The Ontario Superior Court is attempting to hide poor performance behind a privacy excuse

A full analysis of the court's performance requires more transparency

The Ontario Superior Court is attempting to hide poor performance behind a privacy excuse
Michael Lesage

At its core, the Ontario Superior Court acts as an arbiter of disputes. If it follows the common law, it should resolve matters without undue delay. However, as recognized by Justice Brown of the Court of Appeal, one of Ontario’s preeminent legal minds, the Ontario courts have long been afflicted by a culture of complacency. This has resulted in excessive delays across the court’s operations, from criminal to family law to civil matters.

In the civil sphere, it has long been acknowledged, including by former Chief Justice McMurtry that “[t]he public is entitled to an affordable and timely resolution of civil disputes.” Yet even before Covid, the Ontario Superior Court, which bills itself as “one of the busiest trial courts in the world,” held very few civil trials. For instance, Toronto held only 234 (jury and non-jury) civil trials in 2019, whereas Hamilton held 18. In Toronto, on average, it took matters five years and nine months to reach a jury trial, and four years and four months to reach a non-jury trial. This contrasts markedly with the situation in New York City for instance, where matters are heard promptly, and in the first month after jury trials resumed post-lockdown, nearly 200 were held.

Almost certainly, this information (like the internet in 2020) came as a surprise to the Ontario Superior Court. Jointly captained by the chief justice and the Ministry of the Attorney General, under a 2008 memorandum of understanding, neither party appears to have put much emphasis on collecting empirical data regarding the court’s operations. Back when it still published an annual report (which ceased with the 2017 and 2018 years), the chief empirical information presented by the senior judiciary centred upon the number of cases commenced by region. Meanwhile, the AG’s 2018 “self-assessment survey” concluded that court services were optimal in all areas that mattered, from labelling tapes and CDs to tracking counter wait times. Oddly, filing rejection rates were not tracked, nor was the ease or rationality of motion scheduling procedures employed.

In addressing the lack of official statistics as to how long it was taking civil cases to move through the Superior Court, Justice Brown did not mince words, describing it as a “most scandalous state of affairs for a public institution” (elsewhere in his remarks, he colourfully likened the Ontario Superior Court to an “old shoe”).

To create some of the data that the Superior Court was not, I had asked the court to provide me with the number of cases that had gone to trial (jury and non-jury) at a handful of courthouses, along with the related case numbers. Similar information had been provided to me in the past, and given that case numbers (i.e CV-15-00345678-0000) indicate the year matters are filed, this would have allowed me to determine the length it was taking cases to reach trial from filing to an accuracy of within several months.

Oddly, and in contrast to the open court principle (or the former chief justice’s statement in the 2017-2018 annual report that the court provided accurate and timely responses to media inquiries by proactively offering information about matters of high public interest), the Superior Court responded largely as follows:

“The Ontario Superior Court of Justice has exclusive ownership over all court data and must approve all (external) requests for data. Information (such as case file numbers) that could lead to personal identifiers will not be provided. Further requests of this nature will not be responded to.”

To address the court’s newfound concern regarding “personal identifiers,” I then limited my request to the first six characters, i.e. CV-15-00 of each case number, as that contains all of the information I was looking for, which request was similarly refused.

Interestingly (and inconsistently), the Ontario Superior Court of Justice has no issues with itself publishing hundreds and hundreds of party names, and case numbers, along with the time, location and type of appearance pending on its daily court lists. If even partial case numbers contain “personal identifiers” as alleged by the court, then what about the court’s widespread daily publication? Likewise, published decisions contain personal identifiers, along with significant information about the parties and the dispute. Unpublished decisions may be obtained by anyone from the court upon payment of a fee.

As the Ontario Court of Justice has recognized:

“…transparency is the lifeblood of democratic states. With openness comes scrutiny, with scrutiny comes accountability and with accountability comes enhanced public confidence in the operation of state institutions….. thus there is an expectation that the courts will operate in an open and transparent way. Other than in extremely limited circumstances, secrecy is anathema to the operation of the courts in a democracy.”

This is not a new concept and was covered at length by the Supreme Court of Canada in A.G. (Nova Scotia) v. MacIntyre, a 1982 case that dealt with access to issued search warrants and supporting material. In addressing the “privacy argument” raised, the SCC stated:

“Though the publication of such proceedings may be to the disadvantage of the particular individual concerned, yet it is of vast importance to the public that the proceedings of courts of justice should be universally known. The general advantage to the country in having these proceedings made public more than counterbalances the inconveniences to the private persons whose conduct may be the subject of such proceedings.”

In MacIntyre, the SCC also stated that “[a]t every stage the rule should be one of public accessibility and concomitant judicial accountability.”

Accordingly, the SCC held that after a search warrant had been issued and objects found, the public was entitled to inspect the warrant and information upon which it was issued, as the general rule of public access must prevail. Surely the privacy interests associated with whole or partial case numbers are much less compelling, though disclosure (and determination of delays to trial) may prove more embarrassing to the senior judiciary.

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