Can the Ontario justice system and civil rules committee adapt?

Since crawling out from under a rock (circa March 2020), the Ontario Superior Court and the civil rules committee have had to contend with several rather inconvenient truths. The harshest, and likely most surprising (to members of the court), would have been the realization that the Ontario Superior Court was not the only one of its kind in the world. No less unkind would have been the realization shortly thereafter that the Ontario Superior Court was objectively closer to the bottom than the top of its (newly discovered) peer group, more the floundering ugly duckling than the beautiful swan it had imagined itself to be.

It seems that this realization is slowly taking hold in fits and starts. At the recent opening of the courts ceremony, the chief justice acknowledged that the current situation in civil proceedings cannot continue, that the court risked becoming irrelevant for civil proceedings, and that in the long run, the Rules of Civil Procedure needed to be overhauled. Essentially, the chief justice acknowledged what one of Ontario’s preeminent jurists, Justice David Brown, has been stating for (at least) close to a decade. Yet in the same speech, the chief justice also opined that returning to in-person hearings is an integral part of the judicial system and “essential for access to justice.” As noted, change is happening at the Superior Court, albeit in fits and starts.

Given the content of the chief justice’s speech, he apparently (with good reason) has little faith in the civil rules committee. Comprised of 29 members, these are the folks who continue to require two people to file one document (affidavits of service), have adopted unworkable discovery rules that frustrate discovery and generate conflict (but see a recent 297-paragraph decision on a refusals motion, vividly illustrating the practicality and wisdom of the current rules), and oversee what the leading member of the committee (Myers) has described as a “broken justice system that no one’s that interested in fixing.” Tellingly, the current functioning of the Superior Court is perhaps best demonstrated by the truly mundane. Namely, in furtherance of the current rules, some GTA area courthouses reject nearly half of all submitted civil documents.

Interestingly, and perhaps mindful of his audience on the civil rules committee, Ontario’s chief justice was much less ambitious and forward-looking than were his counterparts in Quebec at their opening of the courts ceremony, held several weeks prior. For example, the leading Quebec jurists noted the need for quality data and statistics to optimize court operations and improve services to the public. While Ontario’s chief justice mentioned some judicial vacancies, this was done with little context (i.e. how many judges are needed) and was much less informative than data provided recently by Justice Nicholson, for instance. While a step forward from discussing only hopes and feelings, more data is necessary to help the Ontario Superior Court emerge from the judicial bush leagues.

Members of the rules committee will now need to determine whether they are satisfied with the status quo. If the answer is yes, they need only continue their current course and get to revising the rules mañana. While the Superior Court increasingly won’t (and doesn’t) do justice, it will become a bigger and juicier punchline, especially in neighbouring jurisdictions that can operate court systems that resolve matters within reasonable timeframes (such as New York and Michigan). In this way, perhaps Ontario’s Superior Court can gain fame like Rob Ford?

Alternatively, if judges on the rules committee are tired of lagging their peers, they will need to ask several challenging questions. The first, deceptively simple, would be how long it should take for matters to resolve. The current answer to this, at least around the GTA, is between 5-7 years, though several cases reaching trial are 10 or so years old. Like trial scheduling, members can then work backwards to determine what rules need to change to make that possible.

Thankfully, help is at the ready. Knowing of the systemic dysfunction of Ontario’s justice system, the New York State Unified Court System, upon formal request, stands ready, willing and able to assist the attorney general and judiciary in the modernization of Ontario’s court system. Though New York’s chief justice still refers to her own state’s court system as a “mind-boggling maze,” it generally resolves criminal cases within six months, family cases within a year, and civil cases within two and a half, and under its “Excellence Initiative” continues its work to improve.

Of course, members of the rules committee need not look so far afield in efforts to improve the Superior Court. In a recent Slaw article, Professor Chiodo suggested a novel idea: putting the users (i.e. the public who pays for the system) at the centre. Several successful companies (who do not lag behind their competition) have reportedly employed this same strategy.

Of course, this approach would conflict with the court’s general top-down management style, recently exemplified by the chief justice’s pronouncement that “the return to in-person hearings is an integral part of the judicial system.” This pronouncement led to pushback from lawyers, who, over the past several years, have transitioned to become modern knowledge workers, and would seem contrary to Rule 1.04, as more travel does not further “least expensive.” As recently noted by the chief justice of the Federal Court, “we have received very few requests for in-person hearings since the beginning of the pandemic – this despite the fact that our judges are more than willing to return to the courtroom, and we encourage parties to do so.” The public and profession have moved forward. The question remains when the justice system will catch up.