Facilitating Access to Justice Through Innovation
Megan PhyperThursday, July 4, 2019
Many people experience civil justice problems, but few involve the courts. Rebecca Sandefur, an associate professor of sociology and law at the University of Illinois, has researched the frequency of justice problems and found that less than a quarter of Americans experiencing civil justice issues used the courts to resolve their disputes.[1] Findings from the Canadian Forum on Civil Justice’s national “Cost of Justice” survey also found that while 95% of adults in Canada try to do something about their civil and family justice problems, only about 7% appear before courts or tribunals to resolve their problems.[2]
Legal scholars have documented a large justice gap in North America, which sees many low- and middle- income individuals experience significant challenges engaging legal help to resolve their everyday legal problems through the formal justice system, as well as through other means. Recent research further reveals the extent of the global justice gap. The 2019 Innovating Justice report by HiiL and the Task Force on Justice indicates that overall, two-thirds of the world’s population lacks meaningful access to justice. [3]
There are significant consequences to untreated civil justice issues, in terms of both personal and societal costs.[4] Legal problems also result in other significant issues in people’s lives, including job loss, poor health, and housing instability.[5]
Innovation to Address Unmet Legal Needs
To address the global access to justice problem, we cannot keep going down the same path. It is important to challenge the status quo and adopt new ways of facilitating access to justice. Transitions in technology, the economy, and the legal profession make changes in justice systems inevitable. Gillian Hadfield, renowned professor of Law and Economics, posits that the legal system needs “a revolution of change”. [6] Similarly, in a recent blog post, Chief Justice of British Columbia, the Honourable Robert Bauman, encouraged lawyers to embrace disruptive changes in law.[7]
Disruption should be welcomed, as it provides new opportunities for developing innovative approaches to legal service delivery. There is a large group of people with unmet legal needs that are not being addressed in the current system. New models of legal assistance need to be adopted to meet the existing demand for services. Innovation does not solely rely on building new technology, it can also involve changes in where services are delivered and how legal professionals provide assistance. Other innovations may involve modifying the organizational structure of courts, law societies, and law firms. Overall, innovation is about rethinking what the justice system does and how it does it.
To find solutions, we need to change our beliefs and assumptions about the justice system. The Task Force on Justice describes this process as developing “new mental models”.[8] Using new approaches, we can build technologies and services to help close the justice gap. Creative ideas for delivering legal services are key to facilitating access to justice.
Canadian Justice Sector Innovations
Justice systems across Canada are also finding innovative ways to improve access to justice. One recent example is the Wellington County Mobile Legal Service in Ontario.[9] This initiative, which is being run by the Legal Clinic of Guelph and Wellington County, offers free legal advice to people residing in the region who would not otherwise be able to readily access legal help. The service operates through a van which drives around the county. People seeking legal advice connect with outreach workers in the van, who then skype a caseworker from the clinic to do a consultation. Taking legal services beyond the office and on the road is a simple idea but has a huge impact on people living in rural areas.
Another approach that has shown promise is Ontario’s One Judge Model pilot project. [10] This initiative, which launched in February 2019, was put in place to help speed up civil justice cases heard in the Superior Court. Parties will be assigned a case management judge depending on a number of factors, including the case’s complexity and public importance. For approved cases, one case management judge is present at pre-trial hearings, case-management conferences, and trial. The case management judge controls the pace of the proceeding by assigning a trial date and imposing a schedule for completing necessary steps. By controlling the behavior of parties, ensuring the litigants meet deadlines, and resolving pre-trial disputes, this form of case management helps to save time and money. An additional benefit of the One Judge Model is that judges can become very familiar with the parties’ dispute. This allows for greater efficiency because only one judge needs to learn about the issues involved in the case, rather than the multiple judges usually involved. As this is only a pilot project, it is not available everywhere in Ontario and not all cases will qualify.
