How Well Is Chief Justice Morawetz Overseeing Ontario Superior Court Operations?

As Chief Justice Morawetz enters his 5th year as head of the Ontario Superior Court, it is both appropriate and necessary (given the court’s acknowledged culture of complacency) to ask “how well is he overseeing court operations?” Answering this question with the tools and data presently available is challenging, as Ontario lacks a history of accountability (or transparency) from either the judiciary or the court itself. Yet as the old truism goes, “you can’t improve what you don’t measure.”

i) The Role and Importance of the Superior Court

Canada’s system of parliamentary democracy has three branches, the executive, legislative and judicial. In Ontario, the Superior Court is the trial court, responsible for applying and interpreting the Constitution, legislation passed by both levels of government and the common law. In so doing, it helps to mold the social fabric governing everyday life. Its performance, or lack thereof, has real world consequences. As stated by Chief Justice Wagner, our courts should provide “good justice for everyone, not perfect justice for a lucky few. It’s a democratic issue. It’s a human rights issue. It’s even an economic issue.”

In the June 2013 OECD Economic Policy Paper ‘Judicial performance and its determinants: a cross-country perspective,’ Palumbo et al. write (internal citations omitted):

“Well-functioning judiciaries are a crucial determinant of economic performance. They promote the efficient production and distribution of goods and services by securing two essential prerequisites of market economies: security of property rights and enforcement of contracts. Security of property rights gives agents incentives to save and invest, by protecting returns from these activities. A good enforcement of contracts stimulates agents to enter into economic transactions, by dissuading opportunistic behaviour and reducing transaction costs. This has a positive impact on growth through various channels: it promotes competition, fosters specialization in industries where relationship-specific investments are most important, contributes to the development of financial and credit markets and facilitates firm growth…..

However, judicial systems can suffer from inefficiencies, which may be sufficiently serious to have a negative impact on economic performance. Even though in the OECD area the average length of civil proceedings is around 240 days in first instance, in some countries a trial may require almost twice as many days to be resolved. On top of being lengthy, judicial decisions are sometimes too uncertain, inducing litigants to undergo a long process of appeal before the higher courts, which in some cases can average more than 7 years.”

Likewise, in The World Bank Comparative International Study of Court Performance Indicators, A Descriptive and Analytic Account, Buscaglia et al. state:

“[t]here is a growing awareness that a judiciary able to resolve cases in a fair and timely manner is an important prerequisite for economic development. In many developing countries, the judiciary is not consistent in its conflict resolution, and carries a large backlog of cases, stifling private sector growth and causing the erosion of individual and property rights.”

In other words, a poorly performing court system can negatively impact upon the state at large, serving as a damper on economic activity and holding back growth. This fact has been acknowledged by Chief Justice Wagner, who stated that “[w]hen justice is not accessible, there is a real economic cost, on top of the social and human costs.”

ii) The Role of Ontario’s Chief Justice and his unhappy marriage (with the MAG)

Similar to parenting in an unhappy marriage, the Chief Justice (appointed Federally) shares responsibility for the administration of the Ontario Superior Court with the Ontario Ministry of the Attorney General. As such, Justice Morawetz is responsible for directing and supervising the sittings of the Superior Court, assigning judicial duties, assigning cases, determining the sitting schedules of judges, along with their total annual, monthly and weekly workload. Certain employees of Court Services, specifically trial coordinators, report to the Office of the Chief Justice. The Chief Justice is also responsible for appointing nearly half of the members of the Civil Rules Committee.

Meanwhile, the Court Services Division of the MAG is responsible for the administration of the courts, such as providing facilities, court staff and electronic filing and document sharing software. Pursuant to the 2008 Memorandum of Understanding with the Attorney General, for matters assigned to the judiciary, court staff (provincial employees) act pursuant to the direction of the Chief Justice.

In many respects, the MAG is a less than ideal judicial partner. In larger centers such as the GTA, it has limited competence in operations, and struggles for instance to accept routine filings or with the booking of routine motions. It also struggles to have its employees show up for work, with the average Court Services employee taking 14.5 sick days in 2018 (marked pg. 86), the last year for which data is available. MAG also came very late to the game regarding e-filing, bringing in same only when forced after the onset of the pandemic.

