Opening of the Courts – 2019

Remarks of Associate Chief Justice Frank Marrocco
Superior Court of Justice
Opening of the Courts
Toronto, September 10, 2019

Greetings: Your Honour, Chief Justice Strathy, Minister of Justice and Attorney General for Canada, Attorney General for Ontario, Chief Justice Morawetz, Associate Chief Justice Hoy, Chief Justice Maisonneuve, Chief Justice Noël, Chief Justice Crampton, Chief Justice Duval-Hessler, Chief Justice Fournier, Chief Justice Rondeau, Treasurer, Members of the Bar, Distinguished guests

On this occasion, we come together to recognize and reflect on our shared commitment to maintain and improve the administration of justice for the people who live in Ontario.

In the over 50 locations in this Province where there is a Superior Court, there are dedicated people who share our mission; dedicated people without whom we would fail to live up to our responsibilities.

I speak not only for myself, but for Chief Justice Morawetz and all the judiciary of our Court, when I say that we value each one of you. The administration of justice is often referred to in the abstract, and this is a mistake. It is very personal. It is on many occasions, quite literally, those across this province who daily carry out the jobs necessary to make the system work properly and safely.

Vous êtes une partie indispensable de notre système judiciaire. You are an important part of our judicial system.

You uphold our legal system. The judiciary of our Court know how important you are, and on their behalf may I say we acknowledge your contribution. Our system is antiquated and paper-based, and without all of you we would be quite quickly overwhelmed.
In the brief time I have I wish to do three things: acknowledge the retirement of our former Chief Justice, although I can’t do justice to her legacy in the time I have for these remarks; look back for a moment at the last year; and, finally, talk about the future.

Former Chief Justice Heather Smith served as Chief Justice of this Court for 17 years. She was appointed a judge at the age of 36, so she spent one half of her life in the service of the Superior Court and its predecessors. She cared very deeply about the Superior Court; she supported our judiciary without compromise, and she made many positive reforms to the Court’s administration and process. Our former Chief Justice had a particular interest in family law and brought about, with the assistance of Senior Family Judge George Czutrin, a significant Unified Family Court expansion as you all know.

Elle a aussi pris des démarches importantes pour avancer les services en français. She also took important steps to advance French language services.

The Superior Court of Justice in the last 12 months was the busiest Superior Court in Canada. For example, there were more than 73,000 new civil proceedings started in the Superior Court and an additional 60,000 proceedings begun in the Small Claims Court. In our Court, there were slightly less than 47,000 family law proceedings commenced, and 3,209 criminal proceedings were begun. 1,358 proceedings were commenced in the Divisional Court.

I previously referenced the expansion of the Unified Family Court in Ontario. I would like to thank the Minister of Justice for Canada and the Attorney General of Ontario, both the present ministers and their predecessors, for expanding the Unified Family Court in Ontario.

There were just over 63,000 new family law proceedings commenced across both Ontario trial courts in 2018. For those families who are in Regions where there is a Unified Family Court, it means a simpler system to navigate and for their children it means a more expeditious resolution of the uncertainties introduced into their lives by the breakup of their families.

It is a reform which genuinely enhances access to justice.

On behalf of Chief Justice Morawetz, myself, Senior Family Judge Czutrin and all the judiciary of our Court, thank you for this significant reform.

Unfortunately, a lack of appropriate facilities prevented the expansion of the Unified Family Court this year to locations, including Toronto and Brampton, but nevertheless we appreciate and thank you for the commitment to complete the Unified Family Court expansion in Ontario by 2025.

On behalf of the judiciary of the Superior Court, I want to thank the Attorney General of Ontario, and his predecessor Minister Caroline Mulroney, for expanding the number of civil cases which can be tried under Simplified Procedure. This reform will allow us to either try or resolve significantly more cases in a simplified, and therefore less expensive, manner. This initiative is one part of the Court’s overall attempt to simplify its procedures so that they can be cheaper to use.

Like so many of our initiatives, we cannot do it without the consent and support of the Attorney General which fortunately we had and for which we thank you.

What about the future? This is a somewhat more difficult topic.