British Columbia took a different approach to court system efficiency, by adopting an innovative new method of dispute resolution that avoids judges and courtrooms all together. The province launched Canada’s first online tribunal in 2012.[11] The Civil Resolution Tribunal (CRT) began as a way to resolve condo disputes but has since expanded to small claims and motor vehicle accident injury disputes. The easy-to-use website helps users classify their disputes, identifies the correct application form, and guides them through the process. All of the tribunal’s services are available online, with paper forms available for people who do not have access to computers or who cannot use them. The CRT is available 24 hours a day, 7 days a week, and all steps in the process can be done when convenient for the user. The focus of the CRT is on participants finding a resolution through negotiation. A CRT member will only make a decision about the dispute if the parties cannot come to an agreement with the help of a case manager. Most participants can resolve disputes in ninety days for about $200.[12] In May 2019, over 9,000 disputes were resolved using the CRT, with 72% of users likely to recommend the website to others.[13] This innovative method of legal service delivery allows people greater access to dispute resolution, while focusing on party driven outcomes.
Lessons from Other Countries
There are many opportunities for adopting innovative ideas from jurisdictions outside of Canada. Additionally, there are many initiatives in Canada that are challenging traditional ways of providing legal services and providing innovative new methods. In expanding these programs, the country should follow the recommendations of the Task Force to ensure that innovations contribute to access to justice.
The report by the Task Force features examples of innovations in the provision of legal services that are happening worldwide. While British Columbia uses online dispute resolution (ODR) for some disputes, ODR could be used more broadly throughout Canada. In other jurisdictions online platforms help guide parties through divorces, and help them work towards a fair agreement.[14] In China the use of ODR has expanded to include commercial and intellectual property disputes involving the internet.[15] This expansion of the use of ODR can offer new ways to speed up dispute resolution and can prove to be an accessible way for people who live in rural areas, or who have difficulties accessing the courts, to resolve their legal problems.
This blog has presented only a few examples of the ways that innovative changes in the delivery of legal services can help to improve access to justice in Canada (and in other jurisdictions). Access to civil justice continues to be a significant global problem and an increasing body of evidence demonstrates a growing justice gap. It is time to begin thinking differently about our approach to access to justice. Hopefully, the comments presented here have served to illustrate what is possible and what is needed to move towards closing the justice gap.
[1] Rebecca L Sandefur, “Americans’ Experience with Civil Justice Problems and the Role of Civil Legal Assistance” (Research presentation to the inaugural meeting of the White House Legal Aid Interagency Roundtable, US Department of Justice, 29 February 2016) at 3, online: LegalAidResearch.org <http://legalaidresearch.org/wp-content/uploads/Sandefur_Americans-Experience-with-Civil-Justice-Problems-and-the-Role-of-Civil-Legal-Assistance.pdf>.
[2] Trevor C.W. Farrow, Ab Currie, Nicole Aylwin, Les Jacobs, David Northrup and Lisa Moore, Everyday Legal Problems and the Cost of Justice in Canada: Overview Report (Toronto: Canadian Forum on Civil Justice, 2016) at 9, online: CFCJ <https://www.cfcj-fcjc.org/sites/default/files/Everyday%20Legal%20Problems%20and%20the%20Cost%20of%20Justice%20in%20Canada%20-%20Overview%20Report.pdf>.
[3] Innovation Working Group of the Task Force on Justice, Innovating Justice: Needed and Possible (The Hague, Netherlands: HiiL, 2019), online: <hiil.org/wp-content/uploads/2019/02/Task-Force-on-Justice-Innovating-Working-Group-Report.pdf> [Innovation Working Group].
[4] See for example, Ab Currie, The Legal Problems of Everyday Life The Nature, Extent and Consequences of Justiciable Problems Experienced by Canadians (Ottawa: Department of Justice Canada, 2009), online: Department of Justice <https://www.justice.gc.ca/eng/rp-pr/csj-sjc/jsp-sjp/rr07_la1-rr07_aj1/rr07_la1.pdf>.
[5] See for example, Lisa Moore, Ab Currie, Nicole Aylwin, Trevor C.W. Farrow and Paul Di Libero, The Cost of Experiencing Everyday Legal Problems Related to Physical and Mental Health (Toronto: Canadian Forum on Civil Justice, 2017), online: CFCJ <https://cfcj-fcjc.org/sites/default/files/docs/The%20Cost%20of%20Experiencing%20Everyday%20Legal%20Problems%20Related%20to%20Physical%20and%20Mental%20Health.pdf>; See further, Lisa Moore, Ab Currie, Nicole Aylwin and Trevor C.W. Farrow, The Cost of Experiencing Everyday Legal Problems Related to Loss of Employment and Loss of Housing (Toronto: Canadian Forum on Civil Justice, 2017), online: CFCJ < https://cfcj-fcjc.org/sites/default/files/docs/The%20Cost%20of%20Experiencing%20Everyday%20Legal%20Problems%20Related%20to%20Loss
%20of%20Employment%20and%20Loss%20of%20Housing.pdf>.
