Annual Report 2010
ISSN 1925-7511 = Annual Report (Ontario. Court of Appeal. Online)
Table of Contents
The administration of the courts in Ontario is based on a framework of co-operation that exists between officials within the Ministry of the Attorney General and the administrative leaders within the judiciary. It is a relationship that is based on trust, openness, respect and ongoing dialogue. At its core, there is a shared recognition that together we must be vigilant about administering the court system to further the fundamental principles of judicial independence, public confidence, transparency, and the delivery of fair, modern and timely judicial services.
As our collaborative model of courts administration has matured, the role of the judiciary in shaping decisions concerning the delivery of justice services in Ontario has also evolved. From the perspective of the Ontario judiciary, we have readily become more and more involved in material government policy initiatives relating to the operation of the courts. The role of the judiciary has moved far beyond merely the assignment of cases, courtrooms and judges. The judiciary now provides an important voice in shaping reforms that affect the courts of our province. This proactive role affords the judiciary the opportunity to take advantage of its unique position within the court system to further the best interests of the public we serve.
Over the past year, the Court has sought to advance the availability of statistical information about its work. In this Report, we have attempted to explain the significance of the statistical information available, as well as highlight some of the apparent trends. The Court is working toward compiling a ten-year statistical analysis.
The Court is very pleased to take this opportunity to highlight its activities over the past year. We hope that this Annual Report provides others a better understanding of the activities of the judges, lawyers, law clerks and administrative staff of the Court who carry out their responsibilities with a high degree of professionalism, expertise and commitment.
Court Photo Caption below: Court Photo taken December, 2010. Missing from the photo are Doherty and Watt JJ.A.
With a complement of 22 full-time judges and two supernumerary judges, the volume of cases heard by the Court of Appeal over the last year has remained steady. While the Court remains the busiest appellate court in Canada, litigants continue to obtain timely hearing dates. The high-quality judgments of the Court also continue to be delivered within the targeted six-month period, except in extraordinary circumstances.
In addition to their court workload, members of this Court continue to show great leadership and involvement on various committees, such as the federal Judicial Advisory Committee, the Canadian Judicial Council, the National Judicial Institute, the provincial Accessibility Committee, the Chief Justice’s Advisory Committee on Professionalism, the Chief Justices’ Information Technology Committee, the Court’s Education Committee, the Civil and Family Rules Committees, and the Law Clerk Committee.
New Judicial Appointment
On March 26, 2010, our Court welcomed a notable jurist to our complement – The Honourable Justice Andromache Karakatsanis. In addition to bringing a wealth of legal experience and community involvement to this Court, Justice Karakatsanis has had a distinguished history of public service.
After graduating from Osgoode Hall Law School, Justice Karakatsanis clerked at the Court of Appeal. She was called to the Bar in 1982 and practiced criminal and family law until she left the private sector to become Vice Chair and then Chair/CEO of the Liquor License Board of Ontario. In 1995 Justice Karakatsanis moved on to lead the Ontario Native Affairs Secretariat until she was appointed as Deputy Attorney General of Ontario in 1997. During her tenure in that position, she was involved in implementing domestic violence courts as well as enhancing victim assistance programmes and youth justice committees. In the family law arena, she had responsibility for the increase in the number of unified family courts and the introduction of supervised access centres and Family Law Information Centres. In the area of civil justice reform, she oversaw the expansion of case management and mandatory mediation. In June 2000, she was called upon to serve as the Secretary of Cabinet and the Clerk of the Executive Council – the most senior civil service position in Ontario. Justice Karakatsanis held that position until her 2002 appointment to the Superior Court of Justice, where she sat in the Toronto Region until her appointment to this Court.
We are very pleased to have Justice Karakatsanis join the Court of Appeal family and look forward to her future contributions to the Court. She fills a vacancy created by The Honourable Justice Susan Lang, who elected supernumerary status.
The law clerks at the Court are recent law school graduates who are working toward fulfilling their articling requirements or who have just been called to the Bar. The Law Clerk Committee, consisting of JusticesLaskin, Feldman, Gillese and Blair, oversees the Law Clerk Programme at the Court, while the staff research lawyers provide day-to-day supervision of the law clerks.
