2001 Report of the Superior Court of Justice
Chief Justice Lesage’s Remarks
Opening of the Courts of Ontario
January 8, 2001
Dean J.A. Corry, in delivering the Massey Lectures in 1971, referred to the citizens of Canada as exhibiting a “…psychology of obedience…” He saw that approach as one of the long-standing great stabilizing features of our society. It refers to the custom or habit of our citizens to respect and obey the law. Fifty years earlier, Mr. Justice Riddell, of the Court of Appeal for Ontario, commented that “…our courts are not an end in themselves, they do not exist for themselves, but for the people”.
It is important that those of us in the administration of justice be mindful of the need to maintain that support and respect for the law.
Since my time at law school in the late 1950s, we have seen a relatively short Criminal Code expand into a large complex tome, with more than 800 sections and an extraordinary number of subsections. As society becomes more complex, so do the issues that come before the courts for resolution. Regardless of the complexity and diversity of society, however, and the issues we are called upon to resolve, we must never allow the law to become unduly complex. It must be understood to be appreciated by the members of the society whom we serve. This is the challenge for the legislators and for the courts as we look to the future.
In response to changes, parliament and the legislatures have passed and proclaimed a torrent of new laws. It is worth remembering that for the law to continue to command the ongoing support of the citizens, there cannot be a chasm between the citizens’ concept of justice and the rule of law. The law cannot be permitted to become complex to the point of becoming incomprehensible.
The challenge then is to make the work of the Court understandable to the public that we serve. As our work becomes more complex, greater vigilance is needed by the judiciary and also by the legislators to ensure that the public understands not only the role of the court, but the law that it administers and the judgments we produce. If the public cannot understand the reasons why a court has decided a case in a particular manner, public confidence is diminished.
Au nom de la Cour supérieure de la justice de l’Ontario, je souhaite la bienvenue à vous tous qui travaillez toujours avec tellement de dévouement au service des ontariens et des ontariennes.
I want to thank each Judge and Master of this Court for their hard work and commitment. Our Court now consists of 289 judges, including 60 supernumerary judges, 4 full-time masters, 5 per diem masters, 8 case management masters, along with 4 full-time and 4 per diem Small Claims Court judges. In addition there is a very large roster of Deputy Judges who serve in the Small Claims Court.
The advice and guidance I receive from Associate Chief Justice Smith, the 8 Regional Senior Justices and the senior justice family, are both welcome and appreciated. Four of that number have stepped down in the past year. Justice David Steinberg had been the senior judge of the Family branch for 15 years. His contribution to the cause of family law and to this Court is unprecedented. Former Regional Senior Justice James Chadwick guided the court in the East region for 6 years, including the transition to 100% case management and mandatory mediation; former Regional Senior Justice David Logan oversaw the introduction of the Family branch throughout the Central East region; and former Regional Senior Justice Janet Simmons (now a member of the Court Of Appeal for Ontario) presided briefly, but with great dedication, in the Central West region, including the move into the new Grenville & William Davis Court House. The contribution of these judges, not only to the Court, but also to the citizens of Ontario was immense. Their service as administrative judges and their wise counsel to me will be greatly missed. I am pleased to welcome their successors, Regional Senior Justice Cunningham, in East region, Regional Senior Justice Shaughnessy in Central East region, and Regional Senior Justice Durno in Central West region, each of whom has already distinguished themselves in their new positions.
During the past year, 10 judges have been appointed and 10 have retired. The new judges have all been of very high calibre and we are privileged to welcome them to our Court. Unfortunately, in the year 2000, two of our admired and dedicated judges, the Honourable Madam Justice Judy Bell and the Honourable Mr. Justice Sam Murphy, passed away. Justice Bell had been a member of the former High Court and upon merger of the Courts in 1990 was assigned to her home town Ottawa. Justice Murphy served in Peterborough on the Provincial Court, the District Court and then as a member of this Court since 1990. They are both greatly missed, not only by their families and the citizens of Ottawa and Peterborough respectively, but by all of their colleagues. They were not only wonderful judges, they were both kind and caring persons.
We currently have 8 judicial vacancies. Although some are fairly recent, 3 have existed for more than a year. Last year we lost in excess of 9 judge years because of delays in appointments. This, of course, makes it difficult for the courts to conduct our work in a timely fashion. I recognize that the process is one that requires careful thought and consideration, but I strongly encourage the Minister of Justice of Canada to ensure more timely appointments.
Our Court continues to have the lowest judge to population ratio of any comparable court in Canada. Even at full complement, which as I mentioned we have not been for some time, we would require an additional 37 judges on our Court to equal the average ratio of judges to population for the rest of Canada.
What this means is that the members of the Court are operating, on average, with 37 fewer judges to handle the judicial work of a province the size of Ontario, when compared with the courts in other provinces in Canada. And by judicial work, I am not simply referring to the time a judge or master sits in a court or motions room. In the 21st century, time in court is only a percentage of the judicial workload. To give but a few examples, in addition to the work a judge does to prepare and keep on top of a case in which he or she is presiding, judges are also required to preside on motions and applications, at case conferences, settlement conferences, pre-trials and often trial management conferences. They must remain current in the law as well as write reasons for judgment in those cases over which they have presided. The work of a judge outside of court is especially onerous in the Family branch where much of the work of a judge relates to functions quite separate from a judge’s responsibilities at trial.
