To restore court functionality in 2021 we must expect more from our institutions of justice
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1/15/2021 To restore court functionality in 2021 we must expect more from our institutions of justice | Canadian Lawyer
· News · Opinion
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
By Michael Lesage
OPINION 04 Jan 2021 / Share
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
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1/15/2021 To restore court functionality in 2021 we must expect more from our institutions of justice | Canadian Lawyer
more courthouses, more judges, more staff and more funding
for legal aid. However, given the continued pressure upon
public nances, 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 o ce, that could be delegated to an assistant or
secretary (with accompanying sta ng 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 con ict (i.e. discovery plan, discovery rules
generally) while others served to delay, rather than advance
resolution (i.e. Rule 48.04).
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1/15/2021 To restore court functionality in 2021 we must expect more from our institutions of justice | Canadian Lawyer
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 con ict in requiring counsel for one party
to determine what documents are relevant to the other party’s
claim? Moreover, what bene t 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 nal member of the justice league, the Law Society of
Ontario has a signi cant 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 ful l its mandate, which has allowed the
government to skate by for far too long with an
underperforming court system. This too needs to change.
Related stories
COVID-19 exposes barriers to working remotely
Ontario’s Rules of Civil Procedure need updating
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