The Courts in Ontario

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CHAPTER 4

4.1 Current Structure of the Ontario Courts
4.2 The Present Court Process
4.3 Building Pressure and Trends

4.1 Current Structure of the Ontario Courts

An outline of Ontario's present Court Structure and its officers follows.

  • Court of Appeal

    The Court of Appeal is the highest court of record in the Province. As the name implies, it hears appeals from the judgments and orders of the lower courts.

    The president of the court is Chief Justice of Ontario, presently the Honourable Charles L. Dubin. The Associate Chief Justice of Ontario, presently the Honourable John Morden, is also a member of this court. Fourteen other appellate judges fulfill the Court's complement.

    Judges of the Court of Appeal are appointed by the federal Minister of Justice.

  • Ontario Court of Justice

    The Ontario Court of Justice has two divisions, namely the General Division and the Provincial Division.

    • The General Division of the Ontario Court of Justice

      This court is a merger of the previous High Court, District Court and Surrogate Courts. It continues as a superior court of record with general jurisdiction in all civil and criminal matters.

      All civil matters are disposed of in the General Division, with the exception the family law matters that are within the jurisdiction of the Provincial Division. It has sole jurisdiction in divorce cases and in family law matters where there are claims for the division of matrimonial property. It also hears support and custody matters, generally when these have been included in a claim for divorce or where theses claims have been joined to claim seeking a division of marital property. Judges of the General Division adjudicate claims under the Landlord and Tenant Act. They also hear appeals from the decisions of judges of Provincial Division in summary conviction matters.

      While not the area with which the Civil Justice Review is concerned, the General Division is as well the superior trial court with general jurisdiction in criminal matters, and it hears all criminal cases that are tried before a judge and a jury.

      There are three branches of the General Division:

      The Divisional Court:
      The Divisional Court hears appeals from some judgments and orders of judges of the General Division and it reviews or hears appeals from decisions of administrative tribunals. It also hears all appeals from Small Claims Court judgments where the amount in issue exceeds $500.00

      The Small Claims Court:
      The Small Claims Court has jurisdiction in civil matters where the amount in issue does not exceed $6,000.00 exclusive of interest and costs. The monetary jurisdiction of this court is fixed by regulation.

      The Unified Family Court ("UFC"):
      The Unified Family Court began as a pilot project in Hamilton, in 1977. It has complete jurisdiction over all family law matters in its area, including those matters currently within the jurisdiction of judges of the Provincial Division and the General Division. The provincial government has recently introduced legislation under Bill 36 which would allow for the expansion of this court across the province. It will be a branch of the Ontario Court (General Division) known as the Family Court.

      Judicial Officers of the Court

      General Division:
      The General Division consists of the Chief Justice of the Ontario Court of Justice, currently the Hon. R. Roy McMurtry; the Associate Chief Justice of the Ontario Court of Justice, currently the Honourable Patrick J. Lesage; 8 Regional Senior Judges; a Senior Judge of the Unified Family Court; and such number of judges as is fixed by provincial regulation. The current complement of judges is fixed at 197 judges excluding the Chief Justice, the Associate, the Regional Senior Judges and the Senior Judge of the Unified Family Court. In addition there are presently 45 supernumerary judges. [5]

      General Division Judges are federally appointed with the exception of the remaining Provincial Judges who sit in the Small Claims Court.

      Divisional Court
      The Divisional Court consists of the Chief Justice of the Ontario Court of Justice, who is president of the court, and such other judges of the General Division as the Chief Justice designates from time to time.

      Small Claims Court
      The majority of Small Claims Court matters are heard by deputy judges, lawyers who have been appointed for a period of three years by the Regional Senior Justice to hear these types of cases. As result of court reform, no new full time judges have been appointed by the provincial government to preside in Small Claims Court.

      The Unified Family Court
      The Unified Family Court is presided over by a Senior Judge of the General Division for the Unified Family Court. There are currently 5 judges (and 1 supernumerary judge of this court. Under Bill 136, the Family Court will consist of the Chief Justice of the Ontario Court, the Associate Chief Justice (Family Court) the Senior Judge of the General Division for the Unified Family Court, and such judges as are prescribed by statute, appointed, or assigned.

