pltc 2013: electronic filing in bc: what’s new and how to use client-centric technologies to...
TRANSCRIPT
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
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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
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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