1999 Report of the Ontario Court (General Division)
Chief Justice Lesage’s Remarks
Opening of the Courts of Ontario
January 6, 1999
As we begin 1999, the 209th year of our Court, we anticipate a number of significant changes. Change notwithstanding, the 265 judges and 16 masters of this court will I know continue as they have in the past, to give unstintingly of themselves to serve the citizens of this province. It is the goal of each and every one of us to provide a just resolution in a timely fashion to the panoply of issues brought to us for decision. I thank each judge and master of this court for their commitment to these goals.
Family Branch (Unified Family Court)
During the past year, a committee comprised of Associate Chief Justice Smith, Senior Justice Steinberg of our Court and Associate Chief Judge Roberts of the provincial court, conducted, at the request of the Attorney General, an analysis of expansion sites for the unified Family Court in the province. As a result, the Attorney General has selected 12 new sites where the unified Family Court will be inaugurated in 1999. Those sites are, Bracebridge, Newmarket, Whitby/Oshawa Peterborough, Lindsay, Cobourg, St. Catharines, L’Orignal, Cornwall, Brockville, Perth and Ottawa. Those Family branch sites will be serviced by 17 new federal judicial positions, together with judge time provided by our current judges equivalent to the amount of time that we currently sit on family law matters. Much work remains to be done before the sites can be up and running, fully staffed with appropriate ancillary services. We are optimistic that this can be accomplished by mid-year.
Along with the expansion of the Family branch sites, there will be changes to the structure of the Court. These changes will confirm the authority of the Chief Justice over the Family branch, integrate the Family branch into the regional structure of the Court, and recognize the unique needs and expertise of that branch. A bill to amend the Courts of Justice Act to reflect these principles has received royal assent. The operational responsibility for the Family branch will rest with the Regional Senior Justice of the region in which the Family branch is situated. The functional responsibility will rest with the Senior Justice of the Family branch (Senior Justice David Steinberg), who will report to me and advise me on matters of Family branch policy and procedure.
The amendments also provide for judges to rotate into the Family branch and for Family branch judges to have temporary assignments in other areas of the Court. The amendments abolish the requirement that judges who sit in the Family branch are required to obtain a “provincial patent.” In addition, the bill abolishes the concurrent jurisdiction of the Family branch, in Young Offenders Act matters. As Chief Judge Linden mentions in his report, the Provincial Court will have sole responsibility for Young Offender Act matters.
The expansion of the Family branch will result in better service to the public. Along with support services including mediation, positive parenting programs, supervised access centres and information centres, families in crisis will be given better tools within one court system to assist in resolving their difficulties. I welcome the expansion of the Family branch and look forward to further expansion in the near future.
While awaiting expansion, the Toronto region has instituted a pilot project requiring litigants in all contested family law cases to attend information sessions. Those sessions include a viewing of a video entitled “Separate Ways” and encourage litigants in appropriate cases to consider mediation. While the project is in its early stages, the initial reports are promising.
Case Management/Mandatory Mediation
Last year I reported on the successful pilot project in Ottawa involving mandatory mediation of case managed cases. Effective January 4, 1999, the 25% of civil cases that are case managed in Toronto and the civil cases in Ottawa will be subject to a mandatory mediation scheme.
The Attorney General has stated his intention of expanding case management province-wide. A committee of our Court chaired by Justice Coo prepared a report for me that has considered a common approach for expansion of case management to other centres across the province based on Rule 77 of the Rules of Civil Procedure. That report has taken into consideration the eight-year case management experience in Sault Ste. Marie, Windsor and Toronto and the two-year experience in Ottawa. The committee has recommended technological supports, Case Management Masters and administrative staffing necessary to expand case management province-wide. We will continue to work with the Ministry and the Bar towards implementation of case management expansion. What we have learned from the public and the Bar is that the citizens of this province want a streamlined, more timely and less costly resolution of their civil disputes. Case management and mandatory mediation will go a long way toward achieving that goal.
For some time I have expressed concern about the inadequacy of technology in the Court. This concern was confirmed by the report of the provincial auditor in his report of 1997. The government has responded with its Integrated Justice Project.
A judicial committee consisting of Associate Chief Justice Smith, Justice Coo, Justice Granger, Justice Benotto and Justice Simmons of this Court, along with Associate Chief Judge Roberts, Associate Chief Judge Lennox, Judge Casey and Justice of the Peace Rosamund make up the Judicial Committee for Integrated Justice. While not part of the Integrated Justice Project but, they are there to advise those who are creating the integrated justice system of the requirements of the judiciary.
