Opening of the Courts

REMARKS OF CHIEF JUSTICE HEATHER SMITH
SUPERIOR COURT OF JUSTICE
OPENING OF THE COURTS
TORONTO, SEPTEMBER 13, 2018

Greetings: Her Honour, The Honourable Elizabeth Dowdeswell, Chief Justices, Judicial colleagues, Madam Attorney, Mr. Sean Gaudet, on behalf of the federal Minister of Justice, Mr. Treasurer, Members of the Bar, Paralegals, and Distinguished guests.

Introduction

Je vous souhaite, à tous et à toutes, la bienvenue à I’occasion du début de cette nouvelle année judiciaire.

It is my pleasure to participate in the Opening of the Courts ceremony once again.

Attorney General, Caroline Mulroney, and the Law Society of Ontario Treasurer, Malcolm Mercer, I send my warmest wishes to you in your respective new roles.

I begin my remarks by giving special thanks to the incredibly capable and hard-working judges, masters and deputy judges who sit in the Superior Court of Justice, as well as the court staff who tirelessly support our judicial officers. The Superior Court continues to maintain a very proud and distinguished standard of excellence in its independence, responsiveness and openness to all.

I want to expressly acknowledge the diligent efforts of Assistant Deputy Attorney General Sheila Bristo and her staff at the Ministry of the Attorney General’s Court Services Division, and of Lynn Norris, the Assistant Deputy Attorney General for the Ministry’s Modernization Division and her staff. There is still a great deal of work to be done, but I am grateful for your work, your responsiveness and the successes we have shared over the past year.

At the Court’s executive level, we have been hard at work with the Ministry of the Attorney General and our justice partners to improve access to justice through many initiatives. Enhanced judicial education, modernization, and the establishment of a steering committee to better inform how facilities decisions and priorities are made – are just a few.  At the same time, the Court has done everything within its power to manage its caseload with its available resources.

Once again in 2017, the Superior Court of Justice proved to be the busiest superior court in Canada, with new proceedings topping 72,000 for civil matters, 60,000 in Small Claims Court, 48,000 in family, 3,500 criminal matters and 1,300 in Divisional Court. I am enormously proud of the Superior Court’s record in providing responsive justice, despite its incredibly heavy caseload.

Judicial Complement

I may be stating the obvious, but to meet the demands of this challenging caseload, the Superior Court needs judges and sufficient court space for them to do their work. After the six recent appointments to this court on August 31, there will still be 21 vacant positions on the Superior Court bench as of the end of this month. A number of these vacancies have existed since 2017.

In criminal law, the inability to provide a judge or courtroom in a timely way means that proceedings are stayed and cases are not decided on their merits. I am very proud of our court’s focussed efforts to meet the Supreme Court of Canada’s timelines in criminal cases. Our judges have worked assiduously, scheduled strategically and given up non-sitting weeks and vacation time to keep matters moving. While some cases have been stayed for delay, generally, we have been successful in holding the line in the short-term, but this is not sustainable going forward.

In family and civil cases, judicial vacancies translate into unnecessary delay, leaving parties in limbo in ways that can be immensely challenging and leaving families in escalating conflict. The delay in filling judicial vacancies is perhaps most problematic for our most vulnerable – children subject to child protection or custody and access proceedings.

We can only do so much when 21 judicial vacancies, approaching nearly 10 per cent of our full-time judicial complement, are left vacant for months on end.

While the new judicial appointments process has given us superb judges, the process has been particularly slow over the past eight months. There is no rationale for this delay in filling vacancies, since a minimum six months’ notice is provided to the Minister of Justice of upcoming vacancies.

Mr. Gaudet, I have written to the Minister of Justice about this issue, urging that a new system be established for filling judicial vacancies immediately and seamlessly as they arise.  I ask that you please, again, pass on this message.  An improved process is necessary to keep our court’s complement at full-strength so that it can continue with the important business of delivering timely access to justice.

Facilities

It goes without saying that judges need space in which to do their work. In many court locations, there is a shortage of courtrooms, settlement conference rooms and judicial office space. The province must respond promptly and reasonably to requests for facilities improvements that directly impact the ability of the Superior Court to execute its judicial function.

We recognize that there are many competing demands for limited space in courthouses. However, the highest and best use of courthouses is for the resolution and adjudication of disputes. If our court is not provided with the necessary space, then the entire justice system is hampered, chipping away at the public’s confidence in this essential institution of our democracy.

Unified Family Court

Turning to family matters, this past year has been exceptionally productive. Most notably, all three Ontario courts and both levels of government have come together for the first time in almost 20 years to make further Unified Family Court (UFC) expansion a reality!

Phase 1 of this UFC expansion will include eight new Superior Court sites, bringing 25 of the Superior Court’s 50 courthouses into the UFC model. This means half of Ontario’s population will be served by a single court for all family matters, presided over by superior court judges.

