Ontario AG Looks to Circumvent the Rules Committee to Fix the Superior Court

Afflicted with a “culture of complacency[1],” the Ontario Superior Court has long struggled to timely advance cases to trial. Variously described by its leading jurists as ‘broken[2]’ and ‘antiquated[3],’ it has fallen further into disrepute as gun cases[4], a sexual assault case[5] (and another[6] and another[7]) and human trafficking[8] cases have been thrown out due to “excessive delay.” This continues the sordid state of affairs that existed prior to the pandemic, where hundreds of criminal cases were being dismissed annually for delay[9]. Despite this, the Chief Justice continues to publicly insist that “our system is very well respected internationally[10],” perhaps explaining in part the court’s ongoing efforts to hide its performance from public view[11]?

Distressingly, criminal cases in Ontario are only dismissed for “excessive” delay when they fail to reach trial within thirty months[12] (which is three times longer than it takes on average for similar felonies to be resolved in New York City, which is itself above the statewide target of 180 days[13]). While there has been much handwringing (and one successful lawsuit[14]) regarding the government’s failure to timely appoint judges, it must be recognized that the Ontario Superior Court and its 280 sitting Judges[15] (who also handle family and civil matters) only dispose of around 3,100[16] criminal cases per year (which works out to around 11 per Judge). The current shortage of 22 judges[17] (about twice the target vacancy rate[18]) can only go so far to explain the court’s objectively low performance.

Likely (and belatedly) in response, the Ontario Superior Court recently revised and updated the Criminal Proceedings Rules[19]. Meanwhile, the Chief Justice, taking a page from the Law Society Tribunal or other better developed court systems, recently spoke about the need to ensure cases move through the system in an efficient manner, and that court time is used effectively[20].

With the court having prioritized its criminal and family docket[21], and noting that it is taking some civil matters “too long[22]” to reach trial (though from his recent interview[23], it appears the Chief Justice remains unaware of how long cases are actually taking), the Chief Justice (among others) recently noted that the Superior Court “runs the risk of becoming irrelevant if action is not taken now[24].” In an effort to ameliorate that outcome and as part of “Ontario’s plan to bring outdated justice services into the 21st century[25],” the Ontario Government recently announced a plan to overhaul the Rules of Civil Procedure and struck a working group for that purpose. The working group has been tasked to identify issues and develop proposals for reforming the Rules to make civil court processes more efficient, affordable and assessable. Specifically, the reform is intended to increase access to justice, reduce cost, delay and complexity, maximize the use of court resources and leverage technical solutions[26].

The creation of a new working group is telling, given that Ontario already has a 29 member[27] Civil Rules Committee. Of those, Chief Justice Morawetz, himself a member gets to appoint 12 members, while the Chief Justice of Ontario, also a member, gets to appoint 3 more. Four further senior Judges sit on the Committee while the Attorney General and Law Society each get to appoint a further 4 members[28]. The Committee typically met 2-4 times yearly and was apparently content, until the pandemic struck, to continue in place with rules dating from the Victorian era (though in fairness to Committee Members and per Justice Brown, six ‘tweaks’ had been made since 1881[29]). To hear that the civil justice system, which they believed ‘very well respected internationally,’ was ‘broken and antiquated’ was no doubt as large a shock to Rules Committee members as their recent discovery of the internet, four short years ago.

The new working group is chaired by Justice Cary Boswell and lawyer Alison Speigel[30]. It consists of 12 further members, including Jennifer Bezaire, Chatelle Cseh, Darcy Romaine, Jacob Demstra, Jeremy Opolsky, John Adair, Rebecca Jones, Sunil Mathal, Suzanne Chiodo, Tamara D. Barclay, Trevor Guy, Zain Naqi. The working group composition is telling, as it contains a number of younger lawyers, several of whom were admitted to the Ontario bar post 2010, with the average member being admitted in 2006.

Interestingly, there is some overlap in membership between the new working group and Ontario’s historically ineffectual Civil Rules Committee, with Justice Bezaire (at least until her appointment) and Sunil Mathai of the Attorney General’s office being members of each. Otherwise, it is notable that the working group contains only two judges (less than 20% of working group members, much reduced from their 72% share of the Civil Rules Committee), perhaps recognition from the Attorney General that while judges form a crucial part of the justice system, judges themselves do not comprise the whole of the system?

