Universal Design and Videoconferencing at Tribunals: Improving Access from Day One

By: Richard Francis, Faculty of Law, Common Law Section, University of Ottawa, February 2015
Presented to the Council of Canadian Administrative Tribunals Annual Conference
24 February 2015

Table of contents

  1. Introduction
  2. History of Videoconferencing
  3. Credibility and other Issues
    1. Determining Credibility Issues
    2. Solemnity of the Hearing Space
    3. The Failure of Technological Equipment
  4. Access to Justice: Thinking Outside the Box
    1. The Law is Recognizing the Problem
    2. The Models of Disability
    3. Universal Design
    4. The Elements of Universal Design for Tribunals
      1. Meaningful Consultation
      2. Legislative Guidance
      3. Judicial Flexibility and Discretion
  5. Conclusion
  6. Footnotes

I. Introduction

In the Canadian legal systemFootnote 1, the use of modern technologies on a large scale is widely acknowledged to be in its early days. A popular perception has sprung from this, that Canadian courts and tribunals have not adopted new technologies at the same pace as have other institutions in societyFootnote 2. Serious attention from the legal community to the study of how technology has or should be used at courts and tribunals, is similarly gaining attention only now. There are probably a multitude of reasons for why technology has come into focus at this time. Chief among them may be that: times of fiscal prudence have created a need to seek financial and administrative efficiencies, a recent focus on access to justice issues has centred attention on the potential of technology use, and technology has developed to a point of broad acceptance across audiences.

There seems to be an inherent tension between government policy, which seems to encourage the use of videoconferencing and other technologies, and the acceptance of such technologies through their actual adoption and use by judges and tribunal members. This probably reflects the tension between efficiency on one hand, and certain concepts of justice and administrative fairness on the other that both decision makers and those partial to either side of the debate struggle with. A trend has not yet emerged to resolve this tension, but general observations can be made that at least highlight the most common struggles in this area.

In the mean time, certain populations such as persons with disabilities continue to face barriers to accessing justice. When tribunals design processes or overhaul their own rules, consideration for the implications of those on persons with disabilities is sometimes unintentionally overlooked. In such cases, changes are required after the fact or as a result of the accommodation needs of this population. In an environment where the use of technologies is emerging as a way to increase access to the judicial system for everyone including persons with disabilities, it is worth looking at how tribunals can use universal design principles to shape their own processes in an accessible way at the early design stage rather than at a later stage, post-change.

II. History of Videoconferencing

Although it is commonly believed that the use of technology in the legal system is quite new to Canada, this is not quite true. In legislation, an allowance for the use of videotaped statements, and closed-circuit television to protect children testifying on some child abuse matters can be traced back to a 1988 amendment to the Criminal CodeFootnote 3. Since then, the legislation and rules governing courts and tribunals across Canada have been amended to allow for the use of electronic technologies within the hearing process. By way of example, allowances have been made for the use of certain technologies such as video or teleconferencing under the Federal Court Rules since 1998Footnote 4, the Ontario Rules of Civil ProcedureFootnote 5 and the Criminal CodeFootnote 6 since 1999, and Rules of the Canada Agricultural Review Tribunal since 2000Footnote 7.

On the operational side, the Supreme Court of Canada is known to have experimented with satellite transmissions of hearings in the late 1980sFootnote 8. There is also evidence that federal and provincial appeal courts have used videoconferencing on some motion and leave applications since at least the mid 1990sFootnote 9. The Immigration and Refugee Board has used teleconferencing since the mid 1990sFootnote 10.

Other like-minded jurisdictions have had a broadly similar experience to Canada. In the United States for example, videoconferencing has been allowed and used in immigration removal proceedings since 1996Footnote 11, and videophones and Closed Circuit Televisions have been used since at least the 1970s onwards for such purposes as bail and pre-trial hearings at the state level, for taking testimony of child witnesses in abusive situations, for benefits appeals, and in civil trialsFootnote 12. The United Kingdom has approached the use of technology somewhat more slowly which is unsurprising given that it had to reform the oldest justice system, but came to it through a similar lens as Canada, namely through the civil system in 1992 and through consideration for vulnerable child witnesses in the late 1990sFootnote 13. Australia shares these experiences, but had the additional aim of using the technology to increase access to remote Aboriginal justice system participantsFootnote 14.

