OPENING OF COURTS REMARKS
THE HONOURABLE GEOFFREY B. MORAWETZ,
CHIEF JUSTICE OF THE ONTARIO SUPERIOR COURT OF JUSTICE
SEPTEMBER 28, 2023
Greetings: Chief Justice Tulloch, Chief Justice Nicklas, The Honourable Elizabeth Dowdeswell, Mr. Attorney General, Madam Treasurer, the Honourable Arif Virani, Federal Minister of Justice, Acting Chief Justice David Stratas of the Federal Court of Appeal, Chief Justice Marie-Anne Paquette of the Superior Court of Quebec, Former Chief Justice of the Court of Appeal, George Strathy, Members of the Judiciary, Representatives of Ontario’s Bar Associations, members of the bar, members of the media and members of the public.
Introduction
Good afternoon. It is an honour to address all of you today for the 2023 Opening of Courts.
We have many people attending in-person here today which is wonderful to see.
I would also like to thank those of you that are joining this ceremony virtually. Conducting this special sitting of the Court both virtually and in person allows more of you to attend and for that, I am grateful.
While the Opening of Courts dates back to the Middle Ages when English judges started their legal year in October, it is not lost on me that we have found a way to deliver this traditional ceremony in a modern way. This is fitting, as much of what I will speak about today relates to initiatives and projects aimed at modernizing our justice system to ensure that our courts are administering justice in a way that is accessible, efficient and effective.
Continued Change
This past year has been a busy one, with a number of significant developments that will modernize and improve our justice system. There have also been a number of changes to our judiciary.
I would like to start out by acknowledging the appointment of both Chief Justices that are here today with me.
It will not be news to most of you that Chief Justice Michael Tulloch was appointed Chief Justice of Ontario and President of the Court of Appeal for Ontario on December 19, 2022. Chief Justice Tulloch was a judge of the Superior Court of Justice from 2003 to 2012 in the Central West Region before he was elevated to the Court of Appeal for Ontario in 2012. Our Court has already begun to work closely with Chief Justice Tulloch, and we greatly appreciated his keynote address at our Court’s Spring Educational Seminar earlier this year. I thank Chief Justice Tulloch for his collaboration, leadership, and dedication to the administration of justice.
Chief Justice Sharon Nicklas was also recently appointed as Chief Justice of the Ontario Court of Justice. Formerly Associate Chief Justice and Co-ordinator of Justices of the Peace from 2019 to 2023, Chief Justice Nicklas has already enjoyed a close partnership with our Court in the years preceding her appointment. I congratulate her on her appointment and look forward to continuing to work together on common causes that impact both of our courts. I have no doubt that Chief Justice Nicklas will continue to move the Ontario Court of Justice forward.
I would also like to acknowledge the former Chief Justice of the Ontario Court of Justice – The Honourable Lise Maisonneuve. Chief Justice Maisonneuve has been a tremendous leader of her court and the justice system. Her commitment to working together as a team where our interests aligned was much appreciated over the years particularly over the challenging days of the pandemic. This former Chief has left an impressive legacy behind and I thank her for her support in advancing our justice system together.
I would also like to congratulate those that have retired from our Court through retirements, as well as an appointment to the Court of Appeal for Ontario. I thank each of the fifteen judges that have retired over the past year, for their many years of dedicated service to the Ontario Superior Court of Justice and wish them the best in their retirements. I would also like to thank Justice Patrick Monahan for his years of service at the Superior Court of Justice and congratulate him on his recent appointment to the Court of Appeal.
Sadly, I also wish to mention the passing of one of our judges earlier this year, Justice Edward Belobaba. Justice Belobaba contributed a great deal to our Court and is sadly missed.
We have also had new judges join our Court. Since the 2022 Opening of Courts, we have welcomed sixteen new judges to Superior Court locations across the province. Our new judges have had no shortage of work and I was incredibly pleased to have them join our Court. I need to be clear though – while we are grateful for the new appointments that have been made in the past year, particularly those announced at the end of last month, more appointments are needed in short order.