The working group also contains two lawyers from the Ministry of the Attorney General (Tamara Barclay & Sunil Manthai), along with one lawyer from the Office of the Chief Justice (Trevor Guy). The MAG employees will be well positioned to inform the working group as to what percentage of filed documents MAG staff are now able to successfully process without rejection (see stats here[31]), how frequently they are able to fully staff courtrooms[32], and how long it takes, on average, for staff to respond to basic questions (i.e. what dates are available for hearing, or what unique (and often redundant) steps are required to schedule a motion at this particular courthouse[33]). Hopefully, such answers will guide the working group in setting forth procedures that take proper account of MAG abilities and limitations going forward.

Additionally, and in concert with the lawyer from the Office of the Chief Justice, the MAG lawyers will be able to share with the working group their employers’ collective disdain for either transparency or accountability (given the Superior Court ceased publishing an annual report and has resisted producing very basic information about its operations, which you can read about here[34]), which will of course frustrate any measurement as to whether any rules changes are ultimately effectual.

All is not lost however, as a number of members, including Chair Speigel have experience in better developed legal jurisdictions (with both Speigel and Opolsky having experience in New York) that have legal traditions of moving cases from inception to conclusion (on the merits) within a reasonable time. Moreover, Chair Speigel acknowledged in her April 2020 article that our court system was drowning due to overly complicated rules, a scarcity of resources and most importantly, a lack of innovation and willingness to change[35]. As such, Ontario residents are fortunate to have a working group Chair who recognizes that the civil system is failing, “no matter how grand it believes its traditions, or how seriously it takes itself[36].”

Of the remaining working group members, a number have experience with class actions (including Dr. Chiodo, Chantelle Cseh, Rebecca Jones, Jacob Damstra, John Adair), and a number of Ontario’s leading firms are represented, including Davies, Lenczner Slaght, Lerners, Torys LLP and Adair, Goldblatt Bieber LLP. While this should ensure that the interests of those at the top of the pyramid are well looked after (in much the same way that the commercial list offers special treatment to those deemed by our court system to be ‘more entitled to timely justice’), time will tell whether the working group can effectively overhaul Ontario’s byzantine rules in a way that allows our system to deliver justice to more who seek it.

One of the first tasks of the new working group will be to determine what steps, broadly defined, are necessary to the litigation process, and relatedly, how long the civil litigation process should take. Broadly speaking, Ontario has already identified the necessary steps, namely pleading, discovery and disposition, the problems lay chiefly with the implementation. Unfortunately, these steps are set forth over bloated rules which span approximately 140,000 words, more than twice the approximately 60,000 words set forth in the better developed and thought-out U.S. Rules of Civil Procedure.

Generally, pleading in Ontario works well enough. Most matters are commenced via statement of claim, which is typically followed by defences, and sometimes reply (though among other things, it would behoove the MAG to standardize its fee schedule, rather than for instance charging different fees for replies in general versus construction actions). While the format for pleadings could be standardized to some degree, they are generally sufficient in framing the dispute, namely, setting forth the facts as relied upon by each side, and informing the other parties of the case they must meet.

Unlike in the US system, Ontario also allows certain matters to be commenced by various ‘flavors’ of Application. Thus, where a party seeks to challenge the decision of a Tribunal, they commence an Application for Judicial Review in Divisional Court by using form 68A (though if they were seeking declaratory relief or to challenge other types of decisions, the Divisional Court would lack jurisdiction, as discussed here[37]). Conversely, if a party wanted to vacate a construction lien, they would do so by filing an Application in Superior Court, using form 14E, while in Toronto, the same procedure would be commenced by instead filing a motion (including an originating motion), to ensure the matter was reviewed by an Associate Justice familiar with the Construction Act (former Construction Masters). Meanwhile, Applications to have someone declared a vexatious litigant require the use of form 14E.1. As many fast-food chains have determined, endless and customized menu options seldom result in high performance.

The Ontario system falls flat however when it comes to discovery, leading to the type of games referred to by Chair Speigel in her Canadian Lawyer article. Often this begins with the lack of a prompt mechanism to obtain production of documents, or even to set dates for discovery (given motions are currently commonly set more than a year into the future, and certain counsel are invariably ‘busy’). Further problems arise in that Ontario lacks a formal ‘Request to Produce’ mechanism, such that parties often produce (and deem relevant) only those documents they believe helpful, or at worst neutral to their position (and there is an inherent conflict, if not failure to understand basic human nature, in expecting counsel to seek out and produce documents that assist in supporting the legal position of the other party). Counsel are then left with the choice of seeking to bring a motion and prove the existence of such documents prior to discovery, or to establish the existence of such documents at discovery, often leading to time intensive undertakings and refusals motions, followed by further reattendance.