The law clerks work on a wide variety of cases, including constitutional, criminal, civil, family and administrative law matters. They prepare pre-hearing memos, conduct legal research, edit judgments and do other special projects assigned by the judges. Law clerks are encouraged to attend court proceedings at both the Court of Appeal and the nearby trial courts, and have the opportunity to travel once during the year to Kingston, Ontario, to observe appeals by unrepresented inmates. Law clerks also participate in a variety of pro bono projects involving organizations such as the Ontario Justice Education Network and the Lawyers Feed the Hungry Programme.
The clerkship year begins in either August or September, and continues for a period of 10 to 12 months. Each law clerk is assigned to either one or two judges of the Court. This pairing changes halfway through the year to provide the law clerk with broader exposure to the activities and judges of the Court.
Law Clerks 2009-2010:
Danny Auron, Osgoode; Diana Backhouse, Victoria; AileenCheon, Victoria; Gail Elman, Toronto; Brendan Green, Ottawa; Zvi Halpern-Shavim, Toronto; Mabel Lai, Toronto; Kate Leslie, Western; Christine Muir, Dalhousie; Kiran Patel, Toronto; Michael Perlin, Queen’s; Vincent-Joël Proulx, McGill; Justin Safayeni, Toronto; Elsa Sardinha, Windsor; Joydeep Sengupta, McGill; Daniel Sheppard, Osgoode; and BenjaminThibault, Harvard.
Law Clerks 2010-2011:
Jamie Au, Windsor; Andrea Bolieiro, Queen’s; Ren Bucholz, Osgoode; Dan Daniele, Western; Anna Gersh, Osgoode; James Harnum, Osgoode; Soloman Lam, Osgoode; Nadia Lambek, Yale; Matthew Law, Toronto; Andrew Martin, Toronto; Kyle McCleery, UBC; Benjamin Piper, Ottawa; Natalia Rodriguez, Queen’s; Ashley Rouse, Ottawa; Claire O’Sullivan, Columbia; Laura Wagner, Toronto; and Rowan Weaver, Victoria.
Photo Group: no caption
In May 2010, the Court hosted a reunion of all past law clerks dating back to the 1950s. Over 200 former clerks visited with current and past judges in chambers during the reunion’s "open house," which was followed by a cocktail reception at the Law Society of Upper Canada. The reunion was a wonderful opportunity for the Court of Appeal family, past and present, to reminisce and reconnect.
Photo 1 – Group no caption
In 2010, the first ever joint meeting between the Court of Appeal for Ontario and the Québec Court of Appeal was held in Ottawa in mid-October. This was a historic event in the life of both courts. The discussions highlighted the best practices used in both jurisdictions to meet the demands of their respective courts and discussed future challenges to be faced by both courts. This meeting was an important and informative dialogue between the courts.
Photo 2 – caption: Chief Justice Warren K. Winkler (COA) Chief Justice Michel J.J. Robert (QCA)
Photo 3 – title: Joint Judicial Meeting Organizers caption below: Rouleau J.A. (COA) Bich J.A. (QCA) Goudge J.A. (COA) Morissette J.A.(QCA)
As part of our ongoing outreach programme, the Court of Appeal for Ontario held a roundtable discussion followed by a reception and dinner for over one hundred members of the Toronto family law Bar. The roundtable discussion was an occasion for Court of Appeal judges and family law lawyers to discuss matters of common interest. The event proved to be both informative and dynamic. The Court looks forward to ongoing conversations with the family law Bar and other segments of the legal community at future outreach programmes.
The Education Committee of the Court also held a highly engaging session on investigative reporting as it relates to the courts in the face of changing economic, demographic and societal realities.
Many of our colleagues continue to lead legal education sessions with lawyers, judges and media representatives from Uganda, the Netherlands, Kenya, Ethiopia, Scotland, Botswana, Australia, England, Nigeria, Tanzania, China and the Ukraine. These international exchanges have given our judiciary the opportunity to share their expertise with others who seek to promote a fair and independent legal system within their jurisdiction.