[6] Ian Mulgrew. “Ian Mulgrew: Legal system needs a revolution to deal with digital economy, says expert”, Vancouver Sun (16 May 2019), online: Vancouver Sun <https://vancouversun.com/opinion/columnists/ian-mulgrew-legal-system-needs-a-revolution-to-deal-with-digital-economy-says-expert>.
[7] Honourable Robert Bauman, “It’s the Economy, Stupid” (29 May 2019), online (blog): NSRLP <https://representingyourselfcanada.com/its-the-economy-stupid/>.
[8] Innovation Working Group, supra note 3 at 6.
[9] Anam Khan, “Law van delivers free access to legal advice throughout Wellington County” GuelphToday (3 June 2019, online: GuelphToday <https://www.guelphtoday.com/local-news/law-van-offers-free-access-to-justice-to-people-in-rural-areas-1487125>; CBC News, “Mobile legal clinics coming to rural Wellington” CBC News (22 January 2019), online: CBC News <https://www.cbc.ca/news/canada/kitchener-waterloo/mobile-legal-clinics-coming-to-rural-wellington-1.4979593>.
[10] Aidan Macnab, “Pilot launched to speed civil justice”, Canadian Lawyer Magazine (30 January 2019), online: Canadian Lawyer Magazine <canadianlawyermag.com/legalfeeds/author/aidan-macnab/pilot-launched-to-speed-civil-justice-16791/>; Superior Court of Justice, “Practice Advisory Concerning the Provincial Civil Case Management Pilot – One Judge Model” (1 February 2019), online: Superior Court of Justice <ontariocourts.ca/scj/practice/civil-case-management-pilot/>; Judiciary Committee of the American College of Trial Lawyers, “Working Smarter but Not Harder in Canada: The Development of a Unified Approach to Case Management in Civil Litigation” (2016), online: The Society of Ontario Adjudicators and Regulators <https://soar.on.ca/sites/default/files/documents/ACTL.Cda_.Working_Smarter_Not_Harder_compressed.pdf>.
[11] Civil Resolution Tribunal, “Starting a Dispute”, online: Civil Resolution Tribunal <ontariocourts.ca/scj/practice/civil-case-management-pilot/>; Bill Henderson, “Is access to justice a design problem?”, Legal Evolution (23 June 2019), online: Legal Evolution <ontariocourts.ca/scj/practice/civil-case-management-pilot/>; British Columbia, “The Civil Resolution Tribunal and Strata Disputes” (31 May 2017), online: Government of British Columbia <https://www2.gov.bc.ca/gov/content/housing-tenancy/strata-housing/resolving-disputes/the-civil-resolution-tribunal>.
[12] Shannon Salter, “Online Dispute Resolution and Justice System Integration: British Columbia’s Civil Resolution Tribunal” (2017) 34:1 Windsor YB Access Just 112, online: <https://wyaj.uwindsor.ca/index.php/wyaj/article/view/5008>.
[13] Civil Resolution Tribunal, “CRT Statistics Snapshot— May 2019”, online: Civil Resolution Tribunal <https://civilresolutionbc.ca/crt-statistics-snapshot-may-2019/>; Civil Resolution Tribunal, “Participant Satisfaction Survey— May 2019”, online: Civil Resolution Tribunal <https://civilresolutionbc.ca/participant-satisfaction-survey-may-2019/>.
[14] Innovation Working Group, supra note 3 at 13.
[15] Ibid; Sara Xia, “China’s Internet Courts are Spreading; Online Dispute Resolution is Working” (23 December 2018), online (blog): China Law Blog <https://www.chinalawblog.com/2018/12/chinas-internet-courts-are-spreading-online-dispute-resolution-is-working.html>.