Opening of the Courts – 2012

Remarks of Chief Justice Heather Smith

September 12, 2012

Your Honour(s) Lieutenant Governor and Mrs. Onley, Chief Justice Winkler, Chief Justice Bonkalo, Honourable members of the judiciary, Mr. Attorney, Mr. Treasurer and other distinguished representatives, members of the Bar, honoured guests, ladies and gentlemen:

I welcome today’s opportunity – now an annual tradition – to address members of the courts, representatives of government and the public.  I want to provide a brief but definitive outline of our court’s recentpast achievements as well as our current forwardlooking activities and goals.

C’est un grand honneur pour moi d’être ici, dans le but de faire état des nombreux accomplissements de la Cour supérieure au cours de l’année passée, et de présenter la vision de notre Cour pour ses activités de la prochaine année.

In about 6 weeks, our court will issue its third bi-annual report. The theme of our upcoming report is “Mapping the Way Forward” – a theme that reflects the Superior Court’s unshakable positive outlook and approach to the future.  My remarks today are, in part, a précis of that report.  Eternally an optimist, I hope my remarks here will whet your appetite to read the entire report when we post it on our court’s website, on release.

The first significant change to our court in the past year is the membership of our court’s tremendously hard-working executive – our Council of Regional Senior Judges.

This year we paid tribute to Regional Senior Justice Stephen Glithero of the Central South Region as he stepped down from his position as RSJ in April, 2012.  In turn, we warmly welcomed his replacement, Justice James Turnbull, in May.  Next, we were absolutely delighted for Regional Senior Justice Edward Ducharme, of the Southwest Region, on his appointment to the Ontario Court of Appeal in April, 2012.  Then, we gladly welcomed Justice Tom Heeney as his replacement in June.

As our court’s executive maps its own way forward this year, more change awaits.  Associate Chief Justice Cunningham has elected to retire early from the court, and will step down from his position on September 30, 2012.  Last evening, present and past executive members of our court paid tribute to the Associate Chief Justice for his many years of service on the court’s executive.  In early November, 2012, all the judges of our court will have their own opportunity to acknowledge Associate Chief Justice Douglas Cunningham’s dedication to our court over 20 years.

I want to take this timely, public, opportunity to extend my appreciation to Associate Chief Justice Cunningham for his long and very able contribution to the court and to offer our, my own, and the court’s very best wishes to him in all his future endeavours.

Turning, now, to each area of our court’s activities and progress, what a difference a year makes!  Last year at this time, our critical priority was to remedy the desperate shortage of judicial chambers and criminal jury courtrooms in Brampton, Newmarket and Barrie.  Today, I am sanguine in the knowledge that we have practical, fiscally responsible and creative solutions at hand for all three centres.  We deeply appreciate the Ministry’s keen understanding of our dire situation and the Ministry’s very timely action to relieve those pressures.

Moving on to Family matters, we recently marked the 35th Anniversary of the first Unified Family Court pilot project, in Hamilton.  As I indicated at the celebration of that event, the Superior Court’s Family Law Strategic Plan continues to support further Family Court branch expansion where appropriate, feasible and fully resourced.

Family has been the very strong focus of my remarks at each of the Court Openings over the last 3 years.  Our leading priority has been to press for and support the essential level of front-end family services required at every single one of our 50 Superior Court sites.  This past year, through great efforts, genuine collaboration and critical financial backing of the Ontario Attorney General, I am so very pleased to report that, indeed, our shared goal has been realized.

I thank current Attorney General John Gerretsen and his predecessor, the Honourable Chris Bentley, for supporting our goal.  Despite difficult times, you have understood the true urgency to provide these vital front-end services to assist all family law litigants. You have been generous in facilitating our court’s vision, and our court is most grateful.

As we map our way forward in Family matters, the court is already participating in the Ministry’s evaluation process of the new front-end services.  We will work to ensure that, from a judicial perspective, the delivery and “up-take” of these newly available resources are as effective and efficient as possible.

Members of the Bar, Legal Aid Ontario, and many mental health professionals, have also been extraordinarily generous in assisting and sharing our court’s vision to support families.  In particular, the Bar and Legal Aid across the province have stepped-up to play a pivotal role in the new Mandatory Information Programs.  These free Mandatory Information Programs – or MIPS – are two to three hours long, and have delivered essential information to family litigants at the very outset of the court process.  The MIPS ensure that parties can make informed and empowered choices about the course and resolution of their cases.  In the context of the growing number of self-represented litigants, the role of all of the professional volunteers in the MIP initiative has proven invaluable.  I want to acknowledge this tremendous contribution by the Bar and thank its members for their ongoing, significant efforts and support for this MIP initiative.

To advance our court’s vision for properly supported family cases – as we map our way forward – there is a further pressing component to address.  I refer, here, to our “mature” Dispute Resolution Officer program in Toronto – the DRO Program.  This program has operated successfully in Toronto for more than a decade, with a nominal per diem honorarium given to the experienced family law lawyers who participate as DROs.  Our “fledgling” DRO programs in the five new centres in the Central West and Central East regions have been operating, now, for over a year.  In these five locations, the Bar has given its pro bono time, most generously and effectively.  The Bar did so, with the understanding that a “business case” would be made to support the same honorarium for all DROs.

