ELECTRONIC TRIALS AND CHANGE IN BRITISH COLUMBIA’S JUSTICE SYSTEM

By Kate Gower

In 2020, COVID-19 visited a “huge unscheduled pilot” of new tools on courts worldwide. Driven by the urgent need to keep the figurative doors of justice open, justice systems pivoted to various forms of “remote court”. In four months, remote courts were up and running in 56 countries.1

In this article, I curate the story of electronic trial processes in British Columbia both before and after the declaration of the COVID-19 pandemic and use it as an entry point through which to explore change in British Columbia’s justice system. I take up the invitation of the Action Committee on Access to Justice in Civil and Family Matters to focus attention on the people who use the justice system.2 I do so conscious of Access to Justice BC’s statement that taking a user-centred perspective has the power to be transformative.3 As the justice system considers how to pivot in a changing world, I posit that how we define “users” affects how change happens. My goal is to illuminate how unexamined assumptions such as about who “users” are may be inadvertently limiting access to justice.

An Experience With Change

Before I tell the story of new tools in B.C. courts and engage with the nature of change, I want to share the experience that started me thinking about how to improve access to justice by improving court processes. In 2013, I was the lawyer charged with making an electronic trial happen for a case concerning Treaty 8: West Moberly First Nations v. British Columbia. 4 West Moberly was a complex, multi-party case with a voluminous evidentiary record. The parties disclosed over 19,000 historical documents and maps concerning the making of the treaty. The common book of documents, which included only what the parties considered to be the “key” documents, contained 3,376 documents. All parties agreed that the only reasonable way to manage this volume of material at trial was in the electronic environment. We successfully created and used a simple electronic trial platform

(the “West Moberly E-Trial Platform”) to both present evidence and enter it with the court.

In this article, when I use the terms “e-trial” and “e-hearing”, I am referring to hearings where new tools (programs and processes) allow the court to view and receive digital documents. In the West Moberly e-hearing, an electronic document could be put to a witness, that witness could mark up a document in the digital environment and the marked-up document could be entered as an exhibit. For example, a witness could review Exhibit 123 (perhaps an image of where an accident occurred), the witness could add further markings (perhaps to illustrate where they were standing when the accident happened) and that marked-up document could be entered as the next exhibit (Exhibit 124). The new tools that facilitate e-hearings can be used to support both in-person and remote hearings, but they do not replace current court filing procedures.5

We created the West Moberly E-Trial Platform to meet the needs of our case in 2014. We did not use proprietary software. The platform was simple and easy to use. It could be set up in a standard courtroom with no internet connection. A full description of the platform is available elsewhere,6 but the platform was successful because we paid close attention to the needs of the lawyers and the court. For example, to address concerns about learning new tools, we carefully set up the naming conventions for documents to preserve the usual language lawyers use in court (for example, it was still possible for counsel to say in court, “I would like to take you to Tab 1234, document BC123456, in the e-Common Book”). A key goal was to ensure that the court could review and receive evidence digitally. I was pleased when, at a Canadian Bar Association discussion, the trial judge commented positively that all the evidence from trial was contained on a laptop just one centimetre thick.

While some counsel remained unconvinced of the efficacy of the e-trial platform on the first day of trial, by the end of the first week all parties had used the platform. By the end of trial, witnesses for the plaintiff First Nations had used the technology to mark land use on digital maps and the e-trial had saved all parties and the court time and money. I shared the story of the West Moberly E-Trial Platform at seminars for others in the justice system and imagined everyone else would give it a go.7

Three years later, no one else had given it a go. I developed a theory that change was not happening because people in the justice system were unaware that new tools were being used in courts in British Columbia and across Canada. To address this, I launched a website to aggregate and share stories about electronic trials.8 I imagined that others would use the infor- mation on the website to cross-pollinate their experiences, and then everyone else would give it a go.

Once again, no one else gave it a go. The justice system remained unmoved.

