ARCH Submission on HRTO’s Digital First Strategy
Sent via email to [email protected]
November 27, 2020
Tamara Kronis, Associate Chair
Human Rights Tribunal of Ontario
655 Bay Street, 14th Floor
Toronto, ON M7A 2A3
Dear Associate Chair:
Re: ARCH Disability Law Centre’s Comments on the Use of Electronic Proceedings at the Human Rights Tribunal of Ontario
I write to you today on behalf of ARCH Disability Law Centre (ARCH). ARCH is a specialty legal clinic dedicated to defending and advancing the equality rights, entitlements, fundamental freedoms and inclusion of low-income persons with disabilities in Ontario. As part of its work, ARCH often assists or represents applicants appearing before the Human Rights Tribunal of Ontario (HRTO) who allege discrimination on disability grounds.
We draw on our experience representing persons with disabilities which includes appearing before the HRTO to provide feedback on the use of electronic proceedings, introduced as part of the HRTO’s “digital first strategy”. To note, this strategy is relatively new and the use of virtual proceedings is still in its infancy. Not enough time has lapsed to make fulsome, comprehensive submissions as to the efficacy and accessibility of the use of teleconferencing and videoconferencing. Accordingly, we provide our feedback with the caveat that future fulsome consultations with all interested stakeholders should be a part of the HRTO’s process in rolling out this new strategy.
ARCH also takes this opportunity to note that the HRTO had an avenue by which it could have received such ongoing feedback, namely the HRTO Practice Advisory Committee (PAC). Unfortunately, this avenue has not been available to the HRTO since October 2019, when Tribunals Ontario informed HRTO PAC members that it was reviewing the mandate and terms of reference of all Practice Advisory Committees. Since then, the HRTO has not met with HRTO PAC. ARCH maintains that HRTO PAC was an integral asset to the HRTO’s process and practice: it provided feedback from experienced applicant-side and respondent-side counsel regarding the HRTO’s policies, practices, rules, practice directions and services. HRTO PAC would have been well positioned to provide valuable input to the HRTO on its digital first strategy. ARCH supports the reconstituting of HRTO PAC as it can play a critical role in identifying and communicating new and emerging concerns regarding electronic proceedings.
Ensuring the Full Participation of all Parties
ARCH understands and appreciates the immediate urgency for implementing virtual proceedings, and the efficacy in utilizing virtual hearings in a post-COVID society. However, in taking this approach the HRTO must ensure that the transition to predominantly virtual proceedings does not create an unintended barrier for persons with disabilities and other equity seeking groups appearing before the HRTO.
Full participation in a virtual proceeding requires a party to utilize resources it may not otherwise have access to; at the very least, a party must have access to high-speed internet, access to a computer, and access to a private room or space. Many applicants appearing before the HRTO are of various socio-economic status, and are from regions across the province. This means that some applicants may not have ready access to a computer, or may not have reliable internet available to them in order to participate fully. Moreover, these same applicants may have otherwise been able to participate virtually by accessing a computer at a library or by borrowing a computer; however, in light of pandemic-related restrictions, these avenues are no longer available, making the connectivity barrier more acute.
Over and above this, a virtual hearing requires some familiarity with how to use a computer, how to access and use virtual platforms, and how to troubleshoot should technological difficulties arise. Moreover, digital proceedings may give rise to unintended or unforeseen disability-related barriers.
Accordingly, any strategy contemplating a shift to operating digitally – either wholly or partially – cannot in effect offset accessibility considerations to the end-user. The HRTO must consider all of the steps that must be taken in order to ensure that parties are not negatively impacted and their full participation is not threatened. This includes procedural considerations such as how parties who do not have access to a computer, or internet, or a private space can participate in a virtual proceeding, in addition to the level of accessibility of the digital platform itself.
For some persons with disabilities, virtual proceedings will be the more accessible method in which to fully participate in their mediation and hearing. By equal measure, however, virtual hearings are not accessible for some persons with disabilities. Accordingly, careful consideration must be given to the various barriers that may be erected for some persons with disabilities by the introduction of the digital strategy. It may be of relevance to note that, in ARCH’s experience, no single digital platform is fully accessible for all persons from all disability communities.
It is important that the HRTO ensures that eliminating these types of barriers is as much a priority as transitioning to virtual proceedings.
Virtual Proceedings Cannot Replace In-Person Proceedings
As mentioned above, the urgent and rapid transition to virtual proceedings is appreciated considering the present pandemic. However, it is important to ensure that virtual proceedings do not completely replace in-person proceedings in a post-COVID society. This is because some parties, as mentioned above, may require in-person proceedings in order to accommodate their disability-related needs, or because they do not have access to high speed internet, or do not have access to a computer or cannot access a private space in order to participate in virtual proceedings.
