Opening of the Courts of Ontario for 1998

Chief Justice R. Roy McMurtry
Held on Monday, January 5, 1998

1. Welcome and Introduction

I would like to express a very warm welcome to everyone here to this opening of the Courts of Ontario for 1998. I am of course pleased to be joined on the podium by Chief Justice LeSage and Associate Chief Judge Brian Lennox on behalf of Chief Judge Linden who will be reporting on the activities of their Courts.

A primary foundation of a civilized society is a court system which provides for the impartial, timely and just adjudication of disputes. This most important cornerstone of a free and democratic society is often taken for granted.

My colleagues and I will refer briefly to our efforts, the efforts of the judiciary in every Court in the Province, to improve the administration of justice in Ontario. You will hear of judicial initiatives to reduce court backlogs, to reduce trial and appellate delay, to streamline the Courts through changes in our rules and practices and procedures, to increase the efficiency of the court process, to improve the quality of justice and to reduce the cost of justice to those who find themselves before the Courts, and thus make the Courts more accessible.

We realize that as a publicly funded institution that we cannot afford to sit back and argue that all our problems would be solved by additional resources such as more judges, more courtrooms and more staff. Many of the initiatives led by the judiciary are designed to ensure that the Courts operate within an economy of resources and that good value is provided for the expenditure of public funds.

But we cannot spin an effective court system out of thin air. A reasonable level of resources is required if the Courts are to operate effectively, that is in a manner consistent with the public interest. A series of funding constraints over the years have brought us to the point where the court system simply cannot absorb any further resource constraints without seriously impairing our ability to do justice. In fact a number of areas, including technology and management information systems, may require some modest increase of resources in the short run in order to achieve a more efficient court system.

In seeking to improve the administration of justice we share a common goal with the Attorney General. You will hear from my colleagues and me a number of examples where the Attorney General has supported initiatives of the judiciary to improve the system of justice that we deliver to the public.

The relationship between the Attorney General and the Courts is important and sensitive. On the one hand we depend directly on the Attorney General and the government for the funds necessary to manage the courts. On the other hand the Attorney General is the single major litigant in criminal proceedings and in many important civil proceedings. The tension and conflict between our fiscal and administrative dependence on government, and our judicial independence from government require constant attention and adjustment.

The natural tensions and conflicts become even more important in an era when the Courts are frequently called upon for the judicial review of government action. It is a fundamental duty of the courts to ensure that the government conducts itself according to law. Hardly a day goes by without one of our colleagues being required to conduct a judicial review of some government legislation or some ministerial or administrative decision. The tension between the court’s role as a participant with the government in the administration of the courts, and a watchdog of the government through the mechanism of judicial review of governmental action, has never been effectively resolved.

Little concrete progress has been made so far towards the development of a Court Services Agency which would alleviate many of the tensions and provide a stable, arm’s length foundation for the professional and independent administration of the courts. I hope the New Year will bring some progress on that front.

Although many important issues remain unresolved, and there is room for improvement in so many aspects of our work, I am very impressed by the leadership exemplified by the judiciary, at all levels, in working to improve the justice system in Ontario.

As Chief Justice of Ontario I would like to take this opportunity to state most emphatically that the people of this province are generally well served by their justice system. I am personally aware of the daily commitment and dedication of the judges of this province and of the lawyers who appear before them. That is not to suggest for a moment that we are satisfied with the status quo as we continually strive to improve a system that has never claimed perfection.

While members of the public are understandably disturbed by shortcomings in the justice system, the majority of the public at the same time tend to think that problems in the justice system are someone else’s problem, as most of our citizens are not and do not expect to be caught up in the system. The result is that when it comes to allocating resources, the justice system has traditionally been given a low priority. Nevertheless, those of us who are involved in the administration of justice on a daily basis will remain dedicated to the resolution of these considerable challenges that face our justice system, but it remains obvious that we will require a similar commitment from government at all levels so that we can achieve our shared goals.