USING NEW TOOLS BEFORE COVID-19

In 2017, I reviewed information available about e-hearings in Canada’s courts. I found limited resources from which I or others could learn. No one appeared to be tracking the frequency of e-hearings or collecting materials on e-hearings.9 Only a handful of court decisions mentioned that electronic processes had been used.10 A few documents titled “E-Trial Plan” were filed with the Federal Court of Canada.11 I found informal references to Toronto’s Commercial List running hearings electronically, but could find no documentation guiding this process. The Ontario Bar Association and The Advocates’ Society had published high-level papers on e-hearings,12 and a few articles described ad hoc electronic litigation in Canadian courts. I was almost alone in sharing stories of improved process at continuing legal education presentations.

Across the Atlantic in England and Wales, a different story was unfolding. After a spending freeze, the Crown prosecution service recognized it needed to revise its processes to meet budget targets. It calculated that it could manage the cost of printing the paper used, but the costs of movement, filing and eventual destruction were too expensive.13 An English company won the competition for new software designed to replace old paper processes, and the program “CaseLines” was installed in every Crown Court in England and Wales in 2016. By October 2017, 200,000 cases were stored online in CaseLines, and the program was being used daily by over 1,000 judges for trials and hearings.14

With this background in mind, we approach the “huge unscheduled pilot” COVID-19 caused. In May 2019, the B.C. government and judiciary actively considered CaseLines at a meeting in the Microsoft building in Vancouver.15 That year, a series of e-hearings ran in the B.C. Supreme Court. In the spring, a wills variation case, Hutchison v. Moore, used CaseLines in the Victoria and Vancouver courthouses.16 In the summer and fall, an Aboriginal title claim, Nuchatlaht v. British Columbia, used CaseLines for a series of applications.17 The West Moberly E-Trial Platform was brought back into court in May 2019 to argue costs in that matter.18 In September 2019, trial began for another Aboriginal title claim, Cowichan Tribes v. Canada, using an Ontario e-trial program called “REDI”.19

There was still little or no public discussion of these new tools. There was almost no mention of e-hearing processes in court decisions. In fall 2019, the B.C. courts released the Court Digital Transformation Strategy 2019–2023, and electronic trials were placed in the fourth of five phases.20

USING NEW TOOLS AFTER THE DECLARATION OF COVID-19

The COVID-19 pandemic was declared in March 2020.21 Worldwide, justice systems began pivoting to various forms of “remote” court. On March 27, 2020, a collaboration in the United Kingdom launched the website “Remote Courts Worldwide” to connect justice system workers globally, and to offer a space “for people who work in the justice system to exchange news of operational systems, as well as of plans, ideas, policies, protocols, techniques, and safeguards”.22 The goal was, in part, to avoid “unnecessary duplication of effort across the world”. By mid-July 2020, remote courts were up and running in 56 countries.23

The U.K. courts held their first remote hearing on March 24, 2020, using a video platform and e-hearing tools. It was the day after the country announced a “lockdown”, and the justices and parties were all located in different places.24 In the next two months, in addition to scores of cases in the lower courts, the U.K. Supreme Court held 17 video hearings and delivered 24 judgments, and the Judicial Committee of the Privy Council held 17 video hearings and delivered 12 judgments.25

In Canada, the justice system struggled to respond. Former Chief Justice Beverley McLachlin called for help making change happen: “I am writing to lend my voice to the growing list of practitioners, judges, academics and court users who are beseeching governments across Canada to see COVID19 and the courts’ woeful inability to pivot as a wake-up call.”26

Four months later, Ontario courts announced that the Ministry of the Attorney General had secured CaseLines for the Ontario Superior Court of Justice, and that it would launch the program in August. Chief Justice Morawetz announced the move in a memorandum to the bar and legal associations;27 the plan was to have the program running in all courts by the end of 2020. The Superior Court posted a rolling notice providing updates on the program’s use.28 Chief Justice Morawetz described how it had always been his goal to modernize the Ontario courts and that they had used change managers to facilitate the shift to new tools.29 Justice Fred Myers commented that the rollout of the new tool owed much to having “the right chief at the right time”.30

In British Columbia, each level of court had its own experience with new tools in response to the unprecedented effects of COVID-19,31 but for this article I focus on the experience at the B.C. Supreme Court. On March 18, 2020, the court released a notice titled “Supreme Court of British Columbia

