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Access to justice amid COVID-19

Friday, October 02, 2020 @ 8:31 AM | By Christopher Achkar


Christopher Achkar %>
Christopher Achkar
The justice system is similar to having only one place in your city that serves food, and it happens to be an expensive, exclusive restaurant. If your rights are at stake (read: steak, if you like puns) that is, you need to eat — your only option is this one restaurant with a cost-prohibitive menu of legal options. You can’t eat (or enforce your rights), if you can’t afford to pay.

In our line of work, labour and employment law, we deal with terminations, layoffs, bullying and harassment across various industries and sectors. Whether we are acting for employers or for employees, parties who involve us on their issues are fighting for their livelihoods.

The problem is, the legal process is riddled with steps and different possibilities, that even talking about options costs you money. Your options cost you money because in the time it takes to explain options to you, a lawyer would have been able to work and bill on other matters. Affording a lawyer or paralegal to negotiate for you is a return on investment. Can I pay this lawyer $1,000 and recover $10,000?

Maybe. But there is also the possibility of paying $2,000 and getting nothing — through no fault of your own, or your lawyer’s, or your employer’s for that matter. The process is simply riddled with too many steps and a higher than necessary legal rates that have increased over the decades, if not centuries.

Lawyers are attempting to lower their legal fees by lowering their rates, deferring fees, not charging for commuting anymore, not charging for documents that can be e-filed without printing costs and other modest changes. But these changes are so modest that the vast majority of Canadians still cannot afford to use a lawyer.

Here is a simple example: if an employee was shortchanged by two weeks (value: $1,000) — are they going to spend $500 on a letter for the employer asking for the difference? Probably not.

Our legal system, too, has been attempting to adapt to the changes.

With the resumption of limitation periods since (Sept. 4), many people are waiting to evaluate if they want to pursue their rights against their employers. This suspension has led to a halt in the administration of justice in Ontario but has also led to the creation of new policies and procedures in order to let the justice system survive during COVID-19.

Courts decided that parties to any litigation should do whatever they can to continue their matters while the courts reopen and resume full-time operations. Below are a few of the new features put in place that give effect to this:

1. Virtual mediation, discovery

In the majority of claims filed within Ontario, most actions will proceed to either mediation, discovery or both. Both mediation and discovery have typically been carried out in person, but recent practice directions from the court have encouraged both virtual mediation and discovery.

Nowadays, it has become common for parties to schedule mediations and discoveries over Zoom, or other videoconferencing applications. This has allowed parties to settle their differences and even push their cases forward, all while respecting social distancing rules.

Where either party is reluctant to participate in a mediation or discovery virtually, the court has stated that lawyers now have a duty to do so and that they must consider holding whatever they can virtually, unless it is unreasonable to do so.

2. Virtual motions, hearings

In order to prevent extreme delay, the courts have slowly adopted virtual motions and even, in the case of certain courts and tribunals, virtual hearings. This is particularly important with respect to motions, as certain motions can be urgent and require immediate attention from the court (as an example, some motions related to family law). In the case of hearings, especially those relying on witness testimony, it is always vital to have the case heard as soon as possible, as information can be lost and memories can fade.

As with mediations and discoveries, parties are encouraged to agree on virtual motions and hearings wherever feasible.

3. New filing requirements

As most lawyers will put it, legal work is all about meeting deadlines. The Rules of Civil Procedure outline the requirements a party must satisfy in preparing and serving all relevant pleadings and other documents going to the court.

In order to encourage easier access to justice, the rules have been relaxed and parties have been encouraged to agree to reasonable deadline extensions and other methods of service. As an example, service by e-mail is now encouraged, and courts have become very open to accepting documents by e-mail, with physical service to follow down the road.

These new requirements have made it easier for parties to serve their documents and also meet their deadlines.

4. Removal of juries

In addition to the above, Ontario is heavily considering the removal of juries in civil trials. This would allow for cases to move through the system with less delay caused by jury selection. It would also be easier to conform with social distancing rules if the courts do not have to accommodate jury members for each trial.

All in all, the recent changes to the justice system have been positive and, in our opinion, necessary. The changes have not only made it easier to access justice during COVID-19, but also have given parties more flexibility and options when it comes to accessing the justice system.

Christopher Achkar is the founder and principal at Achkar Law, a law firm advising on all labour, employment and human rights law issues. Along with his team of lawyers, he advises employers of all sizes on all workplace related issues, including civil litigation, human resources advice and human rights issues. You can reach him at christopher@achkarlaw.com.

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