms, so that participating firms could use electronic templates.  One of the challenges over the life of the project was the need to create new templates each time a new version of the software came out.  Some firms could be relied on to adopt the new version, but some equally would retain the old. Fighting “versionitis” became a serious cost and time issue in the project.

            The project was quite successful. The numbers of documents submitted electronically grew steadily over the first two years, as did the percentage of the documents that the participating firms chose to file electronically (at times filing twice as many electronically as on paper).   The capacity of the system also increased.  Electronic service of documents was added in 1998.  Where reliability of the document was crucial, as for proof of service of documents starting suits (before lawyers were on the defendants’ files), the system used a practice similar to that for filing securities documents: the lawyer had to keep the signed original proof of service on paper and had to produce it on request.

            Despite its success, this project did not expand further.  It was overtaken by plans to integrate information handling throughout the justice system using common technology and policies, in what was known as the Integrated Justice Project (IJP). The IJP promoted a web-based e-filing concept, which promised to relieve a couple of the problems of the Toronto pilot, the difficulties in communicating between the law firms and the court system, and limits in exchanging documents between firms.  It was not demonstrated that the technology behind the Toronto project was sufficiently robust or scalable to support general use in the province’s courts.

            The IJP launched a couple of e-filing pilot projects based on Internet filing, in late 2001, supported by a parallel set of rules.  However, the court’s own electronic file management system was not created at the same time, which meant that the e-documents, once filed, need to be printed in order to be used.  This could only be a temporary state.  When the IJP ceased operation in late 2002, for reasons beyond the scope of this note, the e-filing systems it had supported closed as well.  A single project continues, in the Toronto Small Claims Court, where the type of user and of document make it still practicable.

            The IJP’s e-filing projects also depended on prescribed software and templates created by the project team.  However, the documents were no longer to be submitted in office software such as Word or WordPerfect, so the challenges of the evolution of these programs were avoided.  The process was web-based: the user logged onto the e-filing website and downloaded a form from there, or completed it on line.  One could add attachments to one’s submission.  Many users found it slower to fill in the electronic forms than their paper equivalents, though this disadvantage faded a bit with time, and was less pronounced in the Small Claims Court.  All the forms were available in English and French, though in the bilingual pilot jurisdiction no one actually filed anything in French in the 13 months of this phase of the project.

The documents were originally going to be digitally signed using encryption keys and certificates.  Members of the Bar resisted licence fees based on time, such as a year, since the cost of an appropriate number of licences was thought too high.  The system had to be competitive with the cost of using private messengers, and they were fairly cheap for downtown Toronto firms, at least. Eventually the certification service provider agreed on a per-transaction fee.  There was also some hesitation to use particularly secure – and sometimes complex and expensive – technology when paper filings were done with very little security, and the resulting court files are open to the public.  As implemented, the pilot projects used only a user-name and password access control and Secure Socket Layer (SSL) encryption between the user’s computer and the court’s.  If the court office automation had been completed, then the project might have had to expand to a full PKI model as contemplated.

Once again the filings were not complete until accepted by the court office.  Training was offered to the Bar and to court staff before the program started, and help lines were available during the life of the project as well.  Payment of fees was made by credit card, a system that worked well.

Despite the experience of the two different e-filing systems, those responsible for designing them felt that some key policy issues about the use and role of modern information technologies had not yet been resolved.  One suspects that other jurisdictions are facing similar questions.

The major policy issues may be identified and briefly described as follows:

·        The Access to Justice Issue – How and to what extent will new information technologies affect the rights of litigants to access to justice? If the use of a particular technology were to become the sole or even the predominant means to communicate with the court, then how could and should this technology be made available and at whose expense and under whose control?  Must the government provide continued training for the Bar?  What of the public?  Ontario never managed to design a system for the unrepresented individual litigant, though institutional litigants became significant users of the Small Claims e-filing process.  By way of an example from developments in another legal sector, the introduction of technology for electronically filing conveyancing documents under the Land Titles Act has meant that lawyers must make a substantial investment in computer hardware, software, and learn new practices in order to have access to the land titles system.  The investment in security systems was a big concern for lawyers in the e-filing project.

·        The Privacy Issue – How and to what extent will the enormous power of modern information technologies to locate and organize information be made available to searchers for information in the database that is a court of record? The ability of modern information technologies to make information available presents a threat to privacy and to proprietary interests in information. Access to the Internet can let the whole world obtain information. The difficult question is the extent to which the public should be entitled to access court records and docket information in an “electronic world”. Should access to the information be the same, greater than, or less than is the case in a “paper world”? The technologies that were being tested in Ontario were Internet based, but no decision has yet been made about the policy for allowing access to the court database.   Since the end of the IJP e-filing pilot, the Canadian Judicial Council has published a framework for analysing these issues, but it is only a framework, not even a model policy.  American courts have made systematic strides towards answering these questions, but they are still controversial.

