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MULTI-STAKEHOLDER COLLABORATION: BEST PRACTICES AND LESSONS LEARNED FROM THE PANDEMIC

A Statement from the Action Committee

Our Committee exists to support Canada’s courts as they adapt their operations to respond to the legacy impacts of the COVID-19 pandemic. As part of its mandate, the Committee provides guidance for addressing challenges, and highlights opportunities and innovative practices to modernize court operations and improve access to justice for court users.

CONTEXT

Since the start of the pandemic, Canadian courts have continued to deliver justice in the face of unprecedented challenges. In doing so, they have seen the benefits of engaging with a wide range of stakeholders to both inform decisions and cooperate on delivering services. These partnerships have helped the courts to be better informed, more creative, and ultimately better able to support access to justice for all. As we look towards the future, courts continue to face many challenges that existed before the pandemic, as well as the lingering effects of COVID-related disruptions. Continuing to maintain relationships that were built or strengthened during the pandemic, and forging new ones in the years to come, will be crucial to addressing these ongoing and emerging challenges.

This tip sheet seeks to capture lessons gathered from consultations with judges and other justice sector stakeholders about effective collaboration in court operations, so that efficiencies gained can continue to guide the courts’ efforts to address backlog and delays and improve access to justice going forward. It builds upon the Action Committee’s Orienting Principles to reduce court backlogs and delays and related Repository of Promising Practices, with a particular focus on principle 5 (promoting and structuring multi-stakeholder collaboration) and principle 11 (sharing or pooling of court resources).

While recognizing that the voice of court end users is a crucial component for effective reform, this tip sheet draws primarily from lessons learned within the context of the COVID-19 pandemic. As many of these initiatives focused on collaboration between the courts and other professional or institutional actors, rather than end users, this tip sheet reflects that experience. However, many of the lessons and best practices featured are adaptable to partnerships with a broader number of stakeholders, including end users of the court system.

1. THE IMPERATIVE TO WORK TOGETHER

While many courts were already collaborating with government partners to deliver services and interacting with the legal profession through Bench and Bar committees, the disruptions to court operations caused by the COVID-19 pandemic highlighted the importance and usefulness of those partnerships, and gave rise to new ways of working together. Close cooperation between the judiciary and ministries responsible for justice was necessary to fast track the transition to virtual hearings and to establish protocols for safe in-person hearings. Protecting the public and court personnel’s health and safety required new relationships between courts and public health professionals. And input from the legal profession and other professionals who operate in the courts was crucial to identifying and implementing workable solutions as courts amended their procedures to address pandemic-related pressures.

2. JUDICIAL INDEPENDENCE IN AN INTERDEPENDENT JUSTICE SYSTEM

As noted by the Canadian Judicial Council in its Ethical Principles for Judges, an independent judiciary is indispensable to impartial justice under the law. As such, safeguarding this independence should guide any arrangement that involves the courts’ collaboration with other partners. However, many actors beyond the judiciary – including court administrators, government, legal professionals, and civil society – also play a key role in supporting access to justice. This interdependency exists at all times, but becomes even more imperative in the face of complex problems, such as addressing intersecting marginalization factors that may create additional barriers to access to justice, or major disruptions to normal operations, such as the COVID-19 pandemic. In that vein, the pandemic caused many courts across Canada to both rely more heavily on pre-existing relationships and to forge new ones with non-judicial actors. Overwhelmingly, courts and other actors in the justice sector have indicated that their experience during the pandemic proved that, with mutual respect, it is both possible and beneficial for the judiciary to work collaboratively with a wide range of other stakeholders while maintaining its essential authority over judicial and administrative decision-making in the courts.

3. KEY BENEFITS OF MULTI-STAKEHOLDER COLLABORATION IN COURT OPERATIONS

The experience of courts and other institutions that are implicated in the justice system has shown that there are many benefits to collaboration, including: providing better services to court users; sharing resources more effectively; and creating opportunities to find out whether planned modifications to court processes and procedures will work for all affected stakeholders.

