Court Services of the Future: Online Mediation

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In British Columbia, the Legal Services Society has launched a free, online service called “The Family Resolution Centre”. It is part of My Law BC(delivered by legal aid provider Legal Services Society).

The Family Resolution Centre program of My Law BC helps separated couples create parenting plans online. The parenting plans deal with parenting time, vacations, and other childcare needs. Alternatively, couples can request up to five hours of free assistance from a mediator. It is the first service of its kind in Canada. It can be accessed from mylawbc.com under “Mediation Tool”.

Tools like the Family Resolution Centre are a great way to help address the issue of access to justice. Many problems we typically think of as legal problems are really social problems. In the article titled “Access to What?”, Rebecca Sandefur points out that when solving the access to justice problem we need to redefine “access to justice”. Access to justice does not mean unmet legal needs. “Judges and lawyers work at the top of an enormous iceberg of civil justice activity… the access to justice crisis is a crisis of exclusion and inequality, for which legal services will sometimes provide a solution.” Rather addressing access to justice requires us to think of problems more broadly. For instance, thinking of them as issues in relationships, work, or neighbours.

I hope that similar jurisdictions can implement a similar program to the Family Resolution Centre. The program seems to helps people solve their problems simply and in a manner that the public respects.

(Views are my own and do not reflect the views of any organization. This article was originally posted on slaw.ca)

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Privacy Rights in the Internet Age and The New Tort of Public Disclosure of Private Facts

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“Society has been scrambling to catch up to this problem [the publication of intimate photos or videos online without consent] and the law is beginning to respond to protect victims.” – Justice Stinson in Jane Doe 464533 v N.D., 2017 ONSC 127

Gradually courts have been awarding damages for the tort of public disclosure of private information. The tort of public disclosure of private information consists of the following elements: (a) the defendant publicized an aspect of the plaintiff’s private life; (b) the plaintiff did not consent to the publication; (c) its publication would be highly offensive to a reasonable person; and (d) the publication was not of legitimate concern to the public.

In Jane Doe 72511 v N.M., [2018] OJ No. 5741, Jane Doe sued her ex-boyfriend for abusing her and for uploading an intimate video of them online. Jane Doe also sued her abuser’s parents for failing to stop the abuse in their home.

One day, after a highly violent encounter, Jane Doe reported the defendant N.M. to the police. “N.M. forced Jane into his car… N.M. grabbed her head and smashed it into the passenger side window. Jane pulled the mirror down and, seeing that she was bleeding, ripped off the sun visor in shock… N.M. was angry that Jane had damaged the car. He parked in the driveway and came around to her side of the car… he dragged her out of the car by her feet and shoved her into his parents’ house.” He was charged and later convicted of assault.

In retaliation for his criminal conviction, N.M. uploaded a video of them engaged in a sex act. The video was seen over 60,000 times and downloaded an unknown number of times. The video has since been removed at the request of the plaintiff.

In deciding the civil suit, Justice Gomery found that N.M. was liable for assault, battery, and public disclosure of private information. He was ordered to pay her $20,000 in general damages for the abuse and $100,000 for the posting of the video online ($75,000 for general and aggravated damages and $25,000 in punitive damages). His parents were also found to be jointly and severally liable for Jane’s damages from the assault and battery as occupiers of the house. As occupiers of the house, they had a duty to take steps to keep her safe while she was there.

In recognizing the tort of public disclosure of private information, Justice Gomery reaffirmed that the courts should provide a civil recourse for victims of public disclosure of private information. Justice Gomery wrote that our courts need to “address a challenge posed by new technology… Failing to provide a remedy in this case would deprive Jane of recourse in the face of the breach of her privacy rights.”

In this case, the website was not sued for the publication of the video. Perhaps the company running the website was outside the jurisdiction of Canada. In which case, the best recourse may be to pressure the company in charge of the domain name registration to disable the site’s web address. (see the NYT article “Shut the Site Down,’ Says the Creator of 8chan, a Megaphone for Gunmen.) However, if there was a connection to Ontario, then courts should be willing to assume jurisdiction and sanction a company in the appropriate circumstances.

