ISSN 1925-7511 = Annual Report (Ontario. Court of Appeal. Online)
Table of Contents
Message from Chief Justice Warren K. Winkler3
Message from Associate Chief Justice Alexandra Hoy 5
Court Photo 6
Judges of the Court of Appeal 7
New Judicial Appointments 7 Chief Justice Warren K. Winkler Retires 9 In Memoriam ~ Justice Edward W. Ducharme 9 Dates of Appointment of Judges of the Court of Appeal for Ontario 10
2013 The Year in Review 13
Work of the Court 14 History of the Court of Appeal for Ontario 15 Information Technology 15 Working with the Media 15 Judicial Outreach Visit – Ottawa, Ontario 16 Law Clerk Programme 18 Support to Litigants, the Legal Profession and the Public
Duty Counsel and Amicus Curiae Family Law Initiatives Criminal Appeal Reform Inmate Appeals Administrative Improvements Improved Court Technology Court Accessibility 20
Opening of the Courts Celebrations
Joint Sitting of the Courts of Ontario The Catzman Award Special Divine Interfaith Service and Musical Celebration Law Society Reception at Convocation Hall 22
The Year Ahead 24
Statistical Information 25
Nature of Cases Received in the Court of Appeal 26 Motions in the Court of Appeal 27 Case Flow 28 Time to Perfection and Hearing 29 Disposition of Appeals 30 Self-Represented Litigants 31 Ontario Review Board Appeals 31 Statistical Data 32
PHOTO: Chief Justice Warren K. Winkler
By the time you read this message, I will have retired from the Bench. After having served as Chief Justice of Ontario for over six years and as a member of the judiciary for more than twenty years, I will have reached the age of mandatory retirement in December of 2013. Therefore, this is the last time I will have an opportunity to introduce the Annual Report for the Court of Appeal for Ontario, and I do so with a sense of mixed emotion.
The Court began publishing Annual Reports five years ago. Each year I have taken great pride in sharing the many and varied achievements of the Court with the public. As we become more mindful of the need for openness, transparency and accountability of our institutions, public reporting attains greater importance.
The Annual Report is but one example of the many efforts we have made in recent years to increase public awareness of the Court’s activities. In addition to the Annual Report, we have: expanded the annual Opening of Courts Ceremony; provided amicus and pro bono legal assistance programmes for unrepresented litigants; begun an outreach programme to law schools throughout the province in conjunction with our annual regional outreach visits; entered into a Memorandum of Understanding with the government of Ontario relating to court administration; and commissioned the publication of a book on the history of the Court of Appeal.
Each of these initiatives is aimed at making the work of the Court and the functioning of our justice system more readily understandable to the members of the public and in this way enhancing access to justice.
As I leave the Court of Appeal, I do so with confidence that this venerable institution is in very capable hands. In recent years our Court has gone through an unprecedented period of change. During my tenure as Chief Justice, thirteen judges have been appointed to the Court of Appeal, with ten of them in just the past two years. This is a product of demography. But more importantly, change is the way that institutions rejuvenate and renew themselves. I leave with an appreciation that the new members of the Court bring great individual strengths that I am certain will continue to add to the lustre of this great institution.
I would like to take this opportunity to express my appreciation to the many individuals who have assisted me in recent years.
First, to my colleagues on the Court of Appeal, I thank you for your wise guidance and kind support. Some members of the public might not always appreciate the dedication that the judges of the Court bring to each appeal which comes before them. None of my colleagues ever lose sight of the fact that every case involves the fate of real people, and that it is profoundly important that each decision arrives at a just conclusion in accordance with the law. The judges of this court are the most brilliant, dedicated, and caring group of individuals that I have worked with. I will cherish their friendship always.
I would be remiss if I did not give special mention to the loyal and devoted staff of the Court, and specifically to their leaders Huguette Thomson and John Kromkamp. The skilled staff of the Court of Appeal works tirelessly in support of the administration of justice. They exemplify the best qualities of public service.
I must extend special thanks to two people who worked with me on a daily basis. First, to my valued assistant Michelle Rowntree for her loyal and steadfast support over the past 10 years: Thank you, Michelle. You have eased the load immensely. Next, I express my gratitude to Jacob Bakan, my Special Counsel, for his dedication and wise advice which was invaluable. Amongst much hard work, the three of us shared the notion that a day without a good laugh is a wasted day. Thank you both from the bottom of my heart.
I would also like to thank the members of the legal profession — with whom I share a strong bond and have an immense fondness — for their unstinting support. I admire and respect their commitment to the public in general, and to their clients in particular. They serve as an indelible exemplar to every free and democratic society and provide an unquestionable justification for an independent and self-regulating Bar that is beyond reproach.
Most of all, I want to express my deepest gratitude to my family. They have always been my greatest comfort and joy and the wellspring of my strength. They have given me the freedom to follow my passion in the law. Without my family I could not have fulfilled my professional dreams and obligations. Let me express a very special thank you to my wife Ruth for her patience, support and guidance, and above all her unfailing love.
Now as I bid a fond farewell to my Court of Appeal family, I do so with bittersweet emotions. I can honestly say that these last six years have been the best years of my life. It has been an honour and a privilege to have been a member of this Court. As 2014 approaches, I shall look forward to the future, but I will cling forever to the friendship and wise counsel of my colleagues and friends at the Court of Appeal.
The Honourable Warren K. Winkler Chief Justice of Ontario (June 2007 – December 2013)
PHOTO: Associate Chief Justice Alexandra Hoy
I am very honoured to have been appointed Associate Chief Justice of Ontario, to fill the vacancy resulting from the retirement of The Honourable Dennis O’Connor. Dennis O’Connor served this Court, and the administration of justice in Ontario, with the utmost distinction. He was an exceptional leader — both respected and adored by all members of the Court and its staff. He had the unique ability to approach a judge to undertake some additional responsibility and leave the judge’s office with the responsibility assumed and the judge happy — if only for having been able to say “yes” to Dennis O’Connor!