3.1 Enhanced Quality of Services

The first benefit of collaboration is improved quality, including scope and accessibility to the public, of justice services and related supports. This can, in turn, lead to better and more sustainable justice outcomes. To begin with, many people’s legal problems are linked with other problems that require social service supports, and courts with strong partnerships can direct persons to the extrajudicial services that can address the root of their problems and minimize the need for, or scope of, litigation. Additionally, courts can play a critical role in ensuring equitable access to the formal justice system by connecting litigants with organizations that can offer them legal advice and assistance. By linking their services directly to the courts, both social and legal service providers have an additional way to reach the communities they serve, while end users can gain simpler and quicker access to those services.

  • Courts that have strong relationships with government or civil society organizations can direct individuals to services that may better meet their needs. For example, many family courts refer litigants to certified alternate dispute resolution services, managed by either governmental or non-governmental agencies.
  • Likewise, courts that work closely with legal service providers can support litigants who require legal information or advice. A number of examples in Canadian courts can be found in the Action Committee’s Tip Sheet on applying the Canadian Judicial Council’s Statement of Principles on Self-Represented Litigants and Accused Persons in the context of COVID-19.
  • Justice hubs that provide a single window to a variety of court, legal and social services, like the Manitoba Family Resolution Service, can provide litigants with easier and faster access to support services that may help to prevent, reduce or resolve their legal conflicts.
  • Specialized court programs that link litigants to needed health and social support services to address root causes of crime, such as the Nova Scotia Wellness Court Program or Quebec’s Programme d’accompagnement justice et santé mentale, can help to reduce recidivism and promote social reintegration.

For additional examples from the courts, see the Action Committee’s Repository of Promising Practices to minimize court backlog and delays, under Principle 5: promoting and structuring multi-stakeholder collaboration.

3.2 Improved Allocation of Resources

Another benefit of collaboration is the ability to share resources beyond geographical and jurisdictional boundaries. Throughout the pandemic, leaders from different levels of court in many jurisdictions strengthened their working relationships. This cooperation enabled appeal, superior, and provincial/territorial courts to learn from each other; synchronize their approach to modifying rules and procedures, where appropriate; and coordinate with the ministry responsible for Justice on introducing public health measures, remote working arrangements, and remote hearings in the courts.

Additionally, different levels of courts in the same jurisdiction, as well as different regions in the same level of court, found new ways to pool collective resources and to reallocate them on short notice to meet evolving or emerging needs as the pandemic continued to create new and unexpected challenges.

  • During temporary closures of regional court centres as a result of COVID-19, virtual processes adopted by the Court of King’s Bench of Alberta facilitated mobility between regions, allowing judges and court staff to serve broader regions, particularly in underserved communities and in localities experiencing surges or higher volumes of cases.
  • In Prince Edward Island, innovative and coordinated scheduling practices helped different levels of courts who share facilities or bandwidth to make efficient use of limited resources.
  • In the Superior Court of Quebec, retired and supernumerary judges from different regions were deployed as needed to oversee certain preliminary processes, such as judicial dispute resolution.
  • On a national level, judges from across Canada have reported that they were able to informally rely on their networks to find supports in another locality or jurisdiction including, for example, facilities that could host out-of-province witnesses who were joining a proceeding remotely.

For additional details and examples, see the Action Committee’s Repository of Promising Practices to minimize court backlog and delays, under Principle 11: sharing or pooling of court resources.

3.3 Improved Feedback on Court Processes

Finally, talking to stakeholders early and often is one of the best ways courts can ensure their processes are meeting user needs. When it was necessary to modify court operations quickly in light of the pandemic, many courts across Canada leveraged existing relationships with the legal profession, either through formal structures such as Bench and Bar committees, or through informal networks. These relationships allowed courts to verify whether proposed practice directions would be workable on the ground and encouraged ongoing feedback to identify issues and adjust processes as needed along the way.

