Annual Report 2009
ISSN 1925-7511 = Annual Report (Ontario. Court of Appeal. Online)
Table of Contents
- List of Justices and Dates of Appointment
- Court Photo, taken April 2008
- Judicial Complement
- Workload of the Court
- Law Clerk Programme
- Inmate and Mental Health Appeals
- Expedited Crown Wardship Appeals
- Judicial Education
- Justice Sector Committees
- Court of Appeal Media Committee
- Information Technology
- Facilities and Accessibility
- In Memoriam
- Workload of the Court
[Page 2]
[Blank]
[Page 3]
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.
[Page
4]
Judges of the Court of Appeal for Ontario
Justice Date of Appointment
The Honourable Warren K.
Winkler (C.J.O.)
- Chief Justice of Ontario:
June 1, 2007
- Regional Senior Judge of the
Superior Court of Justice (Toronto Region): March 12, 2004
- Superior Court of Justice:
April 19, 1999
- Ontario Court of Justice
(General Division): June 16, 1993
The Honourable Dennis R.
O’Connor (A.C.J.O.)
- Associate Chief Justice of
Ontario: October 30, 2001
- Court of Appeal: June 11,
1998
The Honourable David H.
Doherty
- Court of Appeal: September 1,
1990
- Supreme Court of Ontario,
High Court of Justice: September 2, 1988
The Honourable Karen M. Weiler
- Court of Appeal: March 12,
1992
- Ontario Court of Justice
(General Division): September 1, 1990
- Supreme Court of Ontario,
High Court of Justice: February 21, 1989
- District Court of Ontario:
January 1, 1985
- County and District Courts of
Ontario: November 27, 1980
The Honourable John I. Laskin
- Court of Appeal: January 27,
1994
The Honourable Marc
Rosenberg
- Court of Appeal: December 12,
1995
The Honourable Michael J. Moldaver
- Court of Appeal: December 22,
1995
- Ontario Court of Justice
(General Division): September 1, 1990
- Supreme Court of Ontario,
High Court of Justice: April 12, 1990
The Honourable Stephen T. Goudge
- Court of Appeal: December 19,
1996
The Honourable Stephen Borins*
- Court of Appeal: November 18,
1997
- Ontario Court of Justice
(General Division): September 1, 1990
- District Court of Ontario:
January 1, 1985
- County and District Courts of
Ontario: July 15, 1975
[Page 5]
The Honourable Kathryn N.
Feldman
- Court of Appeal: June 11,
1998
- Ontario Court of Justice
(General Division): December 24, 1990
The Honourable James C.
MacPherson
- Court of Appeal: May 25, 1999
- Superior Court of Justice:
April 19, 1999
- Ontario Court of Justice
(General Division): June 24, 1993
The Honourable Robert J.
Sharpe
- Court of Appeal: May 25, 1999
- Superior Court of Justice:
April 19, 1999
- Ontario Court of Justice
(General Division): February 28, 1995
The Honourable Janet M.
Simmons
- Court of Appeal: August 22,
2000
- Regional Senior Judge of the
Superior Court of Justice (Central West Region): October 12, 1999
- Superior Court of Justice:
April 19, 1999
- Ontario Court (General
Division): September 16, 1991
- Ontario Court (Provincial
Division): December 21, 1990
The Honourable Eleanore A.
Cronk
Court of Appeal: July 31,
2001
The Honourable Eileen E.
Gillese
- Court of Appeal: January 25,
2002
- Superior Court of Justice:
April 19, 1999
- Ontario Court of Justice
(General Division): January 8, 1999
The Honourable Robert P.
Armstrong
- Court of Appeal: January 25,
2002
The Honourable Robert A.
Blair
- Court of Appeal: November 5,
2003
- Regional Senior Judge of the
Superior Court of Justice (Toronto Region): October 12, 1999
- Superior Court of Justice:
April 19, 1999
- Ontario Court of Justice
(General Division): March 22, 1991
[Page 6]
The Honourable Susan E.