·        The Security Issues – Whatever decision is made about the extent to which new technologies may be used to access information in the court’s database, how can the information be made secure so that there is no unauthorized and no improper use of the information? Further, to the extent that the administration of justice becomes dependant upon information technologies, it becomes vulnerable to systems failures. This means that the administration of justice must be protected and made secure from systems failures – intentional or unintended - and there must be disaster and contingency plans.  Paper too can be lost or destroyed, but the risks and remedies are better known, and possibly cheaper.

·        The Authenticity of Documents and Court Orders Issue – Historically, the judicial system has relied on paper documents in proceedings and for its procedures, including pleadings, notices, and court orders. While electronic documents may contain the same information, the use of electronic documents raises issues of authenticity, reliability, preservation, and security.  The Bar and even court staff was inclined to resist security measures in e-filing whose equivalents they did not see in the paper-based processes.  A proper analysis and proper communication of the results are required to accommodate the different risks when one goes electronic.

·        The Governance Issue – Since the use of modern information technologies in the administration of justice will affect how litigants, lawyers, judges, court administrators, the media, the government, and the public interact with the administration of justice, how should decisions be made about the use of these technologies?  Are the closed professional processes of the traditional rules mechanism appropriate, or should there be a broader debate?  The courts are not used to consulting widely on such matters.

·        The Independence of the Judiciary Issue – A judiciary may not be genuinely independent if its ability to dispense justice is reliant on and required to be compliant to information technology systems that the judiciary does not, and practically speaking, could not manage by itself.  The Chief Justices of the several courts now have an information security officer reporting to them, but the overall system design is not entirely under their control.  Interoperability with the government’s system is important, particularly given the role of the Ministry in administering so many of the court’s functions.

·        The Technology Standards Issue – Modern technology is dynamic and constantly changing. The reality of changes presents enormous problems in ensuring that the information technology deployed in courts meets appropriate standards and that the technology be kept up to date. Setting technology standards has substantial consequences to access to justice, privacy, and the independence of the judiciary. How are information technology standards to be set? By whom will the standards be set? How is performance to be measured? How is change to be managed?  Both e-filing systems in Ontario fixed the technology, the first by prescribing that it was provided by the Ministry, the second by prescribing that it was the technology accessible on the e-filing web site at a specific date (so the Ministry did not have sole control of the standards).  Just how it was to evolve, and who controlled the evolution, was never finally determined.

·        The Inevitability Issue – It is inevitable that technology and advanced information practices will increasingly, and at an increasing rate, affect the practice of law before the courts, the administration of justice by the courts, and the functioning of the court offices across Ontario. It appears essential that some body, like the Civil Rules Committee, accept responsibility to monitor the inevitable changes and to ensure that the Rules of Civil Procedure and related rules conform to and guide the best practices that must be developed and continually refreshed.  While the Rules Committees have a structure that ensures a voice to Bench, Bar and Ministry, the questions that arise, as we have seen, go well beyond the traditional responsibilities of such a body. It also appears essential that some method be devised to ensure compatibility and consistency in the approaches of the various rule making authorities that operate in courts in the province, including the civil, family, and criminal rules committees.   Since the IJP ended, the Chief Justices’ Information Technology Steering Committee has been set up to coordinate approaches.  How this will work when mounting the next e-filing initiative remains to be seen.

Ontario has no current plan for e-filing, but that is not for lack of desire. Funding is an issue.  One of the judges heavily involved in the IJP version has said in a speech that there are many reasons to do e-filing, but saving money is not one of them.  We saw that the Bar was prepared to be very supportive of e-filing, but at the end of the day they needed to be able to justify the costs in a way that would serve their clients’ needs.  It is clear from the pilots that the province has run that any future system should be built as a pilot as well, and spread gradually across the court system as users become familiar with it and the bugs are worked out.  But it will be hard to get started with any hope of success without having a good idea of the answers to the policy questions discussed here.

            We read with interest the experiences of others, and we have not stopped doing our own thinking too.  As Hamlet said, if it be not now, yet it will come.  Readiness is all.

NOTES:

Ontario statutes, including the Courts of Justice Act and the Rules of Civil Procedure that are regulations under that Act, are online at www.e-laws.gov.on.ca.  Most of the e-filing rules have been repealed.  Those that remain are principally in Rule 4.01, 4.05  and 4.05.1. The e-filing system at the Toronto Small Claims Court is described at www.justiceontario.net .  The Canadian Judicial Council’s draft framework for access to electronic court records is online at

 www.cjc-ccm.gc.ca/english/publications/OpenCourts-2-EN.pdf.