Opinion: Better Civil Justice Today

  • April 24, 2017
  • Colin P. Stevenson

Anyone interested in new technology would be ill-advised to look for it in an Ontario courtroom, court office, at the Ministry of the Attorney General or the Federal Department of Justice. The curious techie might have better luck in the marbled halls of Toronto's large law firms ("BigLaw") where the techie should at least encounter videoconferencing, VoIP telephones and dictation software.

But even BigLaw's technology falls far behind less hidebound and more entrepreneurial industries like "high finance" or "big pharma", never mind "high tech" companies in the Kitchener-Waterloo corridor. Even in BigLaw you will find little reliance on cloud computing and still less on artificial intelligence; although that is changing slowly as firms turn their attention to predictive coding and other e-discovery concepts intended to facilitate the most intensive, high volume and expensive document based litigation. 

Technology and the law may intertwine in the ivory towers of some law schools, usually under the intellectual property banner rather than the analysis of law practice, but few academics and fewer practitioners have applied themselves to answering the question of how technology can be used so the general public is served better by lawyers and the legal system.

It seems intuitive that modern technology should be able to improve access to justice.  Access to justice (A2J—a catchy abbreviation) is a buzzword frequently bandied about by many participants in the justice sector.  Unfortunately, A2J is discussed most often in the context of its paucity. The truth of the matter is that few members of the middle class can afford a lawyer, and that self-represented parties clog the Ontario courts struggling to deal with the arcane and convoluted dictates of the family, civil and criminal systems. 

The Action Group on Access to Justice has recently reported that:

  1. more than 50% of Ontarians do not believe they can afford a lawyer or paralegal;
  2. 64% of parties in Family Law Act applications are self-represented litigants;
  3. 67% of self-represented litigants felt that navigating the legal system was difficult or very difficult, notwithstanding the majority were university or college educated;
  4. 78% felt the justice system was old fashioned;
  5. 71% felt the justice system was intimidating;
  6. 69% felt the justice system was confusing;
  7. 68% felt the justice system was inefficient;
  8. 64% felt the justice system was broken.

In this consumer-focused day and age, the legal profession should fix its attention on legal consumers, and how we can better serve the public, whether individual or corporate.

Our legal system is the complete opposite of "user friendly". It does not take advantage of technology.  It does not use simple and straightforward language. It does not provide readily accessible and understandable educational or instructional websites. It does not provide straightforward procedures for dealing with common or garden variety disputes. It does not focus on serving legal consumers, as opposed to the lawyers, judges and bureaucrats who run the system.

Access to justice should be discussed in the context of practical, effective and useful innovations that can help people and corporations order their affairs in accordance with understandable rules and efficiently resolve conflicts when they inevitably occur. Understanding legal rules and resolving these conflicts should not commonly break the bank for individuals or corporations. 

Although the "rule of law" is solidly entrenched in Canada, no one setting out to design an efficient and practical justice system would ever propose Ontario's existing system, which every day includes:

(a) hordes of family law parties spending their life savings on begowned lawyers, inconclusive motions and unduly protracted trials, or stressfully navigating court offices and courtrooms under their own steam as self-represented litigants (SRLs) inevitably delaying court proceedings as they attempt to present their case without adequate background in rules and procedure;

(b) personal injury and medical malpractice claims waiting years for a trial which rarely finishes when scheduled and sometimes stretches over more years as judges sit from 10:00 a.m. to 4:30 p.m. while themselves hopping from trial to trial (who could possibly remember last year's evidence?) with no practical control over the parties in the courtroom;

(c) trials which rely almost exclusively on oral evidence rather than using written statements (affidavits) exchanged electronically in advance;

(d) trials which force expert medical witnesses (doctors) to leave their hospitals and reschedule crucial appointments so they can sit in drafty corridors waiting for their hour in court (when a written report or a video examination should often suffice);

(e) criminal justice participants who are often in avoidable crises:

(i) prosecutors stretched thin, doing their own photocopying, scheduling and secretarial work and lacking adequate technological aids;

(ii) police officers without the time or technology to coordinate with crown attorneys, unable to make prompt electronic disclosure and lacking appropriate video facilities to avoid needless court appearances;

(iii) accused who are held on remand for months or years, even though presumed innocent;

(iv) victims waiting years for justice, only to have cases stayed because of undue delays;

(v) witnesses kept uninformed and left sitting in those drafty corridors at the mercy of uncoordinated schedules (no electronic scheduling);

(f) Small Claims Court disputes (worth less than $25,000.00) which, despite their small value often get adjourned repeatedly and stretched out at considerable wasted expense before they are settled or tried.

