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built upon layers of extensive and continuous user-testing (including regular
user satisfaction surveys). The CRT also conducts focused testing with
the users who experience the most significant access to justice barriers, on
the assumption that “if a CRT process or technology component works for
vulnerable people with barriers, it will likely be accessible to the wider public”.
45 By looking directly to the most marginalized users of the system for
guidance about how to make it more accessible, the CRT’s design employs
what scholar Mari Matusda would call “looking to the bottom”.46 If our courts
are to create virtual spaces that respond to the needs of their users, this kind
of user-centred data—particularly from the litigants who face the most barriers—
is crucial. As Shannon Salter, then chair of the CRT, once argued:
“Truly putting the public first in civil matters requires us to examine
intensely the structure of our legal system and to ask ourselves, to whom
does the justice system really belong?”47
Virtual courts present as many opportunities as they do risks. Designed
thoughtfully, they may foster increased participation, inclusion and
engagement with the court process, promoting meaningful access to justice
and a mutual respect between the justice system and its users. Designed
poorly, they may lead to injustice and exclusion, further entrenching systemic
biases and access to justice barriers. As courts adapt to our new reality
by incorporating technology into their day-to-day processes, it is
imperative that they take the evidence-based and user-centred path forward,
looking to needs of their users rather than the desires of the bench
and bar. In the words of Ontario’s former Attorney General, “protecting our
justice system does not mean that we should preserve it, as is, like a
museum exhibit. It means we need to prepare the system to adapt, or risk
losing the confidence of the people it is meant to serve.”48
1. John Lancaster, “How COVID-19 Helped Push
Ontario’s Low-Tech Justice System into the 21st Century”,
CBC (4 June 2020), online: <www.cbc.
2. Paola Loriggio & Liam Casey, “Ontario’s Court System
Advances ‘25 Years in 25 Days’ Due to COVID-
19”, Huffington Post (29 April 2020).
3. The Honourable Beverley McLachlin, “Access to Justice:
Justice in the Time of Social Distancing”, The
Lawyer’s Daily (31 March 2020), online: <www.
4. Amy Salyzyn, “A New Lens: Reframing the Conversation
about the Use of Video Conferencing in Civil
Trials in Ontario” (2012) 50:2 Osgoode Hall LJ 429
5. See e.g. R v SDL, 2017 NSCA 58 at para 32.
6. See e.g. Lonking (China) Machinery Sales Co Ltd v
Zhao, 2021 BCSC 556 Lonking at paras 13–18;
British Columbia Supreme Court, COVID-19 Notice
No. 5, “COVID-19: Expansion of Court Operations
– Remote Video Conference Hearings” (2 March
7. See e.g. R v MacKinnon, 2021 ONSC 2749 at paras
8. See e.g. Lonking, supra note 6 at para 17.