The Task for Ontario’s Next Chief Justice

With Chief Justice Morawetz set to ride off into the sunset, the Ontario Superior Court will soon be graced with a new leader. While it can be anticipated that the new Chief will continue the court’s mission to prioritize form over substance, it is respectfully suggested that the new Chief Justice focus on a more pressing, if less intellectually stimulating endeavor, namely working to make the Ontario Superior Court less terrible.

As a branch of government entirely dependent on the public purse, the Court finds itself with a dwindling number of friends or supporters. Part of this results from implementing unpopular policies imposed by our ‘betters’ in Ottawa, such as de facto “bail on all offences,” reduced sentences based on skin color, including for a kidnapper raised as the child of UN diplomats, and reduced sentences for non-citizens to avoid the risk of deportation. A further part arises from simple courthouse mismanagement and dysfunction, with the court itself admitting the civil justice system has “reached a state of existential crisis.”

For non-lawyers, the state of the Ontario Superior Court can be confirmed via Google search. For instance, searching for the Toronto Superior Court (with address) returns a 2.3-star Google Review rating (coincidentally the same rating as held by the Law Society of Ontario). The Newmarket Court comes in at 2.2-stars, Hamilton at 2.5, while Ottawa ‘leads the pack’ at 3-stars. Conversely, the average business on Google is rated at 4.11-stars. Though not widely published, the standard deviation for all Google reviews appears to be between .27 and 1.13, meaning the Ontario Superior Court lands at the extreme (terrible) tail end of the distribution. For government entities, it is not however without company, with the Centre for Addiction and Mental Health-Queen Street Site holding a 2.7-star Google review rating (though the Service Canada location on College Street has a 4-star rating in comparison, showing not all government entities in Ontario equally useless).

Interestingly, while the Court has a history of resisting transparency and accountability, as part of its efforts to eliminate rights to discovery while increasing the costs to commence cases (see Civil Working Group Reports here), it released some hitherto secret data on its operations, which among other things, showed a 45% decline in the number of civil trials across the Province over a ten-year period, as set forth below.

While it could be imagined that cases reaching trial had become more complex or required more trial time over that period, the data indicated otherwise, namely that the vast majority of civil trials required five days or less. Using the data for motor vehicle cases (likely representative) if for each matter tried we assume it required the maximum number of days within the range (i.e. 5, 10, 15) and select 26 for the final box, then we can see that there were 996 trial days for motor vehicle accidents in 2014 and 500 such trial days in 2023. Trials requiring less than 5 days accounted for roughly 50-65% of total trial days.

Given the reduction in trial time over the period, it could be imagined (as the Civil Rules Working Group did) that such time was instead being dedicated to dealing with a “pervasive motions culture.” Problematically, that was not borne out by the data provided to the Civil Rules Working Group either, which instead showed the total number of motions heard declining by nearly half over the period, which reduction was in line with the decline in the number of civil trials and civil trial days.

One area where the Superior Court has increased its activity (but not its performance) in recent years has been the rejection of documents, though rates vary extremely by court location. Better-run courthouses (such as London), or those not as actively competing in the jurisprudential race to the bottom, reject just over 10% of civil documents filed. Meanwhile, Brampton, the worst-run courthouse by a country mile, is trending to reject nearly 50% of civil filings this year, with many rejections (across courthouses) being for pointless, mundane or simply incorrect reasons. Every rejection adds both time and expense for the parties, and adds extra work for courthouse staff, who must process the same documents multiple times (rather than in most cases simply adding it to an electronic file).

The variation in rejection rates is emblematic of a larger issue within the Superior Court, namely that it does not function as a single, coherent institution but rather as a loose collection of regional fiefdoms/snowflakes. For example, the current Consolidated Civil Provincial Practice Direction provides that the presumptive mode of attendance for short motions is virtual. However, the Central South Region recently decreed that the presumptive mode of attendance for short motions would instead be in person, despite Federal Justice Crampton noting that very few requests for in-person hearings had been received (since our courts belatedly discovered Zoom). For many routine matters, in person hearings accomplish little besides adding time and cost.

The Toronto Superior Court is perhaps “the most unique snowflake” of them all, at least in regard to motions. Over close to 6200 words, as part of its Consolidated Practice Direction, it lays out a motion scheduling procedure that for short motions before an Associate Judge, requires approximately 20 unique steps and 3 separate, time-staggered filings via the new Toronto Portal, which itself is more cumbersome and slower to use than the one it replaced. Conversely, different procedures entirely apply for motions before Judges, with further variance in procedure depending upon motion type.

The byzantine (and often pointless) procedures that define the Ontario Superior Court are similar to problems that arise with some frequency in business, where for instance a fast-food restaurant elects to add a bunch of options (menu proliferation) or a factory elects to add new options/products to its line (product proliferation). What started out (at least in theory) as a somewhat focused and efficient operation that staff were able to operate and manage ends up bogged down by ever increasing numbers of combinations and procedures, all of which add time and complexity, and render the Court less able to deliver what it was designed, or at least advertised to provide.

In many respects, Ontario’s next Chief Justice will face greater challenges than those faced by Chief Justice Morawetz. While Chief Justice Morawetz undoubtedly deserves credit for belatedly introducing the Ontario Superior Court to the computer and internet, the fact that same did not occur in any meaningful way until 2020 speaks to the insular and backwards nature of a court that had failed to keep up with good jurisprudential or management practices. Moreover, it was indicative of a court that did not pay heed to its leading judicial voices, who had long warned that it risked becoming an irrelevant museum piece.

If the Ontario Superior Court is to improve, and at this point like the Leafs, the only real way to go is up, Ontario’s next Chief Justice will need to embrace a painful truth, namely, that the Ontario Superior Court does not know much about running a functioning court system (despite gushing that it was “one of the most accomplished trial courts in the world” not too long ago). While it is easy to argue that the Courts need more funding and personnel (to allow them to implement a 53-step motion scheduling procedure for instance instead of a mere 20, or to allow more Judges the time to write 297 paragraph opinions on relevance and refusals), it has long been recognized that where courts seek additional government resources “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.” Time will tell whether the next Chief Justice makes better use of available judicial resources and is thus able to build a case for more resources.