  • The Ontario Court of Appeal established two ad hoc committees with the criminal and civil bar to gather input and perspectives on pandemic related court procedures, including new protocols and practice directions.
  • Best Practices were developed by the Ontario E-Hearings Task Force, which was established to assist the bench and bar in implementing remote hearings. The Task Force comprised the Ontario Bar Association, The Advocates’ Society, the Federation of Ontario Law Associations and the Ontario Trial Lawyers’ Association, in co-operation with the Ontario Superior Court of Justice. Members of the E-Hearings Task Force include individuals with significant technical knowledge related to e-hearings and lawyers from all judicial regions and a wide variety of practice areas, including civil, criminal, family and public sector advocates.
  • The Federal Courts used their pre-existing Bench and Bar Liaison Committees as a forum for dialogue about practice and procedural issues that arose within the context of the pandemic, giving Committee members the opportunity to comment on draft directives.

In addition to fostering mutual communication with the Bar, courts can enhance their ability to serve the population by diversifying the range of stakeholders with whom they interact. Multi-stakeholder access to justice and modernization committees that had been established before the pandemic were able to pivot to address the unique challenges arising from restrictions to court operations in the COVID context. Where these networks existed, courts did not have to develop a new forum to seek the input of police, prosecutors, the private bar, civil society, and other key partners, when charting a way forward in response to the pandemic. Other courts established new advisory committees or working groups to address pandemic-related operations.

  • Prior to the pandemic, Newfoundland and Labrador established an Access to Justice Steering Committee. Its membership includes representatives of all levels of court, police, prosecutors, the private Bar and non-profit organizations. A subcommittee that was created to promote legal assistance clinics for self-represented litigants was able to examine this issue in the context of the pandemic.
  • Throughout the pandemic, the Ontario Court of Justice’s pre-existing Criminal Modernization Committee helped foster collaboration between stakeholders to identify critical issues and make timely decisions. The Committee brings together representatives of the judiciary, Crown and defence counsel, court services, police and corrections and, more recently, the Ministry of the Attorney General’s Recovery Secretariat. This model was replicated at a regional level and Bench and Bar meetings were held to ensure local responses were tailored to local needs.

Responding to the pandemic was also an opportunity to strengthen relationships in ways that will outlast the pandemic, and judicial leaders across the country reported that working together to address COVID-19 strengthened their relationships with government partners. For example, close collaboration between courts and ministries responsible for Justice and Public Safety was essential to ensuring smooth court operations and integration of court services with other related services, ranging from policing and corrections to government-managed alternate dispute resolution programs.

4. KEY ELEMENTS OF SUCCESSFUL MULTI-STAKEHOLDER COLLABORATION

Looking forward, relationships that were either developed or expanded in this time of acute crisis can improve the courts’ ability to deliver timely and accessible justice in the longer term, provided these relationships continue to be nurtured effectively. As an example of a successful model of multi-stakeholder collaboration in the courts, see the Annex: Collaboration at Work – the Ontario Courts Accessibility Committee.

4.1 Building and Strengthening Relationships

Successful collaboration involves bringing the relevant stakeholders to the table to work towards a common objective. During the pandemic, the judiciary, court staff, ministries responsible for Justice, legal and justice sector professionals, civil society, public health and occupational health and safety authorities came together to promote continued access to court and justice services while protecting the health and safety of court users and staff.

When thinking about expanding their network of partners moving forward, particularly as they examine issues of digitization and modernization, courts and other justice sector stakeholders may wish to consider:

  • What is the objective of the collaboration?

It is essential to have a strong vision of what the stakeholders hope to achieve through their partnership. Taking the time to articulate the overarching objective of the collaboration helps to ensure that the right people are at the table, and to focus their efforts as they work together. Early articulation of the objectives of a collaboration can also support the integration of key principles – such as placing the court user at the centre of all reform efforts and enhancing access to justice – into the projects that the stakeholders will be working on together. Articulated objectives will also assist in developing a framework to measure when those goals have been reached.

  • What voices are missing from the table?

Courts often think first of other professionals in the justice sector, such as the legal profession, the police, and the ministry responsible for Justice, when they are developing relationships to support operational decisions. However, it can be more difficult to ensure that the voices of end users, and particularly those who are marginalized or over-represented in the court system, are heard when decisions are being made. Courts may wish to think about who is affected by their decisions and seek ways to ensure these perspectives are heard at all key stages as they seek to modernize and improve their processes to meet user needs. Depending on the situation, this may be achieved by reaching out directly to individuals with lived experience, or through legal and community organizations that serve these populations.

