COVID-19 Update: How We Are Serving and Protecting Our Clients

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How COVID-19 Corona Virus can make our legal system better!

Let me preface this article by stating that COVID-19 Corona Virus is very real; and very serious. For facts, consult your local physician, or reputable medical/government websites such as:

https://www.cdc.gov/coronavirus/index.html

https://www.canada.ca/en/public-health/services/diseases/coronavirus-disease-covid-19.html

https://www.who.int/emergencies/diseases/novel-coronavirus-2019/advice-for-public

https://www.who.int/health-topics/coronavirus

https://www.toronto.ca/community-people/health-wellness-care/diseases-medications-vaccines/coronavirus/

The point of this edition of the Toronto Injury Blog Post is to put as positive a spin as we can on a very negative situation.

One of the biggest complaints from lawyers is regarding how slow, delayed and backlogged our Courts are. Our Courts are handing an enormous volume of cases, with inadequate resources and technology at their disposal.

Electronic filing of Court documents is NOT available for all documents, nor is it available at all levels of Court. In fact, electronic filing is not encouraged or promoted as aggressively as it should be by the Ministry of the Attorney General.

There is an entire industry which has been built on in-person filing and delivery of legal documents (process servers). I have nothing against process servers. They are currently essential to personal injury claims. In fact, with new privacy legislation they are more important than ever because they’re the only ones who have access to track down certain Defendants’ addresses if they aren’t detailed on police report.

But the reality is that with technology, process serving as we know it should be rendered obsolete. All legal documents should be filed electronically with the Court. But they aren’t. Not even close. Hot take. I know. But as lawyers we tend to lag behind and play in the past. COVID-19 is telling us that lawyers should be more flexible and change with the times.

Here’s how.

What would the electronic filing of all legal documents with the Court hope to accomplish? Aside from saving time and money for Court clerks having to serve a never ending queue; you would have far fewer people clog the halls and waiting rooms of Court offices across Ontario. This is particularly significant today given that public gatherings are being discouraged on account of the COVID-19 Corona Virus.

Some of the busiest government buildings I’ve seen have been Courthouses; and the waiting rooms for filing documents at the Courthouse.

Don’t believe me? Go see for yourself the wait times on the 10th Floor of at the Toronto Court at 393 University Avenue to file a legal document.

How about the filing room at the Brampton Courthouse. Just as long if not longer.

Try the Newmarket Court house on Eagle Street. That Courthouse has NOT grown to accommodate the growing population of York Region. It’s comical.

All of these courthouses are bustling with people trying to “hurry up and wait” for their number to be called just for the privilege of getting their pieces of legal paper stamped by a Court clerk (only to be lost at a later date as is often the case). ┬áHundreds of people flock in each day waiting for their number to be called. If there ever was a breeding ground for the sharing of germs, hit the Courthouse.linkedin-2-300x300

Electronic filing would solve all of this AND save all litigants siginficant legal costs. You don’t have to pay a process server to hit the “send” button on your email to the Court enclosing materials to be filed.

E-filing also reduces the human error for materials getting lost. It happens all the time! Case in point a few weeks ago, the motion materials from Goldfinger Injury Lawyers were filed with the Superior Court in Toronto at 393 University Avenue. We received a stamped confirmation from our process server that the materials had been filed. When we proceeded to confirm the motion, the Court clerk advised our law firm that our motion materials (Motion Record, Factum and Book of Authorities) had been misplaced because they were physically filed in the wrong Court file! Our motion could not be heard. The chances of things getting things mixed up gets reduced via e-filing.

E-filing for all materials should be encouraged to reduce costs and reduce foot traffic in our Courts. Want to stop the spread of germs? Stay at home and hit the send button on your email to file those materials next time around.

One sector of the stock market which took off during the recent recession were tech stocks which focused on video chats and video conferences. Video conferencing is allowed personal injury cases for examinations for discovery. But it’s the exception and not the rule.

If we as a society are looking to reduce gatherings of people, e-discoveries should be the method of first resort and not an after thought or exception granted in exceptional cases.

This not only applies to e-discoveries. It can also apply for accident benefit statements in motor vehicle accident claims, examinations under oath, statements in other personal injury claims along with certain IE exams (like psych exams).

Consent motions and unopposed motions can be done over the phone or by way of teleconference! If nobody is opposing the motion, or if the motion is on consent, and the Judge has the draft Order beforehand, why is a lawyer’s attendance at Court necessary? You know what would save the Court time and money? Not having a never ending line of lawyers clogging up the Court rooms across the province to get the signature of a Judge on a consent Order or unopposed Order. Judges would probably LOVE it because their precious time is saved to handle more pressing matters.

I would not recommend e-conferencing for mediations or Pre-Trials for the sole reason that there is something to be said about having all of the parties under the same roof where they can see each other. There is something magical about getting all of the parties present in the flesh in order to get a matter resolved. It’s far easier for parties to walk away or take hard line positions when they are sheltered by the separation of a telephone of computer screen.

As a personal injury lawyer with meeting offices in Toronto, London, Peterborough, Kitchener and Owen Sound, I represent people all across the province. E-discoveries are very rarely insisted upon by the parties. Defence Counsel prefer to see people in the flesh. Perhaps this is so that they can better intimate a Plaintiff. Perhaps it’s because they can bill more time to their insurer clients for having to travel. Or perhaps there’s something to be said about being in the same room as a Plaintiff to better understand him/her. Regardless, e-discoveries don’t happen as often as they should. Perhaps with the COVID-19 pandemic we will see more lawyers use e-discovery to move cases forward.

It would not surprise me if all government buildings get shut down in the next few days or next week. If the government wants to send a message that public gatherings are discouraged while we face the global pandemic of COVID-19, shutting down schools is not enough. Look no further than your local Courthouse for mass public gatherings.

But it doesn’t have to be that way. We can change. We should change. We need to change.

 

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