Whether dealing with documents or oral discovery, the Civil Rules Committee has adopted the legal, if unworkable fiction (given opposing counsel seldom agree) that only relevant documents be produced and proper questions answered. In many cases, this encourages gamesmanship and obstructionism and frustrates the stated purpose of the Rules to “promote the search for the truth[38].”

Such obstructionism was recently on display, when a representative of the Ontario Ministry of the Attorney General, Ontario’s chief law officer of the Crown was discovered in a case regarding the Ontario court system, and refused to answer basic questions about the court system, such as what administrative records are maintained for civil cases, whether there was any way for the public to know how long it is taking civil cases to move through the court system, or whether the Ontario government is tracking any statistics, empirical data and/or performance metrics with regard to the functioning of the Ontario Superior Court of Justice[39]. This contrasts with the much more workable American rules, which generally provide that a party should respond substantively, provided the inquiry is reasonably calculated to lead to admissible evidence (interestingly if inconsistently, the American rules are sometimes applied in Construction actions).

In this way, the American rules encourage parties to move through the discovery process (reserving disputes regarding admissibility for trial), whereas the Ontario Rules encourage the parties to seek judicial intervention, stalling matters and bogging down an already backlogged system. The Ontario Superior Court has resultingly developed a complex, if worthless jurisprudence governing discovery, that for instance, allows Judges to determine whether questions must be answered in routine medical malpractice actions over a breezy 297 paragraphs[40] (the approximate length of many novels). Of course, even the hardest working members of our judiciary can crank out only so many such tomes each year, and time spent determining the relevance of certain documents or propriety of questions is time that is not spent determining matters on the merits.

In Rule 48.04, Consequences of Setting down, Ontario has adopted a further roadblock to timely resolving cases. That rule bars a party from continuing discovery once a matter has been set down for trial, absent discretionary leave. Thus, cautious counsel are incentivized to bring any necessary motions, and to have such motions determined, prior to getting into the queue for trial. Given the delay having motions heard, especially in Toronto, this often delays cases by more than one year on its own. In the US in contrast, counsel may notice actions for trial 20 days after[41] the close of pleadings (while concurrently engaging in discovery and any discovery related motions). Largely as a result, civil actions in the US tend to reach trial in just over two years[42], whereas in Toronto it takes around five[43]. Like with criminal trials, this illustrates that Ontario has found a ‘unique’ way to do things, that is roughly one-third as good as our American peers (or betters really, when you consider Ontario’s lagging performance). As even junior lawyers can attest, the closer cases get to trial, the more likely resolution becomes.

On the topic of motions, and given the steady rise in self-represented litigants, it would behoove the working group to consider changes brought about by Ontario’s belated digitization. Specifically, in the before times, for certain motions, parties may have proceeded solely on a motion record (which itself contrasts with certain US practice, with some procedural motions being entirely contained within a single page, i.e. motions to amend). Subsequently, those same motions have required Factums, increasingly also Compendiums (which would seem entirely unnecessary given the digital nature of Caselines) along with the need to hyperlink. Thus, Ontario has once more discovered a less efficient, more time intensive way of doing things, albeit digitally.

While it is hoped that the working group will ditch much if not all of the current rulebook (such as its color coding scheme, requirement for backpages, varying procedures and rules governing motions versus applications, or the ability of the bench to vary procedures from courthouse to courthouse via an endless and illusive series of “Notices to the Profession,” “Guidelines” and “Practice Directions”) the remainder of its efforts should be focused on how best to move matters to disposition, especially where modest amounts are at stake. Thankfully, this is something that Chair Speigel identified in her Canadian Lawyer article, writing that summary judgment should be available in all but exceptional cases[44]. Even in exceptional cases, at least within the Simplified limits, perhaps summary judgment would still be appropriate, by permitting the court to hear oral evidence on limited points, as currently provided?

Where trial is necessary, which is sometimes the case, Ontario has once more invented the square wheeled solution. Pursuant to Rule 31.03, only parties may generally be examined for discovery. While this doubtless creates efficiency in the discovery process, it results in a number of matters going to trial, that would not, had for instance their expert witnesses previously been cross-examined on their reports (i.e. were parties made aware, before trial that their positions were not nearly as strong as they otherwise believed them to be), or even had parties’ discoveries been videotaped, as has been permitted in the US for close to 50 years[45], which in itself would further discourage gamesmanship. Moreover, more time is necessarily spent with each witness at trial, as cross-examination cannot just cover the high points, but must often in many cases establish basic facts, as lawyers speak with non-cooperative witnesses for the first time.

