The Technology of Centralized Legal Research Can Solve the Unaffordable Legal Services Problem
2014/10/17 16:46:34 点击率[782] 评论[0]
    【中文关键字】实现司法正义;法律研究集中化;法律研究;支持服务;法律服务;法律服务昂贵问题;法律援助;LAO LAW
    【英文关键字】access to justice; centralized legal research;legal research;support services;the unaffordable legal services problem;Legal Aid;LAO LAW

       1. Legal Research, Access to Justice, and the rule of law

       Legal services cannot be obtained by the majority of people of Canada at reasonable cost.[1] Canada's legal profession has priced itself beyond the majority of the population. The Supreme Court of Canada has stated that, “the rule of law demands access to the courts and thereby access to justice.”[2] Without access to the courts one cannot protect and assert one's constitutional rights and freedoms, nor can the courts perform their constitutional duty to enforce the constitution and the rule of law.[3]

       But effective access to the courts requires representation by a lawyer, and the courts cannot function effectively and efficiently without lawyers. “Being without a lawyer means being without power in our society.”[4] As stated by the Supreme Court of Canada in Christie,[5] a Canadian Charter of Rights and Freedoms s. 7 “fundamental justice” case, in an unanimous decision, the Supreme Court stated of the impact of government taxation of legal services upon access to legal services, and therefore upon the rule of law (quoting paras. 20-27):

       20  The rule of law embraces at least three principles. The first principle is that the “law is supreme over officials of the government as well as private individuals, and thereby preclusive of the influence of arbitrary power”: Reference re Manitoba Language Rights, at p. 748. The second principle “requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order”: ibid., at p. 749. The third principle requires that “the relationship between the state and the individual … be regulated by law”: Reference re Secession of Quebec, at para. 71. (See also British Columbia v. Imperial Tobacco Canada Ltd., [2005] 2 S.C.R. 473, 2005 SCC 49, at para. 58; Charkaoui [page 883] v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350, 2007 SCC 9, at para. 134.) [emphasis added]

       21  It is clear from a review of these principles that general access to legal services is not a currently recognized aspect of the rule of law. However, in Imperial Tobacco,[6] this Court left open the possibility that the rule of law may include additional principles. It is therefore necessary to determine whether general access to legal services in relation to court and tribunal proceedings dealing with rights and obligations is a fundamental aspect of the rule of law.

       22  Before examining this question, it is important to note that this Court has repeatedly emphasized the important role that lawyers play in ensuring access to justice and upholding the rule of law: Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at p. 187; MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235, at p. 1265; Fortin v. Chrétien, [2001] 2 S.C.R. 500, 2001 SCC 45, at para. 49; Law Society of British Columbia v. Mangat, [2001] 3 S.C.R. 113, 2001 SCC 67, at para. 43; Lavallee, Rackel & Heintz v. Canada (Attorney General), [2002] 3 S.C.R. 209, 2002 SCC 61, at paras. 64-68, per LeBel J. (dissenting in part but not on this point)。 This is only fitting. Lawyers are a vital conduit through which citizens access the courts, and the law. They help maintain the rule of law by working to ensure that unlawful private and unlawful state action in particular do not go unaddressed. The role that lawyers play in this regard is so important that the right to counsel in some situations has been given constitutional status. [emphasis added]

       23  The issue, however, is whether general access to legal services in relation to court and tribunal proceedings dealing with rights and obligations is a fundamental aspect of the rule of law. In our view, it is not. Access to legal services is fundamentally important in any free and democratic society. In some cases, it has been found essential to due process and a fair trial. But a review of the constitutional text, the jurisprudence and the history of the concept does not support the respondent's contention that there is a broad general right to legal counsel as an aspect of, or precondition to, the rule of law. [emphasis added]

       24  The text of the Charter negates the postulate of the general constitutional right to legal assistance contended for here. It provides for a right to legal services in one specific situation. Section 10(b) of the Charter provides that everyone has the right to retain and instruct counsel, and to be informed of that right “on arrest or detention”. If the reference to the rule of law implied the right to counsel in relation to all proceedings where rights and obligations are at stake, s. 10(b) would be redundant.

       25  Section 10(b) does not exclude a finding of a constitutional right to legal assistance in other situations. Section 7 of the Charter, for example, has been held to imply a right to counsel as an aspect of procedural fairness where life, liberty and security of the person are affected: see Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053, at p. 1077; New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46. But this does not support a general right to legal assistance whenever a matter of rights and obligations is before a court or tribunal. Thus in New Brunswick, the Court was at pains to state that the right to counsel outside of the s. 10(b) context is a case-specific multi-factored enquiry (see para. 86)。

       26  Nor has the rule of law historically been understood to encompass a general right to have a lawyer in court or tribunal proceedings affecting rights and obligations. The right to counsel was historically understood to be a limited right that extended only, if at all, to representation in the criminal context: M. Finkelstein, The Right to Counsel (1988), at pp. 1-4 to 1-6; W. S. Tarnopolsky, “The Lacuna in North American Civil Liberties -- The Right to Counsel in Canada” (1967), 17 Buff. L. Rev. 145; Comment, “An Historical Argument for the Right to Counsel During Police Interrogation” (1964), 73 Yale L.J. 1000, at p. 1018.

       27  We conclude that the text of the Constitution, the jurisprudence and the historical understanding of the rule of law do not foreclose the possibility that a right to counsel may be recognized in specific and varied situations. But at the same time, they do not support the conclusion that there is a general constitutional right to counsel in proceedings before courts and tribunals dealing with rights and obligations.  [emphasis added]

       Now, the greatest hindrance to such “access to justice” for the majority of the population is the cost of legal services. If such is not one of those Christie, “specific and varied situations,” nothing is. And, many situations requiring the help of a lawyer out of court, justify providing such legal services as a constitutional right more so than do those requiring the help of counsel in court.   “Those toward the bottom, or at the bottom, of the economic ladder are handicapped in many ways in a system of justice.”[7] In regard to the availability of legal services, it is the middle class who are now at the bottom of the economic ladder. “Those at the very bottom of the economic hierarchy often have better access to the institutions of justice than do those somewhat above them.”[8] As a result, the rich and the poor have lawyers to help them enforce their rights and freedoms and the rule of law, as guaranteed by the constitution, but the majority in the middle do not. Can such “two-tier justice” be constitutional, or is it a violation of the constitutions “fundamental justice,” “fair and pubic hearing,” and “equality rights” provisions?

       Centralized legal research (CLR) is a technology that maximizes the advantages that electronic technology can bring to legal research by using “economies of scale.” It is therefore a technology that large law offices can incorporate most easily because they can afford to employ full time research lawyers—lawyers willing to devote their careers to specializing in legal research and legal writing services. But the great majority of Canada's lawyers do not work in large law offices—the small law office is still “the backbone of the profession.”[9] Therefore an overwhelming majority of Canadians, as individuals, receive their legal services from small law offices—the gatekeepers of access to justice for that majority, if not for all Canadians.

       Nevertheless, CLR methods can greatly reduce the costs and improve the quality of legal research in all law offices; not just the big ones. It takes a little more time for the small firm, but the small firm is a more flexible and adaptive organization than is the large firm. CLR is also a safer way of doing legal research by greatly reducing the possibility of making mistakes. It can produce legal writing of all kinds and of a higher quality, and produce a database that is a mirror image of the firm's practice areas. Imagine having a database of legal materials that provides relevant material on any point of law in the area of law a lawyer practices in, every time that lawyer consults that database. That is possible for a medium sized law office within a few years of its beginning to use CLR methods. The more research, the sooner the firm has that high quality database, and the sooner that database is the firm's most valuable property asset. Convenience maximizes usage—legal “fast food.”  The larger the firm, the more quickly the resulting database grows in size, use, and value, if CLR principles and methods are applied. But, the larger the firm, the greater is the challenge to enforce adherence to the 12 principles of CLR[10] by the firm's lawyers. As proven by its use within Legal Aid Ontario since 1979 for the benefit of many thousands of Ontario lawyers, CLR is a proven technology in practice, and not merely a promising theory or experiment yet to be tested on the “factory floor” of private practice.

       Good legal research is the basis of all high quality legal services. Its cost is an important part of all legal services, and reducing that cost is critical to a fair and adequate “access to justice” for all persons requiring legal services. The willingness and ability of the legal profession to reduce the cost of legal research services while providing high quality legal research products is critical to the continued justification of the legal profession's monopoly over the provision of legal services. Cost-efficiency is as important to good lawyering as competence and ethics.[11] Otherwise, other professional and semi-professional groups who make a more cost-efficient use of electronic technology will have a stronger argument that the legal profession's monopoly should be somewhat reduced—already an on-going process that has produced significant inroads to what used to be exclusively the practice of lawyers.[12] But the cost-efficiency of legal research is not currently relevant to competition among law firms. If it were, legal research lawyers would be at the top of the legal profession. And the databases they could build of legal writings of all types would provide the foundation of law firm “succession plans”[13]—lawyers may leave, but they would leave behind their “know-how” and legal writing “work product” in that database built by the research practice group. Advertise that database and the firm's CLR methods, and clients won't be so ready to leave with those lawyers.

       CLR started on July 3, 1979, and developed through a trial-and-error process of innovation in a Legal Aid office in Toronto. That day I joined the Ontario Legal Aid Plan (now Legal Aid Ontario (LAO)) as the first Director of Research of its Research Facility (now LAOLAW), which is a centralized legal research for Ontario lawyers who take Legal Aid cases. Why was it not developed in a large, corporate-commercial law office where the best legal talent is to be found, working very long hours, and where the compensation and other rewards of the practice of law are much greater, and stimulated by a more competitive career-orientation? The economic forces of market place competition are significantly blunted by the legal profession's monopoly. In contrast, the political forces brought to bear upon Legal Aid Ontario have caused it to make a more sophisticated use of electronic technology than exists within private practice. Legal Aid practice today is, “lean and mean,” not only in the application of its tariff of very modest fees,[14] but also in its imposition of common systems upon the practice of law. “Big case management” at Legal Aid Ontario means a lawyer negotiates an allowable number of hours of preparation, and must submit detailed budgets before the preliminary inquiry begins, and then again before trial. Pretrial motions must be approved. Out-of-town representation is restricted to clients from the lawyer's area who are charged with having committed an offence in the other municipality. Otherwise, local counsel must be used so as to eliminate travel and accommodation expenses. All such negotiations, budgeting, and written submissions are carried out as unbillable time.[15]

       Legal Aid administration now reflects the “cult of efficiency” that has taken hold at all levels of government in Canada.[16] The phrase, “cult of efficiency,” comes from the book of that title by Professor Janice Gross Stein of the University of Toronto[17],[18], The theme of Professor Stein's book is that when efficiency in a government's provision of public goods and services,[19] such as health care, education, roads, and police services, to citizens in a democratic society, is taken to mean exclusively “cost containment,” to the exclusion of all other values such as the effectiveness and quality of those public goods and services, efficiency has become a cult. Such a narrow interpretation of efficiency takes no account of other causes and effects such as the needs of an aging society, and of ever-changing and improving technology. Such application of efficiency to mean “cost containment” only, excludes any possibility of effective reform of the health care system, or of any other system providing public goods or services. Efficiency alone is not enough to give us what we think we want. Schools are closed, hospitals are reorganized in the name of efficiency, but the results are far from what citizens desire. Professor Stein argues that the public good demands that we go beyond the cult of efficiency to talk about accountability and choice. As examples she examines public education and universal health care in Canada, arguing that the future depends on whether citizens can establish new standards of accountability and choice for public services. She argues that a new culture of choice must become the axis around which public debate about public goods and services will take place.

       Closely related ideas are presented in the seminal work, Access To Justice For A New Century—The Way Forward, published by the Law Society of Upper Canada in 2005.[20] It contains an article by Professor Stein and Adam Cook entitled, “Speaking the Language of Justice: A New Legal Vernacular.”[21] Its theme is the importance of “access to justice” for the common citizen in order to effectively participate in a democratic society, and the importance of a common legal vernacular in achieving such access to justice. And several of the other articles deal with legal aid in Canada, and the succession of meanings and strategies employed to bring about “access to justice.”

       Private practice, not being a government agency, does not suffer the “cult of efficiency,” but its professional monopoly over the provision of legal services may insulate it from having to convert to the more cost-efficient systems administration that electronic technology can bring. Legal research is not only a good example, but also an essential example. The traditional method is a variety of hand craftsmanship, or “cottage industry,” completely devoid of, and resistant to any centralizing, automating, standardizing, or streamlining forces. As a result, the application of electronic technology to legal research in private practice has gone no further than to speed up traditional methods of searching for legal materials. In comparison, in the wider world of information and records management—and that is what legal research is, a specialty thereof—electronic technology has fundamentally changed not only the basic concepts by which accurate records are produced, but also the legal concepts that determine the admissibility of electronic records as evidence.[22] And in the world of science there are now many examples of computing power being augmented by “cluster technology”[23] to many higher orders, such that not only are the methods of scientific observation and investigation changed, but also the science to which it is applied is moved to a different conceptual level.[24] What would be legal research's counterpart of such a transformation?

       If there were such a statute (or law society regulation) written before the advent of electronic technology that described the methods of doing legal research, it would still serve as an adequate description of legal research methods used today. The legal profession applies electronic technology to legal research in private practice in order to achieve nothing more than faster ways of doing research by traditional methods. The difference is the same as the difference between the legal test in “business record” provisions of the Evidence Acts: “the usual and ordinary course of business;”[25] and the legal test in the recently enacted electronic record provisions: “the integrity of the electronic record system in which the electronic record is recorded or stored.” The first fastens upon the individual record and its continuity of preservation until used as evidence; the second looks to the “integrity” of the entire electronic records system that the electronic record comes from. The first is a subjective test—subjective to the state (good or bad) of whatever in fact is “the usual and ordinary course of business” of the particular business's records and information management. The second is an objective test, measurable by its compliance with National Standards of Canada and international standards of electronic records management.[26] Therefore clearly lawyers can draft and apply statutes reflecting the great conceptual and systemic changes brought to records and information management by electronic technology, but they have not yet considered the need for similar changes to their own systems of doing legal research.

