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Document Type

Article

Abstract

On 17 March 2020, Ontario’s courthouses shut their doors as the civil justice system locked down with the rest of the province. Regular court operations were suspended due to the state of emergency caused by the COVID-19 pandemic. This was followed by a flurry of activity as courts drew up plans to resume operations as soon as possible. The “new normal” became virtual hearings, either by video conference, in writing, or by telephone. As Attorney General Douglas Downey said, “We’ve modernized the legal system by about 25 years in 25 days.” Has the revolution arrived? Will the changes made in response to the pandemic become permanent? Will they be sufficient to address the problems of cost and delay that plague the civil justice system? This article will posit that many of these changes are likely to become permanent. However, the extent and effectiveness of change will depend on the ability of “policy entrepreneurs” to use this moment of crisis to overcome institutional inertia in the Ministry of the Attorney General (MAG) and professional resistance in the Bar. This is not the first time that “dramatic innovation[s]” have been made in response to a crisis in the civil justice system, as evidenced by the history of reform in that area. Lasting change will not come easily. Furthermore, while these changes are welcome, they are insufficient to address the crippling backlog facing the courts. A functioning civil justice system is essential to a functioning democracy, and Ontario’s civil justice system is fundamentally broken. The “paradigm shift” needs to go further. We need to entirely change our conception of how courts work, the nature of procedural justice, and our understanding of access to justice and how to facilitate it. The answer I propose, as Richard Susskind and others have, is a system of online courts, where human judges hear evidence and arguments and render decisions by way of an online platform, all within a public dispute resolution (court or tribunal) system. British Columbia’s Civil Resolution Tribunal (BC CRT) is an excellent example. I argue that, as in BC, online courts could be initiated incrementally, alongside the current system, and thereby bypass and address many of the issues facing the current court system. I conclude with some thoughts for the future. Much has been written on the subject of online courts, and the COVID-19 crisis in Ontario has precipitated numerous blogs and online articles. However, no-one has yet conducted a deep analysis of the changes in Ontario and what they mean for our court system. More importantly, my article fills a gap in the literature on online courts in general, none of which has considered the history of civil justice reform and the nature of institutional change.

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