ODR as a Public Service

• 1 Introduction

  In 2018, the Cyberjustice Laboratory¹x See https://www.cyberjustice.ca/. launched a six-year project to help those within the legal community better understand how technology can be used to increase access to justice. More specifically, the Autonomy through Cyberjustice Technologies (ACT) project aims to “benefit justice stakeholders by leveraging artificial intelligence (AI) to prevent and resolve conflicts”.²x See https://www.ajcact.org/en/ajc/presentation/. To this end, the project:

  has assembled a multidisciplinary and international team of 45 researchers and 42 partners representing a number of different stakeholders including the world’s leading research centres on the implementation and use of technologies in the field of justice (cyberjustice), litigants and legal professionals (justice stakeholders), as well as main users and purveyors of AI for justice in Canada.³x Ibid.

  Of course, while artificial intelligence is the common thread that links most of the work done under the auspices of the ACT project, the idea of using technology to facilitate access to justice is not limited to the application of AI. In fact, two of ACT’s subprojects deal first and foremost with the use of online dispute resolution (ODR) platforms.
  These platforms – three of which will be summarily presented in the second part of this article – were all developed with access to justice as a core component and fall within what can be described as public ODR, i.e. ODR platforms that are operated by and integrated within the court system. While each boasts different elements, they all fall within the three-stage process presented in Figure 1.

  Public ODR process
  

  This short contribution therefore aims to expose how these platforms can increase access to justice in Canada when incorporated within a user-centric dispute resolution system. In this sense, our work is part of a global trend that aims to deliver access to justice for all through a people-centred approach.⁴x See The United Nations 17 Sustainable Development Goals. More specifically goal 16, available at: https://www.un.org/sustainabledevelopment/peace-justice/. See also Task Force on Justice, ‘Justice For All. Final Report’, available at: https://www.justice.sdg16.plus; Organisation for Economic Co-operation and Development (OECD), ‘Equal Access to Inclusive Growth. Putting People at the Center’, 2019. Available at: https://www.oecd-ilibrary.org/docserver/597f5b7f-en.pdf?expires=1573749642&id=id&accname=ocid194754&checksum=28BE0F5951CE43799FBE65C609F179E2; and World Justice Project, ‘Measuring the Justice Gap: A People-Centered Assessment of Unmet Justice Needs Around the World’, available at: https://worldjusticeproject.org/our-work/research-and-data/access-justice/measuring-justice-gap.

• 2 Access to Justice from a User-Centric Perspective

  To better understand how ODR platforms have been used to facilitate access to justice in Canada, we must first agree on a common conception of what access to justice is (A) so as to then see how it can be measured (B).

  2.1 A Short Primer on the Canadian Definition of Access to Justice

  Although definitions of ‘access to justice’ abound,⁵x See, for example, J.-F. Roberge, ‘Justicial Judging. Towards a Renewal in Problem-Solving Access to Justice’, Civil Justice Quarterly, Vol. 38, 2019, p. 32; J.-F. Roberge, ‘Emerging Trends in Access to Justice and Dispute Resolution in Canada’, Journal of Arbitration and Mediation, Vol. 4, No. 2, 2014, pp. 69, 75-77; T.C.W. Farrow, ‘What is Access to Justice?’,Osgoode Hall Law Journal, Vol. 51, No. 3, 2014, p. 957; P.-C. Lafond, L’accès à la justice civile au Québec, Cowansville, Éditions Yvon Blais, 2012, p. 7; R.A. Macdonald, ‘Access to Justice in Canada Today: Scope, Scale and Ambitions’, in J. Bass, W.A. Bogart & F.H. Zemans (Eds.), Access to Justice for a New Century: The Way Forward, Toronto, Law Society of Upper Canada, 2005, p. 19; R.A. Macdonald, ‘Whose Access? Which Justice?’, CJLS, Vol. 7, No. 1, 1992, p. 175; and A. Currie, ‘Riding the Third Wave: Rethinking Criminal Legal Aid within an Access to Justice Framework’, 2004. Available at: https://www.justice.gc.ca/eng/rp-pr/csj-sjc/ccs-ajc/rr03_5/rr03_5.pdf. the concept is usually summarized by Canadian authors⁶x Id. and legal professionals⁷x See Action Committee on Access to Justice in Civil and Family Matters, ‘Access to Civil and Family Justice – A Roadmap for Change’, 2013. Available at: https://www.cfcj-fcjc.org/sites/default/files/docs/2013/AC_Report_English_Final.pdf. alike as signifying the need for faster and less costly access to the courts. While this conception of ‘access to justice’ is fairly accurate, it remains somewhat reductive.
  First, limiting ‘access to justice’ to a question of costs and delays – although two of the main focuses of recent legislative changes aimed at promoting said access⁸x See, for example, Code of Civil Procedure, CQLR c C-25.01, section 2. – is ill-advised since allowing for free and expedited access to a corrupt system does not equate to granting access to justice. Therefore, as we shall see further on in this short contribution, other ideals such as fairness and efficiency must also be considered.
  Second, as was submitted by the Action Committee on Access to Justice in Civil and Family Matters,⁹xThe Canada Action Committee is an initiative sponsored in part by the Canadian Supreme Court. It was tasked with conducting a national study on the current state of access to justice. See Action Committee on Access to Justice in Civil and Family Matters, 2013, p. i. access to justice must be understood as allowing for conflicts to be resolved both inside and outside the classic judicial process:

  Key to this understanding of the justice system is that it looks at everyday legal problems from the point of view of the people experiencing them. Historically, access to justice has been a concept that centered on the formal justice system (courts, tribunals, lawyers and judges) and its procedures. The formal system is, of course, important. But a more expansive, user-centered vision of an accessible civil and family justice system is required.¹⁰x Ibid., p. 2.

  This observation that access to justice must be understood in a more user-centric manner echoes the teachings of Canada’s Supreme Court, which, in Hryniak v. Mauldin,¹¹x 2014 CSC 7. explained that:

  Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favor of proportional procedures tailored to the needs of the particular case.¹²x Ibid., at para. 2. [Emphasis added]

  The court goes on to add that:

  There is growing support for alternative adjudication of disputes and a developing consensus that the traditional balance struck by extensive pre-trial processes and the conventional trial no longer reflects the modern reality and needs to be re-adjusted. A proper balance requires simplified and proportionate procedures for adjudication, and impacts the role of counsel and judges. This balance must recognize that a process can be fair and just, without the expense and delay of a trial, and that alternative models of adjudication are no less legitimate than the conventional trial.¹³x Ibid., at para. 27.

  In the province of Quebec, this idea that access to justice must be user-centric and encompass a broader catalog of conflict prevention and resolution mechanisms was enshrined in the preliminary provision of the recently rewritten Code of Civil Procedure.¹⁴xCQLR c C-25.01. The new Code came into force in 2016. As stated in the said provision:

  This Code is designed to provide, in the public interest, means to prevent and resolve disputes and avoid litigation through appropriate, efficient and fair-minded processes that encourage the persons involved to play an active role. It is also designed to ensure the accessibility, quality and promptness of civil justice, the fair, simple, proportionate and economical application of procedural rules, the exercise of the parties’ rights in a spirit of co-operation and balance, and respect for those involved in the administration of justice. [Emphasis added]

  The Quebec Court of Appeal confirmed the notion that the Code imposes a new approach focusing on a user-centric model of access to justice in Lavigne v. 6040993 Canada inc.: ¹⁵x2016 QCCA 1755.

  [Translation] The new Code of civil procedure imposes a new approach to civil procedure focused on efficiency and promptness. The guiding principles set out in Articles 18 (proportionality), 19 (good faith) and 20 (cooperation) of the Code of civil procedure go in that direction.

  Of course, this cultural shift creates new complexity in measuring access to justice. If costs and delays are easily quantifiable, concepts such as efficiency and promptness are less tangible and necessitate a different approach in establishing whether one truly feels he or she has access to justice.

