2002 Report of the Superior Court of Justice
Chief Justice Lesage’s Remarks
Opening of the Courts of Ontario
January 7, 2002
As we begin 2002, the 212th year of our Court, I wish to acknowledge the hard work of the judges and masters of the Superior Court who continue to give, as they have in the past, unstintingly of themselves to serve the citizens of this province.
Au nom de la Cour supérieure de justice de l’Ontario, je souhaite la bienvenue à vous tous qui travaillez toujours avec tellement de dévouement au service des ontariens et des ontariennes.
On behalf of the Superior Court of Justice I wish to thank each judge and master of this court for their commitment. Their dedication is reflected not only in those visible hours in the courtroom and in considering and writing judgments or jury charges, but also in the significant further hours required to keep current in changes in the law and societal issues.
During the past year, nine judges have been appointed to the Superior Court and seven have retired. The new judges who have been appointed are all of very high calibre and we are privileged to welcome them to our Court. I am also pleased that of the nine new appointments to our Court, three of the judges are fully bilingual in both of Canada’s official languages. Unfortunately, in the year 2001, an admired and dedicated judge, the Honourable Justice Paul Lamek, died. Justice Lamek served as a judge with distinction here in Toronto after a very distinguished career as a barrister, including serving as the treasurer of the Law Society of Upper Canada. He is greatly missed, not only by his family and friends, but also by all of his colleagues. He was not only a wonderful judge but he was a kind, caring and witty person.
Our Court now consists of 288 judges, including 62 supernumerary judges, 4 full-time masters, 5 per diem masters, 13 case management masters, along with 4 full-time and 4 per diem Small Claims Court judges. In addition, there is a very large roster of Deputy Judges who serve in the Small Claims Court.
The advice I receive from Associate Chief Justice Smith, the eight Regional Senior Justices and the Senior Justice of the Family branch is both welcome and appreciated. In early July this year Regional Senior Justice Fedak elected supernumerary status and tendered his resignation as Regional Senior Justice for the Central South region. The government of Canada has not made an appointment to replace Regional Senior Justice Fedak. In the interim, he agreed to continue on as Regional Senior Justice. Regional Senior Justice Fedak has now indicated to me that he wishes to be relieved of that responsibility and I have appointed Justice James Kent Acting Regional Senior Justice effective January 1, 2002. I want to thank Regional Senior Justice Fedak for his enormous contribution to the administration of justice. He has been the longest serving Regional Senior Justice for the Superior Court in this province and his advice and wise counsel has been very much appreciated.
His efforts on behalf of this Court, and also the citizens of Ontario, especially in the Central South region, have been immense. He will be greatly missed. I wish to thank Justice Kent for helping out until such time as a new Regional Senior Justice in the Central South region is appointed by the Minister of Justice.
Judicial Appointments
We currently have eight judicial vacancies. Although some are fairly recent, there are three vacancies which have existed for considerable periods of time. One year in one case, 18 months in another and, a vacancy in the Central East region that has existed for more than two years. In 2001 alone we lost in excess of seven judge-years because of the inordinate delay in making appointments. This delay in appointments makes it difficult for the courts to conduct our work in a timely fashion. I recognize that the process is one that requires careful thought and consideration, but I strongly encourage, as I have stated publicly in the past and re-iterate again today, the Minister of Justice of Canada to ensure appointments are made on a much more timely basis than is currently the case. I make this request because the citizens of Ontario are not well served when judicial vacancies exist for lengthy periods of time and the judicial resources which are required to assist in those communities are not available.
Even at full complement, which our Court has not been at for some time, the Superior Court continues to have the lowest judge to population ratio of any comparable court in Canada. Over the last seven years, when the population of Ontario has increased by more than one million citizens, there has been no increase in judicial complement for the Superior Court of Justice.[1]
Not only do we need to have every judicial vacancy filled as soon as possible with the increase in population of Ontario, we probably need an increase in our judicial complement to provide the necessary judicial services to the people of this province.
Family Branch
We are committed to a fair and affordable process for family law litigants in Ontario in all judicial centres. Our court locations which exercise Family Court jurisdiction are fortunate to have excellent support services provided by the Ministry of the Attorney General. These services, (including mediation, family law information centres and legal aid) work with the judiciary through the liaison and community resource committees to constantly improve the support available for families involved in the court process. I would like to see these services available at every court in the province.
As I indicated last year, we continue to face challenges with the expansion of the Family branch. The expansion of the Family branch two years ago made the Superior Court of Justice a court of first instance in child protection matters at seventeen court locations. We could not have anticipated that the change in legislation and its application would so greatly increase the volume of child protection work. As Chief Justice Lennox mentions in his report of the Ontario Court, it is exceedingly difficult to meet the strict time limits imposed by the rules. We are striving to meet this challenge by assigning judges throughout the province in accordance with need. The assignment of judges in this manner ensures all the judicial resources of the Superior Court are available, to the greatest extent possible, to meet the needs of children at risk.
