The Importance of Hyperlinks and Usable Documents on Case Lines: Recent Superior Court Guidance

Can failure to hyperlink motion materials result in a delay or even dismissal of a motion? Two recent decisions from the Ontario Superior Court, Basaraba vs. Bridal Image Inc., 2021 ONSC 8038 (“Basaraba“) and Parekh et al versus Schecter et al, 2022 ONSC 302 (“Park“) suggest it might.

Basaraba handled competing motions for summary judgment in a personal injury case. Over 2,000 pages have been uploaded to Caselines, including affidavits, expert reports, discovery transcripts, and cross-examination transcripts. Four motion records were uploaded, only one of which contained hyperlinks allowing the judge to navigate through the evidence. None of the uploaded facts included hyperlinks.

Justice Dunphy dismissed the motion, pointing out that the lack of hyperlinks alone was more than sufficient to justify dismissing the motion. He provided the following insights into the challenges courts face when dealing with voluminous records, and the importance of hyperlinks and similar measures in light of these challenges:

[6] I cannot stress enough the extent to which this seemingly simple failure hampers to the point of destroying the ability of the judge conducting the hearing to come to a decision with any degree of confidence in his or her ability to render a decision on the merits that is fair and reasonable.

[7]… In the absence of hyperlinks, the task of checking the actual evidence against the summary narrative of the brief is virtually impossible in a case of this size and complexity. Nothing parties have hyperlinked to the references to the evidence contained in their factums. Each of these references was to a motion record or transcripts without hyperlinks or even a reference to the page number of the relevant case lines.

[8] This failure alone is more than enough to justify dismissing this motion… Practice Directions and Notices to the Profession have long emphasized the need for serious consideration of how documents are uploaded to Caselines. Tabs do not survive downloading. Hyperlinks (sic) and, where appropriate, separate downloading of individual tabs or exhibits allow easy navigation of large volumes of material. It just wasn’t done here. The result was to lay a task in my lap that looked like asking me to sort through an overturned bowl of spaghetti.

[26] … The problem of parties not uploading usable case documents to Caselines is endemic. It will not improve if the light is not directed at it. The message needs to get across to the profession that these “motions in a box” simply won’t work without more effort from the parties. These days, properly hyperlinked motion records and facta are quite frankly the exception, not the rule.

Park involved a motion for an urgent injunction. The parties have collectively uploaded over 200 separate documents to Caselines. Many of the documents uploaded individually were attachments to affidavits and cases, with some documents exceeding 500 pages. Justice Sharma explained the challenge such an approach creates for the Court as follows:

[4] … The reality for most judges and associate judges is that they cannot scroll through a list of hundreds of documents in CaseLines looking for a specific document and then click and click on those documents for evidence or authorities to which the lawyer seeks to direct the court.

[5] When we relied on paper documents, the evidence would be in one motion file, and the authorities would be in one book of authorities (although often with multiple volumes), with appropriate tabs. In contrast, in this and other cases I’ve heard of, hundreds of documents were uploaded. Notably, the exhibits were not uploaded with the affidavit and hyperlinked in the affidavit. They were uploaded individually. To find an exhibit and match it with the appropriate affidavit, I had to search the full list of documents that were uploaded. CaseLines can only view two documents at the same time. Documents that exceeded 500 pages would freeze when I browsed through them.

Judge Sharma then provided the following advice to lawyers in preparing their digital documents:

[7] In particular, I direct counsel to a document titled, CaseLines Hearings – Tips for Counsel and Self-represented Parties”, found at: CaseLines Hearings – Tips for Counsel and Self-represented Parties | Superior Court of Justice (ontariocourts.ca). Tip 5 In this document indicates:

Affidavits with attachments should be uploaded in a single PDF document with hyperlinks from the affidavit to the exhibits for easy reference. Similarly, when a book of authorities is provided to the court, it must be uploaded as a single PDF document with a table of contents hyperlinked to the cases it contains. This will help the court officer easily locate exhibits and/or case law. A party’s factum may also be linked to case law in publicly available online sources such as CanLII, where available.

When uploading a document to CaseLines, make sure the document is less than 500 pages. This will allow you to avoid problems with your document getting stuck while scrolling during your hearing. Thus, if a document such as a book of authorities is longer than 500 pages, it should be divided into Book of Authorities vol. 1, Book of Sources Vol 2, etc. to stay under the maximum number of pages.

[8] Additionally, when preparing PDF documents, attorneys should bookmark relevant sections, tabs, or exhibits in a PDF document before uploading them to CaseLines. I usually download PDF versions of documents from CaseLines. I know that some of my colleagues do it too, but not all of them. If relevant sections are bookmarked, it helps to find material in a PDF document. For example, it is useless to identify in a factum a decision found at a tab of a collection of authorities, if these tabs were not created by means of bookmarks in the PDF document.

Justice Sharma said that if the proper steps had been taken by the lawyers, the time needed to dispose of the urgent injunction petition at issue would have been reduced. Eventually, the Court granted the injunction.

To take with

Basaraba and Park emphasize the importance of ensuring that documents presented to the Court on the case lines are usable, useful and easy to navigate and that failure to do so may have significant adverse consequences for the parties. As Judge Sharma said in Park: “In all cases, the documents must be uploaded in order to ensure that they are usable by the Court.”

Best practices for digital materials have evolved rapidly since the shift to virtual advocacy, and these changes are likely to continue. When Caselines was implemented just over a year ago, hyperlinks were removed from all documents uploaded into the system. As Justice Dunphy and Justice Sharma pointed out in their decisions, they are now essential.

As attorneys and courts adapt to case lines, technology options and best practices will likely continue to evolve. The appropriate strategy may also depend on the circumstances and the nature of the case – in Basaraba, Justice Dunphy suggested that uploading separate tabs or individual exhibits would have helped the Court. In Park, the Court found that this approach was not useful. Bookmarks, familiarity with Caselines page numbering, the “Direct to Page” feature, and uploading indexes with Caselines page numbering are also all strategies to help decision makers navigate your documents.

These cases suggest that effective virtual advocacy in the future will involve not only using existing tools such as hyperlinks, but also implementing them thoughtfully and monitoring new developments.

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