      Masters
      There are currently 8 full-time and 6 retired but active Masters, who have jurisdiction conferred by the rules of the court in proceedings in the General Division. Masters are authorized to hear most pre-trial procedural questions and, as well, deal with specialized matters such as construction liens and bankruptcy. They also conduct assessments of solicitors fees and accounts. Masters are appointed by the provincial government. As a result of court reform, the power to appoint new Masters was removed.

    • The Provincial Division of the Ontario Court of Justice:

      Prior to court Reform, this court was known as the Provincial Court with three divisions; criminal, family and civil. When Court Reform was implemented, the civil jurisdiction was reconstituted as a branch of the General Division and the criminal and family law divisions were merged. This court's jurisdiction in civil matters is now limited to claims for custody and support where there is no claim for divorce nor any claim for division of marital property. The Provincial Division has sole jurisdiction in adoption, child welfare and protection matters, and in young offender cases.

      Judicial Officers of this Court
      The Provincial Division consists of the Chief Judge of the Provincial Division, presently the Hon. Sidney B. Linden, two Associate Chief Judges, a Regional Senior Judge for each of the 8 regions and such number judges as are appointed by the provincial government . The judicial complement of the court is not fixed by law. Judges now appointed to the Provincial Division can be scheduled by their Regional Senior Judge to hear both criminal and family law matters.

      There are currently 250 judges of the Provincial Division.

      There is also a coordinator for Justices of the Peace and a number of full and part-time justices of the peace who have no jurisdiction in civil matters.

  • Agencies, Boards and Commissions

    In addition to the courts, the 1994 Guide to Agencies, Boards and Commissions lists approximately 450 administrative decision-makers.

    Members of these tribunals are appointed by the provincial government. They generally determine claims or benefits under various legislative schemes or make decisions regulating the conduct of individuals and corporations. Among the better known of these types of tribunals are those dealing with labour relations, employment law and municipal and planning matters.

    Since 1992, a Management Board Agency Reform group has been reviewing the management of agencies, boards and commissions and a separate Task Group was established to deal with a number issues relating to such agencies.

  • Administration of the Courts

    The provincial Attorney General superintends all matters connected with the administration of the courts, other than matters assigned by law to the judiciary. The Ministry of the Attorney General, through its courts Administration Division, provides administrative support services, personnel and facilities to the court system in Ontario. The division manages more than 235 court offices across the province which act as the nexus between litigants counsel, the police, the judiciary, the Crown and other agencies. It serves as the main link between the Ministry and the Judiciary and provides support services to federally and provincially appointed judges.

    In addition, the Courts Administration monitors and enforces support and custody orders issued by the court through its Family Support Plan. It supports regional operations through the coordination of program policy, operational and resource planning, and the development of improved operational procedures, systems and service-level standards.

  • Regionalization of the Judiciary and Courts Administration

    On September 1, 1990, Court Reform also established a regional structure for the court system. Eight Regions were created in the Province. The judiciary, courts administration and crown attorneys were regionalized: Regionalization had been recommended by the Hon. Thomas Zuber in the Report of the Ontario Courts Inquiry of 1987.

    The eight regions and included counties, districts and regional municipalities are illustrated on the following map.

  • The Ontario Courts Management Advisory Committee and the Regional Courts Management Advisory Committees

    The operation of the justice system needs to be a shared responsibility between the independent Judiciary, the Ministry of the Attorney General, the Bar and the Public. With a view to ensuring broader advisory and consultation mechanisms at a time of increased demands and constrained resources, the Courts of Justice Act amendments created Ontario and Regional Courts Management Advisory Committees. These committees bring together representatives of the judiciary, bar, ministry and general public. The function of the Committees is to consider and to recommend to the relevant bodies or authorities policies and procedures for the region to promote the better administration of justice and the effective use of human and other resources in the public interest.

