Shannon Salter

2Thank you very much for inviting me, it's a pleasure to speak with you.

5I did, and then stuck around because I liked it so much and went to law school there as well.

7That's true. I grew up in Burnaby for most of my younger childhood, and then we moved to Salt Spring Island where my parents had a small hobby farm. So not a very large scale, but enough to get a taste of what it's like to take care of chickens and sheep and goats and other animals.

9I was always involved, or interested anyway, in public policy and politics and public administration, as well as the law, and so it seemed like a natural place to go and learn more about the world outside of Salt Spring Island. And like so many people who graduate with a poli sci degree, you quickly realize that that's not a very large field, and so I decided to go to law school after that, but really did maintain, I think, a focus and interest in access to justice and public policy matters throughout law school, and then carried that through into my, my career.

11I did, yes. After I practiced for a few years, my husband and I decided to move to Ontario for a year, and we both did master's degrees at law schools there, and we had our elder daughter as well. So it was a busy year, but a really fun one. And I've got very fond memories of Toronto because of that.

14Well, that's interesting. I was not a computer programmer. You know, when I was on Salt Spring, we had 4 TV channels, no satellite, no cable. Certainly, it was just the beginning of the internet when I was in high school. So grew up with a very kind of analog existence. And I've always been an adopter of technology, but I haven't really been a super fan. I don't think that there's anything magical about technology in and of itself in terms of improving access to justice, but I am a huge fan of human-centered design. And the reality is that the humans really like technology, or at least they, are glued to their phones and they have ready access to the internet in a way that most people don't have ready access to the justice system or large parts of it.

15And so as a potential tool to be able to increase access to justice, I think the internet is extremely powerful and technology more broadly is extremely powerful. But I think it's important to recognize that it's not an end in and of itself, that it's the, the goal, or should be the goal, of the public justice system to build it self around the needs of the public. And part of that, a big part of that, is understanding the realities of people's lives. And the reality of a lot of people's lives, especially these days, is that their primary means of communicating with the outside world is through technology, especially now that we're all in our homes and have more limited social contact.

16So it's technology is or can be an outcome of design thinking, of human-centered design, but technology by itself is not the solution to the access justice crisis, in my view anyway.

18Yeah, I think there's a lot of analogies there that when we're experts in a field, we find it very difficult to understand the perspective of other people who are non-experts. And it's a sort of a form of problem blindness, is something that Dan Heath writes about a lot. I think engineers are susceptible to that. I think lawyers are as well. And probably doctors and any other professional. But because we're in the business or in the profession of providing services to the public, it's core for us to get out from behind our own expertise and to acknowledge that we may be the experts in the law, software engineers may be experts in IT, but people, people who have to use the technology or use the justice system or use the healthcare systems are the experts in their own lives.

19They know what impediments they have to achieving their goal, whether that's resolving a dispute or using an application, and we have the obligation to prioritize that expertise, I think, through human-centered design. And that, that's difficult, I think, for professionals because so much of what we're paid to do and what we're educated to do is to be the experts. And in some ways, that can become a real barrier to the humility and curiosity required to acknowledge that we're not the experts. In an important area like this, and we need to prioritize the, the lived experience of the public.

21Yes, absolutely. And I think that's actually been really core to our success. Everything that's public-facing, everything that we design for the public, we like to describe as being co-designed with the public, and specifically with community legal advocates who represent those who traditionally have had the most barriers to accessing justice. Now ideally, you'd co-design with their clients, that is the people who are experiencing the barriers themselves, and we do that as well as much as we can, but oftentimes we have to use their representatives as a proxy because they're on the ground, they are assisting hundreds, thousands of people a year who have a particular kind of barrier or challenge, and so they're a really good source of expertise in terms of usability.

22Even if they're not lawyers, often, especially if they're not lawyers. So the CRT is really quite a multidisciplinary project. It included mediators, legal professionals, IT professionals, business analysts, community legal advocates, stakeholders on the ground, and everyday members of the public as well. And the more that we can stay glued to the public, the more that we can check back through surveys and testing and make sure we're meeting their goals and our mandate, the stronger we get, I think, and the better we get over time.

24To different degrees. So if you come to us and you have a criminal matter or something that's clearly 100% outside our jurisdiction, our staff will tell you that right at the beginning because it's black and white and there's really no gray area there. If you have a dispute that may or may not be within our jurisdiction where we think it's questionable, it may properly belong with a different tribunal or a court, then what happens is our staff member will flag that for the parties and say, "Just a warning, the tribunal may determine that this is outside of the jurisdiction of the tribunal. We're going to escalate that to a tribunal member for a decision."

