Chris Bentley and Colin Stevenson

3Forever. 33 years, if anyone's—

6Well, it seems like a lifetime ago, but it is only just over a year ago that the crisis hit. It's almost difficult to remember how much of a crisis it was back in March 2020, but everything shut down. The people came back from abroad if they were away. People here suddenly realized that they couldn't work from the office anymore. The law firms were panicking is the real truth of the matter, and if the law firms were panicking, the Ministry of the Attorney General and the courts were beside themselves. It's not a criticism, but it's the reality of the situation we were in. No one immediately knew what to do, but everybody had to do something.

7And I have to say, it's a tribute to the top people, the bureaucrats in particular at the Ministry, under, I must say, the very able leadership of the current AG, Doug Downey, and the courts under equally able leadership of Chief Justice Morawetz in the Superior Court, which is the one I'm most familiar with, but the other two Chief Justices as well, Strathy and Mareset? Sorry, I've got the pronunciation. Mezniv. Mezniv, I've got that one wrong. Lise Maisonneuve. They all had to step up and they did step up, but initially the courts did not have the technical capability. The courts have been starved of funds for years. They didn't have the technology, not for want of interest or lack of interest, it was because of no money.

8OBA stepped up. We provided approximately 300 Zoom lines and facilities immediately because they didn't yet have those, and equally importantly, OBA tech staff, who are just brilliant, trained all of the judges on using it in those initial couple of months. So without going into huge detail, the courts immediately were able to keep emergency matters going. They gradually pivoted, or quite quickly pivoted, to using the Zoom facilities, and they, over the next couple of months from March 2020, opened up to some extent, indeed to a large extent, in civil and family matters. Criminal was always a bigger problem because of the understandable reluctance to have trials and serious matters involving personal liberty dealt with by Zoom, but we are where we are today with a functioning court system, albeit one that still requires extensive further investment and further development on the tech side.

10Yeah, so I mean, first of all, I want to thank Colin, the Ontario Bar Association, you know, Betsy Hall, and all the people at the at the office and a number of members of the bar who really stepped up in a moment of dire need and helped make things happen. And I think Colin, even in outlining the seriousness of the challenge, he understates it. He understates the position that we were in. But I think it's important to dig a little deeper into that position to understand where we're going to go into the future. It is true that the pandemic was not predictable, and what the pandemic did was create an enlightened self-interest on the part of the Bar and the judiciary and the ministry to do things that certainly the judiciary and the Bar had not been wont to do, and that is essentially take advantage of off-the-shelf technology wherever it is and enable people— people to do things remotely as opposed to having to come to a physical structure.

11There was no choice of coming to a physical structure, or little choice, when the pandemic struck, and so people had to do other things. For years, we've had the right to do things by conference call even. That was the first iteration in the Ontario Court of Justice. They would do proceedings by conference call, but they didn't do proceedings by conference call. Nobody did. Just because, well, just because, you know, we have the power to say no in many parts of justice. And so what the pandemic did in many ways, and what Colin and his colleagues facilitated by bringing in a new way of doing things, was to eliminate all of those reasons for saying no to new that had bedeviled us for years.

12Corporations had used video conferencing technology for decades, not as agile as Zoom, but for decades, but courts just chose not to, except in the extremely rare circumstance. And I resile against the suggestion that it's always money. The legal profession likes to define every solution to a problem in terms of what it can do and how much more money it needs, but almost all of the technology that has enabled Zoom courts is off the shelf and cheap. Almost all of it. And so it's not been money, but choice, which has been the main inhibitor. And it will be interesting to see, you know, and I'm interested in Colin's perspective. You know, as we open up, we got a bit of a bump in the road at the moment, it seems, but as we start to open up, What will Colin and his colleagues hope to achieve in terms of a future of a court system and technology?

13Colin, I throw it over to you and see what you think about that.

14Well, I think one of our problems collectively is the inherent conservatism of the Bar and the judiciary. So leave aside MAG and the funding issue. Chris, you're 100% right that one of the major obstacles to innovation and progress, frankly, has been the reluctance of the Bar and the judges to embrace existing technology. My best example is in my world of the Commercial List, where I do a lot of my work. They had— never mind, they progressed in theory beyond conference calls, which rarely happened, to the system called CourtCall. I never once was on court call prior to the pandemic, and I never have since because it's complicated, relatively complicated and expensive compared to Zoom.

