Law Times

Law Times • augusT 8, 2016 Page 5 www.lawtimesnews.com B.C. has new online system Are virtual courts the way of the future? BY ALEX ROBINSON Law Times A new B.C. online small claims court system has some Ontario law- yers asking themselves, "Why not us?" The new system has opened the door to the possibility that courts across the country will one day be mainly online or without human employees. Videoconferencing is an in- creasingly common tool used in Ontario's courtrooms, but lawyers say there are many sub- stantial hurdles the province needs to overcome before it gets anywhere near having people- less courts. "You're decades off, but 10 years ago I wouldn't have thought I could make a phone call on my watch," says Jacque- line King, a partner at Shibley Righton LLP. King says Ontario's court- rooms could eventually be com- pletely online, but one of the big- gest challenges in getting to that point will be digitizing court documents. "First you have to move to electronic filing in a much more significant way," she says. "The parties all need to have access. So we have a lot of glitches that still need to be worked out." The new B.C. system, called the Civil Resolution Tribunal, currently only takes condo- minium strata disputes, but it is expected to accept small claims cases by early 2017. The system allows for disputes between par- ties to be filed and resolved on- line. The CRT will direct parties to a facilitator who will conduct proceedings via videoconfer- ence or telephone. If that stage is not successful, the case will be sent to an adjudi- cator, who will receive the infor- mation electronically, commu- nicate with the parties via vid- eoconference or telephone and send a ruling to them via e-mail. Shannon Salter, the chair- woman of the CRT, says the idea behind the system could even- tually be applied to other court levels and in other jurisdictions such as Ontario. "When you unshackle people from being bound by time and money and geography, I think you can really reduce access to justice barriers, and I think there may well be other applications for that kind of approach," she says. "If you can design justice pro- cesses that don't require people to do anything differently than they would have to do for online banking or e-mailing or looking for government information or services, then you're designing a pretty accessible way for them to engage with those services," she adds. The B.C. provincial govern- ment already has plans to ex- pand the CRT technology for other tribunals. Another barrier in Ontario to virtual courts is that the tech- nology in its videoconferencing systems also has further to go before it can be fully depended on, lawyers say. Glitches when using Skype or other video sys- tems can often result in delays in proceedings. "There is going to be a bit of a lag between that technology becoming smoother," King says. "You're going to have a lot of those problems, and I think we're four or five years from that being ironed out." Lawyers in rural districts of- ten have to depend on videocon- ferencing to attend proceedings in family court matters, where the judge can be in one location and counsel in another. Lawyers say a greater access to justice is the main benefit of using videoconferencing sys- tems as they are more efficient and can save money. But glitches in technology need to be fixed before it can be used widely in trials, King says. In Ontario, witnesses can testify in civil trials from other places and defendants in custo- dy can appear at hearings with- out being transported from jail. The technology is also used in criminal courts to allow vulner- able witnesses such as children to testify via videoconference. The province first started installing videoconferencing equipment in courtrooms in 2000, after amendments were passed in the Criminal Code to allow videoconferencing for re- mand and bail appearances. In 2015, the Superior Court of Justice introduced a pilot program for videoconferencing between courthouses for pre- trials, family case conferences, family settlement conferences and family trial management conferences. The provincial government has cautiously introduced tech- nological advances in a piece- meal basis, lawyers say. James Morton, a past presi- dent of the Ontario Bar Asso- ciation, says the provincial gov- ernment's cautious approach to implementing such systems is because of the Integrated Justice Project, a planned electronic document system for courts, which was axed in 2002 after costs well exceeded projections. "[It] was an excellent idea, but it was just ahead of its time. So my sense is that there is an institutional memory, which leads the provincial govern- ment to not want to be the trail- blazer in technological areas," he says. Morton says the govern- ment is right to not want to be trailblazers in the area as it would be safer to let videocon- ferencing be well established in the private sector first. More recently, the provincial government abandoned a com- prehensive system that was be- ing developed to digitize court functions in 2013. One of the improvements Ontario has seen when it comes to modernizing its courts is the recent expansion of a pilot proj- ect that provides digital filing for Small Claims Court, but lawyers say this is just a baby step. Another barrier to introduc- ing a fully paperless and virtual court will be the ongoing cost of keeping the system up to date, Morton says. "It's something that needs to have a significant capital invest- ment. And, unfortunately, it's a capital investment that probably will not be long term," he says. "By that, the videoconfer- encing abilities are improving so rapidly and the systems are changing so rapidly that even if you put a state-of-the-art system at the Ottawa courthouse . . . two years from now it's going to be completely outdated and out- moded." Not everyone is sold on the possibility of courtrooms mov- ing toward such systems. Some in the legal community have voiced concerns that videocon- ferencing can lead to problems in determining the credibility of witnesses. "A video link is not a substi- tute for a proper witness in the witness box," Morton says. Morton says videoconferenc- ing, however, can be a sensible alternative when the witness is an expert whose credibility is not in question. Lawyers say there is also re- sistance within the profession to move toward modernizing the courts. "The judges and lawyers are still used to paper," Morton says. Retired Superior Court Jus- tice B.T. Granger says using videoconferencing in hearings and pre-trial proceedings is one thing, but most judges prefer to have witnesses in front of them. "Most judges feel the main participants in a trial should be in the same room," he says. Vir- tual courts will likely come to Ontario, but not soon. "The courts have to stay cur- rent with the times," he says. "It used to be you had scriveners doing statements of claim in old- fashioned handwriting and now we have computers the same way that the Kindle is replacing the paperback model." LT NEWS Platinum Sponsor Silver Sponsor Bronze Sponsor Hosted in Partnership With Date: Sept. 8, 2016 Location: Arcadian Court, Toronto 6 p.m. Cocktail Reception 7 p.m. Gala Dinner and Awards Presentation Keynote Speaker: Brian Zubert, Director, Thomson Reuters Labs - Waterloo Region Dress: Business Attire Innovation. It's in our DN The Canadian Lawyer InHouse Innovatio Awards celebrate in-house counsel, both individuals and teams, who have found ways to show leadership by becoming more efficient, innovative and creative in meeting the needs of their organizations within the Canadian legal market. innovatio-awards.com Bronze Sponsor Presented by Bronze Sponsor Untitled-2 1 2016-08-04 3:45 PM Jacqueline King says there are technologi- cal glitches that are holding back Ontario courts when it comes to progress.

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