It also needs to be remembered that judges have spent literally thousands of hours on various projects to assist the administration of justice in this province. To name but a few, I mention integrated justice, electronic filing, criminal jury charges, public education and the Electronic Bench Book. In addition our judges are involved in presenting and participating in continuing judicial education, bench and bar committees, and the myriad of committees that are essential to the operation of a court serving over 11 million people from 50 plus locations across this vast province. All of these tasks are undertaken to ensure that the judicial system can better respond to the needs of the public.
Although the statistics indicate a lesser number of cases going to trial in criminal and civil matters, the trial lists in the Family branch have expanded dramatically which is in part because of the significant expansion of the Family branch. While we experienced relief this year from an over-abundance of multi-year trials, we continue to be challenged with some trials that take as long as a year to complete. We also note a sizeable increase in class proceedings which are time-consuming at the initial and management stages, although few have yet come to trial.
As I indicated last year, we have experienced some difficulties with the expansion of the Family branch to 12 new sites in Ontario. This expansion coincided with the introduction of the new Family Law Rules. The growing pains have been more significant than originally anticipated. While we continue to deal with the challenges associated with the rapid expansion of the Family branch, I do believe we are beginning to overcome some of the significant difficulties. Although we are not there yet, I am confident that with patience, discussion and cooperation with all parties involved in the Family branch, we will meet the challenges that transition has brought. In particular, I believe that changes to the Family Law Rules which the Family Law Rules Committee is examining will improve the situation. The important and significant accomplishment to keep in mind is that with the recent expansion of the Family branch of the Superior Court of Justice, the public now has greater access to a truly unified court which can provide an effective, efficient and dignified means to resolve family matters. The public deserves nothing less.
Small Claims Court
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 our sincere gratitude for their selfless contribution. The Attorney General has indicated an intention to increase the monetary jurisdiction of that court, a position with which we agree. During this year, with the assistance of the Attorney General, we will establish the Deputy Judges’ Council as provided in the Courts of Justice Act.
Opening of New Courthouses
I would like to commend the provincial government on the opening of two new courthouses this past year in Hamilton and Brampton. These two new facilities are tangible recognitions of the role that justice plays in the community. I would like to thank the Attorney General for the efforts his ministry has undertaken to complete these two functional and attractive structures, which I am sure the people of this province will utilize and appreciate for many, many decades to come. I also note that during this past year, the Bracebridge courthouse celebrated its 100th anniversary. The recent rededication of that structure was a significant event in the history of our courts in this province.
While I am on the topic of courthouses, it is appropriate to speak of the extraordinary sacrifices that have been made by all members of the judiciary, ministry staff, the police, the Bar and the public in dealing with the problems in the Newmarket courthouse. As some of you may know, problems of mould in that courthouse necessitated closure of the courthouse. In the interim, temporary structures were located in the parking lot of the courthouse consisting of trailers which served as courtrooms and offices for judges and staff. This virtual trailer park was constructed in very short order and, thanks to the hard work of all concerned, was up and running without any major delays in the provision of court services to the public. With the winter months fast approaching, the ministry was fortunately able to acquire new temporary facilities for the Newmarket courthouse. Needless to say a great many people worked extremely diligently to ensure that, notwithstanding the problems, the courts remained accessible to the public and to the Bar. I would especially like to thank the Attorney General and his staff for responding to the challenges, the regional Municipality of York for the use of their council chambers and office space, and Regional Senior Justice Shaughnessey and all the judges and staff of the Superior Court who worked so hard under very trying conditions to ensure that the administration of justice in the Superior Court continued to function.
Reform of Discovery Process
In response to a suggestion by Attorney General Flaherty, I have recently written him regarding reforms to the discovery process. The ‘Civil Justice Review’ report recognized the need for a fuller examination of these questions and recommended the establishment of a task force to propose changes in the current Rules of Civil Procedure. Its stated objective in doing so was to develop a reformed discovery process which would preserve its essential disclosure principles while at the same time improving its economic effectiveness. I have suggested to the Attorney General that a working group be established with a broad mandate to review all aspects of the discovery process in Ontario. I look forward to discussing these issues with the Attorney and his officials more fully in the new year.
Changes to Venue Rules
As some will recall, there was a time when, either by statute or by rule, civil actions were required to be commenced and/or litigated in defined jurisdictions. The basic rule was that there be a connection between the subject of the litigation and the venue. Because of statute and rule changes, this is no longer the case. The result is that we have a disproportionate number of cases in the civil system in the large centres like Toronto relative to either the population of that centre or the subject-matter that gives rise to the litigation. I know that the Attorney General and his officials at the Ministry are reviewing this issue. Our Court is receptive to any suggestions his ministry may have to assist in achieving more logical venue criteria.