- Closed Courthouses and Suspended All Regular Court Operations” (the “March 18 Notice”).32 All civil and family matters were adjourned, and applications could be made to the court only for essential and urgent matters. The notice provided a link to a new form created to request hearings—the “Request for Urgent Hearing Form”—and listed new processes for filing for and conducting hearings. A series of notices followed that revised and amended the court’s processes to allow incrementally for new ways to file documents, swear affidavits and hold hearings. The March 18 Notice was revised and replaced on March 30, 2020 by Notices #4 and #5, which were in turn revised and replaced several times. Between March 18, 2020 and June 7, 2021, the court issued 44 COVID-19 notices.33

On June 7, 2021, Notice #44 informed the profession that the Supreme Court had created a File Transfer Server (“FTS”) “to allow parties in remote hearings to transmit documents electronically to the Court so that they can be accessed by presiders”, and stated that “[t]he FTS is to be used for transmitting documents to the judiciary”. As a pilot project, the FTS was available only “at the request of parties or counsel only in insolvency matters” (emphasis in original). In Part IV, the notice set standards for uploaded documents, which included having a numbered index, having a file name that corresponds to the tab allocation in the index and being searchable.34

Chief Justice Hinkson and Justice Masuhara (Chair of the Joint Court Technology Committee) provided several online video updates on the court’s process. In presentations in April 2020 and May 2021, Chief Justice Hinkson and Justice Masuhara said that the court was agnostic toward any new technology and thus chose not to impose a new tool on the bar. They listed concerns including the open court principle, the right to be heard and seen, challenges users may have with new technology, the erosion of formality, the de-skilling of younger lawyers and the levels of strain and stress in video hearings.35

In 2021, CaseLines was used before the court for the trials of Ding v. Prévost, A Division of Volvo Group Canada Inc.36 and Sidhu v. Hiebert 37

Also in 2021, an Aboriginal title claim, Nuchatlaht v. British Columbia, 38 provided a small, unscheduled, side-by-side study of two new tools: CaseLines and the FTS. The court provided the FTS for the parties. The plaintiff chose to continue its practice of using CaseLines to present its portion of the application. The plaintiffs ensured that the judge, court and all parties had access to a CaseLines hearing folder for the application; however, counsel for British Columbia declined to use CaseLines and conducted his submissions using documents loaded to the FTS.

Both tools allowed parties to transmit documents to the judge and to other parties. CaseLines also offered a user-friendly interface that allowed parties to load materials of any size and file format, search a term across all documents, navigate intuitively and direct the judge, a party or a witness to any page without their needing to turn to it and to make private or public notes or highlight documents in different colours.

During submissions by counsel for British Columbia, counsel wished to put documents to the witness. He found that, with the FTS, he was not able to do so. The witness, the judge and counsel were all in separate locations, and the witness had not been given access to the documents in the FTS. With the approval of counsel for British Columbia and the judge, plaintiff’s counsel provided the witness with access to the CaseLines file, and thereafter used CaseLines to direct all parties, the judge and the witness to any documents counsel for British Columbia wished to review and/or put to the witness. The process of setting this up took less than five minutes. The difference between the two tools was obvious: one made the hearing possible, while the other did not.

Change

I offer three points.

First, let us interrogate the construction of the “user” to date. A growing body of legal design research is showing the value of using the experiences and needs of users to guide improvements to functionality.39 Fundamental to this approach is having an understanding of who the users actually are.

Notice #44 appears to construct the user as the judiciary: the FTS makes it possible to “transmit” documents to the judiciary and allows “presiders” to access documents for remote hearings. I accept that a key part of the justice system is ensuring the decision maker has the evidence on which to make a decision. However, the evidence here suggests that the users are a larger group.

When members of the judiciary spoke about adapting to a new operational normal in B.C. courts, they mentioned needs, rights and challenges of “users” who include lawyers and the people who come to court to try to resolve their legal problems. In the Nuchatlaht application, counsel for British Columbia would have been unable to continue without the functionality offered by CaseLines, so both the court and counsel benefitted from that new tool. In the two CaseLines trials, the remote hearings included a screen that displayed the document being discussed in court, a feature not traditionally afforded to those in the gallery. In another e-trial, clients were able to view the transcript of the proceedings in real time, which significantly changed the experience for those who were hard of hearing or who preferred written to spoken words. In the Nuchatlaht trial in 2022, the court created an “overflow room” where the Nuchatlaht members and the public watched the court case remotely. Finally, the Nuchatlaht trial was also an opportunity for court services to gain experience with a new tool.