1. Duty Counsel and Amicus Curiae
Duty counsel and amicus curiae services continue to be available to unrepresented litigants in inmate and mental health appeals and have improved the quality of legal assistance for those who would not otherwise have such support. These services also remain of invaluable assistance to the Court.
The Court more recently commenced an amicus curiae programme for unrepresented litigants in civil motions. Volunteer lawyers organized through Pro Bono Law Ontario are scheduled Wednesday mornings to help litigants better understand the Court’s processes and to make submissions on their behalf. This innovation has enhanced access to justice for litigants and has quickly become a valuable resource for the Court.
2. Case Management and Judicial Mediation
More and more litigants seek to have their appeals case managed by a judge of the Court or to obtain the assistance of judicial mediation. The Court has accommodated these requests where appropriate in complex criminal, civil, commercial and family matters. It is anticipated that this is an area in which the Court’s services to the public will be expanded in the future.
3. Crown Wardship Appeals
The Court of Appeal, in co-operation with the Superior Court of Justice and the Ontario Court of Justice, is continuing its efforts to expedite no-access Crown wardship appeals. This past year, our Court has improved its electronic tracking of these appeals and now assigns one judge with expertise in child protection matters to facilitate timely resolution of these matters.
4. Criminal Rule Reform
The Court is undertaking a review of its criminal appeal rules to bring them in line with new technologies. The rules will also incorporate new practices arising out of the Inmate Appeals Programme and address outstanding “housekeeping” issues.
5. Court Accessibility
The Ontario courts are committed to a court system that is fully accessible to persons with disabilities. In addition to infrastructural improvements that have been carried out at Osgoode Hall to enhance physical access to the courthouse, the Court has also designated an Accessibility Coordinator. The Coordinator, who can be reached by phone or by e-mail, proactively responds to requests made by persons with disabilities to accommodate specific needs relating to counter service or court proceedings.
6. Administrative Improvements
An automated phone tree has recently been implemented to assist the public with frequently asked questions regarding the administrative processes of the Court. The effectiveness of the phone tree is reviewed on an ongoing basis to ensure that the information provided is easily accessible and up-to-date.
As one of the Court's "Go Green" initiatives, we are now providing all counsel in criminal matters with electronic copies of final orders. As a result of the positive feedback received, the Court is in the process of extending this project to include electronic copies of orders for judicial interim release.
Members of the Court, along with judges from the Ontario Court of Justice and the Superior Court of Justice, lead an independent information technology organization, the Judicial Information Technology Office (JITO), that is responsible for ensuring the security and confidentiality of all judicial information in Ontario. Each year, enhancements are implemented to safeguard the integrity of judicial information and to enhance the ability of the judiciary and court staff to retrieve court information. The JITO also provides technical project management, maintains critical business applications and produces customized statistical reports for the Court. This year, the JITO specifically supported the Court through its continuing work to modernize our case tracking and statistical reporting system and to update the Court’s public-facing website.
There has been steady progress made at the Court to modernize its court procedures. Facta are filed electronically in civil matters and the court increasingly receives electronic versions of facta in criminal matters as well. Judgments are now released electronically to the parties and are made available on our website or within minutes of release through our on-line subscription service. The technology for digitally recording all court hearings is now in place in all of our courtrooms, which will allow the Court to proceed with its plans to make recordings available to the public in most proceedings. Video conferencing is also now available for both motions and appeals.
The Court of Appeal Media Committee is engaged in an ongoing dialogue with media representatives about ways to improve access to court information. Recognizing the important role that the media plays as the "eyes and ears of the public" within an open and transparent system, the Court has embarked on a phased strategy to better support the day-to-day realities of those reporting on the activities of the Court.
The Court has improved the dissemination of important information about its cases through upgrades to its website and electronic notification processes. In addition to posting a 60-day list of upcoming appeals, e-mailing the media about upcoming matters of interest, and notifying the media of publication bans or sealing order requests, the Court is now able to, with the consent of a judge, provide members of the media with CD copies of proceedings.
