Opening of the Courts – 1998

1998 Report of the Ontario Court (General Division)

Chief Justice Lesage’s Remarks

Opening of the Courts of Ontario

January 5, 1998


In 1791, 207 years ago, this court was created as the superior trial court of the province. The court consists of 268 judges, including 59 supernumerary judges, and 15 masters, 6 of whom have become eligible for retirement and now adjudicate on a part-time basis. Members of our court have been honoured during the past year to sit several weeks as ad hoc members of the Court of Appeal. The court includes the small claims court with 5 full time and 5 part-time judges as well as a very large roster of deputy judges.

Our court continues to have the highest population per judge ratio of any comparable court in Canada. Our judges are to be commended for their dedication and commitment which allows the court to serve the public with the judicial complement available to us. Without the unstinting efforts of the trial judges of Ontario, we could not have succeeded, as we have, in reducing both civil and criminal backlogs to almost manageable levels. I wish to take the opportunity today to thank the judges of this court for their commitment to deliver considered, thoughtful, timely justice to the litigants who come before them. I know that the judiciary of this province will continue to demonstrate their willingness in the year ahead as we embark upon new initiatives to improve access to justice for the citizens of Ontario.

The advice and assistance I receive from my associate chief justice and the regional senior justices is both appreciated and necessary. I make particular note of the superb contribution made by Regional Senior Justice William Maloney during the past 7 years as Regional Senior Justice of the North West. We welcome his successor, Regional Senior Justice Platana who is with us today.

During this past year, 13 judges have been appointed and 11 have retired. We have 6 more supernumeraries than we had one year ago. Because of demographics, we will reach our maximum number of supernumeraries in about one year. After that, our supernumerary numbers and, therefore, our complement will begin to decline. Of our 13 new judges, 3 are fully bilingual and another is substantially bilingual. These judges will help us meet the growing demand for bilingual trials in this province.

I am pleased to note that the new judges appointed during 1997 have all been of very high calibre and we are privileged to welcome them to our court.

However, there has been some delay in appointing judges. We currently have 8 judicial vacancies. Although most of these vacancies are fairly recent, one has existed for more than a year. Last year the public lost in excess of 4 judge-years because of delays in appointments. This, of course, makes it difficult for the courts to hear trials and motions in a timely fashion. I recognize that the process is one that requires careful thought and consideration, but I encourage the Minister of Justice of Canada to ensure timely appointments.

Also, while we have been fortunate in receiving highly qualified judges to our Court, it is worth noting that fewer senior practitioners are applying for judicial appointment. As others have noted, this may raise some concern on a long term basis for the maintenance of the high calibre of the Court.

Last year, I reported to you, that the Court’s name would change to one more reflective of its position: the Superior Court of Justice. Although the provincial legislation changing the name of the Court was passed almost 15 months ago, the federal government has not yet legislated the concurrent changes necessary to implement the more appropriate name. I hope that when I report to you next year, this will have been done.

During the past year, the province of Ontario has, as promised, appointed 3 case management masters, one to each of Ottawa, Toronto and Windsor. These excellent appointees have immeasurably assisted the operation of our caseflow management system in those 3 cities.

Commes vous le savez sans doute, toute la gamme de services offerts a la Division Generale de notre cour est disponsible dans les deux langues officielles.

A cause de nouveaux juges bilingues, la cour a la capacite bilingue a maintenant permetrait de mieux servir nos justiciables francophones.

Nous sommes confiants que nous avons presentement les moyens pour respondre a notre engagement a cet egard.

Our court provides services to litigants in both of Canada’s official languages. With the recent appointments, we now have adequate bilingual judicial capacity in most centres without having to bring judges in from another region.

The trend of increasingly complicated and longer trials continued in 1997. The number of civil cases entering the system increased slightly to 166,000 cases. Because of the increased length of trials, the number of cases we were able to dispose of in 1997 decreased from 1996. At the beginning of 1998, we have at least 3 trials which have been ongoing since 1996. None of those 3 is, at this point, anywhere near completion.

During 1997, a concerted and very successful effort was made in Toronto to deal with the longer trials. While this, in part, has resulted in a lower disposition rate, it has produced a more realistic trial list and has resulted in significant reduction in the number of long trials waiting to be heard.