15So, you know, there's been a failure to implement the right technologies. There's been a failure to take up technologies like simple conference calls when they're available. And to this day, notwithstanding what I consider to be the tremendous success of Zoom in the greater scheme of things, I still talk every day with colleagues who keep saying, well, when are we getting back into court? We have to be in person to deal with these commercial matters, to which my answer is often, these matters are document-based. There's rarely questions of credibility that determine the outcome of these sophisticated commercial matters. They can, for the very large part, be dealt with by Zoom or equivalent. And yet people of my vintage in particular continue to cast doubts on the ability to do this sort of thing by Zoom going forward.

16So it's a big problem, and it's a mindset problem on the part of the Bar in particular. I think the judges have actually accepted it more readily than the senior lawyers. Now, I'll just end this comment with reference to the more junior lawyers like you, Pulat. And I'm not referring to you, but I even find opposition among junior lawyers because they all want to be— well, the British would say Rumpole of the Bailey. I'm not sure who our equivalent here is. But they all want to relive the lives of the Robinettes of 100 years ago, or 80 years ago, and be in court conducting withering cross-examinations. In front of the gimlet-eyed judge, as it's often described.

17And that may be appropriate in matters involving significant credibility issues, but for the most part, it is not the way to run an efficient and effective and fair justice system, given the need to accommodate the interests of everyone in society and not just the very rich corporations.

18And let me just tag on to that, if you don't mind, at the end, because Colin has been working at leading the profession in terms of technology. I mean, I remember my early discussions with Colin about technology were— seems like decades ago— about this, and Colin is not the conservative one. And so here's the question that everybody faces and the real challenge, I think, particularly in civil and family matters for parties that have an option, and they tend to be parties with money, tend to be parties with connection, they are going to— they've been increasingly resorting to, and they will continue to resort to either private courts, alternate dispute resolution, or online dispute resolution, which will come, other ways of dealing it where they can set the schedule, They can have streamlined rules, they have control of the price and the timeline.

19And I think the, the almost existential crisis for the courts is going to be this, that the people that can use the courts are disproportionately those with money or with no choice. The people now excluded from courts because they don't have money, they're still going to be excluded. And unless the courts can find a way to adopt technology and to fundamentally streamline the process, so you focus on the result and not the journey, and the courts in civil and family are going to be less and less relevant to the lives of Canadians. They see this happening now. So there'll be a conversation about whether technology should be a key part of the future or not.

20In criminal cases these days, there's very little in a person's demeanour that you can actually use to assess credibility anymore anyway, and when you're on Zoom, you're getting the full face. I mean, anything you need to see in the face, you're getting it with Zoom. I think the real question for the courts will be how much of what we're doing now can they afford not to do, and should the standard be you're doing everything on Zoom unless you're able to convince a judge for rare reasons you have to be in person. And just think, you can create like, what, 100 Zoom courts in a flick of a button anywhere in the province, for any reason, anywhere in the country, for any reason.

21It's amazing. So I'm really— I'm interested and concerned with where this conversation goes as we are going to make the transition. It'll be interesting.

22We better let Pulat ask a question because we could go all day.

25Well, let me say that it's not even the second part, the changing the process is the first part, and the technology, to the extent it's useful, is the second part, or coexistent at least. The process for Superior Court matters, which is my familiarity, is, to use the word, crazy. It's fine for claims of $5 million or whatever, but— and I appreciate their simplified procedure, but if you think that simplified procedure God bless. But the reality is that the process is complicated. It's sophisticated. It requires legal lawyers to advise on it. That's the reality of the matter. That's why we all went to law school and spent years practicing, to be able to advise properly in the context of a sophisticated, complicated system that provides Rolls-Royce justice to wealthy participants.

26For people who practice as I do, I mean, I'm not cutting off my nose to spite my face here. This is a good business. It's fun. It's lucrative. It's interesting. And the rules warrant— are warranted in the light of the nature of the fight. However, it's not warranted in 99% of the cases. Those rules could be thrown out the window, and someone could write— and I know Chris has people who have the algorithms to produce an online dispute resolution for the many disputes that don't warrant the rules of civil procedure. And the best example I'll give, and then turn it over to Chris, is the reality that's out there on forums like eBay. These are minor disputes that get resolved by technology every day.