Lang
- Court of Appeal: March 12,
2004
- Superior Court of Justice: October
12, 1999
- Regional Senior Judge of the
Superior Court of Justice (Toronto Region): April 19, 1999
- Regional Senior Judge of the
Ontario Court of Justice (General Division) (Toronto Region): October 29,
1996
- Ontario Court of Justice
(General Division): September 1, 1990
- District Court of Ontario:
February 21, 1989
The Honourable Russell G. Juriansz
- Court of Appeal: March 12,
2004
- Superior Court of Justice:
April 19, 1999
- Ontario Court of Justice
(General Division): March 17, 1998
The Honourable Jean L.
MacFarland
- Court of Appeal: November 19,
2004
- Superior Court of Justice:
April 19, 1999
- Ontario Court of Justice
(General Division): February 6, 1996
- Regional Senior Judge of the
Ontario Court of Justice (General Division) (Central East Region): September
1, 1990
- Supreme Court of Ontario
(High Court of Justice): September 23, 1987
The Honourable Harry S. LaForme
- Court of Appeal: November 19,
2004
- Superior Court of Justice:
April 19, 1999
- Ontario Court of Justice
(General Division): January 27, 1994
The Honourable Paul S. Rouleau
- Court of Appeal: April 14,
2005
- Superior Court of Justice:
May 31, 2002
The Honourable J. David
Watt
- Court of Appeal: October 12,
2007
- Superior Court of Justice:
April 19, 1999
- Ontario Court of Justice
(General Division): September 1, 1990
- Supreme Court of Ontario,
High Court of Justice: October 4, 1985
The Honourable Gloria J.
Epstein
- Court of Appeal: December 13,
2007
- Superior Court of Justice:
April 19, 1999
- Ontario Court of Justice (General Division): June 17, 1993
*See
“In Memoriam”, page 16.
[Page 7]
COURT PHOTO Caption below: Court Photo taken April 2008. Missing
from the photo are Doherty and Blair JJ.A.]
[Page 8]
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.
[Page 9]
Law Clerk Programme
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
[Page 10]
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 coa-parkedrd. 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 coa-parkedrd. Since its inception in 2005, the amicus
curiae programme has greatly improved the Ontario Review coa-parkedrd 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.
[Page 11]
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:
- assigning one judge with expertise in child
protection matters to monitor the progress of child protection files and to facilitate
timely compliance with the rules;
- relying on enhanced electronic tracking of child protection
files; and
- working to improve access to legal advice for unrepresented
litigants in Crown wardship appeals.
[Page 12]
Judicial Education
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.
[Page 13]
Justice Sector Committees
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:
- Posting a 60-day list of upcoming appeals on our
website;
- Distributing e-notices of decisions and
publication bans via RSS feed, and posting this information on a special page
of the Court’s website;
- Providing three days’ advance notice of
decisions that will likely have heightened public interest;
- Providing one day’s notice for all civil
judgments via daily posting on the internet with RSS link;
- Posting the names of designated media contacts
on our website, and expediting counter service for the media;
- Continuing to provide media lock-ups for
extraordinary cases; and
- Providing a joint media-judiciary education
programme for staff of the Court.
[Page 14]
Information Technology
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.
[Page 15]
Facilities and Accessibility
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:
- A new ramp was built to make the front door of
Osgoode Hall wheelchair accessible;
- An Accessibility Coordinator has been identified
and contact information is now advertised on the Ministry of the Attorney
General’s website, on the Court’s website and on newly posted signage at the
front door of the courthouse; and
- All staff have been
trained in courthouse accessibility and accommodation requirements.
[Page 16]
In Memoriam
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.
[Page 17]
Statistics
[Page 18]
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.
[Page 19]
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.
[Page 20]
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.
[Page 21]
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).
[Page 22]
|
Civil |
Criminal |
2004 |
39% |
21% |
2005 |
32% |
21% |
2006 |
22% |
36% |
2007 |
28% |
27% |
2008 |
22% |
18% |
2009 |
36% |
29% |
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.
[Page 23]
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.
[Page 24]
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.
[Page 25]
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.
[Page 26]
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.
[Page 27]
The total number of motions disposed of by a single judge
per year remained relatively steady over the reporting period.
[Page 28]
The total number of motions filed per year with the Court
remained relatively consistent during the reporting period.
[Page 29]
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.
[Page 30]
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.
[Page 3`]
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.
