B.C. to Have Official Online Dispute Resolution
A Ministry of Justice press release dated this Monday announced that British Columbia will become the first province to institute a system of online dispute resolution. Bill 44 — 2012, the Civil Resolution Tribunal Act, creates a tribunal with jurisdiction and powers very much the same as those of the small claims court but mandated to:
2 (1) . . . provide dispute resolution services in relation to matters that are within its authority, in a manner that
(a) is accessible, speedy, economical, informal and flexible,
(b) applies principles of law and fairness, and recognizes any relationships between parties to a dispute that will likely continue after the tribunal proceeding is concluded,
(c) uses electronic communication tools to facilitate resolution of disputes brought to the tribunal, and
(d) accommodates, so far as the tribunal considers reasonably practicable, the diversity of circumstances of the persons using the services of the tribunal.
Both parties must attorn to the jurisdiction of the tribunal for it to become seized of the case, except where some disputes with strata (a.k.a. condominium) corporations are concerned, in which case the corporations may be required to submit to the jurisdiction of the tribunal.
As yet the bill has only had first reading.
The backgrounder accompanying the press release explains:
· The service would use proven online technologies and be voluntary, except for strata corporations, which could be compelled to participate for certain strata disputes. Once online dispute resolution is started, ongoing participation would be mandatory until a voluntary or binding settlement was reached.
· The service would have four stages, with participants progressing to the next stage only if they were unable to reach agreement:o The first phase would be an interactive dispute resolution guide, with information, tips and templates to help the parties reach a settlement.
o Stage two would be party-to-party negotiations, using online tools to make contact and exchange information. The tribunal would monitor and intervene in the discussions if necessary.
o Stage three would involve a case manager, who would contact the parties by phone or online to discuss the issues and attempt a facilitated settlement.
o If that failed, the final stage would be a tribunal hearing. A tribunal member would discuss the issues with the parties online, by phone, videoconference or occasionally in person and give a binding decision on the dispute.· Tribunal members would be subject experts in the disputes they hear and be selected based on merit. Members would be appointed by cabinet.
· Several Australian states have mandatory civil administrative tribunals for small claims.
· Alternatives to online resolution, such as telephone, mail and even in-person hearings, would be available to people unable to access the online tools. British Columbians would still have the alternative of going to court.
I know that fellow Slawyer, Dave Bilinsky, is an expert in ODR, so I’m keen to hear what he thinks of this initiative and, particularly, how he sees IT being integrated into the process. I’m also chuffed — thank you, B.C. — because I’m talking a bit at LawTechCamp this coming Saturday about law and technology, with ODR as a topic; this will make it nice and pertinent.
The time for this concept may have come and it may have all sorts of merit (or it may not), but the BC government apparently engaged in something close to 0 consultations with the legal profession, the courts, the judiciary and other justice system stakeholders in crafting its strategy for design and implementation. This fact does not bode well for a constructive reception and roll-out if the concept even finds its way out of the Legislative Assembly.
Further to Jamie’s comment, the BC Branch of the CBA isn’t pleased: http://www.cba.org/BC/Public_Media/news_2012/news_05_08_12.aspx
I understand the annoyance at the lack of consultation. Seems puzzling, though BC folks may have an explanation. But I’m curious about the profession’s distress. Do the lawyers fear the loss of business, even though these are small claims matters by and large? Or do they feel the system won’t deliver effective service? Or is it something altogether different?
In addition to the CBABC, the TLABC have spoken out against this. Their press release can be found here:
http://www.marketwire.com/press-release/the-bc-government-upended-undercut-undermined-its-own-review-process-1655662.htm
My greatest concerns are the stripping of the right to counsel and further the ease with which the Government could expand the jurisdiction of the tribunal. Additionally the fact that the Government did not wait for the results of their “Justice Initiative Reform” prior to introducing these Bills does not sit well.
I discuss these topics here:
http://bc-injury-law.com/blog/bcs-justice-reform-initiative-mere-political-theatre
and here:
http://bc-injury-law.com/blog/bill-44-stripping-civil-disputes
With great respect and affection for those opposed to this development: when the legal profession is nearly unanimous in condemning a new dispute resolution initiative, I become curious.
It’s not clear to me — please correct me if I’m in error — that anyone is forced to use this new tribunal described in Bill 44. The bill states that a person “may” use the tribunal if the matter at hand is within the tribunal’s jurisdiction. There are several “musts” that follow the choice to use the tribunal, including the acceptance of the tribunal’s decision as final, but it appears to me that nobody is forced to use this system if they don’t want to. (I appreciate Erik’s assessment that Bill 52 is a different matter.)