       Compare these Evidence Act tests to the state of legal research. Like the “business record” provisions, each legal research project stands on its own, like each business record completely independent of the state of other records. One need merely prove that the business record was made “in the usual and ordinary course of business,” and bring along the original record to court (in case it is challenged under the best evidence rule) and the record will be admitted into evidence. Similarly with legal research. One starts each research project from the beginning—from primary sources of statutes and case law—independent of any system of legal research that could make available secondary sources—such as completed articles and pleadings that have been subjected to a rigorous quality control system—as a cost-saving starting point for one's research. It is an unsafe system wherein the researcher is completely reliant upon one's own resources. The researcher begins “at a low point of knowledge” as to the issues to be researched, and in that state is vulnerable to all the defects and weaknesses of law book indexing. One's online searching must be similarly vulnerable—curable only by repeated searches as one's knowledge of the subject grows, as do the costs of doing research that way. And when the researcher's project is finished, and the memorandum, legal opinion, or pleadings finished, the researcher should index it so as to maximize its availability for future files and researchers in the firm. And the database should be purged of writings superseded by the new addition. That doesn't happen because there is no system, and therefore no quality control program. Yet legal research is a variety of records and information management. The National Standards of Canada concerning records management systems[27] could well be applied to legal research. The benefits of traditionally done legal research are applied only to the file for which it is done. But in a legal research system managed as an ERMS (electronic records management system), they are available to every lawyer by accessing the office database. And they will be updated as a required function of every research project dealing with related issues. The updating  is done by means of the indexing of each addition to the database, which includes purging the indexing of thereby superseded texts.

       But the tests for admissible business records are in fact more rigorous than they are for doing legal research. If a business record is an electronic record, then it must also satisfy the electronic record provisions as well as the business record provisions of the Evidence Acts. The electronic record provisions impose a “system integrity test,” for which there is no counterpart in the doing of legal research as traditionally done, there being no system, merely a researcher for each research project. The “system integrity test” states that the best evidence rule is satisfied by proof of the integrity of the electronic record system in which the electronic record in question is recorded or stored. This “system integrity test” is a recognition that electronic records are dependent for their reliability, not upon their own separate existence, but upon the reliability (“integrity”) of the whole electronic record system from which they come. What is the counterpart in traditionally-done legal research? There is none, other than the quality of the work of each individual researcher. There being no system, legal research is very expensive—much more expensive than it should be. There being no system, there are no system economics and financial methods of appraisal by which to measure the cost-effectiveness of any firm's research practice group that does legal research in the traditional way. Not being able to demonstrate one's cost-effectiveness, including the ability to produce a profit, undermines one's standing in any economically-driven organization.[28]

       That is exactly how I approached the problem as the first Director of Research of the Research Facility[29] at Legal Aid Ontario,[30] beginning on July 3, 1979. Legal research had to pay for itself such that the cost-saving it produced for Legal Aid at least equalled the Research Facility's budget. But first, a centralized legal research system capable of producing thousands of file-specific, tailor-made legal memoranda per year had to be designed. And, use of such research services by Ontario lawyers providing service to clients on Legal Aid certificates had to be voluntary. In 1979, Legal Aid had “systems problems,” slowness of payments on billings being the most sensitive. Therefore the announcement that Legal Aid would be providing legal research services was greeted with some skepticism. The public relations challenge was therefore as large and critical as the technical and financial challenges. What happened—the Research Facility still exists, more than 30 years later, and operates upon the same basic system principles of CLR upon which it was initiated and grew. Most important of all, it turns out more than twice the volume of research memoranda, and other legal writings, but uses a smaller staff. The reason is the size and quality of the database produced by CLR, “the technology of centralized legal research.”

       Legal Aid Ontario (LAO) not only uses CLR in relation to providing legal research services to lawyers who provide legal services funded by Legal Aid Ontario by means of Legal Aid certificates, it is also used to provide research services to the cluster of areas of practice referred to as the “welfare law” subjects serviced by community legal clinics. Those practice areas include, landlord and tenant, worker's compensation, immigration and refugee law, welfare law, “law and the elderly,” aboriginal legal services, the disabled, and some provide a broad range of legal services to local low income residents.[31] The Clinic Funding branch of LAO regulates and funds such community legal clinics. They are initiated at the local level by a large variety of community groups that wish to provide legal services to one or more of these social welfare areas of legal practice. The clinics do not wish to do criminal or family law, those practice areas being left to lawyers in private law offices. The clinics are also a variety of private practice for they are sponsored by local community groups that intend that their legal clinics remain independent of, and not be a division of LAO. In exchange for accepting some regulation from LAO, clinics receive funding negotiated yearly with the clinics as a group. Most notable is the provision of legal research services through a CLR unit. Such legal clinics in Ontario constitute the largest chain of law offices in Canada, although they truly are not a “chain” in that each is sponsored independently and remains independent of all other clinics. Therefore the analogy to franchising is not completely accurate, for although LAO provides centralized regulation, it is not so great as to impinge upon the independent practice of law and the sense of independent ownership and operation that each clinic resolutely preserves. However, because of the dramatic cost-savings generated by the economies of scale inherent within CLR principles and procedures, the CLR unit used by the community legal clinics should be the same one that provides legal research services to lawyers in private practice servicing clients on Legal Aid certificates. Otherwise, the duplication is very wasteful. The same applies to the much larger world of private practice as a whole.

       No matter how independent the branch offices or head office of any group of lawyers might be, for purposes of legal research services, is this not a model for the application of CLR to any chain of government law offices, network of boutique law firms, or national or international law firm? And, for smaller law offices, a CLR industry might be encouraged by law societies to arise, for otherwise other agencies will “occupy the field.” Is not the lawyer's practice domain shrinking in a number of areas? Challenging the lawyers' monopoly over the provision of legal services is not new; but using electronic technology to do so is.[32]

       Therefore CLR should be provided to lawyers by their law societies just as many other “members services” are provided by law societies. Consider that if this proposition were not workable, the Research Facility within Legal Aid Ontario would not continue to flourish as one of its most successful ventures since July, 1979. At that time, Legal Aid was owned and operated by the province of Ontario's Law Society of Upper Canada.[33] All objections are answered by the fact that most of every legal research project concerns dredging up standard, “boilerplate” propositions of law, and putting them into a useful form of legal writing such as a memorandum, opinion, or draft pleading. Confidentiality is not needed to do this work, and such work constitutes the great majority of time taken by each legal research project. Only at the final stage, when strategies and arguments are finalized is confidentiality among competing lawyers needed. Therefore if a centralized legal research unit is given that pre-confidentiality stage work to do, it can become very expert in doing it. That unit can apply a “systems approach” to producing such legal writings. It can centralize and automate production, and specialize its staff among the various areas of law it services. That is exactly what the Research Facility's system is—a system that maximizes the application of electronic technology and lawyer talent to the doing of legal research. The database it generates by reason of the economies of scale achieved by way of the volume of research work it does, drastically drives down the cost of doing legal research, and makes each project much less at risk of error than is possible using traditional methods of legal research.

       2. A Definition of Centralized Legal Research (CLR)

       CLR is the doing of legal research by means of a single, centralized database of electronically stored legal materials developed within the law office. The technology of centralized legal research is that used to operate a centralized legal research unit staffed by one or more research lawyers who specialize in the special skills of legal research. In addition to writing skills that make one's finished work highly re-usable, those skills include, indexing, on-line and manual research, database management, specialized knowledge of particular areas of the law, and knowledge of how to use the software related to these skills. A sole practitioner can use CLR to build a database of research materials that will allow legal research services to earn a profit, and not remain as an overhead cost that never pays for itself. Electronic technology has made research of all types more a career specialty than it was before computers.

       3. A Brief History of CLR—from Legal Aid to Law Firm “Siloing”

       CLR was developed while I was the first Director of Research at the Research Facility of Legal Aid Ontario from July 1979, to September 1988. (The Research Facility is now called “LAO LAW”; see its website at: I was a Law Society of Upper Canada (LSUC) employee at the Ontario Legal Aid Plan (OLAP is now Legal Aid Ontario (LAO), and is no longer owned or operated by the LSUC)。 I had a staff of 25 people, 16 of whom were research lawyers. The Research Facility was created firstly to improve the quality of legal services provided by Legal Aid certificates. Secondly, there was a desire to reduce the costs of legal research being billed on Legal Aid certificates. The Research Facility was therefore started with a “quality of service and cost reduction” mandate. But how to get lawyers to accept legal research memoranda prepared outside their own law offices? I had to develop a reputation for high quality research and a practice of usage that would overcome the deeply entrenched tradition that dictates that, “a good lawyer does his own research, or at least has it done within his own control.” About 90% of the cases in the criminal courts, excluding the motor vehicles offences, were serviced on Legal Aid certificates, as well as a large portion of the family law work. Making more difficult my credibility or “marketing” problem was not only Legal Aid's low tariff of fees, but also the slowness of the payment of accounts at that time. Therefore the problem of convincing Ontario lawyers that they should rely upon a unit within Legal Aid to do their legal research was a complex and very challenging project. LAO was proposing to provide the most important of legal services—legal research—at a time when its administration could not produce a timely payment of accounts from a very modest tariff. I therefore had a very challenging “marketing” and public relations problem.

       The technical challenge was to create a centralized legal research unit which, by its ninth year, would be providing close to 5,000 complete legal opinions per year. In 1979 word-processing had barely begun—it was but a minor “add-on” to “number-crunching” computers. Computers were invented for the scientific community and not for word-based disciplines and professions such as law and lawyers. Therefore the development of word-processing, file management, and database software was hindered by that “scientific” history.[34] Electronic technology for the individual user was a choice between a scientist's computer and the “dedicated word processor”—the creation of AES Canada Ltd., a company whose products I therefore purchased. In September of 1979, IBM's and Wang's word-processing programs allowed a screen to display only three lines. One created or edited them, then brought forward the next three lines. The centralized computer network that enabled all terminals within the Research Facility at LAO to operate from a common database was the first such local area network that AES installed in Canada. Therefore they flew special personnel from Montreal to Toronto to make sure they got it “up and running” smoothly. At that time AES claimed to have 60% of the Canadian word-processing market, therefore such “firsts” were an important achievement.

       An even more formidable obstacle to the Research Facility's development was the concern of female lawyers, and some male lawyers as well, that in being asked by me to use a computer terminal instead of handwriting or dictating their work to a stenographer-typist, they were on a slippery slope towards becoming mere secretaries or other variety of clerical support staff. Professional dignity then required that one dictate one's work-product into a Dictaphone and have clerical support. In the 1970's, few law school graduates knew how to type. I solved this problem by asking my best two researchers, who happened to be women, to “lead by example” by doing all of their work on a computer terminal, thus dispensing with reliance upon clerical support staff. The rest of the research staff soon followed so as not to be left behind. Most of the lawyers I hired learned to type at the Research Facility. I provided a book of typing exercises and asked each new researcher to spend at least a half hour per day doing its typing drills. Invariably, after 30 days the typing skill achieved allowed productivity to be as great as “before typing,” (now called “keyboarding”) and after 60 days none wished to go back to dictating or handwriting their work. This in-house training régime would not be necessary today for everybody learns such “keyboarding” skills usually as children, and definitely long before law school. Such attitudes against using electronic technology seem laughable now, but in the early years of the Research Facility they created significant resistance to having all research lawyers in the Research Facility work directly on a computer terminal.

       In contrast to those attitudes, I planned to create an automated legal research service wherein everyone worked on a computer terminal and no one had any clerical support, not even I, the Director of Research of the Research Facility. I had learned to type in high school, therefore I have never needed clerical support to create printed versions of my work. All legal memoranda and related writings would begin and live out their whole existence within the Research Facility's common database.[35] What clerical staff there would be would have their own independent functions, such as filling requests for standard research memoranda that did not require lawyer's work, because they could be printed out from the existing database on direction by the legal staff. My core or foundation idea I summed up in the words, “all power to the database,” because that phrase summarized the strategy and tactics required by the 12 principles of CLR (discovered by trial and error—about ten “trials” for every success)。 Also, in less than a year after I began the Research Facility, Legal Aid's costs had become the main concern of government and of the Law Society's Legal Aid Committee, including the cost of the Research Facility itself. Therefore in less than a year, some members of the Legal Aid Committee were saying that the Research Facility was, “a Cadillac operation in a Volkswagen organization.” “Volkswagen” then meant “the Volkswagen beadle” (“bug” is some countries), not VW's current, more expensive products. Thus the Research Facility's original “cost mandate” was turning against the Research Facility itself.

