Ontario Court Runs Aboriginal Law E-Trial

The Ontario Superior Court is running the Aboriginal Law case Saugeen Ojibway Nation v. AG Canada et al (ONSC Court File Nos. 94-CQ-50872CM and 03-CV-261134CM1) as an E-Trial. The Aboriginal Law E-Trial considers a claim for Saugeen Ojibway Nation (SON) ownership of lands under water and a claim seeking redress from Canada and Ontario for a broken promise to protect some of SON’s lands. It is expected to use 260+ court days and run for three years.

The parties secured an order from the Ontario Superior Court of Justice that the case would proceed using real-time reporting and the “e-trial toolkit” from REDI Analysis. This is the same e-trial platform used by the Federal Court of Canada in two Aboriginal Law cases: Southwind v. Canada, 2017 FC 906 and Jim Shot Both Sides v. Canada, 2019 FC 789.

The e-trial platform contains all the documents the parties intend to rely on. Prior to trial, the parties agreed on the authenticity of a large number of those documents. With the agreement of the parties and the court, those documents were entered as exhibits prior to the parties appearing. Benjamin Brookwell, of the Plaintiff’s legal team, met with the registrar to make this happen. Now that trial is underway, the registrar has control of the electronic documents, and can mark them as exhibits and move them to an exhibits folder.

All parties have extra monitors on their desks. An “Elmo” projector is being used at the front of the room to present the document currently at issue before the court.

Why this matters: This is the fourth Aboriginal law case running as a full E-trial (i.e. both presenting to, and entering evidence with, the court electronically) in as many years (i.e. after West Moberly, Southwind, and Jim Shot Both Sides). It is also the first time REDI’s e-trial toolkit has been used in a Canadian court other than the Federal Court of Canada. Justice Arthur Gans acted as Trail Management Judge for this case and was a key force getting the parties to court electronically. Gans has advocated for e-trials in the courts for years.

The parties are next in court May 21 – June 14, 2019. Anyone keen to see the E-trial in action will find it in Toronto on the 5th floor, Canada Life Insurance Building at 330 University Ave. I am advised that is the only courtroom on that floor that is open (the others are all under construction).