Since the early days, many pieces of legislation have been changed to allow the increased use of technology. For example, the Criminal Code now allows for telewarrants, remote appearance of the accused for judicial interim release hearings, certain parts of trials, preliminary inquiries, and remote appearance of witnessesFootnote 15. Some civil court systems have followed with amended rules of civil procedure and/or rules of evidenceFootnote 16.

Generally, videoconferencing technology has evolved greatly. Notably, the quality of available technologies has improved, and the cost of internet links and audio-visual equipment has droppedFootnote 17. Today, video-conferencing equipment is of crisp quality, is sometimes quite portable, and has reached the point of high-definition (HD) where a judge can even see the perspiration of a video-linked witnessFootnote 18. The increasing complexity of trials is one circumstance that is even acting as a driver for modernization of courtrooms. For example, one of Canada’s most technologically advanced (and expensive) courtrooms was built in Vancouver to accommodate the voluminous evidentiary considerations stemming from the Air India proceedings, some courtrooms in Toronto have been forced to import new technologies to hold multi-jurisdictional proceedings especially for corporate law cases, and Nova Scotia had to build in technology to proceed with the complex Westray mining caseFootnote 19. And with this advancement in new technology we are also seeing the advancement of even newer technologies. E-filing of documents and "tweeting" in the courtroom are just two common examples of issues that the justice system has had to face recentlyFootnote 20.

Against this backdrop, it is difficult to see how a trend toward video-conferencing would change. But just because a trend is evident does not mean the desired transition will be smooth. If one early example from our own Supreme Court can be cited, it has been said by the Court’s former registrar that one difficulty of implementing new technologies in the judicial setting is that often a change of corporate culture, where the silo effect sees different parts of the same institution working separately, is required to hasten the desired effectsFootnote 21. Perhaps the extent to which an institution is encouraged to adopt technology in its operations plays some role. For example, while secretaries and law clerks at the Supreme Court of Canada were all given (and accepted) personal work computers in their offices in the late 1980s, it is known that only five of the nine justices then on the Court accepted a similar personal computer for their chambersFootnote 22.

This anecdote might also speak to the ad hoc nature in which court technology such as videoconferencing has been implemented across the country. With a more strategic outcome in mind, a conference was convened in 2005 in Vancouver to brainstorm ways in which the judicial community could better co-ordinate issues of technology use in the judicial systemFootnote 23. What emerged was the Canadian Centre for Court Technology (CCCT). In early 2013, it released a comprehensive paper on remote appearances that is necessary reading for anyone interested in learning more about this subject in a Canadian and even province-specific contextFootnote 24. It does not appear that a similar multi-jurisdictional initiative has been undertaken in relation to administrative tribunals. Despite such positive developments, what cannot be forgotten are the very legitimate concerns with the implications of using technology in such an exacting setting as the judicial or quasi-judicial one.

III. Credibility and other Issues

In Canada, it appears that the appeal courts have not definitively opined on the use of videoconferencing in a way that creates certainty as to its compatibility with the core principles of the Canadian legal system. Scholars have occupied this void, and their thoughts are probably quite instructive as to how any decision maker confronted by competing legal and public policy interests would carefully weigh and consider the issues involved.

In its most basic form, the increasing use of videoconferencing can be both a positive or negative development depending on how it is considered. The most obvious benefit is that it saves moneyFootnote 25. Lawyers charge for their travel time, thus forcing clients to pay for a service for which videoconferencing can reduce the need (and about which lawyers have expressed concern)Footnote 26. Savings experienced through reduced transport costs is often cited as a benefit to the state also. Money and savings are not a simple issue however. Technology is not cheapFootnote 27, and ages fast in today’s ever-advancing connected world.