As of September 1, 2023, the Court currently has a total of 22 vacancies. I congratulate the new Minister of Justice and Attorney General of Canada, the Honourable Arif Virani. Minister Virani, thank you for attending today – it is critical to ensure that justice can be delivered without delay in all areas of our court’s responsibility – civil, family, criminal and small claims. The administration of justice and the public’s confidence in it is at stake.
And Minister, I know that you will do your best to address this issue on a timely basis.
Before I speak about a number of significant developments and initiatives that are moving us forward towards a better and modernized justice system, I would like to take a moment to thank all those who have worked tirelessly to make this happen – improving the administration of justice for all people in Ontario would not be possible without their collective dedication to this work. First to the Court’s executive, the eight Regional Senior Judges, Associate Chief Justice Faye McWatt and Senior Family Judge Suzanne Stevenson. I am also grateful for the hard work of all our judges, associate judges and deputy judges and thankful for the commitment and work of their associations – the Ontario Superior Court Judges’ Association and the Ontario Associate Judges’ Association. Thank you also to the Court’s own staff who directly support the judiciary in the regional offices, and in my office on a daily basis.
Although I am steadfastly committed to maintaining and upholding judicial independence, I am also committed to working closely and collaboratively with the Ministries of the Attorney General and Solicitor General to ensure the administration of justice receives the support it requires.
I thank Attorney General Doug Downey and Deputy Attorney General David Corbett for their leadership and dedication.
I also thank Paula Reid, Chief Administrative Officer & Assistant Deputy Attorney General of Corporate Services Management Division and Assistant Deputy Attorney General of Court Services Division, Beverly Leonard for their leadership, hard work and commitment.
While there is still much work needed to improve the Court’s operations, in particular, with the technology in our courtrooms and with the stability and quality of court support, their collective leadership has been essential to advancing these improvements forward.
Special thank you to all our regional managers, trial co-ordinators, judicial assistants and the directors and managers of court services and all of the front-line court staff whose work ensures the court’s operations are maintained.
Finally, thank you to all the members of our justice community who work every day towards our collective objective of improving the administration of justice.
Continued Innovation and Change
With our continued and ongoing commitment to improving and furthering access to justice, I would now like to share with you a number of updates on some of our recent and upcoming initiatives at the Superior Court.
Family Proceedings
In Family, the Court continues to find creative ways to address ongoing challenges.
Last year at the Opening of Courts, I spoke about the Binding Judicial Dispute Resolution (JDR) pilot project. Introduced in May 2021, binding JDR is a simplified and streamlined family law process. At a Binding JDR hearing, a judge assists the parties to settle disputed issues on consent. The judge then adjudicates any remaining issues at the same hearing. Binding JDR allows parties who agree to the process, and who have the approval of the Court, to arrive at a final resolution of their case without the need for a trial.
Not only is demand and interest increasing, but early results show that Binding JDR is proving to be effective. The Court has made updates to the practice advisory on Binding JDR, and the project has been expanded to Toronto and Pembroke. As well, London plans to adopt binding JDR later this year.
Another change aimed at effectively managing time sensitive family matters is the introduction of Rule 37.2 of the Family Law Rules. Introduced last October, the new rule encourages timely resolution of international child abduction matters and a process to notify the Office of the Children’s Lawyer in every case. Counsel, parties, court staff and our Court’s judges have worked together to ensure that these difficult and time-sensitive cases are prioritized.
We continue to look for innovative ways to reduce wait times for court appearances. We are making effective use of remote hearings to improve access to our Courts for many types of family attendances. Additionally, since the return to in-person conferencing, we have seen an increase in settlements in family cases. Backlogs remain a challenge in the family area, but with focused conference blitzes in some locations and concentrated efforts to resolve matters on the trial list, I am pleased to report that we are making progress.
