Opening of the Courts

REMARKS OF CHIEF JUSTICE HEATHER SMITH
SUPERIOR COURT OF JUSTICE
OPENING OF THE COURTS
TORONTO, SEPTEMBER 12, 2017

Greetings: Chief Justices, Judicial colleagues – all, Mr. Attorney, Treasurer, Mr. Marco Mendicino, M.P., on behalf of the Minister of Justice, Members of the Bar, Paralegals, Distinguished guests, Ladies and Gentlemen.

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, once again, to join with the justice community in the Opening of the Courts ceremony.  I am delighted to have the opportunity to tell you, briefly, about the Superior Court’s highlights of the past year.

2017 is particularly significant for Canadians and Ontarians, as we continue to celebrate the 150th anniversary of our nation and our province.

Prime Minister Trudeau used the following words in his recent Canada Day statement:

[Over the past 150 years], we have continued to grow and define ourselves as a country. We fought valiantly in two world wars, built the infrastructure that would connect us, and enshrined our dearest values – equality, diversity, freedom of the individual, and two official languages – in the Charter of Rights and Freedoms. These moments, and many others, shaped Canada into the extraordinary country it is today – prosperous, generous, and proud.

We cannot forget the fundamental role the Courts have played as the third pillar of government.  Throughout our rich and diverse history, our justice system has been pivotal in interpreting and protecting our core values.  The reality of our nation’s history, however, also reminds us of the injustices that have occurred, particularly in the treatment of various vulnerable and disparaged groups in our society.  This history cannot be ignored.  We must learn from our past mistakes and be conciliatory and inclusive, as we strive for an ever more inclusive, fair and just society.

I want to thank all members of RSJ Council, who are the Executive of our Court, and all staff in the Office of the Chief Justice for their outstanding efforts on the court’s behalf.  I am fortunate to have such incredibly wise and practical judicial colleagues and counsel who support my office.  They provide me with sound advice, and they pursue every opportunity to advance a more efficient and effective justice system.  They are a true asset to the administration of justice in this province.

Equally, the judges of this court are tremendously dedicated and hardworking in their efforts to resolve or adjudicate all litigants’ disputes in a timely way.  They face the workload challenges handed to them with both determination and great judicial skill.  It is my privilege and honour to serve as Chief Justice of this remarkable court.

Judicial Complement

The greatest change to this court over the past year has been the face of its bench, including three members of RSJ Council, RSJ Harrison Arrell in the Central South Region, RSJ Bonnie Warkentin in the Northwest Region and RSJ Bruce Thomas in the Southwest Region.  The court began, a year ago, with 11 judicial vacancies.  Then, over the succeeding months, until today, 22 additional judicial vacancies arose due to judges electing supernumerary status, taking early retirement, suffering poor health, being appointed to the Court of Appeal, etc.  In total, this court has had 33 judicial vacancies since September 13, 2016.

I can, with great relief, report that 29 judges have been appointed during the year.  Now, only four judicial vacancies remain, two of which are only days old. Immense credit for this is due to the Minister of Justice, the Honourable Jody Wilson-Raybould, and her most able judicial affairs advisor, Katie Black.  The timely filling of judicial vacancies was a key recommendation of a recent Senate committee report on reducing delays in the justice system.  In filling these vacancies so quickly – and in some instances, prospectively –the Minister of Justice has clearly embraced and acted on this vitally important recommendation.  Mr. Mendicino, please convey to the Minister of Justice the sincere appreciation of the Superior Court of Justice for all of her efforts to bring our court back to full strength.

Although the new appointment process was slow to launch, it has produced terrific new appointees.  Our newest judges are incredibly talented and more representative, than ever before, of the wonderful diversity of Ontario’s population.

Judges do not and cannot live in ivory towers.  Indeed, Canadian Judicial Council’s Ethical Principles speak of the judge’s imperative to be aware of and understand the differences arising from disability, gender, sexual orientation, religious conviction, race, ethnic background and culture.  This is essential.

