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Ontario courts brace for backlog

The justice system is not an everyday dinner table topic. Generally, we know there are divisions such as family, criminal, civil, small claims, estate, real estate. Beyond that, few people pay attention unless suddenly dropped into it, or a case becomes controversial.

On March 17 2020, the Ontario Superior Court of Justice suspended all in-court proceedings across the province. A decision sparked by the COVID-19 pandemic.  Across Ontario, 47 court precincts came to a halt with the adjournment of all non-urgent family, criminal, civil cases plus small claims proceedings. This includes the L’Orignal courthouse that services Prescott and Russell.

This historic decision has never occurred before.  With public health and safety as the priority, there are allowances for urgent matters to proceed.  Grim situations that involve the protection of a child or a parent meet the threshold set for urgent, or emergency.

In its May 19 COVID-19 directive, the Superior Court of Ontario stated, “Generally a matter is urgent if a court order is necessary to preserve life, liberty or property and time is of the essence.”

“Right now, all urgent criminal and family matters in the Ontario Court of Justice and Superior Court of Justice are being conducted by telephone or video conferencing, unless otherwise ordered by a judicial official,” said Brian Gray, spokesperson for the Ontario Ministry of the Attorney-General.

The court system across Ontario is based on in-person appearances and filing physical documents. At the L‘Orignal courthouse, a reduced number of clerical staff presently work modified hours. Since the adjournment order, lawyers can file documents, applications and caselaw by email while judicial orders are signed and distributed electronically.

Hawkesbury lawyer Véronique Fournier questions what comes next. She said, “Electronic service and filing is nice at this time, but I believe we will be required to file the originals when regular court operations resume.”  To grasp the volume of a growing backlog, Canadian Lawyer reported that almost 2.5 million sets of documents were filed in Ontario courts in 2019 with more than 96% in paper format.

The requirement for physical distancing caught both the public service and private business off-guard. This public health safety requirement will continue into the re-opening of the courts. The Ontario Court of Justice (OCJ) faces the logistics of managing in-person appearances, jury trials, and the public presence in the courts to name a few of the challenges.

A result of the unprecedented province-wide postponement of non-urgent matters is a growing backlog. In criminal court, clients with pending charges are not moving forward within the system.  Fournier explained, “Most matters are at a standstill and catching-up will take a very long time.”

Fournier added, “It is not in the accused best interests, nor the public interest; but, the court cannot accommodate that all matters proceed by teleconference or video conferencing.”

In L’Orignal, defense lawyer Yves Jubinville believes the Ministry of the Attorney-General (MAG) missed an opportunity to enhance electronic legal services prior to the COVID-19 emergency. “A contingency plan ought to have been put in place in case of any type of event that would restrict or prevent public gatherings, or the opening of courts,” said Jubinville.

He continued, “The technology has been available for a long time to permit remote appearances. We have used it for video appearances with inmates at the detention centres for years. Yet, almost two months after the closing of the OCJ to all non-urgent matters, no non-urgent appearances are taking place in L’Orignal and other jurisdictions.”

Jubinville reflected on the possible outcome for extended delays in criminal matters. “We have a specific Charter right on delay. MAG had no contingency planning for any of this.”

At the Ministry, spokesperson Gray countered that during the COVID-19 emergency for urgent matters, “Attorney-General Doug Downey announced an investment of $1.3 million in technology to help courts and tribunals continue the transition to remote operations and to limit in-person appearances and transportation requirements.”

Jubinville views the impending congestion in both paperwork and trials as serious, and adds, “It is much more unfortunate for the ones that rely on the system than those who administer it.”

A compounding factor, according to Fournier, is that low income clients suffer because they do not have the resources to proceed remotely. “Many low-income clients do not have the logistical means of printing documents at home, scanning them and organizing a video conference as they do not have internet, nor the equipment at home.”

Real estate and estate work face fewer challenges during this emergency. Vankleek Hill lawyer Robert Tolhurst explained, “The Land Registry system, which is now almost all done by electronic registry, has continued to work very well with no delays.” He noted that, “There are some delays in the courts in processing estate documents.”

Tolhurst added, “Our office is closed to the public but all staff is working. We’re meeting clients for pre-scheduled appointments, mostly to sign document for real estate transactions. Physical distancing is possible in our office. Everyone is very conscious of hand-washing and cleaning. We have used virtual signing for some documents, as permitted by the Law Society of Ontario following the emergency orders.”  Tolhurst did note one caution, “We haven’t signed any wills virtually.”

As Ontario goes through stages of re-opening, the Superior Court issued its third COVID-19 directive that took effect May 19th which provides additional capacity for procedures through electronic means.   The directive urges, “It is important that lawyers, litigants and other justice system participants act in good faith and cooperate with each other and with the court to ensure that electronic hearings are focused and fair and can be completed in a timely fashion.”

However, as the Ontario judicial system methodically emerges from the pandemic order, there are growing concerns for what comes next.

On the immediate future, Fournier questions if there are enough bilingual judges available to handle the backlog in L’Orignal. “All non-urgent criminal matters have been adjourned administratively to dates in June and July,” said Fournier.  “Family law trials are held twice a year, April and October, with outside judges participating. With April trials adjourned, will there be a judge for the April trials? We do not know.”

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