25So it depends on the degree of grayness. If it's really black and white, then that's something staff can deal with at the beginning. If it requires any degree of kind of decision-making, then that's escalated to a tribunal member. But we actually consider it a bit of a failure if somebody files an application that's outside our jurisdiction, because our goal is really to give them that information upfront through the Solution Explorer, which is our question and answer system that's free to use and happens before somebody files a claim. We want you to know right at the beginning, before you spend any time or money, where you need to go to resolve your dispute as a basic piece of information.

26And it's startling in so many tribunals and courts around the world how many cases actually get to a decision maker, a judge or a tribunal member, only to be found that they're outside of the jurisdiction of the body. And that's something people should know at the beginning. They should be able to figure that out in most cases within the first few minutes if we're doing a good job of giving them that plain language legal information.

29Yeah, I think there's a philosophical idea behind that that says that all the best evidence tells us that people suffer when they spend too much time, money, energy, and mental and physical resources on a dispute. We know empirically that's bad for people. The longer they have a civil justice claim, the worse off they are in every possible metrics. And so to the extent that we're able to help people resolve their dispute early, less expensively, without them having to spend a lot of time or energy or stress or money, that's going to be good for people. And so the philosophy around the CRT is We're not going to make this essentially a judge-centric model or a tribunal member-centric model.

30It's not built around adjudication. We will assume that with the right support and help, we can help people resolve most of the vast majority of their disputes well before that stage. Now, this is the exact opposite of the way that our civil justice systems are built. And by the way, there's no empirical evidence to support the way that we've built these systems. We know that of of every 100 cases that are filed, only 2% will end up in trial. But we have built all of the gateways, all of the steps, all the milestones in that process around the idea of a trial. Most of the things we force litigants to do in the civil justice system are not that useful unless you go to trial.

31If you were focusing around mediation and settlement, you wouldn't have exhaustive discovery processes that take months and cost hundreds of thousands of dollars. You wouldn't have highly adversarial approaches to pleadings and interrogatories and that sort of thing. So the idea here is that you get the software and the parties' own information to do the heavy lifting at the outset, and then you slowly add resources—mediators, tribunal members, staff members—as that becomes necessary, so that what you are resolving as an adjudicator are the highly complex cases that really need that resolution. And for the rest of the cases, you're helping people resolve them and get on with their lives without spending years and years and years tied up in litigation, which is very destructive on a bunch of different levels.

33I—

35I don't think that the civil justice system intentionally is trying to weed out cases through delay and cost and complexity. I do think, though, that that is the effect of what we've created. Nobody sat down, I don't think, and said, well, we're going to design a system of incentives and disincentives that will lead only 2% of cases to go to trial and a big question mark around the 98% that remains. I don't think that's what happened. I do think what happens, and unfortunately I think this is how much of our justice system was built, is through decisions that are made once and then never reexamined or tested through empirical evidence. And then because of our prioritization of stare decisis and precedent, our preference for the status quo over change, those decisions become entrenched.

36So to give you examples, you know, if you start pulling on the threads of almost any process that we use in the civil justice system and ask yourself, why do we do it that way? What you're likely to come up with is, well, that's the way it's been done for about 50 years or 100 years, and nobody's ever changed it or tested it or modified it. And then when you do pull on it, you find that there's just not a lot of empirical evidence. So the way that we waive fees for low-income people, the way that we run our chambers in many cases, not supported by empirical evidence, the way that we make people authenticate documentary evidence and so on.

37So it's not the case that I don't think that there was some grand plan to do it this way. It's become a Frankenstein of layers and layers of process and delay and complexity, and an entropy towards more of that, that is not serving the public very well. And so what I'd encourage us to do is to critically re-examine everything that we do. You are right that the CRT is consciously designed to be able to help people resolve their disputes early, but those decisions are made based on the empirical evidence that we have. And it's also a conscious acknowledgement that whether you design them or not, any system consists of incentives and disincentives. And so you also have an opportunity when you design something new to create incentives for people to start talking, create incentives for people to settle, and so on.

40That's right.

43The answer is yes, but maybe not for the same reasons that you're getting at. So it's important to be clear about what that refers to. We get about 5,000 or 6,000 small claims every year. About 40% to 50% of those are low-volume debt claims. So these are what are often referred to as payday loans or lenders who lend small amounts of money with an extremely high default rate. And so That's what that primarily refers to. Now, default rates for debt claims in small claims courts around the world are extremely high, usually upward of 50%. So we're already doing better than that at 29%. And that's actually one of the reasons that we brought in a shift to the CRT serving respondents.

