OPENING OF COURTS REMARKS
THE HONOURABLE GEOFFREY B. MORAWETZ,
CHIEF JUSTICE OF THE ONTARIO SUPERIOR COURT OF JUSTICE
OCTOBER 3, 2022
Greetings: Associate Chief Justice Fairburn, Chief Justice Maisonneuve, Mr. Attorney General, Madam Treasurer, Mr. Owen Rees on behalf of the Honourable David Lametti, Federal Minister of Justice, Members of the Judiciary, Representatives of Ontario’s Bar Associations, members of the bar, members of the media and members of the public.
Good afternoon. It is my pleasure to address all of you here at this year’s Opening of Courts.
This is the first time in over two years that we are meeting together in-person. I am very pleased that we are finally able to do so.
We have many people attending in-person, but this is also our first hybrid Opening of Courts, where attendees have the option to attend virtually or in-person. It reflects that we have come a long way.
In the past year, we have experienced significant departures and arrivals that are impacting and changing the Court.
Queen Elizabeth II has passed away. She was Canada’s longest-reigning Sovereign. She served as Queen for 70 years. We mourn her passing. We welcome King Charles III. In the Courts, we are reminded daily of the change in the monarchy. References to the Queen have now transitioned to the King. Our Registrars now refer to the King when opening and closing court.
Our Court has a direct link to the Constitution and thus to the Monarch. Canadian superior courts are considered descendants of the British Royal Courts. They are the only courts of general (or inherent) jurisdiction and, as such, our Court occupies a position of importance in the constitutional pattern of Canada.
Another major change today is Chief Justice George Strathy’s absence from the dais. I want to congratulate Chief Justice Strathy on his retirement which occurred at the end of August. He has been a tremendous leader for the justice system. He fostered a spirit of cooperation that allowed us to come through the pandemic stronger than we have ever been. He has been a driving force for technological innovation, inclusion and diversity in the bench and bar, and has cultivated great cooperation among justice sector participants. On a personal level, he has been a cherished colleague, a friend, and a mentor. I wish him the very best.
For those of you who may be wondering, I am not retiring. You are stuck with me for now.
We have had other significant changes. In the last year, we have welcomed 16 judges to Superior Court locations across the province. To join us in the midst of substantial change is no easy feat. Given our heavy workload, our newly appointed judges have had to get right to work. Mr. Owen Rees, please convey my sincere appreciation to Minister Lametti for these appointments and express my hope to see more in the near future. I thank the Minister for the 9 new judicial positions announced in June and I very much appreciate having had the Attorney General’s support for our business case for this increase to our Court’s complement. Mr. Attorney, I am looking forward to the regulation change to increase the number of judges of the Ontario Superior Court. That regulation will usher the way in for the Minister of Justice to appoint these new judges.
In addition to these 9, as of today our Court has 12 additional vacancies. That is a total of 21 vacancies. By the end of February 2023, there will be a total of 33 vacancies. That is a very significant amount.
Mr. Rees, it is essential for a court of our size to receive appointments in a timely manner. The efficiency of our Court’s functioning depends upon it. So, the quicker these appointments can be made, the better.
We have seen departures from our Court through retirements as well as appointments to the Court of Appeal for Ontario and the Supreme Court of Canada. I wish the retirees all the best and thank them for their many years of dedication and service to the Ontario Superior Court of Justice. I wish to congratulate Justices Jonathon George, Jill Copeland and Lise Favreau on their appointments to the Court of Appeal, and most recently to Justice Michelle O’Bonsawin on her appointment to the Supreme Court of Canada.
In this past year, we introduced a number of important initiatives. The progress made has been because of the tireless efforts of those involved in the administration of justice. This includes the RSJ Council, including the Court’s 8 Regional Senior Judges, Associate Chief Justice Faye McWatt and Senior Family Judge Suzanne Stevenson. It also includes the judiciary of our Court, the Attorney General and Deputy Attorney General, court staff, the bar associations, their members, members of my office, IT professionals supporting our courthouses. The list goes on.
Each of you have worked steadfastly through difficult circumstances to not only ensure that justice was served but to continually improve access to justice. We have been able to face challenges head on because of all of you.
Our collective efforts are changing the judicial system for the better and I want to speak today about the efforts made by our Court towards its continued improvement and modernization.
Guidelines to Determine Mode of Proceedings
Last year I started to envisage what the Court would look like as we emerged from the pandemic. Work began on a set of Guidelines to Determine the Mode of Proceedings for Virtual versus In-person hearings.
The Guidelines set out the presumptive method of hearing for each type of proceeding in criminal, civil, family and small claims matters. The Guidelines have given us a more consistent approach to hearing the many matters that come before the Court and set the expectation for whether the matter be conducted in-person, virtually, in-writing, or a hybrid of any of these modes.
Each of the Guidelines are accompanied by over-arching principles. These principles assist in determining whether the Court should, in certain cases, deviate from the default method of proceeding. They are guided by factors such as access to justice and the special position of self-represented litigants.