Residential Schools Litigation
We currently have a number of cases commenced in the Superior Court dealing with litigation relating to native residential schools. I am pleased to say that some of these cases have settled, under the guidance of Justice Poupore and Justice Trainor of the Northeast region, who are overseeing and managing this litigation province-wide. Each region, usually through a case management judge, who deals with issues regarding residential schools litigation, keeps Justices Trainor and Poupore informed of the progress of the litigation in their region, in order to achieve consistency of process throughout the province. Justices Trainor and Poupore continue to be directly involved in these residential schools cases. I know that they will continue to bring to those cases their particular skills, which I hope will assist in resolving some of the more difficult aspects of this litigation, or at least narrow the issues to be tried.
As I indicated last year at this time, the combination of case management with mandatory mediation in Ottawa and in Toronto have more than met the expectations of promoting the expeditious, fair and less costly resolution of civil cases. With the implementation of case management, our courts will have the ability to monitor the time that a civil case takes from commencement until it is ready for trial and not, as has been the case historically, become involved only when the matter is finally placed on the trial list.
Our Court looks forward to the further expansion of case management in Toronto and Windsor based on Rule 77 of the Rules of Civil Procedure with the provision of adequate resources to make those expansions successful.
Jury Charge Project
I am pleased that the first installment of the specimen criminal jury charges has now been completed under the direction of Justice Watt. These jury instructions which make up the first phase of the Superior Court of Justice Criminal Jury Trial Project are part of the Court’s efforts to ensure that the law is understandable to the jurors who perform such an important role in our criminal justice system. The first phase of the project includes preliminary, mid-trial and final jury instructions. Justice Watt is currently working on finalizing the instructions relating to various offences as well as statutory and common law defences.
The specimen instructions were reviewed and assessed by a review committee consisting of the Honourable Justice David Doherty, the Honourable Justice Louise Charron, the Honourable Patrick Galligan, Alan Gold, David Humphrey Jr., Kenneth Campbell, Beverley Brown, Sarah Welch, Robert Hubbard and Michael Neville. I would like to make special mention of David Butt of the Ministry of the Attorney General who was seconded from the Ministry for this project and worked diligently in assisting both Justice Watt and the committee.
The review committee had regular meetings with Justice Watt to review and, where necessary, suggest improvements to every specimen charge. Professor James Raymond, a leading legal writing expert, was retained to ensure that the specimen charges are concise and clear to the lay juror. An enormous amount of work by a variety of people went into preparing these materials. On behalf of the Superior Court of Justice, I want to express our thanks to Justice Watt and to all who were part of the project for their hard work. I would also like to thank the Attorney General for Ontario, the Minister of Justice of Canada and the Attorneys General of several other provinces for the financial contributions they made towards this project.
Electronic Bench Book
We owe a debt of gratitude to Justices Glithero, Lax and Mossip for co-chairing the Electronic Bench Book Initiative and to all the judges of the Court and others who contributed to it. It is a remarkable undertaking of which all who participated can be proud. The Electronic Bench Book is essentially a compilation of materials for judges relating to three main topics: family, criminal and civil matters. These materials are now accessible to all Superior Court judges electronically. They will be of invaluable assistance to judges of our Court as a research tool to assist in their work. This is particularly so for judges presiding in smaller, more remote locations where research facilities are more limited than in the large centres of the province. This project will serve as the basis of a Canada-wide bench book accessible to courts across Canada.
Comme vous le savez tous, c’est toujours notre but d’administrer la justice dans les deux langues officielles du Canada. Je suis fier de vous annoncer que grâce aux désignations de nouveaux juges bilingues, notre Cour est présentement beaucoup mieux équipée pour servir nos citoyens et citoyennes dans les deux langues officielles. Je suis convaincu que nous avons atteint notre objectif à cet égard.
Our Court provides services to litigants in both of Canada’s official languages. We have adequate bilingual judicial capacity in most centres without having to bring judges in from other regions. Although we have experienced recently some difficulties in the quality of French translators assigned to certain French trials in the province, our Court is able to provide a judge to preside in either English or French to any member of the public who wishes a hearing in our Court in either official language.
In December, Justice Epstein, Justice Kiteley and I met with representatives from the media regarding issues of mutual interest and concern. It was an open and helpful discussion. A court/media working group was established, consisting of media representatives and judges. I expect that this working group will be of assistance in ensuring that the public, through the media, continues to have access to the work of the Superior Court of Justice in a manner that enhances the principles of a free and democratic society.
Public Information Committee
Justice Kiteley, of our Court, is participating with Justice Ormston, of the Ontario Court, in the Public Information Committee. The goal of this Committee which is comprised of members of the judiciary, the Ministry of the Attorney General, the Bar, educators and other members of the public, is to increase public and media understanding of the operation of the legal system and the role of judges in it. In the long run, the goal is to reach as many citizens of Ontario as possible. However, in the immediate future, the goal is to reach high school and elementary school students in a number of different ways.
To the extent that we can assist in ensuring the public understands the role courts play in a free and democratic society, it will serve to increase public knowledge and therefore confidence in our institutions of justice.
In closing, I am most grateful for the hard work of all the members of the Superior Court of Justice over the past year. The public has been well served by their dedication and unfailing commitment to justice. I am confident that the members of our Court will continue to serve the public with distinction, in the future, as they have done in the past.