And consistent with the “calls to action” in the Truth and Reconciliation Commission’s report, many Superior Court judges have taken proactive steps to better understand Indigenous cultures, and to promote greater cultural competency among members of the judiciary.  The Superior Court dedicated its 2016 Fall judicial conference to the theme of Indigenous justice.  There, Senator Murray Sinclair presented a moving report on his Truth and Reconciliation Commission, to all Superior Court judges.  In October of 2016, this court began to develop a new set of judicial resources on indigenous issues.  This summer we updated these new electronic judicial resources to reflect the most current legislation, case law and information about customary practices.

During the past year we have continued our collaborative efforts with the Ministry of the Attorney General on many fronts and we achieved some very positive results.  Mr. Attorney, before mentioning these initiatives, I want to express the court’s profound appreciation for the dedicated and tireless efforts of your Ministry staff on this account.  Under the particular leadership of three of your ADAGs – Sheila Bristo, Lynn Norris, and Dante Pantone – our court has realized some very tangible advances.  Their commitment to public service, and their professionalism were consistently demonstrated, for which our court remains truly grateful.

Facilities

Turning to courthouse facilities, this year’s advances were noteworthy, particularly as the acute shortcomings of a number of our courthouse facilities were among our most challenging issues.  In Toronto, last year, a plan was finally approved, to move almost all Superior Court civil operations into secure premises at 330 University Avenue and all family operations to new secured renovated space on the ground floor of 361 University Avenue.  RSJ Morawetz, Senior Family Justice Czutrin, and the ever-vigilant Justice Ian Nordheimer, worked diligently with the Ministry of the Attorney General and Infrastucture Ontario, to make this project a reality.

Mr. Attorney, we need your firm support and your strong intervention to ensure that Crown staff, or other ministry staff in the court house, are moved to available alternate space, to keep the project on its tight timeline for completion in 2019.  This date is absolutely achievable, but only if the commitment to move the Crown offices is promptly honoured.

In Brampton, construction has begun on a desperately needed new 6 storey wing of the existing courthouse.  The additional hearing spaces will significantly reduce, if not eliminate, the current ongoing transfer of many cases from Brampton to nearby facilities.  The existing Milton courthouse, with its many deficiencies, will be replaced, finally, by a new 21-courtroom facility in Oakville, fully equipped with the required technology.  We were absolutely delighted by this news.

Mr. Attorney, I thank you sincerely for listening to our concerns and for your resolute advocacy on our behalf in moving this Halton project forward.

Criminal

Our Court’s criminal caseload remains a real concern.  Last year at this time, we had just begun to address the effect of the decision in R. v. Jordan.  This year we will feel the full effect.  In the wake of Jordan last year, our court implemented a variety of excellent initiatives to improve the timely disposition of criminal matters.  Our senior judges with expertise in criminal law have led educational sessions on effective case management strategies in the post-Jordan era. This strategy is consistent with the Supreme Court’s clear statement that judges must engage in proactive case management.  We also engaged in collaborative discussions with the Ontario Court of Justice.  Chief Justice Maisonneuve has been a wonderful partner, assuring us that wherever possible, matters scheduled to proceed by preliminary inquiry in her Court will be completed within 12 months.

We issued a second Practice Direction on May 1, 2017.  We now require factums for certain applications, to support time management for oral argument and to facilitate the threshold screenings of s. 11(b) applications.  Lastly, I struck an Internal Judicial Working Group with judges from every region to improve rules and forms for effective trial management.

Despite all of these efforts, the challenges created by Jordan remain very real, as we manage our current caseload. With the province’s addition of 13 new judges to the Ontario Court of Justice’s bench and 26 new Crowns – to respond to the Jordan– all new indictments will land on the Superior Court doorstep even more quickly.  The great efforts of our dedicated judges have held the line in criminal cases until now.  But, nothing short of a very immediate increase to the judicial complement of the Superior Court will allow this Court to maintain control of its very heavy and highly complex criminal caseload.

In its March 2017 Budget, the federal government announced funding for the appointment of 28 new superior court judges for all of Canada.  Our court immediately delivered a business case to the federal Minister of Justice for a proportionate increase to Ontario’s judicial complement from that new pool, to address Jordan challenges.  The Ontario government has been very supportive and has already amended its legislation proactively, to support the addition of (12) new Superior Court judges.  My sincere hope is that Ontario will, indeed, receive this vitally required increase to its judicial complement.