The Integrated Justice Project is intended to create programs to allow information and evidence to be received and transmitted electronically at the counter and in the courtroom. A necessary component of the program is a court scheduling and case management system for all civil, criminal and family matters. Integrated justice has benefitted from the tremendous time and effort of the Judicial Committee in identifying the needs and expectations of the judiciary. The Judicial Committee has not stated how these needs and expectations should be met, as this is a matter for the Attorney General to determine.
The courthouses in the province are being wired to build the infrastructure that is needed to support integrated justice. Each judge will be provided with an up-to-date computer wired to central servers with technological support and training to assist us in fulfilling our judicial responsibilities. The project is proceeding and the delivery and installation of the computers is due to be completed in the summer of 1999. I commend the government for making these resources available.
The judiciary supports the Integrated Justice Project objectives for a modern, efficient, accessible justice system in Ontario. However, the alternative system developed by Integrated Justice must be demonstrated to be as good as or better than the present one. In particular, certain concerns must be addressed:
i) Access to justice must not be impeded by additional cost to litigants or lack of assistance to self-represented litigants.
ii) The production of an electronic record of court proceedings must be timely and accurate.
iii) Appropriate security measures must be implemented to protect confidential information that will in future be generated and stored electronically.
The Electronic Filing of Documents Pilot Project in Toronto has been extended until December 1999. The hard working committee of Bar, Ministry and judiciary has spent innumerable hours fine tuning the project, which is expected to be merged with Integrated Justice in the next year and expanded both in content and as to types of proceedings. The project is the leading example of its kind in North America and is currently the subject of a major evaluation that is to be released within the coming weeks.
Criminal Justice Review
This committee, co-chaired by Justice Locke, Regional Senior Judge Evans and Assistant Deputy Attorney General Murray Segal has been working diligently for several months to develop practical solutions to improve the administration of criminal justice in the province. The co-chairs have been assisted by a committee drawn from numerous groups and organizations and have consulted widely. The report is expected to have three major themes:
(1) The development of province-wide “best practices” based upon successful local procedures,
(2) Greater co-ordination among the various participants in the criminal justice system,
(3) Enhanced use of technology.
The Security Committee co-chaired by Justice Trafford and Judge Bentley included representatives from the Ministry of the Attorney General, the Solicitor General and the Association of Chiefs of Police. Its mandate was to review the current provision of security services by police forces in court houses and make recommendations on minimum standards to guide police in discharging their statutory responsibilities. A report has been provided to the Chief Justices/Judge and Attorney General and is now under consideration.
Court Services Authority
The work on this very important project is continuing. It is covered in Chief Judge Linden’s annual report. I eagerly look forward to its development.
During the past year, a committee of the Court chaired by Justice Czutrin along with Justice Coo and Justice Chapnik prepared a guide to assist judges in dealing with the unrepresented litigant. After consultation with the Ontario Superior Court Judges Association and the Council of Regional Senior Justices, it will be distributed to the judges of our Court. Judicial Education our two-day, court wide, 1998 fall education seminar was devoted totally to social context issues. We were privileged to have two outstanding key-note speakers, Justice Albie Sachs of the South African Constitutional Court and Justice Peter Cory of The Supreme Court of Canada. We are grateful to our Education Committee Justices Ellen Macdonald, Colin Mackinnon, Justices Macpherson, Laforme, Abbey and Hill and to the National Judicial Institute for preparing and presenting this exceptional program.
Justice John Mcgarry of our Court, one of the developers of the Social Context Program which is being presented across Canada is owed our gratitude.
In 1998, the Canadian Judicial Council released a statement of principles designed to provide ethical guidelines for judges. The paper is a product of intensive consultation with judicial, legal and academic communities across Canada. It was prepared to assist judges with the difficult ethical and professional issues which confront them and to assist members of the public to better understand the judicial role.
As I have mentioned in previous years, we are a large court serving as we do the more than 11 million people in this province from L’Orignal to Kenora and from Windsor to Cochrane and beyond. We service an area of approximately 2 million square kilometres. To administer a court so large and so geographically diverse would be impossible were it not for the assistance I receive from Associate Chief Justice Smith, the eight Regional Senior Justices and Senior Justice Steinberg of the Family branch. In 1998, two of our experienced and dedicated Regional Senior Justices, Justice Tom Granger from the Southwest region and Justice Doug Bernstein of the Northeast region have asked to be relieved of their administrative responsibilities. I thank them both most sincerely for their contribution as Regional Administrative Judges and for the wise counsel they have provided me, my predecessors, and the Council of Regional Senior Justices for the leadership that they have provided.