[Page 32]
The number of appeals dismissed as abandoned by the Court
per year has only modestly fluctuated over the reporting period.
[Page 33]
|
Family |
Non-Family Civil |
Criminal |
Inmate |
2004 |
29% |
31% |
40% |
22% |
2005 |
46% |
37% |
39% |
18% |
2006 |
48% |
34% |
35% |
25% |
2007 |
36% |
34% |
36% |
19% |
2008 |
27% |
29% |
36% |
16% |
2009 |
34% |
27% |
35% |
20% |
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.
[Page 34]
|
Family |
Non-Family Civil
|
Criminal
(Including
Inmate
Appeals) |
2004 |
26% |
48% |
51% |
2005 |
40% |
51% |
60% |
2006 |
33% |
42% |
43% |
2007 |
37% |
48% |
40% |
2008 |
30% |
49% |
45% |
2009 |
41% |
49% |
42% |
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.
|
Filed |
Disposed |
2004 |
28 |
28 |
2005 |
25 |
28 |
2006 |
31 |
24 |
2007 |
38 |
35 |
2008 |
33 |
29 |
2009 |
42 |
33 |
The number of mental health appeals filed during the
reporting period has been relatively consistent.
[Page 35]
|
|
Family |
Non-Family Civil |
Criminal (Including Inmate Appeals) |
2004 |
Unanimous |
59 |
481 |
626 |
|
Split* |
0 |
7 |
7 |
2005 |
Unanimous |
58 |
468 |
609 |
|
Split |
0 |
10 |
8 |
2006 |
Unanimous |
76 |
417 |
557 |
|
Split |
2 |
12 |
9 |
2007 |
Unanimous |
64 |
426 |
577 |
|
Split |
0 |
11 |
5 |
2008 |
Unanimous |
54 |
451 |
560 |
|
Split |
0 |
9 |
7 |
2009 |
Uanimous |
46 |
432 |
585 |
|
Split |
0 |
4 |
8 |
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.
[Page 36]
|
Appellant |
Respondent |
2004 |
26 |
8 |
2005 |
26 |
15 |
2006 |
41 |
27 |
2007 |
28 |
16 |
2008 |
34 |
18 |
2009 |
26 |
15 |
The total number of family law appeals in which a party was
unrepresented by counsel has fluctuated throughout the reporting period.
|
Appellant |
Respondent |
2004 |
94 |
71 |
2005 |
103 |
34 |
2006 |
91 |
30 |
2007 |
96 |
46 |
2008 |
124 |
28 |
2009 |
116 |
26 |
The total number of non-family civil law appeals in which a
party was unrepresented by counsel has fluctuated throughout the reporting
period.
[Page 37]
|
Appellant |
Respondent |
2004 |
36 |
17 |
2005 |
37 |
22 |
2006 |
50 |
41 |
2007 |
36 |
22 |
2008 |
39 |
29 |
2009 |
57 |
53 |
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.
|
Moving Party |
Responding Party |
2004 |
358 |
254 |
2005 |
327 |
104 |
2006 |
374 |
138 |
2007 |
408 |
215 |
2008 |
428 |
185 |
2009 |
482 |
298 |
The total number of motions in which a party was
unrepresented by counsel has fluctuated throughout the reporting period.
[Page 38]
|
Family |
Non-Family Civil |
Criminal |
Inmate |
2004 |
6 |
6 |
13 |
6 |
2005 |
6 |
5 |
14 |
6 |
2006 |
6 |
5 |
12 |
6 |
2007 |
6 |
5 |
11 |
7 |
2008 |
5 |
4 |
8 |
6 |
2009 |
4 |
2 |
4 |
4 |
The average time lapse from application to perfection was
relatively consistent from 2004-2007, but has decreased considerably,
particularly in criminal appeals, since 2008.
|
Family |
Non-Family Civil |
Criminal |
Inmate |
2004 |
4 |
7 |
5 |
4 |
2005 |
4 |
6 |
5 |
3 |
2006 |
4 |
6 |
5 |
4 |
2007 |
5 |
6 |
4 |
3 |
2008 |
4 |
5 |
3 |
3 |
2009 |
3 |
4 |
3 |
2 |
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.
|