Memorandum of Understanding

Memorandum of Understanding between the Chief Justice of the Superior Court of Justice of Ontario and the Attorney General of Ontario

May 5, 2008

Preamble

The Attorney General of Ontario and the Chief Justice of the Superior Court of Justice (“the Chief Justice”) acknowledge they benefit from a collaborative, dynamic and productive relationship in the administration of justice in the Province of Ontario and recognize that they both have vitally important roles and responsibilities with respect to the administration of the courts.

The Attorney General and the Chief Justice are committed to the importance of the principle of judicial independence and to supporting the core functions of the judiciary associated with adjudication, including judicial dispute-resolution, and assignment and scheduling.

The Attorney General and the Chief Justice recognize the dynamic and changing nature of the Court and the administration of justice in the Province, and the need for an accessible, modern, effective and efficient justice system that serves the needs and interests of the public.

The Attorney General and the Chief Justice operate under the principle of financial accountability and recognize that the Attorney General is accountable to the Legislative Assembly of Ontario for the proper use of public funds allocated to the administration of justice in the Province.

In order to promote clarity, consistency, and accountability in the administration of the courts and in the respective roles and responsibilities of the Attorney General and the Chief Justice, the Attorney General and the Chief Justice hereby enter into a Memorandum of Understanding setting out areas of operational and administrative authority and responsibility and a framework within which the Attorney General and Chief Justice will work collaboratively to address areas of mutual concern.

1. Legislative Authority

a. Courts Administration

Under section 71 of the Courts of Justice Act (“CJA”), the administration of the courts shall be carried on so as to,

  • maintain the independence of the judiciary as a separate branch of government;
  • recognize the respective roles and responsibilities of the Attorney General and the judiciary in the administration of Justice;
  • encourage public access to the courts and public confidence in the administration of justice;
  • further the provision of high-quality services to the public; and
  • promote the efficient use of public resources.

The Attorney General is responsible for superintending the administration of the courts in accordance with section 72 of the CJA.

The Chief Justice or Regional Senior Judges, as the case may be, are responsible for directing and supervising the sittings of the Court and assigning of judicial duties in accordance with section 75 of the CJA.

In matters that are assigned by law to the judiciary, court staff act at the direction of the Chief Justice, in accordance with section 76 of the CJA.

b. Memorandum of Understanding

Section 77(2) of the CJA provides that the Attorney General and the Chief Justice of the Superior Court of Justice may enter into a memorandum of understanding governing any matter relating to the administration of that court

Section 77(4) of the CJA provides that a memorandum of understanding may deal with the respective roles and responsibilities of the Attorney General and the judiciary in the administration of justice, but shall not deal with any matter assigned by law to the judiciary.

Under section 77(5) of the CJA, the Attorney General is required to ensure that a memorandum of understanding is made available to the public, in English and in French.

2. Commencement, Review and Amendment of MOU

This Memorandum of Understanding (“MOU”) is effective on the date of its signature by the Attorney General and Chief Justice.

This MOU is subject to amendment by mutual agreement in writing between the Attorney General and the Chief Justice at any time.

This MOU continues in effect until termination by either the Attorney General or the Chief Justice by written notice at any time.

The Attorney General and the Chief Justice, or their respective designates, shall, on an ongoing basis, use their best efforts to address concerns raised by either of them regarding the contents of this MOU.

The Attorney General and the Chief Justice, or their respective designates, shall meet at least annually to review this MOU.

3. Roles and Responsibilities under the MOU

The Attorney General and the Chief Justice acknowledge that their respective roles and responsibilities with respect to the administration of the courts in Ontario include, but are not limited to, the following specific functions:

a. The Attorney General

  1. to include the budget of the Office of the Chief Justice as part of the overall Judicial Services allocation and reporting the budget, through the annual planning cycle, within the overall Ministry Estimates submission, subject to section 11 of this MOU;
  2. to ensure that the staff of the Office of the Chief Justice is informed of Ministry and Government financial and administrative policies that apply to the operations of the Office of the Chief Justice;
  3. to provide the staff of the Office of the Chief Justice with the opportunity to participate on the Divisional Management Committee of the Ministry’s Court Services Division and to provide input into the Division’s Five-Year Plan on behalf of the judiciary.

b. Office of the Chief Justice

  1. to inform the Attorney General, as appropriate, about matters affecting the financial, administrative and operational responsibilities of the Office of the Chief Justice;
  2. to effectively and efficiently manage the operations of the Office of the Chief Justice and, subject to the principle of judicial independence, to manage the matters of administration of the Superior Court of Justice of Ontario relating to the Court’s core functions; and
  3. to manage human resource functions, consistent with policies and collective agreements applicable to the Ontario Public Service, for employees who are assigned to and within the Office of the Chief Justice, the Offices of the Regional Senior Judges and the Senior Family Judge and who report to the Executive Legal Officer of the Office of the Chief Justice.