In response to a recommendation of the Court of Appeal Media Committee, an express counter is now available to better serve the media in meeting its short deadlines. In addition, a staff contact is listed on our website and has been designated to respond expeditiously to media enquiries through e-mail or phone-in requests.
The Media Committee will continue to review opportunities to improve timely access to court information for media officials who are reporting on proceedings before the Court.
Each year, a number of events are held in Toronto to mark the Opening of Courts. The day has become one of reflection on the challenges and achievements of the preceding year and one of celebration and recognition for the judiciary, the Bar, law students, court administrators, the media and the public. Celebrations this year were held on September 14, 2010.
Special Divine Interfaith Service
The day commenced with the Special Divine Interfaith Service, which has been held annually since the Service’s inception in 1955. Members of the judiciary, lawyers, paralegals and the public are invited to attend this commemorative event, which was hosted again this year at the Church of the Holy Trinity in Toronto and organized by the Reverend John Joseph Mastandrea.
The multi-faith service is sponsored by an anonymous donor in memory of The Late Honourable Newton Wesley Rowell, former Chief Justice of Ontario (1936-1938) and former Treasurer of The Law Society of Upper Canada (1935-1936). It has representation from a wide spectrum of religious organizations and has historically taken place in a variety of religious venues.
This year’s service was a particularly joyous event. Multi-faith readings and prayers were presented by various leaders from the local legal and religious community. His Honour, the Lieutenant Governor of Ontario, The Honourable David C. Onley, O. Ont., also provided a poignant address to the attendees on discrimination as it pertains to persons with disabilities. The service was ebullient with music by The Regent Park School of Music, once again joining the event and providing another outstanding performance. Under the musical leadership of The Honourable Madam Justice Julie Thorburn, the Bar Voices (made up of members of the legal community) serenaded the audience with their musical talents. The event featured the accompaniment of a professional organist and a tremendous string ensemble, which included one of the Court’s research lawyers, Helena Likwornik.
Special Sitting of the Courts of Ontario
Members of the Bar, other justice system officials, the media and the public were all invited to attend the annual Special Sitting of the Courts for the Opening of Courts ceremony. Inevitably a highlight of the day, the three Chief Justices delivered reports on the work of their courts. Additionally, the following people addressed the court with remarks about the activities of their respective institutions: His Honour, The Lieutenant Governor of Ontario, the Honourable David C. Onley,O.Ont.; the Minister of Justice and Attorney General of Canada, the Honourable Robert Nicholson; the Attorney General of Ontario, the Honourable Chris Bentley; and the Treasurer of the Law Society of Upper Canada, Laurie Pawlitza. Special guests included Chief Justice PierreBlais of the Federal Court of Appeal, Chief Justice AllanLutfy of the Federal Court of Canada, Chief Justice Michel Robert of the Québec Court of Appeal, Chief Justice François Rolland of the Superior Court of Québec, and Commissioner Chris Lewis of the Ontario Provincial Police. Their presence and that of the many distinguished members of the Bar representing a range of legal organizations added festivity to the day.
The speeches of the three Chief Justices are available on the Courts Website at www.ontariocourts.ca.
The Catzman Award for Professionalism and Civility
In 2009, an award was established in memoriam by the family of our late colleague The Honourable Marvin A. Catzman, together with the Advocates' Society and the Chief Justice of Ontario's Advisory Committee on Professionalism. This award recognizes an individual who has demonstrated a high degree of professionalism and civility in the practice of law. It is presented annually at the conclusion of the Special Sitting of the Courts.
This year's award recipient was Mr. Jeffrey Leon. Well-known as a seasoned litigator, a respected author, a legal educator, and an active member of numerous legal organizations, Mr. Leon is also known for his integrity, good humour, sound judgement, and dedication to the highest ideals of the profession. It was with honour that Mr. Leon’s unfailing commitment to professionalism and civility were recognized with this award.
Law Society Reception at Convocation Hall
The day concluded with a celebratory reception hosted by the Law Society of Upper Canada. Open to all who attended the Special Sitting of the Courts, this culminating event of the day brought together a range of members of the legal community to celebrate the successes of the past year and to reaffirm our commitment to meeting the challenges and opportunities of the year ahead.