       That attitude must have become more general, for when the Law Society had to surrender the management of Legal Aid on April 1, 1999, it retained nothing of, or any relation to the Research Facility's technology or resources, particularly its very valuable and sophisticated database of legal writings and developed technology of centralized legal research. It could be used in aid of pro bono work and continuing legal education seminars and conferences, and providing legal information to the public—all three being important and never-ending obligations of all law societies in Canada. The database could have been made available to the Great Library, the Law Society's law library at Osgoode Hall, its headquarters, and would have quickly become its single most useful resource in relation to Canadian law. Good records systems are essential to good business operation, but few lawyers, and no law societies, realize that their legal research should be part of an ERMS (electronic records management system)。

       When I became the Research Facility's first Director of Research I did not yet fully understand how large would be the technical, personnel management, and public relations problems. I would be facing then with nothing but my legal training and experience as a litigation lawyer who liked doing legal writing and research. I was not adequately trained for the job, but neither was any other lawyer who applied to be the first Director of Research of the Ontario Legal Aid Plan's Research Facility. I was picked because I had published a large number of legal articles, was known among criminal lawyers for my knowledge of case law, and had considerable courtroom experience by the spring of 1979 when the selection for Director of Research was made.

       Nevertheless, by September 1988 when I left after nine years of intense development, the Research Facility was supplying file-specific research memoranda (legal opinions) for close to 5,000 individual requests per year from Ontario lawyers for research using CLR. The key correct decision I had made was to begin providing legal research services immediately. CLR had to be developed by trial and error, a very time-consuming process. I began building the Research Facility's database and reputation from July 3, 1979, my first day of employment, and even before I had computers, which arrived in the fall in the form of AES' “dedicated word processors.” Now, due to more than 35 years' of development of its database, a smaller staff at LAO LAW is able to satisfy over 10,000 such requests from Ontario lawyers for file-specific research and memoranda of law. However, it emphasizes its vast database of “downloadable” memoranda and draft pleadings more so than its legal opinions service., most likely because of its smaller staff and the funding cuts that LAO has had to endure. LAO LAW's current situation is not what mine was. I was required to develop a large cost-saving for LAO in providing legal research services for legal aid clients far more efficiently than practicing lawyers can do for themselves, so that they won't have to bill LAO for research hours of their own, or I was out of a job, and my staff with me. As a result of that great pressure, LAO LAW soon became a very successful operation and continues to be very well respected and successful; see the evaluation report: Report on the Findings of the Legal Aid Ontario Research Facility Survey, November 2001, available from:[36]

       In 1990 I attempted to take CLR to a corporate-commercial law firm. One would think that CLR would be even more successful there for it would lower the costs of legal research even more dramatically there, in the more aggressive private sector, than it could in a social welfare agency such as Legal Aid. CLR can make legal research cease to be a traditional overhead expense and instead produce a profit by itself. But in fact, the economics of legal research if traditionally done, not only often requires that all hours spent doing it not be billed out because the way it is done does not lend itself to making a profit, but also do not favour rapid advancement for the career research lawyer. Given the importance of legal research to good legal services, the opposite should be the case.

       If nevertheless CLR failed in a large law firm, in that more aggressively commercial world of large national and international law firms having greater resources and legal talent, I knew the reasons why it would fail before I went there—“silo-ing”.[37] Siloing means inter alia, that each legal practice group within a law firm acts like a separate law firm—self-contained, and almost completely self-sufficient. It protects its territory and will not share its memoranda or other research work, and insists on building its own database and research services so as to maximize control of them, rather than reducing the cost of producing them and applying electronic technology to improve quality assurance in their production. As a result, the necessary database and research skills and services never develop, and for the same reasons that create siloing. If the economic parameters in which a research lawyer works cannot demonstrate a profit, can heshe expect to become a senior or managing partner quickly by remaining purely a research lawyer? Yet, all legal services that provide legal advice are dependent upon good legal research. If that paradigm prevailed, research lawyers should be at the top of the legal profession. But they are not. Therefore legal research suffers from unnecessarily high costs, and therefore so do all legal services that are based upon legal research, and with them, that most sensitive of public issues, “access to justice.”[38]

       Ironically therefore, an invention like CLR happened in a social welfare agency like Legal Aid Ontario (LAO), instead of in a market-oriented, adversarial and competitive, large private law firm. Because it can pass its research costs on to its clients, the legal profession does not develop such technology—the necessary degree of pressure isn't there to make it happen. LAO passes its legal research costs on to the taxpayer. It is therefore subject to the scrutiny of the political process. Therefore CLR developed where the taxpayer has control, albeit indirect control through elected officials, and not where law firms have control. But in truth, the fact that CLR was an innovation of the social welfare world of Legal Aid rather than in the free enterprise world of private law firms was incidental, not consequential—definitely not the inevitable consequence of social welfare legal services and the practice of law. Taxpayers have control of LAO as well as pay for it. Clients pay for law firms and their legal services, but they don't have marketplace control of either, as shown by the high cost of legal services, which are unaffordable to the majority of the population. Legal research in private practice therefore remains a legal service that never pays for itself, even though it is the basis of all competent legal services and efficient law practice. Therefore it remains as a “handcraftsman's,” “cottage industry” form of production.

       Whereas, no doctor's office provides all medical treatments for all of its patients, law offices provide all legal services for their clients. The medical profession uses a support-services method of production; the legal profession uses a “hand-craftsmen's” method. Each part of the medical infrastructure of treatments and services is a support-service for all other parts. But law firms share nothing. Support-services methods provide a much greater cost-efficiency of production than is possible by using a handcraftsman's method. Therefore the legal profession has the current “unaffordable legal services problem” which means that it has priced itself beyond what the majority of population can afford to pay for legal services. Law firms are very short of clients and the legal profession is shrinking. And, the legal profession will never be able to solve the problem if it does not move from its handcraftsman's method to a support-services method of providing legal services. Because I had to solve the exact same problem of “unaffordable legal services,” in a smaller version, I know its exact cause and necessary solution. But all others who have made recommendations as to solving the problem have not had the same opportunity of putting their recommendations into effect, learning from the consequences by way of an extended period of trial-and-error until the problem is understood well enough to know its true cause and necessary solution.

       As I was told when hired in April 1979, the Research Facility (now LAO LAW) was the consequence of the Attorney General of Ontario's demand that LAO stop paying out such large amounts on lawyers' accounts for legal research hours claimed. That did not mean that CLR is more likely to be successful in a Legal Aid office than in a private law firm. Economic forces can be as important and powerful as the political forces brought to bear upon Legal Aid, and economic forces should make more likely CLR's continued existence and success in the private sector, once established, than in the public sector of the economy. Law firms can pay professional-level salaries. LAO, as it was then, could not. Then why did LAO LAW not happen in a law firm? The answer is pressure; there wasn't sufficient pressure to make it happen, as there was upon me to make it happen—the kind of pressure that causes fear. Or, for a conservative institution like a law society, there wasn't then the degree of pressure that causes greater fear of the consequences of not changing to be greater than the fear of the consequences of changing, i.e., fear of the consequences of a failed innovation. And even now, the law societies project the appearance of not feeling sufficient pressure to initiate programs of innovation. Therefore nothing has changed, and won't change until the threat of government pressure is perceived to be imminent.

       The answer lies in the difficulty of getting CLR “once established.” Although big law firms can reap greater rewards sooner than smaller firms from CLR because their greater volume of legal research and legal writing can generate a large, re-usable database more quickly, large firms can be harder to change and can resist change more effectively. The practice group silos will “silo” themselves against having to contribute to, or be dependent upon a single common database operated by the firm's research practice group—favourable and supportive “lip service” paid to CLR notwithstanding. As a result, such large law firms are collectivities of small law firms called “practice groups.” The research lawyers in a large law firm therefore cannot successfully introduce CLR methods without strong supporting authority from senior management to enforce a firm-wide application of its principles. In turn, the research practice group should document in detail, “from day one,” the improvements in legal research services created by CLR, such as, lowering costs, increased productivity and safety against mistakes, and satisfaction as expressed by the lawyers in the other practice groups who receive legal research and writing services from the research practice group. CLR brings its own “quality assurance program,” and will enable legal research to generate a steadily increasing profit—as should be shown by the financial statements of the research practice group.

       Competition among law firms based upon the legal research and legal writing databases generated by such lawyers would follow. For example, Legal Aid Ontario advertised to the public the research services provided in its early years by its Research Facility to lawyers who take Legal Aid cases—a service that began in 1979, and developed to become the technology of centralized legal research (CLR)。 And as recently as 2007, LAO LAW (the new name for the Research Facility) advertised its research services weekly in the Ontario Reports, which every Ontario lawyer receives. Those advertisements reminded “legal aid certificate lawyers” of the high quality, online research services available to them.[39] Why is there no counterpart in private practice? Why aren't law firms able to tell their clients of the cost-effectiveness of their legal research services as an important way of reducing client-costs and thereby increasing “access to justice” for the average person? Telling clients that the bulk of the firm's legal research is done by its law students or paralegals is anything but effective advertising. The medical profession wouldn't announce that an equally important foundation service, the work of the family doctor, would now be done by medical students so as to cut costs.

       Therefore, the political process has been more effective in bringing cost-efficient legal research methods to the clients of Legal Aid Ontario, than have the market forces the legal profession has allowed to control comparable services brought to its clients.[40] Professional monopolies can ensure high quality professional services delivered with high integrity. But such monopolies can also act as “firewalls against change.” But only because there was sufficient pressure to make it happen, LAO LAW originated in the worst possible place in the legal profession, having the poorest salaries and opportunities for career development for lawyers. A career-oriented lawyer is not going to learn anything and Legal Aid Ontario that can be taken to any other part of the legal profession.

       4. The three stages of CLR—its development and application at Legal Aid Ontario

       The first three stages of CLR are based upon the principle that maximizing re-use of previously created work-product maximizes cost-efficiency. The greater the volume re-used, the greater is the cost-efficiency which means the lower the price at which one's product can be marketed. Fourth stage advancements can be developed in cumulative stages, each being a necessary condition-precedent to the next. The following descriptions of the three stages of CLR can serve as a plan for introducing its methods.

       1st stage of CLR: building a database of file-specific but highly re-useable memoranda of law

       - Building a CLR database using the 12 basic principles of CLR (listed below in section 6, “The Principles of CLR”;

       - Use of career-oriented research lawyers, or at least lawyers willing to use CLR methods and develop their research skills to be as important a part of their professional know-how as any of their professional skills;

       - Create a complete legal opinion service so as to illuminate the need of client-lawyers to do their own research, and make them totally dependent so as to displace their research skills with yours.

       2nd stage of CLR: standard memoranda of law for “high volume issues”

       - Compose standard legal memoranda on “high volume” issues on frequently requested subjects, keeping them up-to-date to today, so as to reduce the time and cost of servicing file-specific research needs;

       - Catalogue the standard memoranda for sale and advertise the catalogue, and make bulk-sales agreements (for various sections of the catalogue) with institutions such as prosecutor's and legal aid offices;

       - Begin to collect other forms of legal writing, such as pleadings of various kinds;

       - Apply specialized principles of database management, particularly, (1) the indexing of all finished work-product, thus creating a separate database of index strings (each index string can end with the name of the file for which the text was created, and the date of its creation, so that the indexing reveals the age of the text); and, (2) purging the database of superseded materials as new materials are created from them, thus rendering them no longer needed (the texts don't have to be deleted, just their index strings; therefore the texts remain if needed; indexing and purging should be done at the moment when each text is in final form—the “high point of knowledge” about its content, indexing, and purging of used materials.

       3rd stage of CLR: collecting pleadings, then writing pleadings

       - Developing standardized collections of pleadings and other highly used materials, and a catalogue of such, comparable to that developed for the standardized legal memoranda; at first this is a “clearing house” service dependent upon collecting, indexing, and cataloguing the pleadings etc., written by lawyers and other outside sources, if available;

       - Then, a service to write pleadings within the CLR unit itself can be developed;

       - A “mentoring service” has been started whereby questions are submitted to the CLR unit and the inquiring lawyer, (upon signing an agreement as to the terms of service) is put in touch with a senior practitioner in the relevant area of practice.[41]

       5. Centralized Legal Research—the Main Issues that define CLR as an ERMS (an electronic records management system)

       (a) Centralized Legal Research vs. Traditional Legal Research

       Centralized legal research (CLR) is an ERMS for doing legal research and writing by means of a single, centralized database of electronically stored legal materials. CLR can be applied in any law office to reduce the cost of legal research and increase its effectiveness. Such centralizing of research improves one's use of other sources by enabling one to make maximum use of the law firm's own research materials first, being its prior legal writings stored in its CLR database. The bigger the volume of production; the bigger the cost-saving per product or service produced. The main differences from the traditional approach to legal research are:

       1. A single office database of legal materials, accessible through any terminal or work station in the office, i.e., the database is part of an in-house electronic network.

       2. The use of secondary materials, written within the office, being the first source for creating new materials. Secondary materials are memoranda of law, pleadings, articles and other analytical writings, as distinguished from primary sources, which are cases and statutes.

       3. Detailed indexing or summarizing of new materials composed by the person who creates those new materials, or by a database manager if author-indexing cannot be enforced.

       4. Materials superseded by the addition of new materials are purged from the database at the time of such new additions. Such purging is most easily done by removing the indexing for such superseded materials, and most competently done by the author.

       (b) The Main Issues

       The main issues arising from CLR are:

       1. Attitudes against centralized research such as the “capture-collection problem”;

       2. Self-service by everyone versus full-service research services by the few for the many in the law office;

       3. Computer-based databases compared to paper-based databases and research systems;

       4. Indexing, manual and automated, to keep up with database entry and purging and pruning.

       (c) Attitudes Are the Problem, Not Technology

       The biggest problem in implementing CLR is coping with professional attitudes and traditions against using support services one does not completely control or directly bill out to the client.

