Online Dispute Resolution: Inching Towards the Digital Age in Canada

Topics: Access to Justice, Canada, Government, Legal Innovation, Litigation, Thomson Reuters

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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 (ODR) forum in British Columbia, the Civil Resolution Tribunal (CRT).

“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 their own 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 between $25,000 and $35,000 to take a condominium dispute 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.”

ODR

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 demeanor 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 in the Ontario Court of Justice where provincial offenses 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 of 2015, which creates a Condominium Authority Tribunal to deal with conflicts and is investigating ODR as an option.

“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.”


You can read this article in its entirety in the August issue of Canadian Lawyer magazine.