The very rudimentary statistics that are available to us indicate that in the province we currently have just over 12,000 civil cases and 3,000 criminal cases on our trial lists. These numbers do not include family cases. Extrapolated figures indicate we disposed of just over 13,000 civil cases and 7,000 criminal cases last year. [See Appendix A]

The available statistics suggest that we have a backlog or inventory of under 6 months for criminal trials, and just under 12 months for civil trials. To put that in more direct terms, it means that, on average, a criminal trial can be heard in this court within 6 months of it coming to our court and a civil trial can be heard within 12 months from the time it is placed on a list ready for trial. Some suggest an acceptable goal would be that all criminal trails commence within 4-5 months of entering our court, and that all civil trials, depending on complexity, be commenced within 6-9 months of being placed on a trail list or being ready for trial. We have not achieved either of those goals, but we are moving toward success in that area. The criminal trial goal, on a province-wide basis, and I stress on a province-wide basis, is almost achieved. There are, however, still regions in the province where our criminal cases are taking too long to get to trial. In the past year there has been some realignment of judicial resources and there has been temporary additional judicial assistance provided to the regions where criminal backlogs were the highest.

It can be observed from the statistics that the number of civil cases coming to our court had been dropping for several years. 1997 was the first year in the last 6 that there has not been a decrease. On the criminal side the numbers have decreased dramatically. This is a reflection of changes to the Criminal Code by which many more cases are dealt with in the provincial court and fewer in our court. It is also, I believe , the result of crowns being more active in the resolution process and disposing of cases at a much earlier stage in the Provincial Court. The Crown Attorneys are to be commended for this approach.

More Criminal Code legislative changes are being considered. Among those are changes that would affect the preliminary inquiry. Provincial judges should be authorized to control preliminaries but the preliminary inquiry can still serve a worthwhile limited function.

Other changes would result in many more offences being heard in the Provincial Court. The penalty for those offences that would be heard in the Provincial Court and for which an accused would be heard in the Provincial Court and for Which an accused would not have the right to a trial by jury has been gradually increasing over the years. Originally such offences attracted a penalty of a maximum of 6 months. The contemplated changes would see a 2 ½ year maximum sentence.

On the civil side, the decrease of the last half dozen years has, I suspect, two probable explanations. One is that civil litigation has become so costly that citizens simply cannot afford to come to court to have their cases resolved. The other probability, which I consider has greatly influenced the decrease, is that there has been a change in the mindset of not only the citizens at large, but specifically in the mindset of the legal profession. Lawyers today are considering and many are offering arbitration, mediation and dispute resolution services.

Recourse to non-litigious forms of resolution is a desirable approach. Lawyers historically have been problem-solvers. Litigation, to the most experienced and wisest litigation lawyers, is and always has been a last resort, not a first. Litigation should not be instituted until all other reasonable avenues of resolution have been explored and failed. It is trite to say that a resolution, mutually arrived at, is always a better result than one imposed by a third party, albeit an independent and impartial third party, such as the courts. That is not to say that the courts are not here to serve the public. We are. But unless there are intractable legal or factual issues to be determined, the clients can usually be best served by a less time-consuming and therefore less costly process than litigation.

During 1997, there were a number of initiatives undertaken by the court, the Ministry of the Attorney General and the bar.

The Ottawa Case Management/Mediation Project

On January 2, 1997, a system of case management with mandatory mediation began in Ottawa. Civil cases commenced in Ottawa now proceed under case management, a component of which is court-connected but private mediation. Mediation occurs shortly after a statement of defence has been filed. The results of that project have been outstanding. The fast track cases are being heard well within 6 months of a defence being filed. Most of the standard track cases filed in 1997 have either been heard or have trial dates fixed.

There are those who question the introduction of private mediation within the court process. I appreciate that concern. Those who support the mediation scheme see it not as the abdication of adjudication to the private sector, but rather as provision of an additional timely service to the litigant.

An informal evaluation of the Ottawa experience, will shortly be underway. If that evaluation reveals that it is as successful as it appears, then it may serve as a model for other regions. Whatever model is chosen, it is important that professional mediators, not judges, provide mediation services. Mediation, particularly interest-based mediation, including caucusing or private meetings with the parties, is antithetical to the detached open and impartial role which judges are appointed to fill.

Credit is owed to Regional Senior Justice Chadwick, the Carleton County Bar and the administrative personnel of the Ministry of the Attorney General for their dedication and commitment to this program.

We have advised the Attorney General that the Toronto Region is ready to expand from the 25% to 100% case management as soon as adequate resources are provided.

Electronic Filing Pilot Project – Toronto

During this past year in the Toronto Region, the court with a committee of the bar and Courts Administration of the Ministry of Attorney General has launched an electronic filing pilot project.