       The most serious specific problems created by professional attitudes are:

       1. Reluctance to surrender memoranda and other research materials one has created to a centralized database (the “collection-capture” problem);

       2. Reluctance to do computer searches;

       3. Unwillingness to summarize or index one's work[42];

       4. Unwillingness to share a common database instead of maintaining control of one's own database within one's practice group;

       5. The functions of database maintenance are seen to be junior functions and functions always given second place to the immediate needs of servicing billable files and clients;

       6. Constant undermining of know-how by continually assigning research functions to junior and unskilled lawyers because research and database maintenance functions are mistakenly viewed as junior functions;

       7. The belief that research and database maintenance costs cannot be adequately recovered and therefore should be left to each lawyer's discretion;

       8. Unwillingness to reduce one's dependence upon clerical support staff so as to reduce labour costs.

       It is because of these attitudes and misconceptions that efforts to centralize research within the law office fail. In particular, the “capture” of memoranda, and the viewing of database maintenance functions as junior functions is critically damaging to database success. In a large office the requirements of CLR will be seriously limited without the enforcement of senior management. But often it is senior management itself that provides the greatest resistance to centralized research and the use of computer technology. Senior management is usually the function of the oldest managers.

       For example, the head of a specialized practice group of lawyers may choose to have an articling student struggle to learn to use database software so that the group can maintain its own separate database. Far better it is that each practice group's collection of research memoranda be exchanged for the advantages of centralization and specialization in the use of software and the building of research databases as provided by the firm's research practice group. Each specialized practice group can maintain its independent database, but that database would function less effectively, because students come and go, and the duties of database maintenance are seen to be very junior functions, meaning that they will be handed off to someone more junior as soon as possible. A workable compromise is to designate a person from the research practice group to care for each independent database. Of course, far better is the development of a single database, maintained by the research practice group, but made available to all lawyers within the firm. Quite likely the authority of senior management will be required to enforce the choice of the latter over the former.

       These problems will not completely disappear until law school training and legal practice more thoroughly alter attitudes towards legal research and the demands of computer technology, i.e., giving up some of one's independence in order to enjoy the greater skills and services of a network of specialists. That technology provides its greatest efficiency through its ability to centralize, network, automate, and specialize information-handling functions. Those effects run contrary to the tradition of independence and decentralization of the Bar and its methods of providing legal services. That tradition and the attitudes it produces cannot be ignored, but neither can the substantial economic advantages provided by computer technology and CLR. The legal profession's having priced itself beyond the middle class can no longer be ignored if it wishes to maintain the full integrity of its independence. Law school and subsequent professional training have to alter professional “conventional wisdom” and acceptable practice accordingly.

       Therefore a compromise between that traditional independence and that technology is the theme of the remaining sections of this paper. Such a compromise is viable because of this contradiction:  although the professional tradition opposes becoming dependent upon legal support services that one does not completely control, the current professional practice does not. That is, most lawyers would rather spend their time “up front” providing “front end” services such as being with the clients and being in court and meetings of comparable importance, rather than providing “back end” support services such as research. Therefore, a step-by-step application of CLR principles within the law office will gradually nullify negative attitudes and make the CLR database the firm's most important and valuable property asset used in providing legal services. The legal profession cannot refuse to make a more thorough application of electronic technology to the practice of law, while telling the public that it is making sufficient efforts to reduce the cost of legal services and make providing them more efficient. Adequate “access to justice” requires CLR. And CLR is best used by organizations devoted to supplying CLR as a support-service for law firms. Because of their small size, middle-sized and smaller law firms can best obtain the advantages of CLR's cost-efficiency by using such support services.

       (d) “Full Service” and not “self-serve” research services

       Lawyers want and need the “full service” research services of other lawyers and not the “self-serve” concept that the online search services are marketing. Both small and large firms gravitate to the “full service” model, meaning a few lawyers provide research services to all the other lawyers in the firm, rather than the “self-serve” model wherein all lawyers do their own research. The same applies to the use of online search services such as LexisNexis' Quicklaw, Westlaw-Carswell's Litigator, or Canada Law Book's Criminal Spectrum and caseAlert services—marketed as usable by all lawyers, but in fact come to be used most often by junior lawyers and law students for the benefit of senior lawyers.[43] But even a small firm can become more cost-efficient by creating a database of re-usable finished work-product and a database manager.

       Most lawyers need and want other lawyers who are willing to provide the following types of research services:

       Legal “fast-food”, i.e., they want their legal information “ready made,” ready to go and instantly available by phone, electronic mail, oral report or courier, as well as on paper.

       Expert online computer searches, and they want those searches done immediately. Very few lawyers who regularly service clients know how to do a complicated online “subject matter” search, nor do they want to take the time to learn how. Online searching is now a legitimate area of specialized legal service because the search programs and databases have become much more sophisticated, specialized, varied, and voluminous since such services began.

       Students and junior lawyers whom they can depend upon to be well trained, and given research support by someone who specializes in that work so that they do not have to worry about whether a student or junior knows how to do legal research or perform a computer search, and do both cost-effectively, and in time to meet deadlines.

       Most lawyers want someone else to go to the law library because of the demands of servicing clients, and because they do not want to spend long hours doing legal research themselves.

       They want to have an office database of legal memoranda so they can re-use their research, but they want someone else to build it, index and maintain it, and search it for them.

       They want seminars conducted within the law firm or elsewhere, to keep everyone current with the law, but they want someone else to prepare them so that they can maximize their time servicing clients.

       These services can be provided in any law firm if at least one lawyer is designated to provide them. Specialization in legal research services can justify not only the research lawyer as a specialist in the practice of law, but also make legal research return a profit. That profit will increase the value of the legal research lawyer specialist. However, because the career legal research lawyer is not yet recognized as a certified area of specialized legal practice, most lawyers won't want to have such responsibility, therefore most firms will use an external legal research service if its work is of high quality and cost of research is lower than what law firms can provide for themselves.

       Although without formal recognition by law society certification, legal research has been an area of career specialization for many years now, in the large corporate-commercial law firms. But such in-house practice groups of research lawyers are small, and have been used merely to do legal research using traditional methods and online search services. They are seconded out to do research for the other practice groups in the firm rather than enabled to build will managed centralized databases and research services. Centralized legal databases of materials collected from all practice groups and made available to all practice groups within the firm have been talked of for decades as being “an obviously good idea,” but if they do happen they exist with poor or no adequate database management. All law firms will need such specialists in order to gain the considerable economic advantages of CLR. Many firms are developing research lawyers and creating research practice groups. But because very few lawyers want to be full-time legal research lawyers (even though the legal profession needs such specialization and its certified designation), a CLR industry will emerge—commercial versions of LAO LAW. How else might small firms be able to compete with the CLR research services of large and national law firms?

       6. The Principles of CLR

       The following 12 principles define. They also describe the main differences between CLR and traditional legal research. These principles apply to both the law firm, and the CLR support-service.

       1. There should be a single office database that captures the product of every research project.

       2. The purpose of the database is to enable secondary materials such as memoranda of law and pleadings to be the chief building blocks for doing legal research and legal writing. Primary sources, such as court decisions and statutes, are necessary resources, but not the first source resorted to.

       3. Every legal concept that appears in that material is indexed to facilitate retrieval.

       4. Such indexing should be done at the time the material is finalized and it should be done by the authors of that material, or the authors should write summaries that can be indexed by the database managers. (But the best indexing is done by the person who knows the content of what is being indexed best, the author.)

       5. Fulltext copies of the material in the database should be electronically stored.

       6. Resort to the office database should be the first step in every research project.

       7. The database should be purged of older, superseded material. If the authors cannot be made to do such purging, they should be consulted about such purging decisions because they know what database material they used to create their new material. Similarly, the index should be constantly updated to reflect not only the addition of new material, but also the deletion of superseded material. Such purging is essential to maximizing the cost-effectiveness of the database because it reduces the incidents of duplicative material that has to be read. But indexing and purging should always be done at the “high point of knowledge,” i.e., at the time of creation.

       8. The indexing system (the list of key words called descriptors[44]) should be constantly updated as an integral aspect of adding new materials. The authors of new materials should be consulted as to which new descriptors need to be added and old descriptors deleted in respect of their materials. Just as the way we speak changes with what we know and how we use it, so database indexing should change as database content and application change. A database should so “speak” well of itself by way of its indexing, and the indexing should bespeak the quality of the database's accessing system in accuracy, comprehensiveness, and cost-effectiveness.

       9. Standard legal materials should be composed for the office's high volume legal issues and services, particularly in its areas of concentrated practice, and updated at least once per week, and better so, daily.

       10. Legal research materials and the database that captures them should be considered a property asset of the law firm, with the intention of making the resulting CLR database the firm's most valuable property asset.

       11. A system of frequent reviews of the impact of the database upon the cost of doing legal research should be established by those responsible for maintaining the database. Necessary alterations to the firm's CLR system will be revealed by such reviews so that that system can justify itself, first in demonstrable cost-savings, and then by profits.

       12. Senior management in the firm must apply its authority to the application and enforcement of these principles. A written policy statement or order from senior management should be distributed throughout the firm that contains at least the following statements and mandatory functions:

       a) establishes or recognizes the firm's CLR system of legal research;

       b) the importance of its CLR database as a valuable property asset of the firm;

       c) requires adherence to these principles by all members of the firm;

       d) establishes a legal research “procedures manual” that contains a statement of these principles and of all of the required policies and procedures necessary to the operation of its CLR system;

       e) appoints at least one legal researcher who is to maintain the database and enforce these principles on a daily basis, and maintain the procedures manual as an accurate and comprehensive statement of the firm's CLR system, and who has the authority to make alterations to the procedures manual as required;

       f) requires effective and meaningful periodic reviews of the impact of the firm's CLR system upon the cost of legal research; and,

       g) requires periodic audits of the CLR system, preferably independently done.

       A CLR system is an electronic records management system (an ERMS)。 Therefore established principles of RIM (records and information management) and all laws and National Standards of Canada regulating RIM are applicable.[45] Such principles can be applied to reduce the cost of legal research and legal writing by maximizing the re-use of legal information, particularly legal analysis as contained in previously written memoranda of law and other legal writings such as pleadings and legal opinions, and preventing the duplication of research work. They are principles for centralizing legal research about a single database within the law firm. They provide a strategy for enabling legal research not only to pay for itself, but also to earn a profit. The success of the career research lawyer should vary with the success in applying the above 12 principles in creating that profit.

       In contrast to CLR, some firms have the full contents of every client's file online, available through any terminal connected to the office network (subject to concerns as to security, and privileged and confidential information)。 Therefore, any prior legal writing can be searched. However, considering the absence of indexing, purging and pruning, and the quality control procedures of CLR, one would expect that more often than not, doing one's own legal research without resort to prior files would be a more cost-effective use of time spent searching. So it is that where CLR is not used, legal research “starts from scratch,” and, “at square one,” which is the most expensive “square” to start from.

       7. Applying CLR Principles

       The following can be said about a CLR system:

       1. It can provide analytical material that is more current than published material;

       2. It does not duplicate law reports;

       3. It keeps its indexing systems current by means of daily amendments that reflect changes in its database materials;

       4. It unifies use of the database with maintaining it, thus capturing the innovations created by that unity and avoiding the loss of expertise caused by separating use from maintenance;

       5. It unifies text indexing with search retrieval thus avoiding the controversy over how to avoid the inconsistencies and disparities between those who index and add materials to a database, and those who access them, using their own keywords and phrases.

       6. It makes the research lawyer and service much more important to the success of each lawyer in the law firm.

       Therefore, a structured office database that enables one quickly to find materials that are more relevant to one's practice, can provide a large cost-saving. Such a database can be built daily and continuously through one's own computer terminal as an integral aspect of normal file-processing.

       The purpose of CLR principles is to lower costs by creating an information delivery system that can instantly provide relevant analytical materials. An in-house database of in-house materials is more effective for this purpose than a collection of commercial publications, because:

       1. Greater familiarity with what is in it;

       2. One is more efficient with one's own indexing and retrieval system;

       3. The database and its indexing system reflect the strengths and specialized nature of one's own practice of law.

       The re-use of secondary materials as the main and first line of attacking legal research problems is faster, cheaper, more accurate and more creative. After a few years of using CLR methods, even a small law firm will have a helpful collection of materials in each of its areas of practice. By having all file material electronically stored, individual pages and paragraphs can be combined in new ways and copied without re-typing. Most lawyers can create more legal analysis arising from their daily practices than what they read and extract from commercial legal publications. Therefore they should record that analysis in an electronic database so that it can provide instant analysis and legal writings (such as pleadings) for future files. CLR enables any law office to develop a specialized database of analytical materials that captures all of the analysis done within the office and makes it available to everyone in the office. Thus secondary materials, particularly legal memoranda written in-house, provide considerable advantages over reported cases. They are a better building block for researching and writing legal materials because,

       1. They give the citations of leading and relevant decisions;

       2. They explain the holdings in those decisions;

       3. They provide analyses of the meanings and consequences of those decisions;

       4. They can give a complete, grammatical verbalization of these three points.

       The most important for speed, and therefore cost-efficiency, is the fourth because it enables “copy-pasting” ready-made writings into new legal writings. Every piece of legal writing is therefore proofread for its accuracy, comprehensiveness, and quality of writing. Thus the memorandum, used as the basic research tool, allows high volume to be compatible with high quality. This is particularly so when these methods are combined with experienced research lawyers and one's own indexing system. In this way the cost of research can be greatly lowered and its quality greatly increased.

       In addition, there are four other important advantages that CLR methods provide over traditional methods of legal research:

       1. The chance of making mistakes in analysis and misinterpreting cases is greatly reduced because in preparing a memorandum the researcher is relying upon finished, proofread, highly indexed material, rather than upon published cases.

       2. The convenience of having a large database of legal materials available through a single terminal induces researchers to review and update a wider range of materials as part of each research project. The more convenient a research activity or text becomes, the more likely it will be used. One's database grows and improves as a direct result of convenience of use.