The important and significant accomplishment to keep in mind is that with the most recent expansion of the Family branch of the Superior Court of Justice, the public now has greater access to a unified court which can provide an effective, efficient and dignified means to resolve all family matters. That being said, tremendous pressure has been placed on the Superior Court in order to deal with the increased workload generated by an increase in the child protection cases. This is especially true in centres such as Ottawa, Hamilton and Whitby.
While I can assure you that the provision of judicial resources for child protection cases remains a priority for the Superior Court, the significant increase in the number and complexity of child protection cases, without additional resources, will continue to present a challenge for our Court for the foreseeable future.
Small Claims Court
The Small Claims Court continues to be the busiest branch of this court. I fully expect that this trend will continue. The monetary jurisdiction of the Court was increased to $10,000.00 in April of last year. This Court could not operate without the dedicated Small Claims Court judges and the practising lawyers who make a significant contribution to the administration of justice in this province by sitting as Deputy Judges. I express to each and everyone of them our sincere gratitude for their hard work. I am pleased that the Attorney General, through the Lieutenant Governor in Council, has recently made his appointments to the Deputy Judges Council. The Council will be having their inaugural meeting very shortly. I look forward to whatever recommendations may be forthcoming from that body on matters affecting Deputy Judges.
Criminal Jury Instructions
The second instalment of the plain language criminal jury instructions has now been completed under the direction of Justice David Watt, along with his ‘review committee’. They deserve an enormous amount of credit. As was the case with the first instalment, the second instalment contains an outstanding set of comprehensible jury charges. The instructions for the second instalment include jury instructions on:
- Sexual offences;
- Homicide and related offences;
- Assaults and other non-fatal offences against the person;
- Kidnapping; and
- Driving offences.
These instructions have been distributed broadly to members of the Superior Courts as well as to all provincial Attorneys General and to the federal Minister of Justice. I want to express our thanks to Justice Watt and to all who are part of the project for their hard work. I also thank the Attorney General for Ontario, the Minister of Justice of Canada and the Attorneys General of several other provinces for the financial contributions they made towards this initiative.
Inter-Regional Circuiting
We are a large court, serving as we do almost 12 million people in this province, from L’Orignal to Kenora and from Windsor to Cochrane and beyond. We service an area of approximately 2 million square kilometers. In 2002, approximately 25% of the Superior Court will circuit to regions other than their own for periods of at least two weeks. As the late Chief Justice Callaghan and Chief Justice McMurtry often remarked, circuiting is a hallmark of the Superior Court. It is essential that we do not fall back into the practice of having local justice in the sense that the same judges serve the same community all the time. It is neither healthy for the administration of justice nor for the judiciary to have the same judges presiding in the same court houses on a routine basis. It is essential that the Court, which is a province-wide court, be reflective of all members of the Court, whether that court be in Toronto, in Cochrane or in Windsor.
Computer Replacement – Superior Court
The Superior Court has been an active participant in the transition from hard copy, paper driven processes to using new technology where possible. Over the past 3 years, all judges of the Superior Court have been assigned computers, which have provided them with access to legal research, e-mail communications, electronic bench-book resources and other important tools to carry out their judicial responsibilities. As I understand the current situation, the leases of these computers have expired and the Ministry of the Attorney General is now reviewing the replacement options for these computers. The Superior Court looks forward to replacement of the current computer equipment in 2002, so we can continue to take advantage of new opportunities for greater efficiencies in the delivery of judicial services which newer technology will provide.
Residential Schools Litigation
We have a number of cases in the Superior Court dealing with litigation relating to native residential schools. Our Court continues to case manage all residential schools litigation and we continue to offer our services to assist in any way we can to help solve these matters. I am pleased to say that some of these cases have settled under the guidance of Justice Poupore and Justice Trainor of the Northeast region, who are overseeing and managing this litigation province-wide. Each region, usually through a case management judge, who deals with issues regarding residential schools litigation, keeps Justices Trainor and Poupore informed of the progress of the litigation in their region, in order to achieve consistency of process throughout the province. Justices Trainor and Poupore continue to be directly involved in these residential schools cases. I know that they will continue to bring to those cases their particular skills, which I hope will assist in resolving some of the more difficult aspects of this litigation, or at least narrow the issues to be tried.
