Exposed: What COVID-19 has taught us | Gary Joseph

Law360 Canada (April 7, 2020, 1:12 PM EDT) --

Gary Joseph

The COVID-19 virus is a risk to all but specifically it targets and exposes the elderly and those with compromised immune systems. In the same way the pandemic has exposed our court system for what it is, an “elderly” system developed to service a 1970s population drowning in a media/web savvy 21st century. Our judicial and court leaders are struggling to make it work in an environment where failure is inevitable. The structure of our courts and the supports built around it are paper intensive and people intensive. They cannot adapt quickly to the fast-changing environment. This is not a criticism of our judicial leaders but a sad refrain for those who long ignored the need to upgrade technology and facilities.

Contrast this to the reaction of the bar, the alternative dispute resolution (ADR) providers and the Ontario Bar Association (and of course the many other professional organizations such as The Advocates’ Society, the York Region Law Association and others). Armed or immediately ready to upgrade, the bar and those named above have been able to quickly offer services to the public that the court system has not be able to do. The Ontario Bar Association for one has a multitude of platforms available to assist and has quickly responded to requests for information, roundtable discussions and webinars. Private mediators and arbitrators have readily adopted technology for teleconferences, Zoom, Webex and other meeting forums to continue resolving disputes despite court closures.

We will come out of this COVID-19 crisis a changed profession. Lawyers are discovering (if they did not already know) the wonders of technology. The work office may no longer be seen as important. The home office more so. Staffing requirements may decrease. As one lawyer commented to me recently: “I now realize that I do not need as many support staff to do jobs that I can easily do from at home.” More lawyers will turn to ADR methods for resolution. Frustrations with filing problems, lost files, delays in scheduling, double booking, inconvenient and totally disruptive trial sittings (in my view a relic from the past) can be eliminated and work life balance enhanced. Perhaps this will lighten the load for the courts and allow them to continue to serve, as is absolutely needed, those who require court adjudication or those who cannot afford private adjudication.

We have reached a tipping point, in my view pushed over the edge by COVID-19. When, not if, we emerge from this crisis, we will be changed forever as a profession. My view, for the better, but I must confess that I will miss what once we had many years ago (I have been practising 42 years); a court system not overwhelmed with paper and files, a court system able to handle the load and deliver timely, efficient justice to the deserving public.

I end with an assurance; I am not blaming those within the system who struggle to make it work. You can only do so much with so little. I blame government for underfunding and ignoring the need to upgrade — justice does not garner votes. But mostly I blame the complacent bar too willing to shut up and go along all the while knowing that the system was drowning in underfunding and lack of attention. We are the primary consumers of the court system; we knew of its failings and we failed to speak up. Our collective meekness will be a price paid for long after we leave the scene to younger lawyers. Perhaps their leaders will forgo platitudes, awards and appointments and better serve the public. Perhaps they will have the courage to speak up. Speaking only for myself, our time has passed.

Gary S. Joseph is the managing partner at MacDonald & Partners LLP, family law practitioners.

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