       3. One is constantly motivated by the desire to increase the value and utility of the firm's most important property asset—its CLR database.

       4. A CLR database “buffers” and makes less the losses caused by key lawyers leaving the firm, because they leave behind their work-product and all that is in writing that accompanies it, and it shortens the time for training and scaling-up the work-product of new lawyers; therefore, it greatly weakens the traditional view that, “a law firm is only as good as the lawyers in it.”

       As a result, the following factors become the key features of the office information system:

       1. Each addition is lodged in the database at the very spot where it will remain as a permanent addition, available to all. It doesn't move around as do paper copies and files.

       2. Every new idea or new application of an old idea is indexed for future retrieval.

       3. Those who create new legal materials in the office and do its research, draft, re-write, edit, and proofread their texts at their own office terminal. Handwritten additions to proofread paper copies can be entered by the clerical staff, but whole drafts are composed and re-written at the terminals of those who do the research for those drafts.

       4. Standard materials are created from the high volume parts of the database with the result of increasing productivity, greatly lowering the cost per file, and greatly increasing one's ability to meet short lead-time requests for research memoranda and other legal writings.

       And, all lawyers and students should creating digital “originals” by keyboarding (typing) and not handwriting or dictating any texts that might be re-used, so that the following improvements to law office procedures are obtained:

       1. Every piece of re-usable information is indexed and recorded for quick retrieval;

       2. Clerical costs are reduced;

       3. Productivity is increased;

       If one is “database conscious” throughout every working day, the database that one can generate by means of CLR principles can become the firm's most valuable property asset, particularly so if one adopts these rules of practice:

       1. Think of every research job as an addition to the database. Every extra effort made to improve materials in the database will save time on future files. Loss of skill through staff turnover can be compensated for by the additions to the database that former employees leave behind.

       2. All texts that have any possibility of being re-used should be indexed. Indexing forces a proper analysis of what is in a text and of how it could be used.

       3. The indexing of new texts should be the main source of alteration to the list of indexing descriptors used. As the database grows, the indexing system should grow with it so as to reflect its specialized uses.

       4. Create research récipes or checklists for those areas of law where one's law practice is concentrated. They will remind you of which publications should be referred to for each research project, and establish a record of the volume and part numbers of the published materials used, and of the particular indexing terms those publications use.

       6. Allow time for system development such as time to teach other lawyers how to use the office research system, for reviews of its indexing system, and for the writing of standard materials for high volume issues and documentation. Such system development reduces the cost of each research file and enables the database to endure changes to office personnel.

       8. The Nature of Legal Research Work Makes CLR the Most Efficient Approach

       Consider these aspects (“truths”) of legal research:

       1. Most of every legal research project is a duplication of earlier research projects.

       2. Most of the time taken by each research project is spent dredging up or working up standard “boiler plate” material. Therefore, most legal information can be provided and kept up-to-date more efficiently by using methods that centralize legal research and treat legal research as a specialty.

       3. Very little of the work done on a legal research project requires confidentiality. Only during the last stages of research when strategies and arguments are being finalized that confidentiality is needed. The finding, reading and analyzing of cases, articles and statutes not only takes most of the time given to each research project, but also such activities rarely involve material that cannot be shared. Therefore, most legal research work can be centralized and its results shared throughout the office. Centralizing allows specialization, automation, and standardization. Together they in turn enable:

       (1) the avoidance of duplication;

       (2) the re-use of previously created materials;

       (3) the capture and preservation of expertise; and ,

       (4) the reduction of errors of retrieval, analysis and copy-typing.

       Thus CLR provides a great reduction in the cost and time of legal research. And, it is much safer than forcing each research project to start from primary materials (cases and statutes) by keeping secondary materials such as articles, in-house memoranda, and other forms of analyses confidential or otherwise unavailable to others within the law office.

       4. There is a great waste caused by the many coincident, duplicative efforts of lawyers and judges across the country searching for the same cases and researching the same issues and legal rules. Research should start with searches of secondary materials to reduce the time spent in searching, analyzing, and legal writing. But in Canada we do not yet have fulltext databases of all current secondary materials, such as law journal articles, textbooks, casebooks and pleadings.

       5. The most costly, and therefore time-consuming portions of each research project occur after the relevant cases, statutes, and articles are found. Therefore, wordprocessing should be applied to these later stages of research—to the analysis, drafting, editing, proofreading and indexing of legal materials, by electronically re-using previous writings.

       6. The “information-in-context principle”: legal information is far more useful when it is accompanied by analysis, or is presented with other legal information of a related or similar type for comparison. For example, it is far more efficient to use a well written article that analyzes a principle of law than it is to find a case that merely presents that principle as a black letter statement without analysis. That is why secondary sources are more efficient research building blocks than are primary sources, particularly so during the beginning stages of research. And drafting precedents are more useful if accompanied by related examples, or by the files that gave rise to them. Therefore, as information is created, its context and date of creation should be indexed as well as its content. When indexing information, the name of the file it came from should be included, and files should list the previous files used. Legal information has to be treated as a property asset and as a dynamic commodity, not a static commodity, i.e., like any property or skill it requires context and maintenance to maintain its value.

       7. Continuity in database maintenance: any collection of legal materials that is used to solve current problems has to be maintained daily in order to keep it current and its methods of retrieval efficient. The updating and development of the office's database should be an important aspect of the working day of at least one lawyer within the office, rather than being merely a collateral matter subject to being delayed by more directly billable activities. Updating and indexing database materials should be done frequently so as to keep each work session short and therefore the willingness to do it high. However, such administration can be greatly reduced if the authors of materials do the indexing and purging.

       8. Legal research as an increasingly uneconomic activity: new legislation, the volume of case law, and the volume of legal materials published, have increased the cost of processing each client's file. As a result, for the practitioner using traditional methods, the costs of legal research will continue to increase, and in compensation, much of the time spent in legal research will not be billed out. Increased time means increased cost, and, unless cost-efficiency is constantly improving, increased price for the clients. There is therefore a large economic need for more cost-effective methods for doing legal research and legal writing.

       9. Our legal information delivery system has greatly increased the costs of legal research by introducing many duplicative, overlapping law reports, online search services, and weak indexing systems.

       These points make legal research ideal for centralization, electronic automation, research lawyer-specialization, and the principles of CLR.

       9. Electronic-Based Versus Paper-Based Systems

       The introduction of electronic technology solved the record-processing problem, but it didn't solve the paper document problem. It allowed records to be created, manipulated, and re-used more efficiently and at lower cost, but that in turn created more paper documents. The document-handling and storage problem requires that all essential information-handling functions become electronically-based rather than remaining paper-based. The easier it is to create, manipulate, and re-use information, the more of it there is to store, particularly so now that much of record-making is automated and almost every human interaction creates a record. And the easier it is to store and retrieve records, the more records there will be to manipulate and use to create new records. Thus the creation, manipulation, re-use, and storage of information have a multiplier effect upon one another. But that effect doesn't require that there be more paper documents as well as more records. But it does mean that all four groups of functions of creation, manipulation, re-use, and storage have to be electronically-based, otherwise two or three of them together will create more paper documents for the fourth function.[46]

       Therefore, the “paperless office” means that the following key factors of business information systems are based upon electronic media rather than paper:

       1. recording and transmitting of business decisions (e.g. awarding contracts, ordering goods, making offers);

       2. record creation;

       3. record alteration and destruction;

       4. record retrieval;

       5. record and data transmission;

       6. record storage.

       For example, a traditional system (a pre-electronic paper records system) depends upon paper for all six of these information-handling functions. By adding a fax machine, record transmission became electronically based, but the other functions remained paper-based. In a completely computerized system all six functions are electronically-based. The incoming mail can be electronically scanned and electronically channeled to the right people's terminals or work stations for processing and decision-making. All information-handling and record-creation functions can be done through one's terminal and the office computer network. The incoming mail in its paper form need not be used after it was scanned. It would be destroyed after a holding period—often only a few weeks—in case questions arise as to the reliability of its electronic images. Thus all office files can be electronic files. When records can be viewed, created, altered, destroyed, transmitted or stored, these functions should be done electronically. However, unlike my years at the Research Facility of Legal Aid Ontario, hard drive space and technology is now inexpensive.

       A CLR system should be “paperless” as to its processing and uses of digitized information. Memoranda of law and other materials, after being created, indexed, transmitted and stored electronically, should be retrievable electronically through the system's indexing system, or through fulltext searching of the memoranda and materials themselves. However, the combination of expert indexing and powerful fulltext search engines maximizes the efficiency and effectiveness of retrieval. Paper copies are used only to make analysis and proofreading more physically comfortable and convenient.

       There are variations on this electronic-based theme for each of the six key information-handling functions. For example, as to the recording and transmitting of office business decisions, such materials as pleadings, contracts, and memoranda of law could be transmitted electronically within and outside the office with paper copies following as back-ups. And also from within and outside the office, records could be created, altered, and retrieved, and stored electronically. As to storage, memoranda of law and other research materials should be kept online for fulltext searching directly, or stored electronically off-line on disk if the indexing system is sufficient to dispense with fulltext searching. However the low cost of online, fulltext storage should dispense with this issue.

       tied up printing out fulltext copies.

       The index, being only a small fraction of the size of its database, can be made available to every terminal within the office computer network. The index is of sufficient quality that the fulltexts rarely need to be searched themselves.

       The degree to which an office's information system is electronically-based or paper-based depends upon these factors:

       1. Whether the effective or operative date of a record is the time of arrival of its electronic copy rather than that of its paper copy.

       2. Whether new records are first dictated or handwritten before electronic copies of them are made.

       3. Whether every decision-maker uses direct computer access to the office information network, instead of relying upon paper copies.

       5. Whether records can be accessed directly from the office database by electronic retrieval, particularly best by a digital index.

       6. Whether, within the office, information and records are transmitted and shared electronically or upon paper.

       7. Whether all records are stored electronically, including pre-electronically paper records since converted by imaging to digital storage.

       The degree to which an office is “paperless or paper-dependent” turns largely upon the official status and prominence of electronic versus paper information-handling functions. An information system can be truly electronically-based while remaining somewhat paper-dependent and therefore far from being literally “paperless.”

       10. A CLR System is an Electronic Records Management System

       A CLR system is an electronic records system. Therefore established principles of RIM (records and information management) and all laws relevant to RIM are applicable. All the laws of electronic records can be applied to it, including:

       (1) the electronic record provisions of the Evidence Acts[47];

       (2) the electronic commerce legislation[48];

       (3) the personal information protection and privacy laws[49];

       (4) The Sedona Canada Principles--Addressing Electronic Discovery,[50] as incorporated by reference into Ontario Rules of Civil Procedure—Rule 29.1.03(4),[51] and its case law, and the Ontario and other guidelines for electronic discovery in legal proceedings[52];

       (5) National standards of Canada for electronic records management[53];

       (6) The records requirements of government agencies such as the Canada Revenue Agency.

       Of particular importance, the principles of CLR require the application of the National Standard of Canada, Electronic Records as Documentary Evidence CAN/CGSB-72.34-2005,[54] and the “system integrity test” of the electronic record provisions.[55] Any legal research system is now an electronic records management system, and therefore should be judged as to its quality, effectiveness, and cost in the same way as any other electronic records system. How well do traditional legal research methods, in their current electronic form, comply with these authoritative sources of RIM?

       In fact, legal research by traditional methods fails the “system integrity test,” and is non-compliant with the RIM principles established by the National Standards of Canada, for the following reasons:

       1. Research starts with a search for primary sources—statutes and court decisions—instead of secondary sources--thereby maximizing the time needed to locate such sources, and the risk of missing relevant primary sources.

       2. Therefore, such searching is first done at a “low point of knowledge,” and often has to be repeated as one's knowledge of the issues and the relevant materials increases.

       3. No use, or insufficient use is made of previous legal writings produced within the firm.

       4. There is no single office database into which all legal writings are captured, and resort to which is available.

       5. Legal writings are not indexed to facilitate future access. If in fact they are, the indexing is not done by their authors, nor at “the highest point of knowledge,” of the issues, the answers, and of the legal writings produced by those answers.

       6. There is no attempt to create a CLR database that will become the firm's most valuable property asset because of its ability to increase productivity per research hour and thereby continuously reduce the cost of doing legal research.

       7. Legal research is not required to pay for itself, nor demonstrate a profit, nor is the research lawyer.

       8. There is no “purging and pruning” of superseded legal writings so as to prevent the re-reading of primary and secondary sources to determine their relevance.

       9. The indexing system used in cataloguing the firm's legal writings is not regularly updated so as to reflect the firm's areas of practice and of special practice. There is no quality control program applied to maintain indexing quality as to accuracy, comprehensiveness, and cost-effectiveness.

       10. Standard legal materials, such as memoranda, pleadings, and opinions, are not composed for the firm's high volume areas, and specialized areas of practice.

       11. There is no system for reviewing the impact of the firm's database of legal writings upon the cost of doing legal research. Such system should be established by those responsible for maintaining the database. Necessary alterations to the firm's CLR system will be revealed by such reviews so that that system can justify itself, first in demonstrable cost-savings, and then by profits.

       12. Senior management has failed to apply its authority to the application and enforcement of these principles. A written policy statement or order from senior management should be distributed throughout the firm that contains at least the following statements:

       a) establishes or recognizes the firm's CLR system of legal research;

       b) the importance of its CLR database as a valuable property asset of the firm;

       c) requires adherence to these principles by all members of the firm;

       d) establishes a legal research “procedures manual” that contains a statement of these principles and of all of the required policies and procedures necessary to the operation of its CLR system;

       e) appoints at least one legal researcher who is to maintain the database and enforce these principles on a daily basis, and maintain the procedures manual as an accurate and comprehensive statement of the firm's CLR system, and who has the authority to make alterations to the procedures manual as required;

       f) requires effective and meaningful periodic reviews of the impact of the firm's CLR system upon the cost of legal research; and,

       g) requires regular audits of the CLR system, preferably done independently.