Solutions

The first obvious requirement is that the civil and family procedures must be simplified for the vast majority of cases.  The current complex civil and family rules may be appropriate for multi-million dollar divorces or multi-million dollar claims between multi-nationals but they are not needed for the vast majority of cases. 

But apart from simplifying the rules and the institutions, the simpler part of the equation is that the justice system must be modernized. As legal futurist Professor Richard Susskind has noted, there are four compelling reasons for technological solutions in the legal system:

"The system is costly for users; it's usually too time consuming and disputes take a long time to resolve; it is largely unintelligible; and it also seems out of step in the Internet society...citizens have a growing expectation that services will be delivered digitally."

The good news is that Ontario's Ministry of the Attorney General has got the message loud and clear.  After introducing e-filing in Small Claims Court and electronic disclosure in about 50% of criminal cases, amongst other changes, in January 2017 at the Better Justice Tomorrow Conference in Toronto it announced a modernization plan which includes:

  • Civil e-filing starting in five judicial regions in April 2017
  • E-filing for tribunals accessible 24/7
  • Civil e-filing for automobile accident benefits service
  • Electronic criminal disclosure (SCOPE) is to expand to 100% of criminal cases
  • Electronic scheduling is to be introduced in the family courts
  • Online early dispute resolution for provincial offences
  • Small Claims Court online child support service
  • Courthouse Wi-Fi rollout
  • Remote video appearances to be expanded
  • Landlord Tenant Tribunal online filing and scheduling
  • Digital evidence management
  • Document management systems

The MAG initiatives are to be applauded provided they occur in the near term. We need better justice today.  Incremental steps that are thoroughly tested and properly implemented should ensure these measures become a reality after a sad history of large, failed government IT contracts. But more can be done and should be done.

Small Claims Court now has e-filing but surely there is no need for physical courtrooms for simple, straightforward or low value disputes? We need to emulate BC's Civil Resolution Tribunal which will soon be resolving small disputes online and consider the work being done at Montreal's Cyberjustice Laboratory and Ryerson's Legal Innovation Zone.  If eBay's Dispute Resolution Centre can settle millions of disputes usually without human intervention this should also be feasible in Ontario.  An online dispute resolution mechanism is viable and should be implemented for high volume, low value claims.

We also need to consolidate and expand the scope of the multiple websites that provide legal "advice" in terms of general information to legal consumers. See, for example, MyLawBC, and the recent appearance in Ontario of stepstojustice.ca, which provides information on common issues in family, housing, employment, criminal and other legal areas.

But the private bar can also be part of the solution. In the US private legal service providers, such as Avvo (www.avvo.com) provide legal services online. As their ads say, "your legal advisor is a phone call away" (US$39.00 fixed fee for 15 minutes). 

These changes are sure to come to Ontario eventually. They should not be a nightmare for lawyers or paralegals, as many fear. These types of service can provide access to justice for the many Ontarians who currently are self-represented and do not believe they can afford a lawyer. There is a huge unfulfilled market combined with a real need. Both the public service and the private bar need to step up and greatly improve A2J.

About the author

Colin Stevenson, of Stevenson Whelton MacDonald & Swan LLP, is a certified specialist in civil litigation and has experience in basically every facet of that field. These days he spends most of his time in ADR, real estate and construction related litigation, commercial litigation, fraud litigation, employment litigation, class actions and international law.

He is a former chair of the OBA’s Civil Litigation Section executive and is currently a member of the OBA Board of Directors.
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