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Access to justice and pixie dust: Civil resolution tribunals | Bo Kruk

Thursday, June 04, 2020 @ 8:49 AM | By Bo Kruk

Bo Kruk %>
Bo Kruk
COVID-19 has changed the manner in which we transact justice. The courts in Ontario have embraced new technology to allow more cases to proceed at an unprecedented rate. While we have searched for technological answers to our new world order, we need not look too far. British Columbia’s Civil Resolution Tribunal (CRT) provides an effective online model that can — and should — be easily transplanted to any other jurisdiction. The CRT offers answers to our technological challenges.

The CRT is a leader in online dispute resolution (ODR) that is already having an impact in foreign jurisdictions. They regularly liaise with Her Majesty’s Courts & Tribunals Service in the U.K. In fact, the U.K.’s embrace of ODR has meant they are already into the third phase of reforming their justice system in the hopes of improving both accessibility and efficiency. Now cases in areas such as divorce, tax appeals and wills can all be dealt with purely online. If a similar opportunity was available in Canada, not only would the public benefit from the efficiency of the system, but the courts would be unburdened to deal with more complex matters.

The CRT’s goal is to provide a forum that is “accessible, speedy, economical, informal and flexible.” They achieved this by designing a four-step process with the users in mind rather than incorporating technology into the existing adversarial process.

Before even issuing any originating procedure, a prospective plaintiff must use the CRT’s “Solution Explorer.” The Solution Explorer is web-based program that is designed around a set of guided pathways. It allows the prospective plaintiff to not only learn more about the available options, but potential resources that are also available. This step has already proven to be effective. According to statistics from April 2020, while the CRT was managing only 16,402 disputes, the Solution Explorer was used 117,942 times — roughly 10 times more for the same period. Only if the Solution Explorer has been used and the plaintiff still cannot resolve their dispute, can a claim with the CRT — all online — be brought.

Before the dispute goes forward, both parties have a short window to negotiate with each other. If they are unsuccessful, the dispute moves onto the “facilitation phase.” Facilitation resembles a typical mediation. The facilitator need not be a lawyer but is someone with strong mediation experience. The facilitator uses whatever communication channels are needed to help the parties reach a consensual agreement. If the parties are still unable to resolve the dispute, then that same facilitator helps them prepare the dispute for adjudication.

Only at the adjudication step will a member of the tribunal hear the dispute. Even then, the decision is frequently only based on written submissions. Ultimately, that decision is subject to judicial review and control by the courts. Of note, only a small number of decisions have sought judicial review.

Overall, the CRT’s approach to technology and dispute resolution works. In fact, 78 per cent of CRT participants in April would recommend the process to others. More importantly, around 10 per cent of the total disputes for April are still open, and only 16 per cent of the 16,402 cases involved adjudication by a tribunal member. While the tribunal might still be new, these are encouraging statistics.

The success of the CRT demonstrates how a process focused on resolving the dispute through technology can tangibly promote access to justice for those who might be unable to partake in a “classical” court proceeding. While there were already some pre-COVID-19 developments that attempted to present specialized areas to resolve disputes, such as the lists system in Toronto, they relied on the traditional adversarial model. All that meant was that there might have been some increased efficiencies, but the systemic barriers parties faced were still in place.

Videoconference hearings are the new normal for the foreseeable future. However, now is not the time to ignore the key principles of our justice system. Instead of simply transferring the courts into the digital realm, this is an opportunity to make a lasting improvement on the way we do justice. One of the easiest ways that tangibly promotes access to justice is to consider implementing a system like the CRT in each province. The empirical evidence proves that this user-centred system gives those who might not touch the traditional adversarial system the ability to access justice.

Some judges have referred to access to justice as “pixie dust” since it has yet to make up a separate body of law. In short, ODR through the CRT model is far from that metaphorical pixie dust and illustrates how access to justice can be improved.

Bo Kruk has just graduated from the University of Ottawa’s Programme de common law en français. While he fell in love with several areas of law at law school, he is most passionate about how the law can be used to promote access to justice for equity seeking groups.

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