ODR and the Digital Divide Scarecrow

As many Slaw readers have probably heard, last April, the Ministry of the Attorney General of Ontario engaged in a Public consultation to explore the possibility of offering an online system for traffic and other infractions. As stated on the Ministry’s website, “Ontario is exploring a new approach that could make the process of disputing certain infractions — like traffic matters — faster, easier and more convenient”.

We would wager that, to most citizens, a “faster, easier and more efficient” system sounds pretty good. However, opponents of the proposed “Online Administrative Monetary Penalty System” (or AMP) voiced many concerns with said web-based system. As one critic noted, the projected AMP is “an attack on the justice system and will mean that peoples’ rights will be violated because of an inability to launch a proper defence”. This is in part due to the fact that the “resolution process will be managed by independent hearing officers, rather than judicial officers”.

Of course, since the document produced by the Ontario Ministry of Justice was for consultation purposes, we need to wait and see how the final system will be structured before we can say whether these fears are warranted. After all, as Online dispute resolution (ODR) is not an ‘all or nothing’ solution, the Ministry could very well use an approach similar to the one adopted by the Civil Resolution Tribunal in British Columbia where ODR serves as a pre-judicial step that can still lead to a hearing should the parties not be able to settle.

The aforementioned ‘right to be heard’ arguments raise some valid questions with regard to how ODR is used. As we’ve written and lectured on numerous occasions, those who offer cyberjustice solutions – including ODR platforms – should not forgo legal rituals and legal principles, otherwise, these solutions will not be adopted by the main stakeholders. Of course, it’s probable that a high percentage of citizens would be fully satisfied with the proposed AMP, but even if just one percent of citizens is denied access to the courts even though they have the right to a trial, the proposed system would be cause for concern.

But this issue is not really linked to the digital medium or to ODR, but rather to the qualifications of the neutral third party. In fact, had the same AMP system been proposed as an “in person” process, the same objections would probably have been put forth.

However, another critique launched at the AMP has less to do with its process and more to do with it’s digital nature: “what about those people who don’t have access to a computer, how will they dispute a charge – this is an access to justice issue”. But is it really an access to justice issue? Doesn’t offering an online platform increase access to justice rather than decrease it?

Ever since we started doing research in the field of cyberjustice in general, and ODR in particular, the issues of the so-called digital divide has arisen so many times that we wonder if those who argue its validity have kept up with statistics. After all, according to recent surveys, almost 87% of Canadians have access to the Internet. While it is true that these numbers are lower in poorer and more isolated communities, the facts remain that a great majority of Canadians could still interact with the legal system electronically, should such an option be made available to them.

When comparing those numbers to other statistics regarding access to justice, it is difficult to see why technology gets such a bad reputation. For example, according to Transport Canada, roughly one third of Canadians do not have a driver’s licence, meaning they cannot drive to the courthouse for a hearing. Granted, they can ask a friend to drive them or take public transport when available, but if such alternatives are deemed as a valid argument to say that all Canadians can have access to a courthouse, could they not also be seen as a valid answer to the digital divide argument? Just like a third party can drive you to court, a third party can also help you fill out an online form. As for those who don’t have access to a computer at home or at the office, most libraries have desktops that can be consulted onsite. Therefore, we would argue that living hundred of miles from a courthouse a greater hurdle to access to justice than not having a computer at home.

But a stronger argument than access to transport is the capacity to read legal documents. After all, since the legal system in Canada mostly revolves around the written word, the existing “literacy divide” seems much more problematic than any perceived digital divide. According to the Canadian Literacy and Learning Network, “42% of Canadian adults between the ages of 16 and 65 have low literacy skills”. This implies that almost one out of two people who appear before the courts probably do not understand the content of the motions that were prepared for them. Obviously, explaining the content of said documents is part of the role played by their legal counsel, but since more than 60% of litigants are not represented by a lawyer, most individuals are asked to read and/or draft legal documents that they cannot begin to understand. This situation has made it necessary for organisations like Educaloi in Quebec, or other public legal education associations across the country to offer tools for those who cannot read complex texts, let alone ‘legalese’. Ironically, these organisations offer these services online so that they can reach as broad an audience as possible, yet we are made to believe that the courts should not do the same!

Bridging the digital divide should obviously remain a priority, and stakeholders within the justice system should not forget that not all Canadians can and do know how to use a computer or even have access to one. But to use the digital divide as an argument to stifle the implementation of ODR solutions to alleviate court dockets and facilitate access to justice is not only unwarranted, it’s undemocratic since 87% of Canadians do have access to computers. No matter what “technology” we use to give access to the courts, it will never be available to 100% of Canadians. Therefore, if that argument is used to oppose ODR, then literacy rates should prohibit written proceedings. Furthermore, since roughly 10% of Canadians are hard of hearing, a statistic similar to the number of Canadians that don’t have access to a computer, oral arguments should also be banned. But the biggest divide, as mentioned earlier, is the one between individuals who can afford to retain the services of a lawyer and those who cannot. If banning ODR is warranted because 13% of litigants do not own a computer, then should we not bar lawyers from pleading since the percentage of unrepresented litigants is more than four times higher than the number of individuals on the wrong side of the digital divide?

We agree that banning lawyers, writing and speaking inside the courtroom sounds ridiculous, but if we use the lowest common denominator approach towards ODR, we should be coherent and apply it to all the tools that are currently at our disposal within the legal system.

After all, we would argue that being able to read at an advanced level, or having access to a lawyer are far greater advantages than access to a computer and, if such is the case, then the status quo is much more problematic with regard to the equality of arms principle that is a building block towards access to justice than any well conceived online platform could ever be.