Opening of the Courts

OPENING OF COURTS REMARKS
THE HONOURABLE GEOFFREY B. MORAWETZ,
CHIEF JUSTICE OF THE ONTARIO SUPERIOR COURT OF JUSTICE
SEPTEMBER 14, 2021

Greetings: Chief Justices, Fellow Judges, Associate Judge, Deputy Judges and Justices of the Peace, Mr. Attorney General, Madam Treasurer, Representatives of Ontario’s Bar Associations, Representatives of Ontario’s police forces, and members of the media.

Introduction

It is my great pleasure to address all of you at this year’s Opening of Courts. While the circumstances we find ourselves in have made this the second Opening of Courts that must be conducted virtually, I am nevertheless pleased that we have in place the means to do so, rather seamlessly. It is remarkable that we have become so flexible and adaptable in this way. This is my vision for the future state of the court: Flexibility and adaptability to meet rapidly changing circumstances and the needs of the litigants, the public, the bar and the judiciary.

When I began this role as Chief Justice of the Superior Court two years ago, my long-term vision was to bring the Court into the 20th century. Then the pandemic happened, which, in a surprising turn of events, pushed us rather quickly into the 21st century instead.

The past eighteen months have been an extraordinary time for all of us involved in the justice system. Together, we succeeded in ensuring that the delivery and administration of justice continued. This alone is an astonishing accomplishment. And we were able to achieve this because of all of you – the Regional Senior Judges Council, the staff and counsel in my office, the judges of our Court, the Attorney General and Deputy Attorney General, the countless staff and lawyers at the Ministry of the Attorney General, and the bar associations and their members. As a direct result of your tireless efforts, and dedication to each other and to the public, we have been able to face the challenges of the COVID-19 pandemic head on.

This new environment has shown us the need to implement a new technological foundation to deliver more accessible justice at this moment and into the future.

I want to make it clear, however, that this new approach comes with its challenges, and we are assessing the situation as we seek to improve. Remote work has had its consequences on mental health, and technology poses a challenge for people who work within the justice system as they adapt to these new processes. The pandemic also exposed issues that we need to fix and improve, namely access to justice and the backlog.

There is much to discuss today.

I want to share the measures, procedures, and innovations we implemented in response to the pandemic across our court’s areas of responsibility – family, criminal, civil.

Acknowledgements

Before I begin, I wish to acknowledge the changes that have taken place in our Court’s Executive over the past year.

New Regional Senior Judges have been appointed to the Council of Regional Judges, to replace outgoing members.

  • In October 2020, Regional Senior Judge Paul Sweeny became our RSJ in the Central South region following in the steps of Justice Harrison Arrell, who had elected to become a supernumerary judge.
  • In February 2021, Regional Senior Judge Mark Edwards became our RSJ in the Central East region, following the return of Justice Michelle Fuerst to the regular complement of judges.

Both appointments occurred during the pandemic, and each of these excellent new Regional Senior Judges has adapted to their roles extremely well. I thank both for their leadership, as well as their predecessors for their years of dedicated service to the Council of Regional Senior Judges.

In November 2020, Associate Chief Justice Frank Marrocco retired after 15 years on the Court. He was an incredibly valued advisor to me and to the RSJ Council throughout his term as Associate, but most particularly during the challenging first months of the pandemic when we were making critical decisions about how to continue to provide access to justice in a drastically different environment.

On December 21, 2020 our Court welcomed the appointment of our new Associate Chief Justice, Faye McWatt. Associate Chief Justice McWatt is a highly experienced judge who was first appointed to the Court in 2000. Her skills and expertise are proving to be invaluable as she leads the administration of the Small Claims Court and Divisional Court. Associate Chief Justice McWatt was born in Guyana, and is the first woman of colour to serve on the Canadian Judicial Council. As such, her leadership will benefit not just our own court in Ontario but the entire country. Associate Chief Justice McWatt, I welcome you and look forward to our years of working together.

Our Court has had 19 new judges appointed since the last Opening of the Courts in September 2020, and I am very pleased to welcome them. They began their roles in the midst of the pandemic and have embraced their new duties seamlessly, even though the job looks much different than they ever imagined.

To each new judge: thank you for your commitment and your enthusiasm, and we look forward to your many years of service on the Court.

Weathering and Emerging from the Pandemic

As all of you know, almost overnight, we transformed from a justice system that was primarily tethered to the paper-based physical courtroom to a virtual or hybrid courtroom and the digitization of filings and documentation processes.

This transformation was no easy task, and I am grateful to have seen many successes: we have administered over 180,000 virtual or hybrid hearings since the beginning of the pandemic, most commonly in Family and Civil. We have integrated e-filing into our processes and developed a platform for materials to be shared with the court. We have introduced video to virtual hearings and developed new policies to ensure the public and media have access to hearings and court information in these new environments. These are only a few examples of the improvements we have implemented with support from the Ministry of the Attorney General, Deputy Attorney General, and their offices. To all of you, thank you.

