A Brave New Virtual World?

In Access to Justice research, there is now a recognition that innovation and reform require input from a variety of stakeholders. This includes not only the justice system’s insiders, but its users as well. This acknowledgment has, in turn, shaped research initiatives aimed at tackling the crisis in Access to Justice. Essentially, to fix the problem, it is important to understand how the problem is experienced by actual users and what would help those experiencing the problem.

For a very long time, this was not the case. And while great strides have been made over the last several years among justice systems attempting to understand user experience, we are lately reminded of the importance of this lesson in the context of virtual hearings.

A recent history of virtual legal processes

Prior to March 2019, virtual and telephone hearings were a limited option in particular circumstances and cases.

However, this all changed when the pandemic hit. In a very short amount of time there was much work done by courts and governments to move online. And, as a result of this move, there is a growing body of commentary and literature that considers and critiques this shift from a variety of perspectives, including Access to Justice. Yet, in most of this literature, there is one voice missing: that of the litigant.

For those litigants represented by counsel, the move online may have been inconvenient or considered a second-best alternative. But the reality is that members of the legal profession would have invested in the resources and training necessary to serve their clients in an online world. This would have made the transition to virtual hearings for represented litigants challenging, but doable. The situation is very different for self-represented litigants. The move to virtual hearings may have potentially addressed certain obstacles for SRLs, but also created new ones.

Interestingly, the National Self-Represented Litigant Project’s data generated during the pandemic suggested that of those self-represented litigants questioned 89% were interested in participating in virtual hearings. That said, having participated in virtual hearings, 62% reported a negative experience. So, while the option of virtual hearings appealed to many litigants, the reality of participating in online hearings was very different. At the same time, we were hearing anecdotally from many SRLs about their experiences with virtual hearings: some expressed that the move to a virtual setting made things easier for them, but many others expressed stress and frustration, and the feeling that the move to virtual hearings had lessened, rather than increased, their practical access to justice.

From the NSRLP’s perspective, it is important to understand the SRLs’ experiences and the corresponding shift in attitudes. What caused individual SRLs to change their views on virtual hearings? What challenges did they face in accessing or participating in hearings online? And what might the implications be for holding virtual hearings more broadly?

Where are the user voices?

A canvass of the existing literature on virtual hearings suggests that, to date, no one has specifically asked SRLs about their experiences. This failing is made more urgent by the reality that virtual hearings are likely to continue well past the pandemic and become a common feature in the justice system.

Virtual hearings are often lauded as making a positive contribution toward the Access to Justice crisis. The British Columbia Civil Resolution Tribunal (BC CRT) is a good example of an online hearing context that allows individuals to resolve certain types of disputes without a formal in-person hearing, and its development was based on a great deal of deliberate and strategic user testing, which is ongoing. The BC CRT has been rightfully celebrated internationally for the ways it expands the access to and delivery of justice. It provides a positive model for how to develop digital and virtual processes within the justice system. Obviously, expanding the ways in which justice is accessed and delivered serves to improve the legal system and individuals’ participation in it. But there is a need to ensure that new delivery models are meeting the needs and abilities of the public the models are meant to serve, as the CRT has done. A failure to do so will result in the development of virtual systems that reinforce and exacerbate the same challenges and shortcomings present in the in-person system.

Unfortunately, it appears that most of the virtual processes developed since the pandemic have not taken the same rigorous, user-tested process that the CRT did. Certainly, in the immediate pressures of the early pandemic, this can be understood and forgiven. But nearly three years in, it is past time for these systems to undergo systematic user feedback, and thoughtfully examine the ways in which they are working and not working, rather than continuing to expand in an ad hoc way. For example, in the administrative context, the Government of Ontario has indicated that Tribunal Ontario has and will continue to conduct many of its adjudicative hearings online and/or via telephone participation. The Tribunal Ontario Portal for users accessing the Landlord Tenant Board, states that, “it is streamlining the dispute resolution process by allowing applications to be filed, processed, and scheduled online.” Again, this decision is held out as a step toward better access for Ontarians because it creates speedier and more efficient processes.

Assumptions about access to justice

The assumption is that online filings and hearings are faster, more accessible, and easier to maneuver, particularly for individuals representing themselves. However, this move has seemingly not been without significant challenges to users that the NSRLP argues are likely to fall disproportionally on those attempting to navigate the system without representation, and these challenges have not been examined or addressed.