In regards to administration, the court’s inaugural annual report (2007-2008) stated:

“The courts must be administered to maintain the independence of the judiciary, recognize the very separate and distinct roles and responsibilities of the Attorney General and the judiciary, encourage public access to the courts and public confidence in the administration of justice, further the provision of high-quality services to the public, and promote the efficient use of public resources….

The Chief Justice has a unique responsibility… for safeguarding the independence of the judiciary. This responsibility requires the Chief Justice to serve as lead communicator and liaison with the federal and provincial governments and also with (its) the many partners in the justice system.”

iii) How can court performance (or that of the Chief Justice) be measured?

To date, the Ontario Superior Court has neither acknowledged nor published any useful performance metrics (and it was previously faulted by Ontario’s Auditor General for not having case disposition targets). Instead, it has preferred to make self-congratulatory statements along the lines of “[t]his Court is one of the busiest and most accomplished trial courts in the world.” However, merely making such boastful statements does not make them true, nor mean that useful performance metrics for courts do not exist.

One of the simplest performance metrics for courts, already used by the Ontario Court of Justice, is referred to as the ‘Clearance Rate,’ and in its simplest form, measures whether a court is performing the work the public expects of it in a given year, or resolving as many cases as were opened. This is illustrated by the below figure from the European Commission for the Efficiency of Justice’s Evaluation (CEPEJ) Report, 2022 Evaluation cycle (pg. 164).

A second basic performance metric is the rough ‘Disposition Time.’ Where the number of cases resolved in a period is known (and given the number of pending cases is known by the Superior Court), it is possible to get a rough idea of how long it is taking cases to move through the system. Put simply, this looks at the number of cases outstanding at the end of the year, divided by the number of cases resolved during the year, and is similar in concept (though currently inverse) to an inventory turnover ratio in retail (and it can be measured in years, or in days, if multiplied by 365 as shown below). The following two figures from the same CEPEJ Evaluation Report, 2022 Evaluation cycle are illustrative.

iv) How was the Superior Court performing before Chief Justice Morawetz was appointed?

In his 2021 Opening of the Courts speech, Justice Morawetz remarked that when he began his role (July 1, 2019), his long-term vision was to ‘bring the Court into the 20^th century.’ As the court was then nearly entirely paper based, having missed Al Gore’s invention of the internet, that was not then an unreasonable goal.

From a review of the Superior Court’s most recent annual report, from the 2017/2018 year, it is clear that the Superior Court had limited insight into its own operations. Specifically, it indicated that 10,000 decisions (page 5) were rendered, “in a timely manner,” (though the reader may note this is not a particularly high number of decisions given the court states it is comprised of over 300 Federally appointed Judges, meaning each is churning out a decision or so every couple of weeks). Otherwise, the most recent annual report contained little of substance, beyond the number of new proceedings commenced by region.

The Auditor General’s 2019 Annual Report on Court Operations was significantly more informative, in that it included some very basic data as to the functioning of the Superior Court, specifically indicating the number of cases opened and closed per calendar year (see Figure 1). Doing some simple math (indicated in red), this indicates that in each year listed, the overall Superior Court backlog increased, by, on average, a bit more than 60,000 cases (as many more cases were received than disposed).

If we then calculate the Superior Court’s overall clearance rate per year (which can be done from the above table by backing out the data from the Ontario Court of Justice, which given the dictates of Jordan, skews the results heavily upwards), it can be determined that the Superior Court had an overall clearance rate between 61% and 75%, depending on the year (though the civil clearance rate ranged between 45% to 58%). Conversely, most European courts, as indicated in the chart below taken from ‘What can be said on clearance rate and disposition time (and some more relations)’ run at close to 100% clearance rates, while the The World Bank Comparative International Study of Court Performance Indicators, A Descriptive and Analytic Account, indicates that countries with clearance rates of less than 79% need to ‘examine the judicial system to determine what reforms are missing and which did not work.’ For Ontario civil cases, clearance rates were less than 50% for all but the first year of the above period, a marked divergence from European Court performance.

