Catherine Piché: Catherine Piché, Professor at the Faculty of Law at the Université de Montréal, I am also Vice-Dean. Shana Chaffai-Parent and I are co-authors of an article in the Revue générale de droit that deals with the primacy of efficiency in justice and particularly in a context of crisis.
Shana Chaffai-Parent: Technological measures were probably those that were most requested during the COVID period. We saw the transfer of numerous actions that we were used to doing in person to a technological interface, for example remote hearings, remote testimony, evidence management via an electronic collection system. In the context of our research, what interested us most was, in the perspective of the post-COVID era, how can we exploit the advantages of technologies that go beyond simple transfer through a technological interface? We were interested in working on the notion of efficiency because it would help us understand how to better deal with the post-COVID era. More specifically, this translated first into a review of the literature on the notion of efficiency in the judicial field. We can summarize that the main problem is finding a balance between efficiency, equity and quality of justice. And so our review – so the second stage of our work – was to see good practices that respected an interesting balance between these three principles, these three dimensions.
Catherine Piché : When we think about procedure, when we think about judicial law, about the way in which judicial law allows us to organize judicial activity, there are both the fundamental rights of citizens that we must protect and then all the considerations of effectiveness, efficiency, access to justice, therefore more public considerations, access to public justice, and after that, we must balance all of that in order to make the justice system work and to allow everyone to access the justice system. So we have to say: how do we structure a system that works to allow access to all, to all citizens? There are all sorts of principles that must continue to be protected despite the technological shift, and here, the question is to know, when we have a technological hearing, a virtual hearing, is it simply a mirror of what this physical hearing would be?
Shana Chaffai-Parent: So we focused on North America, mainly Canada, the United States, to go and look for certain practices that are representative of the notion of efficiency, and then we managed to classify these practices according to three categories: management measures, technological measures, and measures related to private dispute prevention and resolution methods in a judicial context exclusively.
In terms of management measures, one of the very interesting examples of a good practice that we found is differentiated case management. The American State Courts are big users of differentiated case management. It is a method where, instead of putting the management of the time limits of the case in the hands of the parties, as we are used to doing here, the management of the flow of the case will be totally under the control of the court.
How does it work in practice? Each new case that is introduced in the courts that practice differentiated case management will be sorted into different procedural routes, if you like, which are determined by different criteria, for example the number of parties, the complexity of the case, whether there are expert opinions, etc. There are about fifteen criteria that can be chosen by the courts. The files will evolve with the help of reminders and automated information requests. So, at different procedural milestones, the parties will receive automated messages, will have to report to a docketing system that is quite technologically advanced and, when there is a problem or when there are delays that are not appropriate in relation to the targets that have been set, we will be able to request the intervention of a judge to help the parties move forward. This system of differentiated management is very beneficial because it allows courts to improve their performance obviously, because courts will be able to have targets to try to achieve, but also to identify why, when they are not achieving their performance targets, what were the problems, and then how to improve on those problems. For those places that have started using this type of case management, we see results that have more than made up for the investments that were made over time.
A good example of private dispute resolution, where there is an overlap with technology, is the Civil Resolution Tribunal in British Columbia – the CRT. It was the first fully online tribunal in Canada and it has been a great success as it is being talked about all over the world as an example, a software-based model of dispute resolution. The CRT is a tribunal inspired by what is called the multi-door model. The litigant will register on the platform with their problem in mind and will be presented with what they call the solution finder, a technological tool for finding solutions. For example, they will be asked different questions and this will lead them to different solutions. We will ask them if they have put the other party on notice. If they haven’t, we’ll suggest models of formal notice. We will ask them if they would like to negotiate and if so, we will offer them a 24-hour online negotiation platform that will allow them to make offers and counter-offers. The next step is to propose an online mediation with a facilitator. This mediation is offered entirely online, but also outside normal business hours. So people who have a normal life, who have a job, who go home, who have children, they can settle a problem after the children have gone to bed, and that makes it much easier for ordinary people to access justice. Afterwards, if all these solutions have not worked, the CRT will allow the plaintiff to formally file an action and to have access to an entirely online trial with a physical judge who will be present, and a decision will be rendered.
The CRT has been a success since its inception. The statistics speak for themselves: over the course of a year, of the 55,000 people who entered the CRT process, a large portion of them were able to resolve their problem in ways other than through a court order. These solutions are usually expensive and require a change in culture. So in this case, the CRT was a significant investment by the BC government with some uncertainty about how the platform would work. In this case, it was a success.
Catherine Piché: The pandemic will certainly bring about a lasting change. Our conception of how a court works must continue to evolve, as well as the notions of fundamental justice which, again, must be revisited in the light of the new pandemic and post-pandemic rituals, the new values that have changed us and perhaps also our understanding and conception of access to justice and how to facilitate logistical access.