Case Management
As I indicated last year at this time, the combination of case management with mandatory mediation in Ottawa and in Toronto has more than met the expectations of promoting the expeditious, fair and less costly resolution of civil cases. In the period ending October 1st, 5163 mediations were conducted. 39% or 2023 settled, and 15% or 771 partially settled as a result of mediation. With the implementation of case management, our Courts now have the ability to monitor the time that a civil case takes from commencement until it is ready for trial, and not, as has been the case historically, become involved only when the matter is finally placed on the trial list. As of the 1st of July of last year there was further expansion of case management in Toronto. As a result, there is now 100% case management in Toronto which handles about one-third of all of the civil work in Ontario. Thanks to the hard work of the Bench and Bar Committee it has been a relatively smooth transition to 100% case management in Toronto. I would like to thank particularly Kevin Aalto and the case management masters for the superb education programs that they have presented to the profession.
Class Actions
Class action proceedings are greatly expanding. There are some issues relating to the current practice direction and an inconsistency with the rules of practice which is causing some difficulty in this area. I have written to the Rules Committee to point out this inconsistency. I am hopeful that it will be addressed in the near future. Regardless of how this issue is resolved, the fact remains that this area of law continues to be an area of growth. These proceedings are not only becoming more numerous, but they tend also to be complex cases which require a commitment of significant judicial resources. We continue to direct more of the resources of the Court to deal with it. There are currently four judges in Toronto who are dealing with class proceeding issues and I expect numbers in other regions will be expanded to deal with the demand.
Bilingual Services
Comme vous le savez tous, notre but a toujours été d’administrer la justice dans les deux langues officielles du Canada. Je suis fièr de vous annoncer que, grâce aux désignations de nouveaux juges bilingues, notre Cour est présentement en mesure de mieux servir nos citoyens et citoyennes dans les deux langues officielles. Je suis convaincu que nous avons atteint notre objectif à cet égard.
Our Court provides services to litigants in both of Canada’s official languages. We have adequate bilingual judicial capacity in most regions. However, on occasion we need to assign a judge from the East or Northeast region to preside over French hearings. Our Court is able to provide a judge to preside in either English or French to any member of the public in any region of the province who wishes a hearing in our Court in either official language.
Ministry of The Attorney General
I wish to publicly acknowledge the Attorney General and his officials for their assistance in a number of areas during this past year. They are undertaking an audit of our law clerk resources to ensure the judges of our Court have sufficient research support to assist them in their work. They are updating and ensuring that ‘resource standards’ are applied equally across the province. They are addressing, with the Court, security gaps identified in our judicial services technology areas. Resources have been allocated to further identify and rectify necessary security precautions for the current computer technology employed by the judiciary. Protecting the sensitive information that members of the judiciary must safeguard throughout the court process is a high priority for all levels of courts in our province.
I also acknowledge the Ministry’s support in ensuring that all judicial libraries in this province be maintained at a very high level. It is imperative that all judicial libraries, regardless of their location, are treated satisfactorily, equally and fairly.
Simplified Procedure
As of January 1, 2002, updated rules relating to simplified procedure came into effect covering most actions between $10,000 (Small Claims Court) and $50,000. It is hoped that these new procedures will assist the administration of justice by providing litigants with a means of having actions that meet the criteria for simplified procedure heard in a more expedient manner than was previously the case.
While the simplified rules have only been in force for a few days, it is too early to determine what effect they will have. However, any changes which simplify the procedures of the civil process and give the public greater access to justice and our court system are most welcome.
Public Information Committee
Justice Kiteley, of our Court, is participating with Justice Ormston, of the Ontario Court, in the Public Information Committee. The goal of this Committee which is comprised of members of the judiciary, the Ministry of the Attorney General, the Bar, educators and other members of the public, is to increase public and media understanding of the operation of the legal system and the role of judges in it. In the long run, the goal is to reach as many citizens of Ontario as possible. However, in the immediate future, the goal is to reach high school and elementary school students in a number of different ways. To date, the project has been a resounding success and has contributed significantly to increasing the public’s understanding of the legal system.
To the extent that we can assist in ensuring the public understands the role courts play in a free and democratic society, it will serve to increase public knowledge and therefore confidence in our institutions of justice.
Conclusion
Public confidence in the courts and the judiciary is maintained by the fact that judges are clearly accountable in the most public way for their decisions. Litigation is conducted in public. There is an obligation to give reasons for decisions. Those reasons are public. Those reasons are also liable to appeal. If not appealed, they are open to academic and other criticism. Thus, the work of judges takes place in the open and in public and is a manifestly transparent process and it is entirely appropriate that this is the case.
As judges, we shall continue to give decisions – not because they are popular or unpopular, but because they are correct according to the laws of this country. We shall do so without fear or favour, affection or ill-will. What makes a judiciary strong is a clear and accurate understanding of its goals. If we are seen to pursue justice, the public will have confidence in us. If we are seen to pursue popularity, it will not.
The public has been well served by the members and support staff of the Superior Court of Justice. I am confident that the members of our Court will continue to serve the public with distinction, in the future, as they have done in the past.
[1] Although 17 judicial positions were added in 1999, those positions were created to cover the transfer from the Ontario Court into our expanded Family Branch.