PLTC 2013: Electronic Filing in BC: What’s New and How to Use Client-Centric Technologies to Achieve Results

ELECTRONIC FILING IN BC: WHAT’S NEW AND HOW TO USE CLIENT-CENTRIC TOOLS TO GET RESULTS

Session TBG1 (1:15 - 2:15pm)Pacific Legal Technology ConferenceOctober 4, 2013

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Speakers Grant McLaney

In-House Counsel & Manager, Real Property Support Services,Dye & Durham Corporation

Laurelly DaleIn-House Counsel & Manager, Litigation Support Services, Dye & Durham Corporation

Andrew ClarkJustice Sector Technology Consultant

Ron UsherSociety of Notaries Public BC

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Became a priority for BC’s government in 1997 Lawyers played a key role in its evolution We’ve come a long way since Torrens

“The introduction of the Torrens System was met with “often-vicious” attacks from Torrens’ opponents, many of whom were lawyers, who feared the loss of conveyancing work because of the introduction of such a relatively simple system.” - Robinson, Stanley, Transfer of Land in Victoria (1979)

History of Land E-Filing in BC

© 2013 Dye & Durham Corporation. www.dyedurhambc.com.

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In 1999, around the time the first electronic land documents were beginning to be registered in Ontario, the initiative was gaining steam in BC

1999-2003 development and design 2004 - the beginning of a phased roll out of electronic filing

In its infancy in 2004, electronic filing was limited in scope Lawyers were a driving force behind making electronic filing

a priority, and then a reality

History of Land E-Filing in BC (Cont’d)


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The LTSA was established in 2004 to assume the operation of the provincial land title and survey system

LTSA was enacted to deliver three main services: 1) Ensuring the continued integrity of BC’s system for

registering land titles and interests, 2) Maintaining the quality of BC’s land survey structure, and 3) Upon direction of the province, issuing Crown grant

documents transferring Crown land to private ownership Milestones

History of Land E-Filing in BC (Cont’d)


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In 2011, another key development occurred – mandatory electronic filing was announced by the LTSA July 1, 2011, Posting Plans must occur electronically January 16, 2012 many of the most common submissions (Transfers,

Mortgages, Charges, and Releases) were required to be filed electronically

Exemptions from mandatory e-filing May, 2012 – Phase Two

Significantly expanded the scope of documents subject to mandatory e-filing

Mandatory Land E-Filing in BC


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National Acceptance & Admissibility Historical (and current) resistance R v. Ellison [1978] B.C.J. No.

252 (Co. Ct.) “.... I ignore the impact of modern technology.” SCC transformation Binding precedents & admissibility National Agencies using electronic filing Federal Court Amendments to the CCC.

Court E-Filing & Documents


Alberta Electronic Courtroom leader. Sawridge litigations 1996. “If a paper- based trial was attempted it would require two football

stadiums full from bottom to top.”Ontario Pressure to convert & amend forms. Wallbridge, re 2010 ONSC 3409. Orders made sharing costs of scanning and coding in large cases. Baker. Nova Scotia Charter challenge to higher fees Pleau v. Nova Scotia 43 CPC (4th) 2011.

Outlying Provinces & Their Impact on BC

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PLTC Nov. 7th 2003 Vision into the future. Bilinsky & Williamson: Adobe Acrobat = new platform for

electronic documents. CSO 1997 initiation. Launched 2004. File & Search capabilities available at 43 locations in BC. Statutory filing fee(s) Scanning documents for submission = PDF; 8MB; DPI resolution (300DPI or lower);

portrait; not landscape. 30 days Courtesy Correct v. Rejected “RUSH” Turn-Around Times

COURT E-FILING IN BC- Refresher


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Legislative Amendments BC Supreme Court Civil Rules 23-3 BC Supreme Court Family Rules 22-4 (12) Electronic Signature Authentication BC Court of Appeal Rules 54.1 BC Small Claims Court Rules 22. New Family Law Act, S.B.C. [2011] Chapter 25. Rule 22.

*Note* electronic filing permitted but not practically available to public.

COURT E-FILING IN BC- Refresher (Cont’d.)


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Dye & Durham’s


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Disciplinary matter involving lawyers e-filing Williams (Re), 2010 LSBC 31 – re: affixing electronic signature

without proper supporting documentation Agreed relatively recent phenomenon being considered at such a hearing

for the first time “Given the importance of the role played by lawyers who act as officers,

conduct related to the electronic submission of improperly executed documents must be viewed as serious.”