Ontario has also developed a ‘peculiar’ if self-defeating jurisprudence with regard to expert witnesses at trial, with predictable results. Specifically, while experts are required to “give fair, objective and non-partisan opinion evidence[46],” counsel are generally not permitted to cross-examine such experts on adverse credibility determinations made in prior cases[47] (i.e. where they were previously found to fail to provide the court with fair, objective and non-partisan opinion evidence). Thus, while the Court of Appeal has expressed confidence that “gone are the days of the hired gun[48],” a few rogues continue to make regular, if well paid appearances as secondary advocates. Sometimes, such testimony is excluded, often, after the investment of significant judicial time, but what’s the alternative, to use that limited judicial time to hear matters on the merits (were the American rules in this regard adopted, and such impeachment permitted, it is suspected the relative attraction of retaining such ideologs would decrease after their first few such appearances)?

As the Chief Justice noted in a recent interview and is apparent from reading the biographies of the working group, the Attorney General has selected ‘an excellent working group with top-notch lawyers and judges[49].” Hopefully, as they work through the rules rewrite, they will take inspiration and borrow heavily from more developed and better performing legal jurisdictions whose legal traditions include the timely resolution of matters on their merits. As Ontario Bar Association President Kelly McDermott recognized:

The goals of a civil justice system are fundamental. They include peaceful resolution of disputes, ensuring economic health by allowing for predictable enforcement of business arrangements, deterring behaviour that endangers society and our values, and holding people accountable. To achieve these goals, the system has to be fair, fast, credible, affordable and accessible. If it is not, then the public’s confidence in the system will be undermined[50].”

If the working group fails to seize this opportunity, “to affect real change, we risk learning what our society and economy will look like when people wake up and realize that we do not have a functioning civil justice system[51].” Time will tell if the working group takes Chair Speigel’s warning to heart.

– Michael B. Lesage

_____________________

[1] Covid-19 and Ontario’s court system: How to seize the pandemic’s silver lining, Justice David M. Brown, Presentation to the Thunder Bay Law Association, October 29, 2020.

[2] Justice Fred Myers on becoming a judge, lawyer competency, electronic trials, and changes to come, The Yunusov Question, October 13, 2021.

[3] Ontario Chief Justice Geoffrey Morawetz on transforming the courts, Law Times, Tim Wilbur, February 13, 2024.

[4] The State has failed” Gun case latest to be tossed due to lack of judges at Toronto Superior Court, The Toronto Star, Jacques Gallant, January 17, 2024.

[5] Toronto sex assault case tossed over Ottawa’s failure to appoint Superior Court Judges, The Toronto Star, Jacques Gallant, December 13, 2023.

[6] Her alleged rapist’s trial collapsed over ‘inexcusable’ Toronto court delays. How can I move forward? The Toronto Star, Jacques Gallant, November 16, 2023.

[7] She testified. The jury found a man guilty of raping her. It was only then a GTA judge tossed the case for delay. The Toronto Star, Jacques Gallant, February 4, 2024.

[8] Human trafficking case collapses in latest casualty of failure to appoint enough Toronto judges. The Toronto Star, Jacques Gallant, February 9, 2024.

[9] It’s a travesty: Nealy 800 criminal cases thrown out over delays since 2016 Jordan decision. Global News, Andrew Russell, June 10, 2019.

[10] Ontario Chief Justice Geoffrey Morawetz on transforming the courts, Law Times, Tim Wilbur, February 13, 2024.

[11] Open court principle doesn’t apply to Ontario Superior Court trial data, judge rules. The Toronto Star, Jacques Gallant, December 22, 2023. The Superior Court also ceased publishing an Annual Report with the 2017-2018 year, Cross-Examination Transcript of Di Ciano of August 3, 2023 at p. 29 ln 25 to p. 30 ln 6, Q108- 109 [ABCO Tab 5, pp. 39-40].

[12] Section 11(b) – Trial within a reasonable time, Government of Canada, Charterpedia, July 31, 2022.

[13] Felony Case Delay in New York City, Lessons from a Pilot Project in Brooklyn. Center for Court Innovation, Weill, Joanna et al., March 2021, pdf pg. 4 (numbered page 2).

[14] Hameed v. Canada (Prime Minister), 2024 FC 242 (CanLII).

[15] Number of Federally Appointed Judges As Of March 1, 2024, Office of the Commissioner for Federal Judicial Affairs Canada.

[16] Annual Report 2019, Office of the Auditor General of Ontario, pdf. pg. 90 (numbered page 87).

[17] Number of Federally Appointed Judges As Of March 1, 2024, Office of the Commissioner for Federal Judicial Affairs Canada.

[18] Analytics, Hearsay Daily, Dylan Gibbs, March 8, 2024.