Another concern for the Court and our communities is family violence. This is reflected in the volume of cases involving family violence in our Court. We continue to provide numerous educational programs and materials for our Court’s judges on intimate partner violence. These have included, among other topics, training on coercive control in intimate partner and family relationships, assessment of risk factors, and the impacts of family violence on children. These important and vital programs will always be prioritized by the Court.
I understand that many members of the bar, as well as judges, are wondering if there will be a Unified Family Court expansion. I cannot answer that question definitively, but I want to be clear that the Superior Court continues to support any efforts to expand the Unified Family Court. I welcome further discussion with the Attorney General of Ontario and the federal Minister of Justice in order to further an expansion of UFC across Ontario.
I am pleased with the progress made to prioritize time sensitive family hearings and keep cases moving through the Court in an efficient manner. I look forward to continued progress on this front.
Criminal Proceedings
In Criminal, the Court continues to prioritize the challenge of meeting the Jordan deadline. While unfilled judicial vacancies exacerbate this challenge, it is also imperative that the Court’s resources and time are used efficiently and effectively and not wasted.
Our Court has committed to using the available technology to conduct proceedings virtually where appropriate. However, the Court continues to face challenges with scheduling in-custody accused who are presumptively required to attend their appearances virtually. I urge the Ministry of the Attorney General and in particular the Ministry of the Solicitor General to prioritize expanding the availability of virtual suites from Institutions across the province so that accused persons can attend their virtual appearance as directed by the Court. In the interim, our court is working with the Ministry of the Attorney General and the Ministry of the Solicitor General to establish a consistent and fair scheduling protocol for an accused person’s virtual court appearance. Work is underway to improve scheduling and coordination, as well as communications between the courts and correctional institutions with the Ministries and the Ontario Court of Justice. The Court looks forward to this work being prioritized by the Ministry of the Solicitor General and to continuing to work with both Ministries together on initiatives that will make the most effective use of the Court’s time and resources.
In our ongoing commitment to modernization and furthering access to justice, our Court has revised and updated the Criminal Proceedings Rules. These newly written Rules and a new Judicial Pre-Trial form are expected to be released later this year. These changes are aimed at ensuring the Court’s time is used as efficiently and effectively as possible, while also providing a clearer process for criminal litigants and members of the bar.
Civil Proceedings
You may recall that I spoke of the need to make major changes in civil proceedings at last year’s Opening of Courts, in order to address what is now all too often a 4-to-5-year timeline to get to trial. As I stated last year, the Court runs the risk of becoming irrelevant in civil proceedings if action is not taken now.
In order to address the increasing backlog and excessive delay in hearing civil matters, I can share some updates our Court has developed towards that effort.
The Court is holding its first ever 4-week, one hundred percent virtual trial sitting starting on Tuesday, November 14, 2023. Civil cases originating in the Southwest Region will be targeted. Judges from across the province will be scheduled to preside in pretrials and trials and will hear the oldest civil cases that meet the criteria for inclusion in this sitting.
We appreciate the support of Court Services Division in ensuring that the sitting is sufficiently staffed to run smoothly. The next four-week virtual trial sitting will take place next year.
I spoke earlier about the need for the prompt appointment of additional judges for the Court. In addition, my office provided the Ministry of the Attorney General with a business case to increase the complement of judges in Ontario and I am very pleased to have recently received a letter of support to this request from Attorney General Downey.
The Regional Senior Judges have also been implementing improvements to reduce the time it takes to schedule and hear civil motions. These improvements have included the introduction of an online scheduling tool through Calendly.com which is now being used in many regions in the province.
The Ontario Bar Association and The Advocates’ Society have provided suggestions for how the Court and the bar can work together to minimize delay and keep civil cases moving through the system and we are aware that the Ontario Bar Association will be providing their recommendations in the near future. The Bar’s input is greatly appreciated, and the Regional Senior Judges Council will review their recommendations at its next opportunity.
