Thursday Thinkpiece: Ontario Civil Justice Reform in the Wake of COVID-19–Inspired or Institutionalized?

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Ontario Civil Justice Reform in the Wake of COVID-19: Inspired or Institutionalized?
Forthcoming in the Osgoode Hall Law Journal

Suzanne Chiodo is an Assistant Professor at Western Law and is currently completing her doctorate in class actions and group litigation at the University of Oxford.

Excerpt: Beyong Tinkering–Online Courts & Conclusion–Looking to the Future.
[Footnotes omitted. They can be found in the original via the link above.]

Beyond Tinkering – Online Courts

1. Zoom and Gloom – The Problem with Digitizing Existing Processes

While the recent changes are a move in the right direction, they have raised questions about how innovative and effective they are. Civil procedure remains largely unchanged except for the fact that some steps are now online. The path currently being pursued by Ontario’s justice stakeholders would seem very familiar to earlier developers of online dispute resolution systems. These developers did not attempt to disrupt or transform existing processes, but simply mimicked existing processes and offered online equivalents. As Ethan Katsh and Orna Rabinovich-Einy have observed:

[T]he initial impulse is to create online mirror images of the ‘live’ or offline process. In such instances, some agencies aim to replicate exactly their current processes online. Public agency staff may have been using the existing system for so long that it may be difficult for them to envision the new system as something other than an online replica of their offline process.

Replace “public agency staff” with “lawyers”, and this observation applies to the situation in Ontario. Lawyers report that virtual hearings are just like attending a different court for the first time. The “Best Practices for Remote Hearings” is regarded as the new companion to the Rules of Civil Procedure, and it is likely to be formally incorporated into the Rules in the near future. Colin Stevenson, President of the OBA, has stated that, in the wake of COVID-19, “we were able to launch virtual courtrooms and to train judges to manage hearings in a way that approximated a real court as closely as possible.” Our court system has simply moved online, replacing physical courtrooms with virtual ones.

This is reminiscent of the early days of the automobile. Early vehicle prototypes were simply horseless carriages, with a small combustion engine replacing the horse. While this removed the inconvenience of feeding, stabling, and cleaning up after horses, the new mode of transport was just as slow, reaching speeds of up to 16 km/h – about the same as a trotting horse.

This is why the recent changes will not be very effective in solving the problems that have plagued the civil justice system for decades. Expecting hearings by Zoom to address issues of cost, delay, and accessibility is like expecting a Benz Patent-Motorwagen to outrun a horse and buggy. This is because the use of virtual courts, while removing the cost and inconvenience of travel to court, does not result in the removal of any procedural steps. The cost and time savings will therefore be relatively modest. The scheduling of hearings will still depend on the availability of judges and counsel, as well as the availability of the technology in the courts concerned. The volume of materials will continue to grow. Self-represented litigants will still struggle to navigate the system. The experience of hearings by videoconference and teleconference in other jurisdictions has raised serious concerns about accessibility and other issues. If we simply “graft a digital layer onto the existing procedural systems”, then “they can generate compounding negative externalities at a systemic level”, including procedural unfairness. Richard Susskind confirmed this when giving evidence to the House of Lords Constitution Committee on the implications of COVID-19, stating that the aim of reform should not be to “take the English justice system and drop it into Zoom” but to “radically redesign the system” to improve access to justice.

The legal system in Ontario has been modernized by twenty-five years in twenty-five days, as the Attorney General said, but this has simply brought the legal system from the age of the fax machine to the age of the Internet. Our courts are still twenty years behind. The risk of “tinkering at the edges” of civil procedure “is that the wholesale introduction of virtual hearings could lull parties and [courts] into thinking that they have been innovative enough in moving to a virtual environment.” The somewhat self-congratulatory tone surrounding many of the recent reforms indicates that that risk is alive and well in Ontario.