27And I know your question was to do with process, but it's a process that allows those disputes to be dealt with. And very quickly, very easily, without lawyers, without expense. And it's not to get rid of lawyers, it's just lawyers aren't warranted. We charge a lot of money because of all our training and overheads, etc., and that's right and reasonable, but we can't be— the people can't be expected to retain lawyers to deal with minor disputes. And I should make the final point, and that's patently obvious in BC, where they've brought in the Civil Resolution Tribunal to deal with smaller disputes. We have to have that here, we have to have it yesterday, and lawyers have to assist in bringing it in if we're truly interested in bringing access to justice to the bulk of the people.

28Yeah, so to pick up where Colin started, and you know, I accept all of what Colin said, it's process reform that needs to lead the way, and that hasn't begun in Ontario, or for that matter virtually anywhere else in Canada. We are in love with our forms, we're in love with our rules, and as a profession, and seem to believe that everyone, every form and every rule has to remain as it is. I encountered this when I was AG and I tried to reform the family rules. At the time they had, and I think it was an 8-page financial disclosure form that people were filling out constantly. And I tried to make that one page where you declared what your income and assets were and signed a statutory declaration.

29Oh no, no, all you need to do, Mr. Attorney, is give us more money to support the rules as we've written them. It's always about more. People who have a problem, they're not interested in the journey, they're interested in the destination. And it is a fundamental change in mindset. It's the eBay change in mindset. Where people have a problem, I want to know how to solve my problem. If I can't have what I want, then tell me. Don't tell me 3 years from now. If I can have what I want, I want what I want now, not 3 years from now. So this mindset change is what is going to save our court process, or not, and it needs to happen urgently today, remembering that 80% of the people with legal problems in Canada, people and businesses, are not getting legal assistance from lawyers.

30You know, they're muddling on their own. It's hard to see how a publicly funded system that serves about 20% of the needs out there effectively can continue to demand more and more public resources, the 80% are going to figure out other ways of getting a resolution, and then they're going to figure out they don't need to fund a public one to the same extent. I think process reform supported by technology, enlivened by technology, but you, as I might have mentioned before, you could create improved justice results for a majority of Canadians just by reforming the process without any other technology than we're currently using.

31And the family law example is a great one, especially from the perspective of the Practising Bar. There is an understandable concern on the part of many family lawyers that simplifying the documents, improving the ability of self-reps to deal with this themselves may somehow be detrimental to lawyers' practices. But that clearly is not the case. That's clearly a fallacious argument. 80% of the family litigants are self-reps because they can't afford lawyers. Lawyers aren't losing anything if you make it easier for those 80% to get access to justice. It doesn't mean it has to be access in accordance with the 8-page forms and the complicated rules as they apply in family proceedings. It may well mean a very simplified process with a dispute resolution mechanism that's much simpler, and the lawyers complain perhaps that it's cheap and dirty and it's not proper access to justice because the process is inadequate.

32Well, I say that's just nonsense. If people don't have the ability to get into court now and don't have the ability for judicial determination of their issues, they will be much happier with a process that's fair. It has to be a fair process. It has to achieve an equitable resolution, but it has to do it quickly, and it has to do it at much less cost than lawyers provide for the complicated cases. The lawyers will still have their business. It's not going away. Complicated disputes will require lawyers. The complicated disputes will require judicial determination, more or less as it has been for 150 years. But even there, it has to be refined. Big corporations and large family cases don't want to pay lawyers millions of dollars to drag something out, or to have things drag out for 3, 4 years.

33The whole process is crazy, but it's not like it's gone crazy overnight. It's been crazy since day one. I've told you I've done this for 33 years. I never thought that this was a process that was as admirable as so many think it to be. It is great for some rich people. It is perhaps great for some rich people, perhaps great for corporations at the highest level dealing with patent disputes or whatever. But it's crying out for reform. The injustice inherent in the justice system is obvious to almost everyone other than the lawyers practicing in it.