By the time this Annual Report is released, Chief Justice Winkler will also have retired. I am particularly privileged and delighted to have begun my tenure as Associate Chief Justice of Ontario under him. He is a great Canadian. In addition to reaching out to every region in the province, the Chief Justice has made significant contributions on the national stage as a Vice-Chair of the Canadian Judicial Council, and by initiating a closer relationship with the Québec Court of Appeal. As I have assumed the responsibilities of this new role, he has been generous with his advice and guidance, which is always sound and dispensed with a dose of humour. I am very grateful to him. He will be greatly missed.
Pending my appointment, Justice Stephen Goudge ably performed the administrative duties of the Associate Chief Justice, while maintaining a full sitting schedule. I now fully appreciate how hard he was working during that period. I speak for all of my colleagues in thanking him, and would like to express my particular gratitude to him for the assistance he has given to me as I transitioned into this position. The transition in becoming Associate Chief Justice for Ontario has been aided by the exceptional support I have received from the lawyers, administrative staff and law clerks at the Court of Appeal. Their efforts are essential to maintaining the very high standards for which this Court is known.
In his message in last year’s Annual Report, The Honourable Dennis O’Connor described the culture of this Court as one that expects judges to thoroughly prepare before hearing appeals, to listen carefully and be sure to understand oral arguments, and to work supportively and collegially in deciding cases and rendering judgments. He also described the judges as fully engaged in the work of the Court, and fully appreciating the important role that they play in our system of justice. I echo these sentiments.
My colleagues are exceptional. I have been heartened by their support. Together, we will ensure the continued culture of excellence, commitment and collegiality that define this institution that is so important to all of us.
The Honourable Alexandra Hoy Associate Chief Justice of Ontario
Caption: Judges of the Court of Appeal for Ontario – December 2013. Missing from the photo: Doherty J.A.; MacFarland J.A.
At the close of 2013 the Court of Appeal for Ontario had twenty-one full-time judges and six supernumerary judges. Chief Justice Warren Winkler retired from the Court at the end of 2013, and it is anticipated that a new Chief Justice of Ontario will be appointed early in 2014. The appointment of a new Chief Justice will return the Court to its full complement of twenty-two full-time judges.
In addition to Chief Justice Winkler’s retirement, there were several other significant changes to the Court’s composition. The Honourable Alexandra Hoy was appointed Associate Chief Justice of Ontario, replacing The Honourable Dennis O’Connor who retired at the end of 2012. Justice Robert Armstrong and Justice Susan Lang both retired after long and distinguished judicial careers. Justices Robert Sharpe, Robert Blair and Russell Juriansz all elected supernumerary status. Tragically, the Court also suffered a significant loss in June of 2013 when Justice Edward Ducharme passed away, after having only served 14 months on the Court of Appeal.
These changes created several judicial vacancies, resulting in the appointment of five new puisne judges to the Court of Appeal.
The Honourable Alexandra Hoy was appointed Associate Chief Justice of Ontario on June 6, 2013. Her appointment filled a vacancy that was created when The Honourable Dennis R. O’Connor retired from the Court as Associate Chief Justice on December 31, 2012.
Associate Chief Justice Hoy has served as a judge of the Court of Appeal since December 1, 2011. Prior to her appointment to the Court of Appeal, she had been a judge of the Superior Court of Justice in the Toronto Region since 2002. From 2006 to 2007 she was one of three judges assigned to hear class actions in Toronto. Before being appointed as a Superior Court judge, she was a partner at Lang Michener LLP (now McMillan LLP) in Toronto and practiced corporate and commercial law.
Justice Hoy graduated from Osgoode Hall Law School in 1978 and was called to the Bar in 1980. She has a B.A.(Hons.) in Fine Arts from York University.
Justice George Strathy was appointed a judge of the Court of Appeal on April 25, 2013, to fill the vacancy created when Justice Russell Juriansz elected supernumerary status commencing March 31, 2013.
Before being appointed to the Court of Appeal, Justice Strathy had been a judge of the Superior Court of Justice in the Toronto Region since 2007, where he heard civil and criminal matters. For three years he was one of three judges assigned to hear class actions in Toronto.
Prior to being appointed to the Superior Court, he practiced litigation and transportation law at several prominent firms, establishing his own law firm in 1991.
Justice Strathy was called to the Bar of Ontario in 1976, having received his LL.B. from the University of Toronto in 1974, where he graduated as the Gold Medalist. He has an M.A. in International Politics from the University of Toronto.
He has taught Maritime Law at the Faculty of Law at the University of Toronto and is the author of two books on marine insurance.
Justice Katherine van Rensburg was appointed to the Court of Appeal on October 1, 2013, to fill the vacancy created when Justice Edward Ducharme passed away on June 2, 2013.
Justice van Rensburg had been a judge of the Superior Court of Justice in the Central West Region since 2006, where she presided over cases in all areas of the Superior Court’s work. Since 2010 she had been the Local Administrative Judge for Brampton. Prior to being appointed a judge of the Superior Court of Justice, Justice van Rensburg was a partner at Gowling Lafleur Henderson LLP, where she practiced litigation. She was certified by the Law Society of Upper Canada as a specialist in Civil Litigation and Environmental Law, being the first lawyer to hold this dual designation.
Justice van Rensburg was called to the Bar of Ontario in 1983, having received her LL.B. from Queen’s University and clerked with the Supreme Court of Canada. She has a B.A. in English and French Literature from the University of Toronto and an LL.M. from Cambridge University.
Justice William Hourigan was appointed to the Court of Appeal on October 1, 2013, to fill a vacancy that was created when Justice Alexandra Hoy was elevated to Associate Chief Justice of Ontario.
Justice Hourigan had been a judge of the Superior Court of Justice in the Central West Region since 2009 where he presided over cases in all areas of the Superior Court’s work.
