ISSN 1925-7511 = Annual Report (Ontario. Court of Appeal. Online)
Table of Contents
The justice system in Ontario is blessed with a dedicated array of judges, lawyers, administrators and community agencies who work each day to promote fair and open justice for all of the users of our courts.
The open court concept is fundamental to our justice system. It is the driving force behind the provision of public access to judicial proceedings, court information and reasons for judgment, as well as the availability of court proceedings in both official languages. An open and transparent justice system promotes public confidence in the day-to-day events that transpire in our courts. It is a cherished principle within our vibrant, democratic society.
In recognition of the need to be open, accountable and fair, the Court of Appeal for Ontario has taken a number of positive steps over the last year to enhance its services and increase opportunities for the public to better understand what is happening in our Court. From supporting the successful duty counsel and pro bono programmes, to working more effectively with the media and proactively sharing information about court sittings and decisions, the Court of Appeal is seeking ways to better serve the public and promote an accessible justice system.
To this end, the Court of Appeal for Ontario is pleased to present its first Annual Report.
Justice Date of Appointment
The Honourable Warren K. Winkler (C.J.O.)
The Honourable Dennis R. O’Connor (A.C.J.O.)
The Honourable David H. Doherty
The Honourable Karen M. Weiler
The Honourable John I. Laskin
The Honourable Marc Rosenberg
The Honourable Michael J. Moldaver
The Honourable Stephen T. Goudge
The Honourable Stephen Borins*
The Honourable Kathryn N. Feldman
The Honourable James C. MacPherson
The Honourable Robert J. Sharpe
The Honourable Janet M. Simmons
The Honourable Eleanore A. Cronk
Court of Appeal: July 31, 2001
The Honourable Eileen E. Gillese
The Honourable Robert P. Armstrong
The Honourable Robert A. Blair
The Honourable Susan E. Lang
The Honourable Russell G. Juriansz
The Honourable Jean L. MacFarland
The Honourable Harry S. LaForme
The Honourable Paul S. Rouleau
The Honourable J. David Watt
The Honourable Gloria J. Epstein
*See “In Memoriam”, page 16.
COURT PHOTO Caption below: Court Photo taken April 2008. Missing from the photo are Doherty and Blair JJ.A.]
In 2009, the Court of Appeal for Ontario consisted of twenty-two full-time judges and two supernumerary judges.
The number of supernumerary judges was reduced by one with the death of Justice Stephen Borins in June of 2009. Please see “In Memoriam”, at page 16.
The volume of cases heard by the Court in 2009 remained steady in relation to previous years. Litigants continue to have their appeals heard in a timely manner. The decisions of the Court are, with few exceptions, delivered within the targeted six-month period from the date of the hearing.
For more details on the workload of the Court, see “Statistics”, at page 17.
The Law Clerk Committee, consisting of Justices Laskin, Feldman, Gillese and Blair, oversees the law clerk programme at the Court of Appeal, while the research lawyers of the Court provide day-to-day supervision. The law clerks work on a wide variety of cases, including constitutional, criminal, civil, family and administrative law matters.
Law clerks prepare pre-hearing memos, conduct legal research and edit judgments, along with 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 in the year to Kingston, Ontario, to observe the 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 11 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.
Karen Drake, Toronto; Claire Houston, Queen’s; Evan Marcus, Osgoode; Amy Ohler, Windsor; Michael Pal, Toronto; James Renihan, Toronto; Byron Shaw, British Columbia; Linsey Sherman, Ottawa; Alexa Sulzenko, Toronto; Jane Thomson, Dalhousie; David Vitale, Osgoode; and Megan Williams, Queen’s
Danny Auron, Osgoode; Diana Backhouse, Victoria; Aileen Cheon, 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 Benjamin Thibault, Harvard
These programmes provide free duty counsel to inmates on inmate appeals and free counsel or amicus curiae at mental health appeals.