The Guidelines represent a balance between the need to have a framework for the conduct of proceedings, while also allowing for flexibility in proceedings in those circumstances that require it. That is why the Guidelines include a significant degree of judicial discretion.
Significant work went into the development of the Guidelines. I want to thank the Regional Senior Judges Council, the Ontario Superior Court Judges’ Association, the bar associations, the judges, counsel in my office, and many more for their contributions and insights as they were developed.
The Guidelines have given us the unique opportunity to integrate virtual methods of administering justice into the Court and find a balance between virtual and in-person.
Let me be clear about this, the return to in-person hearings, especially for substantive and complex matters, is an integral part of the judicial system and essential to the administration of justice.
Meaningful access to justice requires in-person hearings for many self-represented litigants. It is also essential to building the core ingredients of a strong and healthy Bar – mentorship and collegiality.
Having said that, we also know that the availability of virtual hearings has been transformational for the Courts. When deployed for the right types of proceedings, virtual hearings open our Court to greater flexibility and accessibility.
There is no going back: virtual hearings have become a permanent fixture for court proceedings.
I want to make it clear that the Guidelines are exactly that: Guidelines. I am highlighting this because I believe it is important for the bar and the public to keep in mind.
I understand that there are lawyers, judges, and perhaps members of the public who are not completely satisfied with the Guidelines as they are. As Chief Justice, I have a responsibility to the administration of justice as a whole. Part of that duty is to ensure that the courts are operating as efficiently and effectively as possible for the public and for the administration of justice. That is the principle that must guide me in the decisions that I make about how the Court will operate.
That being said, your feedback is important. Please know that we are committed to reviewing the Guidelines and receiving input on them in 2023. Until then, I ask that everyone work with them as they are.
Responding To Challenges
Over the past year, the Court has introduced a number of changes to respond to pressing challenges. There are a few I want to highlight briefly, the first being the Court’s Binding Judicial Dispute Resolution pilot for family cases.
Binding Judicial Dispute Resolution, or Binding JDR for short, is an innovative method that we have now implemented in 4 regions to help address the backlog of family cases. Binding JDR, which only occurs with the advance consent of the parties, begins with the judge canvassing potential options for resolution of the issues that are in dispute. If any of the issues are not settled on consent, the judge proceeds to adjudicate the remaining issue(s) at the same hearing. This streamlined process ensures that a final resolution is reached and that no further steps are required.
Another notable new initiative in Family is the availability of automatic orders. These new orders, which were incorporated into the Family Law Rules earlier this year at the Court’s request and apply to almost all family cases, require parties to adhere to financial disclosure requirements early on in the case, before court attendances. Like Binding JDR, automatic orders are a method of decreasing the length of time and number of steps that it takes for a case to reach a final resolution.
Along the same lines, the Court has also supported recent changes to the Family Law Rules that require the parties to canvas resolution in advance of their court attendances to ensure that each event is as productive as possible. Consequences will follow where this has not been done.
These initiatives all align to help the court move family cases along in a proportionate fashion, consistent with the overarching objectives of the Family Law Rules.
Turning to criminal, we identified criminal proceedings as a priority early on in the pandemic. Given the nature of criminal proceedings, the pandemic resulted in a number of challenges to jury trials. Our prioritization of scheduling criminal matters has continued as we emerge from the pandemic. We have reached a point now where our operations in this area have stabilized. The pandemic created a backlog but criminal proceedings are now moving ahead full force.
Transitioning from a fully in-person and paper-based proceeding – which is what the Court’s criminal proceedings were prior to the pandemic – to a mix of virtual, hybrid and in-person hearings, requires critical improvements in technology. Improvements are being made on an ongoing basis. The Court welcomes the commitment of the Ministry of the Attorney General to expanding and equipping the virtual and hybrid capabilities of our courtrooms.
For criminal proceedings that involve in-custody accused persons, the Court also welcomes the ongoing work of the Ministry of the Solicitor General to expand the virtual capacity of video suites at correctional institutions. This work is crucial for in-custody accused who are required to attend a virtual appearance. It ensures that they are not limited by the unavailability of video suites in their institutions. Alongside this is the development of a consistent and fair scheduling protocol required for all in-custody accused who must attend for their appearance virtually. The Court looks forward to making progress in this regard with the Ministry of the Solicitor General and Ministry of the Attorney General.
These changes have helped us to make effective use of the Court’s time in an effort to reduce downtime and focus on addressing the backlog in our Court. Although changes have been made, there is much more to be done.
We have managed for the past several years with a patchwork of platforms for receiving and sharing electronic documents, and before that, a paper-only process. While I appreciate how much work over the past few years has gone into ensuring the Court has been able to function in a more modern way using some newly implemented electronic processes, the hard fact is that our current electronic systems are not integrated with one another and not integrated with FRANK, our Court’s outdated information management system.
A change is long overdue.
I thank Attorney General Doug Downey and Deputy Attorney General David Corbett for their leadership in announcing the digital transformation project on November 5, 2021.
I look forward to the implementation of a new end-to-end digital solution that will be more streamlined and cohesive and provides one access point for filing documents with the Court.