Given that there are approximately 225,000 documents filed in civil cases each year in Toronto alone, Toronto has been a perfect testing ground for a pilot project that has participating law firms file documents electronically with the court. The advantages are obvious: reduced line-ups, quicker turn-around times, reduced administrative costs and, most of all, less paper in the system.

The electronic filing system had many technological problems to resolve before its implementation. Finally, by September of 1997, thanks to the hard work of the committee of the bench, bar and administration, the project became operational. At the moment there are 84 designated law firms participating. They represent some 1300 lawyers practising in Toronto. To date, there have been more than 800 electronic filings with the participating firms electronically filing 47 per cent of their cases.

Significant progress has been make to date, although much work lies ahead. Recognition is owed to the Electronic Filing Steering Committee chaired by Regional Senior Justice Lang, which includes many dedicated members of the bench, the bar and the administration. Note must be made of the contribution of members of the bar who have worked long and hard on a purely voluntary basis in this and in so many other endevours of the court.

The success of the Ottawa Case Management/Mediation Project and the Toronto Electronic Filing Project are examples of the benefits that flow from the bench, bar and courts administration working cooperatively.

Notwithstanding the e-filing project, our technology is either antiquated or non-existent. Statistics and information systems are woefully inadequate. To date, only a tiny minority of our judges have been provided with computers. Government must ensure that funds are made available to equip the court with technology to permit the court to operate in an efficient and informed manner.

Criminal Justice Review

This committee, established late last year by the Attorney General and the courts, is co-chaired by Justice Hugh Locke of this court, Regional Senior Judge John Evans of the Provincial Court and Assistant Deputy Attorney General Murray Segal. It is working diligently toward a report expected later this year. Associate Chief Judge Lennox will deal with this committee in his report.

Family Law

In the spring of 1997, the Government of Canada announced that it would appoint additional judges to unified family courts across the country. Prior to that, the court and the Attorney General for the Province, the Honourable Charles Harnick, engaged in discussions about potential expansion of the family branch of this court. With the announcement from the federal government we continued those discussions with the now realistic expectation of having 17 to 19 family branch judges appointed in Ontario. Associate Chief Justice Smith, Senior Justice Steinberg, of the family branch, and Ministry officials, along with the Regional Senior Justices, have had extensive expansion discussions in recent months. The determination of the sites to which the family branch will be expanded is a decision for the Attorney General, to be make after consultation with our court.

To more efficiently operate the Unified Family Court or Family Branch, as it is more properly described, we have asked the Attorney General to make amendments to the Courts of Justice Act, relating to the structure of the court. Officials of the Ministry of the Attorney General are working with us in preparing changes that we hope will go to the legislature in the near future. The essence of the changes is that the family branch will become an integrated part of our Court. The operation of the branch will come under the Regional Senior Justice in the region where the family branch is located.

We are of the firm belief that the expansion of this court will assist families by providing them with greater accessibility to the courts. Our family branch is and will be a model for early intervention and quick resolution of the traumatic and emotional issues affecting people involved in family crises.

We will make every effort to make the court user-friendly to citizens of this province. We expect the expanded family branch can be operational by the fall of this year.

It is anticipated that the Young Offenders Act matters will continue to be dealt with by the Provincial Court as has been the case in almost every county and district in Ontario.

Small Claim Court

Small Claims Court continues to be one of the busiest parts of this court. Under the direction of Judge Thomson in Toronto, and the Small Claims Court supervising judge in each of the regions, the Small Claims Court continues to provide the most essential of civil dispute resolution services. I know that the judges of the Small Claims Court join with me in expressing our gratitude to those practising lawyers who provide a significant contribution by sitting as deputy judges.

Concern has been expressed about the dramatic increase in fees in that court during the past year. It is too early to assess what effect the fee increase will have on the access to this most important court. If it is found that the numbers of the citizens using the service of this court are greatly decreased, then I would seriously recommend that the fee structure be reconsidered.

Unrepresented Litigant

As a court, we increasingly find ourselves hearing cases with unrepresented litigants on one side or, on occasion, both sides. This is, no doubt, due to the increasing cost of litigation and because of cutbacks in legal aid. Dealing with unrepresented litigants presents its own challenges. Although we quite naturally wish to assist the unrepresented litigant, we must be careful that it does not affect the appearance of impartiality. If one party sees us assisting the other, that may well raise questions in their mind. This is particularly so if one party is represented by a lawyer to whom we give no assistance and yet appear to be giving assistance to the unrepresented litigant.

