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Tribunals: A “People-Centered” Framework

As Noel Semple, wrote earlier this year here on Slaw, each year, over 100,000 Ontarians seek justice from Tribunals Ontario which, as he points out, is far more people than will start civil lawsuits in the Superior Court of Justice each year.

In Ontario, adjudicative tribunals have jurisdiction over matters ranging from housing and tenancy disputes to employment law matters, social benefits disputes, and other types of legal matters, so when we talk about everyday legal problems – increasingly captured in legal needs surveys such as the recent Statistics Canada Legal Needs Survey and the CFCJ’s Cost of Justice Project, we are often talking about the very types of problems that will bring people into contact with the tribunal system. We are also often talking about justice seekers from low-income, vulnerable, or marginalized populations, populations that may not be able to afford legal representation. This not only makes tribunals an important part of the conversation on access to civil justice, but imperative that tribunals are accessible and ‘people-centred’.

What does it mean to be people-centered? Ten years ago in their landmark report, Access to Civil and Family Justice, A Roadmap for Change, the Action Committee on Access to Civil and Family Justice summed it up very simply: a people-centred system should focus on the people who use the system and that system should be “timely, efficient, effective, proportional and as just as possible.”

In theory, tribunals should do people-centered justice best. As Lorne Sossin observed, in his article, “Designing Administrative Justice”, tribunals were designed be “different” than the courts. Tribunals are specialized and deploy specific expertise beyond legal expertise to make them more adept at addressing the disputes that come before them; they are meant to be more informal, less complex, and less “legalized” than the courts. In the words of former Chief Justice Beverly McLachlin, “Tribunals offer flexible, swift, and relevant justice. In an age when access to justice is increasingly lacking, they help to fill the gap.”[1]

Recently, however, it has become apparent that tribunals may be struggling to fill this gap. In Ontario, for example, there is a backlog of cases resulting in significant delays, a challenge which has garnered media attention and the attention of groups like Tribunal Watch Ontario. This year, the Ombudsman of Ontario’s “Administrative Justice Delayed, Fairness Denied” report also highlighted issues with Ontario’s tribunals, and the Landlord and Tenant Board in particular. More generally, it has been observed that Canada’s tribunals have, over time, moved away from their more informal and flexible beginnings to become more judicialized and bound to the same adversarial models as the courts.[2]

So how might we move forward to recapture the potential of ‘doing things differently’ through the tribunal system? The first step will be to try to understand the ways in which adjudicative tribunals are or are not aligning with a people-centred justice framework.

One such framework is offered by the Organisation for Economic Cooperation and Development (OECD). The OECD’s framework is structured around 4 pillars, meant to help guide governments in designing strategies for providing people-centred justice and may be applicable both as a potential lens to measure people-centered access to justice in Ontario’s tribunal system and as a set of objectives that the government could promote in their efforts to improve accessibility. The framework’s four pillars are:

  1. Designing and delivering people-centred services. This pillar focuses on designing and maintaining justice service delivery in a way that is aligned with users’ justice needs. Here there is particular emphasis on delivering accessible services for all users, especially the most vulnerable.
  2. Governance enablers and infrastructure. In this pillar, the importance of government and justice actor engagement in creating and maintaining accessible systems is highlighted. It asks such actors to foster access to technology and data, encourage the pursuit of system simplification, and promote and support people-centred innovation.
  3. People empowerment. Here the emphasis is on building capability of both sides of justice service delivery. This pillar encourages the empowering and educating of justice users by raising legal literacy and including them in the reform and design of services. However, it also includes developing the capabilities of those working in the justice system to deliver services in a way that facilitates accessible and is people centered.
  4. Planning, monitoring, and accountability. The final pillar highlights the importance of relying on evidence-based research to guide decision making and evaluate service delivery. Without effective data and research on what is working and not working, we are unlikely to improve access to justice.

These pillars offer high-level principles that afford justice institutions, such as tribunals in Ontario and elsewhere, a great deal of latitude to determine how they might adapt their design and delivery of services to align with these goals. Given their relative autonomy and ability to adapt their own rules and processes to meet the needs of specific justice seekers, tribunals have a unique opportunity to design or (re)design their services in ways that align with these pillars.