Inmate appeals proceed by way of an expedited process and require a simpler, modified appeal record. Responsibility for preparation of the record lies with the Crown, rather than the inmate. Factums of the appellant are not mandatory. Additionally, the Court has instituted a duty counsel programme with the cooperation of the Crown, Legal Aid Ontario and experienced members of the defence Bar. Duty counsel review the record and assist the appellant in court. Duty counsel may also identify the need to obtain additional material for the hearing or assist the inmate to seek an order under s. 684 of the Criminal Code, appointing legal counsel. This programme has dramatically improved the quality of the inmate appeals at the Court.
With the cooperation of the Crown, the Psychiatric Patient Advocacy Office, Legal Aid Ontario and experienced members of the mental health and criminal law Bars, the Court has instituted an amicus curiae programme to assist with appeals from the Ontario Review Board. An amicus curiae, or “friend of the Court”, is appointed where the patient is unrepresented, regardless of whether the patient is appealing from or responding to an appeal from a disposition of the Ontario Review Board. Since its inception in 2005, the amicus curiae programme has greatly improved the Ontario Review Board appeal process at the Court. The programme allows a patient’s legal interests to be presented to the Court where the patient may be resistant to representation or unable to discern or clearly articulate the merits of the appeal.
This programme was put in place to meet the concern that delays are negatively affecting young children who await a final disposition on their placement.
While only a small number of Crown wardship no-access orders are appealed to this Court each year, a strategy has been developed to reduce potential sources of procedural delay that can be damaging to young children awaiting a final disposition. In collaboration with the Ontario Court of Justice and the Superior Court of Justice, the Bar, Legal Aid Ontario, Pro Bono Law Ontario, the Ministry of the Attorney General and the various children’s aid societies, the Court is:
The Court has had an opportunity to participate in a number of beneficial educational programmes over the past year. In addition to engaging in a Bench-Bar-Administration outreach event in the Central East Region, the Court also participated in a seminar focused on the theme of justice and the media. The Court looks forward to the first ever joint meeting of the Court of Appeal for Ontario and the Quebec Court of Appeal in the fall of 2010.
The members of the Court have also commendably participated in a wide variety of educational activities, nationally and internationally. Over the past year, lawyers and judges across Canada, China, the United States, Vietnam, South America, France, Italy, Britain, Australia, Ethiopia, Russia, Tanzania, Spain, Rwanda, Nigeria, Uganda and Ukraine have had the benefit of learning from many of our distinguished colleagues on the Court.
The media is the lens through which the court sees the public, and the lens through which the public sees the Court.
In recognition of the important role that the media plays as the “eyes and ears” of the public, and to improve the ability of the media to report accurately on cases, the Court, through its Media Committee, has taken a number of steps over recent years to modernize its services:
A fair and open court system demands a modern, secure technological infrastructure to meet the expectations of the public in this electronic age.
Through the collaboration of the judiciary and the provincial government, all three levels of courts in Ontario now have their own judicial information technology organization that reports directly to the judiciary. This organization is responsible for the management and control of all judicial information. As a result, the judiciary has its own e-mail network, internet access, databases, and document storage and retrieval systems. This ensures that all judicial information is securely segregated from government information and remains independent.
At present, the Rules of Civil Procedure mandate that civil factums be filed electronically. The civil rules also require that an electronic copy of the transcript be filed “unless the court reporter did not prepare an electronic version”. In criminal matters, counsel may file electronic factums, but it is not mandatory. The Court is currently reviewing its e-filing practices with a view to expanding the scope of the requirement to file documents electronically in both civil and criminal matters.
Over the past year, the Court was one of the pilot project sites for a new, province-wide, digital recording system. The project was a success and has been implemented, on a permanent basis, in all of our courtrooms, as well as at the inmate sittings held in Kingston. The Court is now developing a policy on the appropriate release of digital recordings of proceedings.
Accessibility promotes inclusivity, openness and equity. As a public institution, it is vital that the programmes and services carried out by the courts across our province be accessible to their users.
In 2009, the Osgoode Hall Facilities Project was completed. The results of the work allowed the Court to accommodate new programme demands and new staff. Many offices and large segments of administrative space within Osgoode Hall were affected by the project, which included the refurbishment of the law clerk corridor, judicial chambers and the installation of a high-density filing system.