Unfortunately, the current statistics available from the Superior Court do not allow the ‘Disposition Time’ to be calculated, and the Court, in a comment to a Frank report, has stated that ‘it is not possible to provide an accurate report on the average number of days to get to trial.’ However, via data provided by the Superior Court, it was determined for instance that in 2019, cases were reaching jury trial in Toronto a mere 5 years and nine months after filing, many times longer than any of the European countries listed in the chart above (and some of whom have been at war within the last few decades), and also multiple times longer than in the US. No wonder leading Ontario jurists describe the court system as broken. The open question is whether the Chief Justice has the interest and ability to fix it.

v) The Chief Justice’s Tenure so far

Shortly after being appointed Chief Justice, the pandemic struck, and the Superior Court collapsed around him. Only then did the Superior Court adopt e-filing (though whether the MAG accepts such filings remains an open question). Minor changes were made to the Civil Rules, to account for newfound electronic realities, though the Rules themselves remain largely unchanged from when first adopted in 1881 (page 3) which coincidentally, was the year when Toronto was getting its first phones.

Further, it would appear that the Superior Court used a large part of its ‘down time’ after Covid to write new “Notices to the Profession,” “Guidelines,” and “Practice Directions” that in many instances, are region or courthouse specific. This has furthered the balkanization of the Ontario Superior Court and in many cases, led each courthouse to adopt courthouse specific policies on pretty much everything, from filing documents to motion and trial scheduling. It has also imposed new Caselines ‘busy work’ requirements to each file, specifically with regards to hyperlinking, leading to significant extra work with each filing. Of course, this is horribly inefficient, and likely contributes to the steady rise in self-represented litigants appearing before the court.

Apparently bashful, the Chief Justice has not thought it necessary for the Court to publish an annual report since this was last done in 2018/2019. In many ways, that makes sense, given the Superior Court has already announced how high an opinion it holds of itself, and does not track any metrics (key performance indicators) on its operations, with the possible exception of number of new cases opened. Likewise, there was likely little to report in either 2020 or 2021, as little court business was then being conducted. It is additionally worth noting that the Ontario Auditor General, in her report, had more and better data as to the functioning of the Ontario Superior Court than the court itself. When you combine this with the fact that the Ontario Court of Justice, with Provincially appointed Judges tracks various performance metrics, it would seem to suggest that the problem rests with the Federally appointed Judges (such as the Chief Justice) themselves.

Provided that is the case, such conduct is self-defeating. As indicated in The Measurement of Judge-Time and the Evaluation of Judicial Performance: Reducing the Discrepancies more than 40 years ago:

“As Courts have found it necessary to seek augmented resources on an accelerating scale, justifications have required better and more impressive data. Attention to wise use of available resources has been a prerequisite for successful additional aid. ·The Courts have therefore developed, and made available information formerly denied not only to the public but even to other members of the judiciary.”

Also troublingly and further indicative of a lack of transparency by the Court, the Chief Justice blocked (or upheld the blocking of) the release of civil case numbers, for cases that had gone to (public) trial, on the spurious ground that such numbers contained “personal identifiers,’ in seeming contrast to the dictates of the Canadian Judicial Council’s “Model Policy for Access to Court Records in Canada.” Such case numbers had been requested for the stated purpose of determining how long it was taking for civil cases to move through the court. Unless the purpose of the Superior Court has changed from that previously announced in its 2007 annual report, it is hard to see how such decision

“[e]ncourage(s) public access to the courts and public confidence in the administration of justice, further(s) the provision of high-quality services to the public, (or) promote(s) the efficient use of public resources….”

vi) Frameworks to Measure Performance

In better established and performing legal jurisdictions, chiefly the US and Europe, a number of methods have been developed to evaluate judicial performance. Before we get into those, it is worthwhile to again consider the 1982 study ‘The Measurement of Judge-Time and the Evaluation of Judicial Performance: Reducing the Discrepancies.’ In the background section, and applicable to Ontario today, it provides:

“The strong tradition of judicial independence in American society ‘has been an impediment to clear understanding of the judge’s role. The legitimate (and praiseworthy) reluctance of our judges to go beyond the written opinions in justification of their actions has (at its extreme) shaded into fierce unwillingness to be accountable for performance or even courtroom manner and demeanor. The truth is that any form of accountability can be abused to diminish independence. The boundary between accountability for workload and the substantive outcome is not a precise, well-built Maginot Line of fortresses but is rather a straggly indistinct no-man’s land. Judges could once rely on this to create an autonomous life-style. The public and its representatives have relied on peer-group pressure to deal with’ most problems of effort or conduct, preferring the risks of occasional abuse by Judges who are independent over the perils of abuse of the Judges’ autonomy by other authorities. That decision has meant that much information available in other areas of political life is (to use Theodore Becker’s phrase) hidden behind the “velvet curtain” of the Judiciary.