34Yeah, just picking up with what Colin has said, I mean, let's throw a challenge out here, you know. If people have a legal problem and there is a faster, simpler, more affordable way for them to enforce their right, that is not sanctioned by lawyers, why should they be denied it? Why should they be denied it? And today, in the age of technology, where from the comfort of our respective desks we can obtain legal services from anywhere in the world and pay for them, do we really think that the future is about denial, or is the future about empowering the profession in ways that we have not they haven't yet decided are important. So they understand the importance of process.

35They understand that you don't have to charge everything by the hour or the 6-minute increment. They understand it's about value, not hours and billing. They understand what the consumer actually wants. And most consumers don't want a form or an affidavit or a motion. What they want is a result. A life and a future. And where Colin started, it's a really important point. It's the market. The market there is not being served by lawyers. So are we going to continue to ignore the market? In which case, it's either Wikipedia Central for that market, or— because most of them have some money. We're not talking about A to J the way I started talking about access to justice.

36When I left law school 1 or 2 years ago, the homeless and people without any money at all. Middle-income Canada can't afford the current legal system. People have money, they just don't have $300 to $500 an hour or aren't prepared to pay it. So if we get people to think about delivering value, think about serving that market in different ways, allow them to join, if I can be controversial, with those who aren't lawyers and obtain their expertise, advice, and investment, you've got a huge market. And I think particularly for your young, younger than me listeners, which is probably most of them, the people who've grown up in a year of accelerating change, of technology that seems to change every few months, with different ways of doing things that 5 years ago were not imaginable.

37They're used to dealing with people all around the world in all different professions with all different forms of expertise. Unleash their ability to compete on the problems of the day. Their future is in the future, not in my past. It's in their future, and they need to be able to compete with all they bring to it. If they do, lawyers will be able to lead the service of a much bigger share of the market than we do today.

38And of course, the future is in sight in the sense that the Law Society next week is going to consider the regulatory sandbox, as they call it, which is an experiment to allow non-lawyers with tech solutions to engage in the provision of legal services even though they're not lawyers. So this is likely to be implemented here as it has been in Utah and British Columbia, and California is about to do it probably as well. So this future is coming. So my message is— it's the same as Chris's, but let me be kinder and gentler to the lawyers for a minute. It's a future that is positive for us, and especially for younger lawyers like you, Pulat.

39I mean, when young lawyers express concern about the prospects for the profession and their careers, I say that the future is rosy. If I were in your younger shoes, I'd be looking at these alternative service providers, looking for an opportunity to get in there and make money. It's not just about access to justice from a lawyer's perspective. You've got to make a living, you've got to be able to pay the overheads, etc. It's an exciting time with opportunities. Successful lawyers, good lawyers, will be successful in the future just as they have been in the past. It's just, let's be open-minded, let's look at the opportunities and combine it with providing access to justice. Access to justice is not simply providing some pro bono services, especially in the big law firms.

40Admirable as it is, it's noblesse oblige, and it's inadequate. It's the proverbial thumb in the dike in the Netherlands. The solution has to be true access to justice. Pro bono ain't going to do it. The Law Society, I think, recognizes that the need to open the doors to these sorts of solutions. So we're about to see that experiment in the next few months, I think.

41I'll just pick up on one thing that Colin said. I actually see today's lawyers as having skills and abilities far beyond many that I might have imagined, and a world experience that's so much different. And so much richer, but they have to be allowed to compete because others are competing with them. And in today's age, if you don't have the ability to compete with all that you can bring, you're not— you're just diminishing your future. And what I hope for the generations of lawyers today, which I help train through the Law Practice Program, is that we really have we really give them the ability to bring all of their skills and abilities and connections and knowledge to the benefit of their practice, to the benefit of those who need legal assistance, and to the benefit of society generally.

42That's the way that the lawyers can make a dent in the access— in the justice crisis that we've had in Canada for decades. That's the way we make a dent in it. But unless they're able to we're not going to make that dent.

43Let me make one tangential point before we let you ask one more question, Pulat, and that is it's not just a question of access to justice for, as we've been discussing here, that's a huge problem and it's a question of equity as well, but let me point out to the thousands of lawyers, especially in the big law firms, that you are competing with the Big Four consulting firms, the PwCs, EY, Ernst& Young, KPMG, etc. The fact is they're using AI, they're spending— I think EY is spending $2 billion a year on technology. They're taking over what by any name is legal services in the regulatory front, the international business regulatory front. If anybody, if any company requires requires due diligence services if they require to ensure that they're complying with regulations in the UK and the EU and Canada, the United States.