And, there is no shortage of ideas for example, Paul Aterman recently wrote in Canadian Lawyer Magazine about his top four ways in which tribunals could make themselves more people-centred. These are: active adjudication, plain language, commitment to user-centered design and public accountability. These are changes that don’t necessarily require large-scale or costly investments in technology (which is sometimes mistaken as the only way to ‘modernize’ and increase accessibility). Rather, these are changes that are largely cultural in so far as they require new thinking about how ‘justice’ is imagined and delivered at an organizational level, but also by all individuals who ‘touch’ a dispute – from tribunal staff right through to those mediating or adjudicating the disputes. These suggestions cross all four pillars in various ways.

On a more technological front, as many Slaw readers will be aware, British Columbia’s Civil Resolution Tribunal, has been on the forefront of disrupting the traditional modes of justice delivery with their fully online tribunal, where technology has been central to shifting not only how services are delivered but also in promoting a culture shift towards a more current notion of user-centered justice. Here in Ontario, the Condominium Authority Tribunal (CAT) of Ontario has followed suit.[3] As Ontario’s only fully online tribunal, the CAT offers online self-help tools, and a three-staged process, that includes several “off ramps” for the dispute as parties are offered the opportunity to negotiate first with each other, then mediate with the help for a tribunal member and then have the dispute adjudicated, if the conflict cannot be resolved. In the past fiscal year, as Marc Bhalla notes in his recent Slaw post, over 60% of CAT cases closed were resolved at a collaborative process stage (i.e. negotiation or mediation). Offering early ‘off ramps’ is helping.

These two tribunals are not alone in seeking more people-centred approaches to delivering administrative justice, with different tribunals opting for different approaches that seem to highlight different pillars. For example, the Social Security Tribunal of Canada’s quest to provide more accessible service leans heavily on pillar number four, “Planning, monitoring and accountability.” It uses the Access to Justice BC’s Access to Justice Measurement Framework, which sets out three dimensions of access to justice – improved user experience, improved population access, and improved costs along with The Department of Justice (DOJ) Access to Justice (A2J) Index to carefully measure the tribunal’s strengths, gaps and progress in accessibility and to ensure changes it makes to its services align with a public first approach.

However, while some solutions may lean more heavily on a specific pillar, like technology, empowering or measuring, as the OECD stresses, these pillars are not silos, they are independent but also interdependent. To make administrative justice more accessible, we will need to look for solutions that sit evenly atop the four pillars. And, while we certainly cannot and should not turn a blind eye to the difficulties, challenges, and perhaps failings of some aspects of the tribunal system, seeking out evidence-based research and best practices frameworks such as offered by organizations like the OECD may provide a viable way to chart a path forward.

Nicole Aylwin,
Senior Research Fellow

Canadian Forum on Civil Justice

 

This blog was produced as part of the Canadian Forum on Civil Justice’s Access to Justice through the Tribunal System project. The project is funded by the Law Foundation of Ontario (LFO). For more information, please visit the project page on the CFCJ website.

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[1] Remarks of the Right Honourable Beverley McLachlin, P.C. Chief Justice of Canada, 6th Annual Conference of the Council of Canadian Administrative Tribunals, Toronto, Ontario May 27, 2013. See: https://www.scc-csc.ca/judges-juges/spe-dis/bm-2013-05-27-eng.aspx#:~:text=In%20sum%2C%20without%20administrative%20tribunals,there%20is%20no%20going%20back.

[2] For example, see Michelle A. Alton, “Rethinking Fairness in Tribunal Adjudication to Best Promote Access to Justice” (2019) 32:3 Can J Admin L & Prac. 151 and Lorne Sossin, “Designing Administrative Justice” (2017). Articles & Book Chapters. 2733. https://digitalcommons.osgoode.yorku.ca/scholarly_works/2733.

[3] Full disclosure: I am a Member of the Condominium Authority Tribunal. However, the views and opinions expressed in this piece are my own. I do not speak for the Tribunal or the Condominium Authority of Ontario.

Comments

  1. With Respect

    Note that if getting people to avoid using their adjudicative process is the measure of success the courts, even I believe the Small Claims Court, far surpass the Condominium Authority Tribunal.

    The British Columbia Civil Resolution Tribunal also duplicates the process of the courts in adding more cases than are disposed of and in most dispositions not being through a final decision of the Tribunal.

    Yours Sincerely

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