4.2 The Present Court Process

The various phases and steps in a lawsuit can be complicated and confusing. Without endeavouring to set those out in detail, we include the following table to provide a summary for those who may find it helpful. The table describes the steps to be taken, the court administration (and, in some cases, judicial) steps accompanying them, and the fees involved.

The Step Court Office Fees
  • Attend court to have the proceeding commenced
  • a statement of claim or notice of action (prepared by party in advance) issued
  • staff reviews document for compliance with the rules of civil procedure before issuance
  • document is sealed, assigned a number, and a file is created
  • a manual procedure card is created to record the events in a case
  • some statistics are also recorded
  • $125
  • fee is deposited to a revenue account and remitted to the Consolidated Revenue Fund
  • Serve the defendant within 6 months of issuance of the statement of claim or notice of action

  • $40.00 per service + kilometre allowance if process server used
  • defendant files statement of defence within 20 days after service of the claim
  • court files statement of defence
  • $70.00
  • party may make a motion to the court to seek an order from the court pending the final outcome at trial
  • each party must prepare a motion record and serve the opposing side
    • notice of motion setting out relief sought
    • affidavit evidence
    • documentary exhibits
  • court files motion materials
  • hearing of the motion is coordinated by the court staff, under the direction of the judiciary, who are responsible for scheduling motions and for the assignment of judges to these motions
  • ensure, the motion records are before the court
  • in the interim the parties may contact court staff for information
  • court staff may retrieve files in response to inquiries from parties and provide information to them
  • court may receive other funds, which are held in separate trust accounts on behalf of litigants pending the disposition of the case
  • financial records for revenue and trust accounts are maintained and reports are submitted on a monthly basis
  • $45.00 fee paid by moving party
  • Discovery - documentary disclosure and oral examination of parties, under oath, before the trial
  • oral examination may be done before an official examiner
  • $9.00 for each person examined
  • $15.00 per hour for provision of facilities
  • $18.50 per hour for reporters attendance
  • transcript of discovery

  • $3.75 per page for the first copy
  • Setting action down for trial
  • when a party is ready for trial, after the close of pleadings and where the party is not in default, the party can place the case on list of cases waiting to be reached for trial
  • file trial record with proof of service
  • trial record contains the pleadings and any orders relating to the trial
  • trial record duplicates documents which are already in the file but eliminates all others that may not be required
  • ready cases go on a trial list and the court then proceeds on the basis of oldest cases being dealt with first
  • $255.00 paid by requesting party
  • motion/application hearing by a judge
  • the judiciary are solely responsible for the scheduling of cases and for the assignment of judges to hear those cases
  • court staff will then coordinate the availability of judiciary, counsel, courtrooms
  • counsel will ensure attendance of witnesses and litigants

  • sittings
  • civil cases will have designated sittings of fixed periods of time
  • most courts arrange an assignment court to determine which cases on the list can be scheduled for the available time period

  • summons of witnesses
  • court will issue the summons for a witness if one is required
  • $17.00 per summons
  • a further fee may be paid if service is required
  • pre-trial
  • scheduled before a judge other than the one assigned to hear the case
  • provides pre-trial judge with pre-trial memoranda prepared by parties, which outlines parties' positions and arguments
  • individual litigants are generally not present at the pre-trial

  • trial
  • a judge presides over the court
  • a court clerk will call the cases, maintain the documents, assume control of exhibits and swear in witnesses
  • an official record of the proceeding is kept so that a transcript can be prepared should one be required
  • one or more court officers are present to escort and assist the judge, to assist the witnesses, and assist in maintaining decorum in the courtroom

  • judgment
  • formal judgment is prepared and approved by counsel, and issued by the court

  • enforcement
  • if party wants to enforce, an enforcing document (writ of execution) must be obtained from court upon payment of a fee - court issues the writ of execution or other enforcement document - party files it with enforcement office
  • an office within the court operation will enforce the judgment at the request of the party
  • Fees range from $45.00 to $155.00
  • appeals of final or interlocutory judgments
  • originating court assembles relevant file material and forwards this to the appellate court; counsel arrange to have the transcript (where applicable) sent to the appellate court; originating court receives documents when the appeal is disposed of
  • $125.00

4.3 BUILDING PRESSURES AND TRENDS

THE BACKLOG

Cost and delay are the two central issues which have arisen during the Civil Justice Review's deliberations. They underly most of the themes that will be developed throughout this First Report. "Backlog" is the most visible manifestation of delay -- and its accompanying costs -- in the system.

