To restore court functionality in 2021 we must expect more from our institutions of justice

The pandemic highlighted the real reform work required this year, argues LSO Bencher Michael Lesage

Michael Lesage

The coming year will be a seminal one for the Ontario civil justice system. Barely functional prior to the pandemic, its many failings were brought home early on, when for all intents and purposes, it was forced to close. Though some functionality has since been restored through a variety of stop gap and triage measures, the real heavy lifting remains, and will fall largely to the attorney general, the members of the Civil Rules Committee and the LSO. How each respond will shape both the court system and legacies for years to come.

As an institution, our civil courts exist to afford people an impartial forum to determine their rights and peacefully resolve their disagreements. Unfortunately, they have not kept pace with a changing society, and have instead (as have Western courts generally) created their own (strict) version of common law. This has resulted in processes and procedures more at home in the 17th century than the 21st, such that everyday conveniences and utilities, such as Google, remain off limits. Conversely, where there has been innovation over the last several hundred years, such as the creation of evidence law, it has largely served to make the system more Byzantine and time intensive.

To address these challenges, bold action is required from the attorney general and the Ford government. In theory, this could take the form of vastly expanding the amount of resources available to the justice system, allowing it to process more matters, faster, without otherwise changing or updating the way in which things are done. In practice, this would mean more courthouses, more judges, more staff and more funding for legal aid. However, given the continued pressure upon public finances, I view this outcome as unlikely.

More realistically, the attorney general and Ford government could approach this as an optimization problem, and begin to focus on how to accomplish more, given the resources available. For instance, it may be that in a criminal proceeding, an accused does not need to appear before a judge 13 times between the initial appearance and trial, as was seemingly the case with “Chair Girl.” Likewise, perhaps the average family matter does not require hundreds of hours of professional time to resolve, and that simpler guidelines/laws could be implemented governing custody, access, spousal support, child support and division of property? To borrow thinking from the world of business, where is the real “value add” in the process and are all current steps necessary?

For routine matters generally, such as scheduling, perhaps like at the dentist’s office, that could be delegated to an assistant or secretary (with accompanying staffing provided)? To borrow from municipal law, and though obvious legal heresy, perhaps it’s time for the attorney general to start asking whether our existing courts and judges are being put to their highest and best use by our system?

Answering this question would of course require the ministry to begin tracking (and publishing) various performance metrics, which would allow our system’s performance to be measured against other jurisdictions (e.g. New York), which ideally, will help close the substantial performance gap between Ontario courts and those in competing jurisdictions.

Wielding great power, the Civil Rules Committee also bears great responsibility in restoring the Ontario court system to functionality. For those unaware, prior to COVID, this committee was apparently preoccupied with such weighty matters as which colour of backsheet was most beautiful (blue), or how many people were necessary to serve a document (at least two). While they had heard of computers, they had not yet given thought as to how they would be used within the court system or on what timeframe. Focused as they were, they had apparently failed to notice that many of the rules created more, rather than less conflict (i.e. discovery plan, discovery rules generally) while others served to delay, rather than advance resolution (i.e. Rule 48.04).

Apparently, the committee was also unaware of how long it was taking matters to reach trial in Ontario (5-10 years), or how unfavourably this compared to most other advanced jurisdictions, such that they had seen little need to update the rules. This was keenly felt in the early days of the pandemic, when both the court system and the profession were largely unable to function, which again, compared unfavourably with neighbouring jurisdictions.

I now hope that the Civil Rules Committee will refocus upon ensuring matters are resolved on the merits in the most expeditious and least expensive way. Like Small Claims court, this may mean the large scale jettisoning of evidence law, or gasp, even the acknowledgement and acceptance of Google for certain things (in place of expensive hired guns for everything).

This may also mean rethinking discovery rules. For instance, isn’t there an obvious conflict in requiring counsel for one party to determine what documents are relevant to the other party’s claim? Moreover, what benefit is obtained from arguments between counsel at discoveries, which ultimately lead to undertakings and refusals motions? Isn’t the American practice simply better, of seeing the questions answered with admissibility determined at trial? Finally, what needs be changed so that matters reach trial in a timely manner?

As the final member of the justice league, the Law Society of Ontario has a significant role to play in restoring our court system to functionality. Mandated to facilitate access to justice, it must do more to see that the people have timely access to the justice system, and that the justice system adjudicates the matters important to them, in a language they understand (hint, not Latin). Like the attorney general, the LSO failed to obtain performance metrics for the court system or to benchmark its performance against other jurisdiction. In this way, the LSO has been deprived of the information necessary to properly fulfil its mandate, which has allowed the government to skate by for far too long with an underperforming court system. This too needs to change.

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