♫ Everybody talks about a new world in the morning.
A new world in the morning so they say♫

– Music and Lyrics by Roger Whittaker.

The Covid pandemic has changed the justice system — if only for a little while. Having cracked open Pandora’s Box and gained a glimpse of how things can be done differently, some voices are now saying we will have a new world in the morning, a new world in the morning so they say...

Well, perhaps. What has started as a way to compensate for all the limitations imposed by coping with the virus has allowed the usually highly resistant to change justice system to experiment with different ways of doing things. Rather than just “paving the cowpaths” — in other words, by implementing technology that just speeds up the traditional ways of doing things, we get a chance now to create new and improved systems, procedures and processes that serve everyone better.

The place to start is by realizing the walls that constrain us and how the very structure of the justice system limits how we act. For example, here is a partial list of these limits:

• Synchronous: All parties must attend the courthouse at the same time.
• Serial: Each case follows the one before it in order to be heard.
• Expensive: Each brick and mortar courthouse has to be built and staffed.
• Geographically Tied: All parties must attend the court that is hearing the case.
• Jurisdictionally Tied: For the most part, each case is heard according to the laws of the jurisdiction where it is filed.
• Adversarial: Win/Lose not Win/Win.
• Involves Transactional Costs: TC = hard costs + loss of opportunity costs. The longer the resolution time, the greater the transactional costs.
• Involves Delays: We are seeing headlines today on the increasing delays in the justice system. We all know that justice delayed is justice denied.
• Limited Availability: Courtesy of the Internet, banks are open 24/7. Courts, however, are not.
• Involves a Judge: For the most part, a case must be heard and determined by a judge. This means that the judge represents a bottleneck in the system.

While the other courts in BC received a Ministerial Order, which suspended limitation periods for bringing actions, this did not apply to the Civil Resolution Tribunal (“CRT”). The CRT, Canada’s first fully online court remained open and fully operational during COVID, showing we can change these constraints and still serve justice.

When technology is applied to the justice system the following are possible:

• Asynchronous: Negotiations can take place at any time.
• Parallel: Each case can be determined independently.
• Inexpensive: Websites are cheaper than courthouses to build, staff, maintain, and are open 24/7.
• Spans Distance: Parties do not have to attend a physical location.
• Non-Adversarial: You can preserve the relationship between the parties, particularly in family cases, by adopting a non-adversarial model.
• Lower Costs: Transactional costs and delays can be minimized.
• Reduces Bottlenecks: Not every application or matter must go before a judge. Lower cost (and more plentiful) officials can make determinations.

We have a once-in-a-lifetime opportunity to examine how we do things and implement changes that can make the system work better, faster and cheaper by changing the structure and operation of the justice system. While we won’t have a new world in the morning, as Roger Whittaker says, “I feel a new tomorrow coming on.”