2006 Report of the Superior Court of Justice
CHIEF JUSTICE SMITH’S REMARKS
OPENING OF THE COURTS OF ONTARIO
JANUARY 4, 2006
Chief Justices, judicial colleagues, Mr. Attorney, Mr. Treasurer, distinguished representatives, members of the Bar, honoured guests, ladies and gentlemen: it is always a great privilege to speak at the Opening of Courts as the Chief Justice of the Superior Court of Justice.
C’est toujours un grand honneur d’être ici aujourd’hui en tant que juge en chef de la cour supérieure de justice à l’occasion de la cérémonie d’ouverture des cours.
I wish to thank all of the judges of the Superior Court of Justice, the Masters, the Case Management Masters, the Registrars and the Deputy Judges of the Small Claims Court, all of whom have worked very hard in 2005. They are individuals of the highest professional integrity and all of them bring energy and dedication to their public service.
At the Courts opening 2006, I also wish to express on behalf of the entire Court our thanks to the staff of the Office of the Chief Justice and to Court Services’ staff for their continued dedication and service to the administration of justice in Ontario.
Beyond these well-deserved thanks, however, my message this year is both brief and simple. As Chief Justice, I have now come to the view that the Superior Court has an absolute requirement for a significant increase to its overall judicial complement. Without a significant increase in 2006, the Superior Court will be severely handicapped in maintaining access to justice for members of the public.
There are currently five judicial vacancies on the Superior Court – the oldest vacancy has been outstanding for almost one year. Our judges are drawn from an “older demographic group” as judicial appointment usually caps a distinguished legal career. The result is irregular, but constant turnover on this large court. In fact, from January to December 2006, there will be an additional unprecedented 17 supernumerary vacancies created on the Court. Almost two-dozen judicial appointments will, therefore, have to be made during 2006 just to keep our complement at its current strength.
Within the last generation, the role of judges in managing all types of cases has evolved and expanded dramatically. Accommodating these extensive changes with a judicial complement that has not grown presents the most serious challenge in our Court’s history!
The Superior Court of Justice has adopted extraordinary measures in the face of these unprecedented complement challenges. Of late, many judges have forsaken non-sitting weeks to continue to hear Court matters, while working furiously to keep up with their reserve judgments. In addition, judges have also repeatedly delayed or deferred their non-sitting time to preside over cases that have already been waiting years to be tried. But even these selfless efforts will not be enough to sustain the Superior Court for much longer.
Every year at the Opening of the Courts, we celebrate the quality of our justice system in Canada. It is one of our national treasures. Accessible, efficient and timely justice is at risk, however, without a significant increase to the overall judicial complement of the Court.
THE STRAINS ON THE SUPERIOR COURT
In 1990, when predecessor Courts merged to form what is now the Superior Court of Justice, the population of Ontario stood at 9 million residents. Now it stands at 12.7 million residents — an increase of 3.7 million residents in 15 years!
It remains an enormous challenge to serve the public with a judge-to-population ratio that is the highest in Canada and this ratio continues to grow. There was a 40% rise in population during a period when the Court’s judicial complement rose very little. Even this dramatic disparity between population growth and the size of the judicial complement does not begin to reflect the added strain placed on judges.
Only a handful of judges were added in the early 1990’s to our overall judicial complement to address delays in criminal cases following the Askov ruling. Since 1995, all complement additions addressed only the significant expansion of our Family Court jurisdiction. Even these modest additions to the Family Court complement were totally inadequate to deal with the resulting radically increased family law workload.
The increased judicial workload that resulted from Ontario’s population explosion, however, has never been addressed.
One of the main priorities of the Superior Court has been, is and will remain assisting “children at risk” and “families in crisis”. The expanded family law jurisdiction and the new Family Rules require greater judicial resources than ever anticipated. In addition, under the Charter of Rights and Freedoms, judges have had to be concerned about criminal cases proceeding to trial without delay. Both the interests of justice and public confidence require nothing less!
The judges are to be commended for their Herculean efforts in hearing criminal, child protection and family cases in a timely way. However, an immediate consequence of this focus on family and criminal cases has been that judges are not able to hear civil cases with dispatch. For example, in the Toronto Region, long civil cases can now be scheduled only in 2008! In short, the current judicial complement of the Superior Court cannot keep pace with its mounting responsibilities.
This view is shared widely in the legal profession. The President of the Ontario County and District Law Presidents’ Association (which represents all 50 counties in Ontario) recently wrote to the Federal Minister of Justice. The President identified the lack of judicial resources on the Superior Court as requiring the urgent attention of the Federal Government.
I have seen extraordinary efforts from all of our judges. Already the toll on the health of the judges of the Superior Court is all too obvious to me as Chief Justice. All of our judges look to the next Parliament to significantly increase our judicial complement in the face of this mounting and perilous pressure on the Court.
Of late, the judicial appointment process has been under scrutiny. I can only applaud the Minister of Justice for the quality of the recent appointments made to our Court. The Minister has indicated that the only criterion for judicial appointment is merit, while the standard applied is excellence. In fact, and let me be very clear about this: it is the high calibre of our judges, their skill and knowledge of the law that has actually kept us afloat.