Law Society of Upper Canada v. Baksh [2012] L.S.D.D. No. 73 real estate lawyer allowed his assistant to use his own password-protected

system access diskette without any meaningful supervision – disbarred

Land E-Filing Case Law in Canada


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Case law Keatley Surveying LTD v Teranet Inc 2012 ONSC 7120

Copyright case – surveys agreed to constitute “artistic works” under Ontario’s Copyright Act – however, when individual plans of survey were deposited in land registry offices, copyright transferred to the Crown by operation of the Act, and converting to PDF/TIFF not “translating” artistic works under the Act

Petroff Partnership Architects v. Mobius Corp. [2003] O.J. No. 2434 An electronic statement to support a lien filing, though lesser in substance than

the sworn affidavit of verification required under Ontario’s Construction Lien Act was in a format approved by the Director of Titles under the Land Titles Act and was thus deemed to be sufficient

The court dismissed the motion to vacate and discharge the lien

Land E-Filing Case Law in Canada (Cont’d)


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Very few legal challenges to the sanctity of the electronic land filing systems – most challenges peripheral in nature

Lawyers taking shortcuts by not reviewing originally executed copies of documents, or permitting their staff to affix electronic signatures, are being enforced and punished

Judiciary has upheld electronic filing standards set by Directors of Land Titles pursuant to the enabling legislation, and discouraged actions calling into question electronic service delivery methods

Future challenges likely to be limited in number

Land E-Filing Case Law in Canada (Cont’d)


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Allowable Disbursement Van Daele v. Van Daele 56 BCLR 178 (BCCA): “not being extravagant,

negligent, mistaken or a result of excessive caution or excessive zeal.”

Electronic Filing Not Mandatory, But When It IS: $7.00 CSO filing fees allowed at cost hearing Milkovic v. ICBC 2010

BCSC 1567. Gill v. Widjaja [2012] BCWLD 4545: “...until such time as a practice

direction is issued requiring electronic filing, ....agent’s filing fees, when incurred, is a proper disbursement.” HOWEVER, “the least expensive approach to litigation” should apply.

COURT E-FILING IN BC CASE LAW - Costs

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“Electronic Filing Cabinet” New disclosure abolishes Peruvian Guano test, outlined in

More Marine Ltd. v. Alcan Inc., 2010 BCSC 593 [In Chambers]; however, the production of hundreds or thousands of text messages may not pass relevancy test for admissibility.

1,500 tweets/texts/facebook messages= do they pass the relevancy test for admissibility? Must also be cost effective.

COURT E-FILING IN BC CASE LAW - Costs & Production

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Statistics 89.2% of land title document registrations have been

submitted electronically, which is up from 66.6% (or, 3.5 million electronic transactions) last year

5.3 days average turnaround time for land title documents and survey plans

Crown land survey plans had an average processing time of 8.1 days for Land Act survey confirmations.

Crown grant documents were issued with an average turnaround time of 3.5 days

What’s New with Land E-Filing?


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Authorized Subscriber Registry ParcelMap BC Other

What’s New with Land E-Filing? (Cont’d)


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Modernizing with the industry Expertise Accounting Error reduction Helping you adapt Value

The Role of the Land Registry Agent


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Land E-filing: the present and future Lawyers’ role Deference from judiciary Agents’ role

Summary


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LD’s Conclusion Virtual Registry is not a practical reality in the near future; however, electronic

filing will become the majority within 5-8 years. Following needs to occur: Electronic Document Management in Firms Funding & Resources. Provincial Family law forms. Commitment to bringing more than 50%

of profession onto electronic filing. Amendments to archaic forms Investigate Alberta’s lead and consider cost consequences for upgrades to electronic

courtrooms. Should electronic courtrooms become a reality, bound documents could be uploaded digitally and eliminate the need for binders.

Criminal & Civil “mega-trials”. Disclosure obligations met by uploading ESI to secure website. Increased references from the bench regarding electronic filing and cost savings. Rules of evidence must continue to evolve.

FUTURE OF THE VIRTUAL REGISTRY IN BC

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E-Filing: What’s Your Role?

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Questions & Answers

Education

PLTC 2013: Electronic Filing in BC: What’s New and How to Use Client-Centric Technologies to Achieve Results