       13. The above methods maximize the cost of doing legal research and therefore significantly hinder “access to justice,” using this phrase in the broad sense of “access to all legal services.”

       14. There is no attempt by any law firm, group of lawyers, or institution of the legal profession to monitor developments in information science and its diagnostic software for purposes of reducing the costs of legal services and improving “access to justice.”

       15. There is no attempt by the legal profession to defend itself against arguments that other groups of skilled people providing legal services, and related services, should be put on a more equal footing with the legal profession in providing such services, because they make better use of electronic technology. Such changes would mean some alteration of the legal profession's monopoly over the provision of legal services.

       If legal research is done by sub-standard methods it is incompetently done. Traditional methods can produce legal research competently done, but not cost-efficiently done. That is the new third requirement—the cost-efficient delivery of legal services. It is no longer sufficient to deliver legal services competently and ethically. Otherwise, the profession continues to price itself beyond the middle income earner. Several times the Supreme Court of Canada has acknowledged that without a lawyer, one cannot have adequate access to the courts, which in turn is essential to the rule of law.[56] The rule of law is essential to a constitutional democracy. Therefore, the cost-efficient delivery of legal services, at reasonable expense, is essential to a constitutional democracy.

    Ken Chasse, J.D., LL.M., member of the Law Society of Upper Canada (Ontario, 1966), and of the Law Society of British Columbia (1978), Canada:;  My SSRN Author's Page:
    [1] For analyses of the nature and extent of the  “unaffordable legal services problem,” see:
    (1) July 25, 2008, the Report of the Legal Aid Review 2008 (the “Trebilcock Report,” at 76-77) being the report of University of Toronto law professor, Michael Trebilcock, to the Attorney General of Ontario, became the latest in a series of authoritative reports documenting these facts. The report is available at:
    <>  or, <>;
    (2) Noel Semple, “Access to Justice through Regulatory Reform” (a paper prepared for the National Family Law Program, July 16, 2012; electronic copy available online at: <>)。 Dr. Semple is a postdoctoral research fellow, Centre for the Legal Profession, University of Toronto Faculty of law. At p. 3 he states: “Although comprehensive and reliable data about the cost of Canadian legal services is not available, the information that is available makes it clear that prices are high enough to deter many potential clients. According to the Canadian Lawyer 2012 survey of hourly rates, the average for a Canadian lawyer with 10 years' experience was $340 per hour. The average legal fee for a contested divorce was $15,570. Given that the median income for a single Canadian is less than $30,000 per year, the potential for these legal fees to deter Canadians is obvious.” (Therein text accompanying notes 14 and 15 [quoting from, Robert Todd, “The Going Rate” Canadian Lawyer (June, 2012) therein at page 32 at pp. 37 and 34].
    (3) Michael Trebilcock, Anthony Duggan, and Lorne Sossin (eds.), Middle Income Access to Justice (University of Toronto Press, 2012),  the “Introduction” states in part (p. 4): “For our purposes, when we refer to middle income earners, we are contemplating the large group of individuals whose household income is too high to allow them to qualify for legal aid, but too low, in many cases, for them to be in a position to hire legal counsel to represent them in a civil law matter. As a result of this denial of effective access to justice, we are witnessing a staggering number of individuals trying to navigate an increasingly complex civil justice without any or adequate legal assistance and feeling increasingly alienated from the legal system. This is the crisis of access to civil justice that we face. … One of the findings in this review [the Trebilcock report] was an acute lack of access to civil justice for lower and middle income earners in Ontario, manifesting itself particularly in an increasing number of unrepresented litigants.”
    (4) Reports, dated May 2012, of the Action Committee on Access to Justice in Civil and Family Matters, recommending that legal services be provided by non-lawyer professionals who provide related services: Report of the Access to Legal Services Working Group; and, Report of the Court Processes Simplification Working Group. Available online:  <>. The Action Committee is part of the Canadian Forum on Civil Justice at York University in Toronto, where it is affiliated with the Osgoode Hall Law School and the York Centre for Public Policy and Law. See the Canadian Forum on Civil Justice website; online at:  <>. But treating the problem of unrepresented litigants and clogged courts by simplifying court processes and procedures is like trying to remedy a cold by blowing your nose to simplify the act of breathing. It's treating the symptoms and not the cause. However, I'm not saying that it shouldn't be done.
    (5) Rachel Birnbaum, Nicholas Bala, and Lorne Bertrand, “The Rise of Self-Representation in Canada's Family Courts: The Complex Picture Revealed in Surveys of Judges, Lawyers and Litigants” (2012), 91 Canadian Bar Review 67, at 71, 92, and 94.
    (6) Canadian Bar Association, Reaching equal justice: an invitation to envision and act-A summary report by the CBA Access to Justice Committee, August 2013; online: <>.
    (7) Gillian K. Hadfield “The Cost of Law: Promoting Access to Justice through the (Un)Corporate Practice of Law” International Review of Law and Economics (forthcoming); download copy available at: SSRN
    (8) View the video of the University of Toronto, Faculty of Law's Access to Civil Justice Colloquium, on Feb. 10, 2011; online: <>. It provides seeing and hearing the Chief Justice of Canada, Beverley McLachlin, as the keynote speaker (introduced by Ontario's Attorney General, Chris Bentley)。 She has spoken publicly “off the bench,” several times on this topic--the legal profession has a monopoly over the provision of legal services, therefore it has a duty to make legal services available at reasonable cost.
    (9) Beverley McLachlin C.J.C., 21st Century Justice, Remarks to the Probus Club, Vancouver, Feb. 26, 2013, p. 9: “In some courts, up to 40% of the cases involve self-represented litigants.”; citing: Andre Gallant, “The Tax Court's Informal Procedure and Self-Represented Litigants: Problems and Solutions” (2005), 53 Canadian Tax Journal 2; and, Anne-Marie Langan, “Threatening the Balance of the Scales of Justice: Unrepresented Litigants in the Family Courts of Ontario” (2005), 30 Queen's L.J. 825, “the author cites data compiled by the Ontario Ministry of the Attorney General, which show that in 2003, 43.2 percent of applicants in the Family Court Division of the Ontario Court of Justice were not represented by counsel when they first filed with the court. The average percentage of unrepresented litigants in Ontario family courts between 1998 and 2003 was 46 percent.” Online at: <>.
    (10) Osgoode Hall Law School at York University (Toronto) Professor John McCamus, Chair of the Board of Directors of Legal Aid Ontario, stated on July 3, 2013, that he is aware that the majority of Canadians cannot afford a lawyer, and that the income ceiling to qualify for a legal aid certificate in Ontario was $10,800, and the threshold for a single parent with one child was $18,000; online: <>. Professor McCamus is the author of the 1997 Report of the Ontario Legal Aid Review-A Blueprint for Publicly Funded Legal Services, recommendation 79 of which states that, “governance of the legal aid system in Ontario should be transferred from the Law Society to an independent statutory agency.” That recommendation was implemented in the Legal Aid Services Act, S.O. 1998, c. 26, s. 3(1) of which states: “A corporation without share capital is established under the name Legal Aid Ontario in English and Aide juridique Ontario in French.” Professor McCamus, has served as the Chair of Legal Aid Ontario's (LAO's) Board of Directors since 2007. See public information statements about LAO, provided by Professor McCamus at (1): <>; and, (2)>.
    (11) Referring to the next decade, a recent Canadian Bar Association report forecasts that the middle-sized law firm will very likely disappear: The Future of Legal Services in Canada: Trends and Issues (Canadian Bar Association, June 2013), released June 12th; at p. 31 online: <>.
    (12) the May 15, 2013, Toronto Star newspaper article about the “broken justice system,” entitled, “Do-it-yourself-law—a trickle becomes a deluge,” dealing with the National Self-Represented Litigants Research Study (2013) conducted by University of Windsor law Professor Julie Macfarlane online: <>. And in the LAO blog issue for Jan. 22, 2014, see Dr. MacFarlane's photo and article, “Fire in the hole: Why every lawyer needs to care about access to Justice.”
    [2] B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214.
    [3] “The rule of law” was described by the Supreme Court in British Columbia (A.G.) v. Christie, [2007] 1 S.C.R. 873, [2007] S.C.J. 21] at para. 19: “The rule of law is a foundational principle. This Court has described it as 'a fundamental postulate of our constitutional structure' (Roncarelli v. Duplessis, [1959] S.C.R. 121, at p. 142) that 'lie[s] at the root of our system of government' (Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at para. 70)。 It is explicitly recognized in the preamble to the Constitution Act, 1982, and implicitly recognized in s. 1 of the Charter, which provides that the rights and freedoms set out in the Charter are 'subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society‘。 And, as this Court recognized in Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, at p. 750, it is implicit in the very concept of a Constitution.” The preamble to the Canadian Charter of Rights and Freedoms states: “Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law.” Canadian of Rights and Freedoms, Part 1 of the Constitution Act, 1982, enacted by the Canada Act 1982 (U.K.) c. 11; proclaimed in force April 17, 1982.
    [4] “Introduction,” by the editors in, Julia Bass, W.A. Bogart, and Frederick H. Zemans, eds., Access to Justice for a New Century—The Way Forward (Toronto, Canada: The Law Society of Upper Canada, 2005), 1 at 12. Ironically, this is a Law Society publication that underscores how critically important are affordable litigation services to one's ability to enforce one's constitutional rights and freedoms. The legal profession has priced itself beyond the middle-income earner for litigation services.
    [5] British Columbia (A.G.) v. Christie, [2007] 1 S.C.R. 873, [2007] S.C.J. No. 21. British Columbia's Social Service Tax Amendment Act (No. 2), 1993, imposed a 7 percent tax on legal services. Christie, a litigation lawyer, challenged the constitutionality of the legal service tax, claiming that the net effect of the tax was to make it impossible for some of his low-income clients to retain him to pursue their claims. The chambers judge found that the tax breached a fundamental constitutional right to access to justice for low-income persons and declared it unconstitutional to that extent. The majority of the Court of Appeal upheld the decision. However, the further appeal to the Supreme Court of Canada was allowed and the legislation was declared to be constitutional.
    [6] British Columbia v. Imperial Tobacco Canada Ltd., [2005] 2 S.C.R. 473, 2005 SCC 49.
    [7] Herbert M. Kritzer, “Access to Justice for the Middle Class,” in Julia Bass, W.A. Bogart, and Frederick H. Zemans, eds., Access to Justice for a New Century—The Way Forward (Toronto, Canada: The Law Society of Upper Canada, 2005), 257 at 258.
    [8] Ibid. at 258.
    [9] The Federation of Law Societies of Canada's, 2000 Law Societies Statistics, as of December 31, 2000, show that in the category of “Practicing Members—Insured,” for Canada as a whole, 67% of lawyers worked as sole practitioners or in firms of 2 to 10 lawyers. For Ontario, 63.7%, and for B.C., 67.4% of lawyers worked as either sole practitioners or in firms of 2 to 10 lawyers. See:
    A second source of recent statistics is the “Introduction” to the Final Report of the Sole Practitioner and Small Firm Task Force of the Law Society of Upper Canada, dated March 24, 2005, which begins (p. 16): “Lawyers practicing as sole practitioners or in firms of five or fewer make up approximately 52% of the lawyers in private practice in Ontario and 94% of all the firms in the province (”the target group“)。 When individual citizens in Ontario require the services of a lawyer to handle a wide range of legal matters such as real estate transactions, will preparation, estates work, representation in matrimonial, other civil disputes or criminal proceedings, advice for small businesses, and appearances before administrative tribunals, overwhelmingly they retain a lawyer in the target group. Target group lawyers report that 77% of the clients they represent are individuals. … For the large majority of Ontario's public, it is target group lawyers who provide them with access to the justice system.” The Executive Summary Overview (p. 6) describes “sole and small firm practice as the traditional backbone of the profession.”
    See the Final Report at:
    And thirdly, statistics in an article, “The changing face of the legal profession: Fact or fiction,” at page 20 in LawPro, (Volume 6, Issue 1, Winter 2007), the magazine of the Lawyers Professional Indemnity Company (LPIC, the independent liability insurance company for Ontario lawyers), indicate that about 30% of Ontario lawyers in private practice are sole practitioners. In comparison, the FLSC's statistics of six years earlier indicated that 36.9% of Ontario lawyers were in private practice.
    [10] Described below in section 6, “The Principles of Centralized Legal Research.”
    [11] Lawyers, when speaking at conferences, acknowledge that they could not afford to pay for their own legal services if they needed them for their own personal or professional problems.
    [12] The latest example are the very commercial traffic court agencies, who also appear as agents on summary conviction prosecutions under the Criminal Code (s. 800(2)), particularly motor vehicle offences, and whose marketing and advertising is more aggressive than that of lawyers. An older example is the loss of tax work to accountants. Similar examples may occur in the fields of immigration and real estate law. The freedom of law clerks to work outside the supervision of lawyers is therefore an important concern to law societies. What is not appreciated by lawyers is that every one of these challenging agencies makes better use of electronic technology in providing service to the public than do lawyers. That fact can be used to argue that the lawyers' monopoly over the provision of legal services is an unwarranted protection against change. I can remember that in 1970, as an assistant Crown Attorney in Toronto, before the predecessors of the current Dental Technology Act, 1991, S.O. 1991, c. 23, and Denturism Act, 1991, S.O. 1991, c. 25, existed, being given several prosecutions of denturists for making dental plates for patients who were not referred to them by dentists, contrary to the predecessor of the current Dentistry Act, 1991, S.O. 1991, c.24, as it existed then. The denturists defence was to call their patients as witnesses to testify as to how very satisfied they were with the services received, and how much cheaper it was for them by not having to get their dental plates through a dentist. As a result, legislation governing denturists was enacted, the prosecutions serving as a catalyst for that legislative solution to the dispute between denturists and dentists, such that it wasn't necessary to take the prosecutions to conviction. The point is, the areas of professional monopoly are constantly being challenged in a very fluid situation that never ends. And, competition by means of a more cost-efficient application of electronic technology has no precedent.