A. Determining Credibility Issues

Experience shows that the context in which videoconferencing is used determines which fundamental legal issues are raised to its objection. Administrative tribunals review many types of government decisions, both adjudicative and regulatory, but they ultimately must determine facts which touch livesFootnote 28. In the administrative context, such determinations require key assessments of credibilityFootnote 29. It is widely perceived that videoconferencing changes the dynamic of human interactions, and thus may alter the ability of tribunals to conduct the required assessmentsFootnote 30. Key differences between live and video presence can partly be attributed to the positioning of technological instruments themselves, as in camera angle and positioning that can make it difficult to view witnesses directlyFootnote 31. The ability of the decision maker to assess verbal communication cues such as words, tone of voice, and non-verbal cues such as eye contact may also make credibility assessment more difficult given the dynamics of natural human interactionFootnote 32. Certain parties such as refugee lawyers and advocates have also voiced concerns about credibility assessments made using technology where a risk to life or liberty is at stakeFootnote 33. However, experiments in both criminal and civil proceedings have shown that witness testimony by videoconference did not lead to negative outcomes for the party that was expected to be prejudiced by the changed method of testimonyFootnote 34. Some have gone even further in their criticism, suggesting that distanced testimony can make it easier to deceive the decision makerFootnote 35, but there is nothing to support such a beliefFootnote 36. The assumption that live testimony is superior to other forms comes in part from legal and human traditionFootnote 37, and in part from an unwillingness to question our legal biases in favour of live testimonyFootnote 38. Tradition and unquestioning adherence to norms are not sound bases for good policy however. Whether videoconferencing renders the legal requirement of credibility assessment more difficult remains therefore, at best, an unsettled question.

B. Solemnity of the Hearing Space

A more subtle concern has to do with the status of the courtroom as a stately space, and the proceedings as official ones. As Salyzyn has put it, "videoconferencing, by disrupting the geography of adjudication, may threaten the solemnity associated with, and respect given to, the civil justice system"Footnote 39. This criticism has been repeated in the American literature alsoFootnote 40. This position might be supported by McLuhan’s theory that "people wrongly focus on the visible elements of communication, when in fact, the more significant impacts come from those aspects of the communication medium that unconsciously shape and control the human response"Footnote 41. While videoconference proceedings in no way should diminish respect for the presiding member or the forum, this criticism is less relevant in the tribunal context than it is in the court context. Tribunals are usually created to provide an "affordable, effective, and timely alternative to government bureaucracy and the courts"Footnote 42. As a result, the conduct of tribunal hearings is often less formal and more flexible than court hearings. Thus, concerns about solemnity at the tribunal level are less relevant than in the court context, even if some intangible regard for the adjudicative space is lost in the tribunal process due to videoconferencing.

C. The Failure of Technological Equipment

There is a somewhat more practical barrier which some have noticed in videoconference hearings. This barrier is the barrier to communication that is created when technical equipment failures occur. This happens quite frequentlyFootnote 43. Technical failures have the potential to not only derail the proceedings, but exacerbate any problems experienced with communicating through videoconferencing that the parties had prior to the malfunction. For example, testimony by its very nature can be stressful and unkind. The adversarial nature of our court system assumes that some level of stress and intimidation helps the truth to be revealedFootnote 44. However, mechanical errors combined with the normal operation of our adversarial system, by adding to the stress of a witness, has the potential to render already unfamiliar proceedings unfair and less conducive to the truth-finding function. Fortunately, videoconferencing is known to assist vulnerable witnesses to feel more at ease and less intimidated during testimony than ordinary courtroomsFootnote 45. Perhaps the use of technology could even assist the non-vulnerable in alleviating the stresses associated with the judicial process. Fortunately too, training and preparation can also minimize technical problems.

IV. Access to Justice: Thinking Outside the Box

An important argument in favour of expanding videoconferencing opportunities centres around the proposition that it has the potential to increase access to justice for vulnerable litigants. It is well known that children were the first to benefit from the use of the technology, and in fact the leading US Supreme Court case on the Sixth Amendment right of confrontation is about the interests of child witnessesFootnote 46. Access to justice initiatives have, since the early days, found that technology can help that causeFootnote 47. While seeing the potential of technology, authors during the early days of videoconferencing in Canada noted their caution on the use of devices such as videoconferencing that were emerging at that time, as they were alive to the potential of, among other issues, imbalances between counsel that could be created by technological advancement. Concerns included ensuring that long-practicing lawyers kept up to date with the technologies used in the courts such as electronic appeal books, questions of affordability that depended on firm resources, and how best to change existing practices to use technology rather than inserting technology into established practices. More recent access to justice reviews have shifted the emphasis away from the challenges new technologies would pose to the profession, toward the potential of technology to increase justice where it is most neededFootnote 48.

So far then, it is recognized that access to justice is important, and that it is the vulnerable for whom justice is least accessible. However, the population of persons with disabilities is rarely mentioned when civil justice reform and technology use are considered together. The reasons why the literature appears to bear this out are unclear. One theory might be that the use of technology has been driven from the top downFootnote 49, and has therefore not truly taken into account the views of persons with disabilities. Nevertheless, persons with disabilities can benefit greatly from the increased use of technological aids within the justice system if done properly. The time is right for considering how technology use can facilitate access to justice in the administrative tribunal setting for persons with disabilities.