I wish to thank the Minister of Justice for her commitment to properly resource the new UFCs with sufficient judges. Ontario is well-poised to implement Phase 1 on a date in May of 2019.  I also extend my sincere thanks to staff at the Ministry of the Attorney General for their tireless efforts to ensure timely UFC implementation.

At the same time, Ontario continues to plan for Phase 2 expansion, where our shared goal is to achieve full province-wide expansion to all Superior Court sites by 2025.  And of course, I extend my deep appreciation to Senior Family Justice George Czutrin, for his leadership in making UFC expansion a reality.

Madam Attorney, if Ontario is going to complete province-wide expansion of Unified Family Courts to all sites by 2025, we must have a commitment from the Ontario government that sufficient facilities will exist to properly support it. The three principal centres where major facility problems prevent UFC expansion are Milton, Brampton and Toronto.

The solution for Milton is the new Halton region courthouse.  Our Court remains ecstatic that this new consolidated courthouse, to be built in Oakville, will be able to fully accommodate UFC expansion in the very busy Halton region.

In Brampton, a solution remains within sight – but is still elusive! I have pressed upon your predecessor the need to fully complete all six floors of the new wing to the Brampton courthouse. Currently, only the first two floors are being  fully completed.  The remaining four floors will only be constructed as an outer shell.  The courthouse must be fully completed if we are to achieve a properly resourced UFC in Brampton.

And finally, in Toronto, potential sites for a UFC in the vicinity of the Osgoode precinct have been extensively investigated.  No solution has been found. The only viable and the best possible option for a Unified Family Court in Toronto has always been, and remains, within the New Toronto Courthouse.

As currently proposed, the New Toronto Courthouse on Armoury Street will consolidate only the Ontario Court of Justice’s five criminal operations from across the city into this new facility.  Consolidating almost all of the criminal matters across Toronto into a single area in the downtown core raises real issues for our court and its environs.  In addition, proceeding with the current plans, without a UFC, also forecloses the very best solution for a UFC in Toronto, quite possibly for decades.

Madam Attorney, we all agree the New Toronto Courthouse is desperately needed. Its timely construction is the highest and best use of this site. However, with the overwhelming support of the family bar and virtually all family justice partners, I strongly urge that you reprioritize the plans for this new courthouse so that a secure UFC can also be properly accommodated within this new building. I very much wish to meet with you and Chief Justice Maisonneuve to discuss these facility challenges.

Civil

Turning to our civil jurisdiction, I applaud the Ministry of the Attorney General’s continued expansion of civil e-filing. As of May 2018, litigants may now file statements of claim and statements of defence for proceedings at any Superior Court location. This is a strong beginning to what we hope will be a full suite of online court filing services.

Several members of our Court’s Executive, under the leadership of Associate Chief Justice Marrocco, have proposed a set of reforms which include restricting jury trials in certain simplified rules cases. This reform has the support of the civil bar and was approved by the Civil Rules Committee. It is now awaiting a legislative amendment to be introduced by the Attorney General. Once implemented, we expect more cost effective resolution of these civil claims, proportionate to the amount in issue.

As well, in late 2017, the province’s first Small Claims Court Administrative Judge was appointed. This new judicial position provides our court’s largest and busiest branch with consistent judicial administrative, educational and scheduling oversight. I am very pleased to see the Honourable Madam Justice Laura Ntoukas here today who has so ably assumed this new role.

Judicial Education

I am also pleased to report that judicial education has been front and centre on the Superior Court’s agenda this past year. We have created new educational programs and resources for new judges in all lines of the court’s business. Our spring 2018 judicial education conference was dedicated to LGBTQ issues. We have also developed training plans tailored to the needs of new judges to ensure they are given all of the electronic tools they need to assume the work of this Court.

Concluding Remarks

As I conclude today’s remarks, I wish to underscore the vital importance of keeping the public’s confidence in our justice system at the forefront of public policy decision-making. Public confidence in the courts is a cornerstone of our justice system. It is fundamental to the rule of law.  If lost, it would be very difficult to regain.

Inevitably, there will be tensions between the judicial, executive and legislative branches of government.  However, I am confident that with mutual respect among the different branches of government, the public’s trust in our democratic institutions will be maintained.

In all areas that are the Superior Court’s responsibility – judicial scheduling, assignment of duties, judicial education, and the development of best practices and policies – we will continue to safeguard and promote the issuance of timely, impartial and well-reasoned judgments. Every court appearance must move a matter forward in a meaningful way. This is what this court must do if we are to maintain the public’s trust.

Much work still lies ahead. The Superior Court of Justice undertakes on-going collaboration with all of our justice partners – with the public interest ever present and always informing what we do – to improve the administration of justice in Ontario. The public we serve deserves no less.

Thank you. Merci.