We deal with backlog, and our proposals for attacking it, separately, in Chapter 12. There, we point out the difference between the time it takes a case to get to trial from when it is started, and "backlog" as we have defined it. "Backlog" is a term more accurately used for purposes of analysing and managing the load of cases waiting to be tried in the system. We have defined it as those cases ready and waiting to be tried, but not reached for trial within 9 months of being placed on the trial list.

From the public's perspective it is the delay from start to finish which is important. That delay is the subject of our overall Report.

Data is not currently captured in a fashion which enables us to provide information on a 9 month aging basis. However, 8 month and 12 month aging statistics are generated by the Courts Information Statistical System ("CISS"). There are presently 23,303 cases on the pending trial lists in the General Division throughout Ontario. Of those cases, 56.71% (13,216) have been on the pending list for more than 12 months; 69.15% (16,115) for more than 8 months. Chart 1 provides a breakdown on a Regional and province-wide basis.

This is a heavy caseload. Within these Regions there are localities where the backlog of cases is particularly severe -- indeed, at crisis or approaching crisis proportions. We have noted these communities earlier. They are Windsor, Brampton, Toronto, Newmarket, Whitby and Ottawa.

How did this glut of cases develop ? Undoubtedly there are numerous factors that contributed to the genesis and growth of the problem. A striking factor is illustrated by the 15 year trend in Chart 2 which follows. It shows there was a truly massive increase in the number of civil cases entering the system during the late 1980's and early 1990's. Between March 1986 and March 1992 the number of such proceedings initiated annually in Ontario rose from 150,000 to 252,000, a startling jump of 68%.

Chart 2 shows the combined caseload of the District Court and the High Court prior to merger, and of the General Division after merger. Cases initiated remained relatively steady in the 10 years preceeding 1987. They then shot up to their peak in 1991/92, after which they have declined steadily again to approximately 179,000 at the end of 1993/94.

Of comparable significance, in terms of building pressures on the courts, is the experience on the criminal side of the justice system. Between 1985/86 and 1991/92 the total number of charges received into the system province-wide escalated from appoximately 460,000 to approximately 625,000 -- a rise of almost 36%. These proceedings all enter the system through the Provincial Division. Those in which the accused elects to be tried by a judge alone or by a judge and jury ultimately find their way to the General Division. What this phenomenon indicates overall, however, is that there was a similarly rapid increase in the number of criminal cases coming into the courts as there was in the number of civil proceedings being initiated, during the period between the mid-1980's and early 1992. The system as a whole was absorbing a double impact.

Like the civil cases, however, the number of criminal proceedings initiated peaked in 1991/92 and has been declining since. This number is expected to be about 550,000 by the end of 1994/95 (i.e. March 31, 1995).

Chart 3 traces the pattern of criminal charges received and disposed of in the Provincial Division between 1985/86 and 1994/95.

There are some harbingers of cautious optimism, however. One, of course, is the steady decline in cases coming into the General Division since 1991/92, although whether this apparent trend will be long term remains to be seen. There are other factors afoot, as well. Co-ordinated efforts involving the Bar, the judiciary and court administrators are being made across the Province to attack existing backlogs. These come at a time when courtroom utilization has been increasing dramatically and when the number of cases entering the system on the criminal side -- as a result of the Government's "Criminal Investment Strategy" -- may be declining also. Towards the end of 1993 the General Division province-wide crossed that important "Rubicon" and began disposing at trial (and through settlements at trial) of more civil cases than are being added to the pending trial lists.

DECLINE IN PROCEEDINGS INITIATED

There has been a marked decline in the number of cases entering both the civil and criminal systems in the past two or three years. We will return later in this Chapter to some considerations of the criminal experience and of the Ontario Government's response to the Martin Report, often referred to as the Criminal Investment Strategy, in the context of the civil justice system.

In civil matters, Chart 2 above indicates a drop from about 252,000 cases being initiated annually, at the conclusion of fiscal year 1991/92, to approximately 179,000 at the end of 1993/94 [6] . About 25% of that decline can be explained by the decrease in the number of motor vehicle claims commenced during the same period. There is no clear explanation for the balance of the decline, although one might speculate that there is a connection with the recessionary ecomony of the early 1990's.

The decision of the Ontario Legislature a number of years ago to limit the right of people to sue for damages in motor vehicle accident cases, in exchange for enhanced "no fault" benefits has had a significant impact on the number of proceedings initiated in the General Division. For accidents occurring after June 1, 1990, a claim could not be asserted in court unless the plaintiff's injuries surpassed what is popularly referred to as a very high "threshold test [7] " As a result of this new legislative scheme, the number of motor vehicle cases initiated annually has plummeted from 35,874 in 1989/90 to 3,651 in 1993/94. [8]

This is not the end of the tale, however, because in 1993 the legislation was amended again -- for accidents occurring after January 1, 1994 -- to make it easier for people to sue. While the principles of the Ontario Motorist's Protection Plan remained intact, injuries need no longer be permanent, and they need no longer be physical before injured parties may have recourse to the courts. The likelihood that this change will result in new pressures on the courts from motor vehicle litigation is significant. To the extent, then, that the downward trend in cases coming into the civil system is attibuted to the "removal" of motor vehicle litigation from the courts, it is dubious whether that portion of the decline will be maintained.

A comparison of the 15 year trend for motor vehicle cases, and the 15 year trend for all cases, indicates, however, that the former are responsible for only a portion of the rise and decline of the entry load in the civil system. If that rise and decline is economy driven -- as might be suggested by the sharp increase during the "economically hot" later 1980's and the "economically recessionary" early 1990's -- it is difficult to predict in what direction the trend line may turn next.

It needs also to be noted that a reduction in the number of cases coming into the system does not necessarily translate into less workload for the courts -- cases are becoming longer and more complex -- but it does ease the significant entry-level administrative burden on court staff and officials.

What it does, as well, is create a potential "breathing space" for the courts as the smaller number of cases work their way through the system. This breathing space should, in turn, help to free up resources for reallocation in ways that can lead to effective structural change.

INCREASED COURT HOURS

Ministry data indicates there has been a dramatic increase in General Division court hours over the past 5 years. The amount of courtroom time devoted to civil and criminal trials, pre-trials and motions has risen from 112,230 hours in 1989/90 to 162,585 hours in 1993/94 -- an approximate 45% jump. There has been a 30% increase in hours devoted to civil trials and a 35% increase in hours devoted to criminal trials. Courtroom time attributed to motions and to pre-trials has escalated by 69% and 140%, respectively. [9] The following three charts, produced by the Information Planning and Court Statistics ("IP&CS") branch of the Ministry of the Attorney General illustrate the foregoing developments.

The judiciary and court administrators are making increasingly effective use of available courtroom space.

DISPOSITION OF CASES

In conjunction with the declining number of cases entering the system and the increased utilization of courtroom hours, there is another factor in assessing trends and the Court's current workload environment: somewhere around the end of 1993 the General Division began to dispose of more cases at trial (and through settlements at trial) than were being added to the list, on a province-wide basis. This is significant because, in conjunction with the other factors mentioned -- and other things being equal -- it means that the Court overall may have an opportunity to "catch up" and to start to reduce the backlog of cases.

Chart 7 illustrates the trend with respect to cases added to, and disposed of from, the General Division trial list province-wide, between 1989/90 and 1993/94.

