Inching towards the digital age

Inching towards the digital age
Illustration: Huan Tran
Shannon Salter knows the world is watching. The pressure is palpable as she launches Canada’s — and the world’s — first  government-sponsored online dispute resolution forum in British Columbia, the Civil Resolution Tribunal.

“We’ve done a big chunk of user testing of the system and we’re doing more testing now,” says Salter, chairwoman of the CRT. Watching intently are Quebec and Ontario, which are closest to launching versions, while Alberta, Saskatchewan, Manitoba, and the Atlantic provinces also sit back and wait.

At the launch, she says, CRT will handle only strata cases (condominium disputes), the sector with the most pressing access-to-justice issue. It costs $25,000 to $35,000 to take a case to trial and thus the majority aren’t litigated. The CRT will cost just $200 to file and lawyers are optional. “These issues tear at the fabric of the community, because condos are a community,” says Salter. “We have to give people a way to resolve these issues. Because most of them never go to court, we have no idea how many we will get. Ultimately, it could be 15,000 to 20,000 cases a year.”

If all goes well, they will accept small claims cases around February 2017. The process will be predominantly online, despite arguments that viva-voce evidence and demeanour in court are an integral part of the test of veracity. “There are justice system studies which show we’re not really that good at telling when people are lying and that face to face can lead to bias,” she says. “There will be a video component, but face-to-face meetings will be very rare and up to the person presiding over the case. For someone not comfortable with technology, it might be a phone call. But it can happen online, by phone, or by video.”

There are two key drivers to ODR: cost efficiencies and access to justice. Ontario, like most provinces, struggles with an overburdened court system at all levels, but especially in Family Court and the Ontario Court of Justice where provincial offences and parking tickets jam dockets. Ontario toyed with introducing ODR to process to the provincial court last year, but the trial balloon was quickly shot down and the Ministry of the Attorney General has shelved it.

However, Ontario has opened the door again to ODR under the Protecting Condominium Owners Act, 2015, which creates a Condominium Authority Tribunal to deal with conflicts and is investigating ODR as an option.

ADR veterans such as Colm Brannigan, a lawyer and chartered mediator and arbitrator in Brampton, Ont., hopes good results in B.C. will lead to ODR for condo disputes in Ontario. “We can look at tech to do what we do now more efficiently or we can look at it to do things completely differently and that is what we need to do,” says British legal futurist Richard Susskind. “For a government to get into ODR is a sea change. It makes people look at it.”

While the private sector offers ADR services, the gravitas of a government-sponsored process is invaluable, especially to the general public, says Susskind. It’s tangible and enforceable. “As a lawyer, I have to say we haven’t progressed to the degree of other professions like doctors,” Brannigan says. “Put a doctor from 1970 into an operating room today and they would be amazed. But if you brought a lawyer from 1870 into a courtroom they would be pretty comfortable.”

The legal community for the most part remains suspicious for a variety of reasons: comfort zones, revenues, and whether their clients are best served by an ODR process that limits what they can bring to the table, he says. “The flipside to this, as we see ODR take root, is we’re going to see more disputes.”
Whereas the existing process is too expensive, an accessible and affordable process will attract more litigants with more disputes; such is the nature of the beast.

Toronto lawyer Marvin J. Huberman, an arbitrator and litigator, says: “Some also argue there are segments of the population, the poor, those who don’t speak English well, are uneducated, or even the elderly who don’t know how to use the computer, while others say the learning curve isn’t steep and it can be done. The key issue for me is what cases are appropriate. ADR really means ‘appropriate dispute resolution.’”

Matching the process to the dispute is the key, he says. “I go by the three Ps. We have the people, the problem, the nature of the dispute, and the process, whether it’s mediation, negotiation, arbitration, or litigation. Then there are hybrids such as med-arb, which might work in a particular case.” Technology provides an ever-more sophisticated means of communication and interaction, he notes, so it’s easy to tailor an online process accordingly.

Meanwhile, video conferencing either through Skype or other services is already being called into play in arbitration cases where witnesses can’t get to a hearing, so there is a natural progression and it is less of a leap, says Huberman. eBay, for example, resolves millions of cases between vendors and buyers using an ODR process.

It’s more than a nice-to-have option, Huberman suggests: “The Law Society of Upper Canada Rules of Professional Conduct impose a duty on a lawyer to explore ADR as an option as appropriate in every case.
A lawyer must discuss the ADR options with the client. It’s not just a good thing to do, it’s a must do.”

While B.C. is launching, Quebec has yet to commit, which Karim Benyekhlef finds ironic since he’s been working on ODR platforms since 1996. He is the LexUM Research Chair on Legal Information, a law professor at the University of Montreal, and director of the Cyberjustice Lab, which launched in 2010. By the launch of Cyberjustice, he and his team had already designed and launched an online mediation and arbitration platform in Europe and another domain dispute resolution platform for ICAAN, the Internet domain governance body. “We’ve been meeting with judges, lawyers, ministers, politicians, we’ve raised quite a bit of money, and we’ve got a sophisticated cyber-courtroom set up,” he says. “We also have some computer scientists working on software.”

He says the objectives to ODR are twofold: one, social-legal, since the technology has to consider the impact on the participants; the second being the techno-legal objective. “A courtroom is like a theatre. You can’t just install a single camera.” They are currently working with the Quebec City Municipal Court to install a system in its courts but are still waiting for the province to green-light a small claims platform.

The option to go the ADR-ODR route, however, should be a default one since it forces parties to make an attempt before they head to court, he says. “We’ve been talking to the government of Ontario and we hope it will go through because Quebec has paid for all this ironically and we could launch in Ontario before we finally launch here,” he says, adding the lab is also working with the Winkler Institute for Dispute Resolution at Osgoode Hall Law School. “It’s a bit ridiculous considering the time and investment here for Quebec to be taking its time.”

Despite the proven ability of ODR in different forums, there’s still pushback from governments, says Benyekhlef. Partly it may be because — as B.C. may soon discover — governments fear a pent-up demand for justice will overwhelm the platform or partly because the bench and the bar fear being marginalized. To counter this, he has worked with stakeholders and won support from Quebec’s chief justice. “Access to justice is a problem everywhere, but many of the cases are trivial,” he says. “People want a forum to express their anger. These are low-intensity disputes, but there are no forums and it’s a waste of time and money to go to court.”

ODR provides a simple, cost-effective, and democratic process to resolve those disputes, he argues, freeing court dockets for more complex matters. “It’s also a question of budgets for the department of justice where there is no money for innovation,” says Benyekhlef. “We’ve done this all in open source, so our software is free. Modify it as you wish, but just share it with us so we can create a cyber-justice community and build together.” 

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