Online Dispute Resolution is Coming: Are we ready?

  • August 18, 2017
  • Andrew Ottaway

There are a number of ODR platforms in North America, the EU and elsewhere, created or hosted by a combination of governments, not-for-profits and private companies (summarized in the chart at the end of this article).

In Canada, both BC and Quebec now have ODR for certain civil claims: BC’s Civil Resolution Tribunal (the CRT) now resolves disputes about contracts, debts, personal injury, personal property, and consumer issues under $5,000.00; Quebec’s Plateforme d'Aide au R├Ęglement des Litiges en ligne (PARLe) is for resolution of “low intensity” disputes consumers and retailers.  

Why should Ontario lawyers care about ODR?

Ontario does not yet have an ODR platform. But Ontario lawyers should care about ODR.

ODR is coming soon

Ontario has a well-known history of false starts with adopting new technologies. So it is easy to be skeptical that ODR is coming to Ontario soon. For example, Ontario recently proposed the online Administrative Monetary Penalty (AMP) system for infractions of provincial statutes and municipal by-laws, only to shelve the project soon after.

However, the rising ODR tide will probably float even Ontario’s justice system. Ontario will likely feel pressure to catch up with BC’s and Quebec’s adoption of ODR. The Ontario Ministry of the Attorney General (MAG) recently asked various civil justice stakeholders for submissions in respect of ODR for Ontario.  MAG has not stated which type of claims an Ontario ODR regime would cover.  If the claims include those which typically involve lawyers, such as condo disputes, Ontario lawyers will likely want to be involved in the design of the process.

ODR may affect your practice

ODR will most likely have limited initial impact on most lawyers’ practices. ODR platforms typically involve low-quantum consumer claims, administrative disputes or minor criminal or quasi-criminal matters, for which it is unlikely the parties would retain a lawyer.

However, some ODR processes are for more complex claims or processes. For example, “eCourtroom” in Australia is an online courtroom used by Judges and Registrars of the Federal Court of Australia or Federal Circuit Court of Australia.  eCourtroom is used for management and hearing of matters such as ex parte applications for substituted service in bankruptcy proceedings, applications for examination, summonses, giving of directions and other orders in general federal law matters. Ontario lawyers will be affected if Ontario adopts a similar ODR process.
 

ODR is part of a larger trend

ODR matters because it is just one part of a greater trend towards taking litigation online. This will not happen overnight, but even Ontario recently introduced online filing, for civil proceedings in Brampton, London, Newmarket, Ottawa, Sudbury and Toronto.  

If ODR is successful, it could be adopted, for example, for claims of more and more value, such as claims currently covered by the Small Claims Court (claims of $25,000.00 of less), or even claims currently covered by the Simplified Procedure of the Rules of Civil Procedure (claims between $25,000.00 and $100,000).  By understanding the ODR trend, lawyers may be better prepared to adapt their practices to technological change.  

ODR v. Jordan

R v. Jordan has exposed chronic problems in Ontario’s legal system. Some commentators have suggested that ODR can be used to free up judicial resources by sending “common sense” disputes, which do not involve significant legal analysis, to ODR.

It would be a relief if technology can ease court delays. But it is not clear what type of disputes should (or can) be diverted to ODR. Should certain procedural matters be diverted to decision makers who are not Judges or Masters? Or can ODR be used to streamline hearings before Judges and Masters? Stakeholders should consider the types of disputes currently heard by the judiciary which could be dealt with by ODR and how.  For example, routine disputes regarding the Rules of Civil Procedure which do not involve significant legal analysis may be better suited to ODR, such as simple refusals motions, Wagg motions, etc.  Even certain litigation-related disputes not heard by judges, such as costs assessments, may benefit as well from being sent to ODR.  Ontario lawyers will want to contribute to this debate.
 

ODR for public relations

ODR arguably represents an opportunity to demonstrate to the public that the profession cares about access to justice. Lawyers have expertise in dispute resolution. The profession can offer its expertise to the design of a successful ODR platform for civil disputes in Ontario.