Prior to being appointed a judge of the Superior Court of Justice, Justice Hourigan was a partner at Fasken Martineau LLP where he practiced commercial litigation and was Chair of the firm’s litigation department and a member of its management board.
He served as Chief of Staff to the Attorney General of Ontario from 1999 to 2000 and Counsel to the Premier of Ontario from 2000 to 2001.
Justice Hourigan was called to the Bar of Ontario in 1992, having received his LL.B. from Osgoode Hall Law School in 1990. He has a B.A. in Political Science from McGill University.
Justice Gladys Pardu was appointed to the Court of Appeal on November 7, 2013, to fill a vacancy that was created when Justice Robert Sharpe elected supernumerary status commencing June 30, 2013.
Justice Pardu had been a judge of the Superior Court of Justice since 1991, sitting in the Northeast Region until five years ago when she was transferred to Toronto. Since moving to Toronto, she primarily heard long criminal trials and sat in the Divisional Court.
Prior to being appointed a judge of the Superior Court of Justice, Justice Pardu was a founding and senior partner at Pardu MacDonald, where she was a litigator practicing mostly family and criminal law.
Justice Pardu was called to the Bar of Ontario in 1977, after having received her LL.B. from the University of Toronto in 1975. She has a B.Sc. in Mathematics from Brock University.
Justice Mary Lou Benotto was appointed to the Court of Appeal on November 7, 2013, to fill a vacancy that was created when Justice Robert Blair elected supernumerary status effective July 1, 2013.
Justice Benotto had been a judge of the Superior Court of Justice in the Toronto Region since 1996. She was the Senior Judge of the Family Court for the Province of Ontario from 2001 until 2005. Since 2005 she had been assigned to hear long criminal trials.
Prior to being appointed a judge of the Superior Court of Justice, Justice Benotto was a partner at Chappel, Bushell and Stewart where she practiced civil litigation.
Justice Benotto was called to the Bar of Ontario in 1978, after receiving her LL.B. from McGill University in 1976. She also has a B.A. in English from McGill University. Justice Benotto is the co-author of several books on family law.
Chief Justice Warren K. Winkler retired from the Bench on December 10, 2013, after having been Chief Justice for over six years and after having served as a judge for over 20 years. He was appointed Chief Justice of Ontario in June 2007, following 14 years as a judge of the Superior Court of Justice where he served as the Regional Senior Justice for Toronto for three years.
He had a long and distinguished career that has spanned over a half-century.
After receiving an LL.B. and LL.M. from Osgoode Hall Law School, he was called to the Bar of Ontario in 1965. He became a specialist in labour law and was appointed Queen’s Counsel in 1977. He went on to become a founding partner of Winkler, Filion and Wakely, a boutique labour law firm in Toronto.
Chief Justice Winkler received notoriety as a judicial mediator, having mediated many complex multi-party disputes including the class action settlement in the Walkerton Water Tragedy and the Restructuring of Air Canada.
He is recognized as a leading Canadian authority on class actions, having written many seminal trial and appellate judgments in this area. He supervised the administration of many of Canada’s largest pan-Canadian class action settlements, such as those involving Indian Residential Schools and the tainted Canadian blood supply infecting victims with Hepatitis C.
At the Court of Appeal Chief Justice Winkler was instrumental in initiating many projects aimed at increasing public awareness of the Court, its members and its activities. Shortly after becoming Chief Justice he toured the province, meeting with local Bar associations in most regions of Ontario. He was untiring in his efforts to promote access to justice and law reform.
Under his leadership, the Court initiated the publication of Annual Reports, entered into its first Memorandum of Understanding with the Province of Ontario, held its first joint meetings with the Québec Court of Appeal, began visiting law schools as part of its annual Outreach Programme, enhanced Ontario’s annual Opening of Courts Ceremony, and initiated a weekly pro bono service for self-represented litigants at the Court of Appeal.
Chief Justice Winkler was recognized for his judicial leadership across Canada, and in 2012, The Right Honourable Beverley McLachlin, Chief Justice of Canada, appointed him Vice-Chair of the Canadian Judicial Council.
Upon retirement, The Honourable Warren K. Winkler became a Distinguished Visiting Professor and Honorary Chair of the Winkler Institute for Dispute Resolution, established in his name at Osgoode Hall Law School in recognition of his contribution in the area of dispute resolution.
The Court wishes him a long and healthy retirement.
The Court of Appeal suffered a tragic loss when the late Honourable Justice Edward Ducharme passed away on June 2, 2013.
Justice Ducharme was appointed to the Court of Appeal on April 5, 2012, after having been a judge of the Superior Court of Justice since 2002 and the Regional Senior Justice for the Southwest Region of the Superior Court of Justice since 2009.
Before turning to the practice of law, Justice Ducharme was an English Professor at the University of Windsor, where he also served as the Chair of the English Department, Assistant Dean, and Assistant Vice-President. Later he went on to practice litigation and become a Bencher with the Law Society of Upper Canada. On June 24, 2013, the Law Society of Upper Canada posthumously awarded Justice Ducharme an Honorary Doctorate of Laws.
He will be remembered as a brilliant jurist, lawyer and teacher, whose decency brought out the best in people. He will also be remembered for his profound devotion to his family, friends, and to the administration of justice.
The Honourable Warren K. Winkler (C.J.O.)
The Honourable Alexandra H. Hoy (A.C.J.O.)