  2.2 Pushing Further: Quantifying Canadians’ Sense of Access to Justice

  In a 2016 publication,¹⁶xJ.-F. Roberge, ‘Sense of Access to Justice as a Framework for Civil Procedure Justice Reform: An Empirical Assessment of Judicial Settlement Conferences in Québec (Canada)’, Cardozo Journal of Conflict Resolution, Vol. 17, No. 2, 2016, p. 323. one of the authors of this article set out to answer two fundamental questions in the quest to define access to justice:

  1. What is a fair-minded dispute prevention and resolution process?

  2. How do we empirically measure the fairness of a process from the litigant’s perspective?

  In order to answer these questions, we developed a theoretical framework that allows us to measure an individual’s ‘sense of access to justice’ (SAJ), i.e. his or her evaluation and understanding regarding the fairness and efficiency of the process used to solve their dispute. Presented otherwise, the framework’s purpose is to measure how litigants experienced justice while using a given dispute resolution process (in person or online mediation, trial before a judge, etc.).
  As can be devised from the figures to follow, an individual’s SAJ should be understood as the combination of 12 factors, grouped into 4 categories reflecting two feelings.
  The first feeling that needs to be measured is that of fairness. In this context, we aim to establish how an individual rates the dispute resolution process and its results. As outlined in Figure 2, to measure satisfaction with these elements, we ask parties how they rate the opportunity they were given to fully take part in the process: the quality of the information that was exchanged, interpersonal treatment, the restorative aspect of the result, the functionality of the result and the transparency of the criteria used as a basis for the settlement.

  Sense of fairness
  

  The second feeling we try to measure is an individual’s appreciation of how efficiently their dispute was settled by the chosen mechanism. In other words, and as presented in Figure 3, we aim to evaluate whether the said mechanism was adequate to properly settle their given dispute in terms of economic resources spent, psychological resources involved, its effect on the parties’ reputations, etc.
  We are also interested in measuring how satisfied individuals are with the support they received from the third-party neutral (the mediator or judge). Was he or she active enough in explaining the law? Did he or she take participants’ needs into account? Did he or she properly explore the injustice felt by the parties? Etc.

  Sense of efficiency
  

  In summary, this framework – which was previously applied to pre-trial mediation¹⁷x Id. See also J.-F. Roberge & D.Q. Anderson, ‘Judicial Mediation. From Debate to Renewal’, Cardozo Journal of Conflict Resolution, Vol. 19, No. 3, 2018, p. 613. – can be used to measure how any given process can provide access to justice from a litigant’s perspective. Since ODR is often perceived by its detractors as a discounted form of justice, we consider that this framework could be used to benchmark Canadians’ sense of access to justice online using one of the country’s three public ODR platforms.

• 3 ODR as a Public Tool to Promote Access to Justice

  While ODR has been around since the late 1990s,¹⁸x See K. Benyekhlef, ‘Online Consumer Dispute Resolution: A Narrative Around (And An Example Of) Postmodern Law’, Lex Electronica, Vol. 21, 2016, p. 57. it has failed, in Canada at the very least, to reach its full potential until relatively recently.¹⁹x See N.W. Vermeys & K. Benyekhlef, ‘ODR and the Courts’, in M.S. Abdel Wahab, E. Katsh & D. Rainey (Eds.), Online Dispute Resolution: Theory and Practice, The Hague, Eleven International Publishing, 2012, p. 295. There are many reasons that can help explain this slow rise,²⁰x See N. Vermeys & M.-F. Acevedo, ‘Online Dispute Resolution Platforms as a Public Service: How the Cyberjustice Laboratory’s Platform to Aid in the Resolution of Litigation Electronically (PARLe) is Transforming the Canadian Justice System’, in I.B. Vinals (dir.), El sistema de ADR/ODR en conflictos de consumo: aproximacion critica y prospeccion de futuro, Barcelone, Atelier, 2019, p. 219. most notably the fact that ODR was originally seen as a private alternative to the courts,²¹x See E. Katsh & J. Rifkin, Online Dispute Resolution, San Francisco, CA, Jossey-Bass, 2001, p. 2. rather than as a component of a holistic user-centric dispute resolution system aimed at increasing access to justice. Therefore, ODR lacked the financial backing and enforcement mechanisms that remain necessary to settle what are commonly referred to as high volume–low value disputes, i.e. low-intensity disputes.²²x See K. Benyekhlef & N. Vermeys, ‘“Low-Value, High-Volume” Disputes: Defining the Indefinable’, Slaw, 2014. Available at: www.slaw.ca/2014/01/29/low-value-high-volume-disputes-defining-the-indefinable/. By integrating ODR mechanisms into the public legal process, however, certain Canadian tribunals and organizations have addressed these issues and made it possible not only for ODR platforms to thrive (A), but also to positively affect Canadians’ sense of access to justice (B).

