Ontario Joins Wider Move Toward Online Dispute Resolution to Ease Court Burdens

As John Gregory reported in a recent SLAW post, the Ontario government is looking at online dispute resolution (ODR) for a variety of provincial offences. The system could start with minor traffic offences, and be expanded to other provincial and municipal offences, such as parking and by-law violations.

The proposal reflects a growing trend toward ODR for both civil and administrative matters.

The Ontario consultation document notes the high cost of dealing with provincial offences, with about 1.6 million charges laid annually. In Toronto alone, for example, provincial offences courts cost about $50 million a year, plus $5.5 million paid to police to appear in court.

The inconvenience, time and cost for a person to go to court are also major deterrents to fight a ticket and, therefore, a barrier to access to justice.

The Ministry of the Attorney General says it is looking for ideas for an online system that:

• provides educational and legal resources to help users understand and navigate the system.
• uses independent hearing officers, rather than judges.
• moves as many straightforward infractions out of the courts as possible.
• resolves disputes through an informal, fair and accessible hearing process.

Technically, the ODR system would result in “administrative monetary penalties,” rather than judicial fines, but for all practical purposes it amounts to the same thing.

The consultation paper talks about “proportionality” as an important access to justice principle. Scarce resources, including judges and court facilities, ought to be used for the most serious matters. Other offences can be dealt with through more informal procedures.

The paper notes that other provinces have launched initiatives to resolve civil disputes using online technology. BC is using ODR for tenancy and consumer disputes, as well as property assessment appeals.

Alberta has launched a pilot program to take traffic offenses out of court, to be heard by an independent adjudicator (though that program still requires an appearance in person, rather than online adjudication).

In the 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. As reported by the Independent newspaper, judges would decide cases online after analyzing documents submitted electronically, with an option of telephone hearings. The proposal is said to be modeled on the eBay and PayPal Resolution Centers, which are the largest ODR platforms in the world, resolving more than 60 million disputes a year.

The UK already has an online system, run by the Traffic Penalty Tribunal, which arbitrates disputes between motorists and local municipalities in England and Wales. The online portal allows people to appeal fines, upload evidence and follow cases and hearings. Each government authority also has a dashboard showing current cases, enabling them to submit evidence and follow the progress of hearings and decisions.

This seems to be very similar to the Ontario proposal, although the consultation document notes that “the design elements of a delivery model, such as an online dispute resolution system, will require further consultation with technology and legal experts.” There will also have to be future consultation with the public and local authorities on how to implement a province-wide ODR system.

Technical resources are bound to be an issue in rolling out any ODR project. Ontario is already far behind many jurisdictions in making its courts accessible electronically.

In the UK, members of the legal profession complain that the government has not spent enough money to support existing initiatives, let alone the new ODR plan being proposed. Civil courts lack both staff and IT resources, they say, and recent budget cuts are making the situation worse.

And in Europe, where the “Regulation on Consumer Online Dispute Resolution” (ODR Regulation) and the “Directive on Consumer Alternative Dispute Resolution” (ADR Directive), adopted in 2013, are leading to the creation of out-of-court dispute resolution systems for consumer transactions, commentators are debating how to ensure online systems are fair, accessible and respect due process.

The ADR Directive allows consumers to refer disputes over goods and services purchased online and offline to private dispute resolution entities. Disputes arising from online transactions will be referred to a EU-wide ODR platform, which will then transfer the case to an appropriate ADR entity. It is expected that the ODR platform will be launched in 2016.

Guest columnist Anastasia Konina, writing recently in the online journal Jurist, says: “the proposed system of consumer rights enforcement has been heavily criticized for a number of reasons, such as “putting efficiency above judicial scrutiny,” loss of public access, pressure due to general confidentiality of ADR and ODR proceedings and banning access to courts.”

These are all issues that will have to be considered in Ontario’s proposal to adopt ODR and administrative penalties for provincial offences.

The Ontario Ministry is accepting submissions (electronic or paper) until April 14, 2015.