Final Thoughts

ODR will probably not revolutionize litigation in Ontario. And for all of the possible advantages, there are potential problems, including accessibility issues, which will need to be addressed. Because we will likely hear more about ODR in the future, it's worth understanding.

 

Appendix - Chart of Selected ODR Platforms

Ontario’s status as a late adopter could be an advantage.  Ontario can learn from the early experiences of ODR processes in other Canadian jurisdictions and elsewhere.  Here are some of them:

 

Jurisdiction

Description

Process

United Kingdom

Money Claim Online (MCOL) is an online facility that allows individuals and private organizations to issue a money claim using a user-friendly website.

 

Claims are managed by a set of private and public agencies: the Country
Court Bulk Centre (CCBC), the Claim Production Centre (CPC) and Logica a private
company that deals with the technological components of the service.

The procedure can be used by consumers, businesses, government agencies and solicitors claiming debts in England and Wales.  Users only require internet connection and Adobe Acrobat Reader.  The claimant sends the claim the the Court notifies the defendant.  The defendant can enter a defence online.  At every stage the parties are encouraged to settle their dispute.  The parties can view the status of their claim online and pay fees online.

United Kingdom

Possession Claim Online (PCOL) is the online, website-based service implemented by HM Courts
and Tribunals Service to help individuals and businesses to issue or respond to claims
regarding the recovering property as arrears of rent or money due under a mortgage.

 

The principal actors involved creating PCOL were the
civil courts’ administrative operations section, the HMCTS ICT team, the Ministry of Justice Policy section and EDS, the private company that provided the main technology of the online facility.

The PCOL allows parties to fill out their claims online, track their claims through the website and seek issuance of warrants online.

United Kingdom

Traffic Penalty Tribunal (TPT) of England and Wales ently launched a web-based
portal BECK (Best Evidence Cloud Knowledge), for use by appellants, respondent authorities as well as the adjudicators and administrators. The Portal enables appellants to appeal, upload evidence and follow cases and hearings under one evidence screen and account.

The UK Traffic Penalty Tribunal enables appellants to appeal, upload evidence and follow their cases, and allows adjudicators to manage their cases, view evidence, and communicate with parties. Hearings are done by telephone conference, at which all participants can view the same evidence under supervision by the adjudicator.

United Kingdom

UK, the Civil Justice Council is proposing an online system for adjudicating smaller civil claims (up to £25,000) without having to appear in person to give evidence.

The report proposes a three-tier process: evaluation through interactive services and information, negotiation with online “facilitators” and finally, if agreement has not been reached, resolution by a judge relying on electronic submissions.

 

The proposal does not yet appear to have been implemented.

Australia

eCourtroom is a an online courtroom used by Judges and Registrars to assist with the management and hearing of some matters before the Federal Court of Australia or Federal Circuit Court of Australia.

Such matters include:

-ex parte applications for substituted service in bankruptcy proceedings
-applications for examination summonses
-giving of directions and other orders in general federal law matters

 

eLodgment makes it possible for litigants to electronically lodge documents with the Federal Court of Australia and the Federal Circuit Court of Australia (General Law).

eCourtroom is a virtual courtroom that assists in the management of pre-trial matters, ex parte applications for substituted service in bankruptcy proceedings and applications for examination summonses by allowing directions and other orders to be made online, in general Federal Law matters.


 

Quebec

The Platform to Assist in the Resolution of Litigation Electronically (PARLe) was launched by Cyberjustice Laboratory in collaboration with Quebec’s consumer protection agency in October, 2016.  

 

The pilot project is funded by Quebec’s consumer protection agency and the Cyberjustice Laboratory (who share costs for maintenance, hosting, and the help desk), as well as the Quebec DOJ (who pays the mediators).  Cases are usually resolved within a 30-day window.

A consumer logs on to a platform, fills out a form to describe the problem, and a second form to propose a settlement. An email is then sent to the merchant so that she can log on to the platform and either accept the consumer’s proposal or make a counter proposal. Should the parties be unable to reach a settlement using this simple mechanism, a mediator is invited to log on to the platform and help them resolve their issue.

British Columbia

Property Assessment Appeal Board residential online dispute resolution project is available for residential properties (single family, strata or recreational properties).  