It is hard to intentionally bring about change when it is not clear for whom one is making the change happen. In my opinion, we should be more deliberate in identifying all the “users” we are considering.40

Second, let us imagine a small user group, perhaps one composed of only the judiciary and lawyers. Since notices to the profession are standard practice, we might posit that an acceptable pivot could be achieved with a series of notices to the profession. We might also posit that a notice setting standards for using an FTS would be an acceptable way to make change happen.

Two assumptions are embedded in this theory of change. The first assumption is that it is possible and desirable to list every requirement necessary to ensure a new process runs smoothly. I agree there are certain essential processes and procedures that must be carefully managed. However, I submit that the list of essential processes may not be as long as some imagine. I think there is value in identifying the essential processes because I believe that would create space for all users to benefit from humancentred design processes as change happens in courts.

In fact, this is beginning to happen in e-trials already. In Ding v. Spittal and Sidhu v. Hiebert, sections for certain documents are already repeated as standard sections (for example, “Trial Schedule”, “Trial Record”, “Draft Transcripts” and “Certified Transcripts”). After that, these e-trials operated as examples of the human-centred design approach. A design option, CaseLines, was presented to the users (i.e., all those involved in trial). The design of the new tool is user-friendly and intuitive. There was an initial learning curve, in which users gained confidence that the skills they already have from using other computer programs are applicable (for example, searching across documents using the same Boolean searches used in libraries, and “dragging and dropping” new documents into the e-trial program using the same motion used on personal computers). Then, as the trial progressed, users flagged certain processes as having room for improvement. I have then seen scenarios where the users identify an issue and watched as both REDI and CaseLines updated their programs in response.

When we pursue change through detailed notices, we are choosing not to engage with the growing body of work on human-centred legal design.41 Evidence is building that it is possible to maintain the essential elements of court process while also benefitting from iterative design processes that use user experience to improve functionality. I will return to those processes and benefits in a moment.

The second assumption is that the users are a remarkable group. They are a homogenous set of legal actors who can follow processes that shift and change through any number of different notices. They consistently and accurately prepare indexes, and create and type in document names.

I think we should be careful not to overestimate how well lawyers can or will follow set processes.42 If our theory of change relies on assumptions that a comprehensive manual will be uniformly read and scrupulously followed, then I suggest that these assumptions, and this change initiative, will fail.

My third and final point is that the evidence shows that when new tools are used in B.C. courts, those involved experience new possibilities for improving legal process. For example, in the early e-trial on the West Moberly E-Trial Platform, the lawyers began trial by creating digital replicas of the binders they would have used to examine a witness in the paper environment. Some named their documents according to the tab the documents occupied in their examination binder. However, as trial progressed, parties learned they could appear in court with a list of document names and use the copies already available on the e-trial platform. This development brought improvements in time and money in pre-trial preparation and reduced the volume of the documentary record.43 In the Nuchatlaht applications and trial, the parties and the court successfully ran a cross-examination in a remote hearing. Those involved now have a base experience on which they might consider the next level of functionality.

When users engage with new tools that work, they “learn by doing” and accrue “user experience”. When they find that they can rely on a new tool, there is space for them to see and consider new possibilities. They can offer evidence-based opinions on what processes matter and on others for which there are improved processes that work. I submit that learnings like these will blossom whenever an e-trial is conducted. In Ontario, the judiciary, lawyers, court administration and those using the courts to solve their legal problems have already accrued several years of these experiences, in a way that the B.C. justice system has not. In my opinion, this user experience has value, and none of the users in our justice system benefit from not collecting it.

