Opening of the Courts of Ontario for 1999

Chief Justice R. Roy McMurtry
Held on Wednesday, January 6, 1999

Welcome and Introduction

Colleagues, Mr. Attorney, distinguished representatives of the Bar. I would like to express a warm welcome to everyone here this afternoon. I am very pleased to be joined by Chief Justice Lesage and Chief Judge Linden who will be reporting on the activities of their courts, together with Chief Justice Morden and our colleagues on the Court of Appeal and the members of the Courts of Chief Justice Lesage and Chief Judge Linden. I am also very pleased that a number of Masters, Small Claims Court Judges and Justices of the Peace are also in attendance.

Je souhaite une bienvenue très chaleureuse à tout le monde qui est venu assister à cette événement si important dans la vie de notre province.

Independent and impartial adjudication is essential to a free and democratic society. As a Canadian senator stated in a debate in 1984:

The safety and happiness and peace of every community depend largely on the confidence that people have in the judiciary. People should feel that their rights are safe under the law, and that the judiciary give wise and impartial judgments.

The senator was echoing a view expressed two centuries earlier by John Locke that the availability of impartial judges to settle disputes was the most fundamental reason for persons to quit the state of nature and live under civil government.

It is my considered view that the public of Ontario are well served by a dedicated judiciary committed to serving the public interest.

I am, of course, pleased to see so many distinguished representatives of the Bar here this afternoon. Relations between the profession and the judiciary are more important now than ever before. At a world law conference in 1977, the late Thurgood Marshall described the significance of this relationship in these words:

“In a very real sense, the Bench and Bar might be called the glue that holds our societies together.”

I believe that in a changing world, the one thing that cannot change is our common pursuit of justice. That is and must remain the principal reason for the existence of the courts and the profession alike. They are bound together by that pursuit.

Today is the last Opening of the Courts for Chief Justice Morden as Associate Chief Justice of Ontario, and Chief Judge Linden. Chief Judge Linden will be assuming the very important role as Chair of the Board of Directors for the implementation of the new legal aid plan. We wish him every success with his new responsibilities.

At the end of March, Chief Justice Morden will be resigning as Associate Chief Justice of Ontario. Chief Justice Morden has already served more than twenty-five years and is clearly one of Canada’s most distinguished judges. Chief Justice Morden joined the High Court of Justice in 1973 and has been a member of the Court of Appeal for the past twenty-one years, and Associate Chief Justice of Ontario since 1990. Chief Justice Morden played a critical role in the drafting of the new Rules of Civil Procedure which were introduced in 1985 and then he accepted the additional and onerous responsibilities as the Chair of the Rules Committee. Chief Justice Morden’s service to the administration of justice in Ontario and Canada has simply been outstanding.

On a personal note, I shall be forever grateful for the warmth of his welcome when I joined the Court of Appeal three years ago, and his continuing wise counsel, support and encouragement.

The past year has been a time of change for every court in the province. Significant initiatives have been undertaken to improve the process of dispute resolution in both our civil and criminal courts. Initiatives have been taken to reduce trial and appellate delay and to reduce the cost of civil litigation. The mandatory mediation projects in Ottawa and Toronto are perhaps the most dramatic and important initiatives in my career in the law.

Composition of the Court of Appeal

The Court of Appeal now consists of nineteen full-time judges (including associate Chief Justice Morden and me) and three supernumerary judges. It is by far the busiest appellate court in Canada, having rendered about 1,600 judgments in 1998.

Since the last Opening of the Courts, Mr. Justice Krever and Mr. Justice Austin have elected to become supernumerary judges. We are pleased that we continue to benefit from their enormous contribution to the work of the Court. Our colleague, Sydney Robins retired in the spring after serving this province for more than twenty-two years as a judge of the Trial Court and Court of Appeal. Our colleague Hilda McKinlay announced her retirement at the end of December last. We very much miss their contribution

To the life and work of our Court. We are of course delighted with the appointments of Madam Justice Kathryn Feldman and Mr. Justice Dennis O’Connor who are most distinguished additions to our Court.

Also, I should not let this occasion pass without mentioning the retirement of our dear friend and Deputy Registrar, Muriel de Sa who served the Court with distinction for more than twenty-five years.

Last year I mentioned that I had asked the Attorney General to conduct a review of the Court’s operations. That review has been completed and has pointed to areas where the processes can be streamlined, as well as areas where additional support is required. To that end, I am pleased to report that Ms. Huguette Malyon has been appointed Registrar, to be ably assisted by Deputy Registrar Keith Gauntlett who has served the Court for twenty-nine years.

In recognition of the need for an increased level of legal support for the judiciary, John Kromkamp has assumed the role as the Court’s Senior Legal Officer and will work to develop an improved program of legal support for the judiciary as well as enhancing the areas of scheduling and case management of appeals.

