FOLA highlights inconsistencies in e-filing, legal aid, access to justice at Lobby Day

By Amanda Jerome

Law360 Canada (March 3, 2022, 10:53 AM EST) -- The Federation of Ontario Law Associations’ (FOLA) Lobby Day emphasized the need to address inconsistencies in e-filing, funding for legal aid, access to technology for inmates and delays in the legal system that impact many different areas of practice.

Nathan Baker, FOLA chair and a criminal lawyer, told The Lawyer’s Daily “it was a very informative day” and it put FOLA “in the rooms where the decisions are being made.”

“And that’s what we’re always striving to do; to make sure that our membership, the practicing bar in Ontario, is represented at those tables, so that we can get the frontline stories to the decision makers so that they are better informed in their decision-making across the board in everything from estate litigation, to real estate, to criminal law, and civil and family law,” he added.

Nathan Baker, FOLA chair and a criminal lawyer

Nathan Baker, FOLA chair and a criminal lawyer

Lobby Day, which was held virtually on Feb. 23, included “over 40 practicing lawyers from every region in Ontario,” a FOLA release explained.

“Participants heard from the Attorney General [AG] and both the Liberal and NDP Critics for the AG. We also held Roundtable discussions with Ministers’ staff on Criminal Law, Family Law, Legal Aid, Real Estate Law, and Courthouse issues,” the release added.

“With relation to the criminal bar,” Baker said, a lot of focus was “on strengthening tools that are available for pre-trial release, for communication with our clients who are in custody, and trying to bring some strategies that might create efficiencies down the road for the court system.”

Baker noted that there’s been “a lot of spending by the provincial government into more Crown attorneys, more policing, even more judges, but where we don’t always see the greater increase is in things like defence spending for legal aid.”

“And if you strengthen all of the other sides, but don’t strengthen legal aid, you’re still going to have self-represented individuals, which causes huge inefficiencies in the system,” he explained.

Another issue of concern for the criminal bar is “trying to find strategies” to communicate with clients in custody.

“We see very limited access through access: defence,” he explained, “to allow access to our clients and that slows down the court process.” Baker explained that when “can’t prepare for trials or get instructions for pleas, those are all things that cost the court a lot of time, and therefore money, to deal with.”

He noted that “simple solutions” such as “providing tablets or iPads to people in custody to allow access would be much more efficient than anything else, so we can have those communications and not have to show up at the jail.”

“With the ongoing pandemic, access to clients through digital means is going to be the key issue as we move ahead,” he added.

Allen Wynperle, FOLA’s Central South Regional Representative, addresses courthouse issues at Lobby Day. He noted “there was a general recognition by our group that the Attorney General pivoted quite quickly when COVID happened to add electronic access to the court.”

Allen Wynperle, FOLA’s Central South Regional Representative

Allen Wynperle, FOLA’s Central South Regional Representative

He said that e-filing, Zoom hearings, and CaseLines are “good” and “should have been done a long time ago,” but there are “growing pains with all of those systems.”

“There are concerns around filing documents, taking long periods of time for courthouse staff to confirm in some jurisdictions that things have been filed, or that they haven’t been accepted. We had maybe two situations during the meeting where people had identified when the court had not accepted documents but had not told them for a lengthy period of time, in excess of a month, and they had blown limitation periods. So, [counsel] had to notify LawPro, motions had to be brought to correct these things. These expenses are adding up for clients and, as a result, it creates additional barriers to access to justice,” he explained.

“There were lots of instances of situations where, for various reasons, whether it be CaseLines or through the filing system in the courthouses, the materials are not getting to the judge. There’s no doubt that in most, if not all, courthouses, there are some staff that are working well with the new technology, but it’s not consistent and there needs to be further training and resources applied in order to ensure a more consistent workflow,” he added.

Of the issues that are most pressing, Wynperle said “a standardized, province-wide filing system needs to be addressed.”

“The pandemic is still here and I don’t know that it’s going away, so we’re going to have to, probably for the coming months, struggle with the system that we have,” he noted, stressing that “the document management needs to be a high priority because ultimately, judges rely on that, whether it be in a hearing or a motion, or even in an ex parte matter, they require that kind of material in order to make sure that justice is done.”

Wynperle emphasized that FOLA wants “to be part of the solution.”

“We believe that the government taking the direction of adding the technology to the court system is a good step, and it could certainly increase access to justice long term, but the system has to work properly, and we want to be part of the solution to help the government make that system work better for all Ontarians,” he added.

Eldon Horner, FOLA’s co-chair for the real estate bar, “part of our goal at these sessions is to remind the ministry and its officials” of the “role of the real estate bar in Ontario.”