  3.1 Public ODR Initiatives Aimed at Promoting Access to Justice in Canada

  As we just stated, there have been few ODR success stories in Canada over the years.²³x See Benyekhlef, 2016. While certain platform developers have prospered,²⁴xFor example, Smart Settle has been around for decades. See: https://smartsettle.com/about-us/vision-speech/. service providers have mostly failed to capture the conflict-resolution ‘market’ (for lack of a better word).
  While this is true in the private sphere, public ODR platforms are growing in popularity. Many courts and tribunal across Canada are currently studying how ODR could help make their processes more efficient and, in the process, more accessible. While most are years away from launching actual platforms, three such ‘virtual tribunals’ have seen the light of day in the past few years.

  3.1.1 The Civil Resolution Tribunal

  Established in 2012 through the adoption of the Civil Resolution Tribunal Act,²⁵xSBC 2012, c 25. and subsequently launched in 2016, the Civil Resolution Tribunal (CRT) is an online court that allows for the resolution of disputes regarding small claims (up to $5,000), strata (condominium) disputes, motor vehicle injury disputes (under $50,000), societies and cooperative association disputes, as well as shared accommodations and some housing disputes (under $5,000).²⁶x See: https://civilresolutionbc.ca/.
  The CRT platform uses a customized version of Salesforce²⁷x See: https://www.scl.org/articles/3784-the-online-justice-experience-in-british-columbia. to offer a process based on the classic ODR model of “negotiation; facilitated settlement; and a third (final) stage”.²⁸xUnited Nations Commission on International Trade Law, UNCITRAL Technical Notes on Online Dispute Resolution, New York, United Nations, 2017, Section III, Art. 18. The current CRT process is as follows:

  1. Solution Explorer: Plaintiffs are given access to the Solution Explorer, a free tool that helps them identify the right CRT application form for their type of dispute.

  2. Negotiation: Parties are invited to talk through their dispute and try to reach an agreement.

  3. Facilitated settlement: If parties cannot resolve their dispute by negotiation, a case manager will try to help them reach an agreement. Said agreement can be turned into an order, and be enforced like a court order.

  4. Decision: If parties cannot reach an agreement by negotiation or facilitation, an independent CRT member will render a decision, which is enforceable like a court order.²⁹x See: https://civilresolutionbc.ca/.

  While numbers vary, roughly 450 disputes are filed every month. According to exit surveys, 65% of litigants would recommend the platform to a friend or relative with a similar issue.
  See: https://civilresolutionbc.ca/.

  3.1.2 The Condominium Authority Tribunal

  Established by part I.2 of Ontario’s Condominium Act,³⁰x1998, SO 1998, c 19. the Condominium Authority Tribunal (CAT) “is a new online tribunal that helps to settle and decide condominium-related disputes in Ontario”.³¹x See: https://www.condoauthorityontario.ca/en-US/tribunal/. Working hand in hand with the Cyberjustice Laboratory,³²x See: https://www.cyberjustice.ca/en/actualites/2017/11/30/communique-le-tribunal-de-loffice-du-secteur-des-condominiums-de-lontario-choisit-la-plateforme-en-ligne-parle-du-laboratoire-de-cyberjustice-de-montreal/.

  [t]he CAT has developed an online dispute resolution system (CAT-ODR) to help people resolve their disputes conveniently, quickly and affordably, while encouraging everyone to work together in healthy condominium communities.³³x See: https://www.condoauthorityontario.ca/en-US/tribunal/.

  Like the CRT’s, the CAT’s process was inspired by a classic ODR approach. However, it is presented in five main steps rather than four:

  1. Filing a case: The plaintiff opens an online case file with the CAT.

  2. Joining a case: The other party joins the case, which activates the negotiation stage.

  3. Negotiation: The parties are invited to reach an agreement using online tools put at their disposal.

  4. Mediation: If negotiation fails, a CAT mediator can be asked to join the case and help resolve the dispute.

  5. Tribunal Decision: Should mediation prove to be unsuccessful, a CAT member will join the case and render a binding decision.³⁴x See: https://www.condoauthorityontario.ca/en-US/tribunal/the-cat-process/.