The Honourable David H. Doherty
The Honourable Karen M. Weiler*
The Honourable John I. Laskin
The Honourable Marc Rosenberg
The Honourable Stephen T. Goudge
The Honourable Kathryn N. Feldman
The Honourable James C. MacPherson
The Honourable Robert J. Sharpe*
The Honourable Janet M. Simmons
The Honourable Eleanore A. Cronk
The Honourable Eileen E. Gillese
The Honourable Robert A. Blair*
The Honourable Russell G. Juriansz*
The Honourable Jean L. MacFarland*
The Honourable Harry S. LaForme*
The Honourable Paul S. Rouleau
The Honourable David Watt
The Honourable Gloria J. Epstein
The Honourable Sarah E. Pepall
The Honourable Michael H. Tulloch
The Honourable Peter D. Lauwers
The Honourable George R. Strathy
The Honourable Katherine M. van Rensburg
The Honourable C. William Hourigan
The Honourable Gladys I. Pardu
The Honourable Mary Lou Benotto
*Supernumerary
The Court of Appeal is Ontario’s highest court. It hears civil, criminal and family law appeals from the Ontario Court of Justice and the Superior Court of Justice. It also hears a small but significant number of appeals from the Ontario Review Board.
Less than 3 percent of the Court’s cases are appealed to the Supreme Court of Canada. In almost all cases, leave is required from the Supreme Court of Canada before it will hear an appeal from a provincial appellate court. This means that for practical purposes the Court of Appeal for Ontario is usually the final court of appeal for Ontario litigants.
The Court, which is located in Toronto’s historic Osgoode Hall building, is Canada’s busiest appellate Court. As the appeal court for the country’s most populace province, it adjudicates approximately one-third of the total number of cases heard by all of Canada’s provincial appeal courts combined.
The overall volume of cases received by the Court of Appeal for Ontario in 2013 was relatively consistent with recent years. The Court continued to hear its cases and release its judgments in a timely manner. Most appeals were heard within five months of perfection. In 2013, the Court of Appeal reserved judgment on more than half of its appeals. The Court continued to release almost all of these reserve judgments within a targeted six-month time frame.
In addition to their case-related workload, the judges of the Court participate in a variety of committees and organizations including: the Canadian Judicial Council, the Federal Judicial Advisory Committee, the National Judicial Institute, the Canadian Superior Courts Judges Association, the French Language Services Bench and Bar Steering Committee, the International Association of Judges, the Ontario Courts Accessibility Committee, the Chief Justice of Ontario’s Advisory Committee on Professionalism, the Chief Justices’ Information and Technology Committee, the Criminal Appeals Committee, the Civil Rules Committee, and the Family Rules Committee. They also sit on many internal administrative and policy committees of the Court of Appeal, including its Accessibility, Crown Wardship Appeals, Media, Education, Security, Facilities, Library and Law Clerk Committees.
Judges of the Court of Appeal are also often asked to lead committees and panels addressing areas of pressing public concern. For example, this past year Justice Stephen Goudge chaired a 14 member international expert panel on the Medical and Physiological Impacts of Conducted Energy Weapons, commonly referred to as “tasers”. The Committee was jointly funded by the Council of Canadian Academies and the Canadian Academy of Health Sciences. Under Justice Goudge’s leadership, the multidisciplinary panel released its report entitled “The Health Effects of Conducted Energy Weapons” in October. The Report reviewed existing research and made important findings on the health effects of these devices. It also identified areas of need for future research and recommended a standardized approach to reporting adverse effects and improved monitoring practices.
The judges of the Court of Appeal are active in judicial and legal education across Canada and throughout the world. They frequently publish and present scholarly works, give lectures and lead seminars at law schools and professional conferences.
Judges and staff lawyers at the Court of Appeal have in recent years contributed to legal education sessions for lawyers and judges from various countries including Australia, Bangladesh, Botswana, Brazil, Chile, China, Costa Rica, England, Ethiopia, France, Ghana, Jamaica, Japan, Kenya, the Netherlands, Nigeria, Scotland, Tanzania, Uganda, Ukraine, the United Arab Emirates and Vietnam.
Christopher Moore, a renowned Canadian author and legal historian, is in the final stages of completing a manuscript for a forthcoming book on the history of the Court of Appeal.
Mr. Moore has previously written histories of the British Columbia Court of Appeal, the Law Society of Upper Canada and the McCarthy Tétrault law firm.
The book will trace the history of Ontario’s appellate Court from its origin as the Court of Error and Appeal in 1849 to its modern form as today’s Court of Appeal for Ontario. The work, funded by a grant from the Law Foundation of Ontario to the Osgoode Society for Canadian Legal History, is scheduled to be published by the Osgoode Society and University of Toronto Press in 2014. The book will undoubtedly make an important contribution to Canadian legal history.
Members of the Court of Appeal, together with judges from the Superior Court of Justice and the Ontario Court of Justice, lead an independent information technology organization called the Judicial Information Technology Office (JITO). The organization is responsible for ensuring the security and confidentiality of all judicial information in the province. Each year, enhancements are implemented to safeguard the integrity of judicial information and to enhance the ability of the judiciary and court staff to retrieve court information.
The Court of Appeal has a website at www.ontariocourts.ca/coa/en which is maintained by the Ontario courts’ Judicial Library Services. This year the website was enhanced by adding new user-friendly information about Court of Appeal procedures and by adding direct links to required forms.
Recognizing the important role that the media plays in ensuring an open and transparent justice system, the Court of Appeal’s Media Committee continues to maintain a dialogue with representatives of the media on ways to improve media access to court information.
The Court has continued to operate an online subscription service (RSS feed) to notify the media about matters of specific interest to them, such as publication bans, in camera notices and media lockups. The Court continues to use media lockups for high profile cases, allowing members of the media to gain advance access to court decisions with high levels of public interest.
The Ministry of the Attorney General has formed a working group to clarify policies and procedures for providing access to court documents. The working group, which includes staff members from the Court of Appeal and Ontario’s two trial courts, is aiming to improve the efficiency and consistency with which Ontario’s courts are able to respond to document requests from the media and other members of the public.
Each year, the judges of the Court of Appeal visit a different judicial region of the province as part of its ongoing outreach activities. This year the judges visited Ottawa in the East Region.
Over the course of a two-day visit, judges of the Court of Appeal held a series of meetings with judges, lawyers, law faculty and law students.