Eldon Horner, FOLA co-chair for real estate bar

Eldon Horner, FOLA co-chair for real estate bar

“Most small-town lawyers, in particular, do some real estate and we tend to be the gateway for people to get legal advice,” he said, noting that “when people have a lawyer act for them on a house purchase, they tend to use that lawyer in the future when someone has a landlord and tenant issue, or they have a small criminal charge, or they need a will.”

“Real estate serves as a foundation for legal services getting to the public, particularly in the smaller centers, so we always try to remind them of that,” he added.

Horner said an issue brought forward at Lobby Day was the backlog in the land transfer system.

“The land transfer system is now all electronic, so there are no more physical registry offices in Ontario. And yet, the volumes of real estate and the dollar value of real estate has gone up exponentially,” he said, stressing that “the system’s also bogged down with the extra volume, there’s no more staff in the system and so things are being delayed and taking much longer than they should be.”

FOLA reminded AG that in the 2020/2021 fiscal year “land and transfer tax alone generated $3.7 billion for the province in tax revenue, and we believe that more of that money should be reinvested in the system, to get things caught up, so there are no more long delays,” Horner said.

“Unfortunately, the delays have caused lots of problems for people because they register their house transfer today and 90 days from now it can get sent back because of some error and often that’s corrected, but sometimes it’s not because of the delay. We’ve had incidents where lawyers have ceased practice in the meantime and the message that there was an issue never got delivered, so people don’t own the house that they thought they owned,” he explained, noting that “it used to take three or four days for documents to be certified and now some of them are taking much, much longer and it’s just because the volume is too great for the number of staff working in the system.”

“One of the other things we talked about was, if you own a cottage in Ontario, or a condo, you’ve probably got some arrangements with your neighbours with respect to shared services, whether it’s driveways or roadways, or fences or walls. The obligation to maintain those things, to pay for the road maintenance, under the common law in Ontario, has never been enforceable. It doesn’t run with the property. So, if you sell it, your next owner doesn’t have to fix the road anymore. That’s caused lots of problems,” he said, noting FOLA has requested the ministry “look into amending the common law with a legislative amendment to say some positive covenants need to run with the property and continue to bind subsequent owners to carry out their duties and repairs.”

Another issue brought to the table, Horner noted, was the different jurats now required for virtual commissioning.

He explained that there’s now multiple different versions, “which for 100 years was always just one thing; every affidavit said the same thing. And in our opinion, there’s no reason that couldn’t continue to be the case.”

“That old expression, ‘justice delayed is justice denied,’ is pretty appropriate today,” he added.

Sam Misheal, FOLA’s family law chair, said “with respect to CaseLines” there’s been a few instances where “counsel reported that the material filed a) were missing, b) were sometimes freezing, and c) hyperlinks weren’t working properly.”

Sam Misheal, FOLA’s family law chair

Sam Misheal, FOLA’s family law chair

“As you can appreciate, if a motion is before a judge and there’s a lack of material or the material hyperlinks are not working properly, then it prevents the judge from rendering a decision. It’s an issue that needs to be looked at,” he explained.

Misheal also noted that the modernization of the justice system through online filing is an enhancement that also requires support staff.

“Any time there’s significant delays it also hinders on people’s ability to move forward within a reasonable time and have finality,” he said, noting that “we always aim [for] access to justice, we want finality for the children, so having significant delays also gets compounded with other delays.”

Another issue, Misheal noted, was the expansion of the Unified Family Court.

“We keep hearing that this is going to be province-wide, but there is nothing in the near future that indicates when this is going to be established,” he said.

FOLA also “urged the Attorney General’s office to consider increasing the threshold for legal aid certificates,” Misheal explained.

“I simply cannot see an individual who earns anywhere between $18,000 to $25,000, that pays rent, and food, and a car, has some money to retain counsel. It’s virtually impossible. So, the threshold for the certificates needs to be seriously reconsidered,” he added.

FOLA representatives told The Lawyer’s Daily that the government was receptive to the suggestions brought up at Lobby Day.

“I think the Attorney General himself, and his staff, acknowledged readily that they’re not in the trenches every day and, of course, our members are,” said Wynperle, noting that FOLA’s members “work all around the province of Ontario.”

“And I think they appreciated the fact that they were getting various messages of concern from various parts of the province, which suggested to them that work needs to be done. And of course, our view was that we’re happy to work in any way possible to partner with the Attorney General’s office to assist and volunteer in any way we can to improve the system,” he said, stressing that FOLA would “like to work together to find solutions to the issues.”

“Some of it will require increased funding and increased infrastructure in order to ensure that access to justice is fairly distributed,” he added.

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