In particular, integrating the perspectives of Indigenous and racialized communities may require culturally sensitive approaches to outreach and partnership. Examples include:

  • How can partners work creatively to achieve a common vision?

By defining a common vision, taking stock of the resources available to them, and coordinating access to those resources, courts can work with partners to achieve their goals. For example, co-locating key legal and social services in the courthouse or a designated hub could facilitate timely access to these services for those who need them.

4.2 Structuring Partnerships

Successful collaboration also relies upon structured partnerships, though the optimal level of formality will depend on a number of different factors. Informal relationships can be effective for ensuring a regular flow of information between justice sector actors, and were a great benefit to the courts that had already had them in place when the unexpected crisis of the pandemic arose. Informal connections proved effective to facilitate collaboration between different regions and levels of court who had well-established communication networks, and between the courts and bar in smaller jurisdictions or localities. However, informal relationships are often dependent on individual connections, and may be more difficult to maintain effectively in larger centres, multi-partner environments, or areas with high turnover rates. As such, a more formal structure in which roles and responsibilities are clearly established can assist in the smooth maintenance of longer-term and more complex partnerships.

4.2.1 Key Considerations

When deciding how to structure their partnerships, courts and justice sector stakeholders may wish to consider:

  • What degree of change is contemplated?

A relationship that is primarily intended to increase information sharing, without any further objective, may not require detailed terms of reference to outline the respective responsibilities of the parties. If a collaboration is intended to develop a new process that will involve or affect the operations of multiple partners, though, a more formal structure may be necessary. For example, the Provincial Court of British Columbia’s recent Northern and Interior Bail Pilot Project has implications for the daily operations of the courts, prosecution, police, corrections, legal aid, and others. As such, a project structure was established so all stakeholders could work together to ensure that the necessary pre-conditions were in place for the change.

Further tips for engaging with partners on high-change initiatives can be found in the Action Committee’s Orienting Principles on leading and managing change.

  • How complex is the initiative?

In general, initiatives that are more complex require a greater need for structured collaboration. If the goal of a collaboration is to undertake a complex initiative, it will likely be beneficial to have a project plan that addresses matters such as the objective of the initiative, proposed timelines, required resources, how success will be measured, and the roles of each partner and decision-making authority.

Even in a simple information-sharing relationship, structured communication mechanisms may be useful to facilitate the timely or ongoing flow of information. This could happen, for example, through recurring meetings or newsletters, while more informal communications such as email, phone or chat may be sufficient to connect in simpler situations.

Elements that will increase the complexity of the partnership and suggest that a more formal structure may be necessary include:

  • The number of decision-making authorities implicated
  • The need for significant or continuous funding or human resource investment
  • The number and types of partners involved, and any competing or evolving priorities that may foreseeably affect their ability to participate
  • The substantive scope and duration of the project
  • The geographical scope of the partnership
  • The possible effects on access to justice or fundamental rights

As the Action Committee found in its report on the Impacts of the Pandemic on Specialized Courts, a lack of a formal structure was a key challenge for many courts and their program partners as they attempted to navigate the disruptions caused by the pandemic. Specialized court programs that did have more formal partnership structures in place, such as the Wellness Court Steering Committee for programs operated in the Provincial Court of Nova Scotia, were better able to address the effects of the pandemic on continued program operations.

  • What is the nature of the partners’ relationship?

Where parties have a history of working together, they may be comfortable doing so on a more informal basis. Even for relatively simple matters, though, a court may wish to begin a relationship with new partners by explicitly discussing respective roles and expectations, and developing a written agreement, report or statement capturing what was discussed.

In addition, it may be wise to formalize relationships that start informally with a written agreement so that momentum and corporate knowledge of processes can be maintained when individual leaders or representatives move on. Relationships between institutions, such as different levels of court or the courts and government departments, may begin based on personal connections between two individuals, but putting a structure in place will help ensure they are sustainable when those individuals no longer occupy their respective roles.