Such a concern has played out recently in the context of the Landlord Tenant Board. The Advocacy Centre for Tenants Ontario (together with complainant Lorraine Peever) recently filed a human rights complaint against Tribunal Ontario (among others) in respect of the disproportionate impact that virtual proceedings have on certain individuals. As noted by one of the community legal workers involved in the case, “[w]hen you do a single system with a delivery mode that’s digital, there’s a generation of people that didn’t grow up with computers.” Consistent with this observation, the NSRLP’s statistics on SRLs suggest that it is the older generations that are most often representing themselves as opposed to the more computer-savvy younger generations.

The demographics on self-represented litigants tell us something about who is compelled to represent themselves in the justice system. These demographics suggest that SRLs are more likely to come from lower socio-economic circumstances, be working poor, members of BIPOC or marginalized communities, and face language or literacy barriers. For these individuals, the question must be whether navigating a virtual justice system on their own is indeed practically possible, let alone preferable.

In a country as large as Canada, the questions of remote access and reliable internet also become a significant concern. While virtual hearings provide the possibility of litigants not having to travel great distances to access a ‘brick and mortar’ courthouse, the fact that internet access even an hour outside Toronto can be spotty undermines the potential benefit of a virtual hearing.

It is worth noting that, presumably in response to some of these concerns, Tribunal Ontario has opened access terminals that individuals may use if they do not have a computer, phone, or reliable internet in five centres in Ontario: the result being that individuals travel to an access terminal instead of a courthouse?

All these issues suggest that if we are to consider the use of virtual hearings, we ought to consider very carefully the impact on those who already struggle to access the civil justice system in a meaningful way.

An opportunity to thoughtfully develop

Beyond addressing some of the practical challenges associated with conducting online processes, this is also a moment in time that can be grasped. Still in the early days of virtual legal processes, right now we have the opportunity to undertake a clearler articulation of who currently benefits from this system, and how it ought to be organized to ensure participation by all justice system users. This means that, to the extent that virtual hearings will continue in both the administrative and civil justice system (and it is assumed they will), it is imperative that the processes and procedures that take place in those settings be designed in a deliberate fashion and not simply as a digital version of the current adversarial system. How might this fact impact the design and organization of a virtual decision-making process?

For too long, access to justice initiatives have attempted to fit piecemeal reform into an existing dispute resolution framework that was not built for those without counsel. The evolution of virtual hearings and online dispute processes provides an opportunity for thinking about these processes in very different ways. Crucial to undertaking this exercise is engagement with those who have accessed the system virtually – not just in terms of the challenges they have faced, but also in terms of how they might better participate, and what they need out of a dispute resolution process. Such an exercise would also recognize that different types of matters may require different processes that are framed in different procedures: what works for commercial disputes may not work for landlord tenant disputes.

The online hearing process in British Columbia provides an interesting starting point from which to think more broadly about how individuals can and should engage in legal processes. The operating assumption being that a multi-door approach, taking account of all the relevant stakeholders, is more likely to result in a fairer, more responsive, and a more participatory justice system.

What NSRLP is doing

We’re happy to announce that, with generous funding from the McLachlin Fund, this year the NSRLP will undertake qualitative research that seeks to explore some of these issues in the context of self-representation. This obviously entails a consideration of what we have learned from the urgent transfer to virtual hearings on a large scale, and what the challenges are going forward. Fundamental to exploring this project will be the need to understand the benefits as well as the challenges of virtual hearings from the perspective of SRLs. The NSRLP seeks to gain insights, feedback, and input from SRLs across the country in respect of their experiences participating in virtual hearings, in any and all contexts. It is hopeful that the data will highlight the challenges associated with SRLs accessing justice virtually and generate recommendations that aim to better support SRLs’ participation in these spaces. The goal is to contribute urgently needed data and recommendations regarding the practical function of a virtual component to the justice system, and to inform the dialogue currently unfolding in real time. The hope is that this research will contribute to an important discussion – namely, where we go from here?

– Jennifer Leitch, Executive Director, NSRLP

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[1] The author would like to thank Dayna Cornwall for her substantive comments as well as editing expertise.