How on earth can a court system manage to become even less efficient after moving from paper filing to on-line?
After 30 years of practising law in Ontario, I have sat in the front row watching the public justice system. Sadly, in that time, I have witnessed it go from bad to worse. What happened recently at the Newmarket courthouse left me more convinced than ever that Ontarians who turn to the public justice system for relief are being let down by a system that has somehow engineered new ways to fail them.
For the first quarter century of my law career, issuing pleadings meant sending a process server to the courthouse. The process server would walk in, take a number, and wait. Sometimes that wait was an hour. Sometimes it stretched to four. Four hours to have a document stamped and issued? A clerical act that takes minutes once a human being actually looks at it. In the private sector, there is a word for that – inexcusable.
Some process servers took many tickets and traded them with their buddies. Although they had their own thing going, for we lawyers, they got the job done without us having to attend the court office and spend hours of clients’ time. And when I say ‘got the job done’, it got done in the same day. They picked up the draft pleading at my office in the morning and they returned it to my office issued – all in the same day. Sure, a 1-4 hour wait to get a pleading issued was ridiculous, and so we complained about it constantly. It was one of the great indignities of the justice system: a client in crisis, a matter requiring urgent attention, and a process server sitting in a courthouse, watching a digital number-board crawl toward their turn.
We were told, change was coming. Technology was the answer. Digital filing portals would eliminate the wait. Applications could be submitted online. Court staff would process them efficiently from their workstations. No more process servers. No more delays. No more trips to the courthouse. No more numbered tickets. No more four-hour waits. We were told to be patient while the court system was re-hauled.
Decades passed. No change was evident.
Then COVID came.
Ontario‘s justice system was kicked in the behind. Suddenly, court filing went digital.
Relief? Oh no.
Several weeks ago, I was retained by a client with an urgent matter requiring an Application to be issued at the Newmarket Court. As a certified specialist, I know what the right forms are. I know how to complete them correctly and thoroughly. I know exactly how to turn this around fast. After all, I’ve been doing this for decades, and so have my staff.
That was six weeks ago.
After weeks of silence, with no issued Application in hand and no word from the court, I sent my law clerk – in a car from downtown Toronto to Newmarket – to physically attend the courthouse and find out what was happening.
What she learned when she got there was this: Court staff advised her that they are currently processing pleadings that were filed four weeks before ours, that we were in queue, that we would remain in queue.
Let that settle for a moment.
The solution to a 1-4 hour in-person wait was a digital portal that has produced a 10-week backlog. We went from waiting in a room to waiting in a digital queue that we cannot see, cannot monitor, and cannot meaningfully inquire about without driving 90 minutes each way to the courthouse and back – which is precisely what the digital system was supposed to eliminate the need to do.
In the name of modernization, we have achieved something remarkable: We made court filing slower, less transparent, and more frustrating, while removing even the modest dignity of being able to watch a number board and know where you stand.
How is this even possible?
It is a question worth asking seriously, not rhetorically. Information technology exists to accelerate processes, reduce human error, and increase output. Every sector of the economy – banking, healthcare, insurance, retail, government services of every other description – has used digital tools to dramatically reduce processing times for routine transactions.
Issuing a court pleading is, at its administrative core, a routine transaction. A clerk reviews the document for completeness, confirms it meets the formal requirements, assigns a court file number, affixes a seal, and returns the issued copy. This process does not require hours. This process does not require days. It certainly does not require weeks.
What has gone wrong in Ontario’s courts is not a technology problem, strictly speaking. The portal may work perfectly well as a submission mechanism. The failure is in what happens after submission – in the staffing, the resourcing, the work-flow management, and the institutional prioritization that determines how quickly a human being on the other end actually processes what has been filed. Digital submission has apparently not been matched with digital processing capacity or, for that matter, adequate human capacity. The queue has simply moved from a visible waiting room to an invisible backlog, and the invisibility makes it worse, not better.
I want to be direct about something that tends to get lost when practitioners discuss court administration in the abstract: There is a human being at the end of this delay. My client retained me because they need relief – the kind of relief that requires an issued pleading, a court date, and eventually a judge. Every week that the pleading sits unissued is a week that my client cannot move forward. It is a week of uncertainty, of unresolved arrangements, of circumstances that may be deteriorating. Legal matters rarely involve parties who are content to wait. They involve people in transition, often in conflict, frequently in distress.