The visit to Ottawa began with a meeting between the judges of the Court of Appeal for Ontario and the Federal Court of Appeal. This was the first time the judges of these two appellate courts have met as a group. Although the two courts have separate and distinct areas of jurisdiction, they often deal with similar legal issues. Judges discussed issues relating to constitutional and administrative law, as well as other areas of common concern and interest.
The judges of the Court of Appeal had a very productive meeting with judges from the Superior Court of Justice and the Ontario Court of Justice in the East Region. Over 30 judges from the two trial courts attended a round-table discussion. Associate Chief Justice Hoy chaired a frank and open discussion about the appellate review of trial decisions. The meeting provided the judges from the three courts an opportunity to share observations and comments on how they can collectively best meet their mandate to provide access to justice for Ontarians.
The County of Carleton Law Association hosted a meeting and dinner with the local Bar and the judges of the Court of Appeal. Approximately 110 lawyers attended the event, which included small round-table discussions followed by a reception and a dinner. The event provided an important opportunity for the judges to become more acquainted with the local Bar and to discuss issues of specific concern to the local legal community.
The outreach programme included an inspiring visit to the Common Law Section of the University of Ottawa’s Faculty of Law. Although the Court’s judges frequently visit and teach seminars at several Ontario law schools, this was only the second occasion that judges of the Court of Appeal have incorporated a law school visit as part of an outreach programme. The first law school visit was in 2011 when the Court’s judges went to the University of Windsor’s Faculty of Law.
Faculty and students at Ottawa’s law school demonstrated their warmth and hospitality as they greeted the judges of the Court. University President and Vice-Chancellor Allan Rock and Dean Nathalie Des Rosiers welcomed the Court’s judges at a student assembly which was followed by a series of smaller seminars. French and English seminar groups covered many topics including: class actions, clerkship, written and oral advocacy, access to justice, and recent constitutional, civil and criminal cases from the Court of Appeal.
PHOTO [PAGE 16]
Caption: Judges of the Court of Appeal and Members of the Common Law Section of the Faculty of Law at the University of Ottawa.
A highlight of the visit was a special sitting of the Court of Appeal to open the Ian G. Scott Courtroom at the University of Ottawa campus. The courtroom, named in honour of former Attorney General Ian Scott, is uniquely designed to allow law students to observe and discuss actual court proceedings, while the court is in session, from an adjoining classroom which is separated by one-way glass.
A panel of five judges from the Court of Appeal held a ceremonial sitting of the Court in the new courtroom. Chief Justice Winkler chaired the panel and delivered remarks in which he celebrated the opening of the courtroom and paid tribute to the life and legacy of Ian Scott. Remarks were also delivered by Justice Yves de Montigny of the Federal Court of Canada, Regional Senior Justice Charles Hackland of the Superior Court of Justice, Assistant Deputy Attorney General Lynne Wagner, Mr. David Scott, Q.C. (Ian Scott’s brother) and Professor Bruce Feldthusen of the University of Ottawa. At the end of the ceremony, Chief Justice Winkler declared the courtroom open, as students watching the proceeding broke into spontaneous applause.
PHOTOS [PAGE 17]
Photo 1: Caption: Chief Justice Winkler, Associate Chief Justice Hoy and Justices Goudge, Feldman and Rouleau open the Ian G. Scott Courtroom.
Photo 3: Caption: Judges of the Court of Appeal at the Opening of the Ian G. Scott Courtroom.
PHOTO Fold-Out Page
Group Photo: Title: Court of Appeal for Ontario Visits University of Ottawa
Photo 1: Caption: Chief Justice Warren K. Winkler
Photo 2: Caption: University President & Vice-Chancellor Allan Rock
Photo 3: Caption Dean Nathalie Des Rosiers
There are 17 law clerks in the Law Clerk Programme at the Court of Appeal. The clerks are either recent law school graduates fulfilling their articling requirements or lawyers who have recently been called to the Bar. The Law Clerk Programme is overseen by the Court’s Law Clerk Committee, consisting of Justices Laskin, Feldman, Gillese, Blair and Pepall, and Helena Likwornik, a staff lawyer at the Court. The law clerks provide invaluable research assistance to the judges of the Court of Appeal and gain unique insight into how appellate cases are argued and decided.
Law clerks go on to work in government, academia and at leading law firms in Canada and abroad. Several alumni of the programme presently serve on the bench, including Justice Feldman of the Court of Appeal for Ontario and Justice Andromache Karakatsanis of the Supreme Court of Canada.
The law clerks work on a wide variety of cases, including constitutional, criminal, civil, commercial, family and administrative law matters. They brief the judges on upcoming appeals, research complex points of law, edit judgments, papers and speeches, and work on special projects assigned by the judges, often working closely with staff research lawyers. The law clerks frequently attend court proceedings at the Court of Appeal and the nearby trial courts, where they have a chance to observe different styles of oral advocacy. A highlight of their year is a trip to Kingston, Ontario, where they assist the judges with inmate appeals.
The clerkship begins each year in either August or September and continues for a period of 10 to 12 months. Each law clerk is paired with either one or two judges of the Court and then changes assignment halfway through the year. This rotation process ensures that each law clerk is exposed to different approaches to judging and a broad range of areas of law.
Suzanne Amiel, McGill; Joanna Baron, McGill; Ryan Cookson, Western; Lauren Epstein, Toronto; Sanam Goudarzi, Queen’s; Kathleen Heap, Ottawa; David Lingard, Osgoode; Terrence Liu, Windsor; Shea Loewen, Ottawa; Matthew Mundy, Toronto; Brandin O’Connor, Osgoode; Matthew Parker, Harvard; Daniel Rohde, Toronto; Amy Rose, Toronto; Ezra Siller, Yale; Akash Toprani, Toronto; and Claire Truesdale, Victoria.
Ryan Beaton, Harvard; Brianne Bovell, Toronto; Denise Cooney, Toronto; Paul Davis, Toronto; Kate Fairbrother, Dalhousie; Joshua Green, Harvard; Stephen Hsia, Osgoode; Lisa Jørgensen, UBC; Lara Kinkartz, Osgoode; Jaclyn McNamara, Ottawa; Jonathan Roth, Toronto; Douglas Sarro, Osgoode; Fahad Siddiqui, Osgoode; Al-Amyn Sumar, Harvard; Rebecca Sutton, Toronto; Priyanka Timblo, McGill; and Rebecca Winninger, Toronto.
Duty Counsel and amicus curiae services continued to be available for self-represented litigants in criminal inmate appeals and appeals from the Ontario Review Board. These services, provided by experienced members of the Bar, offer an invaluable service for self-represented litigants and the Court.
In 2013 Pro Bono Law Ontario expanded its programme which provides duty counsel services for self-represented litigants bringing or responding to motions in the Court of Appeal. The successful programme, which has served over 300 litigants to date, has been offered every Wednesday since it was established in 2010. In 2013 the programme was expanded and is now also offered on Thursdays. Court of Appeal counter staff encourages self-represented litigants to schedule their motions on Wednesday or Thursday mornings to take advantage of this service.
In 2013 the Court of Appeal posted a new self-help guide for family law appeals on the Court’s website. The guide provides quick answers for many commonly asked questions about family law appeal procedures. A large percentage of family law litigants are self-represented and it is hoped that this guide will assist them in determining the procedures they need to follow in filing their appeals.
Also in 2013, the Family Rules Committee, chaired by Justice Russell Juriansz of the Court of Appeal, passed important new rules governing limited scope retainers in family law. Family law litigants are often either unable or choose not to hire a lawyer to represent them throughout an entire proceeding. The new rules provide clarity about the procedures and protocols that lawyers should follow when they are retained for limited parts of a family law proceeding. In this way, the amended rules support family law litigants in getting legal assistance for certain aspects of their litigation, even if they do not retain a lawyer for an entire case.
The Court of Appeal has continued its programme of expediting Crown wardship appeals. The Court continues to track these matters electronically and assign a single judge of the Court of Appeal to monitor the progress of these appeals.
Justice Marc Rosenberg has been chairing a committee that has been examining the Criminal Appeal Rules. The Committee, composed of representatives from the Ministry of the Attorney General, the Public Prosecution Service of Canada, Legal Aid Ontario, the Criminal Lawyers’ Association and the staff of the Court of Appeal, has been engaged in a multi-year project to modernize the Rules. It has now completed its review and recommendations, and it is anticipated that changes to the Rules will be proposed in 2014.
The Court of Appeal conducts inmate appeals in Kingston every other month. In 2013, staff implemented a new process allowing the Court to quickly print urgent and time sensitive court orders on-site in Kingston. Previously, the Court had to wait until staff and judges returned to Toronto to print orders and then have the orders sent back to Kingston. Now Court of Appeal staff members are equipped to prepare and print orders in Kingston.
Several administrative improvements were made in 2013 to provide better service to litigants and the public.
The Court of Appeal added a toll-free number for the Court’s telephone information line. In addition, the Court improved the automated message tree that members of the public reach when they phone the information line. Callers can more easily choose service options and can reach a staff member at any time during the process.
The Court also streamlined its electronic filing system for court records, substantially reducing wait times for litigants, counsel and the media seeking copies of publicly available court records.
In the past year, the Court completed a project to install large video monitors in every courtroom. The monitors allow parties to display electronic exhibits directly from laptop computers.
The Court is also increasingly using videoconferencing technology. This can be used in some instances to allow parties to attend proceedings remotely. It has also been used by judges to participate in international conferences.
In a move to modernize courtroom proceedings, the Court of Appeal has outfitted one of its courtrooms with new equipment to facilitate appeals with large numbers of electronic documents. Judges now have the ability to view numerous electronic documents on multiple screens without impeding the flow of the appeal or the Court’s view of the parties.
The Court of Appeal increasingly uses overflow courtrooms to accommodate public demand to watch high profile appeals. Osgoode Hall is a heritage site and its courtrooms have limited capacity. It is often necessary to broadcast appeals to a second courtroom to allow all interested members of the public to watch proceedings.
In a recent high profile case of specific interest to the Ottawa community, an appeal was broadcast to the Ian G. Scott Courtroom at the University of Ottawa to allow members of the local community to watch the proceeding.
Learning from an e-order pilot project originally undertaken by the Ontario Court of Justice, the Court of Appeal has designed a new platform to standardize and expedite bail order production. New templates have been developed to reduce bail order preparation time from one hour to 15 minutes.
The Court continues to have a designated Accessibility Coordinator who responds to requests made by persons with disabilities to accommodate specific needs relating to courtroom access, counter service or court proceedings. As our population ages and awareness of accessibility services increases, the number of requests for accommodation continues to grow. The Court of Appeal, working with the Ministry of the Attorney General, is committed to meeting these accessibility needs.
Every year the Court of Appeal, the Superior Court of Justice and the Ontario Court of Justice jointly celebrate the opening of the courts at the beginning of the legal year. The custom of having an annual celebration to mark the commencement of the judicial year is celebrated in many jurisdictions and dates back to the middle ages.
In Ontario, this celebration is marked by three events held in Toronto: a ceremonial joint sitting of the three courts, a special divine interfaith service, and a Law Society reception at Convocation Hall. This year these events took place on September 24, 2013.
The purpose of the Opening of the Courts celebration is to reflect upon the achievements of the previous year, highlight the challenges that face the justice system, and mark the renewal of the ongoing work of the courts.
Members of the Bench, honoured guests, the Bar and the media were invited to a special joint sitting of the Courts of Ontario, presided over by Chief Justices Winkler, Smith and Bonkalo. This was Chief Justice Winkler’s final opportunity to preside over the Opening of Courts and many speakers used this as an opportunity to pay tribute to him and to specifically recognize his role in enhancing the Opening of the Courts. This yearly event formally opens the courts for their annual sittings. It also provides the Chief Justices with an opportunity to publicly celebrate the achievements of their respective courts and review the challenges facing our justice system. Their remarks can be found at www.ontariocourts.ca.
The following dignitaries also addressed the court: The Honourable David C. Onley, Lieutenant Governor of Ontario; The Honourable John Gerretsen, Attorney General for Ontario; Mr. Michael Morris, General Counsel, Department of Justice Canada, representing the federal Minister of Justice and Attorney General of Canada; and Thomas Conway, Treasurer of the Law Society of Upper Canada.
In addition to the Associate Chief Justices of all three courts, many members of the courts attended. Further honoured guests included: The Honourable Pierre Blais, Chief Justice of the Federal Court of Appeal; The Honourable Paul S. Crampton, Chief Justice of the Federal Court; The Honourable Nicole Duval Hesler, Chief Justice of Québec; The Honourable François Rolland, Chief Justice of the Québec Superior Court; and The Honourable Élizabeth Corte, Chief Justice of the Court of Québec. Many other honoured guests representing organizations in the legal community also attended.
PHOTOS [PAGE 22]
Photo 1: Caption: Chief Justice Winkler delivers address at the Opening of the Courts
Photo 2: Caption: Left to right: Chief Justices Rolland, Duval Hesler, Winkler and Corte attend the Opening of Courts.
Each year since 2009, Chief Justice Winkler has announced the Annual Catzman Award at the Opening of Courts celebration. The award was established by the Catzman family, together with the Advocates’ Society and the Chief Justice of Ontario’s Advisory Committee on Professionalism, in memory of the late Honourable Marvin A. Catzman, a judge of the Court of Appeal for Ontario.
The award recognizes individuals who have demonstrated a high degree of professionalism and civility in the practice of law. Award winners are nominated by their peers and selected by a distinguished panel of judges, lawyers and a member of the Catzman family.
This year the award was bestowed on two individuals: Derry Millar of WeirFoulds LLP and posthumously to L. David Roebuck, formerly of Heenan Blaikie LLP. Sadly, David Roebuck passed away in April 2013. His award was received by his wife Anne Hardcastle.
As in previous years, members of the judiciary, honoured guests and members of the legal community participated in an interfaith service and musical celebration, hosted by the Church of the Holy Trinity. Reflecting the diversity of Ontario, this event has become increasingly pluralistic, with the participation of many denominations and faiths. This year nine spiritual leaders representing as many denominations and faiths participated in the proceedings. In recent years the event has featured a lively musical programme, with performances by students, lawyers, and members of the judiciary, singing and playing in a wide variety of musical traditions.
Honoured guests who delivered readings included: The Honourable David C. Onley, Lieutenant Governor of Ontario; The Honourable Nicole Duval Hesler, Chief Justice of Québec; The Honourable François Rolland, Chief Justice of the Superior Court of Québec; and The Honourable Élizabeth Corte, Chief Justice of the Court of Québec. The Chief Justice of Ontario and the Chief Justices of the Superior Court of Justice and the Ontario Court of Justice, as well as the Treasurer of the Law Society, also each read selected passages. Andrew E. Williams, former Chief Operating Officer of the Yonge Street Mission, gave the keynote address. He called for renewed efforts by government to reach out to marginalized communities and address the social isolation and sense of helplessness that trap so many in poverty.
Under the enthusiastic musical direction of Justice Julie Thorburn of the Superior Court of Justice, the attendees were uplifted by musical performances that included African spirituals, classical music and 20th century jazz and folk. Her Honour Mrs. Ruth Ann Onley delivered a powerful solo vocal performance. Once again, the Jarvis Collegiate Choir sang (led by Anita Kwok), as did the Bar and Bench Voices. Several other vocalists and instrumentalists performed, including Helena Likwornik and Chris Chorney, both legal counsel at the Court of Appeal.
All attendees were invited to a concluding reception at Convocation Hall, hosted by the Treasurer of the Law Society of Upper Canada. This social event provides a more informal occasion at which members of the Bench and Bar and the wider legal community can meet or get reacquainted. The event fosters collegiality and assists in building relationships that are valuable in meeting the complex challenges that face the courts in the ensuing year.
PHOTOS [PAGE 23]
Catzman Award Photos:
Photo 1: Caption: Derry Millar receives the Catzman Award.
Photo 2: Caption: Anne Hardcastle Roebuck receives the Catzman Award on behalf of her late husband, David Roebuck.
Speaker Photos:
Caption: Top left to bottom right: The Honourable David C. Onley, The Honourable John Gerretsen, Mr. Michael Morris, Treasurer Thomas Conway.
The coming year will be another active year for the Court of Appeal.
As 2013 came to an end, the judges of the Court of Appeal were looking forward to the appointment of a new Chief Justice to replace Chief Justice Winkler who retired at the end of 2013. The year ahead will undoubtedly be influenced by this appointment and by the goals and vision of its new Chief Justice, but many events are already being planned.
In the fall of 2014, the Court will hold its annual outreach visit. This year the judges of the Court will travel to Thunder Bay to meet with members of the Bench and Bar in the Northwest Region of the province. The judges also look forward to meeting with students and professors at the Faculty of Law at Lakehead University. This meeting with Ontario’s newest law school will continue the Court’s recently established tradition of incorporating law school visits into its annual outreach programme.
The members of the Court and the broader legal community are looking forward to the launch of Christopher Moore’s book on the history of the Court of Appeal. This will provide an important addition to our knowledge and understanding of our institutional history. As the Court goes through an unprecedented period of change, it is ever more evident that its history should be understood and documented.
