Ontario government vs. the 21st century
On Monday September 12th, 2011Print
On Monday September 12th, 2011Print
Every day Ryan Brearey, a process server for Borg Process Servers Inc., rides the elevator to the 10th floor of a hulking concrete building on Toronto’s University Avenue. He joins a line of 40-odd lawyers, law students and litigants who sit in a row of wooden benches, waiting to schedule a motion or file documents at Civil Court.
“It used to be way worse,” says Brearey. “Used to have to wait for four hours. Now it’s more like an hour, hour and a half.”
He’ll be in line for at least two and a half hours. Then he’ll cross the floor to Family Court and line up to file a second set of documents. It will take him the entire day.
Brearey is not alone. There are 173 courthouses in Ontario — 11 in Toronto — all with similar queues.
When asked about the egregious wait times, Oliana Palumbo, the Civil Intake Unit manager, makes a sour face. She says people usually wait an hour at most, and they can always schedule a motion by fax or phone, and get confirmation within 24 hours.
But why is there a wait at all? If it’s possible to make millions playing poker online in pajamas, surely there ought to be a way to schedule a court appointment or file a document online as well.
In fact, the Ontario government found a way to put the court system online. Twice. But after years of development, the projects were quashed — also by the Ontario government — to the collective tune of hundreds of millions of dollars.
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While successive Ontario governments spent over $1 billion to modernize healthcare records, a venture that famously descended into scandal and ministerial resignation, the justice system gained no ground, and is barely more technologically advanced today than it was 60 years ago. And while a cloud hangs over the government’s eHealth spending, few noticed as another department squandered hundreds of millions of dollars over a decade of failed projects intended to take the justice system online.
The Integrated Justice Project launched in 1996 as a joint initiative of the Ministry of the Attorney General, the Ministry of Correctional Services and the Ministry of the Solicitor General. The goal: one centralized online system with electronic filing, case management and courtroom services to streamline processes and reduce wait times, paperwork and red tape.
In other words, the project was going to take records and files from 825 locations across Ontario and make them fully searchable and accessible online — all while making the government a lot of money from fee-for-use projects like eFiling.
At least, that was the plan.
By 2001, the estimated cost had more than doubled to $359 million, while the projected revenues had been reduced by almost $100 million. The government had bitten off more than it could chew.
“I wanted to modernize the system,” says David Young, then attorney general for Ontario and now a partner with Benson Percival Brown LLP. He inherited the project when he was elected in 2001 under Mike Harris’s Progressive Conservative government. “But I didn’t have any desire to invent the wheel. I assumed some teenager in a garage was going to develop the software we required, and we didn’t have to spend literally hundreds of millions of dollars to do it.
By October 2002, the Ministry had spent $265 million with almost no progress. Young put a stop to it. The Ontario government was later sued by EDS, the company contracted to develop the Integrated Justice Project, for breach of contract. Ontario settled the lawsuit for $63 million.
Young now suspects the initiative was doomed to fail. It was too large, and too much to take on all at once. “We spent a lot of money and had very little to show for it.”
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Brendan van Niejenhuis, a litigator with Stockwoods LLP, recalls spending a significant amount of time waiting to schedule motions in his early years of practice. Now he sends a process server instead, which costs about $200. A recent change to the scheduling system means that only short motions, under two hours, can be submitted by form. For anything longer, the lawyer must appear in court — robes and all — and “beg a judge to let me do it.”
A process server or an articling student can wait in line, but it’s the client that pays, and even articling students can bill at $150 an hour. For unrepresented litigants it often means a day off work. The process is even more inaccessible for those living outside a major city centre, where the closest courthouse can be hours away. If the goal is to increase justice for people all across Ontario, then the court system is far from hitting the mark.
It was only this year that the courts introduced the option to view the day’s court lists online (previously, a hard copy would be posted outside the court itself), and van Niejenhuis is amazed it took until 2011 for that to happen. After all, “we do most everything else online.”
In 2007, Dalton McGuinty’s Liberal government took another shot at modernizing the courts, starting small with a court scheduling and reservation system. Court Canada, a technology company that specialized in webbased solutions for the legal community, was charged with developing the Online System for Court Attendance Reservations (OSCAR). It was piloted on the Estates List in October 2007. The project was a hit, and the following summer, the Ministry issued a formal request for proposals for a web-based court scheduling system.
Court Canada won the bid and its founder, Greg Azeff, was thrilled. Azeff has a reputation for being ballsy, quitting his Bay Street gig as a commercial litigator at Thornton Grout Finnigan LLP in 2005 to found Court Canada.
To limit its exposure, the Province required Court Canada to front the entire cost of the project (from developing the software to maintaining the system to training Ministry staff). In exchange, Azeff’s company would be able to charge a $15-per-motion fee to lawyers for using the voluntary system. The company pumped $3 million into OSCAR and planned for expansion. By early 2009, OSCAR was running successfully in both the Estates and the Commercial Lists. The next step for Azeff was to tackle Bankruptcy and the Civil Lists.