The Ontario Justice Education Network's directive is to make our legal system more open and accessible to the public through educational programmes and initiatives. The annual Chief Justices’ Award honours individuals who have made exceptional contributions in promoting public understanding and dialogue in justice education.
In 2010, Grace Russell, a staff member at the Old City Hall Courthouse and a member of the Toronto OJEN Committee, became the sixth recipient of the Chief Justices’ Award.
In a presentation made at Osgoode Hall by the three Chief Justices in Ontario, Grace was recognized for her dynamic role in coordinating access to the Toronto courts for schools throughout the Greater Toronto Area. Each year, thousands of students have the chance to observe bail hearings or trials, to visit one of the courtrooms that work exclusively with persons with mental health issues or drug addictions, or to participate in mock trials. With the assistance of court colleagues from across the city, Grace has been instrumental in arranging tours of the courts and providing students with an opportunity to discuss the legal system with judges, lawyers and court officials.
Photo Group: caption: Left to right: Grace Russell, Chief Justice Warren K. Winkler and his granddaughter
The Chief Justice of Ontario’s Advisory Committee on Professionalism, with broad membership from the judiciary, the Bar, the Law Society and legal academics, has continued its work on a number of initiatives to support the teaching of professionalism in law schools and throughout the profession. Through its three sub-committees, its mandate is to facilitate lifelong learning of professionalism, to generate original materials about professionalism, and to develop communication material to advance these objectives.
In furtherance of its mandate, the Committee has recently created an annual award for the best student paper on any subject relating to legal ethics and professionalism. This award, sponsored by the law firm of RueterScargall Bennett LLP, has been established to encourage law students to think and write about legal ethics and professionalism. The award will be presented for the first time to three Ontario law students following the end of the 2010-2011 academic year. The prize for the best paper will be $3,000. The prize for the second and third papers will be $1,000. The first-prize winning paper will be published, and all winners will be invited to a dinner with the Chief Justice of Ontario and the Treasurer of the Law Society of Upper Canada.
Judges are often called upon by both the federal and provincial governments to serve as commissioners on public inquiries. When such requests arise, it is important that the terms of reference for the inquiry be framed in a manner that serves the public interest, maintains public respect and confidence in the judiciary, and protects the independence of the judiciary.
In response to requests for judicial guidelines on how best to structure the terms of such an appointment, the Canadian Judicial Council has developed a national judicial protocol on the Appointment of Judges to Commissions of Inquiry. The new protocol has been adopted by all three courts in this province and will be the basis for working with both the federal and provincial governments as new requests arise to appoint sitting judges from Ontario as commissioners of inquiry.
At any given point in time, there are always a number of initiatives underway at the Court of Appeal that are geared to promoting a fair, open, accountable and modern court system. By way of example, the Court of Appeal will soon sign its first Memorandum of Understanding with the Attorney General of Ontario. This document will set out the roles and responsibilities of both the Court and the government in relation to the operation and administration of the Court of Appeal. The year ahead also promises further enhancements to our electronic interface for both litigants and the public. To ensure that our litigation support programmes are meeting the needs of users, the Court plans to review its programmes and adjust its processes where appropriate. Moreover, judicial outreach to the legal communities that we serve will continue to be a priority for the Court, with plans already underway to visit another community next year.
Nature of Cases Received in the Court of Appeal
For statistical purposes, Court of Appeal cases are categorized into one of four types of appeals based on the area of law: civil, family, criminal and inmate. Inmate appeals are criminal matters in which sentenced inmates file an appeal without representation of legal counsel. In 2010, the proportion of appeals filed in these four categories was 38% civil, 7% family, 32% criminal, and 23% inmate.
Although the proportions in these categories have fluctuated from year to year, they have remained relatively consistent for the last several years.
