( Disponible en anglais seulement )
Can failing to hyperlink motion materials result in delay or even the dismissal of a motion? Two recent Ontario Superior Court decisions, Basaraba v Bridal Image Inc., 2021 ONSC 8038 (« Basaraba« ) and Parekh et al v Schecter et al, 2022 ONSC 302 (« Parekh« ) suggest that it could.
Basaraba dealt with competing summary judgment motions in a personal injury matter. More than 2,000 pages were uploaded onto Caselines, including affidavits, expert reports, discovery transcripts and cross-examination transcripts. Four motion records were uploaded, only one of which contained hyperlinks to enable the judge to navigate through the evidence. None of the facta uploaded included hyperlinks.
Justice Dunphy dismissed the motion, emphasizing that the absence of hyperlinks alone was more than sufficient to warrant dismissal of the motion. He provided the following insight into the challenges courts face when dealing with voluminous records, and the importance of hyperlinks and similar measures in light of those challenges:
[6] I cannot stress enough the degree to which this seemingly simple failure hampers to the point of destroying the ability of the judge conducting the hearing to arrive at a decision with any degree of confidence that he or she is able to render a decision on the merits that is fair and reasonable.
[7]…Absent hyperlinks, the task of checking the actual evidence against the summary narrative of the factum is pretty much impossible in a record of this size and complexity. None of the parties hyperlinked the references to the evidence contained in their facta. Each such reference was to a motion record or transcripts with neither hyperlinks nor even a reference to the relevant Caselines page number.
[8] This failing alone is more than sufficient to warrant dismissal of this motion… The practice directions and notices to the profession have been highlighting the need for serious attention to be paid to the manner in which documents are uploaded to Caselines for a long time. Tabs do not survive uploading. Hyerlinks (sic) and, in appropriate cases, separate uploading of individual tabs or exhibits serve to make the task of navigating large volumes of documents feasible. That was simply not done here. The result was to drop a task in my lap akin to asking me to sort through an overturned bowl of spaghetti.
[26] … The problem of parties failing to upload usable motion materials to Caselines is endemic. It will not improve if light is not shone upon it. The message needs to get out to the profession that these “motions in a box” are simply not going to work without more effort on the part of the parties. Properly hyper-linked motion records and facta are quite frankly the exception and not the rule these days.
Parekh involved a time-sensitive injunction motion. The parties collectively uploaded over 200 separate documents to Caselines. Many of the individually uploaded documents were exhibits to affidavits and cases, with some documents exceeding 500 pages. Justice Sharma explained the challenge such an approach creates for the Court as follows:
[4] …The reality for most judges and associate judges is that they cannot scroll through a list of hundreds of documents in CaseLines in search of a specific document, then click in and click out of those documents for the evidence or authorities to which counsel seeks to direct the Court.
[5] When we relied on paper documents, evidence would be in a single motion record, and authorities would be in a single book of authorities (although often with multiple volumes), with appropriate tabs. In contrast, in this case and others I have heard, hundreds of documents were uploaded. Notably, exhibits were not uploaded with the affidavit and hyperlinked within the affidavit. They were uploaded individually. To find an exhibit and marry it up with the appropriate affidavit, I was required to search the complete list of documents that were uploaded. CaseLines allows only two documents to be viewed at the same time. Documents that exceeded 500 pages would freeze as I scrolled through them.
Justice Sharma went on to provide the following guidance for counsel in preparing their digital materials:
[7] In particular, I direct counsel to a document titled, CaseLines Hearings – Tips for Counsel and Self-represented Parties”, found at: CaseLines Hearings – Tips for Counsel and Self-represented Parties | Superior Court of Justice (ontariocourts.ca). Tip 5 In this document states:
Affidavits with attached exhibits should be uploaded in one PDF document with hyperlinks from the affidavit to the exhibits for ease of reference. Similarly, where a Book of Authorities is provided to the court, it should be uploaded as a single PDF document with a table of contents hyperlinked to the cases contained in it. This will assist the judicial official in easily locating the exhibits and/or caselaw. A party’s factum can also be linked to caselaw in publicly available on-line sources such as CanLII, where available.
When uploading a document to CaseLines, ensure the document is under 500 pages in length. This will allow you to avoid issues with your document freezing while scrolling during your hearing. As such, if a document such as a book of authorities is loner than 500 pages, it should be broken down into Book of Authorities Vol. 1, Book of Authorities Vol 2, etc. to remain under the maximum number of pages.
[8] In addition, when preparing PDF documents, counsel should bookmark the relevant sections, tabs, or exhibits within a PDF document before uploading them to CaseLines. It is my practice to download from CaseLines the PDF versions of documents. I know some of my colleagues do as well, but not all. If the relevant sections are bookmarked, it assists with finding material within a PDF document. For example, it is of no use to identify in a factum a case found at a tab of a Book of Authorities, if those tabs have not been created by way of bookmarks in the PDF document.
Justice Sharma indicated that had the appropriate steps been taken by counsel, the time required to dispose of the time-sensitive injunction motion at issue would have been reduced. Ultimately, the Court granted the injunction.
Takeaway
Basaraba and Parekh emphasize the importance of ensuring materials put before the Court on Caselines are usable, useful and easy to navigate and that failing to do so may have meaningfully detrimental consequences for the parties. As Justice Sharma held in Parekh: « In every case, materials must be uploaded with a view to ensuring they are usable by the Court. »
Best practices for digital materials have evolved rapidly since the shift to virtual advocacy, and these changes will likely continue. When Caselines was implemented a little over a year ago, hyperlinks were stripped from any documents uploaded to the system. As both Justice Dunphy and Justice Sharma emphasized in their decisions, they are now essential.
As counsel and the courts adapt to Caselines, technological options and best practices will likely continue to evolve. The appropriate strategy may also depend on the circumstances and the nature of the record – in Basaraba, Justice Dunphy suggested that the separate uploading of individual tabs or exhibits would have assisted the Court. In Parekh, the Court found that this approach was not helpful. Bookmarks, familiarity with Caselines page numbering, the « Direct to Page » feature, and uploading indexes with Caselines page numbering are also all strategies for assisting decision-makers with navigating your materials.
These cases suggest that effective virtual advocacy going forward will involve not only using existing tools like hyperlinks, but implementing them thoughtfully and keeping up with new developments.
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