4.2.2 Operational Tools and Approaches

Operational tools such as terms of reference, protocols, frameworks or memoranda of understanding can go a long way to clarifying the scope of a collaborative relationship. Common elements of these agreements include:

  • The objectives of the partnership
  • Who will be involved in the partnership, and what role they will play
  • How information gained in the course of the partnership can be used
  • The time and resource commitment expected of each partner
  • How progress towards the partners’ common goal will be measured
  • How the objective of the partnership will be funded
  • The decision-making authority of each partner, and how disagreements will be resolved, if applicable

A number of courts in Canada have entered into Memoranda of Understanding with the ministry responsible for Justice. These agreements outline the organizations’ respective roles and responsibilities; how the judiciary and ministry will communicate; and matters such as the responsibility for IT and other support services. See, for example:

In addition, the Canadian Judicial Council, which is comprised of all federally-appointed Chief Justices and Associate Chief Justices across Canada, has entered into Memoranda of Understanding with the federal Minister of Justice touching upon the Governance of the Canadian Judicial Council and Continuing Education for Superior Court Judges.

Further, targeted court projects or programs whose implementation depends upon multiple partners often rely upon written frameworks. See, for example:

In addition to documenting the intentions of a partnership, some multi-stakeholder partnerships document their ongoing processes and activities for the benefit of partner members and other stakeholders. For example, the Federal Court’s Bench and Bar Liaison Committee produces meeting minutes as well as written submissions and resolutions that are accessible to Committee members. This kind of documentation provides a record of the partnership’s accomplishments and supports a common understanding of decisions and next steps.

Finally, the more complex a partnership project is, the more necessary it may be to establish various committees or working groups so that it can operate effectively. Examples can be found in the Action Committee’s Implementation Roadmap for Virtual Bail. This publication lists various bodies that could support a virtual bail project, including: a steering committee to oversee implementation; a project management team to manage the day-to-day leadership of the project; a working committee consisting of subject matter experts from each impact business area; and appropriate technical sub-committees to address matters such as technology installations, facilities impacts, and project evaluation.

ANNEX

Collaboration at Work: the Ontario Courts Accessibility Committee

1. Issue and Context

In 2007, in response to the recommendations of a special Committee on Accessibility to the Justice System for Persons with Disabilities (Weiler Report, 2006), the Ontario Courts Accessibility Committee (OCAC) was established as a permanent body with a mandate to oversee progress towards an accessible court system for persons with disabilities.

After fifteen years of operation, OCAC is well established in the ecosystem of court operations in Ontario, and its structured and inclusive model of multi-stakeholder collaboration has been invaluable in encouraging earlier and more fulsome consideration of accessibility factors in the design phase of justice sector projects in Ontario.

A primary benefit of OCAC has been its ability to act as a focal point for gathering accessibility-related feedback on planned court reforms in Ontario. For example, during the COVID-19 pandemic, the then Recovery Secretariat of the Ministry of the Attorney General – the unit responsible for supporting continued court operations – was able to consult with OCAC about the effects of planned health and safety measures on court users with disabilities.

2. OCAC – WHO THEY ARE AND WHAT THEY DO

2.1 Mandate and Scope of Work

The mandate of OCAC is to provide strategic advice and oversight to the court system in support of accessible courts in Ontario, including implementation of the Weiler Report’s recommendations. To achieve this mandate, OCAC provides a forum for consultation with accessibility experts and court system users, including persons with disabilities and disability service providers and advocacy organizations.

While OCAC does not have any decision-making power, its broad membership and longevity have allowed it to provide persuasive recommendations to those who do. In addition, the inclusion of an explicit oversight function in OCAC’s mandate allows the committee to play a more robust role in shaping court operations than it would likely have if its mandate was only advisory.

2.2 Membership

OCAC’s Terms of Reference (ToR) establish a standing membership comprised of representatives from:

  • The judiciary of all three levels of court in Ontario (including justices of the peace from the Ontario Court of Justice)
  • The Law Society of Ontario, the Ontario Bar Association and the Ontario Law Deans
  • Senior management of the Government of Ontario
  • Civil society and advocacy organizations – including community based legal clinics – that have experience in dealing with accessibility issues for persons with communication, developmental, hearing or mental health disabilities

The ToR also grants OCAC the discretion to include other organizations.