My client is one of thousands across this province who are, at this moment, waiting in a queue they did not know they were joining, for a process they were told had been modernized, in a court system that owes them better.
The legal fees my client pays include the cost of a law clerk driving to Newmarket and back to obtain information that should be available instantly online. They include the cost of follow-up, of monitoring, of managing a timeline that has been entirely surrendered to the court’s administrative backlog. These are not value-added legal services. They are the cost of a broken system, passed directly to the person least able to absorb it.
I want to be clear that I do not attribute this situation to the individual court staff at the Newmarket court. The people working in those offices are, by all accounts, doing their jobs within a system that is chronically under-resourced, inconsistently managed, and structurally resistant to the kind of accountability that would produce improvement.
The responsibility sits higher. It sits with the Ministry of the Attorney General, which has presided over a court administration apparatus that was struggling before COVID, was shattered by it, and has never fully reconstituted. It sits with successive provincial governments that have treated court administration as a budget line rather than a public service. It sits with a federal-provincial dynamic that treats family justice as a shared responsibility in a way that, in practice, means neither level of government feels fully accountable for the outcome.
The digital filing portal was introduced without, it appears, a commensurate investment in the processing infrastructure needed to make it work. This is the recurring pattern in Ontario’s approach to justice reform: the announcement, the ribbon-cutting, the press release about modernization – and then the reality, which lands on the desks of practitioners and the laps of clients weeks later.
I write this article partly as an expression of professional exasperation…and partly as an expression of genuine sympathy for my client and for the thousands of Ontarians who look to the court system for timely, dignified access to justice and not to receive instead a queue number and an instruction to wait. I write it most urgently as a further argument – one I make to every client, in every appropriate case – for the use of alternative dispute resolution.
ADR, in this context, means precisely what it says: an ‘alternative’ to the court process. Mediation. Arbitration. Mediation/Arbitration. These are processes in which the timeline is set by the parties and their professionals, not by an administrative backlog of indeterminate length. Processes in which a qualified neutral can facilitate or adjudicate a resolution in weeks rather than the months or years that the court system now routinely consumes. Processes in which the first step does not require waiting six weeks simply to have a piece of paper issued.
Not every case is suitable for ADR. There are matters requiring judicial intervention – urgent motions, cases involving safety, complex jurisdictional questions – where the court is the right and necessary venue. But for the vast majority of families in Ontario, ADR offers something the court system demonstrably cannot: respect for their time, reliability in the process, and the reasonable expectation that when they take a step, that step will be acknowledged and actioned.
The standard I am asking for is not ambitious. I am not asking for same-day filing. I am not asking for a perfect system. I am asking for a system in which submitting a properly completed pleading through the officially sanctioned digital portal results in that pleading being issued within a reasonable time – days, not weeks – and in which a practitioner can ascertain the status of a filing without dispatching a clerk on a 100-kilometre round trip. That is not a high bar. It is the bar that virtually every other service delivery context in Ontario clears without discussion.
Until Ontario’s courts can clear it, the most honest advice a lawyer can give their client is this: do not rely on the court system to treat you with respect, provide you with reliable service, or move at a pace that reflects the urgency of your situation. Build your resolution another way, wherever you possibly can.
This article was recently published on LexisNexis’s Law360 Canada at: https://www.law360.ca/ca/family/articles/2490831/how-electronic-court-filing-went-from-bad-to-worse
Steve Benmor, B.Sc., LL.B., LL.M. (Family Law), C.S., Cert.F.Med., C.Arb., FDRP PC, Acc.D.C., is a full-time Divorce Mediator/Arbitrator and principal lawyer of Benmor Family Law Group, a boutique matrimonial law firm in downtown Toronto. He is a Certified Specialist in Family Law, a Certified Specialist in Parenting Coordination and was admitted as a Fellow to the prestigious International Academy of Family Lawyers. Steve is regularly retained as a Divorce Mediator/Arbitrator and Parenting Coordinator. Steve uses his 30 years of in-depth knowledge of family law, court-room experience and expert problem-solving skills in Divorce Mediation/Arbitration to help spouses reach fair, fast and cooperative divorce settlements without the financial losses, emotional costs and lengthy delays from divorce court.
Share this article on: