Online and In-Person Hearings: The Best of Both Worlds Civil Procedure Column, June 9, 2022

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For a while during the pandemic, online hearings were the only option for courts and tribunals. Justice was done on Zoom, or else it wasn’t done at all.

Now, as we emerge from the age of Covid (knock on wood!), online vs. in-person is a recurring controversy across Ontario’s justice sector. After the Superior Court of Justice ordered most contested family law matters to return to court, a group of family bar lawyers organized in defence of the online option. By contrast, the Landlord and Tenant Board is insisting on fully online practice, while the Advocacy Centre for Tenants Ontario states that “going digital has been a failure” and calls for a return to in-person hearings. The online vs in-person controversy is also litigated on a case-by-case basis. For many civil trials, in the absence of party consent an expensive procedural motion may be necessary to resolve the question of online vs. in-person.

Technologies of Justice

The online hearing, and the in-person hearing, are both technologies, in the sense of “manner[s] of accomplishing a task… using technical processes, methods, or knowledge.” The task which hearings of either type should accomplish is the resolution of legal disputes in a just, expeditious, and affordable way.

Here are three ideas that might be helpful as the justice system engages with online vs in-person controversies.

1. Client-Centred

The justice system does not exist for the benefit or convenience of lawyers, court staff or judges, but rather for clients and the broader public. The diversity of clients and their needs must be clearly understood by those who make these decisions. For example, some Landlord and Tenant Board litigants live far away from the place where an in-person hearing would be held. They enjoy much greater access to justice if it is online. However others have little or no access to the devices and data needed for a video hearing. The LTB must find a way to give them access to justice too.

2. Internationally and Inter-provincially informed

Too often, discussion about justice reform in Ontario seems to proceed as if Ontario has the only justice system in the world. We Ontario lawyers talk to each other, and on a good day we might also consult with clients and other professionals working in the field. Far too seldom do we search the globe (or even the continent) for best practices and successful models that we can apply (with appropriate modifications) here. Every jurisdiction in the world has divorces and tenants, and many of these places are quite similar to Ontario. Our ignoring the progress they have made in justice system design is no more sensible than doctors ignoring breakthroughs in cancer treatment from abroad.

3. Remember It’s adversarial

One major difference between treating cancer and designing justice systems is that in the latter case everyone is not pulling in the same direction. In a motion about whether a civil trial should be in-person or online, the parties are not typically putting their heads together to figure out which approach will produce better access to better justice. Instead, each is advocating for the option that favours its own side. Likewise the Advocacy Centre for Tenants Ontario is exactly what its name suggests – an advocate for tenants, not landlords.

Neutrals (judges, tribunal chairs, the Attorney General, etc) are ultimately responsible for resolving online vs in-person controversies, and all other procedural controversies. They must listen closely to stakeholders and litigants, but they must also draw on research, and intelligent leadership, to make just decisions in the public interest. When people who are unorganized and lack powerful insiders to speak up for them- such as self represented litigants- have distinct interests at stake, it is especially important that the neutrals actively inquire into these interests.

Should hearings be online? Should hearings be in-person? The answer is yes. We need the best of both worlds, and we need intelligent and evidence-based justice system leadership to deliver it.