Osgoode Hall was one of the first courthouses in Ontario to complete its work under the provincial government’s Accessibility Project. The following are some of our achievements:
Sadly, the legal community suffered a great loss with the passing of Justice Stephen Borins on June 13, 2009. He excelled as a lawyer, a Bencher of the Law Society of Upper Canada, an academic and a judge. He will be remembered for the wisdom which is manifest in his many decisions. He will also be remembered for his big smile, his enjoyment of classical music, his love of sports, his steadfast friendships, his devotion to his family and his loyalty to the Court.
The number of appeals filed with the Court per year in the areas of family, civil, criminal and inmate appeals has remained relatively steady over the past six years, although there has been a modest decline in the number of civil appeals filed during this time period.
*Appeals filed per year includes appeals “as of right” and leave appeals submitted that were granted.
The number of appeals disposed of by the Court per year in family, civil, criminal and inmate appeals has remained relatively consistent over this reporting period with modest fluctuations in the number of appeals disposed of from year to year in the areas of non-family civil and criminal law.
The number of appeals filed with the Court “as of right” (not requiring the leave of the Court) per year in family, civil, criminal and inmate appeals has remained relatively steady, although there has been a modest decline over the reporting period in the number of civil and criminal “as of right” appeals filed.
The number of leave to appeal applications submitted to the Court per year in civil and criminal law matters has remained relatively steady during this reporting period. Family law matters do not require leave to appeal, and from 2004-2009 no inmates applied for leave to appeal (with one exception in 2004).
Percentage of Leave Applications Granted per Year, 2004-2009
The percentage of leave applications granted has fluctuated over the reporting period for both civil and criminal matters. Family law matters do not require leave to file an appeal.
The Court receives a small number of motions to intervene per year and, as can be seen from the graph above, these interventions are typically sought in civil law appeals rather than criminal law appeals.
The Court receives a small number of motions to intervene per year and, as can be seen from this graph and the one found on p. 23, the majority of the motions are granted rather than dismissed.
The number of non-family civil appeals perfected and awaiting hearing at the end of each year during the reporting period has declined steadily. The number of appeals perfected and awaiting hearing in family and criminal law matters has fluctuated and has not shown the same trend as noted with non-family civil appeals.
The total number of single judge motions filed with the Court from 2004-2009 has remained relatively steady, although there are modest fluctuations year-over-year in the number of motions filed as between civil and criminal law appeals.
The total number of motions disposed of by a single judge per year remained relatively steady over the reporting period.
The total number of motions filed per year with the Court remained relatively consistent during the reporting period.
Over the course of the reporting period, the total number of motions disposed of per year by a panel of the Court has been relatively consistent.
The number of bail applications heard by the Court in either motions court or as a bail review has declined modestly over the reporting period.
The number of appeals heard on their merits per year from 2004-2009 remained relatively steady except in criminal law matters, where there has been a modest decline.
The number of appeals dismissed as abandoned by the Court per year has only modestly fluctuated over the reporting period.
The percentage of appeals allowed per year has remained relatively consistent in the criminal area and has fluctuated to a greater extent in the family and non-family civil areas throughout the reporting period.
The percentage of family and non-family civil law reserved judgments was relatively consistent during the reporting period. The percentage of criminal law reserved judgments, while fluctuating year to year, appears to be modestly declining.
The number of mental health appeals filed during the reporting period has been relatively consistent.
The number of judgments of the Court has remained relatively consistent in family, civil and criminal matters during the reporting period.
* Split decisions include cases with dissent, but not those with a concurring opinion.
The total number of family law appeals in which a party was unrepresented by counsel has fluctuated throughout the reporting period.
The total number of non-family civil law appeals in which a party was unrepresented by counsel has fluctuated throughout the reporting period.
The number of criminal appeals in which a party was unrepresented has fluctuated throughout the reporting period. These appeals do not include inmate appeals but do include Crown appeals in which the respondent was unrepresented, as well as appeals in which the appellant was not in custody.
The total number of motions in which a party was unrepresented by counsel has fluctuated throughout the reporting period.
The average time lapse from application to perfection was relatively consistent from 2004-2007, but has decreased considerably, particularly in criminal appeals, since 2008.
The average time lapse from perfection to hearing of an appeal has been relatively consistent throughout the reporting period, but has decreased in all categories over the last two years.