  The platform was initially launched in November 2017 and mainly focussed on disputes about condominium corporation records (including the retention, sufficiency, and access to records by condominium owners). However, teams are constantly developing and adding new functions and tools to the platform to allow for other types of condominium-related disputes to be submitted.
  As of these writings, while numerous cases have been filed using the platform, only 64 have made it all the way to the Tribunal decision stage.³⁵x See: https://www.canlii.org/en/on/oncat/.
  See: https://www.condoauthorityontario.ca/en-US/tribunal/.

  3.1.3 The PARLe Project

  In 2016, Quebec’s Office de la protection du consommateur (the Consumer protection agency, or OPC), the Cyberjustice Laboratory and the Department of Justice launched a joint pilot project aimed at helping Quebec consumers and merchants settle their disputes online rather than through the courts. The project – which has now become a permanent service offered by the OPC – uses the Cyberjustice Laboratory’s Platform to Aid in the Resolution of Litigation Electronically or PARLe.
  While PARLe offers many different ODR tools, the OPC version of the platform is limited to negotiation and mediation. The PARLe-OPC process works as follows:

  1. Opening a consumer account: A consumer with a grievance can contact the OPC to obtain connecting information to the platform. This is done to ensure that the consumer’s case falls within the parameters of the service.

  2. Creating a file in connection with the problem: The consumer logs on to the PARLe platform and fills out two forms, the first to explain the problem (defective product, hidden costs, etc.) and the second to specify the desired remedy (refund, rebate, etc.). Once the file is created, an invitation is sent to the merchant.

  3. Negotiation with the Merchant: After receiving the consumer’s proposal, the merchant can either accept the proposal or submit a counterproposal to start the negotiation process.

  4. Mediation: If the parties consider that they cannot come to an agreement, or if no agreement is entered into 20 business days after the start of negotiations, a mediator can be asked to intervene in the file and help the parties find common ground.

  5. Entering into an agreement and closing the file: Once an agreement has been entered into, a document that describes the details of that agreement is uploaded to the file.³⁶x See: https://www.opc.gouv.qc.ca/en/opc/parle/process/. For a more detailed explanation of this process, see Vermeys & Acevedo, 2019, p. 219.

  In rare cases when the process fails (the project boasts a 70% settlement rate), consumers are invited to submit their case to the small claims division of the Cour du Quebec. It should be pointed out, however, that this is extremely rare since most parties that do not reach a settlement are still content with how things unfolded. In fact, 90% of all users claim to be satisfied with the process.
  See: https://www.opc.gouv.qc.ca/en/opc/parle/.