A. The Law is Recognizing the Problem

There is little doubt that persons with disabilities are a vulnerable group in Canadian society. They are a protected minority under the Charter of Rights and Freedoms and human rights legislation such as the Canadian Human Rights Act. Besides domestic law, international legal instruments ratified by Canada provide additional support for the right of persons with disabilities to access justice institutions. The United Nations Convention for the Rights of Persons with Disabilities for example states:

"Article 13 - Access to Justice:

  1. States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural… accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at … preliminary stages,
  2. In order to help to ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in the field of administration of justice"Footnote 50.

Even though it is well known that persons with disabilities face widespread discriminationFootnote 51, and the laws above have clearly recognized this, there is evidence that there is room for improvement. A study of Ontario’s Civil Legal Needs Project recognized that despite the above laws, persons who have a low income, of whom persons with disabilities make up a fair shareFootnote 52, are still more likely than others to encounter legal problems. These problems commonly include those related to social assistance, personal injury, and employment issuesFootnote 53. It is these exact problems that bring persons with disabilities in closest contact to the judicial system.

Fortunately, the administrative justice landscape has begun to recognize the challenges of access and the established need for it. Broadly, jurisprudence under the Charter of Rights and Freedoms, and cases such as BakerFootnote 54 have ushered in a time of more serious judicial consideration of the principles of procedural fairness. These principles facilitate access to justice for vulnerable populations, who have varying needs that are not always fulfilled by broadly worded substantive rights legislation. On the operational side, various Canadian jurisdictions have also recently undertaken efforts towards reforming their own administrative justice structures, which have included efforts that range from study, to legislative reform, to consolidation of non-judicial functionsFootnote 55. When considering procedural fairness and administrative reform, it is useful to keep in mind known cases such as MeiorinFootnote 56 and GrismerFootnote 57. These cases have established that in the accommodation process, inclusion should take place early in the process rather than later. Well established legislation, increased consideration of procedural fairness, and the changing administrative landscape provide a convergence of legal factors which favour increased consideration of access to justice for persons with disabilities.

B. The Models of Disability

Though the field of disability studies is fairly new to academia, it has usefully created easy-to-understand models which contrast how disability was once understood in contrast to how it is being understood in a different way today. These models are the (outdated) medical model, and the (modern) social / environmental model of disability. According to the medical model, "disability is seen as a characteristic of the individual", while the social model sees disability as "a social / environmental construct"Footnote 58. The models can also be contrasted in terms of outcome. The medical model "focuses upon the condition of the individual, and the way it debilitates him or her. This model is often held to blame the individual for his or her social exclusion, for it assumes that with treatment and/or support the individual can change and be helped to overcome their limitations"Footnote 59. By contrast, in the social model, "it is not the medical condition that denotes the disability, but the way in which the social structure operates to isolate and exclude disabled people from full participation in society"Footnote 60. The social model has been accepted by the Supreme Court of CanadaFootnote 61.

For administrative tribunals that are considering changes to their procedural processes that have implications for persons with disabilities, which go beyond the realm of their substantive decision making duties, the social model can be especially helpful. This is because tribunal procedure is typically constrained to a lesser extent by legislation than is the exercise of strictly legal functions. Procedure can therefore be effectively manipulated by tribunals to increase the accessibility of administrative justice. But procedure will only be made truly accessible if administrative tribunals recognize, as the social model does, that they are social constructs too. As social constructs, they share some responsibility with other justice system participants for decreasing the often unintentional structural barriers that may exist within their own procedures and rules. They can no longer, as the medical model would have, shift the sole responsibility for accepting all the inaccessible parts of the administrative process onto the person with the disability, who can only control his / her own response to inaccessible processes and not the processes themselves. While inaccessibility might sometimes rise to the level of discrimination, there are many procedures and rules that can still present barriers without meeting that standard. The increasing use of videoconferencing provides one example of a procedure or rule that tribunals now have the opportunity to craft and use in a way that is as accessible as possible.

C. Universal Design

Universal design is "a strategy which aims to make the design and composition of different environments, products, communication, information technology and services accessible, usable and understandable to as many as possible in an independent and natural manner preferably without the need for adaptation or special procedures"Footnote 62. Although initially an architectural concept, universal design thinking is being accepted into many other spheres of design. This acceptance seems to be driven by two ideas: that segregated features of any system are usually more expensive, are seen as special (afterthoughts), and not well designed in relation to the rest of the system, and that the changes required to adapt to the needs of persons with disabilities are often beneficial to the general population as wellFootnote 63.