How could we collect this evidence in British Columbia? What is the bare minimum British Columbia would need to do to gain experience with these new tools? As mentioned earlier, the B.C. Supreme Court launched a pilot project to use its FTS for insolvency matters.44 Perhaps it could run a pilot project using CaseLines or REDI in chambers applications that are more than two hours. The B.C. Supreme Court recently launched a pilot elec- tronic filing project for masters chambers on Vancouver Island, but this is with respect to filing documents with the court, rather than for use in the hearing itself. I offer applications over two hours because these are generally document-based applications that could benefit greatly from document management tools, and they are heard at set dates and times, giving all involved time to prepare. If there are infrastructure concerns—for example, ensuring adequate internet connectivity45—then the pilot project could be located in one courthouse where internet connectivity is reliable, or in one courtroom where a landline could be supplied. I offer these ideas to illuminate different possibilities to gain experience.

Conclusion

Twenty-five years ago, John Kotter identified eight steps to creating successful change. 46 Kotter’s first step is establishing a sense of urgency, and COVID-19 created that in the justice system. In this article, I have described the experience of change in the B.C. Supreme Court and placed it against a backdrop of changes at courts in Ontario and the United Kingdom. I have considered how decisions about “users” affect how change happens and suggested that the unexamined construction of the “user” is causing the B.C. justice system to miss opportunities for change.

To summarize, I offer my three points as questions:

1. Who is the “user” in this change scenario? If the user is more than the judiciary, how could we—or should we—construct the “users” of the system as change happens in our courts?

2. What are the assumptions embedded in the recent changes? Are we overestimating the ability of legally trained users to follow detailed notices? Are we overestimating the utility of written manuals?

3. How can we best gather and assess information on users’ experiences with the new tools here in British Columbia?

Endnotes

1. Richard Susskind, “The Future of Courts”, The Practice (July/August 2020), online: <https://clp.law. harvard.edu/ knowledge-hub/magazine/issues/ xzremote-courts/>.

2. Action Committee on Access to Justice in Civil and Family Matters, Access to Civil and Family Justice: A Roadmap for Change (2013) at 7, online: <www.cfcj-fcjc.org/sites/default/files/docs/2013/ AC_Report_English_Final.pdf>; Action Committee on Access to Justice in Civil and Family Matters, Challenge and Change: Canada’s Justice Development Goals (2020) at 19, online: <static1.square- space.com/static/60804beaba3bc03016513a59/ t/609d9ab372b8f876777a7ee9/16209414950 00/jdgreport2020challengechange.pdf>.

3. Access to Justice BC, “Shift to a User-Centred Perspective”, online: <accesstojusticebc.ca/user-centred/>.

4. West Moberly First Nations v British Columbia, 2017 BCSC 1700, aff’d 2020 BCCA 138, leave to appeal refused 2021 CanLII 2825 (SCC).

5. Susskind, supra note 1.

6. Kate Gower, “The Modern Courtroom: Digital Exhibits and the West Moberly Electronic Trial Platform”, Litigation Update 2016: Current Trends in

Trial Tactics and Advocacy (28 October 2016) (unpublished, available upon request).

7. I presented at sessions at or organized by CLE-TV, the Trial Lawyers Association of British Columbia, the Canadian Bar Association, the Pacific Business Law Institute, the Annual Pacific Legal Technology Conference, the Trial Lawyers Association of British Columbia’s Women Lawyers Retreat, and the Federal Court – Aboriginal Law Bar Liaison Committee.

8. Gower Modern Law, online: <gowermodernlaw. com>.

9. Information on e-trial processes tends to be held by a few service providers: Kate Gower, “Using Technology in Aboriginal Litigation: Current Trends in E-trials”, Aboriginal Litigation and Negotiation (12–13 December 2017) (unpublished, available upon request).

10. Bank of Montreal v Faibish, 2014 ONSC 2178 at paras 1–5; 1159465 Alberta Ltd v. Adwood Manufacturing Ltd, 2010 ABQB 133, Schedule 1 - Judicial Comments About the Electronic (Digital) Trial, Sections 1.1 – 1.17.

11. Southwind v Canada, Docket: T-2579-91, E-Trial Order dated June 15, 2016.

12. Gower Modern Law, “E-Trial Resources”, online: <gowermodernlaw.com/e-trial-resources/>.

13. Henry Brooke, “The Digital Court System – The Future Has Arrived” (20 November 2016), online: <sirhenrybrooke.me/2016/11/20/the-digitalcourt-system-the-future-has-arrived/>.