The process has three stages:

 

  1. Negotiation stage

 

Both the appellant and BC Assessment fully explain their perspectives on the assessment. The parties are then invited to directly discuss the issues in the Conversation section of the ODR website.

 

  1. Board Facilitation stage

 

The facilitator will: review the messages and documents already exchanged; join the on-line discussion and may ask the appellant and BC Assessment some questions or require them to upload additional documentation; may set deadlines for certain actions; will, if possible, provide the appellant and BC Assessment with his/her confidential opinion on the appeal; may make suggestions on a possible resolution to the appeal.

 

  1. Adjudication stage

 

For most appeals, this involves the appellant and BC Assessment preparing written submissions.  The Board issues a written decision in about 60 to 90 days from the date of the last submission.

British Columbia

Consumer Protection BC launched an online dispute resolution portal which consumers can use to resolve issues with participating licensed debt collection agencies.

During the ODR process, consumers and businesses work together to reach mutually agreed-upon resolutions. In specific situations, Consumer Protection BC, acting as a neutral third-party, can be called upon to lend assistance and mediation.

British Columbia

The BC Civil Resolution Tribunal (CRT)  currently accepts “strata” (condo) disputes.

 

The CRT will soon begin resolving low-value small claims disputes.

 

The CRT is based on the “Modria” platform.

 

Modria is a spin-off from the ODR departments of eBay and PayPal.  Modria provides a cloud-based platform on which businesses and public bodies can customize and build their own ODR services. It supports various ODR methods, including diagnosis, negotiation, mediation, and arbitration, and also offers a configurable case management and workflow system that handles case intake, document generation and management, scheduling, reporting, and status messaging.

The online tribunal will operate in several stages. In the first
instance, the facility will help users explore possible solutions. Then, parties will be required to use the tribunal’s online negotiation platform, which is subject to short timelines and supported by templates for statements and arguments. If a settlement is not reached, then a tribunal case manager will be appointed to assist the parties to settle their dispute through a mediation process that will take place online or over the telephone. If parties do not settle by this mediation process, they will then be invited to agree to a third and final stage of adjudication. The adjudicator will contact the parties via the online platform, over the phone, or, when necessary, through videoconferencing, and then will make a decision that will be final and binding.

Holland

Rechtwijzer 2.0 was developed for the Dutch Legal Aid Board by the Hague Institute for the Internationalisation of the Law (HiiL). The service is provided by the Netherlands Ministry of Justice and Security.

 

The first service, now live, is for matrimonial disputes, including divorce and ancillary matters, such as custody and maintenance. Landlord and tenant and neighbour disputes are planned for the future.

Rechtwijzer is designed to help parties resolve disputes through a process that takes them from problem diagnosis, through facilitated, Q&A-based framing of their case, to problem solving and assisted negotiation and, finally, to various forms of online ADR (alternative dispute
resolution).

 

To assist in negotiation, the process provides automated legal guidance, based on the
answers parties have given during the Q&A session.

 

The ADR phase is reached on failure of the parties to reach a resolution by themselves. This takes the form of online mediation or arbitration. The process takes place online on a secure and confidential platform. The platform enables the mediator to engage in separate confidential
discussions with each party, consistent with normal mediation practice.

European Commission

Consumer ODR

 

The ODR platform is a web-based platform developed by the European Commission. Its objective is to help consumers and traders resolve their contractual disputes about online purchases of goods and services out-of-court at a low cost in a simple and fast way.

 

Online traders are required to provide a link (i.e. http://ec.europa.eu/odr) from their website to the ODR platform.

The consumer fills in an online complaint form and submits it.  The complaint is sent to the relevant trader, who proposes an ADR entity to the consumer. Once consumer and trader agree on an ADR entity to handle their dispute, the EU ODR platform transfers automatically the complaint to that entity.  The ADR entity handles the case entirely online and reaches an outcome in 90 days.

 

About the author

Andrew Ottaway is an associate with Gilbertson Davis LLP, where he practises civil and commercial litigation. 

 

Articles published in JUST. are the opinion of the author and do not reflect the positions of the publication or the Ontario Bar Association.

[0] Comments