4. Communications

The Attorney General and the Chief Justice will meet at least annually to discuss matters of concern regarding the administration of the courts.

The Office of the Chief Justice will continue to have primary responsibility for facilitating Superior Court of Justice judicial participation and consultation sought by the Ministry of the Attorney General, particularly with respect to matters that may affect the individual or institutional judicial independence of the Superior Court of Justice.

The Attorney General and the Ministry continue to have exclusive responsibility for determining the nature and scope of representation by Ministry officials and staff, as requested by the Chief Justice, on initiatives of the Office of the Chief Justice of the Superior Court of Justice.

The Attorney General and the Chief Justice or their designates will use best efforts to notify each other of significant initiatives that will directly affect their respective mandates or operations, subject to any confidentiality and privilege obligations to which either the Attorney General or the Chief Justice may be subject.

This section is not intended to interfere with ongoing and regular communications that take place between the judiciary, Ministry of the Attorney General staff and local court officials and managers regarding routine and local matters of administration.

5. Judicial Support

The Ministry of the Attorney General and the Chief Justice agree to work collaboratively with respect to judicial support standards for federally appointed judges in accordance with Court Services Division Directive “Judicial Support Standards for Federally-Appointed Judges of the Superior Court of Justice”, dated December 30, 2002.

Where appropriate, the Ministry of the Attorney General and the Chief Justice agree to work collaboratively to address judicial resource issues as they arise.

6. Emergency, Risk and Business Continuity Planning

The Attorney General and the Chief Justice will continue to work collaboratively, through working groups and local court security committees as appropriate, with respect to security, threat risk assessment and emergency planning matters in the administration of justice, particularly with respect to courthouses, and with respect to making recommendations to appropriate authorities on such matters.

7. Access to and Confidentiality of Information and Documents

The Attorney General and the Chief Justice agree to develop a protocol that will outline, on a principled basis, when public access is appropriate to court-derived statistical information and documents.

The protocol, when it is approved by both Attorney General and Chief Justice and as amended from time to time, will be deemed to be incorporated into and form part of this MOU.

Subject to applicable laws, information held by the Attorney General or the Ministry and its officials pertaining to the judiciary shall be held in confidence if the release of that information could impair judicial independence.

8. Court Reporting and Language Interpretation Services

The Attorney General and the Chief Justice acknowledge that, as the Superior Court is a court of record, the Ministry will maintain and continue to develop recruitment/accreditation and performance standards for court reporters in order to produce a timely and accurate court record.

The Attorney General and the Chief Justice agree that access to justice involves the provision of services related to language interpretation. The Ministry will develop and continue to maintain, as appropriate, recruitment/accreditation and performance standards for interpreters.

9. Facilities

The Attorney General and the Chief Justice agree to develop a consultation process for identifying, prioritizing and implementing facilities initiatives that reflects a collaborative process between the Attorney General and Chief Justice.

The capital planning process will involve a direct liaison between officials of the Ministry of the Attorney General and designated judges or staff of the Office of the Chief Justice. It will take into account considerations relevant to provincial architectural principles and standards for courthouses, such as: the dignity of the court, the importance of the rule of law; openness and access to justice; the independence of the judiciary; durability, functionality and flexibility for the future; and the effective and efficient use of public resources.

The Chief Justice will have primary responsibility for providing the Ministry with input, on behalf of the Court, on whether facilities initiatives support the core functions of the judiciary associated with adjudication, including judicial dispute- resolution, and assignment and scheduling.

10. Staffing and Executive Legal Officer

The staff members of the Office of the Chief Justice are public servants appointed under the Public Service of Ontario Act, 2006 and public service staffing policies, superannuation and other employee benefits and conditions of employment, and collective agreements apply to them.

There shall continue to be a public service position of Executive Legal Officer (the “ELO”), which shall be an existing position within the staff complement of the Ministry. The ELO will act as a liaison between the judicial and executive branches of government and shall report through the Assistant Deputy Attorney General – Court Services Division, subject to the authority of the Chief Justice under section 76 of the CJA to direct court staff.

The financial responsibilities of the Office of the Chief Justice described in this MOU shall be exercised by the ELO, who will take direction from the Chief Justice subject to the ELO’s appropriate authority and responsibility as delegated under the Ministry’s delegation framework.

11. Finances

a. Funding and Preparation of Annual Budget

The operations of the Office of the Chief Justice are to be funded through the overall Ministry allocation as determined through the annual Estimates planning cycle. This annual budget will be based on the prior year allocation adjusted for approved changes such as salary revisions.

The Office of the Chief Justice shall participate in the annual budgetary process in accordance with the Ministry’s budget planning cycle.