We have many distinguished representatives of the bar here this afternoon, but I would like to particularly recognize the presence of the Attorney General of Ontario. While we have continuing concerns in relation to the overall commitment by government to the effective administration of justice, we know of the Attorney General’s strong personal commitment to the justice system in Ontario. Having sat around the cabinet table as an Attorney General for ten years, I know only too well that it can often be a lonely job. Mr. Attorney, we look forward to continuing to work with you in the New Year and resolving the very significant challenges facing the rule of law as we approach the millennium.

2. Composition of the Court of Appeal

The Court of Appeal now consists of 19 full-time judges (including Associate Chief Justice Morden and me) and three supernumerary judges. As I pointed out at my address of the opening of courts last year, on a per capita basis this province has fewer appellate judges than any other province in Canada. It is certainly the busiest appellate court in Canada. I am grateful therefore to the Minister of Justice who has come to appreciate our dilemma and has promised additional judicial resources. They are greatly needed.

My colleagues on the Court will forgive me if I limit my personal comments to those judges who have come or returned to the Court in the past year.

Since the last opening of courts, the Court has regained the services of Mr. Justice Krever who has completed a most important and vital task in heading the Blood Inquiry. The confidence of the Government of Canada in selecting Mr. Justice Krever to be the Commissioner to enquire into the blood system in Canada has been fully rewarded with his valuable and historic report. All Canadians owe a great debt of gratitude to Mr. Justice Horace Krever.

Madam Justice Arbour remains abroad serving as Chief United Nations Prosecutor for the War Crimes Tribunal for the former Yugoslavia. Justice Arbour was replaced by Justice Goudge early last year, and Justice Goudge has made a most valuable contribution to the work of this Court.

Madam Justice McKinlay elected to become a supernumerary judge this year. We are pleased that the Court will continue to have the benefit of her active involvement in the work of the Court.

We are all delighted with the appointment of Mr. Justice Steven Borins who has made a great contribution to the jurisprudence of this province over many years, most recently as a judge of the Ontario Court of Justice (General Division). He will make a very important contribution to the province’s highest Court.

Finally, we all miss our colleague Lloyd Houlden who retired this year. Mr. Justice Houlden served this province as a judge of the High Court from 1969 and in the Court of Appeal since 1974. Throughout his twenty-eight years on the bench, Lloyd Houlden served the people of Ontario with distinction. He was a valued friend and colleague to all members of the bench and bar. In addition to his general legal scholarship, Mr. Justice Houlden was the acknowledged dean of commercial and bankruptcy law in this country.

3. Workload of the Court of Appeal

The principle challenge facing the Court of Appeal continues to be our backlog. Delay is not an abstract problem. It presents a serious access to justice problem in that it increases costs as well as the many problems related to ‘justice delayed’. As I stated last year at this time, the backlog of civil appeals sky rocketed between 1990 and 1995 notwithstanding a 50% increase in the number of hearings conducted by the Court. Initiatives developed in 1995 and put into place in 1996 greatly increased the Court’s productivity. In 1996 the Court increased the number of civil appeals heard by about 50% over 1995 and by 100% over 1990. I am pleased to advise that in 1997 the Court increased the number of civil appeals heard by a further 24% over last year. As of December 3rd our backlog of perfected appeals fell below 1,000 for the first time in many years.

In the case of both civil and criminal appeals the Court is making significant inroads in the backlog. In particular the delay in scheduling regular or non-expedited civil appeals for hearing has now been reduced to twenty months or less from the roughly thirty months of two years ago. The Court has heard or disposed of essentially all of its old appeals and is working with a much more current inventory now. The delays however are still unacceptable.

Criminal appeals are generally heard within seven or eight months of perfection; the increasing number of appeals in which the Court is asked to admit fresh evidence can substantially extend the time. All such appeals are case managed.

One of the goals of our delay reduction initiative was to cut delay in cases where the progress of on-going trials was being frustrated pending the hearing of an appeal. Similarly, and more importantly, family law appeals, especially those involving the interests of children, have been targeted for special attention by the Court. All appeals involving children are automatically expedited. I am pleased to announce that the delay in such cases has been reduced to under six months. The Court’s dedicated administrative staff, with our computerized data base, actively case manages appeal files and keeps litigation moving so as to minimize pre-perfection delay.