In the article “Ontario’s New Invasion of Privacy Torts”, Sarit Mizrahi writes that “the courts should be willing to treat a company’s decision to utilize inadequate security measures as sufficient to engage the tort of intrusion upon seclusion and public disclosure of private facts where the risk of privacy is appreciated.” Malicious users exist beyond revenge porn, including hackers. Hackers can exploit security flaws in our devices to breach privacy rights and disclose private information. For example, hackers can gain access to a television’s microphone and listen in on you in your home; hackers can gain access to a baby monitor; they can access a company’s database of credit cards and release the information.

Mizrahi writes that “While the law obliges these companies to protect the information and devices against unauthorized access, the reality is that the steps taken are often insufficient to abolish the security flaws exploited by malicious users… users are often left without a sufficient legal remedy for this serious invasion of their privacy.” By recognizing a civil right of action, the courts are enabling individuals to enforce their privacy rights.

(This article was originally posted on slaw.caViews are my own and do not reflect the views of any organization.)

Court Forms: Should They be Eliminated?

 

Court forms are confusing. They are difficult to fill in and contain legal jargon. Even worst, the guides for court forms can be hard to follow. Especially, if you do not have a strong grasp of English or an understanding of the court system.

I have personally witnessed numerous people struggle with court forms, both while waiting to file a court document and while volunteering at a legal clinic.  In the article “Literacy Requirements of Court Documents: An Underexplored Barrier to Access to Justice“, Professor Amy Salzyn, et al., write about the difficulties in navigating court forms. For example, some forms indicate “no.” in place of the word number. Other forms refer to “pre-judgment interest”, without providing an explanation for what “pre-judgment interest” means. Even using the word “plaintiff”, without an explanation, can be confusing.

What is the solution?

Most court forms should be eliminated. Instead, the government should remove forms that are essentially duplicates of each other and leaving only the most necessary forms. The remaining forms should be designed with accessibility and the user in mind.

When designing for the user, we should consider the best format. Perhaps the best format is a fillable online form. The user could be asked questions online, and then the answers could be used to generate the court forms. The questions could be asked in writing or by video. For originating claims, questions should be asked to ensure that the form is being filed in the right jurisdiction.

Guides for completing the forms should be available in multiple formats, from written formats to videos to infographics. The guides should be simple. Less words, the better.

Common types of claims should have examples online for people to follow. The forms should also contain links to legislation so people know that they are referencing the right laws and can read the laws.

After the forms are completed, people should be directed to videos and written guides explaining the next steps. People should be able to book court appearances online. There should be an easy portal to follow.

Eventually each case, should have its own electronic file. Where litigants and judges can access the pleadings, motions, and court decisions for each case.

Unfortunately, in Ontario there has been little success in creating electronic filing or better court forms. But how much longer can our court system rely exclusively on paper and retain the confidence of the public?

(Originally posted on slaw.caViews are my own and do not reflect the views of any organization.)

 

Analyzing Court Decisions According to Judges

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“Law is reason free from passion.” – Aristotle

As a precedent based system, law lends itself nicely to predictive analytics. In predictive analytics, historical data is used to build a mathematical model. This model can then be used to predict what will happen next.

As case law becomes easier to access, many companies are developing predictive analytic tools based on case law. Predictive analytics can be focused on different areas of law. For example, predicting the outcomes of cases in employment, tax, insurance, or family law. Another area predictive analytics can be focused on are on the actors. For example, predicting how judges decide cases, how successful lawyers tend to be in court, and the success of repeat litigants.

Recently, France has banned a type of predictive analytics. Article 33 of the Justice Reform Act bans individuals or companies from publicly revealing the patterns of judges’ decisions. Anyone breaking this rule can face a penalty of five years in prison.

Theoretically, it should not matter who hears a case. The law is to be applied the same way. But by banning this type of predictive analytics, France is recognizing that sometimes the judge’s identity makes all the difference.  How do we reconcile identity with a precedent based system?

(Originally posted on slaw.ca. Views are my own and do not represent the views of any organization.)

Law Depot: A Great New Legal Product

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Through the Toronto Public Library, you can now access a licence to use Law Depot. Law Depot is an online program that allows you to create a free will, employment contract, marital contract, and so much more in a matter of minutes. I recently used it and was very impressed with how easy the program was to use.

For example, to create a will, you answer a few simple questions and the document is formed. It is a great alternative to creating simple documents without a lawyer. However, I note that the employment contact template may be inaccurate.