  3.2 Trusting the Evidence: ODR’s Effect on Canadians’ Sense of Access to Justice

  As stated earlier, there are numerous factors that can be considered when assessing whether a given tool will increase access to justice. The classic approach is to measure its effects on delays and costs, while a more comprehensive approach allows us to calculate individuals’ sense of justice. We have submitted the PARLe-OPC service to both tests, and results show that ODR can definitely be seen as a helpful mechanism in making the justice system more accessible.
  Starting with delays, reports have shown that, in Montreal, an individual who files a case with the Small claims division of the Court du Quebec will have to wait roughly 11 months before he or she can be heard.³⁷x See Y. Bergeron, ‘Petites créances: les délais les plus longs sont à Québec’, 2017, Radio-Canada, available at: https://ici.radio-canada.ca/nouvelle/1023812/delais-attente-petites-creances-district-quebec-cour. The same individual can expect to reach a settlement using PARLe in 26 days on average. The ODR process is therefore about 12 times faster than the courts, although this will vary since delays in access to the court are not the same across all districts.³⁸x Id. While some districts allow for a case to be heard in 3 months, others can make you wait up to 18 months. No matter the scenario, the PARLe process remains advantageous.
  As for costs, since PARLe is currently free for all parties, the question is somewhat moot. This is obviously not to say that there are no costs associated with operating the platform, but simply that they are taken care of by the OPC, the Department of Justice and the Cyberjustice Laboratory. Factoring in hosting services, mediator salaries, platform adaptation and maintenance, clerk salaries, etc., the average case initially cost taxpayers $164. However, as some of these costs are non-recurring (platform adaptation, for example), the price tag is diminishing daily.
  How does this stack up to the cost of a trial? In a 2011 presentation, the Chief Justice of Quebec’s Superior Court affirmed that “[Translation] in terms of internal and infrastructure costs, a trial costs the justice system $10,080 per day, notwithstanding the judge’s salary”.³⁹x See Lafond, 2012, p. 59. The author is quoting a speech given by Chief Justice François Rolland at the Université de Montréal on October 5th, 2011. According to a published report⁴⁰x See ‘Rapport du Comité de la remuneration des juges 2016-2019’, 2016. Available at: https://www.justice.gouv.qc.ca/fileadmin/user_upload/contenu/documents/Fr__francais_/centredoc/rapports/ministere/remuneration-juges/remjuges2016.pdf. the average Court du Quebec judge’s salary in 2015 (the last year for which the data is available) was $241,955. If we consider that the said salary is distributed evenly across 260 working days (i.e. 5 days per week during 52 weeks), this gives us a daily wage of $930.
  Therefore, using this data, we can assume that a court with a sitting judge costs $11,010 per day. If we consider that the said judge can hear 5 cases daily,⁴¹xThis seems to be the number of cases heard daily in one small claims courtroom in Montreal. See: http://roles.tribunaux.qc.ca/. we can posit that the same case that cost $164 to be settled using PARLe will cost an average of $2,202 if it goes to trial. Obviously, our analysis is flawed since it fails to consider a number of variables, but the fact remains that a court case will cost taxpayers roughly 12 times more than if the same case is resolved using PARLe. Furthermore, as judges’ salaries and general costs keep rising, the divide will only grow.
  Of course, since these costs are not assumed by the parties, our analysis does little to establish whether or not an ODR platform like PARLe will increase or decrease an individual’s sense of justice.
  This is why, in a 2018 study, one of the authors of this article surveyed hundreds of PARLe users in order to gauge their sense of access to justice using the platform.⁴²xWe had a total of 654 respondents to the questionnaire out of a total of 2838 invitations (response rate of 23%). Among our sample, the agreement rate was 81%, with a proportion of 66% of cases settled in negotiation and 34% settled in mediation. The average amount requested by consumers was $1,129 and the amount received was $592, which represents approximately 53% of the claim. We also noted that 50% of consumers were seeking compensation that does not constitute an amount of money (repair or maintenance of property, replacement or exchange of property, delivery of a good or execution of the service, cancellation of contract, etc.). As a general result, we can say that the quality of the user experience is high. The level of quality of the overall SAJ is 80% among users of the negotiation tool and 76% for those who have completed their file in mediation. The overall SAJ is higher among users who settled amicably with a score of 83% compared with those who do not agree and whose score is 57%. The presence or absence of an agreement, therefore, unsurprisingly influences the degree of quality experienced. The sense of fairness of users who participated in online negotiation or mediation is 78%, while the feeling of efficiency is 77%. The quality of the process is estimated by users at 77%, while the quality of the result is estimated at 78%, the quality of the adequacy at 77% and the quality of support at 78%. All twelve factors range from 71% to 86%. We therefore note that no factor stands out positively or negatively from the others.
  How does this stack up against the courts? When the same SAJ test was administered to study the SAJ for litigants taking part in a judicial settlement conference, the final grade was 83%.⁴³xRoberge, 2016, pp. 323, 356. Therefore, sense of access to justice does not seem to wane when the process is transposed online. Furthermore, in our study regarding judicial settlement conferences, we measured wider differences between factors.⁴⁴x See J.-F. Roberge, The Feeling of Access to Justice and the Amicable Settlement Conference. Research report on the experience of litigants and lawyers at the Quebec Superior Court and the Court of Quebec, University of Sherbrooke, December 1, 2014. Available at: www.tribunaux.qc.ca/c-superieure/pdf/rech_exp_justiciables_cs_cq.pdf; Roberge, 2016, p. 323. This may imply that technology can have a standardization effect on the quality of the dispute resolution process.

• 4 Conclusion

  This short contribution aimed to demonstrate that a properly calibrated ODR platform that is part of a user-centric dispute resolution system can positively affect a litigant’s sense of access to justice. Of course, while current data seems conclusive, much more information needs to be collected and analysed to confirm our hypotheses. This is why, through the aforementioned Autonomy through Cyberjustice Technologies (ACT) project, a group of researchers, led by the two authors of this article, have partnered with public actors, including the tribunals and organizations behind the three platforms summarily described previously, to establish benchmarks that can be applied to ODR platforms and their ‘classic’ counterparts to help us better understand where and how these tools should be used and what their true relative costs and benefits represent.