Workload of the Court of Appeal

Last year I described how the Court had taken steps to increase case management of its appeals, and increase the number of appeals heard and decided. In 1998 the Court continued to be as productive as it was in 1997, and the results have been striking. Last year, I pointed out that the delay in scheduling non-expedited civil appeals had been reduced from approximately thirty months to approximately twenty months. As we begin 1999, I am pleased to report that the delay in hearing non-expedited civil appeals has been reduced to about seven months from perfection. The delays in hearing family law related appeals and appeals delaying the progress of ongoing trials have been reduced to a period of three to six months. At the same time, I am announcing today that our target is the hearing of most civil appeals three months after an appeal is perfected.

In criminal appeals, the delays between perfection and hearing have been reduced to four months. However, there is a growing phenomenon related to the introduction of fresh evidence which can cause considerable delay in certain cases.

The major problem today with respect to the timely hearing of appeals is with respect to a serious delay in the production of trial transcripts. This systemic problem often delays the perfection of a criminal or civil appeal for a year or two, and sometimes more after the trial is concluded. The problem as it exists today is totally unacceptable, and can only serve to bring the administration of justice into disrepute. The Attorney General is well aware of the problem and his officials have assured me that the timely production of trial transcripts is a high priority of the Integrated Justice Project. In the meantime, I have created committees involving the federal Department of Justice, the Ministry of the Attorney General, and representatives of the Criminal Lawyers Association and Advocates’ Society to monitor the problem.

With respect to unrepresented criminal litigants, the Court of Appeal has initiated a project to provide duty counsel. We are very grateful for the pro bono work performed by defence counsel and the co-operation of the Attorney General’s office.

This week, the Court of Appeal put into place initiatives to further streamline the appellate process. New rules provide for the filing of electronic copies of documents, the reduction in the amount of paper being filed and the number of documents being moved from court to court. Innovations in the way appellate materials are assembled for use by the Court will, I believe, reduce expense to the litigants and present a more coherent and cohesive package of material for use by our appellate judges.

In order to communicate with the Bar and make the courts more accessible to the public at large, the Courts of Ontario have created a joint web-site containing useful information relevant to each court. The site contains updates on rule changes and practice directions as well as information about each court. Additionally, the Court of Appeal posts its reserved decisions and scheduling information on its part of the web-site.

Last year, I reported that discussions were continuing with the Attorney General and his Ministry in relation to the transformation of the Courts Administration branch of the Ministry of the Attorney General into a court services agency.

The goal is to develop a highly professional cadre of court managers that will have some degree of autonomy from the Attorney General who is the major litigant in the Courts of Ontario. Chief Judge Linden is representing the judiciary as a co-chair of the working committee, with Assistant Deputy Minister Heather Cooper. We will be hearing from Chief Judge Linden shortly as to the progress of this important initiative.

The Court of Appeal for Ontario is and will continue to be the most productive and busy appellate court in Canada. Each judge of our Court hears at least twice as many appeals as the judges on the next busiest provincial appellate court, and three times the national appellate judge average. The dramatic reduction of our back log has placed a heavy workload on our judges, staff lawyers, law clerks and administrative support staff. The report of the Attorney General’s team which reviewed the work of our Court has strongly recommended additional legal resources which will be indeed essential if we are to maintain the high quality of decision-making which has long been the tradition of our Court.

In conclusion, I should like to spend a moment or two in relation to the continuing challenges facing the fundamental principle of access to justice. If the daily calls to my office are representative there can be no doubt but that many of our fellow citizens simply do not have access to needed legal advice. It is highly unlikely that any government will ever be able to provide the financial resources for legal aid for the many who, for want of a better expression, simply ‘fall between the chairs.’ Judges are also seeing more and more unrepresented litigants in our courts. I therefore believe that the major challenge facing the justice system in the next millennium will be the absence of adequate legal advice and legal representation to our society’s increasing numbers of disadvantaged.

I am therefore encouraged by the resolution passed by the Canadian Bar Association at its annual meeting last summer, committing the association to the development of a policy which requires or encourages each member to contribute fifty hours or three percent of billings per year to pro bono work, aimed at assisting the disadvantaged. The Canadian Bar Association emphasizes, in the words of its president Barry Gorlick, that the goal is not to replace an “overstressed legal aid system, but rather as a method of developing a culture within law firms that makes pro bono work a component of every lawyer’s practice.”

Mr. Treasurer, I am, as well, aware of the efforts of you and your colleagues in the law society to encourage the development of pro bono legal aid clinics and I commend you for your efforts.

It is my hope that the members of the legal profession continue to strive to maintain and indeed strengthen the noble and vital tradition of a commitment to public service. I should like to conclude by wishing everyone here and your families a very happy, fulfilling and healthy new year.

January 6, 1999

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