Simply moving hearings online is a missed opportunity to take a more sophisticated approach to the civil litigation process, and cure many of its ills along the way. Jurisdictions such as British Columbia and England & Wales have taken an innovative approach to the resolution of certain disputes, and Ontario would do well to learn from them.

2. Online Courts – A True Transformation for Access to Justice

In the wake of the COVID-19 pandemic, Ontario’s civil justice system moved from physical courtrooms to virtual hearings. This is one small step in the right direction. A giant leap, however, would be the use of online courts. Richard Susskind defines online courts as “an online service to which appropriate cases will be allocated; a court with a simplified body of rules; constructed from the ground up on the back of technology rather [than] grafting technology onto existing court processes; and designed to be accessible to non-lawyers.”

The simplification of processes and the use of technology to transform civil justice, instead of simply facilitating existing processes, is the key to addressing issues of cost, delay, and accessibility. This is exemplified in the BC CRT, which has four stages to its process:

1. Exploration: The Solution Explorer is a web-based system that guides parties as to the nature of their legal problem and potential solutions. This provides self-help tools that may help solve the problem before it becomes a fully-fledged dispute. If further help from the CRT is required, then a case will formally be started.
2. Negotiation: The opportunity to negotiate directly with the other party in order to resolve the matter, with little intervention from the CRT.
3. Facilitation: A CRT facilitator helps the parties come to a consensual agreement.
4. Adjudication: A CRT member adjudicates the dispute and reaches a binding decision.

Each of these stages is remote (so that parties are not required to attend a physical courthouse) and asynchronous (so that parties can make submissions and deal with their disputes at times that are convenient to them). They increase accessibility, because they are designed to simplify the process and guide self-represented litigants with plain language and pre-populated forms. They also reduce cost, because they “triage” disputes such that dispute resolution by an adjudicator is the step of last resort. Finally, they reduce delay, because, if the dispute is not resolved early on in the process, then the issues are sufficiently narrowed by the last stage that a determination can be arrived at relatively quickly.

The CRT recently reached its first decision on liability and damages in a motor vehicle accident (MVA) dispute, with the decision being released just ten months after the MVA itself: three times faster than an almost identical case that had previously been decided by the Supreme Court of British Columbia, and three times faster than the resolution of the average civil claim in the ONSC. Simpler claims before the CRT are resolved in an average time of 3.5 months: four times faster than the resolution of a claim in Ontario’s Small Claims Court. This is justice at light speed. Those who argue that it is too fast must contend with the proportionality principle: that the amount of time and money spent on a dispute must be proportionate to the amount involved and the importance and complexity of the issues. As noted above [see full text of paper], cost and time are also elements of justice.

3. An Online Court for Ontario

Ontario should address the cost and delay endemic to its civil justice system by adopting British Columbia’s approach. In doing so, the MAG should be guided by lessons from the failure of the IJP [Integrated Justice Project] and similar projects, as well as the success of the CRT. These lessons can be summarized as follows:

(i) Start small. Grandiose projects like the IJP leave a lot of room for failure, and are much more prone to unrealistic timelines and costs projections. The MAG would be wise to heed Richard Susskind’s “call for realism and humility” and focus on a small, manageable area in which to pilot an online court. Piloting allows new systems to be tested and then refined with feedback from users, which is what the CRT has done and continues to do.

(ii) Start with low-value claims. The jurisdiction of the CRT includes small claims up to $5,000 and strata (condominium) disputes. Now the tribunal has been operating effectively for several years, its jurisdiction has expanded to include motor vehicle accidents (MVAs) up to a value of fifty-thousand dollars, and it will soon cover almost all MVA personal injury claims. As Susskind has noted, “so-called ‘disruptive technologies’ … are most successful when they start experimentally and modestly at the lower end of any given market,” so that the impact of any errors or issues is minimized. As the systems become refined and enhanced, they can take on more complex work, and “[i]n time, they become the standard way of working.”