Nous avons besoin d’une nouvelle entente: C’est imperatif de moderniser. Quite simply, we need a new arrangement because we need to modernize.

It is true that we keep doing things differently to try to cope with the ever-increasing complexity and significant volume of proceedings, but there is a limit to how effective that can be.

There are opportunities to increase the availability and ease with which you can file materials electronically, appear remotely and record the events which daily take place in our Courts. But, to take advantage of those opportunities, there must be a modest, prudently managed investment in technology. Over the years that investment has proven elusive, even though the benefits are accepted without question.

I think the best way to conceptualize the present situation is to imagine what would happen if some of the great barristers of the past walked through that courtroom entrance ready to try one more case. They would feel right at home because, in fact, nothing has changed. They would find a paper-based system much like the one they were used to. The proceeding would look the same as the one they remembered. They would easily take advantage of the opportunity to display their knowledge and eloquence one last time.

Unfortunately, there is no comfort in this nostalgia.

Cela devient de plus en plus difficile de décharger notre responsabilité de rendre justice à la population de l’Ontario en raison de notre incapacité à nous moderniser à un rythme acceptable. Nous avons besoin d’un nouvel accord.

We are not playing baseball on a cornfield in Iowa. We are not playing a part in an iconic movie. We are attempting to discharge our responsibility to bring justice to the people of Ontario, and this is becoming increasingly difficult due to our failure to modernize at an acceptable pace.

That is why we need a new deal.

Government needs to recognize, I respectfully suggest, the importance of pro bono legal services and cooperate where possible with pro bono initiatives. Pro bono services are not a competitive encroachment or a well-meaning but annoying interference. Nor, I might add, are they an all-encompassing solution. Rather, they are a reality which has emerged from the tension between the financial constraints under which we function and the legal needs of the people of Ontario.

The most current expression of that tension is the recent significant reduction in legal aid funding.

A needs analysis was undertaken by the Law Society, Legal Aid Ontario and Pro Bono Law Ontario. Even though it was done a few years ago, it provides a useful starting point for an expansion of pro bono services.

The profession, I respectfully suggest, needs to recognize its responsibility to encourage an orderly expansion of pro bono services to fulfil the social contract, entered into in 1797, when Chief Justice William Osgoode and Governor John Graves Simcoe decided that the legal profession should be self-governing. They came to this decision because they concluded that a self-governing legal profession was the best way to make legal services available to the people who lived in Upper Canada.

The bargain is captured in legislation from 1797 which created a self-governing profession “for the purpose of securing to the province …a learned and honourable body to assist their fellow subjects as occasion may require…” That bargain is currently reflected in section 4.2 of the Law Society Act which makes facilitation of “access to justice for people of Ontario” an animating ethic of the legal profession.

I do not suggest or imply that the Law Society alone can expand Pro bono services or that it has the sole responsibility for that expansion. The profession, to which I refer, includes the volunteer legal organizations, virtually all of whom are here today.

Finally, our Court must insist upon a reform of our relationship with the executive branch which results in the Court achieving more control over the resources which the government chooses to make available to us.

We need to determine our own priorities so that we can be accountable for our priorities.

We cannot modernize without an adequate investment in technology. We must determine and defend how high a priority that is, and we must thereby become accountable for the creation and implementation of that reform.

We can no longer be on the receiving end of a briefing which tells us, “Not this year, maybe next.”

On a personal level, I regret that the Court will have to become more engaged with this type of problem. However, we are a separate but equal branch of government. We are not a department within a Ministry, and we must insist upon assuming the responsibilities that accompany that constitutional principle.

Enfin, permettez-moi de dire, au nom du juge en chef Morawetz, de moi-même et de tous les juges de notre cour, que nous avons le privilège de pouvoir servir l’administration de la justice et la population de l’Ontario, et que nous ferons notre possible pour sauvegarder la responsabilité qui accompagne ce privilège.

Finally, let me say on behalf of Chief Justice Morawetz, myself, and every member of our Court’s judiciary, that it is a privilege for us to serve the administration of justice and the people of Ontario. We will do our best to live up to the responsibility that accompanies this privilege.