Canadian Lawyer

10 M A R C H 2 0 1 8 w w w . C A N A D I A N L a w y e r m a g . c o m A s civil litigators and even judges warm to using technological tools, lawyers say the court's Rules of Civil Procedure need to be updated to keep up. The Ontario Bar Association is cur- rently considering a proposal to the province's Civil Rules Committee, which recommends rule changes to the attorney general, that would improve the ability of litigants to serve materials using email without requiring information from the opposite side or a court order. This would mean litigants would be allowed to serve materials — other than originating processes — via email as a matter of course. "The issue with the rules is that they don't incorporate or reflect the way in which lawyers are communicating today," says Nadia Campion, a partner with Pol- ley Faith LLP. Under the current rules, lawyers can- not serve claims through email unless they receive a response confirming the service from the other side. But Campion says lawyers today are communicating through email and text message more than ever. There are far fewer formal faxes or letters being sent between lawyers as there were 10 years ago, she says. She adds that as the technology being adopted by a younger generation of law- yers is advancing so quickly, it is hard for the rules to keep up. Using new tools to serve claims has been a hot topic of conversation in the bar since a Toronto lawyer recently received a court order allowing her to serve a lawsuit using social media app Instagram. The topic came up at a panel discus- sion that Campion moderated about civil litigation and the digitization of the courts at the OBA Institute conference in Toronto. Campion says that another way the rules are lagging behind technologically is in how they treat electronic trials. She says that as the profession moves toward paperless trials, she expects to see changes to the rules that will assist and encourage lawyers to pursue the more technologi- cally driven way of running cases. "You don't see any of that in the Rules of Civil Procedure," she says. "They were formulated on the basis of paper records — not digital records." The Ministry of the Attorney General has made some progress recently in its attempts to further digitize and mod- ernize the courts with the rollout of an online filing system for civil claims. Critics have said MAG's attempts to digitize the courts have been slow and incremental. Christopher Johns, from MAG's innovation office, said changes have been made incrementally to make sure the transition is smooth and that the systems are implemented properly. "Change is very hard in an organiza- tion this big from a process and a people perspective," he told the panel. "What we do, we have to do incrementally." In family courts, MAG is going to launch a pilot project in April 2018 that will allow joint divorce filing online. And in criminal courts, Johns says, MAG is looking to expand remote video access, digitize the intake process and implement digital evidence management. When asked about the province's ser- vice rules, Johns said he hopes the rules will catch up with technological advances. "We have email available to us. We have lots of electronic services or tech- nologies and we're hopping right to Insta- gram. So let's just go for it," he says. — ALEX ROBINSON T here is nothing new about bartering legal services. One needs to look no further than Emmett Hall, one of Saskatchewan's and the country's most distinguished advocates. He served on the Supreme Court for a decade (1963-1973) and, in 1961, led a Royal Commission on medicare. According to his biographer Dennis Gruending, Hall recalled that, as a lawyer in Depression-era Saskatoon, his firm was "accepting chickens in pay- ment of legal fees along with much-used cars and an old cottage." Admittedly, those were different times and, while bartering for legal services has continued quietly, law societies in Canada have generally been wary of such arrangements, especially online barter arrangements. But now, it seems, some minds are changing. Take the Law Society of Alberta. As recently as September 2016, according to an LSA notice, it "prohibited the provision of legal services through Tradebank or similar institutions." Tradebank is an online barter system in which credit for ser- vices, such as legal work, can be stored and subsequently used for a range of prod- ucts and services. Back in 2016, the LSA advised members who might be using Tradebank "to cease doing so immediately." ALBERTA LAW SOCIETY OKs BARTERING OF LEGAL SERVICES \ AT L A N T I C \ C E N T R A L \ W E S T REGIONAL WRAP-UP OBA considering request to change email service rules Nadia Campion W E S T

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