OBA raises concerns over Tribunals Ontario's 'digital-first' approach to hearings

The Ontario Bar Association has raised concerns over the Tribunal Ontario’s adoption of a “digital-first” approach to hearings conducted by all 13 adjudicative tribunals it represents.

In its written submission, the OBA said while it supports the use of digital platforms to optimize dispute resolution, not all parties, particularly self-represented and vulnerable litigants, have equal access to technology, including hardware, software, internet speed, and user skills.

Since the province has lifted most pandemic restrictions, the OBA urged the Tribunals Ontario to assess its “digital-first” approach to hearing formats to determine if it is working towards meeting the needs of parties relying on the tribunal justice system to resolve their legal problems.

The OBA noted that while virtual hearings could promote efficiency, cost-effectiveness, and appropriate allocation of tribunal resources and enhance access to justice, there remains a common concern that complex, sensitive matters with many parties or witnesses are often difficult to conduct remotely.

“In addition, digital hearings can also impede access to justice in other key circumstances,” the OBA wrote. “Persons with learning and communication disabilities often experience challenges in participating in a digital hearing.”

Moreover, participation in virtual hearings could not be feasible for litigants who lack internet access and requires parties to have access to appropriate technology, including computer, printer, and scanner, the OBA added.

“In many cases, the populations who are most disadvantaged by digital hearings are the very individuals that Tribunals Ontario serves,” the OBA wrote. “For example, appellants appearing before the Social Benefits Tribunal are often individuals living in deep poverty. The same is true of many tenants facing eviction as well as applicants before the Human Rights Tribunal of Ontario, who may have lost their employment for reasons they assert to be discriminatory.”

The OBA also cited a report entitled “No Turning Back: CBA Task Force Report on Justice Issues Arising from COVID-19.” In this report, the Canadian Bar Association suggested that it is incumbent on all justice system stakeholders to consider the implications for access to justice for marginalized groups when adopting new and emerging technologies.

Accordingly, the OBA made six recommendations to improve the use of digital platforms and establish a foundational basis for post-pandemic processes that will be” fair and accessible” to all parties and make the best use of tribunal resources. The recommendations are as follows:

• Hearing notices clearly state that a party may request an “alternate form of hearing.”
• At an early stage of the proceeding, parties should have a “clear and easy-to-use option” to request an alternate hearing format based on any of the following grounds:

1. as an accommodation for an Ontario Human Rights Code-related need;
2. a procedural fairness need, including lack of computer or internet access, a need for language interpretation, lack of private space to participate in a hearing, low literacy, and lack of basic user skills;
3. due to unique circumstances of the case, for instance, the number of parties or witnesses, the expected length of the hearing, the nature and volume of the proposed evidence, and whether the parties consent to the request.

• The Tribunals Ontario’s Updated Practice Direction on Hearing Formats should be amended since it states that “a party’s unfamiliarity with a new technology is not sufficient, in and of itself, to necessitate an in-person hearing.”
• The form to request an alternate hearing format should also be amended. The OBA said that the current form title, “Accommodation Request,” suggests that only requests for accommodation of Human Rights Code-related needs would be considered. However, the form also allows for requests based on procedural fairness grounds.
• The Tribunals Ontario should expand digital access terminals to hearings centres across the province. Currently, the digital access terminals are only available in Toronto, Hamilton, London, and Ottawa.
• The Tribunals Ontario should create a dedicated telephone support line for parties, witnesses, and representatives experiencing technical challenges during the hearing.

OBA President Karen Perron informed Law Times that the OBA had started a dialogue with tribunals Ontario on the issues.

“We are confident Tribunals Ontario is alive to the need to ensure that virtual appearances promote rather than impeded access to justice and we understand they have and will continue to take steps to ensure there are accommodations where needed. We look forward to an update on the steps that have been taken and to an ongoing productive conversation to enhance shared goals,”  said Perron.