While few countries have made universal design an enforceable legal concept, tribunals should consider using the concept when designing or substantially altering their own processes and procedures, especially those that have the potential to break down barriers for vulnerable groups such as persons with disabilities and others. A convergence of factors above is occurring, such as improvements in technology, legal recognition for the social model of disability, and a recognition that some tribunal concerns about the use of technology for hearings have been discussed in the literature. This, combined with the rapid increase in the use of videoconferencing and other technologies in recent years by tribunals gives them a unique opportunity to utilize the principles of universal design to shape a more accessible process for persons with disabilities. Designing videoconferencing in an accessible way can serve as a means to ensure that vulnerable groups have equal access to the justice systemFootnote 64. It simultaneously has the potential to break down one of the chief barriers to the participation in the justice system of persons with disabilities, the communication barrierFootnote 65. And using these principles when designing a videoconferencing system can help tribunals to, in future, improve the accessibility of new public procedures which they will implement in the future.

D. The Elements of Universal Design for Tribunals

1. Meaningful Consultation

In the longer term, even where legislation is designed to provide sufficient guidelines, and where judicial discretion is used with the flexibility necessary to avoid design conflicts, the use of technologies such as videoconferencing can still fail in its intended purpose of creating access to justice if the opinions of all parties, including persons with disabilities are not accounted for. Early-stage design consultations while implementing new technologies ensure that the cost-savings that form an important part of utilizing universal design principles in the first place are realizedFootnote 66. Logically, mistakes that non-disabled decision makers might make at the design phase can be more quickly and cheaply fixed through early consultations. One example is in the choice of technology used. Often, the pace of development of assistive devices lags behind the technologies to which they provide accessFootnote 67. Consultation could ensure that the most universally compatible videoconferencing technology is selected for use.

Of course, true consultations, done with all technology users and not just persons with disabilities, would besides ensuring that everyone concerned can use the technology, ensure that the technology actually has broad support from stakeholders. For a product to be truly universally designed, universal input is required. Engaging in consultation during design also has the added benefit of breaking down communication barriers. For example, for some populations such as older persons or those who have recently acquired disabilities, stigmas and fears associated with the use of assistive technologies existFootnote 68. For persons with disabilities and groups representing them, the opportunity to provide early input into the use of videoconferencing can lead to useful suggestions on how tribunals can allay such fears for future litigants. As an example, consultation will likely lead to a discussion and possibly a process or policy on how the right to accommodation is publicized to litigants, and how accommodations such as videoconferencing are requested by them. Without such consultation, many litigants may not even know of their rights to accommodation or that videoconferencing is available to them as an alternative hearing method. The opportunity for early input should be supplemented with the individual opportunity to comment on technology about which a tribunal considers it has already adequately consulted during design. Individual litigants should always be given the opportunity to reject the use of technology where warranted, because consent is the ultimate test of whether even the best designed technology or process such as videoconferencing will work in any particular situation.

For tribunal staff and decision-makers, consulting and considering the design of technologies such as videoconferencing and their effects on disadvantaged groups such as persons with disabilities also creates an enriched organizational culture. This culture can ensure that future design projects undertaken by tribunals will be infused with due consideration for how such projects can be made accessible to the widest group concerned, whether that group contains persons with disabilities or another minority in need of access to justice.

2. Legislative Guidance

One medium-term step to incorporating universal design principles into the videoconferencing portion of a tribunal’s work is to examine the enabling legislation under which videoconferencing operates within a specific adjudicative context. This is important because legislation and rules provide the framework for allowing and limiting its use. Where the statute or provision that is to be interpreted is too vague, there is always a risk that the decision maker will interpret the provision in a way that benefits the majority non-disabled group, while perhaps not being aware that the interpretation may have placed a limitation on persons with disabilitiesFootnote 69. For example, this could occur if a tribunal imposed a videoconference hearing on a party, where the rules of a tribunal allow, whose personal adaptive technology was not compatible with the conferencing equipment. On the other hand, where the statute or provision governing videoconferencing is too specific, it can limit the ability of the decision maker to adapt the tribunal’s process to the needs of litigants even where there is an agreed need for accommodation. Videoconferencing is sometimes allowed under tribunal rules for some types of hearing but not others, even where it may be useful for the types of hearings where it is restricted. For example, now-repealed rules of the Canada Agricultural Review Tribunal allowed the Tribunal to meet by teleconference for all purposes except for conducting hearings, while recently amended rules allow hearings at the discretion of the Tribunal for any reasonFootnote 70. Tribunals should therefore be aware that the rules under which they operate can have differential impacts, and when these are changed, this should be done with a view to accessibility at an early stage.

