Ontario Court of Appeal broadens judicial independence to preclude judicial accountability

Recognized as broken by its leading jurists, and increasingly unable to shepherd even serious criminal cases to trial, it is perhaps not surprising that Ontario’s senior judiciary fear any form of accountability for their management, or mismanagement of the Ontario court system.

This was vividly illustrated in a recent case I lost, where it was determined that I, and the public at large, had no right to know how many cases were reaching trial (in our public court system), or how long they were taking to get there. While that information was readily available in the court’s Frank database (and is published by most other court systems), it’s not published or utilized, as our senior judiciary has elected to oversee the administration of our court system without setting performance targets. Ignorance, it would appear, is bliss. 

That the Ontario Superior Court reached such a decision, or that it was upheld by the Ontario Court of Appeal, was not entirely surprising. The court’s history of reporting to the public dates back only to 2009 and, to a large extent, consists of extolling its virtues (as perceived by its senior jurists) and listing the number of new cases opened by region.

Even this perfunctory effort was apparently too much, with the court ‘taking a time out’ from reporting for the years 2019 through 2023, only recently releasing a report covering that period.

Interestingly, while its most recent report shows a decline in the number of events heard from 2019 (which will not surprise those familiar with the system), it shows several thousand civil trials having been held in that span (which will come as a great surprise), or about half that number if the conflicting statistics from the next page of the report are to be believed instead …… 

While Ontario’s senior jurists may have missed the Supreme Court’s implicit criticism of their performance in Hryniak, Ontario’s Auditor General was more direct, writing in her 2019 Annual Report: 

“The courts are public assets, supported and financed by the people of Ontario, and the administration of justice is a public good. Therefore, while we respect the independence of the judiciary and the confidentiality due to participants in legal matters, we nevertheless believe that it is within our mandate to review information that would be needed to assess the effectiveness of court operations and the efficient use of resources, given that taxpayer monies support court operations.” 

In an effort to address the information vacuum, I initially inquired with the court as to how many cases were reaching trial and how long they were taking to get there, but was informed that “it is not possible to provide an accurate report on the average number of days to get to trial.”

Thereafter, I requested a listing of civil case numbers for matters reaching trial at a handful of courthouses. That list was produced, which showed Toronto held a total of 234 civil trials in 2019, and using some basic math from the case numbers provided, that matters reached jury trial there, on average, 5 years and 9 months post filing. I published that finding, which was also cited by academics, and then the story begins to get interesting. 

In 2022, I made a follow up request. Now the court wanted to know my purpose and the intended audience. After some back and forth and delay, I was informed that “information that could lead to personal identifiers (even the first 6 digits of case numbers, CV-15-00) would not be provided, and that further requests would not be responded to.

Though the court lacked any formal procedure governing such records requests (having agreed to develop one in 2008, but never having done so), I appealed to the Office of the Chief Justice, but was informed that the response would not be reconsidered, and that it was inappropriate to contact the Chief Justice about matters of court administration.  

I then brought an Application, and (despite nemo judex) sought to have the Application Judge consider the propriety of his boss’s decision, chiefly relying upon the open courts principle and the text of the Courts of Justice Act. There was additional authority from the Canadian Judicial Counsel that such information should be provided, and all of which indicated that the public had a presumptive right of access to all court records.

Despite that, and while describing my approach to the litigation as “almost flippant” the Application Judge held that: 

a. the judiciary maintains exclusive control over court records; 

b. the judiciary determines what, if any, court records can be released;  

c. once the judiciary refuses a request for court records, that is “the end of the matter”.         

Belatedly recognizing I had a fool for a client, I retained Supreme Advocacy LLP to handle my appeal. I was initially hopeful, as the Court of Appeal had recently bemoaned the fact that the Superior Court did not publish data on how it managed and disposed of its caseload.

However, my appeal was dismissed, with the Court of Appeal relying upon the unassailable logic of a catch-22, namely, that while I could not name the court (or Chief Justice) as party and had properly named the Attorney General, only the court (or Chief Justice) had authority to release the information sought, making any declaration detached from the rights of the parties.

That holding would appear to foreclose any challenge to obtaining court records, once denied by the Court. 

In so ruling, Ontario’s Court of Appeal has broadened the Canadian version of judicial independence, turning it into a complete shield against judicial accountability and frustrating the ability of the public and press to learn very basic information about the function, or dysfunction of the court.

Thus, while court records remain presumptively accessible under the open courts principle, the public and press are now deprived of any real means to exercise such rights, allowing the senior judiciary to veto, in their absolute discretion, the release of court records as they see fit. Oh, and the court also needs more public funds and judges……