14. Caroline Hill, “Litigation: CaseLines Reaches Milestone – Over 50 Million Pages in the System”, Legal Insider (18 October 2017), online: <legaltechnology. com/2017/10/18/litigation-caselines-reachesmilestone-over-50-million-pages-in-the-system/>.

15. The meeting was not publicly reported.

16. Gower Modern Law, “Victoria Courthouse Runs Second E-Trial” (12 April 2019), online: <gowermodern law.com/2019/04/victoria-etrial/>.

17. Gower Modern Law, “E-Hearings for Chambers Applications”, online: <gowermodernlaw.com/ 2019 /10/e-hearings-for-applications/>.

18. West Moberly First Nations v British Columbia, 2018 BCSC 1440.

19. Gower Modern Law, “Cowichan Tribes E-Trial Well Underway in Victoria” (2 October 2019), online: <gowermodernlaw.com/2019/10/cowichan-etrial/>.

20. British Columbia, Ministry of Attorney General, Court Digital Transformation Strategy 2019-2023, online: <www2.gov.bc.ca/assets/gov/law-crime-and-justice /about-bc-justice-system/justice-reform-initiatives /digital-transformation-strategy-bc-courts.pdf>.

21. World Health Organization, “WHO Director-General’s Opening Remarks at the Media Briefing on COVID-19” (11 March 2020), online: <www.who. int/director-general/speeches/detail/who-directorgeneral-s-opening-remarks-at-the-media-briefingon-covid-19—-11-march-2020>.

22. Remote Courts Worldwide, online: <remotecourts. org>.

23. Susskind, supra 1.

24. Lord Reed, “The Supreme Court During Lockdown” (20 June 2020), online: <www.supremecourt.uk/ watch/lord-reed/the-supreme-court-during-lock down.html>.

25. Susskind, supra note 1. The UK Supreme Court and the Judicial Committee of the Privy Council provide a streaming service of hearings and decisions at <www.supremecourt.uk> and <www.jcpc.uk>. See also Mary Ryan et al, Remote Hearings in the Family Court Post Pandemic (London: Nuffield Family Justice Observatory, 2021), online: <www.nuffieldfjo.org. uk/wp-content/uploads/2021/07/remote-hear ings-in-the-family-court-post-pandemic-report0721.pdf>.

26. Beverley McLachlin, “Access to Justice: Justice in the Time of Social Distancing” (31 March 2020), online: <www.thelawyersdaily.ca/articles/18386/accessto-justice-justice-in-the-time-of-social-distancingbeverley-mclachlin>. See also Gower Modern Law, “Watching Canada’s Justice System Pivot” (31 March 2020), online: <gowermodernlaw.com/ 2020/03/justice-system-pivot/>.

27. Gower Modern Law, “Ontario Courts Launch CaseLines E-Trial Platform” (30 July 2020), online: <gower modernlaw.com/2020/07/ontario-courts-launchcaselines-e-trial-platform/>.

28. “Supplementary Notice to the Profession and Litigants in Civil and Family Matters Regarding the Caselines Pilot, E-Filing, and Fee Payment” (2 September 2020, updated 17 December 2020, 7 January 2021, 24 February 2021, 9 April 2021, 19 April 2021, 17 June 2021, 5 October 2021 and 8 November 2021), online: <www.ontariocourts.ca/ scj/notices-and-orders-covid-19/supplementarynotice-september-2-2020/>.

29. Canadian Institute for the Administration of Justice, “Hybrid Courts: The New Operational Normal” (12 May 2021), online: <ciaj-icaj.ca/en/library/ videos/webinars-cpd/#goto-2021-webinar-serieson-court-modernization-justice-forward>.

30. Justice Fred L Myers & Kate Gower, “The Essential Guide to Preparing and Navigating Electronic Documents for Remote Advocacy”, Canadian Bar Association (23 February 2021).

31. For example, see the 2022 Annual Report of the Court of Appeal for British Columbia, online: <www. bccourts.ca/Court_of_Appeal/about_the_court_of_ appeal/annual_report/2022_CA_Annual_Report. pdf>.