Further, the ban on using lawyers is not absolute: section 20 goes on to say that lawyers are permissible if, e.g., the claimant is a child, has diminished mental capacity, or (importantly) merits legal representation in the tribunal’s view. In that light, the use of “stripping the right to legal counsel” does not seem like an entirely appropriate description. (Note also that the government cannot be a party before the tribunal.)
But in any event, the government’s aim here is very clear: it wants to create a state-sanctioned dispute resolution system that replaces judges and lawyers with technology and simplicity. I think the government is doing this because it wants to see if this system will work. They want to see if it will be much worse than the current court system, slightly worse, about the same, slightly better, or much better. I imagine they’re counting on the latter three options as the most likely.
And this is the important part: when the government says “better,” it’s thinking in terms of affordability, efficiency and cost-effectiveness, not in terms of full legal representation or access to the complete range of legal solution. That may be a bad set of priority choices. But it is neither an irrational nor an inherently illegitimate set of priority choices. The Small Claims Court already implements this idea. So do expedited proceedings in various jurisdictions. What the government is doing here is creating a parallel DR system with a different set of rules and founding assumptions than those underlying the court system. That, to me, is a very interesting idea.
If I had to guess, I’d say the BC government has formed the opinion that the current court system isn’t working and that judges and (especially) lawyers are the culprits. Again: that may be a mistaken diagnoses, but it’s not an irrational one. When the CBA-BC says that the sole reason for court backlogs is the lack of proper state funding, it just confirms the government’s perception that lawyers are part of the problem, not part of the solution. Certainly, funding can and should be improved; but lawyers taking advantage of the full range of legal tactics available to them are a prime driver of litigation costs and litigation time, and it would behoove us, as a profession, to at least tacitly acknowledge that.
I’m not saying that this tribunal will have no impact on the ability of disputants to access their full range of options under the law. That, in fact, is precisely the point of it. Reducing access to a lawyer is not a bug; it’s a feature. What this tribunal is forcing us to do is ask what we mean when we talk about “Access to Justice.” Do we mean “Access to a Lawyer in Court,” or do we mean “Access to a State-Sanctioned DR System”? I think it can mean both, and this tribunal might possibly be the first step in that direction.
Haven’t you overlooked the largest online dispute resolution system operating globally and in Canada, without any legal counsel involved? eBay has hundreds of thousands of disputes mediated in such a forum every day. Why the sudden fear?
eBay/PayPal use ODR to resolve about 60 million disputes a year, though the vast majority are a long way under $25,000. OTOH it is a dispute resolution system but not necessarily a ‘justice’ system; it favours the buyer over the seller routinely, as I understand it. Sellers go along because it engenders confidence in prospective buyers. I doubt that this will be true of the BC ODR system.
But I find Jordan’s reasoning persuasive on several counts. It used to be – may still be – that Quebec’s equivalent of a small claims court did not permit lawyers. The sky did not fall, and economic slavery did not follow. So let’s see what happens. ODR is not unique to BC either; a number of places are experimenting with it. A collection of readings, including examples, are on the UNCITRAL site here (online resources) and here (bibliography).
Great discussion folks!
I am a bit confused, though, by the concern that Bill 44 was tabled before Geoff Cowper’s report on the BC Justice Review Initiative. We were advised very clearly that civil matters (including small claims) were not within the mandate of the Justice Review (even though there is reference in the Green Paper to civil matters.) Mr. Cowper is focusing only on the criminal justice system – which certainly needs help!
Thanks
Adding to the constitutional aspect of this debate Mr. Justice McEwan’s reasons addressing the legislature’s duty to properly fund the judiciary are timely, helpful and worth reviewing in full:
http://bc-injury-law.com/blog/bc-court-hearing-fees-declared-unconstitutional-legislature-reminded-duty-maintain-judiciary
Yours truly,
Erik
Actually, there was consultation and plenty of it…with strata owners and the associations that represent them. These are the people who want strata disputes resolved and who recognize that it will not happen without a mechanism that is both accessible and affordable. Bill 44 enables such a mechanism. It is suspicious that the BC chapter of the CBA did not even mention strata disputes in their News Release as they condemned Bill 44. Where have they been on strata matters since 2003 when Minister Collins first recognized strata disputes as a significant problem ? One senses that the CBA objections are not about concerns for the rights of strata owners but about loss of fee revenue as the tribunal under Bill 44 would discourage use of lawyers in resolving disputes.
The bill in question (Bill 44) was given Royal Assent on May 31, 2012. It is expected to come into force in late 2013 or early 2014. Here is the press release saying so.
The press release says that the Civil Resolution Tribunal “will draw on proven technology”, though it’s not clear that it means technology proven for resolving disputes rather than just for electronic communications. I guess we will see in the fullness of time.