We are fortunate to welcome two experienced judges as their replacements: Regional Senior Justice Doug Mcdermid in the Southwest region and Regional Senior Justice Ian Gordon in the Northeast region.
During the past year, 12 judges have retired and one died in office. I take this opportunity to remember the late Justice William Lyon, a judge for 35 years, a former Chief Judge of the District Court, a wise, caring and supportive friend and colleague who died in office in October 1998. He contributed greatly to the administration of justice in this province during his exceptionally long and distinguished judicial career. He is greatly missed.
Eleven new judges were appointed in 1998. We have 11 unfilled judicial positions. Most are recent vacancies, but two have been unfilled since early August and another since early September. I commend the Minister of Justice for the quality of the new appointments. I also encourage her to fill the vacancies as soon as possible. We are as a court, severely taxed when so many vacancies exist.
Comme vous le savez, sans doute, toute la gamme de services offerts à la division générale de notre cour est dispensible dans les deux langues officielles.
Avec nos juges bilingues, la Cour a maintenant la capacité de permettre de mieux servir nos justiciables francophones.
Our imprecise and extrapolated statistics indicate that we currently have just under 3,000 criminal cases and 10,500 civil and family cases pending on our trial lists in the province. the pending criminal cases are down about 3% or 100 from last year and the pending civil and family cases (on the trial list) is down about 11% or almost 1,500 cases from a year ago. notwithstanding, that many of the trials are longer and more complex than in years past, we disposed of 5,500 criminal cases and 14,000 civil and family cases in 1998. These figures would suggest that our inventory, or cases on the trial lists, could be disposed of in just over 6 months for the criminal cases and about 10 months for the civil and family cases. Unfortunately, statistics being what they are, do not always accurately reflect reality. Our assessment of the cases awaiting trial reveals that a number of those are long, complex trials. The 10,500 civil and family cases probably more accurately reflects an inventory of 12 or 13 months. We have two criminal trials now in their third year that are not yet near completion. Last year I commented that some suggest an acceptable goal would be that all criminal trials commence within 4 to 5 months of entering our Court, and that all civil trials, depending on complexity, be commenced within 6 to 9 months of being placed on a trial list or being ready for trial. We have some considerable distance to go before we achieve an acceptable, timely disposition for civil trials.
As in past years, there will be some temporary realignment of judicial resources to assist those areas where the backlogs are the highest. I anticipate the Case Management/Mandatory Mediation Project will speed up the resolution of cases.
The Traditional Masters have provided a most important judicial service to the people of Ontario. With their diminishing numbers resulting from retirements, it has become increasingly burdensome for those Masters to meet the caseloads that come before them.
We are pleased that the provincial government has recognized the resulting difficulties and has increased the three earlier appointments of Case Management Masters to Ottawa, Toronto and Windsor. With the appointment of new Case Management Masters to the Toronto region, the delays in masters’ work in that region will improve. The 5 new Case Management Masters will do both traditional and case management masters’ work and their appointments bear witness to the Attorney General’s commitment to adequately resourcing case management in this province.
The Small Claims Court continues to be the busiest branch of this court. It provides just and efficient resolution of disputes. This court could not, of course, operate without the dedicated Small Claims Court Judges and the practising lawyers who provide a significant contribution to the administration of justice in this province by sitting as Deputy Judges. I express to each and every one of them the sincere gratitude of the Judges of this Court and the citizens of this province for their selfless contribution.
Reflecting on the past year, it is worthy of note that 1998 marked the 50th anniversary of the Universal Declaration of Human Rights. Although it is not widely known in Canada, and certainly not outside Canada, the principal drafter and author of that declaration was a Canadian, Professor John Humphrey of Mcgill University who died in 1995. The changes the Universal Declaration brought about throughout the world are significant. It sparked what Chief Justice Lamer recently referred to as a ‘human rights culture.’ He defines that culture as a ‘state of affairs in which three basic conditions obtain. First, recognition that the state possesses power only because it has been given that power by individuals who make up the state. That is, human rights are not something which the state in its beneficence bestows on individuals. Second, citizens must be secure in the knowledge that they are free to assert their rights against the state without fear of reprisal. Third, there must be an appropriate forum for the resolution of human rights, which forum enjoys the independence to act impartially. In other words, an independent and impartial judiciary. I add a fourth basic condition to ensure human rights, and that is, a strong and independent bar. I feel confident in stating that these four conditions are satisfied nowhere in the world more than they are in Canada.