44Since we did that about a year ago now, we found that the default rate has reduced by about 10% because we're able to serve people more accurately. They may take it more seriously when they receive something on our letterhead than something that the applicant is giving them. But it is also important to note that if we're not able to serve, we will go back to the applicant and say, you know, this, this mail was returned. Now you need to find a different way to serve, and here are the 3 ways we're directing you to do that. So it's not the be-all and end-all, but it has First of all, really reduce the burden on applicants.

45Applicants have a hard time serving, effecting service. It's often expensive and difficult for them. And two, for the respondents, it's more likely that they'll actually receive it. In addition to mailing it to the respondent, we also email it at the same time if we have an email address on file. I think your broader question, though, is a really important one, which is that it is worrying that there's such a high default rate for debt claims around the world. We're a lot lower than pretty much any other small claims court or body that I'm aware of. But I am always looking for ways that we can encourage people to respond, because often what happens is that for these low-level debt claims, they become a cycle where somebody is trapped in debt and it spirals, and there may be also employment or housing or other circumstances that make that a snowball effect of legal and sometimes mental health and other problems as well.

46We know that if somebody does come into the process, there's a really good chance we can help them negotiate a payment plan, which may be better for them. There's also the possibility that they can have defenses like limitation period defenses or defenses in terms of the applicable interest rate that might help them. So I think it is an opportunity to figure out how can we get more people to respond and not kind of bury their head in the sand because we might be able to assist them and there might be more remedies available to them than they think.

48Yeah, so we go as far as we can to give people legal information. We don't give them legal advice. One of the good things about the Solution Explorer that you referred to as a wizard is that it can be a standalone source of legal information, and there is information in there about things like limitation periods, applicable interest rates, and coaching on how to propose a repayment plan, for example. All of that is free and in the front-end system. So that's not something staff provide. That said, during the mediation process, the mediators do have the ability to caucus with one party or the other and provide a neutral evaluation. And part of what the facilitator often would try to do in a debt claim where both the parties acknowledge the debt is owed is to help the parties work out a repayment plan.

49So that's part of the role. It is important that they remain neutral, though, and that is core to our training for staff and also, of course, tribunal members as well. But we know that just participating in the process and getting the parties to start talking with each other often leads to better outcomes for people than being on the receiving end of a default order.

51Not under the statute. There's a presumption of self-representation for condominium disputes and small claims disputes. And incidentally, that's extraordinarily popular among members of the public, a little less popular among some lawyers. For motor vehicle disputes though, a person can have a lawyer as of right. I think it's worth noting for condominium and small claims disputes that we almost never get individuals asking to have a lawyer. It's just a wildly expensive proposition for, given the interest at stake for those kinds of claims. That said, we do consider that on a case-by-case basis under the statute. And of course, if you have a capacity issue or if you're a minor, you're entitled to have a lawyer if you choose.

53Yeah, it can be everything from, you know, a kids' soccer league to a nonprofit, you know, for breast cancer, for example. It can also include housing cooperatives. So it's a very broad array of organizations, and previously those disputes went to our Superior Court as well.

55There is no monetary limit for condominium disputes before the CRT in BC. There are certain categories of cases, strata or condominium disputes, that still have to go to our Superior Court. Things that are kind of life or death issues for the condominium, like winding it up, dissolving it, appointing an administrator. But beyond that, you know, we can hear disputes with respect to repairs that may tally in the millions of dollars. There is no monetary limit for condominium disputes. And I think in addition to the jurisdiction categories you noted, one big change is that our existing motor vehicle jurisdiction is set to change next May. The government is moving to a care-based model rather than a tort model here in British Columbia for auto insurance claims, and the CRT will be the dispute resolution mechanism for virtually all motor vehicle personal injury disputes in BC after that.

57I think you'd have to ask the Ministry of Justice here in British Columbia because it's a policy and legislative decision. What I can tell you is that the overall small claims limit in British Columbia is currently $35,000. So for disputes over $5,000 and up to $35,000, you'd go to our provincial court. That said, the total number of disputes, small claims disputes every year, is very much concentrated at these lower value claims. So we get about 5,000 to 6,000 disputes every year below $5,000. By contrast, there's only about another 6,000 or 7,000 disputes up to $35,000. So although it is a relatively low cap, it does capture most of the everyday kind of consumer disputes people have, neighbor disputes, things people buy online or on Craigslist, low-level debt claims and that sort of thing.

