In 2014, Justice Brown at the Ontario Court of Justice ordered parties to conduct the action as an e-trial. In his order, he expressed “profound frustration” as a judge who has encouraged the use of technology in court:
“How many wake-up calls do the legal profession and the court system need before both look around and discover that they have become irrelevant museum pieces?”– Justice Brown
“Providers of music to the public have had to adapt to changes in technology in order to continue to provide their particular service. Why should courts and lawyers be any different? Why should we be able to expect that treating courts like some kind of fossilized Jurassic Park will enable them to continue to provide a most needed service to the public in a way the public respects? How many wake-up calls do the legal profession and the court system need before both look around and discover that they have become irrelevant museum pieces?”
“Our Court must choose: are we a Court of the Past or a Court of the Future? I vote for a Court of the Future, and therefore I will not accept counsel’s suggestion that the six-week trial for this complex commercial litigation on the Toronto Region Commercial List proceed using both paper and digital information. I know there are judges available who are chomping at the bit to conduct more e-trials. Paper must vanish from this Court and, frankly, the judiciary cannot let the legal profession or our court service provider hold us back. Accordingly, I order that the six-week trial of the Loretta and Brome Actions be conducted as electronic trials. More than enough time exists before the October 6 start date to organize the trial materials electronically. I order counsel to provide me with a formal e-trial plan at the June 26, 2014 case conference.” (Bank of Montreal v Faibish, 2014 ONSC 2178 at paras. 4 and 5)
The case was a six-week commercial dispute. The parties had planned to have a common book of documents filling 10 binders of paper.
Why it matters: This is another terrific resource for any party that wants to conduct an e-trial. It shows that the courts can and will order digital trials if the circumstances are right, even when some counsel continue to express the desire to work in paper. The parties filed a formal e-trial plan which Justice Brown accepted four months later. At the same time, he ordered that reasonable costs incurred for the infrastructure for an e-trial qualify as an allowable disbursement.
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