The Attorney General and the Chief Justice agree that no changes to the Chief Justice’s operating budget will be made without prior consultation with the Office of the Chief Justice.

b. Policies and Procedures

Financial and administrative policies and procedures of the Office of the Chief Justice shall, as appropriate, conform with Management Board of Cabinet Directives and Guidelines.

c. Support Services

The Ministry of the Attorney General will provide the Office of the Chief Justice with, or ensure that the Office of the Chief Justice is provided with, the following financial and administrative support services:

  • accounting operations, technical advice and compensation advice;
  • human resources services, including benefits administration for staff, classification advice and consultation regarding redeployment, recruitment and staff relations;
  • advice and consultation on information technology and telecommunications services;
  • internal audit services, in accordance with the Ministry’s internal audit plan;
  • accommodation and relocation services;
  • French language services in accordance with Ministry policy;
  • Freedom of Information and Privacy program services;
  • regular and special statistical information services;
  • judicial support services that are not assigned to the Chief Justice under this MOU; and,
  • services in relation to travel.

12. Research, Library and Website Support

The Ministry will continue to provide funding, based on an annual approved allocation, to the Office of the Chief Justice to support the staff, articling students and research resources necessary to operate the Superior Court of Justice Research Facility.

In consultation with the Chief Justice’s Library Committee, the Ministry will continue to provide funding, based on an annual approved allocation, to maintain the resources required by the Superior Court of Justice in its judicial libraries (central libraries, courthouse libraries and chambers collections) under the direction of a Manager of Judicial Library Services, who will report to the Judicial Support Services office of the Court Services Division of the Ministry.

The Ministry will continue to provide funding to the Manager of Judicial Library Services to support the current Ontario Courts website. Website development will continue to be the subject of ongoing discussions between the Attorney General and the Chief Justice and their designates and officials.

13. Deputy Judges Council Funding and Education

The Deputy Judges Council, established under section 33(1) of the CJA, will continue to oversee the activities of the Deputy Judges of the Small Claims Court of the Superior Court of Justice regarding the functions of the Council as described in section 33(6) of the CJA.

The Ministry will continue to provide funding, based on an annual approved allocation, to the Office of the Chief Justice for the continuing legal education of all Deputy Judges, including for the annual Caswell Lectures.

The Ministry of the Attorney General will continue to pay the per diem rates of pay of the members of the Deputy Judges Council appointed under sections 33(2)(d) and (e) of the CJA and the travel and meeting expenses of the Council.

14. Case Management Master and Deputy Judge Complaints Funding

The Ministry will continue to provide funding, as appropriate, for administrative and legal costs of committees established to conduct complaint investigations, as set out in the CJA, conceming case management masters and deputy judges of the Small Claims Court.

15. Timely Appointment of Provincial Judicial Officials

In this section, “provincial judicial officials” refers to provincially-appointed judicial and quasi-judicial officials in the Superior Court of Justice and includes case management masters, deputy judges of the Small Claims Court, registrars in bankruptcy and assessment officers.

The Attorney General and the Chief Justice acknowledge that timely appointments of provincial judicial officials are important to the effective and efficient operation of the courts.

The Attorney General and the Chief Justice agree to continue to work together and use best efforts to facilitate the appointment of provincial judicial officials, as necessary and appropriate, in a reasonable and timely manner.

16. Standards for Family Justice Services

The Ministry and the Office of the Chief Justice, with representatives of other levels of court as applicable, will work together as appropriate to:

  • enhance timely, efficient, effective, and accessible family justice services across the province;
  • provide information services and information sessions to facilitate access to family courts for self-represented parties in particular;
  • encourage and support the use of family mediation to resolve family law cases early;
  • work with the judiciary, bar and justice sector partners on enhancing specialized Family Law Rules to promote the timely resolution of cases and to reduce unnecessary appearances and costs; and
  • work with the judiciary, bar and justice sector partners to monitor and respond to case flow challenges.

17. Information Technologies and the Judicial Information Support Officer

The Chief Justice and the Attorney General acknowledge the need to maintain a judicial technology environment with comprehensive security and privacy specifications for judges, having due consideration for the principles outlined in the Canadian Judicial Council‘s 2002 Blueprint for the Security of Judicial Information.

Information technology roles and responsibilities within the justice sector will be set out in one or more protocols, as appropriate, between the Ministry and the Judicial Information Technology Organization (JITO), a newly-forming organization dedicated to ensuring the integrity and security of judicial information.

Signed in Duplicate at the City of Toronto on Tuesday the 6th day of May, 2008.

The Honourable Christopher Bentley
Attorney General of Ontario

Signed in Duplicate at the City of Ottawa on Friday the 9th day of May, 2008.

The Honourable Heather J. Smith
Chief Justice of the Superior Court of Justice of Ontario