32. “Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings” (18 March 2020), online: <www.bccourts.ca/supreme_court/ documents/Notice%20of%20Suspension%20of%20 Civil%20and%20Family%20Proceedings%20%20March%2018,%202020.pdf>.

33. Index to notices available online at <www.bccourts. ca/supreme_court/documents/COVID-19_Index_ of_Notices.pdf>. However, notices that were replaced are no longer available online.

34. “Notice to the Public and Profession Regarding Use of the File Transfer Server – Insolvency Proceedings –COVID-19 Notice No. 44” (7 June 2021). The June 2021 version is no longer available online. It was revised on September 17, 2021, and nine changes were made to the text: <www.bccourts.ca/supreme_ court/documents/COVID-19_Notice_No.44_Use_ of_th_%20FTS_(File_Transfer_Server)_in_Insol vency_Proceedings.pdf>.

35. LexisNexis Canada, “Justice Adapting: British Columbia Courts” (29 April 2020), online: <www. youtube.com/watch?v=J_VjU3wTCJU>; Canadian Institute for the Administration of Justice, supra note 29.

36. Ding v Prévost, A Division of Volvo Group Canada Inc., 2022 BCSC 215. In the final paragraph of the reasons for judgment, the Honourable Justice E.M. Myers writes “I thank counsel for the courteous and effective way they conducted this lengthy trial, all during the challenging time of COVID. Given the huge volume of documents and the remote appearances of the witnesses and some counsel, this case could not have been conducted other than with the use of an electronic document management system: no hard copies were necessary. Counsel are to be commended for their collaboration in setting this up.”

37. Sidhu v Hiebert, 2022 BCSC 1024.

38. Nuchatlaht v British Columbia, 2021 BCSC 370.

39. See e.g. Access to Justice BC, supra note 3; Margaret Hagan & F Kürsat Özenç, “Guest Editor’s Introduction” (2020) 36:3 Design Issues 2; Jane Morley & Kari D Boyle, “The Story of the BC Family Justice Innovation Lab” (2017) 34:1 Windsor YB Access Just 1 at 19, 25; Shannon Salter & Darin Thompson, “Public-Centred Civil Justice Redesign: A Case Study of the British Columbia Civil Resolution Tribunal” (2016–2017) 3 McGill J Disp Res 113.

40. See e.g. the “user personas” used to assess new tools in Margaret Hagan, “A Human-Centered Design

Approach to Access to Justice: Generating New Prototypes and Hypotheses for Intervention to Make Courts User-Friendly” (2018) 6:2 Indiana Journal of Law and Social Equality 200.

41. Gordon Ross, “Airlines, Mayonnaise, and Justice: Reflections on the Theory and Practice of Legal Design and Technology” (2020) 36:3 Design Issues 31.

42. For a user’s perspective on this, see “A User’s Perspective on the Justice System During the COVID-19 Pandemic” (29 May 2020), online: <accesstojustice bc.ca/2020/05/a-users-perspective-on-the-justicesystem-during-the-covid-19-pandemic/>.

43. See calculations by William G MacLeod, QC, in Gower Modern Law, “E-Trial Costs – What the Evidence Shows” (2 December 2019), online: <gower modernlaw.com/2019/12/e-trial-costs/>.

44. See Court COVID-19 Notice No 54, online: <www.bccourts.ca/supreme_court/documents/ COVID-19_Notice_No.54_Masters_Chambers_ Pilot.pdf>.

45. Internet connectivity will always be a minimum requirement for using e-trial tools. In Cowichan Tribes, an order was entered prior to trial that the parties and court staff would coordinate to ensure the courtroom had a functioning internet connection (online: <gowermodernlaw.com/wp-content/uploads /2019/08/19-07-24-Canadas-Consent-Orderre-REDI-Analysis.pdf>). Three Assistant Deputy Ministers collaborated to create an internet connection to support that e-trial. Later, it was determined that a new landline was required, and I volunteered my time to secure that landline. In the Ding v Spittal and Sidhu v Hiebert e-trials, the reporting company ensured internet connectivity.

46. John P Kotter, Leading Change (Boston: Harvard Business Review Press, 2002).