58And so I think in terms of increasing access to justice, despite the relatively low value, it's got a very broad reach when you think about the kinds of low-level transactions people have in their daily lives, the things they buy, the things they do, the services that they contract for.

61So when we refer to a hearing at the Tribunal, we refer to the adjudicative process, the process by which a Tribunal Member considers the evidence and submissions and writes a decision. Most of the time that hearing is based on the written record, and that's also the choice of the parties too. That's overwhelmingly what people prefer. Sometimes though, an oral hearing will be necessary depending on the interests at stake, including what you're getting at in terms of proportionality. The greater the interest of the case to the parties, the bigger the significance on their lives, the more procedural fairness in general they're entitled to under administrative law. So when you're dealing with, you know, a car somebody bought on Craigslist for $500, and we get some of those, does it make sense to have a half-day video conference hearing?

62Probably not in most cases. But it's very much a case-by-case decision. Like other administrative tribunals, the strict court rules of evidence don't apply to us, but that's the case for hundreds of tribunals across the country. That's not something specific to the CRT. Administrative justice, as you know, is meant to provide a more informal, more relaxed, more proportionate, more specialized approach to dispute resolution for a lot of different claims, and in that regard, we're not really different from any other tribunal. I will say though, as a greater point, that one of the areas I was thinking about earlier when I said that so much of our civil justice system is not based on empirical evidence is this idea around affidavits and the way that we authenticate evidence.

63We— and the reason it's important is because it's a huge cost item for somebody who's considering bringing in a civil claim to a Superior Court. Is all of the cost associated with the evidentiary and procedural rules necessary to bring your case. What is the support for that? Well, if you look deeply, there's not a whole lot of it. Obviously, we have an obligation to maintain the rule of law, to ensure fairness, to make sure people know the case to be met, and we have a fact-finding role as decision makers, but I have not seen any evidence that suggests that if you go down to a notary's office or a lawyer's office and swear an affidavit, that that magically will make the authenticity of the documents that you're swearing or the information you're providing more likely to be so, more likely to be true, more likely to be authentic.

64Administrative tribunals regularly operate on the basis that signed information, signed statements are fine. Unless the other side disputes them. And so to me, that is an approach to evidence that is more consistent with the available information. If you ask most civil litigators, and I'd be curious to hear your experience as well, when in their careers as litigators they've had significant circumstances where parties have tried to introduce fraudulent documents, it's pretty rare. In fact, I've almost never heard a litigator say, oh yeah, there was this case where this document was fraudulent. Most of the time, the dispute about evidence is about what it means, how relevant it is, what we can infer from it. It's not that somebody fraudulently created a bunch of business records, for example.

65Despite that, we make 100% of evidence be authenticated in our civil justice system, when really it might be 1 in every million documents that's problematic from an authenticity perspective. And so I would just encourage us to think really critically about why it is we put people to that kind of expense and complexity when 99.9% of the time that's not really the issue.

67Well, I just don't think— I think that's a form of magical thinking we have as a lawyer to think that when we put our seal, when we ask somebody if they're telling the truth, that that magically is going to increase the likelihood that they're in fact doing that. It rests on the supposition that the thing that's stopping somebody from being dishonest is not wanting to be dishonest to us, and I've just never seen any empirical evidence in support of that. Instead, for example, at the CRT, we have statutory penalties. So when parties upload their evidence and submissions, they have to acknowledge that there's a statutory penalty of up to $10,000 and 6 months imprisonment for misleading the tribunal.

68In our oral hearing context, we do make people swear a promise to tell the truth, but we don't make people have to notarize every document. We don't require originals of every document. It's only if there's a dispute as to the authenticity of a document that we might have cross-examination on it, that we might follow the best evidence rule. And so I guess what I'm imploring us to do is to apply reason, rationality, and empiricism to this task. And we're supposed to be good at that as lawyers, right? Those are supposed to be things that we're, we're meant to do, is be logical about it. If you knew a thing only happened 1 out of every million times, would you base your justice system around the idea that 100% of the time we need to follow a set of procedures that are extraordinarily onerous to capture something that's rarer than being struck by lightning.

69So if we applied that kind of thinking, that kind of rationality and logic across our civil justice system, I think we could really give effect to these foundational values. We would lose nothing of the content of the rule of law and procedural fairness, but we could radically increase access to justice for everyday people.

71There are admissibility rules.

73Yeah.

75evidence still has to be relevant and reliable.

77Yeah. And those are the twin guiding principles for admissibility in any administrative tribunal.