Attorney General Gerretsen, before the end of this year, our court will demonstrate to you the tremendous value the DROs provide to family litigants.  By their genuine skill in facilitating resolutions at an early stage in family motions, the DROs save conflicted families not only the large litigation dollar costs but, also, the more insidious emotional costs.  The DROs are worth their weight in gold!  Yet, they seek only a modest honorarium for the extraordinary service they provide to Ontario families. Our court strongly supports their request and I hope, Mr. Attorney, as we both map our way forward collaboratively, that you and your Ministry will find a way to support it too.

In the year ahead, our highest priority for family cases will be a renewed focus on improving the court processes in Child Protection and high conflict matters.  Our court aims to work innovatively to ensure that every case involving children-at-risk across the province receives the court’s earliest attention.  These children deserve nothing less!

Child protection and high conflict matters are currently fraught with problems that are often referred to as “systemic”.  Frequently, that term is a euphemism for what we believe is “beyond our control”.  One of the most important issues plaguing the early resolution of child protection cases is the insufficient number of experienced and available counsel to handle these challenging cases. This problem is beyond the control of any single partner in the justice system, but it is not beyond the power of all partners together.

As we embark upon this project, we will move beyond a traditional tack.  Our goal is to have a “doable” strategic focus that will boost the profile of this area of practice from law school onward.  I know that similar efforts are already under way in several different quarters.   We hope to join our judicial forces with the Law Society and leaders of the family bar, and to engage with the deans of law schools to advance this initiative.

I like to think this is exactly in line with what Supreme Court of Canada Justice Thomas Cromwell, Chair of the National Action Committee on Family and Civil Justice Matters, has urged us to do.  We think that new law school curricula are needed with new family clinician course credits.  We also believe that we need to explore, with the Law Society of Upper Canada, a new “children’s law” specialization practice category.

Young lawyers require new exposure and experience in the field of child protection law.  We want to foster a fresh interest by law students and young lawyers in pursuing this field.  They will need to be mentored by senior family practitioners, and to feel valued and recognized for their efforts.  If the court can spark this initiative and help drive its success, the greatest reward for us will be knowing that the courts have met the crucial needs of the most vulnerable – children-at-risk.

Turning to criminal matters, the Criminal Rules were amended in various aspects, (incorporating the very recent Bill C-2 complex criminal case management provisions.) Further, the new Rules and forms have been gazetted, just recently, in their entirety.  New tighter timelines to perfect summary conviction appeals are in place.  Additionally, in Toronto, the large volume of summary conviction appeals are now heard on dedicated lists, by experienced criminal judges, on a very regular schedule.  These improvements have already reduced the time to hearing and helped generate timely and comprehensive case law.

As we map our way forward in criminal cases, especially in Toronto, we will continue to press our criminal delay reduction strategy.  Last year, the number of trials not reached was very, very small, when compared to both the preceding year’s results and the large volume of our Court’s criminal trial matters.  While we have achieved success to date, our goal remains to meet every trial date.

In this respect, the judges across our eight regions have been Trojans.  Their incredible work ethic and their dedication to serving our justice system are truly exceptional.

On the civil front, I believe our court has been innovative, wherever possible.  We know the Ministry’s funding challenges for big technology projects for courts administration are very real.  I remain confident that the Ministry will deliver on these priority projects in the future.  In the meantime, our court has taken its own very positive steps and we were pleased to have the Ministry’s collaborative support for these technology initiatives.

This year the Commercial List judges, aided tremendously by the Commercial Bar, led a pilot project that allows parties to deliver electronic versions of all documents to the court — apart from the required hard copies.  The project leaders painstaking set out detailed and formal guidelines for creating acceptable electronic court documents.  The Guidelines were published in the Ontario Reports last week (August 31, 2012) and are also on the court’s website.  In my view, these comprehensive guidelines have just set the “benchmark” for electronic document standards.  I am certain that they will be the standard for a true e-filing system for all court documents, in the future.

The Divisional Court branch of the Superior Court will also benefit from the Guidelines.  Parties have been required to file an electronic version of certain Divisional Court documents for some time.  A proposed, imminent, new Practice Direction for Divisional Court will also encourage parties to file electronic versions of all other Divisional Court documents.

As we map our way forward in civil matters, our Small Claims Court will continue to be ably served by over 400 committed members of the bar.  These Deputy Judges will continue to provide an affordable, accessible and timely forum for over 40% of all civil proceedings in the province.  Here too, we appreciate the tremendous contribution of the Bar.

On a different note in civil matters, I am very keen to address the escalating “long motions culture”.  This culture is bogging down the timely disposition of civil proceedings!  Our court will be examining different ways to moderate this problem.

Of course, we can only “map the way forward” confidently and successfully if we have the continued – and even enhanced – collaborative support of the Ministry and all other justice partners.  “Support” is not always synonymous only with “dollars”.  The progress I am reporting today is the clearest evidence of this proposition.

I invite everyone who is committed to improving court processes and helping us deliver more accessible, affordable, and timely service to the public, to join us on the Superior Court’s very strategic journey, as we map our forward.

Je vous remercie de cette occasion de partager mes pensées avec vous, aujourd’hui.