Appeals for Which Leave is Required
Although most appeals at the Court are filed and heard as of right, others require leave of the Court to be heard. This is the case in all provincial offences cases, in some civil cases, and more rarely in some family cases. When leave is required in criminal matters, it is argued as part of the appeal hearing and is, therefore, not accounted for in the Court’s motion for leave statistics. In cases requiring leave prior to the hearing of the appeal, the party seeking leave must bring a motion, and the adjacent chart summarizes the number of such motions brought each year and how many are allowed, dismissed, or abandoned.
Motions in the Court of Appeal
Single Judge and Panel Motions
A variety of motions are heard at the Court of Appeal prior to hearings on the merits of appeals. Depending on the governing statute or court rule, some of these motions are heard by a single judge while others must be heard by a panel. In both single judge motions and panel motions, the workload has remained relatively constant over the last several years.
Bail Applications and Reviews
The Court must hear a number of bail applications and reviews in criminal and inmate matters. The number of such applications and reviews has declined slightly in recent years but remains a steady part of the workload for single judges hearing the motions list.
Motions for Third Party Interventions
The Court hears a relatively small number of motions brought by third parties, usually representing special groups who wish to make submissions in particular cases. These interventions, when granted, can add significant time to the length of appeals.
Appeals filed as of right or as a result of leave being granted are received and collected for statistical purposes in each year. Appeals finally disposed of in each year are also compiled for statistical purposes, but many were received in the previous year. As well, there are a number of appeals that are perfected but are still pending at the end of each year, awaiting hearings on the merits. The following chart depicts the number of appeals received in each year, and disposed of in each year, as well as the number of appeals perfected but still awaiting a hearing at the end of each year.
The following are similar case flow charts, depicting the number of appeals received and disposed of in each year, and the appeals awaiting hearing in each category of cases.
The number of civil appeals disposed of has exceeded the number of appeals received for several years. Accordingly, there has been a steady decline in the number of civil appeals awaiting a hearing at the end of each year. The number of criminal appeals awaiting hearing at the end of each year has been increasing somewhat, whereas family appeals awaiting hearing at the end of each year remains relatively constant.
Two timeframes are measured in the progress of appeals at the Court. The first timeframe is from the time a Notice of Appeal is filed (either as of right or after a motion for leave to appeal has been granted) to the time the appeal is perfected and ready to be set down for a hearing. The second timeframe is from the time the appeal is perfected and ready to be set down for a hearing to the time it is heard by the court on the merits. These timeframes are called “the time to perfection” and “the time from perfection to hearing”. Aggregate averages are determined for all appeals, and appeals in each type of case, based on the average applicable periods of time that have elapsed in those cases that progressed to perfection or hearing in each year.
There has been some reduction in the average overall time from perfection to hearing, primarily as a result of civil appeal hearings being heard sooner after perfection in 2009 and 2010. In criminal appeals, the average time to perfection increased modestly over the past few years.
Disposition of Appeals
Appeals are sometimes abandoned by the party that brought an appeal. Such matters are regularly purged from the court list and ultimately dismissed as abandoned. A relatively small proportion of matters are dismissed as abandoned in each area of law every year.
Of those appeals that are not abandoned, appeals are either allowed, dismissed, or have been disposed of otherwise. Most of the matters disposed of otherwise are appeals in which the parties have settled their matter or matters that have been dismissed on consent prior to the hearing.
Whether cases are allowed or dismissed, judges of the Court often reserve their judgments after the appeal has been heard. In many cases, the reasons for judgment can be complex and lengthy. Preparation of these reasons represents one of the most significant and time-consuming aspects of the workload of the Court.
Another aspect of the hearing of appeals and motions that can contribute to the workload of the Court relates to whether parties are represented or unrepresented by counsel. Counsel are often able to focus the issues and shape argument to assist the members of the Court in reaching their decisions in the most effective manner. In many cases in which parties are unrepresented, the inverse may be true. The following table summarizes the number of appellants, respondents and moving parties who were not represented by legal counsel.
* does not include inmate appeals
Criminal Code Review Board Appeals
Finally, a relatively small but significant contributor to the workload of the Court relates to the Court ’s jurisdiction to hear appeals from the Criminal Code Review Board. The CCRB has jurisdiction over persons found not fit to stand trial or not criminally responsible by reason of mental health disorder.