Benchmarking the Ontario Court System

Systems and entities can be evaluated by measuring inputs against outputs, and then benchmarked against peers to rank relative performance. This simplistic measurement tool may not indicate optimal performance (as a whole sector could be functioning poorly) but it can be helpful generally to identify the best and worst performing entities within a given peer group. It can likewise prove useful to identify areas in need of improvement, and when tracked over time, can identify trends in performance. In sum, benchmarking is useful to gauge the relative performance, or lack thereof, of the Ontario court system.

The function of the Ontario Court system, like court systems generally, is to adjudicate disputes between parties and to carry out the administration of justice in accordance with the rule of law. [1] Inputs in this context are cases (criminal or civil) and funding, while outputs are resolutions, by decision or otherwise, and the time required to achieve same.

Though criminal cases are given priority within the Ontario court system, there have been hundreds of cases over the last several years where serious charges have been dismissed for delay (for not reaching trial within 30 months).[2] Additionally, nearly half of family cases remain outstanding more than one year after initiation.[3] Moreover, civil cases do not typically even enter the queue for trial for almost 4 years after filing,[4] with trial frequently not occurring for 6-8 years after the Statement of Claim has been filed. Against this backdrop, it must be noted that in 2019-20, the Ontario Court System had a total budget of $1,682,230,414[5], which works out to just over $115.00 per resident per year. How then does this compare to competing jurisdictions?

Looking first to New York State, the answer can be summed up in one word – poorly. While the New York courts have their share of problems, with their Chief Justice recently calling the current system a “mind-boggling maze” that “… wastes resources, increases litigation costs and does not serve the public well[6]” their performance metrics and goals are much loftier, namely to resolve criminal cases within six months, complex civil cases within thirty months and contested family cases within a year[7]. While those goals are not always met, the number of cases pending beyond the standard times has been cut significantly across all areas in recent years, varying based upon location and case type.[8]

One of the reasons New York’s courts handily outperform Ontario’s is their court’s ‘Excellence Initiative[9],” which is

“an evidence-based approach that rejects satisfaction with the status quo, encourages creativity and demands accountability. It is a recognition, on a daily basis, that the cases filed in our state courts have profound consequences not only for the parties in a given litigation, but for the well-being of our communities[10].”

To accomplish this, New York’s courts use a number of barometers, including the setting of “standards and goals,” for the timely resolution of different categories of cases.[11] Admittedly, it does this with a larger budget of $2,417,118,472[12], but given New York’s larger population, that still works out to funding of just over $118.00 per resident per year, only marginally higher than per resident funding in Ontario. Does that trivial funding differential explain such a great performance gap?

Perhaps New York State is simply an outlier, the metaphorical Tesla to Ontario’s Fiat? To test this, let’s compare with Florida Man, or specifically, the Florida Court System. How is the Florida Court System performing? Again, the answer is objectively much better than the Ontario Court System.

The Florida Supreme Court has played a significant role in promoting system performance by enacting Time Standards for Trial Courts into their formal Rules of Judicial Administration. Their Rules of Judicial Administration (2.545) not only provide that “Judges and lawyers have a professional obligation to conclude litigation as soon as it is reasonably and justly possible to do so,” but further sets forth timeframes that are even more ambitious than those of New York State. Namely, while Florida (Rule 2.250) like New York State expects most criminal cases to be resolved within six months, it expects civil jury cases to be resolved within eighteen months and contested family cases within six months.[13] Interestingly, the Florida courts operate on a shoestring budget of $914,643,781 annually[14], which works out to a paltry $42.00 per resident. So why then are Americans paying less to access Justice, while getting more (and much faster)?

These States are not outliers, as demonstrated by the recent murder conviction of Derek Chauvin for the killing of George Floyd. Specifically, George Floyd was killed on May 25, 2020 with Derek Chauvin being convicted for his murder on April 20, 2021 by jury,[15] less than a year later. Conversely, it took the Toronto court system more than 15 months to sentence ‘Chair Girl’ despite the fact she pled guilty[16].

To an extent, technology and worldliness play a role. For instance, while American courts have long had access to the internet (and hence the means to easily benchmark themselves against their peers), the internet only reached the Ontario court system in 2020 and then, only as a side effect of the pandemic. To that point, our court system existed as a kind of paper based hermit kingdom, self satisfied that it was the best in the world, completely ignorant of just how much better its peers were doing.

Leadership has doubtless played a role in this. Absent prolonged or sufficient public interest, the ‘Justice League’ (comprised of the MAG, Judiciary and LSO) has been content to have the system function largely based upon attrition, or alternately, perhaps they’ve simply chosen to enforce a public policy to that effect. In any event, this has resulted in objective underperformance and a court system that has and continues to fail to serve the public.

In this failure, the senior leadership of the Judiciary takes primary ownership. While periodically mouthing the words ‘access to justice’, or calling for more ancillary system funding (i.e. to legal aid via retired SC Justices[17]), they themselves have done little to improve system performance in those areas within their control. For instance, where is Ontario’s Excellence Initiative, or more realistically, it’s “No longer so bad Initiative?” Where is their push to monitor court performance and implement system benchmarks, to for instance, see that matters move through the system within a reasonable time?

For example, if a robbery charge can be resolved in six months in the US, why does it take 4 or 5 times longer to resolve here? Does the Judicial leadership really believe that our Judges and lawyers are that much less capable than their American counterparts, or the public that much less deserving of timely justice? Trial Justices such as Justice Beaudoin don’t seem to think so, recently writing “The delay of justice is a denial of justice. Magna Carta will have none of it. “… To no one will we deny or delay right or justice[18].” Will that message reach the Judicial Leadership?

_________________________

[1] Wikipedia – Court

[2] ‘It’s a travesty’: Nearly 800 criminal cases thrown out over delays since 2016 Jordan decision

[3] Table 3 Divorce and other family breakdown court cases, by time since initiation, selected provinces and territories, 2009/2010

[4] Civil Trial Statistics, July 17, 2020 Frank Database

[5] Expenditure Estimates for the Ministry of the Attorney General (2020-21)

[6] History (of the New York State Courts)

[7] New York State Unified Court System 2018 Annual Report, pdf pg. 9.

[8] New York State Unified Court System 2018 Annual Report, pdf pg. 10.

[9] New York Excellence Initiative

[10] New York State Unified Court System 2020 Annual Report pdf. Pg. 21

[11] New York State Unified Court System 2018 Annual Report, pdf pg. 10.

[12] (New York) Unified Court System FY 2022 Budget Request

[13] Florida Rules of Judicial Administration

[14] Florida Courts Court Funding & Budget

[15] Wikipedia – Derek Chauvin

[16] Toronto ‘chair girl’ sentenced to $2K fine, probation, community service

[17] ‘We’re in trouble’: Advocates urge Ottawa to help close the access-to-justice gap

[18] Louis v. Poitras, 2020 ONSC 5301 (CanLII)

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