This pandemic has bluntly reminded us not only of the need for our software and services to modernize, but for our workforce’s skills to modernize as well. We must equip our staff with the skills necessary to utilize new technology to effectively serve the public in the digital age. We recognize that court staff have been required to adjust to many changes, not just technological, and this adjustment will require our consistent attention moving forward.

On the topic of technology, I want to take a moment to highlight an important step forward in this area. I am very pleased that the Ministry, in close collaboration with the courts, is making investments in new technology that include substantive updates to and modernizing court processes and procedures. These new investments will yield positive impacts on justice.

A prime example of technological advancements in the courts is CaseLines, a document sharing platform that allows us to access documents for hearings anytime and anywhere. We began implementing CaseLines August of 2020, and it was quickly adopted across the province. It is an important part of our strategy for tackling the backlog of cases. Last summer, the Ministry of the Attorney General procured CaseLines for our Court. CaseLines can change how we do business, allowing us to access files from across the province and beyond. Its ability to make the justice system work will be integral to our services moving forward.

I want to acknowledge the partnership between the Courts and the Ministry as a significant milestone that recognizes the need to leverage modern technology to support the court of the future, and to express my sincere appreciation to Attorney General Downey and Deputy Attorney General Corbett for moving modernization projects forward. I look forward to seeing this incredibly important work come to fruition.

We look forward to continuing to work together to continue to improve our ability to serve the public, while ensuring our courts function independently.

Next, I wish to speak about the specific areas of the Court’s responsibility.

Family Updates

The Court’s family law work has been incredibly busy; throughout the pandemic we have conducted over 96,000 virtual or hybrid hearings in family alone, including an unprecedented number of urgent requests. Since the start of the pandemic, family cases have been a high priority to ensure the safety and well-being of children and families who have turned to the Court for assistance.

Despite these efforts, many challenges remain. COVID-19 has caused delays that have aggravated the already significant difficulties of making post-separation arrangements, whether relating to children or financial support.

To address delays, the Court has worked to implement a number of improvements, such as a new province-wide Notice to the Profession specific to family law cases and the introduction of the Court’s Binding Judicial Dispute Resolution pilot. The bulk of these changes are aimed at bringing greater proportionality to family court processes, consistent with the objectives of the Family Law Rules, and to help the Court address current backlogs. The Court also continues to support related amendments in the Family Law Rules. These changes will help us work smarter and provide more timely access to justice in this important area of the Court’s work.

Moving into the future, we are working collaboratively with the bar and working groups to determine how virtual hearings can continue to be utilized once physical attendances can resume. This remains a priority for the Court moving into the future.

Criminal Updates

Our criminal courts have heard over 34,000 proceedings over the course of the last 18 months. This is in no small measure attributable to the input and dedication of the prosecutors and criminal defence lawyers to the criminal justice system and ensuring that it kept moving. This required technological solutions and rules of practice to allow for appearances by accused persons and witnesses virtually. Through a collaborative effort and the shared objective of ensuring that the interests of all justice participants are considered we were able to conduct bail hearings, motions, trials and appeals virtually at a time when the Court was not able to conduct in-person proceedings. With the health and safety protocols in place in our courthouses, we have been able to resume and continue to expand our capacity for in person hearings including jury trials. As with civil and family, moving forward, we have taken the temporary measures and made them a permanent feature of criminal practice: including e-filing, virtual proceedings and document sharing during proceedings. We will also be developing a set of guidelines for the determination of which proceedings should be virtual and which in-person in criminal which will be mindful of the particular access to justice issues involved.

I recognize the unique constitutional obligations and other issues that delay in criminal cases raise. The delay in conducting jury trials has compounded this concern. I have identified addressing the backlog in criminal as a priority for our Court.

Civil Updates

The pandemic necessitated an exponential increase in virtual hearings where parties have attended court remotely using Zoom or by teleconference. This has been particularly true for civil matters, as brick and mortar courtrooms are needed for criminal and family cases. Since the beginning of the pandemic, we have conducted over 50,000 civil hearings virtually.

The transition to virtual civil hearings has been smooth, and this success is in large part due to the work of the Civil Rules Committee and the Superior Court’s Civil Working Group. They worked diligently to determine rule and form amendments permitting virtual hearings, electronic processes for filing court documents, and communications with parties. Helpful resources such as the At-A-Glance Guide for Virtual Hearings were created as well and published on the Court’s websites to aid litigants as they navigate the court systems.

Our Civil court system is a prime example of the power of the CaseLines software mentioned earlier at work, as the platform is being embraced by Judges and the bar. It allows the Commercial List to function as well as it did before the pandemic and allows us to better address commercial disputes in a timely manner. Access to the court to address commercial issues is extremely important for business – both large and small – for what we all hope will be a recovering economy.

The Small Claims Court has also undergone enormous transformation over the past year and a half. Through many challenges, we have kept ‘the people’s court’ open and accessible during the pandemic by progressively expanding its remote operations. Similar to the omnibus civil rules package I mentioned earlier, Small Claims Court rules amendments in early 2020 greatly expanded electronic filing, provided for email service and modernized operations in other important ways.