[19] Opening of the Courts, Superior Court of Justice, Chief Justice Geoffrey Morawetz, September 28, 2023.

[20] Opening of the Courts, Superior Court of Justice, Chief Justice Geoffrey Morawetz, September 28, 2023.

[21] Justice David Brown, “Red Block, Yellow Block, Orange Block, Blue: With So Much Competition, What Do We Do?”, 14th Annual Straight From The Bench Conference, Middlesex Law Association London, May 6, 2019.

[22] Ontario Chief Justice Geoffrey Morawetz on transforming the courts, Law Times, Tim Wilbur, February 13, 2024.

[23] Ontario Chief Justice Geoffrey Morawetz on transforming the courts, Law Times, Tim Wilbur, February 13, 2024 (“I’ve heard stories around the province about the timing of civil proceedings from inception to resolution; in some cases, it’s four or five years. That’s too long.”

[24] Opening of the Courts, Superior Court of Justice, Chief Justice Geoffrey Morawetz, September 28, 2023.

[25] Ontario launches review of province’s rules of civil procedure, Queens Park Briefing, Carolyn Gruske, February 5, 2024.

[26] Osgoode Professor Suzanne Chiodo Appointed to Major Civil Justice Reform Initiative.

[27] Civil Rules Committee, October 30, 2023.

[28] Courts of Justice Act, R.S.O. 1990, Chapter, C.43, section 65(2).

[29] Justice David Brown, “Red Block, Yellow Block, Orange Block, Blue: With So Much Competition, What Do We Do?”, 14th Annual Straight From The Bench Conference, Middlesex Law Association London, May 6, 2019.

[30] Ontario launches review of province’s rules of civil procedure, Queens Park Briefing, Carolyn Gruske, February 5, 2024.

[31] Ontario Superior Court Document Rejection Information, Number of Submissions Received and Rejected, Superior Court of Justice, Civil, FRANK Database.

[32] More cases will just be thrown out: Toronto’s new courthouse hit by delays and staff shortages. The Toronto Star, Jacques Gallant, April 14, 2023.

[33] Notice to the Profession and Parties – Protocol for Civil Proceedings in Central East Region, Ontario Superior Court of Justice, June 1, 2022.

[34] Open court principle doesn’t apply to Ontario Superior Court trial data, judge rules. The Toronto Star, Jacques Gallant, December 22, 2023.

[35] How courts can step up to save drowning civil justice system. Canadian Lawyer, Allison Speigel, April 23, 2020.

[36] How courts can step up to save drowning civil justice system. Canadian Lawyer, Allison Speigel, April 23, 2020.

[37] The Ontario Superior Court has created a procedural morass for judicial review. Canadian Lawyer, Michael Lesage, March 3, 2024.

[38] First Capital Realty Inc. v. Centrecorp Management Services Limited, 2009 CanLII 75631 (ON SCDC).

[39] Factum of the Appellant, Michael Lesage, Michael Lesage v.The Attorney General of Canada and the Attorney General of Ontario, COA-23-CV-1326 at para. 24, citing the Cross-Examination transcript of Di Ciano of August 3, 2023.

[40] Gurprasad v. Kim, 2022 ONSC 5753 (CanLII).

[41] Florida Rule of Civil Procedure 1.440(a).

[42] New York State Unified Court System, 2018 Annual Report, pdf. pg. 9 (numbered pg. 3), Florida Rules of Judicial Administration, Rule 2.250(a)(1)(B),

[43] Civil Jury and Non-Jury Proceedings Disposed From the Trial Scheduling List with Trial, Superior Court of Justice, Civil, Provincial Values, 2019, FRANK Database. See also Ontario Chief Justice Geoffrey Morawetz on transforming the courts, Law Times, Tim Wilbur, February 13, 2024..

[44] How courts can step up to save drowning civil justice system. Canadian Lawyer, Allison Speigel, April 23, 2020.

[45] Florida Rule of Civil Procedure 1.310, Committee Notes, 1976 Amendment.

[46] White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 (CanLII) at para 2.

[47] Bruff-Murphy v. Gunawardena, 2017 ONCA 502 (CanLII), at para 31.

[48] Bruff-Murphy v. Gunawardena, 2017 ONCA 502 (CanLII), at para 1.

[49] Ontario Chief Justice Geoffrey Morawetz on transforming the courts, Law Times, Tim Wilbur, February 13, 2024.

[50] Ontario launches review of province’s rules of civil procedure, Queens Park Briefing, Carolyn Gruske, February 5, 2024.

[51] How courts can step up to save drowning civil justice system. Canadian Lawyer, Allison Speigel, April 23, 2020.

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