ARTICLE ● Attorney General Disregards Bench/Bar ● THE LAWYER'S DAILY Mar 4, 2022
ATTORNEY GENERAL DISREGARDS BENCH/BAR
THE LAWYERS DAILY LexisNexis
Friday, March 04, 2022 @ 12:56 PM | By Michael Lesage
Responsible for co-ordinating and administering court services throughout Ontario, the Ministry of the Attorney General has long fallen well short of expectations. In addition to failing to note the advent of the Internet or taking effective steps to digitize court operations prior to the pandemic (which most other legal jurisdictions had done years earlier), it operated in an unaccountable and imperious manner, without seeking feedback from the public or the profession.
The result was a low-performing court system that couldn’t timely try cases, with average lawyer salaries that were correspondingly lower than in neighboring jurisdictions. Things had seemed to improve since the court system collapsed two years ago, but the Friday, Feb. 24 Notice to the Public and Legal Profession represented a significant step backwards.
Before we get into the notice, it must be recognized that the Ontario legal landscape is artificially “unique” in a bizarre, Kafkaesque manner. Though, like in other jurisdictions, Ontario lawyers represent the interests of their clients in (and outside of) court, Ontario lawyers are additionally required to continually fight with court services staff merely to accept routine legal documents for filing. In this regard, court services staff arbitrarily reject one third of all (civil) paperwork submitted. Despite that, Friday’s Notice expanded, rather than restricted, the grounds upon which court staff could reject documents. Despite big talk and conciliatory words, it was yet another example of the Ministry of the Attorney General disregarding the roles of the bench and the bar.
For those unaware, Friday’s Notice limited acceptable formats for electronic signatures used in litigation, beyond those provided by the Electronic Commerce Act, 2000, S.O. 2000, c.17. Acceptable signatures are now limited to certificate-based signatures, such as Adobe or DocuSign, scans of “wet-ink” signatures, and certain non-wet handwritten signatures generated using a stylus, trackpad or touchscreen. Merely typing names, with or without font changes, are now verboten, though no guidance was given on whether signatures could be drawn, using a mouse, or cursive fonts used. Moreover, court staff were provided further discretion to reject documents based upon their subjective determination as to whether or not signatures meet the new requirements.
At minimum, Friday’s Notice demonstrates a lack of understanding as to how those pretty tabbed and bookmarked court filings are actually created. Increasingly, this is done by lawyers working alone, who create the documents (typically affidavits) in word processing software. Same are then sent to clients for review, modification and ultimately approval. To date, a quick call could be held, at which point the lawyer could witness the client signing the document (by for instance typing in their name) and e-mailing it back, after which the lawyer could commission it. Thereafter, the lawyer would utilize their (expensive) secretarial toolkit to convert the document to pdf, and then assemble it along with any exhibits, vestigial tab pages, back pages and exhibit stamps and add bookmarks, prior to filing or attempting to file same.
Friday’s Notice adds further time and expense to the process, for apparently little benefit. Many motions are exceedingly routine; i.e. motions to amend, undertakings motions, or revolve around the failure to pay debts. To follow the dictates of the new Notice, lawyers would need to acquire further software, load the Word document into that software and then walk clients through its use. Alternately, their clients would have to print out the documents, sign them, scan them and then e-mail them back (or revert to in person meetings).
For lawyers’ own signatures, they would likely have to upload a copy of their signature once, and then insert that image (picture) into every document requiring their signature thereafter. While it’s understandable that certain documents need additional security (i.e. deeds), it is hard to see the new requirements as doing other than making routine litigation in Ontario even less efficient or affordable, while the additional ‘security’ offered is likely negligible and in most cases simply unnecessary (to say nothing of security issues arising from maintaining a large electronic database of lawyer and party signatures).
Intentionally or not, with Friday’s Notice, it appears that the attorney general is also calling the competence of Ontario’s judiciary into question. Specifically, the rules of the Superior Court are set by various committees (including the Civil Rules Committee) whose membership is made up mostly of the senior judiciary. Is the Attorney General really implying that Ontario’s judges are not competent to determine whether an electronic signature is fit for a particular purpose? Likewise, if the attorney general dictates the rules of court, why even have rules of court, a rules committee or separation of powers?
Like most problems in Ontario’s legal system, Friday’s Notice arose 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 from, or consideration by those who would be affected. In the process, he succeeded in taking an inefficient system, and making it more so, which is in contrast to the stated purpose of the court rules. He would have heard that had he consulted with the bench or bar beforehand, but as we know, that is seldom done in Ontario.
In advance of publication, I reached out to the ministry with respect to this Notice. Specifically, I inquired as to what evidence there was as to the need for this new rule, what mischief it was intended to address, along with what consultations, if any, were held beforehand. Likewise, I inquired as to the anticipated impact this new rule would have upon the rate of documents being rejected, along with whether any thought had been given as to anticipated costs to the public and profession. At the time of publication, no response had been received.
Unlike space exploration, running a court system is not rocket science. In fact, most jurisdictions in Canada and the U.S. manage to do it much more effectively than Ontario. Thus, we do not need so much to “blaze a new trail” as to simply copy what is being done by jurisdictions that have better functioning court systems.
For Ontario, this means having better mechanisms for feedback (ideally at the local level), so that when problems are identified, prompt corrective action can be taken. This is accomplished in the U.S. by electing attorney generals (directly), judges and clerks of court. Perhaps it’s time to explore that kind of accountability here?
Michael Lesage is a trial lawyer and the founder of Michael’s Law Firm, a litigation boutique that specializes in complex cases involving professional negligence, business litigation, insurance coverage disputes and cases of serious injury. When not representing clients, he can often be found playing