Noten

• 1 See https://www.cyberjustice.ca/.

• 2 See https://www.ajcact.org/en/ajc/presentation/.

• 3 Ibid.

• 4 See The United Nations 17 Sustainable Development Goals. More specifically goal 16, available at: https://www.un.org/sustainabledevelopment/peace-justice/. See also Task Force on Justice, ‘Justice For All. Final Report’, available at: https://www.justice.sdg16.plus; Organisation for Economic Co-operation and Development (OECD), ‘Equal Access to Inclusive Growth. Putting People at the Center’, 2019. Available at: https://www.oecd-ilibrary.org/docserver/597f5b7f-en.pdf?expires=1573749642&id=id&accname=ocid194754&checksum=28BE0F5951CE43799FBE65C609F179E2; and World Justice Project, ‘Measuring the Justice Gap: A People-Centered Assessment of Unmet Justice Needs Around the World’, available at: https://worldjusticeproject.org/our-work/research-and-data/access-justice/measuring-justice-gap.

• 5 See, for example, J.-F. Roberge, ‘Justicial Judging. Towards a Renewal in Problem-Solving Access to Justice’, Civil Justice Quarterly, Vol. 38, 2019, p. 32; J.-F. Roberge, ‘Emerging Trends in Access to Justice and Dispute Resolution in Canada’, Journal of Arbitration and Mediation, Vol. 4, No. 2, 2014, pp. 69, 75-77; T.C.W. Farrow, ‘What is Access to Justice?’,Osgoode Hall Law Journal, Vol. 51, No. 3, 2014, p. 957; P.-C. Lafond, L’accès à la justice civile au Québec, Cowansville, Éditions Yvon Blais, 2012, p. 7; R.A. Macdonald, ‘Access to Justice in Canada Today: Scope, Scale and Ambitions’, in J. Bass, W.A. Bogart & F.H. Zemans (Eds.), Access to Justice for a New Century: The Way Forward, Toronto, Law Society of Upper Canada, 2005, p. 19; R.A. Macdonald, ‘Whose Access? Which Justice?’, CJLS, Vol. 7, No. 1, 1992, p. 175; and A. Currie, ‘Riding the Third Wave: Rethinking Criminal Legal Aid within an Access to Justice Framework’, 2004. Available at: https://www.justice.gc.ca/eng/rp-pr/csj-sjc/ccs-ajc/rr03_5/rr03_5.pdf.

• 6 Id.

• 7 See Action Committee on Access to Justice in Civil and Family Matters, ‘Access to Civil and Family Justice – A Roadmap for Change’, 2013. Available at: https://www.cfcj-fcjc.org/sites/default/files/docs/2013/AC_Report_English_Final.pdf.

• 8 See, for example, Code of Civil Procedure, CQLR c C-25.01, section 2.

• 9 The Canada Action Committee is an initiative sponsored in part by the Canadian Supreme Court. It was tasked with conducting a national study on the current state of access to justice. See Action Committee on Access to Justice in Civil and Family Matters, 2013, p. i.

• 10 Ibid., p. 2.

• 11 2014 CSC 7.

• 12 Ibid., at para. 2.

• 13 Ibid., at para. 27.

• 14 CQLR c C-25.01. The new Code came into force in 2016.

• 15 2016 QCCA 1755.

• 16 J.-F. Roberge, ‘Sense of Access to Justice as a Framework for Civil Procedure Justice Reform: An Empirical Assessment of Judicial Settlement Conferences in Québec (Canada)’, Cardozo Journal of Conflict Resolution, Vol. 17, No. 2, 2016, p. 323.

• 17 Id. See also J.-F. Roberge & D.Q. Anderson, ‘Judicial Mediation. From Debate to Renewal’, Cardozo Journal of Conflict Resolution, Vol. 19, No. 3, 2018, p. 613.

• 18 See K. Benyekhlef, ‘Online Consumer Dispute Resolution: A Narrative Around (And An Example Of) Postmodern Law’, Lex Electronica, Vol. 21, 2016, p. 57.

• 19 See N.W. Vermeys & K. Benyekhlef, ‘ODR and the Courts’, in M.S. Abdel Wahab, E. Katsh & D. Rainey (Eds.), Online Dispute Resolution: Theory and Practice, The Hague, Eleven International Publishing, 2012, p. 295.