Our creative initiatives to increase productivity have brought administrators and judges from other appellate courts in Canada and courts in Russia, England, South Africa and New Zealand to consult with our judiciary and staff.

Last year I indicated that the Court was embarking on a video conferencing project. I am pleased to announce that this technology has been successfully used in the argument of several appeals. The Court is prepared to extend this resource to litigants on request. This technology of course has the potential of reducing the cost of litigation.

The Court through its operations committee reviews its processes and attempts to streamline as much as possible the conduct of appellate litigation in this province. The Court has been conducting a pilot project involving electronic filing if factums. The Court now receives copies of all crown factums from both the Attorney General of Canada and Ontario in electronic form. We are now prepared to expand this project to the receipt of electronic forms of factums from the defence bar and from counsel in civil appeals. We are monitoring the progress of the e-filing project in the Ontario Court of Justice (General Division) with a view to assessing whether there are gains to be made in adopting this technology at the Court of Appeal. Under the administration of our Chief Librarian, we hope to create a useful internet web site which would permit a more efficient and effective distribution of information to the judiciary and will provide more, better and easier access by the public to the work of our Courts.

All levels of Court are experiencing a disquieting increase in the numbers of litigants who must represent themselves and who are not really able to present their case effectively. The Court, in conjunction with the Attorney General’s office and volunteers from the defence bar, has commenced a pilot project to provide duty counsel for unrepresented criminal appellants..

4. The Future

The Court of Appeal has for many years been the most productive and busy appellate court in Canada. The initiatives undertaken over the last two years have increased our productivity dramatically. Much however remains to be done as the people of this province are entitled to have their appeals adjudicated in a timely way. A delay of twenty months for a typical unexpedited appeal is not good enough. A delay of six months from perfection would be more acceptable. It is our goal. To achieve it we need government assistance.

Our increased productivity has placed a heavy workload on our judges, staff lawyers and law clerks, and administrative support. The danger of burn-out is very real and additional resources are essential. In the meantime I would like to express my appreciation to our support staff for their continuing dedication and commitment.

In emphasizing productivity we must not lose sight of the primary function of the Court of Appeal of Ontario, which is to correct error and to develop and clarify the law. Very few of the 1,600 decisions that the Court made in 1997 will reach the Supreme Court of Canada, and in practical terms this Court is the court of final resort for most litigants in Ontario. We are determined to ensure that our court continues to be the jurisprudential leader amongst Canada’s provincial appellate courts in the Commonwealth. This requires that our judges have the time to research, reflect, analyze and discuss their appeals. This is a very difficult challenge given the high volume of cases being heard by each individual judge.

I am therefore pleased with the Minister of Justice’s continuing commitment to secure for this Court additional judicial resources. However the Court also requires additional legal staff in the form of research lawyers and articling clerks in order to assist in the addressing of our work load. The Court also needs additional administrative support staff in order to physically cope with the increased productivity of the Court. In this regard I am grateful to the Attorney General who has implemented my request to provide for a review of our administrative operations with a view to finding additional efficiencies, where possible, and in the securing of an appropriate staffing level. I look forward to receiving the results of that review in the near future.

5. Conclusion

Ontario is the most populous province in Canada. It is also this country’s major centre of trade and commerce. With these benefits however come problems of increased and complex civil and criminal litigation. In turn, greater demands are placed on the administration of justice. For years now, the court system has limped along with limited, and even shrinking resources, while at the same time faced with increasing demands on its services. As we approach the millennium, we are also approaching a very critical juncture in the administration of justice. Minor tinkering with court operations is no longer enough. We need to re-think the way we do things. However we do not propose to abandon our tradition of oral argument except on consent. And we need a commitment by government to make available to the Courts the resources required for us to properly discharge our duties. I look forward to the opportunities ahead to work with my fellow judges and with the Minister of Justice and Attorney General to creating in this province a justice system which will be a source of great pride to all our citizens.

January 5, 1998

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