The judiciary is not winning any races to improve the functioning of Ontario's courts
Mandated by the Law Society Act to facilitate access to justice, the Law Society of Ontario can boast few results. While the courts are largely no longer closed (with the notable exception of the Toronto Small Claims Court, which is holding neither settlement conferences nor trials), they remain a dysfunctional embarrassment. For instance, the Toronto courthouse rejects more than one-third of all civil documents submitted, and Ontario suffers exorbitant and well-documented trial delays across the board. Even before Covid, the courts held few civil trials.
While the Ministry of the Attorney General doubtless bears significant responsibility for this sorry state of affairs, so too does the civil rules committee (CRC), which is made up, in large part, of the senior judiciary.
For those unaware, the CRC sets the procedural rules by which civil actions proceed, or in the case of Ontario, don’t. Tallying a dizzying hundred and forty thousand words, give or take, without annotations (the Shawshank Redemption comes in at under forty thousand in comparison), it’s not difficult to see part of the reason why. Yet, in addition to their sheer verbosity, some of the rules act at cross purposes to their stated intention, as laid out by rule 1.04.
One can find a glaring and impractical example at rule 31.06, which requires parties at discovery to answer “only proper questions.” Unlike the American rules, which generally require questions to be answered, subject to later objection at trial, the Ontario rule injects a subjective determination as to whether each question is “proper” and hence needs to be answered. This approach leads adversarial counsel into arguments, refusals and creates a cottage industry of refusals motions. These, of course, divert scarce judicial resources away from determining matters on the merits. As the senior judiciary on the CRC are doubtless aware of the differing motivations and abilities of counsel, it is hard to see this result as other than intentional.
Rule 48.04 (1) further compounds this deficiency by limiting actions a party may take after setting an action down by trial. Thus, while in the American system, actions may be noted for trial shortly after filing the claim (and hence put in the queue for pre-trial, trial and resolution), in Ontario, actions (effectively) cannot be placed in the trial queue until discovery has occurred, and in some cases, after refusals motions are decided. Much like a car with square wheels, the CRC has found a solution just not a particularly good nor practical one. This approach helps explain why actions that would resolve in less than two years in New York State may take 7 or 8 years in Ontario.
Faced with a poorly functioning judicial system (where even the Supreme Court has called for a “culture shift”), the LSO could take several steps to improve performance and “facilitate access to justice.” For instance, it could invite more American or Mexican jurists to visit and explain how their systems are able to tackle many of the same issues in a much timelier manner. Likewise, the LSO could tally and publish comparative statistics on how long various case types take to resolve (since neither the MAG nor the courts are currently doing this), post them on its website, and benchmark those results against neighbouring court systems. However, this assumes that the problem is competence (i.e., the senior judiciary doesn’t know how to run a court system) rather than one arising from a lack of confidence or self-esteem.
To consider this possibility, one could imagine a gym class of approximately 60 elementary students (similar to the number of jurisdictions in Canada and the US) running a 100-metre dash. Most students, it can be assumed, would complete the run in twenty seconds or less, with some minor variance around that. However, one boy in the class, the class clown, takes closer to 70 or 80 seconds to run that same distance, running only part of the way, then twerking, crab walking, backtracking, crawling and stopping several times to write directions about the proper way to run, all while insisting that he is the only true runner in the class. When questioned about his poor performance, he gets defensive, refuses to accept any responsibility, and instead blames his parents for not getting him a more expensive pair of shoes.
In many ways, the senior judiciary on the CRC mirror the class clown. Like him, they oversee a system that achieves outcomes several times more slowly than its peers. They likewise inject a bunch of nonsense into the process (i.e. requiring two people to serve and file a document, back pages, the rules outlined above, seemingly daily practice directives), and when taken to task over poor systemic performance, are quick to blame the Ministry of the Attorney General (widely acknowledged to be abysmal) for not giving them all of the fancy toys necessary to get the job done, ignoring their role in the current state of affairs.
While the LSO is not in a direct position to implement systemic improvements (and licensing cadres of lawyers who can work an index has not had beneficial effect), it could perhaps affect gains indirectly by leveraging its prestige and granting participation trophies to the senior judiciary on the CRC, acknowledging their role in the current system (possibly boosting their confidence if flagging?) There is, of course, some precedent for this as the LSO already grants several awards and honours, though those are generally achievement-based.
Of course, not all judges on the CRC would need or warrant a participation trophy. Some are out in the trenches every day, pushing the system forward, and pointing out for the benefit of their peers that evidence is no longer recorded “using quill and ink.” In future, hopefully, voices like those on the CRC will prevail over the deadwood.