Community organizations that are currently represented on the committee include:

Finally, a key element in its ability to influence decision-makers is OCAC’s inclusion of champions at the senior levels from both the judiciary and the executive levels of the provincial government. This high-level support is integrated directly into the Committee’s ToR, which stipulates that it be co-chaired by a judge of the Ontario Court of Appeal and the Assistant Deputy Attorney General for the Court Services Division of the Ministry of the Attorney General.

2.3 Operations

OCAC is governed by ToR that address its mandate, scope of work, membership, and meetings.

The Committee meets on a quarterly basis. While the ToR generally call for in-person meetings, they also provide the co-chairs with the flexibility to either supplement or replace in-person meetings with options for participation by teleconference or videoconference. The onset of the pandemic resulted in a shift from in person to virtual meetings, which has continued to date. . To ensure that members have a record of their discussions, minutes from each meeting are prepared by the secretariat and distributed for review in advance of each meeting, at which point they are formally approved.

When OCAC wishes to examine a topic or initiative in more detail, an ad hoc sub-committee is established. Sub-committees have been integral to the work of OCAC. Areas of work include committee-led projects, such as developing plain language guidance for courts. Others support larger initiatives further to OCAC’s advisory and oversight role, such as sitting on the accessibility coordination committee for a major courthouse building project in Toronto.

The Workforce and Strategic Planning Unit under the Corporate Support Branch of the Court Services Division at the Ministry of the Attorney General provides secretariat support, including organizing meetings, following up on issues raised, coordinating sub-committees, and ensuring that members have the materials they require in an accessible format.

3. Lessons Learned

Over its years of operation, OCAC has learned that it can provide the most value to Ontario courts when it is consulted early in the design process of major initiatives. To that end, members find that interactions with those who are designing or leading projects in the courts work best when there is plenty of time for dialogue. It is through this open exchange that committee members can develop and communicate meaningful recommendations for improving proposals that they have been asked to consider.

In 2020, OCAC expanded its membership to include more community organizations and updated the ToR to allow this. Previously, the membership primarily focused on representation from the legal community and only a few community organizations. The community organizations that were at the table had lawyers on staff to participate on the committee. The membership was expanded in an attempt to include different types of disability organizations to gain insight into a broader range of more accessibility considerations.

OCAC struck a subcommittee to look at its membership and determine how to increase representation in its members. This expanded the membership with 7 new members from different backgrounds in accessibility and law. This has enabled OCAC to ensure that when looking at issues, various accessibility lenses are incorporated.

The key lesson learned was that having a broad scope of accessibility experts helps to identify barriers and solutions to accessibility in the justice system.

Having the co-chairs of the committee be a justice from the Court Of Appeal for Ontario and the Assistant Deputy Attorney General for the Court Services Division of the ministry have been key in getting accessibility barriers addressed. They keep the committee on track and have the influence to move the committee’s agenda forward.

Committee members are committed to improving accessibility. While each member recognizes its importance, keeping members engaged and providing valuable meeting content can be a challenge as it is typically left up to the ministry to develop meeting agendas. Expanding the membership has also brought new ideas, voices and interests to the committee. Moving forward

4. Moving Forward

As it has done for fifteen years, OCAC will continue to engage with the government and courts to improve access to courts for persons with disabilities. To improve OCAC’s effectiveness in fulfilling its mandate, members hope to increase their ability to integrate the direct perspectives of court end-users into their work, and to find ways to make those within the justice system more aware of the role they play and the work they do.

5. Point of Contact

For more information on OCAC, Contact the Ontario Ministry of the Attorney General:

Phone numbers

  • Toll-free: 1-800-518-7901
  • Toronto Tel: 416-326-2220

For people with hearing disabilities:

  • Toll-free TTY: 1-877-425-0575
  • Toronto TTY: 416-326-4012

Email

Fax

  • Fax: 416-326-4007 (General Inquiries)
  • Fax: 416-326-4015 (Notice of Constitutional Question only)

Address

Ministry of the Attorney General

McMurtry-Scott Building
720 Bay Street, 11th floor
Toronto, Ontario
M7A 2S9