I don’t often burst out laughing when reading reasons for judgment (tears are more likely), but today’s offering from Justice David M. Brown was an exception. In Romspen Investment Corporation v. 6176666 Canada Ltée, His Honour was riding one of his favourite hobbyhorses: the antediluvian document management system used in Ontario’s courts.
(In an earlier decision, Pershadsingh v. Thompson, 2010 ONSC 4943 (CanLII), Brown J. complained that “I am not the only judge in this region who has complained about having to get down on one’s hands and knees to organize into piles, on the floor, the materials filed with the court.” He added that, “apart from trading ribbon-tied bundles of paper for cirlox-bound volumes of paper thrown into bankers’ boxes, and the entry of filed documents into a computer ledger, instead of onto a handwritten ledger, one really wonders how much the document and file management systems maintained by the Government of Ontario in this Court differ from those that existed back in 1867”.)
In the Romspen case, it was not so much the waste of his own time that was on his mind as it was the needless running around that the lawyers before him had had to do (and the concomitant expense to their clients).
Under the heading, “Just how broken is the document management system of the Superior Court of Justice?”, Justice Brown’s reasons began in a somewhat whimsical tone:
I suppose that on a sunny, unusually warm, mid-March day one should be mellow and accept, without complaint, the systemic failures and delay of this Court’s document management system. The problem is that from the perspective of the members of the public who use this Court, delays caused by our antiquated, wholly-inadequate document management system impose unnecessary, but all too real, costs on them.
The case involved the sale of condominium units by a Receiver. As part of this process, it had filed sealed appraisals of some of the units. However, it had (understandably) filed only one copy of each appraisal. His Honour needed multiple copies and so, “a two-track process unfolded”. He sent a member of his staff to a nearby court building, where sealed documents for Commercial List matters are kept, to try to retrieve the documents. Simultaneously, counsel for the Receiver also tried to obtain copies through her office. Each was successful but in both cases, the task took one hour.
And the consequences of that one hour delay? On my part, none. I walked across the plaza, picked up a latte at Starbucks, came back and continued working on a reserve from yesterday. A most mellow approach, but I have learned that as matters presently stand one cannot fight the City Hall bureaucracy that is the Court Services Division of the Ministry of the Attorney General.
But the consequences to the litigant, the court-appointed receiver? A delay of one hour, involving the expenditure of additional counsel time, higher legal fees, an increase in the expenses of administering the receivership, and a consequent reduction in the net recovery for the creditors of the project.
Justice Brown acknowledged that perhaps both he and counsel should always assume the worst, based on their past experience in the courts, and come prepared with multiple copies of the documents: “I suppose counsel could not go wrong by always operating on the basis that this Court’s document management system will fail and always bring duplicate copies of everything.” But he deplored the need to resort to such measures. Instead, he said that “the real solution” was, “consign our paper-based document management system to the scrap heap of history and equip this Court with a modern, electronic document system.”
His Honour outlined the system that, he said, he dreamt of, an electronic system in which, once documents had been filed electronically, they would be accessible to judges and others “through a web-based system”.
But then, he awoke from his reverie:
Yes, Virginia, somewhere, someone one must have created such a system, and perhaps sometime, in an another decade or so, rumours of such a possibility may waft into the paper-strewn corridors of the Court Services Division of the Ministry of the Attorney General and a slow awakening may occur.
Entertaining though His Honour’s remarks were, the problem that he identifies is very real. Those who come to the court system from this business world (or really, from almost any other world) would be shocked to discover how backwards the filing system is. This auditor’s report, written almost ten years ago, chronicled the collapse of Ontario’s ill-fated “Integrated Justice Program” and lamented the Province’s “antiquated computer and information systems”.
Sadly, the cost of Justice Brown’s lattes will likely have reached triple digits by the time he gets the system of which he’s been dreaming.