Although all of these initiatives are helping to move the needle in civil proceedings, there is much more work to be done. As I said last year, the Rules of Civil Procedure were meant to provide us with a roadmap to resolution; but instead, civil proceedings have become bogged down by process. They have become a maze that is difficult for many to navigate. The Rules should be a tool for supporting access to justice, not a barrier.
I am grateful for the support of Attorney General Downey and Deputy Attorney General Corbett who share my vision for a civil justice system that is effective, relevant, responsive and timely. Reform of the Rules is an essential tool to achieving those objectives and to addressing our ever-growing backlog. I am pleased to announce that work on the details and timeframes for a revision of the Civil Rules is forthcoming. We will be working collaboratively with the Ministry to assemble a team who will dedicate their focus to a reform of the rules and to ensure that while the process will engage all the necessary stakeholders, the objective is to get this done! This is a priority project. It must be done and must be completed on an expedited basis.
Each rule must be reviewed and considered to identify which are in need of reform and revision. I would like to see the reform of the Rules completed in two years’ time. I acknowledge this is an ambitious timeline, but to fix the problems plaguing our civil justice system, we must dedicate ourselves towards this target. Mr. Attorney General and Deputy Attorney General Corbett, I know you both support this objective. I value your support. I look forward to working with you both to get this done.
Improved Communications
Another facet of a modern justice system is a Court that is able to clearly communicate with the public that it serves. To this end, our Court and my office, has been hard at work consolidating the Court’s practice directions, re-designing and modernizing the Court’s website, and re-establishing regular annual reporting.
In order to update and simplify direction for the Bar and the public, the Court has revised and consolidated its Practice Directions in Civil, Family, Criminal, Divisional Court, and Commercial Proceedings in Toronto. These Consolidated Provincial Practice Directions have integrated relevant portions of the pre-existing practice directions with content from the pandemic-era notices and now replace all previous provincial practice directions and provincial notices. The website has been organized to make the practice directions more easily identifiable and accessible.
With respect to modernizing our website, significant parts of it will be re-written and we anticipate commencing a project for a newly designed website, with the objective of making it more accessible and user-friendly.
The re-establishment of the Court’s annual reports is important. We are resuming the release of our annual reports and look forward to its publication next spring.
Guidelines to Determine Mode of Proceedings
The Ontario Superior Court of Justice’s Guidelines to Determine the Mode of Proceeding in Civil, Family, Criminal and Small Claims Court came into effect on April 19, 2022. In my message to the Bar announcing the Guidelines on March 17, 2022, I explained that the Guidelines are living documents and would be reviewed in the new year after the Bar and the Court had had some time to work with them.
Accordingly, on February 6, 2023, the Office of the Chief Justice sent correspondence to the Bar seeking their written input on the Court’s presumptive Guidelines. The consensus, in all the input received by Bar organizations who chose to provide a submission, was overwhelmingly positive. A consistent theme from all input received was that the Guidelines, for the most part, got it right in balancing virtual and in-person presumptions. They also noted that the over-arching principles accompanying each set of guidelines were also helpful and balanced in identifying the factors that a court would consider in deviating from the presumption. The Bar’s input, along with further input that will be sought from our judiciary and their associations, will be carefully considered by the Regional Senior Judges Council in determining whether any adjustments to the guidelines are necessary. We anticipate releasing any revisions by the end of the year.
Commitment to Security
Another area of critical importance to the administration of justice is judicial security. I thank the Ministry’s commitment to prioritizing the security and safety of the judiciary and all judicial participants. We have witnessed an increasing escalation of threatening, intimidating and harassing incidents towards our judiciary. These incidents pose a threat to judicial independence and the rule of law. A threat to judicial independence and the rule of law is a direct threat to our democracy. Judges are required to enforce the rule of law regardless of popular sentiment. But, in order to uphold that duty, judges must have the ability to render decisions free from any pressures, inducements, enticements, threats or intimidations. If judges do not feel free to fairly evaluate the matters before them based on the evidence presented and the relevant law – secure from any external pressures, threats or intimidation – then they will feel constrained in their decision-making powers. A failure to take seriously the issue of judicial security threatens everyone’s safety.