82I

84Yeah, no, it is a really interesting question, and I think it gets to a philosophical, a foundational philosophical principle. And in my view, the starting principle has to be that the justice system is the most accessible for the most number of people, no matter what their circumstances. And we have to also acknowledge that every time we add a step, at a cost, at a delay, multiplied by thousands in everyday disputes, thousands of documents, thousands of steps, thousands of hours of work. Every time we do that, we push the part, we separate the party from access to justice. And so if we accept that those things are true, that we should start with the most accessible system and only add barriers where it is legitimately necessary, then I think that requires us to really put ourselves to the test every time we're doing that.

85Every time we're adding a step, adding a rule, adding a cost, adding a delay, we better have a darn good reason for doing that. And my main point is that when we take the opposite approach, where we try to paper the world with every eventuality, try to account for every edge case no matter how remote, add a rule for everything that could conceivably possibly happen no matter how little factual underpinning we have to support that it has or could, what we've done is violated that principle. So I guess what I'm saying is instead of papering the world with rules, which is what we are taught to do as lawyers, and papering the world with brainstorming every remote catastrophic potential outcome and then accounting for that, we should set all of that to one side.

86We should start from the perspective that if we are going to push somebody away from their justice system by adding delay, cost, complexity steps, we better have an empirical basis for it. And if it's a thing that could only hypothetically happen, but never has in our knowledge, but maybe could, maybe one day, that is not a good enough justification for making 100% of people jump through a hoop, because the value of access to justice has to have content, and the content has to be a principled one. So I'm not suggesting that we don't have any safeguards or any guardrails. I'm saying that to the extent we put in those guardrails, we have to accept that that's an administrative burden.

87And every time we add an administrative burden, we have— we know that we are sacrificing accessibility, and there has to be a good reason for doing that. It can't be on the basis of some remote possibility of an outlier case. That's not good enough in my view.

89Well, I think we need more empiricism. I think we need more data. I don't think it's acceptable for us to create new rules, new procedures, new forms, new processes, new swearings, more affidavits, more, more, more on the basis of something that is hypothetical. Because the access to justice crisis is not hypothetical, it's very, very real. I recently wrote a paper, and we all know that, we know it's real, we know it has real quantifiable harms for people. And so weighing these hypothetical risks that we're papering through rules and procedure and cost and complexity is antithetical to recognizing the reality of people's everyday reality. And just one really quick example of that is a paper I recently wrote on fee waivers, the process by which people can have their court fees waived if they have a low income.

90That process in most jurisdictions in North America is built on no evidence and it's massively burdensome. In British Columbia, it requires people to figure out which forms to fill out. One of those forms has to be notarized. We have to— we require people to have all kinds of supporting documentation. They have to go down to the courthouse. They have to file their paperwork. They have to appear before a master in chambers. They have to satisfy the master that they are entitled to the fee waiver. They have to enter the order. All of this over $200 in court fees. We have no evidence to support that this prevents fraud. We have a lot of evidence through the advocates that I interviewed that this has a real harm for people who are looking to judicially review an eviction order, but in order to do that, they can't pay the $200 court fee and they have to go through these disproportionate mechanisms to do that.

91The harm is real. The evidence of fraud is non-existent. And you do have a comparator because, as you point out, the CRT does things differently. So for fee waivers, we don't ask for supporting documents. Literally, people can click 3 buttons, hit submit, and they get their fee waiver immediately. Only 3% of 20,000 cases have gone by way of fee waiver. There's no evidence of, of abuse, even if you make it dead simple for people. And so again, I think that supports the idea that we should assume that people are, for the most part, honest, that they want to do the right thing, that they respect institutions. And we should also assume that that anytime we create an additional step, we are alienating people from the justice system.

92And we should only do that where there's good supporting evidence to justify it.

94I can't comment on any future plans that the ministry or the government here might have. Those are policy decisions. But I will say that the whole model of human-centered design online dispute resolution is being increasingly adopted by courts around the world. There's exciting examples in Utah, in the United Kingdom, in Australia, all kinds of countries in Europe, states in the US, where courts themselves are taking on the challenge to do human-centered design, to do user testing, to think critically about their processes and to evolve them. That won't always look like the CRT, and nor should it. The CRT is an outcome of human-centered design. It is not a one-size-fits-all solution, but I think there's no area of our justice system, whether it's in the civil side or family or criminal, that wouldn't benefit from a critical re-examination of why we do the things we do and a real attempt and curiosity to see that process through the eyes of the people who have to navigate it.

96Thank you, Pulat, and thank you for the really interesting discussion. And really, the credit goes to our team here in BC, but I really appreciate the discussion. It was really engaging.