Significant changes in the environment of courts have altered that balance. Attitudes are in transition on those questions, almost as much on the part of those on the bench as off it. As judge-time becomes more-and-more a scarce social resource, especially relative to demand, its allocation is no longer seen as something best handled by the sovereign individual judge. With priorities, and even deadlines, on litigation now commonly mandated by the legislature. judges feel external pressure on their disposition of time. They may actually seek planning as a counter-weight to legislative control as well as a rational means of dealing with the central problem of overload.”

One framework for judicial evaluation was provided by the United States Agency for International Development, as part of its “Ukraine: Rule of Law” project. That report, titled ‘Court Performance Evaluation Framework: Standards, Criteria, Indicators and Methods suggested five areas of evaluation, namely funding and material and technical support, court administration, judicial self-governance, user satisfaction and court openness and transparency. While helpful in that it presented both criteria and sample surveys, it is likely too complex for practical use at the Ontario Superior Court at present, which simply isn’t yet at the point the developing Ukrainian courts had reached by 2008.

A simpler methodology that the Ontario Superior Court may be able to adopt is set forth in the Council of Europe’s ‘Performance indicators and evaluation for judges and courts’ report. Chiefly, this involves the tracking of six metrics (key performance indicators), many of which are known or easily obtainable. These are the caseload per judge, labour productivity, the duration of proceedings, cost per case, clearance rate and the budget of the court.

The Superior Court’s clearance rate, as indicated above, is much lower than its peer group average. Likewise, assuming court output to be 10,000 decisions, as set forth in the most recent annual report, spread over around 300 Judges, productivity can likewise be assumed to be low (though perhaps that’s made up for by the subjective ‘quality’ of 297 paragraph decisions on a refusals motions?). Duration of proceedings in Ontario is also much higher than in other jurisdictions. Given the Superior Court is aware of its budget, the cost per case can be determined, and caseload per judge is a simple arithmetic exercise.

vii) Can judicial performance be measured in accordance with the doctrine of judicial independence?

Within the Canadian context, judicial independence has three components, security of tenure, financial security and institutional independence. While the first two are relatively self-explanatory, namely that Judges can’t be fired or have their salaries reduced, the institutional independence aspect is more nuanced. Specifically, given the joint management structure (the unhappy marriage referenced above) of the Ontario Superior Court, and as recognized by the Supreme Court in Valente v. The Queen, 1985 CanLII 25 (SCC) at para 48, the primary role of the judiciary is adjudication, whereas the executive (MAG) is responsible for providing the staff. Accordingly, “the heads of the judiciary have to work closely with the representatives of the Executive unless the judiciary is given full responsibility for judicial administration.” As the Supreme Court recognized, “[a]t times there may be a fine line between interference with adjudication and proper management controls.”

As stated by Justice Strathy (as he was then) in Association of Justices of the Peace of Ontario v. Ontario (Attorney General), 2008 CanLII 26258 (ON SC) at para. 72, judicial independence is not “and end in itself but rather is designed to safeguard the constitutional order and to preserve the rule of law, so as to ensure public confidence in the administration of justice. It exists not for the benefit of the judiciary, but for the benefit of the public.”

Given the current state of the Ontario Superior Court (where it is common around Toronto for routine civil hearings to be set more than a year into the future) confidence in the administration of justice is plummeting, as indicated by articles such as ‘Your whole life on hold’: As feds fail to fill judicial vacancies, Ontarians are waiting years for civil hearings,’ or ‘Ontario woman could be forced to cancel August wedding due to ongoing court delays.’

Against this backdrop, and as succinctly stated in Performance indicators and evaluation for judges and courts:

“[s]omeway or somehow, the performance of a judge and a court must be evaluated, because courts are financed by public means and play an important role in the protection of the rule of law in countries and the day-today life of citizens and companies.”

