Administrative Justice and Earth Day: The Path to “Green” Fairness

Yesterday was Earth Day — an opportunity to reflect on the impact of administrative justice on our environment and how tribunals can balance fairness, efficiency and environmentally-friendly practices. It’s obvious that the environment is an inter-related system that needs to be looked at holistically. However, the administrative justice system is rarely looked at holistically. The actions of a tribunal have an impact on all the users of a tribunal services (parties and representatives). A tribunal’s rules and procedures create its own “ecosystem” that has the potential to impose both environmental costs and benefits.

Two small examples will serve to illustrate:

• In order to save costs, the Ontario Labour Relations Board conducts initial hearings in Toronto. In “saving” the cost of one person traveling and a room rental, the OLRB has imposed travel costs on the parties and their counsel, as well as the environmental cost of more people traveling.
• In June of 2010, the Canadian International Trade Tribunal decided to distribute the record for one type of hearing on encrypted USB keys, reducing the amount of paper sent to the parties.

We are all familiar with the three “R’s”: reduce, re-use and recycle.

Most organizations have integrated the third “R” in their practices by recycling the tremendous volume of paper that can be generated by proceedings.

Re-using has limited scope in a tribunal setting, given that each dispute generates its own record. There is one small step that tribunals can use: creating a common casebook of leading decisions. In many areas there are a handful of decisions that get copied over and over again in submissions. If a tribunal is able to identify those (uncontroversial) leading cases, it can tell the parties that they do not need to provide yet another copy of that leading Supreme Court decision.

The real environmental savings occur with the first “R”: reducing. The significant environmental costs of administrative proceedings are paper and travel.

Tribunals can impose some rules on the filing of paper that can reduce the volume of paper: requiring double-sided copies, for example. Tribunals can also encourage parties to use paper that has a minimum amount of recycled paper. However, the better way to reduce paper is to move towards electronic documents. Most of the documents provided at a hearing already exist in electronic form (and some are only transferred to paper for the purpose of the hearing). Close to 100 percent of the jurisprudence relied on at a hearing exists electronically and all statutes and regulations are available electronically.

Since last February, the OLRB has provided free wireless access at its Toronto hearing location. This has the potential of allowing all participants at a hearing to have electronic access to jurisprudence, statutes and regulations without the need to print out reams of paper.

Yet, there is a great resistance to moving to the use of electronic documents at hearings. Justice David M. Brown recently expressed his “profound frustration” with this failure to use technology in litigation:

Providers of music to the public have had to adapt to changes in technology in order to continue to provide their particular service. Why should courts and lawyers be any different? Why should we be able to expect that treating courts like some kind of fossilized Jurassic Park will enable them to continue to provide a most needed service to the public in a way the public respects? How many wake-up calls do the legal profession and the court system need before both look around and discover that they have become irrelevant museum pieces?

In the administrative justice system there are legitimate concerns about the access to justice implications of using electronic documents. Self-represented parties may not have access to computers or the necessary level of “digital literacy”. And in some cases, the documentary record is thin and an electronic approach is overkill. However, for complex proceedings with represented parties, electronic documents should be the norm.

Another way to reduce the environmental impact of proceedings is to reduce the amount of travel required. Many tribunals have either regional centres or travel to regions in order to bring the hearing closer to the parties. These policies or practices were not designed to reduce the environmental impact of hearings, but were designed to ensure meaningful access to justice. The reduction in travel time (and the ecological footprint) for the parties is just a “green” by-product.

Not holding an oral in-person hearing also can represent a significant reduction in the carbon footprint of a proceeding. This is where balancing fairness and green policies is most critical. I have already written on the fairness issues involved in determining whether an oral hearing is necessary. There are also opportunities to hold parts of proceedings in writing or by teleconference. This would include preliminary issues, disclosure issues and final submissions.

Conducting a full hearing by videoconference is becoming more of a possibility, with the improvements in technology, and is being used by some tribunals. There is still a need to assess the impact of the technology on the adjudicative process. An interesting study of the Immigration and Refugee Board’s videoconference hearings highlights some of the concerns that still need to be addressed.

At the frontier of dispute resolution is online dispute resolution (ODR) which can significantly reduce the environmental impact of hearings. However, ODR may be only suited for low-value, high-volume disputes.

We are all in this world together, and there are still great opportunities for all the participants in the administrative justice system to discuss and implement ways to make administrative justice both fair and green.