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Supporting dispute resolution with effective triage and referral

Effective triage and referral systems are one way to make the justice system more people centered. Until now, Canada has made little progress on that front.

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Settling disputes is at the heart of the civil justice system. Too many parties, however, enter the system without adequate knowledge of the resources they have access to, and the dispute resolution options that may be available to them. This contributes to an overloaded court system and increased costs for all litigants.

One solution to the logjam would be a robust system of triage and referral in every jurisdiction to ensure that litigants can navigate the system from the outset.

Supporting such a system in each jurisdiction will be a proposed resolution at the CBA’s 2020 Annual General Meeting. Sponsored by the National ADR Section, the resolution calls on the CBA to urge governments to create or enhance triage and referral systems for alternative dispute resolution, and to resource them properly.

Patricia Paradis, the executive director at the Centre for Constitutional Studies at the University of Alberta Faculty of Law, says that the CBA should be proactive in encouraging the use of ADR. “The frustration we have is with observing that access to justice continues to be a critical concern of our profession and has been for several years now. But improving that access seems to be moving at a glacial pace,” says Paradis, who as section vice-chair is moving the motion.

The chair of the New Brunswick Branch ADR Section, Frank McBrearty, is the seconder. He says that CBA —as the representative of the legal profession—has a role in stating that “we as a profession are open to the changes that have to be made.”

Over the last decade, Canada has been slow to adopt ADR and fallen behind other countries in tackling delays in the justice system. The 2012-13 World Justice Project Rule of Law Index ranked Canada 9th among 16 North American and Western European countries, and 13th among all high-income countries, on measures of civil justice. Delays in the resolution of civil matters were cited as a major factor in dragging down Canada’s ranking. By 2019, Canada’s ranking dropped to 20th, both globally and among high-income countries. Accessibility and affordability of the system, and delays, remain two of Canada’s weakest areas of performance.

The CBA called for an effective triage service to guide people through the justice system by 2020 in its Reaching Equal Justice Report of 2013. The report also recommended that courts be given the resources to provide tailored public dispute resolution services with effective triage and referral processes by 2025.

The CBA followed up in 2014 with Futures: Transforming the Delivery of Legal Services in Canada, which called for the justice system to offer many options for resolving disputes, and a continuum of services to assist parties through to a resolution.

“These programs should be accessible to the public, so that members of the public can choose appropriate forms of dispute resolution—forms that encourage early resolution and, to the extent possible, avoid costly, lengthy, and often unnecessary legal processes,” says Paradis.

For more on this topic and to share your views on the proposed resolution, please visit our discussion board.