Records Managment

CHAPTER 15


The role of the Anglo-Canadian court as record keeper is rooted in historical tradition dating back to pre-Norman England [115] . As part of his new ordering of things, William the Conqueror introduced record keeping into twelfth century courts. Since that time, public records have come to mean, "all rolls, records, writs, books, proceedings, decrees, warrants, accounts, papers and documents whatsoever of a public nature belonging to Her Majesty." [116]

The Ontario Court of Justice is a "court of record" [117] . What is a court of record? In simple terms, it is a court in which the record of what has transpired is sufficient, by itself, to prove or disprove what has transpired in it. In the somewhat archaic language of Stephen's Commentaries [118] , it is a court,

... whereof the acts and judicial proceedings are enrolled for a perpetual memorial and testimony, which rolls are called the record of the Court and are such high and supereminent authority that their truth is not to be called in question.

What this means is that there is a lot of paper accumulated in court files and court facilities over the years. It is both costly to deal with and to store.

The Court as Record Keeper

The role of the Court as record keeper is reflected in the provisions of T he Courts of Justice Act and the Rules of Civil Procedure. [119]

A study conducted for the London Regional Courts Administration office [120] , has projected that the cost of leasing space for the keeping and storage of Ontario's court files over a five year period will be $43,500,000 -- $8,700,000 each year! Clearly some assessment needs to be made of the types of documents, or records, that are being kept and some analysis made of the type of documents or records that need to be kept.

There appears to us to be opportunities in this area, given the high costs involved, to reduce expenses and to redirect the savings in more positive ways in order to improve the efficiency of the justice system.

Briefly, the procedure employed in the Court with respect to record keeping is as follows. All documents relating to an action are kept on file by the Court, in the court office where the proceeding is initially filed for a period of three to five years. They are recorded and inventoried in accordance with a Records Retention Schedule, which is maintained by directive of Management Board of Cabinet. The directive requires the Schedule to include a description of each document in the court file and the amount of space the court file physically occupies.

Following the three to five year period, court files are then transferred to the Record Centre of the Ministry of Government Services in Cooksville for 15 to 17 years (whichever is necessary to make a total retention period of 20 years). At the end of 20 years, the files are archived pursuant to the provisions of the Archives Act, R.S.O. 1990 c. 27. Documents are not placed on microfiche until they are archived.

There is provision in The Courts of Justice Act, section 70, for the disposition of documents and other material no longer required, in accordance with the directions of the Deputy Attorney General. Those directions, however, are subject to the approval of the Chief Justices and Chief Judges of the various courts in the province. In the late 1980's, the then Chief Justice of Ontario directed the then Registrar that no court documents were to be destroyed. It would appear, then, that all court documents which survive the 20 year period are archived, and none are destroyed.

Lack of storage space is a particularly acute problem in the older Court Houses of Ontario. An increasing number of files are therefore finding their way to the Records Centre in Cooksville. Retrieval of those which remain open and active, and of those which may be required for other reasons, is a time-consuming, inefficient and costly process.

There are at least three questions which need to be addressed in this context:

  • What records, documents and materials need to be kept and stored, as Stephen's Commentaries say, "for a perpetual memorial and testimony" of the acts and judicial proceedings that have occurred, in order to satisfy the requirements of a court of record?
  • Are there other records, documents and materials which need to be kept after a file ceases to be active; and if so, for how long?
  • How should they be kept, i.e. in what manner should they be stored?

Aside from the possibilities of electronic storage of documents, much space is wasted in the storage of documents at the present time which need not be wasted. Inactive files and other documents stored in Cooksville, we understand, are not placed on microfiche until they are archived; ie. they remain in boxes and file folders for somewhere between 15 and 17 years! Much could be saved by commencing the microfiche process earlier.

Electronic filing promises the greatest advances in the storage of documents, of course. We have dealt with that process in Chapter 18.1, Technology and Statistical Information.

Another example of an area in which efficiencies can be introduced, and which was raised repeatedly in our consultation process, deals with the process of "entering" judgments and orders of the Court. It is a cumbersome, paper-laden and staff intensive process. Rule 59.05 sets out the requirements for the entry and filing of orders and judgments. Firstly, the number of the entry book or microfilm in question must be noted on the bottom of the original. Secondly, the date of the insertion of the order or judgment in the entry book must be noted on the original. Thirdly, a copy of the original must be inserted into the entry book, or the original must be microfilmed. Fourthly, an additional copy of the order or judgment, as entered, must be filed in the court file in the office where the proceeding was commenced. Finally, if the order is one that relates in some way to an earlier order -- by affirming, reversing, setting aside, varying or amending the earlier order -- this entry process must be followed not only in the court office where the second order is made but also in the office where the original order was made!

Court staff repeatedly recommended to us that this entry process be eliminated as being too time-consuming and costly.

Orders are retained in the entry books even after files become inactive and are sent to storage -- even though the stored files contain a copy of the order. They are retained because of the difficulty in retrieving files once they have gone into storage. Most requests for copies of an order or judgment, which would trigger a need for retrieval, come from individuals who have been divorced and who require a certified copy of their prior divorce judgment in order to obtain a marriage license for the subsequent marriage.

If file contents were reduced, and a more effective system of records management were put into place, the duplicate process of order entry could be eliminated without disturbing the Court's function as record keeper. Indeed, the Court's ability to function as record keeper would be more effectively preserved.

RECOMMENDATION:

We recommend that a Working Group be established, as part of the Implementation Team, to review the role of the Court as record keeper and to make recommendations with respect to:

  • The nature and type of court record that must be preserved;
  • Time parameters for records that do not require perpetual preservation;
  • The manner of storage of records that need to be kept; and,
  • The manner in which documents which are not required to be kept should be destroyed.

The Working Group should be comprised of representatives from the Judiciary, Courts Administration, Government Archives and the Bar.



Footnotes:

[115] P.H. Winfield, The Chief Sources of English Legal History, (Harvard University Press: Cambridge, 1925), at p. 104

[116] id., at p. 104, citing 1 & 2 Vict., c. 95, s. 20

[117] The Courts of Justice Act, supra, note 96, sections 11 and 34

[118] Vol. 3, p. 372; see also, Dixon v. MacKay (1902), 21 Man. R. 762; Re Winnipeg Charter; re Community of the Sisters of the Holy Names of Jesus and Mary, (1922) 68 D.L.R. 506

[119] The Courts of Justice Act, supra, note 96, sections 71, 79, 134(1), 137; The Rules of Civil Procedure, R.R.O. 1990, Regulation 194, Rules 4, 14.07 and 30.11

[120] Record Management Storage Study, June 1994