• 20 See N. Vermeys & M.-F. Acevedo, ‘Online Dispute Resolution Platforms as a Public Service: How the Cyberjustice Laboratory’s Platform to Aid in the Resolution of Litigation Electronically (PARLe) is Transforming the Canadian Justice System’, in I.B. Vinals (dir.), El sistema de ADR/ODR en conflictos de consumo: aproximacion critica y prospeccion de futuro, Barcelone, Atelier, 2019, p. 219.

• 21 See E. Katsh & J. Rifkin, Online Dispute Resolution, San Francisco, CA, Jossey-Bass, 2001, p. 2.

• 22 See K. Benyekhlef & N. Vermeys, ‘“Low-Value, High-Volume” Disputes: Defining the Indefinable’, Slaw, 2014. Available at: www.slaw.ca/2014/01/29/low-value-high-volume-disputes-defining-the-indefinable/.

• 23 See Benyekhlef, 2016.

• 24 For example, Smart Settle has been around for decades. See: https://smartsettle.com/about-us/vision-speech/.

• 25 SBC 2012, c 25.

• 26 See: https://civilresolutionbc.ca/.

• 27 See: https://www.scl.org/articles/3784-the-online-justice-experience-in-british-columbia.

• 28 United Nations Commission on International Trade Law, UNCITRAL Technical Notes on Online Dispute Resolution, New York, United Nations, 2017, Section III, Art. 18.

• 29 See: https://civilresolutionbc.ca/.

• 30 1998, SO 1998, c 19.

• 31 See: https://www.condoauthorityontario.ca/en-US/tribunal/.

• 32 See: https://www.cyberjustice.ca/en/actualites/2017/11/30/communique-le-tribunal-de-loffice-du-secteur-des-condominiums-de-lontario-choisit-la-plateforme-en-ligne-parle-du-laboratoire-de-cyberjustice-de-montreal/.

• 33 See: https://www.condoauthorityontario.ca/en-US/tribunal/.

• 34 See: https://www.condoauthorityontario.ca/en-US/tribunal/the-cat-process/.

• 35 See: https://www.canlii.org/en/on/oncat/.

• 36 See: https://www.opc.gouv.qc.ca/en/opc/parle/process/. For a more detailed explanation of this process, see Vermeys & Acevedo, 2019, p. 219.

• 37 See Y. Bergeron, ‘Petites créances: les délais les plus longs sont à Québec’, 2017, Radio-Canada, available at: https://ici.radio-canada.ca/nouvelle/1023812/delais-attente-petites-creances-district-quebec-cour.

• 38 Id. While some districts allow for a case to be heard in 3 months, others can make you wait up to 18 months. No matter the scenario, the PARLe process remains advantageous.

• 39 See Lafond, 2012, p. 59. The author is quoting a speech given by Chief Justice François Rolland at the Université de Montréal on October 5th, 2011.

• 40 See ‘Rapport du Comité de la remuneration des juges 2016-2019’, 2016. Available at: https://www.justice.gouv.qc.ca/fileadmin/user_upload/contenu/documents/Fr__francais_/centredoc/rapports/ministere/remuneration-juges/remjuges2016.pdf.

• 41 This seems to be the number of cases heard daily in one small claims courtroom in Montreal. See: http://roles.tribunaux.qc.ca/.

• 42 We had a total of 654 respondents to the questionnaire out of a total of 2838 invitations (response rate of 23%). Among our sample, the agreement rate was 81%, with a proportion of 66% of cases settled in negotiation and 34% settled in mediation. The average amount requested by consumers was $1,129 and the amount received was $592, which represents approximately 53% of the claim. We also noted that 50% of consumers were seeking compensation that does not constitute an amount of money (repair or maintenance of property, replacement or exchange of property, delivery of a good or execution of the service, cancellation of contract, etc.).

• 43 Roberge, 2016, pp. 323, 356.

• 44 See J.-F. Roberge, The Feeling of Access to Justice and the Amicable Settlement Conference. Research report on the experience of litigants and lawyers at the Quebec Superior Court and the Court of Quebec, University of Sherbrooke, December 1, 2014. Available at: www.tribunaux.qc.ca/c-superieure/pdf/rech_exp_justiciables_cs_cq.pdf; Roberge, 2016, p. 323.