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I see this type of technology expanding beyond contracts and into pleadings. I could even see the government, eventually having their court forms accessible in a similar way to Law Depot. For example, the user answers a few questions and then the document is created, (e.g. an affidavit, a statement of claim, or a notice of motion). Once the document is populated, it can be filed into an electronic court case.

(This is not a sponsored post. Views are my own and do not represent the views of any organization.)

Why Allowing Alternative Business Structures Could Help Articling Students

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Recently the Toronto Star published an article on abusive workplaces for articling students. Although the broad range of abuse was not covered, it has been noted before by Dean Adam Dodek that the abuse ranges from unpaid or underpaid work, termination without cause, harassment, and the absence of proper supervision or feedback. In response, Dean Dodek called on the Law Societies to investigate the abuse of articling students. He suggested that qualitative and quantitative research be done.

I would add that in addition to research, Law Societies should allow Alternative Business Structures. I suspect that part of the reason that abuse is so rampant and that articling students are so routinely viewed as cheap labour is partly a function of economics.

Training a lawyer takes considerable resources. By allowing Alternative Business Structures we can encourage business models beyond the equation of profit per partner per year. A model that does not always encourage investment in training.

At the CBA-FLSC Ethics Forum on March 1, 2019, Professor Gillian Hadfield spoke about how the biggest ethical failure is the failure to regulate entities other than lawyers. Our ethic rules are dictating business models. The regulation requirements “bake in traditional lawyers”. The rules dictate who can provide services, who can invent services, how services can be advertised, how people can be paid, and who can invest in legal businesses. These economic regulations have ethical consequences.

Professor Hadfield pointed out that there is no structure to regulate different types of entities that can provide legal services. By licensing entities other than lawyers, we can encourage diversity of thought and feedback to create innovation.

Assuming that the traditional way of practicing law is the answer is not working. In a separate article by Dean Dodek “The Ethics of Articling”, he asked us to “ask the Moneyball question… If we weren’t already doing it this way, is this how we would do it?”

(Originally posted on slaw.ca. Views are my own and do not represent the views of any organization.)

Should Judges be Allowed to Block Followers on Twitter?

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Many new judicial appointments are former lawyers with active social media accounts, including Twitter. Assuming that judges should be allowed to use Twitter, what are the rules?

The National Judicial College posted useful rules here. The recommendations include: not engaging in ex party communications, not giving legal advice, not conducting independent judicial investigations, and not discussing pending matters.

But what happens if you have an obnoxious Twitter follower? Should judges be allowed to block Twitter followers? Blocking a follower, prevents them from communicating with you and seeing your Tweets.

In the United States, there have been several cases involving politicians. Courts have ruled politicians blocking Twitter followers violates citizens’ rights, including citizens’ freedom of speech.

Do judges as public officials fall into the same category as politicians? I would argue that judges are different from politicians. Communications from an unruly Twitter follower could compromise a judge’s impartiality and could get a judge conflicted out of hearing a case. Judges should be allowed to block Twitter followers.

For example, someone can set up an account to spam judges’ Twitter accounts with information about a case that is pending before the courts or to be pending before the courts. This could be done as a way to steer the selection of a judge in favour of a party by getting judges conflicted out. Or, someone with a grudge against a judge or a lawyer could cause a mistrial in an ongoing trial by sending evidence that has either been excluded or would be inadmissible in a court to a judge via Twitter. There is also the potential for abuse of a judge after a decision has been rendered. A Twitter follower could hound a judge on Twitter as punishment.

In order to protect judges, judges should be allowed to block Twitter followers. To be a court of the future, courts need to be able to communicate to the public in a way that people understand. Social media is a useful tool for encouraging public respect for the judiciary. In order to encourage courts and judges to communicate with the public on social media, they need to be able to block unruly followers.

As stated by Justice Brown in Bank of Montreal v Faibish, 2014 ONSC 2178, “Why should we be able to expect that treating courts like some kind of fossilized Jurassic Park will enable them to continue to provide a most needed service to the public in a way the public respects?  How many wake-up calls do the legal profession and the court system need before both look around and discover that they have become irrelevant museum pieces?” Participation by judges on social media allows the court to be more accessible with the general public. It helps prevent our courts from becoming irrelevant museum pieces by encouraging public education and outreach.

(Views are my own and do not reflect the views of any organization.)