Current trends of alternative dispute resolution in Canada

Introduction

The term “access to justice” is not defined universally and is hence viewed from different angles. Every judicial system faces the challenge to impart access to justice. Over the past few years, Canada has done deliberate works to mitigate this challenge and has relatively developed methods of alternative dispute resolution. While initially the methods were developed to reduce the limitations of litigants, the long term aim was to enable access to justice by establishing an institutional vision. The Dispute Prevention and Resolution provides a faster and less expensive alternative as compared to judicial paths leading to a trial. For the last ten years, a new trend has encouraged the involvement of the legal system in the decision making leading to a process of a fair solution. This also reflects the creation of contextual vision in providing access to justice. Currently, Canadian society is working to renew this vision of access to justice.

Institutional Framework as Benchmark

The institutional approach can be defined as based on principles of – rule-making, positive legal outcomes, and involvement of expertise. The term rule making means the act of regulating. The social behaviour to maintain the relation between individual and legal entities is referred to as legal normativity. Expertise people through their knowledge and technical skills take part in the judicial system. These principles are followed to make the regulations and facilitate the legal process. This concept is presently practiced in Canada but has limitations. Justice under this approach is viewed as law enforcement. Access to justice can be improved when citizens are heard and the legal problems are solved within a judicial system. However, the problems experienced by citizens are not always related to the legal aspect but at times it is difficult to approach the court for certain matters. The development of dispute resolution has helped the parties to resolve and negotiate out of the Court.

Contextual Approach

The contextual approach is a framework that follows three principles- social regulation, proactivity, and inter-normativity of actors. Social regulation governs the relation between natural and legal persons. Social behaviour which is punishable in a specific context is called inter-normativity. The norms selected by the parties to resolve their dispute are referred to as proactivity of the actors. This approach was developed in Canada to support the parties to choose the norms that are equitable and prevent their disputes. Since, there are limitations present in the institutional approach, access to justice through a contextual approach is a new trend in Canada that aims to improve the judicial system.

Improvement in Administration of Justice

With the development of Dispute Prevention and Resolution (DPR) methods, civil procedure reforms were used to institutionalize the judicial system. Today, case management procedures are provided to encourage the usage of dispute resolution methods. All the provinces of Canada institutionalized the DPR methods intending to reduce cost, time, and complexity involved in the legal process. This helps to improve the overall administration of justice. The provinces have the option to choose between mediation conducted by mediators or the judges. About 80% of settlement takes place when the working of the system is voluntary and 50% of the settlement is done when it is made mandatory. The mandatory schemes are aimed to reduce the backlogs which are present in the judicial system. Additional resources are used for the compulsory scheme which makes it expensive for the parties and the state. Though the voluntary scheme is cost-effective it creates a little impact on the reduction of delays when a small portion of cases is moved for mediation.

Initiatives Institutionalizing Dispute Prevention and Resolution Methods

The development of methods is taking place in almost all the provinces of Canada. Recent initiatives are made to reduce constraints in the judicial system. It ensures that the legal needs of the litigants are not ignored. The majority of the provinces have opted for a voluntary mediation system. Several choices have been provided under “multi-door court-house,” in Alberta for dispute prevention and resolution methods. Various techniques are offered by the judges in the Judicial Dispute Resolution Program which includes evaluation of cases, mini-trials, mediation, and arbitration. Even for civil and family matters, the mediation is made available which is led by either a paid mediator or by a judge if it is a judicial dispute resolution. In the public Family Mediation Program if the party qualifies, they are allowed to get free access to a mediator. Several complimentary offers are offered to the parties in British Columbia to resolve their disputes. Civil Resolution Tribunal Act 2012 provides a variety of dispute resolution methods in which participants can use services from their mobile devices or computer as well. Those people who are not having access to technology can avail of tribunal services that are paper-based or telephone-based. This was done to make the parties free from the traditional judicial system. The mandatory initiative includes pre-trial conference which is practiced in all Canadian Provinces and aims to provide negotiated settlements. The judge must reconcile the parties in a way that they settle. It can be said that by setting a reduction in costs and time Canada works in the interest of dispute settlement and prevention methods. This mechanism also provides an insight to understand the importance of the institutional approach.

