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Digital Hearing Workspace pilot project: One step closer to court modernization

(February 8, 2019, 11:37 AM EST) -- On Feb. 11, 2019, the Ontario Superior Court of Justice will launch its pilot project, the Digital Hearing Workspace (DHW). The program will apply to all Commercial List proceedings and will be used to deliver, store, organize and retrieve all documents electronically.

As at Feb. 11, parties and their counsel will be required to use DHW to deliver documents electronically to all judicial officials and other parties and/or counsel in their actions. Failure to upload documents to the platform will be addressed by the presiding court official.

The DHW is essentially an online document management platform which enables parties to submit electronic copies of materials required for hearings and provides authorized parties with 24/7 instantaneous access to event-related documents.

Some of the platform’s key features include the ability for judges and court officials to upload and share court orders and decisions; access to electronic documents online without needing to transport physical files and/or USBs to the court, or opposing parties; parties and/or counsel now able to upload and share electronic copies of court documents for upcoming hearings; and court staff may themselves create a workspace for cases and schedule hearings.

It seems that the answer to my “let’s revamp the court system and bring it into the 21st century” prayers are slowly being realized.

Note that the DHW is not a court filing service, and documents in the workspace are not considered filed with the court and therefore must be filed at each courthouse in accordance with the Rules of Civil Procedure, and applicable Practice Directions. The paper court documents filed with courts will continue to be considered the official court record.

Instructions on using the Digital Hearing Workspace can be found here.

The Superior Court of Justice has stated that this pilot is intended to “replace electronic delivery by email, USB key and CD-ROM. The [DHW] circumvents the attachment file size limits in email applications and avoids the issues associated with storing and retrieving physical storage media, including USB keys and CD-ROMs.”

“It is hoped that the pilot will make delivering, storing, organizing and retrieving documents filed in Commercial List proceedings easier for the parties, counsel, judicial officials and court staff involved in these matters.”

Recently, I commented on Justice Alan Whitten’s 2018 ruling in the decision, Cass v. 1410088 Ontario Inc. 2018 ONSC 6959, in which the court was called upon to consider a costs award following a successful defendant’s summary judgment motion.

In its submissions, the defendant sought partial indemnity costs at $17,112.09 for its services rendered prior to its Rule 49 offer, and substantial indemnity costs post-that offer at $23,989.51. Disbursements totalled $24,300.67. Part of the disbursements included a $900 bill for legal research conducted prior to the motion. Justice Alan Whitten not only dismissed the defendant’s plea for disbursements expensed on legal research, due to its failure to utilize free legal research services, but went even further to state that artificial intelligence tools should have been employed.

In 2018, I also commented on Google’s incredible AI platform, Duplex, which successfully made calls using very human-like features and set up appointments for its user. At that time, I considered its ability to offer a significant organizational and litigating advantage to litigators across the country.

Although the legal industry continues to demonstrate a great resistance to a technological shift in client service and client expectations, modern judiciaries have already begun to expect the employ of technology by counsel, students, and the courts. As we can see from the above, courts are finally catching up. I repeat, adopt and reiterate — should lawyers choose not to live up to the challenge, they could end up with a very disappointing, and potentially assessment-worthy, client costs award.

Note that the DHW requirement will not apply to documents filed prior to Feb. 4, 2019. Finally, any documents subject to a sealing order or for which a request for a sealing order will be made, should not be sent using the platform.

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