44These services are being provided by the Big Four because they've spent so much more money on technology. And they're not lawyers. They may have lawyers on staff. And in fact, EY was hiring 5,000 lawyers last year when I looked into this. And the big firms, big law firms here I've recognized this a long time ago. Big law firms here have been innovative. They have taken on new technologies, and it is essential to remember that we are competing as lawyers at the high end with these firms. And there may be a rule against alternative business structures, but it's a rule that's observed in the breach rather than on the letter of the Law Society rules.

45So don't simply put up a fight, young lawyers. Sorry, don't put up a fight stopping technology, stopping innovation, because you think you're protecting yourselves. You've got a business that is shrinking, under attack from the Big Four consulting firms, unless you compete with them. And the big firms are doing that, but don't turn your back to that threat.

48Well, I suppose as a civil litigation lawyer I'll comment on that, and Chris's background was criminal law, but you know, I, I'm not sure I would agree in a general sense. The reality is no one in their right mind, unless they're filthy rich, is going to run into court to solve their civil disputes because lawyers are too expensive. And of course, costs is the huge disincentive. Even if you've got a family member who's stuck doing it for you for free, if you bring a stupid case, you're going to get whacked with costs. I'm always reminded of the Forest Hill neighbors last year or the year before with the dispute about dog poo throwing, etc.

49And and the judge made fun of them in the reasons, which probably wasn't so wise. But nonetheless, the losing side had to pay a fortune in costs. And at the end of the day, maybe they didn't care because they were so rich. But people are people. Some people are difficult. Some people fight because that's their personality. And the court system is there to deal with disputes. The real problem is that most people can't afford to have their civil disputes resolved. Landlord and tenant disputes end up in the tribunal. So it makes sense to move minor disputes into tribunals and administrative places. But I don't think there's anything you can do to stop difficult people arguing, and we have to provide a means for solving it without fighting.

50So the courts are there, the public courts are there because that's our system. So you might say the system should be improved so that there's— one can resolve the dispute sooner. That's fine, but I'm not sure there's anything much you can do to stop difficult people arguing.

51Let me take a little bit of a different tack to your question. I don't disagree with what Colin has said about the parties themselves, but really what you're— what you seem to be getting at is, is there an opportunity to institutionalize prevention? Or institutionalized streamlined approaches. Now, that is an area where I suspect Colin and I could agree that there's an opportunity for lawyers when they're advising clients on contract disputes and the like to basically say, okay, as we're drafting this contract, what happens when you disagree? Do you want to leave it to the courts? Do you want to put in a more streamlined way to resolve? There are many arbitration and other clauses, but to get even more granular on helping the parties see the means to resolving disputes so you don't end up in the courts, I think that's one piece.

52Prevention is going to be an expanding piece for the lawyers that decide they want to expand their business in different ways. It's an area where, you know, the Big Four that Colin was speaking about and others have been able to make lots of money over the years. I think another thing that is inherent in your question is this, that governments are great at making rights, creating rights, passing legislation, and then we just sort of leave it up to the justice system to sort of figure it out when things go wrong. I think it should be inherent on governments now, recognizing the huge justice crisis out there for most people. To say, if I'm going to create a right, I should figure out the remedy, not just for the wealthy, but for the rest.

53So when I pass the legislation and it has a right, when there's a dispute, how do we get that resolved? Should it be a CRT approach, as Colin alluded to earlier, the BC initiative? Should it be a streamlined tribunal, not a regular trial, a streamlined approach? Approach? Should there be forced mediation or arbitration? What is the fast, simple, affordable approach for the rights that I'm creating? And if you're not creating that approach, then don't pretend that you're creating a right, because for most Canadians, they're not able to enforce the rights that exist. If they have to enforce them, they can't afford the process. And I think that's going to be more and more approach.

54Colin made reference to eBay before. eBay realized that a lot of people will have disputes, small money disputes, but important to them, and they need a streamlined way to resolve it. I think we might, from an imaginative government somewhere, start to see that approach.

56Thank you very much, Pulat. Bye.