Where enabling legislation or multiple rules are being amended at the same time, videoconferencing should not be considered in isolation, as other legislated tribunal processes are also known to create barriers. Opportunities to amend tribunal rules are known to be occasional, and can be seized upon to make multiple changes that may affect persons with disabilities. Examples include:

  1. unyielding legislated limitation periods that do not account for circumstances of hardship experienced by vulnerable groups who may lack disability accommodation, transport or means;
  2. inaccessible written communications methods such as printed registered letters or forms that are prescribed by regulation but which are inaccessible to the print-disabled;
  3. fees that may be charged for filing or using alternative methods such as videoconferencing equipment or facilities; and
  4. vague statutory language itselfFootnote 71.

The foregoing demonstrates that the legislative or regulatory framework that governs a tribunal’s procedure can be the a significant barrier to implementing universal design principles.

3. Judicial Flexibility and Discretion

In the short term, persons with disabilities on a daily basis, still require individualized consideration in their own use of technology as it interacts with the videoconferencing facilities. This is where common sense, expressed in the adjudicative context as legislated and judicial discretion, is essential. While discretion might seem like an odd choice for a universal design principle, accommodating individual needs flexibly does support the ideals of treating all parties to tribunal proceedings as equal citizens in all their diversitiesFootnote 72, which promotes the design goal of being as broad-based as possible. Put another way, administrative discretion can ensure that practicing universal design does not lead any tribunal to conclude that providing formal equality through universal design is all that is required, when in fact Canadian law has long established that it is substantive equality that is required and this can only be achieved by adapting rules to individual circumstances. Providing such flexibility recognizes that even tribunal processes such as videoconferencing that are designed with universal design principles in mind can still conflict with fiscal or technological limitationsFootnote 73, but that such designs, if created with flexibility built into them, do not necessarily lead to an impasse where the use of technology is considered within a case specific context.

Often, persons with disabilities possess technical aids which they use to help them interact with the world around them. Each person is different and may use different aids, use them differently, or may experience difficulties in using them in some situations. Unique challenges may arise where these aids are technically incompatible with certain videoconferencing equipment, or where the setup of a videoconference makes the use of technical aids more difficult. For example, a computer which reads out loud to a visually impaired litigant could create problems for a videoconferencing speaker system, or a video enabled conference room could be set up in a way that does not allow a wheelchair user to navigate to a place in the room where she or he can be seen by the camera. In such situations, persons may require certain assistance or allowances not routinely given (e.g. a different room set-up, orientation to the setup of the room, extra time for equipment set up, or warning to bring certain adaptive aids to a hearing). A British Columbia Law Institute report provides a good review of some of the most common types of assistive devices used in the legal settingFootnote 74. Even where a process such as videoconferencing has been designed for broadest use, accommodations will need to be found in such situations. If the tribunal ensures that its use of videoconferencing is open to adaptation as a general rule, it will be much easier to adapt to changing needs when they arise.

V. Conclusion

It has been said that "we cannot ignore the reality that by not taking account of inequalitiesFootnote 75 in capacity, we are in fact operating a system of adjudication that is unequal and that is seen as unequal by those who suffer from its inequalities". Videoconferencing, though it has a history in Canada, is one tool that can be used anew to level that inequity for persons with disabilities. Tribunals have a clear responsibility to use technology in a way that decreases disabling barriers to access to justice for vulnerable groups such as persons with disabilities. The principles of universal design can be used by tribunals to this end, both for persons with disabilities and others. The three pillars outlined above of legislative guidance, judicial flexibility, and meaningful consultation, if used early enough in the implementation of a new process such as videoconferencing, can make a difference to the accessibility of tribunals and administrative justice for persons with disabilities and others whose interests tribunals account for when designing and using new technologies. Others will likely also benefit because the principles outlined are also universally applicable, and thus can be used when tribunals wish to account for the needs of other disadvantaged and often self-represented groups with whom they deal through the adjudicative process.

Footnotes