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Power of pixie dust: Accessing justice one year later | Bo Kruk

Friday, March 19, 2021 @ 8:34 AM | By Bo Kruk

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Bo Kruk
Just over a year ago, the world fundamentally changed. Overnight, bustling downtowns resembled scenes from films like 28 Days Later. Schools closed as learning shifted online, working from home became commonplace, and the courts restricted matters to only those that were urgent. Gradually, we started to adapt to this new reality and its increased digital presence. These adjustments have spurred positive changes while others have created new challenges. Throughout this shift in our collective lifestyles, the wheels of the legal machine never stopped.

Last year, I wrote an article about the need to consider how people accessed the justice system. This article considers the developments over the past year. When we have a once-in-a-generation opportunity to critically examine all facets of our justice system, it behooves us to remember the fundamental values of that system — notably access to justice for all. COVID-19 has provided ample time to re-evaluate a profession that centres itself on tradition. We stand at a precipice. Before us lies the opportunity to reshape a system that has remained static for centuries and seek a more efficient means for people to access justice.

The impact and importance of online dispute resolution (ODR) already had a toehold prior to the emergence of COVID-19. An American report noted a marked rise in ODR sites that were attached to courts: two-thirds of the dataset (47 sites) were added in 2018-2019. We’ve seen the value of ODR during COVID-19 through B.C.’s Civil Resolution Tribunal (CRT). The most recent statistics from the CRT illustrate how ODR can be a powerful forum for access to justice. The February 2021 statistics noted that 79 per cent of users felt the system was easy to use, 82 per cent of users felt their matter was resolved in a timely manner, and 85 per cent didn’t feel the process was difficult to understand. Admittedly, the recent decision in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General) 2021 BCSC 348, shows that the substantive side of ODR still needs fine tuning. A year after videoconferences became the presumptive norm, the CRT’s statistics can be seen as testimony to the efficacy of ODR.

Despite notable differences amongst the provinces, information in matters related to small claims courts points to a general embrace of technology in the courts. In British Columbia, it is only trials in small claims court that occur in person, all other small claims matters are digital. In Saskatchewan, while matters are continuing to be scheduled subject to the judge’s discretion, parties can raise concerns about in-person hearings with the clerk, likely resulting in a virtual hearing. Similarly, virtual hearings in Alberta are encouraged. Nova Scotia has notably embraced technology. All matters are initially heard by teleconference and the adjudicator will decide if an in-person hearing is necessary. These approaches suggest a promising step forward toward the possibility of all participants being able to access justice.

This past year has illustrated the need to develop a method that maintains the traditional formality of the court while actively leveraging technology. A prime example of the deficiencies of turning to technology without considering the users can be seen in Ontario’s Landlord and Tenant Board. Stories of digital hearings preventing those lacking said technology, or the ability to use the technology, were commonplace. February marked the availability of computer and phone terminals for those lacking access, a positive step forward.

During a hearing at the Supreme Court of Canada, a judge paralleled the invocation of access to justice to pixie dust. Pixie dust to fill gaps in one’s argument since access to justice has yet to make its own body of law. The use of technology in the courts has provided the opportunity to consider just how powerful that pixie dust could be. It must lead to improvement, not a return to quasi-status quo.

With vaccines rolling out, there is an end to the pandemic in sight. Now is not the time to become complacent. We have been given the opportunity to reimagine how our justice system could better operate going forward. Instead of focusing on how to replicate the traditional courtroom, we should seriously examine ways that the entire justice process can be improved. The effective use of technology during COVID-19 has paved the way for this critical undertaking.

It took a once-in-a-century event to force the court to start actively using technology. Must it take another century to use technology effectively and provide access to justice for all?

Bo Kruk is a new graduate from the University of Ottawa’s Programme de common law en français. While he fell in love with several areas of law at law school, he is most passionate about how the law can be used to promote access to justice for equity seeking groups.

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