(iii) Start new. While I conclude in this article that, for the time being, modernization is likely to stop at the digitization of current court processes, there is no reason why a fully online tribunal for certain claims could not be established at the same time. In fact, this is almost exactly what Susskind recommends. That would avoid many of the problems with “tinkering” and institutional malaise described above, and would enable the capture of data (so that the system could be tested and refined) in a way that is not possible in the current system. Disseminating data about the tribunal’s work would also promote the open court principle. The exclusion of lawyers (as in the CRT’s small claims and strata disputes) would avoid the problems with professional capture of new processes.

(iv) Start nimble. Bespoke IT solutions generally prove cumbersome and expensive. The CRT is proof that the risk of government technology failure, as well as the glacial pace of traditional procurement processes, can be minimized by using an off-the-shelf platform and then customizing it. In the CRT’s case, its case management system is powered by Salesforce, which was customized by local software design and development companies to create the Solution Explorer and the CRT’s communications portal. In Ontario in the wake of COVID-19, courts have begun to abandon older technology such as CourtCall in favour of newer, widely available, and enormously popular solutions like Zoom. Any off-the-shelf platform must also take into account privacy concerns. While the use of Zoom initially raised such concerns, password protection and the introduction of end-to-end encryption seems to have alleviated them.

Based on these lessons, the MAG would be well advised to circumvent the court system altogether and create an entirely new tribunal to handle certain types of claims, as happened in BC. Such a tribunal could be established relatively quickly, using customized off-the-shelf software, and rely on filing fees for a good part of its revenue. It would also be self-contained and restricted in scope, thereby reducing its potential for failure.

Participation in the tribunal would be voluntary, so that litigants concerned about procedural fairness can still utilize the traditional courts system. Concerns with procedural fairness could also be addressed by way of iterative user feedback. For example, through user satisfaction surveys, the CRT discovered that users find the Solution Explorer much more useful when they had someone to help them (a lawyer, friend, or family member). The CRT is now looking at the possibility of making low-cost legal helpers available for users struggling with the process. The CRT also makes an offline process available for those who have difficulties accessing the Internet, and this should also be available in any online tribunal in Ontario in order to address concerns about the “digital divide”.

I would suggest that, as in BC, the new tribunal should be focused entirely on small claims up to a certain figure. The thirty-five thousand dollar limit in Ontario’s small claims court would probably be too high – something closer to the CRT’s limit of five thousand dollars would be a better start – but the amount could be increased if the tribunal is a success (i.e. if it attracts a significant number of litigants that would otherwise have gone to small claims court, and they are satisfied with the tribunal’s performance based on certain indicators). The new tribunal would be almost entirely online, and able to function without the need for in-person hearings. This would differentiate it from Ontario’s small claims court, which has suspended operations for non-urgent matters until 2 November 2020 – thereby barring access to justice for small claims for more than half a year.

Conclusion – Looking to the Future

Given the limited prospects for fundamental reform in Ontario’s civil justice system, then, what hope is there for online courts in the province? If the backlog becomes as overwhelming as it did in British Columbia, the Attorney General may, as I have recommended in this article, choose to outsource smaller value civil claims to a separate online tribunal. It is unlikely that this will happen in the near future, however. Justice priorities in the immediate future will almost certainly be focused on addressing the backlog by modernizing the existing court system.

It therefore seems that reform will stop at the digitization of the existing system. That is a good start, but it is not sufficient. As Jordan Furlong has stated, “[y]ou can’t apply a Band-aid when you need a DNA replacement.” There is general agreement that the court system in Ontario has been too slow, too costly, and inaccessible for too long, and that the current crisis will only exacerbate the backlog. Moving current procedures online will not reduce this backlog and will only replicate the errors of the past. We need to do better and begin to fundamentally transform our justice system in the interests of those who come to it for the resolution of their disputes. It would do little good to modernize our courts, only to be left with a system that is as slow, expensive, and inaccessible as the old one.