Accordingly, the HRTO must consider ways in which proceedings can happen either virtually or in-person depending on the parties’ individual circumstances and disability-related accommodation needs. Parties to a proceeding should be advised by the HRTO of the conditions upon which they can make a request to participate in a proceeding that is most accessible to them.
The Importance of an Accessible and User-Friendly Platform
Similar to our peers in the legal profession, ARCH has also had to pivot in its delivery of legal services to its client community. In doing so, ARCH has conducted meetings, public legal education seminars, continuing legal education seminars, and consultations over a variety of digital platforms. In particular, ARCH has used Microsoft Teams, WebEx, GoToMeeting and Zoom. In doing so, ARCH has found Zoom to be the most user-friendly program, and the most accessible in comparison, especially for persons who are not familiar with technology and are participating in a virtual proceeding or event for the first time. Other forums have chosen Zoom as their digital platform of choice and we encourage the HRTO to conduct fulsome market analysis to decide which platform is the most accessible for persons with disabilities and the most user-friendly for all users for the purposes of the HRTO.
Protecting the Privacy Interests of Parties
The shift to virtual proceedings raises serious concerns about the potential impact on the open court principle that may flow from holding proceedings remotely. For example, some concern has been raised as to the right of the public and the media to attend these proceedings and how their ability to attend can be facilitated. We share these concerns.
There is a tension here, however, that must be carefully considered and addressed by the HRTO. Namely, ensuring the protection of the privacy interests of litigants appearing before the HRTO remotely. This concern for privacy protection is two-fold. First, allowing members of the public to attend remote hearings via, for example, a webinar link, upholds the open court principle. However, this may allow members of the public to observe and engage with the proceeding in a way that was never contemplated by the principles of in-person open court. For instance, viewers may be able to record the proceeding and distribute it on the internet. Members of the public attending a hearing in person are not permitted to record any part of the proceeding – a rule that is easy to enforce in a controlled physical hearing room environment. This is not as easy to control when a hearing occurs virtually. Accordingly, the HRTO must consider how to balance these two interests in a fair and just manner, and in line with the principle of open court.
The second concern is more specifically related to persons from lower-income communities and who may not have access to a space from which to attend the virtual proceeding. Even in a post-COVID society, persons having to attend their local library or community centre to access a computer and/or internet are at a disadvantage as these settings may not provide adequate privacy, or may not provide access for the length of time that may be required for a proceeding. This is a concern for all virtual proceedings, but is of particular importance for mediations and hearings in which one or more parties’ names have been anonymized.
Test Runs and Lead Time Prior to the Start of a Proceeding
This feedback is more logistical in nature. In our experience, it has been extremely helpful to have a test run organized and executed by the HRTO a day or more prior to the actual proceeding. In this way, any unexpected technical difficulties can be addressed by either the HRTO or the affected party. ARCH recommends that this practice be sustained and that a test run is conducted by the HRTO with all parties before every virtual mediation and hearing. Moreover, ARCH strongly recommends that the feed to the actual mediation or hearing become live prior to the designated start time. Again, this is to provide some lead time to address any unexpected technological difficulties without using time that is otherwise reserved for the actual mediation or hearing. Having the feed live prior to the start time is akin to opening the hearing room in the moments prior to the hearing, at which times the parties and their counsel can get organized and settled in the interest of the hearing commencing promptly.
The Supreme Court of Canada has employed this practice, advising counsel to sign into the virtual hearing an hour or more prior to the designated hearing start time in order to ensure that any technological issues are dealt with promptly and without encroaching on or disrupting the hearing itself.
We appreciate this opportunity to provide the HRTO with feedback on its digital first strategy and, in particular, its employment of virtual proceedings to ensure that parties’ applications are still being processed in the midst of the pandemic. We further appreciate the HRTO holding a consultation early on in this process in order to address any issues as swiftly and promptly as possible. In saying this, however, we respectfully request that the HRTO carefully turn its mind to the impact a complete shift to virtual proceedings will have on persons with disabilities, persons who are lower-income and persons from other equity-seeking groups, and give these considerations their due weight.
ARCH DISABILITY LAW CENTRE
Signature of Robert Lattanzio
cc. Ena Chadha, Chief Commissioner, Ontario Human Rights Commission
 Many persons with disabilities are on social assistance and do not have ready access to the necessary resources – a computer, internet connection and private spaces – to fully participate in a virtual proceeding.