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Why are Canada's courts not online?
Elliot Herzig: Just about everything is online these days. Why not Canada's courts?
Our justice system is inaccessible to many Canadians. Online courts are the solution
Seven years ago, then-Supreme Court chief justice Beverly McLachlin wrote that we are “increasingly failing in our responsibility to provide a justice system that (is) accessible.” Earlier this month, she proposed a solution: online courts. So why exactly is our justice system inaccessible and why might online courts be the solution?
Our justice system is partly inaccessible due to cost. The average five-day trial costs around $56,000, whereas average individual income is around $47,000. There’s an old joke among Bay Street lawyers that even they can’t afford their own services.
Our justice system is also inaccessible due to delay. In 2018, the last year for which data is available, 60,544 civil cases remained unresolved after two years. In 2016, the Supreme Court of Canada threw out a criminal case because it lasted over four years. Lower courts have since thrown out nearly 800 more criminal cases due to delay.
Finally, our justice system is inaccessible due to complex court procedures. Ontario’s “Rules of Civil Procedure” contain about 500 rules and subrules. So do the “Federal Courts Rules.” Each of these sets of rules have been interpreted and reinterpreted by judges. Obeying court procedure has become so difficult that lawyers often justify their fees not by their clever arguments or wise strategies, but their procedural know-how.
This problem is not unique to Canada. In fact, Canada has one of the most accessible justice systems in the world. The issue of access to justice is global. Unfortunately, the solution remains cloudy. Some call for higher spending on legal aid; others, for lower lawyer fees. Both are Band-Aids on a wound. The solution, in my view, is online courts.
As an example of how this could work, imagine a website with four successive modules. The first module is diagnosis. By answering a series of questions, you tell the module your problem and it explains your rights and responsibilities, along with whether you have a case, how long it will take and how much you could get.
The second module is negotiation. Once you know your rights, the negotiation module provides a platform to settle your dispute with the other side. It explains the appropriate language to use and how similar cases were resolved. This module also records the negotiation, creating a permanent record. It would also flag disputes requiring human intervention, like when one party is abusive.
If negotiation fails, the parties move to the third module: mediation. This is where a third party intervenes. Mediators can’t decide the dispute, but they can clarify the issues and suggest solutions.
Finally, if mediation fails, the parties move to the final module — resolution — in which a judge hears both sides and decides who’s right.
Think of these modules like a filter. Over 10 million Canadians are involved in a legal dispute every year. An online court could resolve many, if not most, of those disputes without a lawyer or a judge. Sound naive? Online courts already do.
In British Columbia, a modular system, like the one detailed above, handles motor vehicle, small claims and condo disputes. It’s called the Civil Resolutions Tribunal. To date, the tribunal has processed 14,482 disputes. Only 2,319 required a judge. In the tribunal’s most recent survey, user satisfaction was above 80 per cent.
Similarly, in Norway, divorce is processed online through a modular system called the Rechtweiser, which informs parties of their rights and provides a platform for negotiations. If the parties can’t agree, they may, for a fee, request a mediator and then a judge. No lawyer is required. Neither party attends a court.
Online courts will soon be the new normal. Instead of taking the stand, we will be able to sit in bed with a laptop. We do best when we’re given the tools to work on our own time. That is what online courts permit. Technology is transforming every industry — law is next.
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