Access to Justice Reports Released

Earlier this month, Kirk Makin of the Globe and Mail scooped an announcement of a major set of Reports on Access to Justice in Civil and Family Matters, an inititaitive that started with the Chief Justice’s challenge to the Canadian Bar Association last summer.

The four Reports from Working Groups chaired by Justice Thomas Cromwell were officially released this morning:
Backgrounder
Report of the Court Processes Simplification Working Group
Report of the Access to Legal Services Working Group
Report of the Prevention, Triage and Referral Working Group
Report of the Family Justice Working Group

And a background literature review: Family Justice Reform: A Review of Reports and Initiatives

Conceptually, the most interesting of the four reports is the one on Prevention, Triage and Referral, which posits a different view of how the justice system should deal with access issues.

Whether current Canadian governments – conservative in policy and austere in their appetites for new expenditures of public funds – will rise to the challenge, is an open question.

The national Action Committee on Access to Justice in Civil and Family Matters has posted four Working Group Reports for consultation and discussion. Each report deals with different aspects of civil and family justice, and is available on the website of the Canadian Forum on Civil Justice: www.cfcj-fcjc.org/collaborations.

The Working Group Reports were prepared for the national Action Committee which was convened to address the urgent and multiple issues surrounding access to justice in civil and family matters. The Committee is composed of leaders in the civil and family justice community and a public representative. The Committee’s objectives are to help all of the stakeholders to develop consensus priorities for civil and family justice reform and to encourage all of the participants in the system to work together in a cooperative and collaborative way with the ultimate goal of implementing reforms in the public interest. The Working Group Reports address the four priority areas for study identified by the Action Committee. The mandate of each Working Group was to identify and provide suggestions on how best to address key issues in that specific area. Those four working group reports were submitted to the Action Committee for consideration and are being posted to facilitate consultation and discussion.

Mark Benton, chair of the Access to Legal Services Working Group commented that
“There is no one solution to access to justice or legal services – the needs are diverse and the potential solutions are many. At this stage the point is to get the discussion started, not perfected and then to move expeditiously from talk to action.”

Professor Trevor Farrow, a member of the Court Processes Simplification Working Group added that
“Our review of Canada’s court processes convinced us that streamlined court procedures help reduce time and expense and militate in favour of improved access to justice.”

Speaking about the report of the Prevention Triage and Referral Working Group, its chair, Rick Craig, said that
“our Working Group report promotes a vision of access to justice that focuses first on the needs and concerns of the individuals who experience legal problems. Early resolution of their legal problems, whenever appropriate, is key.”

Jerry McHale commented that the Family Law Working Group which he chaired concluded that
“ … good ideas alone are not enough to change the system. It is time to move beyond wise words to concrete action.”

These Working Group Reports will be a subject of discussion at the Canadian Bar Association’s upcoming Envisioning Equal Justice Summit in Vancouver, April 25-27, 2013. The Summit is bringing together lawyers, judges, paralegals, legal aid and pro bono providers, community advocates, academics and public policy specialists, among others. It will look at a wide range of topics including the costs of justice, principled approaches to delivering legal aid, new options for the middle class, and international perspectives (Australia and the Netherlands). The Action Committee is hosting one of five workshop streams to highlight its recent efforts.

The Action Committee on Access to Justice in Civil and Family Matters was convened at the invitation of the Chief Justice of Canada, The Rt. Hon. Beverley McLachlin and is chaired by Justice Thomas Cromwell. It is a stakeholder-driven initiative which reports to all of the participating organizations and sectors involved in civil and family justice.

Justice Cromwell will be giving the lunchtime address at the CBA Conference later this week.

tom

Envisioning Equal Justice

From April 25-27 at the Envisioning Equal Justice Summit in Vancouver, come together with legal stakeholders from across Canada’s legal landscape to develop a shared vision of equal justice and the practical strategies needed to achieve that vision. Learn more & register now.