Family

As in previous years, the Superior Court continued to launch numerous initiatives to improve the delivery of justice services for families.  At our 2016 Fall conference, we held the first annual Heidi Polowin Child Protection Lecture, named in honour of the late Justice Polowin – a true innovator of efficient practices to manage and resolve child protection cases.  Our Court also partnered with CLEO [Community Legal Education Ontario] and others to launch a new “Steps to Justice” Legal Education website.  This new platform is aimed at self-represented litigants with practical, plain language, family law content, as well as information about related legal issues.

Most significantly, this year we renewed our efforts to expand the Unified Family Court to more court locations.  Jointly with the Ontario Court of Justice and the Ministry of the Attorney General, we completed our business case to the federal government, to support the immediate expansion of the UFC to eight new sites.  This expansion will bring UFC sites to 25 of the 50 Superior Court of Justice locations in the province, and support almost 50% of Ontario’s population.

A perfect alignment of both the provincial and federal governments on any issue is a rare occurrence – and we have just that on UFC.  Our business case also has the full support of all courts, all major bar organizations in Ontario, and the Law Society of Upper Canada. Consequently, I am very optimistic that further UFC expansion is imminent and will deliver innumerable tangible benefits for families in conflict.

Civil

Turning to our civil jurisdiction, earlier this year new rules and new technology allowed litigants to e-file civil claims in the Superior Court of Justice in five centres (London, Sudbury, Newmarket, Brampton and Ottawa).  In July, this Ministry pilot project was extended to Toronto.  This is a very welcome step towards the shared bench and the Bar goal – that all Superior Court proceedings can be filed in an electronic format.  In March of this year, RSJ Morawetz issued a Toronto Practice Advisory permitting – if not encouraging – videoconferencing for civil, commercial list and estates matters, to reduce legal costs.  The technology for this initiative relies simply on a computer with a camera, and internet access.

Effective July 1, 2017, Divisional Court’s leave to appeal practices parallel the practices in the Court of Appeal and the Supreme Court of Canada.  Now, leave applications are brought in writing and determined by a Divisional Court panel. Further, counsel must provide time estimates for oral argument for judicial reviews and motions.

The Courts of Justice Act was recently amended to create a new judicial administrative position. We are absolutely delighted with the appointment of Laura Ntoukas, effective September 14, 2017, as the Small Claims Court’s first full-time Administrative Judge.  The Small Claims Court currently handles nearly 60,000 cases each year at over 80 different sites, with a roster of over 400 deputy judges.  This new judicial position will provide this extremely busy court with consistent judicial administrative oversight.

Modernization

In addition to our court’s internal efforts to modernize all of its own scheduling, assignment and administrative operations, we instigated a joint Modernization initiative with the ministry.  We all have a single goal – to create an efficient, modern, technology-based court system, from initial filing to final resolution.  Senior ministry staff and senior administrative judges have worked together unstintingly since the beginning to achieve the objective.

This project spawned a number of important pilot projects and initiatives in the past year. Judges in the Central East region now have access to electronic versions of documents filed for all long motions, no matter where the documents were filed and no matter where the judge is located within the region. This pilot should be extended to all other regions shortly.  We expect the near future will see Wi-Fi in more court houses, teleconference capacity in every courtroom, electronic filing for all Superior Court claims, and computers and scanners for family litigants in all FLIC centres. The Modernization Initiative had to build from a very modest beginning, since virtually no technology supported any courtroom process.  We have progressed more slowly than we had hoped, but we have progressed.

Conclusion

On this occasion of Ontario and Canada’s 150th anniversary, and on the occasion of this Opening of Courts ceremony, I invite you all to take great pride in Ontario’s justice system – both in what has been achieved, as well as what the future promises.

We must also seize every opportunity for the justice system to evolve, improve and respond to the ever changing social context in which we live.  That is our court’s commitment to the public we serve in the year ahead.

Thank you.  Merci.