While at least one previous Canadian study had attempted to measure the quality of Federally appointed judges, this was met with pushback from bench and bar over concerns about judicial independence . It must however be noted that this study took place in 2009, more than a decade before the court belatedly attempted to enter the present.

viii) Evaluating the performance of Chief Justice

Getting back to our original question, it is clear that had the Chief Justice been in his position longer, he, like his predecessor, would be badly failing in his tenure. However, it is important to recognize the condition of the Ontario Superior Court at the time the Chief Justice took over, specifically a dysfunctional paper-based anachronism frozen in the 19^th century.

In certain areas, such as the adoption of technology, the Chief Justice has led the court forward. E-filing was belatedly adopted, and the court discovered that parties could appear in court over video, obviating the need for parties and counsel to trudge all over the province to stand (and wait) in court. Additionally, a mere two years and nine months after the onset of the pandemic, a plan was belatedly announced to tackle court backlog (though the first extra trial sitting was scheduled 11 months in future of the announcement date). Otherwise, the court no longer requires two people to file one document, so there’s that…

Yet in other areas, the Chief Justice has failed to meet expectations. As noted, under his leadership, the Superior Court is no longer producing an annual report, or releasing even the limited data set forth therein. The Superior Court continues to track less information about its internal operations (which the Court of Appeal has described as ‘unfortunate’) than the Ontario Court of Justice, and back when it still did so, published less useful information about its operations than the Auditor General. Again, this tends to suggest that the problem with disclosure rests with the Federally appointed judiciary. Moreover, to date, no plans have been announced to track any useful performance metrics (nor to implement any key performance indicators), and there is little evidence that Chief Justice Wagner’s admonition that “we can no longer be complacent about delay” was heard, much less followed.

Troublingly, the Chief Justice has opposed requests for information on court operations, while overseeing an explosion of new Notices, Guidelines and Directions, which run counter to the stated purposes of R 1.04, and which has led to push back from FOLA, among others.

Given the challenges inherited, I think it’s fair to rate Chief Justice Morawetz’s performance to date as ‘marginal.’ Going forward, even should the Superior Court fail to itself adopt any performance metrics/key performance indicators, I believe the Chief Justice (and by extension the operations of the Ontario Superior Court) can fairly be judged by combining two simple performance metrics, namely clearance rate and disposition time, as set forth by the Chief Justice Performance Measurement Rating below.

Should Clearance Rate and Disposition Times move towards the norms for wealthy countries, then the Chief Justice’s job performance rating would increase accordingly. Additionally, if the Chief Justice drives significant annual improvement to either metric, then the Performance Bonus would kick in as indicated, providing a significant boost to the Chief Justice’s annual rating. Conversely, should both indicators continue to seriously lag, then it would respectfully be suggested that the Chief Justice get an early start on his retirement, to allow someone else to come in and clean up the current mess.

SCJ INEFFICIENCY FACTOR is calculated by determining how many times longer, on average, it takes for a case (criminal, family, civil) to be resolved at the Ontario Superior Court, in contrast to a similar case in a comparable jurisdiction such as the US or Europe (i.e. if the Superior Court resolved criminal cases in 2.5 times as long as in NY State, family cases in 2 times as long, and civil cases in 3 times as long, the inefficiency factor would be the average of those, or 2.5 times, and the Chief Justice’s Performance Rating would be reduced by such factor accordingly). At least initially, Disposition Time for each type of case would be used.

PERFORMANCE BONUS is a temporary component of this performance rating, intended to recognize the current state of the Superior Court of Justice, and to incentivize the Chief Justice to drive significant improvements to one or both of Clearance Rates and Disposition Time. If the Clearance Rate increases by more than 20% in a given year (i.e. from a 65% Clearance Rate to an 85% Clearance Rate), or the SCJ Inefficiency Factor decreases by more than 20% in a given year (i.e. from 2.5 times to 2 times), the Chief Justice would receive a performance bonus of the higher of the absolute value of either change. After 5 years, the Performance Bonus would no longer be applicable, and the Chief Justice would be judged against his peers based solely on Clearance Rates and the SCJ Inefficiency Factor.