Building on the Attorney General’s announcement, significant steps have been made towards delivering this new digital justice solution to modernize court processes, procedures and technology. Our Court, in partnership with the Ontario Court of Justice and the Ministry have established a dedicated project team.
This team is working on a multi-year project, to support the Ministry to complete the procurement process for selecting a digital solution that will meet the needs of both the Superior Court of Justice and the Ontario Court of Justice, justice participants and the public and to develop a strategy for seamless adoption of the new solution.
An improved end-to-end system will take several years to implement but it will make the court more modern and accessible. I look forward to receiving regular updates on its progress.
The State of Civil Proceedings
Today is also an opportunity to look toward the future. Civil proceedings are an area that are ripe for major change – the type of change that would strongly benefit litigants and the Court.
The current situation cannot continue. If the timeline between the commencement of a civil matter and the trial is 4 to 5 years, the civil justice system is simply not responding to the litigants.
The Court runs the risk of becoming irrelevant in civil proceedings if action is not taken. In the short term, I am looking at ways to put us in a greater state of readiness and flexibility for civil proceedings. One way may be to schedule a team of civil judges ready to deal with trials in any region of the province.
In the long run, however, it is the Civil Rules of Procedure that need to be overhauled.
The Rules of Civil Procedure were meant to provide us with a roadmap to resolution; but instead, civil proceedings have become bogged down by process. They have become a maze that is difficult for many to navigate. They have become out of step with the purpose they were meant to serve.
We have an opportunity. An opportunity to look at everything with a fresh perspective and take firm action for change. This is an opportunity to rewrite the rules that govern civil proceedings. To create a new and simpler path forward.
I am committed to improving the state of civil proceedings.
I envision a future civil court that has earned the title “modern” with its use of enhanced case management and technology. One that is responsive, flexible, but adheres to the needs of the justice system without compromise and includes a nimble group of judges who can hear trials on a regular basis, bringing judges to the litigants.
That is the future we can have by creating a “new normal” for civil proceedings.
I have a goal in mind. I would like to see this work undertaken over the next two years. This will be no easy feat, and I acknowledge that this is an ambitious timeline. But to fix these problems, we must dedicate ourselves to doing so effectively and efficiently.
This will require more than just the efforts of my office. It will require collaboration and work from the judiciary of the Superior Court and the Court of Appeal, Rules Committee, the bar, and, most importantly, it will require support from the Ministry.
Mr. Attorney General and Deputy Attorney General Corbett, I know you both support this objective. I value your support and I need it to get this work done. I look forward to working with you both in the near future, to iron out the details, and to get this done together over the next 2 years.
National Day for Truth and Reconciliation
Before concluding, I want to address the National Day for Truth and Reconciliation.
Last week, on September 30th, the Courts closed in acknowledgment of the day. All three Chief Justices made a statement in recognition of the day and the importance of reflecting upon the issues of truth and reconciliation and the consequences of the residential school system, and its continuing effects upon Indigenous Peoples.
On September 30th, the Associate Chief Justice and the Court’s Education Committee hosted an educational session on Reconciliation to learn more about it and to reflect on the experiences in law and significance of the legal system’s role in the reconciliation process. This session was a valuable part of our learning and I thank everyone involved in the panel for taking the time to meet on this important topic.
I have encouraged our Court’s judiciary and staff, who play important roles in the administration of justice, to take opportunities to reflect on the significance of reconciliation, as well as their role in that process.
A character in Ernest Hemingway’s “The Sun Also rises” famously said: “Gradually and then suddenly”
The conversation was about was bankruptcy.
But the idea of ” gradually and then suddenly” also resonates for progress and positive major developments… it is about how incremental change leads to transformation.
Major transitions can be disruptive and difficult. They are uncomfortable. The pandemic was like that for society in general and for us in the Courts. But major transitions can also usher in something new. Something more modern and effective.
That is where we are now.
And at this point in time, it seems as if shifts are happening first slowly then all together….all at once.
The pandemic shifted the way we administer justice but perhaps more significantly, it also shifted our way of thinking.
These shifts have ushered us into modernization. When I began this role as Chief Justice in 2019, my objective was to see the Court move into the 20th century by eliminating paper-based processes, but the pandemic moved us rather quickly into the 21st century. We have had to pivot to fill the gaps left in the system. From these gaps, novel ideas have emerged.
We introduced virtual and hybrid methods of holding court proceedings. With the support of the Ministry, we implemented CaseLines to digitize our filing systems. We introduced new methods such as Binding JDRs and automatic orders. The Guidelines to Determine the Mode of Proceeding organizes these new methods into a cohesive approach.
But the work is far from complete, and I am committed to moving our Court forward to address outstanding issues caused by the rapid pace of change.
We can shape the Court to be forward facing, accessible, efficient and modern. The hidden ingredient, however, is active and sustained effort by all of us: the bar, the Ministry, court staff, the judiciary and the Executive of our Court. That will mark the path ahead.
I am optimistic for the future.
Thank you, and merci.