Azeff wanted the system used in every Toronto division, and then all across Ontario. “It’s a volume business,” says Azeff. “Given the volumes that were referenced in the request for proposals, we expected it to become a really significant business really quickly.”
But in the fall of 2009, Azeff says he started noticing the Ministry dragging its heels. Plans became vague. They stopped answering his emails. In March 2010, the Ministry dropped the bomb: They had no intention of expanding OSCAR beyond the Estates and Commercial lists. Instead, they planned to develop a similar system internally.
“It was devastating,” says Azeff.
In July 2010, Court Canada launched a $12-million lawsuit against the province and the Ministry of the Attorney General, alleging that the government reneged on the contract, and actively sought to discredit and sabotage the OSCAR system. This June, Court Canada released an amended statement of claim and upped the ante to $14.5 million, alleging significant fraud on the part of the Ministry and that the Ministry deliberately misled Court Canada into signing an agreement under false pretences.
The lawsuit hinges on the wording of the RFP: Azeff took it to mean that if OSCAR continued to be successful it would be expanded. The Ministry says this was never guaranteed.
A spokesperson for the Ministry of the Attorney General repeatedly refused comment on either the Court Canada case or the Integrated Justice Project. The Ministry did offer a brief written statement, saying that the government is “committed to the effective and efficient use of technology in the courts.” Attorney General Christopher Bentley refused an opportunity to respond to this story.
If the Ministry settles with Court Canada, as it is likely to do if there is even a shred of evidence to support Court Canada’s claim, they will pay out millions more in taxpayer dollars — bringing the total for both failed projects to nearly $350 million.
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British Columbia launched its Court Services Online project in 2004. The Ministry of the Attorney General in B.C. started small, merging all registeries into a single database and putting court files online. The project cost $3 million and took about a year to get the first phase — a centralized database system — off the ground.
The project now operates in every jurisdiction in the province with online search, document filing and request services. Revenue generated from the courts’ fee-forservice offerings (mostly from the eFiling division) provides some of the project’s operational funding.
Stephen McHugh, practice lead, justice and public safety at HP Consulting Services, has implemented systems like B.C.’s online service and OSCAR for jurisdictions all over the world. He says internal buy-in and strong leadership are the keys to success.
“The transformation of a court into a paperless environment changes a lot of business processes,” says McHugh. “When transforming the process, it affects everyone’s job along the way, be it a clerk, judge, lawyer or the end-user public.”
If everyone involved isn’t completely on board, he says, the project is in for a tough road ahead.
And that could be part of the problem in Ontario. Julie Weber, chair of the Ontario Public Service Employees Union for the Ministry of the Attorney General, is skeptical about the value of online services.
“I don’t think computerizing the courts is the most efficient or practical thing to do when you think of the impact on the public,” Weber says. “Right now, there’s accountability.”
Weber blames the long lineups on the economy, saying people are being overworked across the board. “Upper management will never lay itself off, and instead puts those on the bottom on the chopping block.”
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Azeff says the problem with Ontario’s courts lies with the Ministry’s staff, who he alleges cannot execute a long-term, large-scale infrastructure project. “This is a screw-up of epic proportions,” he says.
And yet, the Ministry of the Attorney General is about to try it all over again. This time with the Court Information Management System, the internal project that pushed out Court Canada’s OSCAR system. It’s due to go live in 2012.
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Azeff’s confidence wanes as he discusses the aftermath of the Court Canada debacle and the ongoing battle with the Ministry (the parties are currently in examinations and preparing for trial). He can’t hide his bitterness, and chooses his words carefully. In contrast to his suave demeanor when describing the project’s early potential, he now looks weak and beaten down. “It was a project that I ate, slept and drank for years, and then it was just over.”
He had to make some hard choices. “Everyone was enthusiastic. We were friends. Then this happened and morale went through the floor.” Azeff looks away as he describes the day he had to deliver the news to 15 employees.
“Laying them off was the worst day of my professional career.”
With most of his staff gone, he remains chairman, but has little to do with the operations. Wanting to get away from the “Bay Street bullshit,” he took a job as a corporate lawyer with Pallett Valo LLP in Mississauga.
He’s now faced with the same problems in his day-to-day law practice as he was a decade ago: Long wait times, no centralized database and dependency on paper. Beyond his bitterness is a genuine sense of bewilderment. “The system, it’s been done in lots of other places,” he says. “There’s nothing particularly unique about Ontario that should keep us from having it here.”
“At some point, they might just throw up their hands and say they can’t do it.”
Or maybe the third time’s the charm.
Ontario vs. B.C.
Average time it takes to schedule a motion
Cost to launch an online justice project
Cost of lawsuits incurred by online justice projects