Also, be sure to read the initiative’s five discussion papers and submit your feedback on the latest three by May 15:

Access to Justice Metricsnew

Toward National Standards for Publicly-Funded Legal Services new

Future Directions for Legal Aid Delivery new

“Tension at the Border,” Pro Bono and Legal Aid

Underexplored Alternatives for the Middle Class

Slaw readers in Vancouver will be interested in a panel discussion at the CBA:

A.5 | Access to Legal Services: Using Technology, Social Media and Online Tools to Increase Access
People with legal problems have expectations that are often not met by our justice system. One way to address the expectations gap is through better, more affordable, and earlier access to legal services. The National Action Committee on Access to Justice in Civil and Family Matters released a working group report last year that offered a number of recommendations to address these issues. This workshop will provide an overview of why it is important to focus on people rather than institutions in access to justice work, promising strategies to close the justice gap, and how technology is being used to get better access to needed legal services and better outcomes for people facing legal problems.
Moderator: Mark Benton, Q.C., Executive Director, Legal Services Society, Vancouver
Jeff Hirsch, Thompson, Dorfman, Sweatman LLP, Winnipeg
John Simpson, Manager, Community and Publishing Services, Legal Services Society, Vancouver

From the the Court Processes Simplification Working Group Report, here is the discussion on the possible uses of technology:

A. Technology

It is trite to say that technology is changing the world. While lawyers and judges are working hard to keep up, it is not very controversial to say that, as a general matter, courts and the legal profession have some work to do to catch up to the current technology movement. According to one recent report, “a growing number of judges are trying to drag the court system into the electronic age….” Doing so will generally be of significant assistance with the project of making access to, and the delivery of court and legal services more efficient, fair and effective.
Catherine McKinnon summarized the state of initiatives relating to the use of technology in court processes. Based on the survey results, there are several web-based as well as electronic initiatives being used by courts across the country to provide parties with information about ongoing proceedings as well as access to electronic procedures.

This report highlights three main uses of technology that seek to achieve the objectives associated with improved access to court services.
The first type of initiative involves interactive court forms. Typically these online forms contain question and answer prompts or information bubbles that an individual must answer. Interactive court forms may be particularly useful for self-represented litigants who must prepare court documents without legal assistance and/or for litigants in remote areas without easy access to legal support. The use of these forms helps to ensure that matters proceed as scheduled and lessen the possibility of matters being delayed as a result of court forms being rejected at the time of filing.
In order to ensure that interactive court forms are used to their full potential, the CPSWG recommends the expanded use of this technology, taking into account the following considerations: jurisdictions not presently using interactive court forms should consider adopting this technology; forms should be developed in plain language; forms should be developed using a question and answer approach (or perhaps a “tick the appropriate box” approach to provide further guidance to SRLs for example); information technology experts as well as legal education experts should be consulted when developing these sorts of materials; court staff should be trained to assist self-represented litigants, particularly those facing literacy challenges, when attempting to fill out forms or otherwise attempting to access the court system; and jurisdictions should make sure to learn from (and potentially modify and adopt) the already existing forms and initiatives that are in place in a number of jurisdictions across the country.

Second, in conjunction with providing online access to interactive court forms, it is recommended that the development of e-filing and e-courts be encouraged in all jurisdictions and particularly where interactive court forms are used.