Because of the ever-increasing numbers of unrepresented litigants, particularly in family and criminal law, we have held seminars on how we, the judiciary, can facilitate the hearing without affecting or appearing to affect our impartiality. A committee of our court is preparing a guide to assist judges when dealing with the unrepresented litigant.

Chief Justice McMurtry has made reference to a court services agency in his report. His comments are strongly supported by this court.

In closing, if I could paraphrase from an article by the President, Harriet Sachs, in a recent issue of the Advocates’ Society Newsletter –

‘…to qualify as justice, any system must be accessible, publicly funded, fair, and offerthe guarantee that all who come before it will be treated equally and in accordance with certain known and articulated principles, rules, and standards. Without access by all to the formal adjudicative process, none of the other methods of dispute resolution canoffer anything more than imposed bureaucratic solutions.’

We must be ever vigilant that our system remains impartial, and accessible to all citizens of this province. That can best be ensured by the existence of a strong and independent bar and a strong and independent court system.

Appendix A:

Criminal Indictments Disposed and Civil Proceedings Disposed on the Trial List
Superior Court of Justice
Region Case Type # Disposed Jan-Dec 1992 # Disposed Jan-Dec 1993 # Disposed Jan-Dec 1994 # Disposed Jan-Dec 1995 # Disposed Jan-Dec 1996 # Disposed Jan-Dec 1997
Central East Criminal 1,750 1,705 1,396 1,075 876 720
Civil 1,264 1,251 1,276 1,733 2,234 1,150
Central South Criminal 1,438 1,241 1,118 1,069 723 672
Civil 3,656 3,093 2,468 2,105 1,751 1,513
Central West Criminal 1,604 1,482 1,188 1,207 814 821
Civil 2,005 2,158 1,998 1,587 1,630 1,016
East Criminal 1,861 1,645 1,415 1,237 964 1,033
Civil 1,727 1,687 1,612 2,457 1,496 1,354
North East Criminal 1,398 1,329 1,130 1,002 683 587
Civil 1,379 1,273 1,149 1,073 1,165 1,109
North West Criminal 348 332 290 375 240 212
Civil 461 444 400 296 311 440
South West Criminal 1,844 1,698 1,692 1,757 1,305 933
Civil 3,808 3,245 3,024 2,695 2,870 4,756
Toronto Criminal 4,623 3,884 3,280 3,101 2,870 2,182
Civil 7,122 7,056 8,822 7,967 4,537 3,286
Total for Province Criminal 14,866 13,316 11,09 10,823 8,475 7,160
Civil 21,422 20,207 20,749 19,913 15,994 13,051

Data Source – CISS Report (Note: 1997 data was extrapolated based on Jan-Sept figures)

Civil Proceedings Commenced – OCGD
Annual Provincial Totals – 1992 to 1997
Superior Court of Justice
1992 1993 1994 1995 1996 1997
Civil Proceedings Commenced 225,579 188,901 174,465 171,374 165,722 165,931

Data source – CISS Report (Note: 1997 data was extrapolated based on Jan. – Sept. figures

Criminal Indictments and Civil Proceedings Pending on the Trial List
Superior Court of Justice
Region Case Type # of Cases Pending – Dec. 1992 # of Cases Pending – Dec. 1993 # of Cases Pending – Dec. 1994 # of Cases Pending – Dec. 1995 # of Cases Pending – Dec. 1996 # of Cases Pending – Dec. 1997
Central East Criminal 857 764 681 616 578 355
Civil 2,420 2,682 2,688 2,323 1,210 1,129
Central South Criminal 600 559 653 500 442 348
Civil 2,381 1,991 1,738 1,453 1,234 1,279
Central West Criminal 608 561 666 525 441 400
Civil 1,461 1,316 1,189 1,094 648 783
East Criminal 661 734 782 635 578 435
Civil 2,162 2,380 2,314 1,212 984 986
North East Criminal 703 650 724 415 305 282
Civil 1,717 1,077 1,069 987 838 754
North West Criminal 91 155 161 131 123 108
Civil 87 102 71 85 78 66
South West Criminal 678 774 928 741 420 481
Civil 6,333 5,794 5,086 3,716 3,627 1,479
Toronto Criminal 1,492 1,488 1,566 1,338 986 713
Civil 11,404 10,832 9,458 6,136 5,457 5,549
Total for Province Criminal 5,690 5,685 6,161 4,901 3,873 3,122
Civil 27,419 26,174 23,613 17,006 14,076 12,025

Data Source – CISS Report (Note: 1997 data was extrapolated based on Jan-Sept figures)