The Court’s progress has been supported on many fronts. The wise counsel of Small Claims Court Administrative Judge Laura Ntoukas, the Committee of Administrative Judges for the Small Claims Court, and the Deputy Judges Council have greatly helped this branch of the Ontario Superior Court move forward in the right way. Associate Chief Justice Faye McWatt has done a superb job of leading the Small Claims Court throughout her term as ACJ. I thank all of them for their leadership.

General Thanks

I thank each member of the Family, Civil, Small Claims and Criminal Working Groups for their enormous assistance throughout this pandemic. Many of these changes, which have been considered and implemented more quickly than ever before, have emerged from the efforts of counsel and our staff. On issues from determining urgency, administering virtual hearings, to developing a significant package of proposals to improve our court systems during the pandemic and moving forward, their advice has been critical.

Virtual hearings will be extremely helpful in the shorter term to help address the court’s pandemic backlog, and are here to stay in the longer term for routine appearances in each court system where appropriate.

As the Court embraces these improvements, we also acknowledge that some of our most vulnerable litigants do not have access to the technology they need to fully participate in the court process. We will seek support from the Ministry to ensure that this support is available when needed, from document preparation to e-filing and participating in virtual hearings.

Judicial Education

Over the past year, the Court has made important strides in advancing equity, diversity, and inclusion. Our long-awaited judicial education conference on cultural competence and unconscious bias took place this past spring. It has served as a starting point for ongoing conversations about what we, as judges, can do to account for the huge diversity of life experiences and systemic factors affecting those who appear before us.

In the face of the tragic uncovering of over a thousand graves of Indigenous children at former residential schools, the critical importance of social context education and awareness for judges has been brought into sharp focus. The Canadian Judicial Council’s Ethical Principles for Judges, as updated this past spring, states that “Judges are expected to be alert to the history, experience and circumstances of Canada’s Indigenous peoples, and to the diversity of cultures and communities that make up this country.” I hope that we have helped our judges develop a better understanding and awareness of the experiences of Indigenous peoples and acknowledge that this education must be continuous.

I know our Court will have many more educational programs addressing these important issues in the future and I look forward to them.

We have worked closely with the other Courts and the Ministry of the Attorney General to make our Court’s proceedings and procedures more inclusive. In-court announcements have been updated to include more accessible language, and court staff now invite parties, counsel, and others to share their prefix and pronouns. These efforts complement the work done by presiding judicial officers to ensure everyone can participate fully in our processes. The Court’s Equity, Diversity and Inclusion Committee and Indigenous Judicial Advisory Committee have been critical to our court’s efforts to move forward on these issues, and we thank them for their guidance.

Another positive step was changing the title of Case Management Master to Associate Judge. Ontario is now one of several Commonwealth jurisdictions that have retired the title of “master” which was seen as out-of-step with a modern justice system in an egalitarian and multi-cultural society. I commend the Attorney General for supporting this change. The new title also better reflects the important role of associate judges in Ontario’s justice system.

Post-Pandemic Vision

This speech has served as a reminder of the many changes we have collectively faced in just the past year. It also encourages us to consider the future, and what comes next.

Moving forward, the courts will continue to adapt and transform the administration of justice with the assistance of technology. We have seen its impact on the Courts ability to serve the public and look forward to its positive influence on justice across the province.

Our Conferences will continue to educate our judges on equity, diversity, and inclusion in addition to substantive and procedural law. We will continue to work to reduce our backlogs, streamlining court processes wherever possible.

We will place greater emphasis on ensuring, that court appearances are meaningful and that cases are carefully managed to ensure the best use of court time. And moving into the future, we will incorporate virtual hearings where appropriate. We are looking at which proceedings are most suited to virtual processes and which are best suited to be held-in person. We understand the value of in-person hearings for matters where evidence is called and credibility is the central issue.

By improving these significant areas that permeate each aspect of our courts, the administration of justice will improve and grow.

Our vision for the courts is one that seamlessly integrates technology into its services, with modernized skills and staff that can ensure justice is administered – with agility – for the 21st century.

Concluding Remarks

The past year has challenged us in a way none of us expected or prepared for. However, we have worked collectively to address the problems at hand and have shown that our court can administer justice online and in-person. It has also reinforced the dichotomy of our relationship with the Ministry of the Attorney General’s office, as we must ensure the court’s independence while working collaboratively with the Ministry. By maintaining our judicial independence while collaborating on specific projects with government, the Superior Court of Justice will be able to serve justice well.

To the profession and the public, I want you to know I am committed to continuing to move our Court forward, to emerging from the pandemic as a more modern, more responsive and more accessible Court.

I take this commitment seriously.

I was surprised some weeks ago to learn of an article in Canadian Lawyers magazine entitled “Can Ontario’s Chief Justice Geoffrey Morawetz of the Superior Court of Justice exceed expectations?”

I do not know what those expectations were or whether I will meet, let alone exceed, them ..but I can say definitively that I am committed to moving the Ontario Superior Court of Justice into a modernized post-pandemic future.

I guess only time will tell about those expectations and how I did.

Thank you, merci.