E-court initiatives can include basic infrastructure initiatives such as court room screens and microphones, document management systems (for discovery, disclosure documents, court forms, etc.), on-line filing and scheduling tools, the capacity to conduct hearings by remote access, and – ultimately – full dispute resolution tools. E-filings and ultimately e-courts can enhance access to justice for individuals (particularly self-represented litigants) in remote areas or for whom attendance is difficult due to work and/or family commitments. Moreover, e-filings may decrease delays and increase efficiencies within the court system, allowing court staff to focus on triage and referral work rather than clerical work. Ultimately, this use of technology could include e-filings, e-searches, e-docket and scheduling requests (see e.g. Québec), as well as the capacity to conduct motions and entire proceedings online. Presently, there are several jurisdictions that have implemented e-filing, which the CPSWG views as a preliminary component of e-courts. Technology (including Skype) is also currently being used – in the context of some court proceedings, such as Paiva v. Corpening, 2012 ONCJ 88 – to allow for witness testimony to be done remotely. Québec is also actively pursuing the use of technology – such as “testimony using videoconferencing facilities” – in the context of its new “Justice Access Plan”.
It is recommended that these various forms of technology be promoted taking into account the following considerations: jurisdictions not presently using e-filing should actively consider adopting this technology; jurisdictions should work toward the implementation of an e-court within an established time frame, including the ability for lawyers and litigants to request – online – motion and trial dates; courts that have already initiated e-courts should share information and experiences with other courts that have yet to implement e-filings and other electronic initiatives; special attention should be paid to the security and independence of information technology systems in order to protect confidentiality, publication bans, etc.; and overall, initiatives that enable lawyers and litigants to conduct as much of a proceeding as possible without the need for personal – or multiple personal – court appearances should be made possible and strongly encouraged.

Third, in keeping with developing initiatives that decrease costs and delays to litigants, particularly in remote areas, the CPSWG recommends that teleconferencing and videoconferencing also be fostered. One of the positive aspects of this initiative is that, unlike e-filing and e-courts, teleconferencing and videoconferencing is generally available throughout Canada (by phone, video, Skype, etc.). Specific opportunities for using these tools might include:
motions, particularly for uncontested and relatively straight forward matters: case managements conferences; and judicial dispute resolution, particularly for relatively straight forward matters involving very specific and defined issues in dispute.

While there are obvious benefits to these initiatives, including the facilitation of inter-jurisdictional proceedings and the ability to engage litigants in remote areas, the working group also notes that there are privacy concerns that must be addressed. Specifically, it will be important to ensure that teleconferencing and videoconferencing service providers do not make copies of any proceedings that could be broadcast at a later time. Further, particularly with respect to remote areas and technology, while the CPSWG recognizes the efficiencies that can be potentially gained, it is also important to recognize that remote areas need to have full access to in-person processes when necessary (in order to avoid ghettoizing the legal needs of people who live in remote areas, many of whom come from already marginalized and disadvantaged groups).

With respect to the use of technology relating to teleconferencing and videoconferencing, the CPSWG makes the following recommendations: jurisdictions should share lessons learned about technology and work together to promote the operability of technology between jurisdictions; and security measures need to be instituted to protect litigants’ privacy and the fair and effective operation of various court services.

As was said of another Thomas Cromwell: “There are no endings. If you think so you are deceived as to their nature. They are all beginnings. This is one.”

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Comments

  1. There’s a news item today on the BC Courthouse Libraries website about this topic, including a link to this posting. I’ve just had a quick look at the Triage report. I’m going to print a copy and review it thoroughly within the next few days, but I don’t expect that my initial impression will change very much. I would like to believe that something concrete can come of this, but the legal establishment’s record to date suggests that is unlikely.

    In the 39 pages of this report the acronym ERSS appears 126 times. I accept that acronyms have their place, but I’ve noticed that the legal establishment has a penchant for creating terms that are then conveniently rendered as acronyms. I suppose all professions do this, but it can be a red flag. This one certainly is for me, because “early resolution” is a term I’ve come across before. It is one of a number of terms that I’ve found in practice mean summary dismissal. I’ve recently coined my own generic term that doesn’t reduce to an acronym: “gatekeeper device”.

    My experience with these began over a decade ago with Section 13 of BC’s Labour Relations Code, and has continued, most recently with Rule 2.2 of the Canadian Judicial Council’s Complaints Procedures. Rule 2.2 is as crude a gatekeeper device as any I have found and I am convinced it is ultra vires the Judges Act.

    The Action Committee on Access to Justice and all the other reformers need to examine the existing system and recognize the extreme prejudice embodied in it. If they don’t do that they’ll simply create another stack of reports for the archives.

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