    [13] The February 26, 2007, issue of Law Times [Aurora ON:; (2007), vol. 18, no. 7] contains an article at page 4, entitled, “Majority of law firms lack succession plans: survey,” states: “There's a crisis, people leave the firm and their work goes with them, because it's a relationship-based business and clients are not necessarily going to stay with the firm.”
    [14] The Legal Aid Ontario (LAO) tariff currently pays hourly rates of: $96.34 to a lawyer of ten or more years experience in civil or criminal law, including a minimum of four years in civil or criminal litigation; $83.10 for four or more years in civil or criminal litigation; and, $73.87 for less than four years in civil or criminal litigation. Hourly rates are slightly higher for legal services provided in five designated areas of northern Ontario. The LAO Tariff and Billing Handbook is at:
    However, the hourly rates that appear at the bottom of page 26 have been increased to those in this note.
    [15] The danger of such close and spare regulation is that Legal Aid can gradually become a paymaster who “pays the piper that calls the tune,” i.e., Legal Aid officials in effect have carriage of the defence of the client, albeit that is not their intention. Nevertheless, by having to overcome a presumption of unjustified expense until a “reasonable possibility of success” is demonstrated, the protection provided by the presumption of innocence and the criminal law burden of proof of, “proof beyond a reasonable doubt” is weakened. For the unrepresented accused person they are substantially weakened. Legal Aid was created to prevent that happening. But the constant pressure to limit costs creates difficult-to-decide issues of “reasonable expense” versus “right to counsel of one's choice.” The balancing of these competing interests determines “access to justice.”
    [16] On February 12, 2007, the Law Society of Upper Canada (LSUC) issued a press release entitled, “Law Society voices support for sustainable legal aid.” It contains these statements (p. 1):  “Toronto, February 5, 2007. The Treasurer of the Law Society of Upper Canada, Gavin MacKenzie, today expressed the Law Society's continuing concern over the need for a well-funded and sustainable system of legal aid in Ontario. … [The Treasurer said:] 'We are alarmed by the dramatic increase in the number of people who try to represent themselves in court without the benefit of legal representation or advice about their rights. Others simply give up their right to a fair hearing. For all of these people, access to justice is denied. The Law Society regards the Attorney General's appointment of Professor John McCamus to review legal aid funding and the establishment of a working group with Legal Aid Ontario as important steps toward the development of strategies to improve the efficiency and effectiveness of legal aid, including the provision of adequate and stable funding.’”
    This LSUC press release is at:
    [17] Professor Stein gave a series of lectures in 2001 based on her book, The Cult of Efficiency, infra, as the Massey Lectures, which aired on the Canadian Broadcasting Corporation's Radio One program, “Ideas,” on November 12 to 16, 2001. A transcript or audio cassette of these lectures, as well as the book can be purchased from the Ideas' Transcripts department by phone, 416-205-7367, or by email:
    [18] Janice Gross Stein, The Cult of Efficiency, rev. ed., (Toronto: House of Anansi Press, 2002)。 Professor Stein is the Harrowston Professor of Conflict Management, Department of Political Science at the University of Toronto, and the Director of the Munk Centre for International Studies, also at the University of Toronto.
    [19] “Public goods and services” are those coming from the “public” part of the economy, usually government, as distinguished from goods and services from “the private sector.” The health of the economy is a public good, albeit that health is brought about by the business decisions of private individuals in the private sector—paraphrasing Adam Smith, Wealth of Nations (5th ed., 1789), pp. 26-27. Professor Stein states in The Cult of Efficiency, ibid., p. 6: “Efficiency is only part of a much larger public discussion between citizens and their governments. Efficiency is not an end, but a means to achieve valued ends. It is not a goal, but an instrument to achieve other goals. It is not a value, but a way to achieve other values. It is part of the story but never the whole. When it is used as an end in itself, as a value in its own right, and as the overriding goal of public life, it becomes a cult. … At times, however, even the mention of effectiveness is absent, and the conversation slides over to focus only on costs. And when the public discussion of efficiency focuses only on costs, the cult becomes even stronger.”
    [20] Toronto: Law Society of Upper Canada; 2005.
    [21] Ibid., at 163-176.
    [22] See for example the electronic record provisions of the Canada Evidence Act, R.S.C. 1985, c. C-5, ss. 31.1 to 31.8, Personal Information Protection and Electronic Documents Act added by S.C. 2000, c. C-5, s. 56 (PIPEDA—the, Part 3), and s. 34.1 of the (Ontario) Evidence Act, R.S.O. c. E.23, added by, S.O. 1999, c. 12, Sch. B, s.7, as amended by S.O. 2000, c. 26, Sch. A. s. 7. Only the provinces of British Columbia and Newfoundland & Labrador have yet to add such provisions to their statutory laws of evidence (which is surprising given that all 14 jurisdictions in Canada have enacted electronic commerce Acts (which allow—with some notable exceptions—anything that can be done on paper to be done electronically), and given that such laws require their own particular rules of evidence, as does the enforcement of all laws concerning the rights and obligations of business and government activities)。 Prince Edward Island and Yukon enacted them as a separate Electronic Evidence Act, instead of adding them to their Evidence Acts. See also Articles 2831, 2837-2840, and 2870, of the Civil Code of Quebec, L.Q. 1991, c. 64, in Book Seven, “Evidence,” Articles 2803 to 2874; and ss. 17 and 18 (transfer to new technology) of, An Act to Establish a Legal Framework for Information Technology, R.S.Q. c. C-1.1. The electronic record provisions enacted in the common law provinces are close copies of the Uniform Electronic Evidence Act (the UEEA), which was adopted by the Uniform Law Conference of Canada (the ULCC) in 1998. The UEEA with accompanying section-by-section commentary is available from the ULCC website at:
    In 1996 (and therefore prior to the UEEA), New Brunswick added ss. 47.1 and 47.2 (S.N.B. 1996, c. 52, s. 1) to its Evidence Act, R.S.N.B. 1973, c. E-11, under the heading, “Electronically Stored Documents.” And 13 or the   electronic commerce Acts are close copies of the ULCC's Uniform Electronic Commerce Act (the UECA), released in 1999, and also available from the ULCC website.
    Quebec enacted similar legislation (S.Q. 2001, c. 32) entitled, An Act to Establish a Legal Framework for Information Technology, R.S.Q. c. C-1.1 (in particular, ss. 5 to 8 under the heading, “Legal Value and Integrity of Documents”)。
    [23] For descriptions of “cluster technology” in relation to achieving super computing power, see:
    Or simply Google, “cluster technology.” The latest super computers are clusters. In a computer system, a cluster is a group of servers and other resources that act like a single system and enable high availability and, in some cases, load balancing and parallel processing. In some products, a cluster is a group of terminals or workstations attached to a common control unit. “Cluster technology” now enables hundreds of desktop computer processors (or more) to be combined to have the power of a mainframe computer, but at a much lower cost than traditional mainframes. The result has moved discovery in biochemistry from the laboratory to the computer, from the macro-world of chemicals, solutions, and organisms to the micro-world of atoms and molecules by means of electronic technology—from discovery in vitro to discovery in silico.
    For a description of the application of cluster technology, see the IBM site entitled: “Blue Gene: A vision for protein science using a petaflop supercomputer,” at:
    And for the National Research Council Canada's information technology and e-business project, see:
    [24] For example, chemistry and biochemistry are now a computational science wherein the laboratory has been traded in for the computer as the chief instrument of discovery and investigation, which have been moved from the macro world to the micro world of molecules and atoms. The computer is not used directly as a instrument of observation, but rather it is used to apply mathematics to the molecular and atomic level of energy fields and bond angles among atoms and molecules. Thus an empirical science becomes a computational science—computational chemistry is now an established designation and division of chemistry. Electronic technology thus returns the pursuit of knowledge from the empirical world of the pragmatic observer, to the Platonic world of the rationalist—decidedly as fundamental and great a change as can be achieved. The human cost of such rapid technological transformations is to swiftly undermine the qualifications of older researchers, professors, and their university departments. Unlike the professions, for them there is no professional monopoly by which to defend oneself by preventing such technological and conceptual changes from happening. Previously, the rate of such changes was such as to allow one to retire with grace and honour.
    [25] See for the example the “business record” provisions, s. 30(1) of the Canada Evidence Act, R.S.C. 1985, c. C-5; s. 42(2) of the B.C. Evidence Act, R.S.B.C. 1996, c. 124; and,  s. 35(2) of the Ontario Evidence Act, R.S.O. 1990, c. E.23. Most of the other “business record” provisions of the other provincial and territorial Evidence Acts incorporate the key phrase, “the usual and ordinary course of business,” and as well, words enabling the court to consider the “circumstances of the making of the record,” in relation to weight, and in the case of s. 30(6) of the Canada Evidence Act, in relation to admissibility as well.
    [26] In particular, see the two National Standards of Canada for electronic records management, sponsored by the Canadian General Standards Board (CGSB)—a standards-development agency within Public Works and Government Services Canada, accredited by the Standards Council of Canada, entitled:  Electronic Records as Documentary Evidence-CAN/CGSB-72.34-2005; and, Microfilm and Electronic Images as Documentary Evidence-CAN/CGSB-72.11-2000, supra notes 48, 49, and 55, which are available from the CGSB website at: Both standards are currently being updated.
    As to international standards, see those of the International Organization for Standardization (ISO), in particular those cited in these two National Standards of Canada, the two most relied upon being, Information and documentation—Records management—Part 1: General, ISO 15489-1, and, Part 2: Guidelines, ISO 15489-2.
    [27] In particular, the two national standards cited ibid.
    [28] Therefore one might well ask, what would a study of the speed with which career research lawyers became partners and managers of their law firms show?
    [29] The Research Facility is now called, “LAOLAW.”
    [30] Until April 1, 1999, Legal Aid Ontario (LAO) was called the Ontario Legal Aid Plan (OLAP), and until that date (plus a transition period) it was owned and operated by the Law Society of Upper Canada. Now, LAO operates under the Legal Aid Services Act, 1998. S.O. 1998, c. 26, as, “a corporation without share capital” (s. 3)。 It is not a Crown corporation, but operates independently of government, but is financially accountable to the Government of Ontario (see: ss. 3(3),(4), 60(2), 65, 66, 71.(2), 72)。 Section 1 of the Act states:
    1. The purpose of this Act is to promote access to justice throughout Ontario for low-income individuals by means of,
    (a)  providing consistently high quality legal aid services in a cost-effective and efficient manner to low-income individuals throughout Ontario;
    (b)  encouraging and facilitating flexibility and innovation in the provision of legal aid services, while recognizing the private bar as the foundation for the provision of legal aid services in the areas of criminal law and family law and clinics as the foundation for the provision of legal aid services in the area of clinic law;
    (c)  identifying, assessing and recognizing the diverse legal needs of low-income individuals and of disadvantaged communities in Ontario; and
    (d)  providing legal aid services to low-income individuals through a corporation that will operate independently from the Government of Ontario but within a framework of accountability to the Government of Ontario for the expenditure of public funds.  1998, c. 26, s. 1.
    [31] A list of the community legal clinics and their areas of practice is part of the Legal Aid Ontario website; see:
    [32] Supra, note 14. The point sought to be made is that such challenges are not simply a battle against various forms of “unauthorized practice” as any law society might prosecute them under a Solicitors Act or Law Society Act. They are a challenge to show that other groups can make better use of electronic technology than lawyers can in providing legal services to the public—as that electronic battle goes, so will go its area of law practice. Clever, ambitious paralegals can be trained to do competent legal research if restricted, each to his own special, or narrow area of law—for example, the law of “sentencing” in criminal law. Let there be a supervising lawyer for a number of researching paralegals. But legal research is so important to the practice of law that the regulation of a legal research industry should be under law society regulation. Lawyers may send their traffic violations to ex-police officers for defence services, but not their legal research to unsupervised paralegals no matter how good their “track record.” In regard to Law Society regulation of paralegals see the announcement of the Law Society of Upper Canada, under the heading, “Law Society welcomes new legislation to regulate paralegal profession,” October 19, 2006, in regard to Ontario Bill 14, Access To Justice Act, 2006, S.O. 2006, c. 21, in effect May 1, 2007, at:
    See the Act itself, particularly Schedule C, “Amendments to the Law Society Act and related amendments to other Acts,” at:
