By Kirsten McMahon
A recently released report from the Canadian Bar Association details how the country’s justice system quickly changed in response to the COVID-19 pandemic and provides recommendations to enhance access to justice in the future.
“It’s encouraging to see the CBA highlight many of the ways the justice system is continuing to evolve and advocate for a more accessible, modern and user-centred system beyond the pandemic,” says Easy Legal Group of Companies President and CEO Larry Herscu.
The report — “No Turning Back: CBA Task Force Report on Justice Issues Arising from COVID-19” — was released at the CBA’s annual general meeting in mid-February. The association launched a task force composed of members of the bench, bar and other thought leaders to assess the immediate and evolving issues for the delivery of legal services resulting from the pandemic.
Herscu notes there are two underlying themes throughout the 30-page report.
“First, the task force is clear that there is no going back to the way we used to do things. The pandemic brought about much-needed modernization, and we must continue to build on what has been implemented to date,” he says. “Second, these new measures must enhance access to justice rather than unintentionally inhibit it.”
The task force recommends all dispute resolution bodies permanently implement measures to improve access to justice, modernize and address long-standing challenges in the justice system, including:
- Availability of video, online, telephone proceedings for settlement conferences, examinations for discovery, various hearings, motions, trials and appeals — particularly for procedural, uncontested, shorter and less complex matters.
- Electronic filings (via secure drop box, online portals, email, etc.) of court documents and acceptance of service by email;
- Significant investment into the timely and effective implementation of new procedures and technologies to deliver justice remotely, including training in the proper use of that technology.
The task force notes that while dispute resolution bodies should ultimately decide if a matter is to proceed remotely, parties should have an opportunity to be heard and present their position on it.
Herscu says many of the recommendations detailed within the report echo the personal injury bar and legal suppliers’ sentiments, particularly when it comes to remote proceedings and electronic filings.
“Over the past 12 months, we have witnessed the disruption of every facet of our lives. The pandemic has also exposed deficiencies in our systems, and we have quickly pivoted to meet those challenges. Despite being more traditionally slower moving, the justice system is no different in the regard,” he says.
For example, he points to the increased use and acceptance of virtual medical assessments in personal injury claims. Virtual discoveries and mediations are more common, particularly in jurisdictions that are still facing lockdowns.
While access to justice for plaintiffs is paramount, the task force also grapples with the open court principle as well as privacy and confidentiality concerns. The report states the emergence of online proceedings can pose challenges to the public and media’s ability to access hearings.
“For example, in British Columbia, the courts require people to apply to attend virtual hearings, making it less open than simply walking into a courtroom. In Quebec, people wishing to attend hearings online must submit forms and wait for an answer. As a result, it is more difficult for the public to attend hearings,” notes the report.
As well, the report details the consequences of the justice system relying on commercial platforms “that gather, analyze and sell information generated by users (in this case, justice system participants) for profit.”
The task force suggests dispute resolution bodies look to other industries that deal with sensitive information — such as the financial services industry — to glean how to control their data, curtail their dependence on commercial platforms and protect their independence.
In the longer term, the justice system could explore developing its own platforms or open-source options.
“Alternatively, and perhaps more effective, the federal government should consider regulating private platforms or subjecting them to some level of oversight and scrutiny,” the report suggests.
Herscu says as we approach the one-year mark of COVID-19 restrictions in Canada, the innovative and efficient ways of providing services to the public are keeping things moving along for accident victims. He says having an organization like the CBA advocate for long-term change is crucial for access to justice.
“Many of the task force recommendations will be a lifeline for personal injury plaintiffs who continue to face delays as their lawyers fight for fair settlements,” Herscu adds.
The Easy Legal Group of Companies is a Canadian litigation financing firm. Its lending solutions service the personal injury sector including plaintiffs with pending injury claims, their legal representatives and the service providers involved in their cases. The firm is registered to conduct business in Ontario, B.C., Alberta and the Atlantic provinces. Services are delivered through four brands: Easy Legal Finance Inc., Rhino Legal Finance, Seahold Legal Finance and Settlement Lenders.