The past year has seen many significant accomplishments for the Court of Appeal for Ontario. In the forthcoming year, the judges of the Court look forward to new challenges and to continuing to discharge their important duties to deliver justice, uphold the rule of law and serve the public.
[PAGE 25]
An essential part of the Annual Report is its ability to provide publicly available statistical information on the court’s operations. When the court published its inaugural Annual Report in 2009, five years of statistical data were provided. It has been the Court’s goal to continue collecting this information with the aim of eventually publishing data for a ten-year period. This year, for the first time, we are able to do so. Going forward, this information will be provided for a ten-year period, and starting this year the raw data will be appended in tables at the end of this section.
For statistical purposes, Court of Appeal cases are categorized into one of four types of appeals: civil, family, criminal and inmate. Inmate appeals are criminal matters in which sentenced inmates file an appeal without representation of legal counsel. In 2012, the proportion of appeals filed in these four categories was 41% civil, 4% family, 30% criminal, and 25% inmate. Administrative law cases are included in the civil category and provincial offences matters are included in the criminal category.
Although the proportions in these categories have fluctuated slightly from year to year, they have remained relatively consistent for the last several years, as summarized in the following table.
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
42%
39%
40%
38%
43%
37%
41%
6%
8%
5%
7%
4%
32%
31%
30%
20%
22%
23%
25%
Although most appeals at the Court are filed and heard as of right, others require leave of the Court to be heard. This is the case in all provincial offences cases, in some civil cases, and more rarely in some family cases. When leave is required in criminal matters, it is usually argued as part of the appeal hearing and is, therefore, not accounted for in the Court’s motion for leave statistics. In cases requiring leave prior to the hearing of the appeal, the party seeking leave must bring a motion, and the adjacent chart summarizes the number of such motions brought each year and how many are allowed, dismissed, or abandoned. The following table shows the proportion of motions for leave to appeal that are allowed versus those that are dismissed.
35%
28%
61%
68%
65%
77%
75%
72%
69%
62%
A variety of motions are heard at the Court of Appeal prior to hearings on the merits of appeals. Depending on the governing statute or court rule, some of these motions are heard by a single judge while others must be heard by a panel. The number of single judge motions and panel motions has remained relatively constant over the last several years.
The Court hears a number of bail applications and reviews in criminal and inmate matters every year. The number of such applications and reviews has remained relatively stable with some variance over the last ten years.
The Court hears a relatively small number of motions brought by third parties, usually representing special groups who wish to make submissions in particular cases. These interventions, when granted, increase the length of appeals. In 2011 there was a significant increase in the number of motions to intervene filed, which declined slightly in 2012, and returned to its historical level in 2013.
In each year the Court of Appeal records the number of appeals that have been received, are disposed of, and are pending at the end of the year. If leave to appeal is required to file the appeal, the appeal is not counted as having been received unless and until leave is granted. Appeals finally disposed of are recorded in the year in which they were disposed, but many were received in previous years. The appeals recorded as pending at the end of the year are those that are perfected and awaiting their hearings on the merits. The following chart depicts the appeals received in each year and disposed of in each year, as well as the number of appeals pending at the end of each year.
The following charts similarly depict the number of appeals received and disposed of in each year, and the appeals pending at the end of the year, in each category of cases.
[PAGE 29]
Two timeframes are measured in the progress of appeals at the Court. The first timeframe is from the time a Notice of Appeal is filed (either as of right or after a motion for leave to appeal has been granted) to the time the appeal is perfected and ready to be set down for a hearing. The second timeframe is from the time the appeal is perfected and ready to be set down for a hearing to the time it is heard by the court on the merits. These timeframes are called “the time to perfection” and “the time from perfection to hearing”. Averages are calculated from cases that reach perfection or their hearing on the merits in each year. These averages for all appeals, and appeals in each category of cases, are depicted in the following graphs.
[PAGE 30]
When appeals are disposed of they are either allowed, dismissed, abandoned, or disposed of otherwise. Most of the matters disposed of otherwise are appeals in which the parties have settled their matter, or matters that have been dismissed on consent prior to the hearing. The following chart depicts the breakdown of appeals into those heard, abandoned, or disposed of otherwise.
Of the matters that are heard, the following tables summarize the proportions of appeals allowed or dismissed.
34%
36%
29%
27%
70%
66%
64%
71%
73%
24%
50%
19%
76%
58%
81%
33%
67%
18%
26%
16%
17%
59%
82%
74%
84%
83%
78%
Whether cases are allowed or dismissed, judges of the Court often reserve their judgments after the appeal has been heard. In many cases, the reasons for judgment can be complex and lengthy. Preparation of these reasons represents one of the most significant and time-consuming aspects of the workload of the Court. In 2013 judgments were reserved in approximately 55% of the cases heard.
Another aspect of the hearing of appeals and motions that contributes to the workload of the Court relates to whether parties are represented by counsel or self-represented. Counsel are often able to focus the issues and shape argument to assist the members of the Court in reaching their decisions in the most efficient manner. In many cases in which parties are self-represented, matters can take significantly more time. The following table summarizes the number of appellants, respondents and moving parties who were self-represented.
94
103
91
96
124
113
111
143
125
141
71
34
30
46
28
22
35
37
43
40
36
50
47
69
73
17
41
26
57
60
48
27
42
31
29
23
8
15
16
14
12
358
327
374
408
428
481
470
492
433
407
254
104
138
215
183
298
228
161
196
139
864
668
792
867
873
1040
1028
993
929
883
* does not include inmate appeals, in which the inmates are by definition all self-represented
Finally, a relatively small but significant portion of the Court’s workload relates to the Court’s jurisdiction to hear appeals from the Ontario Review Board. The ORB has jurisdiction pursuant to the Criminal Code over persons found not fit to stand trial or not criminally responsible by reason of a mental disorder. There was a significant increase in the number of appeals filed from the Ontario Review Board in 2013.
[Page 32]
* Includes inmate appeals.