    [33] Before Ontario was a province of Canada, it was a British colony—Upper Canada—because it was further up the St. Lawrence river than Lower Canada, which is now the province of Quebec. Canada, as a country, began on July 1, 1867—July 1st now being “Canada Day.” But the law society in Ontario dates from 1797, therefore it has retained its name as the Law Society of Upper Canada. See: Christopher Moore, The Law Society of Upper Canada and Ontario's Lawyers, 1797 -1997, (Toronto: University of Toronto Press; 1997)。
    [34] See: “A Brief History of Work Processing (Through 1986)” by Brian Kunde, at:
    [35] The system, and the stages of building it, are described and analyzed in detail in section 4, “The three stages of CLR—its development and application at Legal Aid Ontario.”
    [36] See also the LAO LAW website at:
    [37] The Concise O.E.D. defines a “silo” as an airtight structure or pit in which green crops are pressed and kept for fodder, or as a tower for storage of grain. The term “siloing” is not mine, being well established within the large law firm vernacular before I first heard it.
    [38] My own experience in failing to have CLR take root in a large law firm has led me to this discrete strategy for its implementation:  it requires the bluntest, most open and continuous support of senior management, using the tactics of “carrot and stick,” in an unremitting fashion, otherwise it is not going to happen. Conversely, if the research lawyers in the firm are left to implement CLR without such support, after the battle is lost, not only will CLR not have happened, it will have lost all credibility.
    [39] See for example the advertisement in the Ontario Reports' softbound part for November 2, 2007, at page xlv (86 O.R. (3d), Part 4.)。 It states: “LAO LAW online services. Providing high quality and accessible legal research and resources to legal aid certificate lawyers. LAO LAW online services are available to lawyers working on legal aid certificates. Go to and follow the registration instructions. Legal Aid Ontario—Aide Juridique Ontario.”
    [40] As an example of the political process being brought to bear upon Legal Aid costs, the Attorney General of Ontario announced recently that he would have investigated the “million dollar Legal Aid bill” submitted by the lawyer who defended a police officer charged with murder—see the C.B.C. website article of October 31, 2007:  “Inquiry needed into ex-officer's $2M legal defence bill: NDP”, (available now only through CBC “archive sales” at:
    And see the Attorney General of Ontario's response in this C.B.C. article of November 6, 2007:  “Attorney general vows to fix loophole in wake of $1M legal bill for ex-cop,” (available now only through CBC “archive sales,” at:。Attorney General Chris Bentley is quoted as saying:  “It's essential that we ensure that people that need [legal aid] have access to justice, and I am expanding the ongoing actions to improve access to justice in the province of Ontario.”
    [41] This “mentoring service” is described at the website of LAO LAW; see:
    [42] A very damaging result is the poor indexes law book companies write for their textbooks and casebooks. Authors should index their own creations or else suffer the crippling of their work by unqualified indexers—unqualified because rarely are they lawyers, and if lawyers, never are they as knowledgeable as the author about the subject matter of the book. If you write a book, index yourself. Think of the way you speak as being an index of what you know. If people can't speak the language fluently, they shouldn't index the book.
    [43] They are in fact “search” services, although referred to as involving online legal “research.”
    [44] “Descriptor” is used to mean an indexing key word or phrase.
    [45] See below, section 10, “A CLR System is an Electronic Records Management System,” wherein are described the laws and principle of records and information management (RIM) applicable to electronic records systems.
    [46] For that reason the information and image management industry is very interested in scanning and optical disk technology as an alternative to magnetic storage because of its cheaper storage capacity and greater security provided by its non-erasable versions of its WORM drives, CD-ROM, and DVD's. Imaging is a big industry because many organizations still have very large amounts of paper files, created during the pre-electronic records management era of paper records technology, which paper files they want converted to digital storage. The National Standard of Canada, Microfilm and Electronic Images as Documentary Evidence, supra note 28, and infra notes 49 and 56, is still the industry standard for imaging.
    [47] Sections 31.1 to 31.8 of the Canada Evidence Act, R.S.C. 1985, c.5 (the “CEA); section 34.1 of the Evidence Act (Ontario)(the ”OEA“), R.S.O. 1990, c. E.23. For an analysis of the electronic records provisions, see my published articles:
    (1) ”Electronic Records as Evidence“ (May, 2014; for free download from the Social Science Research Network);
    (2) ”Why a Legal Opinion is Necessary for Electronic Records Management Systems“ (2012), 9 Digital Evidence and Electronic Signature Law Review 17 (an ”open source“ law journal providing free downloads);
    (3) ”Electronic Records for Evidence and Disclosure and Discovery“ (2011), 57 Criminal Law Quarterly 284;
    (4) ”The Admissibility of Electronic Business Records“ (2010), 8 Canadian Journal of Law and Technology 105;
    (5)”Electronic Records As Documentary Evidence,“ (2007), 6 Canadian Journal of Law and Technology 141.
    [48] All 14 of Canada's jurisdictions have enacted electronic commerce legislation. The federal Act is the Personal Information Protection and Electronic Documents Act (PIPEDA), S.C. 2000, c.5, Part 2, ”Electronic Documents.“ The B.C. Act is the Electronic Transactions Act, S.B.C. 2001, c. 10, and the Ontario Act is the Electronic Commerce Act, 2000, S.O. 2000, c.17. The purpose of such legislation is stated in s. 32 of PIPEDA: ”The purpose of this Part is to provide for the use of electronic alternatives in the manner provided for in this Part where federal laws contemplate the use of paper to record or communicate information or transactions.“ As a result, with some exceptions, everything that the law requires be done on paper can now be done electronically. This electronic commerce legislation of the common law jurisdictions is based upon the Uniform Electronic Commerce Act (UECA), created by the Uniform Law Conference of Canada (released in 1999), and therefore is very similar, one province and territory to the next. See the UECA at:
    The province of Quebec's electronic commerce legislation, An Act to Establish a Legal Framework for Information Technology, R.S.Q. 2001, c. C-1.1, doesn't follow the UECA model.  And note, Criminal Code ss. 841 to 847 provide for ”electronic commerce“ in regard to electronic court documents.
    [49] Personal Information Protection and Electronic Documents Act (PIPEDA), S.C. 2000, c.5, Part 1, ”Protection of Personal Information in the Private Sector,“ is the federal Act, but it applies to Ontario until Ontario enacts its own ”PIPA“ (personal information protection Act)—see s. 26(2)(b) in Part 1 of PIPEDA. And see also the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3 Sch. A. However, B.C., Alberta, and Quebec have enacted their own Personal Information Protection Acts, thus displacing Part 1 of PIPEDA in those provinces. PIPEDA gives rise to an obvious ”conflict of legislative jurisdiction“ argument because it is the use of a federal statute to regulate protection of personal information within the private sector within a province—a matter more comfortably within provincial exclusive legislative jurisdictions as to, (1) ”property and civil rights in the province,“ and, (2) ”generally all matters of a merely local or private nature in the province,“ being legislative subject matters 13 and 16 of s. 92 of the Constitution Act, 1867, 30-31 Vict. c. 3 (U.K.), as amended by the Canada Act 1982 (U.K.), c. 11 R.S.C. 1985, Appendix II, No. 44, as am. Constitution Amendment Proclamation, 1983, SI/84-102, schedule, SI/93-54.
    [50] The Sedona Canada Principles—Addressing Electronic Discovery  (a project of, The Sedona Conference, Working Group 7, 2007 (”Sedona Canada“); see:。
    But see: Ken Chasse, ”Electronic Discovery—Sedona Canada Is Inadequate on Records Management“ (2011), 9 Canadian Journal of Law and Technology 135.
    Recent examples as to how the Sedona Canada Principles text is relied upon are: Ottawa (City) v. Cole and Associates Architects Inc.,  2012 ONSC 3360, [2012] O.J. No. 2607 at para.21; Corbett v. Corbett, 2011 ONSC 7161, [2011] O.J. No. 5415 (Ont. S.C.); Warman v. National Post Co., 2010 ONSC 3670 [2010] O.J. No. 3455 (Ont. S.C.-Master);. Dykeman v. Porohowski, 2010 BCCA 36 at para. 41; Liquor Barn Income Fund v. Mather, 2011 BCSC 618 at paras. 67-78 and 84-87; and, Gardner v. Viridis Energy, 2014 BCSC 2014 at para. 15; Innovative Health Group Inc. v. Calgary Health Region, 2008 ABCA 219, [2008] A.J. No. 615 at para. 26 (Alta. C.A.); Spielo Manufacturing Inc. v. Doucet, 2007 NBCA 85, [2007] N.B.J. No. 510 at para. 11 (N.B.C.A.); Saint John (City) Employee Pension Plan v. Ferguson, [2009] N.B.J. No. 92 at paras. 15-16 (N.B.Q.B.); Vector Transportation Services Inc. v. Traffic Tech Inc., 2008 CanLII 11050, [2008] O.J. No. 1020 at paras. 19-25 (Ont. S.C.J.); Commonwealth Marketing Group Ltd. v. Manitoba Securities Commission, 2008 MBQB 319, [2008] M.J. No. 430 at para. 7 (Man. Q.B.); Borst v. Zilli, 2009 CanLII 55302, [2009] O.J. No. 4115 at para. 3 (Ont. S.C.J., Master R. Brott); Andersen v. St. Jude Medical Inc., 2008 CanLII 29591, [2008] O.J. No. 430 at paras. 27 and 28, (Ont. S.C.J., Master C.U.C. MacLeod)。
    The American counterpart, The Sedona Guidelines: Best Practice Guidelines and Commentary for Managing Information and Records in the Electronic Age (The Sedona Conference, Sept. 2005; see: lead to the amendments of the U.S. Federal Rules of Civil Procedure in December 2006 concerning electronic discovery.
    [51] ”Rule 29.1.03(4): In preparing the discovery plan, the parties shall consult and have regard to the document titled 'The Sedona Canada Principles Addressing Electronic Discovery' developed by and available from The Sedona Conference. O. Reg. 438/08, s.25.“ (Operative from January 1, 2010)。
    [52] The Ontario Guidelines, published in November 2005, are the work of the e-Discovery Sub-Committee of the Task Force on the Discovery Process in Ontario. The Task Force was formed by the Attorney General of Ontario and the Chief Justice of the Superior Court of Ontario, and chaired by Mr. Justice Colin Campbell of the Superior Court of Justice of Ontario. The Task Force's report of 2003, recommended the development of a ”best practices“ manual for the discovery of electronic documents. Electronic discovery is a rapidly developing topic in the area of civil litigation, and therefore the Guidelines for the Discovery of Electronic Documents in Ontario, are being applied not only in Ontario courts, but also referred in other common law jurisdictions of Canada as well. Their principles and commentary are equally suitable for criminal litigation. See the Guidelines on the Ontario Bar Association website at: .
    Alberta: see the, Court of Queen's Bench of Alberta Civil Practice Note No. 14—Guidelines for the Use of Technology in Any Civil Litigation Matter, May 30, 2007; and the Alberta Generic Protocol Document, online: <>
    and:  <>
    They are reproduced in, Todd J. Burke et al., E-Discovery In Canada (LexisNexis Canada Inc., 2008), Appendices 7 and 8, pp.231-270.
    British Columbia: see the, British Columbia Supreme Court Practice Direction re Electronic Evidence, July 1, 2006, and the, British Columbia Generic Protocol Document, reproduced in, Todd J. Burke et al., E-Discovery In Canada (LexisNexis Canada Inc., 2008), Appendices 5 and 6, pp.193-230.
    [53] National Standards of Canada, (supra notes 28, 48 and 49, and, infra notes 56 and 59, and accompanying texts), are written by standards-development agencies accredited by the Standards Council of Canada (SCC)。 Draft standards are submitted to the SCC for its approval, and then published by the development agency. The function of the SCC is ensure that the formal, established process for developing standards has been followed. The national standards cited herein are those of the Canadian General Standards Board (CGSB), particularly, its newest electronic records standard, Electronic Records as Documentary Evidence-CAN/CGSB-72.34-2005, infra note 56, and its narrower predecessor, Microfilm and Electronic Images as Documentary Evidence-CAN/CGSB-72.11-2000. These standards were written by committees composed of experts from the RIM field, including legal advisors. They may be purchased from the CGSB's website:
    [54] Ibid. The designation in Canada's National Standards System, ”CAN/CGSB-72.34-2005,“ means that it is standard ”72.34,“ developed by the CGSB, and approved in 2005 (December) by the Standards Council of Canada, the coordinating body of the System. The CGSB, a government agency within Public Works and Government Services Canada, has been accredited by the Standards Council of Canada as a national standards-development organization. The process by which such national standards are created and maintained in Canada is described within the Standard itself, and within the CGSB's website (see below)。 All such national standards use the format of, are compatible with, and often incorporate or are based upon the international standards of the ISO (the International Organization for Standardization, in Geneva, Switzerland, being a worldwide federation of national standards bodies; see:。 The above National Standards of Canada were written by committees composed of experts from the records and information management field (the RIM field), including legal advisors—I was one of those legal advisors. They have been adopted by the Canada Revenue Agency (the CRA)—the older standard is now mandatory, and the newer one is recommended—see CRA Information Circular, Electronic Record Keeping, IC05-1, of June 2005, at paragraphs, 24, 26, and 28, and GST Memoranda, Computerized Records 500-1-2, and, Books and Records 500-1. All are available from the CRA website:  Legal writings, being electronic records produced by an electronic records system, would be subject to those CRA information circulars if used as taxpayer records.
    The above National Standards of Canada may be purchased from the CGSB's website:
    [55] Supra note 49, s. 31.2(1) CEA; s. 34.1(5),(5.1) OEA. These subsections contain what is called the ”system integrity test“ of electronic records as provided by the words, ”… where the best evidence rule is applicable in respect of an electronic record, it is satisfied on proof of the integrity of the electronic record. The integrity of the electronic record may be proved by evidence of the integrity of the electronic records system by or in which the data was recorded or stored,“ (using the OEA wording)。 The CEA counterpart uses ”document“ where the OEA uses ”record,“ but otherwise a wording of same intent.
    [56] As defined in, Christie (S.C.C., 2007), supra notes 6 and 8 and accompanying texts.

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