Similarly, Mr. Attorney, I commend you for the timely, quality appointments you have made of Case Management Masters, Deputy Registrars in Bankruptcy and Construction Liens and, more recently, of 14 Deputy Judges of the Small Claims Court.
I would also like to publicly express the thanks of the Superior Court of Justice to Deputy Attorney General Murray Segal. His leadership has ensured the unflagging support of the Court Services Division of the Ministry to our Court.
For the last five years, the indomitable Ms Debra Paulseth, now the Honourable Justice Debra Paulseth of the Ontario Court of Justice, led Court Services. I wish her well as she undertakes her new judicial duties on the Ontario Court of Justice.
It was Ms Paulseth who supervised the introduction of one of the most important tools the Ministry of the Attorney General has made available to the Superior Court – the new FRANK technology that permits us statistically to track and quantify the disposition of our cases and to schedule and assign our judicial resources with complete confidence.
THE SUPERIOR COURT’S RESPONSE
What has the Superior Court done to respond to its dramatically increased workload and the sharp growth of Ontario’s population? We have done everything in our power to make the most effective use of our existing judicial resources.
We have adopted best practices in the judicial scheduling and assignment of civil, criminal and family cases. Wherever possible, we have worked to achieve early resolution of all court cases in all areas of the Court’s work as a way of avoiding long and expensive trials.
Best practices have been implemented to manage civil cases across the Province, with special provisions tailored to deal with the voluminous Toronto civil caseload. Guidelines have also been developed to ensure that family law proceedings are resolved whenever possible, before trial. Finally, mandatory standardized pre-trials are being developed to streamline and ensure better trial management of all criminal cases.
While the amount of judge time required to achieve early resolution of cases was severely underestimated, this has nonetheless been judge-time well spent. The early resolution of cases has saved the scheduling and costs of thousands of trial hours.
Our Divisional Court, one of the busiest appellate courts in Canada, now operates on the best practices model for scheduling in appellate courts. Even the Small Claims Court branch of our Court is adopting new Rules to make settlement conferences mandatory in all cases under $10,000. This provides timely access to early resolution of all Small Claims Court proceedings.
Adopting best practices is not all the Court has done. On the advice of the Council of Regional Senior Judges (the advisory Council of this Court), I have delayed or reduced the amount of study leaves available to judges and have restricted the time judges spend in extra-judicial activities in order to maximize their availability to hear cases. As a court, we firmly believe that our first call as judges is to hear cases and to serve the public.
Even with all of these best practices, new Rules, technology, scheduling and assignment initiatives, the Court is buckling under the strain of our mounting responsibilities to the people and families of Ontario.
GETTING THE COMPLEMENT RIGHT
Only the timely filling of vacancies and an appropriate overall increase to our existing judicial complement will permit this Court to fulfill its obligations and to maintain its standards of excellence within the time frames mandated by the Charter as the residents of Ontario have a right to expect.
The Superior Court requires three things to meet this goal:
- the timely filling of vacancies;
- the twelve judges requested in 2004 for Family Court sites; and
- an increase to our overall judicial complement.
First, the timely filling of vacancies by the Minister of Justice is vital. Any delay in filling a vacancy puts additional scheduling pressure on the Court. The Canadian Judicial Council, Chaired by Chief Justice Beverly McLachlin, has recently added its voice to the call for the timely filling of all judicial vacancies.
As mentioned earlier, nearly two-dozen judges will need to be replaced on the Superior Court in 2006. These will fill the 5 current judicial vacancies on our Court and an unprecedented 17 more judges who will be eligible to elect supernumerary status in 2006. Judges advise the Minister of Justice at least six months before they elect, thus affording ample time for the seamless appointment of their replacements.
With so many appointments to be made to the Superior Court in 2006 and with our hoped-for increase to complement, it is imperative that the Judicial Advisory Committees ensure a timely review of all applications. I have recently sought the assurance of the Commissioner for Federal Judicial Affairs that all judicial appointment applications will be processed expeditiously.
Increase to the Family Court
Secondly, we all hope that, when Parliament resumes, the Government will re-table legislation to increase our Family Court by 12 members, as jointly proposed with the Ontario Ministry of the Attorney General. I thank the Federal Minister of Justice for commending our business case with respect to these Family Court appointments and eagerly await Parliamentary approval.
An Increase to Our Overall Judicial Complement
Even the filling of all judicial vacancies in a timely way and an increase of 12 judges to the Family Court complement will prove insufficient to ensure timely access to justice in a Court which has been so stretched by the demands of early judicial intervention. Only a significant increase to our overall judicial complement can ensure the public’s timely access to our Court.
This initiative is supported by my two immediate predecessors, The Honourable Roy McMurtry and The Honourable Pat LeSage. as well as by the Attorney General of Ontario, the Treasurer of the Law Society of Upper Canada and various Bar Associations across the Province.
Every day, members of the Superior Court of Justice are straining to meet the challenge of providing early resolution and timely adjudication of disputes. Their efforts, along with the equally outstanding efforts of our colleagues on the Ontario Court of Justice and the Court of Appeal for Ontario, have distinguished Ontario’s justice system as one of the best in the world. We all take tremendous pride in it. Our justice system is truly a national treasure.
Thank you very much. Merci beaucoup.