Residential Tenancy Dispute Resolution Service

On 10th March 2020, the government of Alberta proposed that the dispute resolution procedure be made available to the landlords and tenants of houses through mobile home sites. The Mobile Home Sites Tenancies Act, after being passed will have an application to mobile home sites providing Residential Tenancy Dispute Resolution Service (RTDRS) which includes less formal, more affordable and faster procedures. This is done to reduce the burden of the courts but does not restrict the parties to opt for court proceedings. Court proceedings are to be preferred if the issues cannot be resolved through RTDRS or the value of the dispute is more than $50,000. In case if the landlord violates the rent agreement, the tenant can end the tenancy or claim damages through RTDS. If the contractual obligations are fulfilled by the tenant, he can ask for compensation, get back the security deposit, or seek a reduction in rent. Likewise, the landlord can apply RTDS to seek possession of the mobile home site, end tenancy, compensation for loss incurred if the tenant after the end tenancy fails to vacate the site. The government is also planning to engage with residents about difficulties that are faced which cannot be resolved through RTDRS.

Civil Resolution Tribunal

During the COVID-19, with courthouses closed everywhere, British Columbia’s Civil Resolution Tribunal (CRT) by remotely working is fully operational to provide justice. The Civil Resolution Tribunal was set up in 2016 to settle disputes involving small claims. It works with a distributed and remote workforce which has helped to serve the public during the pandemic. Contact can be made to the CRT through email or telephone. This has given the scope for the public justice system to mobilize. The online Solution Explorer available on CRT is free and confidential. Any applicant can use it by simply answering questions related to the dispute. The CRT system in return provides all the legal information and tools based on the applicant’s answers. The legal community and advocates have appreciated the working of CRT as it enables participation of the claimant in a comfortable environment. Participation in a familiar environment is useful if the claimant is residing in rural areas. The evidence and submissions are uploaded by the parties and then the case is assigned to a member of the tribunal. Oral hearings are done via Skype. Through consensual agreements and settlements, the disputes are majorly resolved with a small number resolved by the way of adjudication. The decision is then emailed to the parties and it gets published on the website of CRT. After the outbreak of COVID-19, all the members of the tribunal are working remotely as the system was previously established.

Shift towards Arbitration

The COVID-19 has impacted the working of the judicial system in an unprecedented manner.  It is facing long term uncertainty. As a consequence, many organizations are shifting towards arbitration to have a faster and efficient way as compared to disputes resolved in traditional courts. Despite the economic shutdown, there is a rise in demand for arbitration services. Since some businesses are proceeding and there are disagreements regarding the interpretation of contracts, there is the demand for resolution. BCICA which will be known as Vancouver International Arbitration Centre has notified that cases will emerge as the business continues, and there will be the demand to seek assistance from the legal industry. A new division has been established by the Arbitration Chamber that specializes to work for disputes related to the internet domain. Moreover, with speedy proceedings, the arbitration also gives the advantage of privacy as the court proceedings are open for journalists and the public. With the concept of social distancing being relaxed, the most favoured option is arbitration. People from different geographical areas can show their presence in virtual hearing which makes it popular for adhering to the requirement of social distancing.

Online Mediation sets gender neutrality

Written mediation helps to provide flexibility to parties for gender identification. During the pandemic, the online dispute resolution has taken pace and became more popular. This has helped to understand diversity by letting people who they are, then holding some preconceived notions. The opportunities provided by online dispute resolution were not available 20,25 or 30 years ago. The parties can choose to have gender-neutral versions of names in case their legal names are not required. The emails can be exchanged by the parties, not in real-time, but the time when it is convenient for them. The parties need to be careful about legal processes that require full legal names. Now, during the proceeding, it is up to the adjudicators to decide how much they wish to reveal or signal their genders. Restrictions imposed on gender expression may discourage the participants to communicate openly and pressurize them to present themselves according to gender-based expectations. Since more dispute resolution is taking place online, there are great opportunities to avail of gender-neutral options. This has to be done to make the parties comfortable. If genders are stereotyped in any way then it can lead to the division of people into groups, further perpetuating biases in conflicts. It is totally up to the parties to decide who they are and who they want to be concerning proceedings of their dispute. In mediation, the imposition of gender stereotypes reduces the ability of the party to participate collaboratively and authentically.

Conclusion

Canada is making significant efforts to expand the field of access to justice. Its Dispute Prevention and Resolution methods have helped to make progress in the services by reducing cost and time. Continuous efforts should be made towards a new perspective. The notion of justice encourages the legal community to explore and expand their horizons for access to justice. The judicial system should always aim to remove constraints for litigants. According to institutional vision, great progress has been made over the years. With a situation like the outbreak of COVID-19, we can add the process of access to justice should involve the perspective of an individual which will help him to create the right solution for his condition. The individual will get a sense of justice. To meet the Canadian public’s expectation, the best avenue could be to adopt a contextual view and promote participatory justice. At last, the public must feel that justice is done. The present involvement of technology is working well and based on its efficiency it may get extended for the long term. People are majorly looking to get the process done in a faster mode, with fewer expenses, and in a more expedite way.