Judges understand that the job carries an inherent risk. Every decision we make can anger those who appear before us and expose us to threats of revenge. While we are rightly concerned about our own safety, we are also concerned for the safety of our families and staff. We do not want them to pay the price for an oath that we have sworn.
We are thankful for the Ministry’s support and look forward to their continuing efforts in ensuring the safety of all justice participants.
Digital Transformation & Technology in the Courtroom
Last but certainly not least, is the recent announcement of the Court’s Digital Transformation Initiative.
This milestone represents a giant leap towards our shared commitment to improve the administration of justice for all of Ontario.
When I began my tenure as Chief Justice of the Superior Court, my long-term vision was for a modern transformation of the Court. This vision saw the end to an antiquated and paper-based justice system.
When I approached the Attorney General in the fall of 2020 with the request that the Ministry procure an end-to-end off the shelf digital solution to modernize all our court processes, I understood that he too shared the vision for a more modern, accessible and effective justice system.
The Attorney also understood that the success of obtaining this digital solution, of its development and of its implementation, depends on the input of all justice sector participants and a collaborative partnership with the courts.
Ultimately, an unprecedented partnership between the Ministry and the Courts was formed, and a dedicated team with representation from the Ministry, the Superior Court of Justice, the Ontario Court of Justice and our technology partners was created and dedicated to achieving this solution.
In my view, it is this collaborative partnership with the courts that distinguishes this technology project from previously failed technology initiatives.
This long-awaited solution will replace old, disconnected technology, with one seamless system to support all areas of the Court’s responsibility. It will support critical functions, including filing, case management, scheduling, document management, hearing management and exhibit management. In plain terms, it will manage cases from initiation to disposition, starting with e-filing court material through to distribution of digital endorsements.
While there is a long road ahead and much more hard work to be done to build and develop this new digital solution, I am confident that the dedicated project team, a group of talented and skilled individuals, from the Ministry and both Courts, will get us there.
This team has worked tirelessly over the last couple of years to procure a solution that will meet the varied and complex needs of our courts.
I want to thank this team for all their hard work in getting us here today with special thanks to Jessica Smith, Carole Pham-de Leon and Michelle Bouthiette. And again, my sincere appreciation to the Attorney General Doug Downey, Deputy Attorney General David Corbett, and Assistant Deputy Attorney Generals Paula Reid and Beverly Leonard, for their commitment, their leadership and collaborative partnership to our courts digital transformation and its modernization, building a justice system that will seamlessly integrate technology and which is supported by staff with the necessary skills to ensure justice is administered.
It is critical, and I am hopeful that the Ministries of the Attorney General and the Solicitor General, will also prioritize and provide for the necessary infrastructure of technology in our courtrooms and our courthouses to support not just the digital transformation down the road but to ensure that our court’s hearings today are supported by the available technology and staff in the courtroom and in the courthouse. The Superior Court’s commitment to a paperless strategy and the mandatory use of the electronic sharing platform Case Center for all its areas of responsibility – Civil, Family and Criminal – requires the necessary technology in the courtroom, the necessary trained staff and IT support and the necessary support for self-represented litigants to facilitate and support this commitment to digitization.
Conclusion
I have spoken today about many initiatives that are underway in the continued transformation of our Court. I am confident that we are well on our way to achieving a more modern, efficient and accessible Court.
While much work lies in the path ahead, I am not discouraged.
I believe that the work we have done over the past year meets many of our challenges head on. There will continue to be no shortage of challenges and issues to respond to, and that is why we must be steadfast in our approach to continually improving the administration of justice.
I am proud of the good work of our Court and our dedicated justice partners and look forward to seeing the fruits of our labour.
I thank all of you for continuing to strive for and believe in the modern justice system that we know is possible. It is now within our reach.
Thank you, and merci.