It is noteworthy that since the end of fiscal year 1991/92 (i.e. March 31, 1992) there has been marked decline in the number of cases being added to the trial lists, and that in general since 1989/90 there has been a decline in the number of cases being disposed of at trial (i.e. by trial and through the settlement of cases at trial). The first of these phenomenon is puzzling, as the downturn coincides with the beginning of the downturn in proceedings initiated, whereas one would have expected there to have been some "lag time" before the initial decline began to affect the trial lists. The second, in conjunction with the dramatic increase in courtroom utilization time, would appear to lend credence to the belief that civil trials are becoming longer and more complex.

The overall provincial totals with respect to cases disposed of and cases added should not be allowed to disguise the fact that there continue to be serious problems in some Regions and court centres in the Province. In the East and Central East Regions, the Court is still disposing of fewer cases than are being added to the lists; backlogs are mushrooming in Ottawa, Newmarket and Whitby. Other Regions have serious backlog problems in individual court centres -- Brampton and Windsor, for example -- even though regional totals demonstrate regional success in disposing of more cases than are added to the lists.

Charts 8 (a) through 8 (h) show the 5-year trends with respect to cases added to, and disposed from, the trial lists on a Region by Region basis:

OTHER INFLUENCES: MOTIONS, PRE-TRIALS, AND LANDLORD & TENANT

Motions

Motions demand an increasing amount of the Court's time and energy. We have noted above that the amount of time devoted to dealing with motions in courtrooms has risen by 69% over the past 5 years. In that same period of time the number of motions filed in general matters has increased by approximately 100% and in family matters by approximately 150% [10] . In family law matters, the number of motions heard has managed to keep pace, approximately, with the number of motions filed, but overall the number of motions heard by the Court has fallen significantly behind the number filed. Charts 9 (a) and 9 (b) demonstrate those trends.15Chart 9(a)&(b)

Pre-Trials

Pre-trial activity has risen significantly since 1989/90 as well -- by 66.1%. Ministry data does not yet separate civil pre-trials from criminal pre-trials, nor, as previously pointed out, does it capture the many pre-trials that are held in judges chambers rather in courtrooms. We have no way of determining the breakdown between civil and criminal pre-trials, but Chart 10 points out the marked increase on the demands of judicial time, and on staff, with respect to pre-trial activity.

Landlord and Tenant Activity

Landlord and tenant applications have steadily increased across the Province over the past 5 years. They have gone from 28,107 matters initiated in 1989/90 to 43,858 matters initiated in 1993/94. Approximately 3/4 of these applications are dealt with by registrars. The remaining 1/4 must be heard by General Division judges.

INITIATIVES IN CRIMINAL MATTERS

It was suggested to the Civil Justice Review on a number of occasions that one of the reasons for the delay in civil cases was that more and more of the Court's time and resources were being diverted from civil matters to criminal matters as a result of the impact of the Supreme Court of Canada's well-known decision in R. v. Askov. [11] . That decision required resources to be devoted to criminal matters in order to ensure that criminal matters are disposed of within certain time parameters. At several public hearings, members of the public wondered why criminals are entitled to speedy justice -- and what they saw as "first class" justice -- whereas they, as honest, hardworking and taxpaying citizens, couldn't get their civil disputes disposed of except after long delays and huge expense. Judges in certain of the Regions -- particularly in the Central East and Central West Regions -- pointed out that the majority of their time was being absorbed by the criminal system.

Indeed, in Central West and Central East Regions it appears that the breakdown of the allocation of judicial resources between criminal and civil matters is approximately 70/30 respectively, although the caseload may not break down in that fashion. In other parts of the Province, however, the breakdown is different. In Toronto, it is approximately the reverse, although Toronto deals with a large criminal case load. On average across the Province, as the accompanying Chart 12 demonstrates, it would appear that, although criminal matters do absorb more of the Court's time than civil matters, the difference is not as marked as might be expected.

In 1994, the Ministry of the Attorney General launched its Criminal Investment Strategy. In the wake of Askov this strategy is intended to put into place a more effective method of dealing with the criminal cases in the system. The initiative, coupled with implementation of the recommendations of the Martin Report [12] seeks to improve pre-trial disclosure, to introduce pre-charge and pre-trial screening of cases and, in appropriate situations, to promote the diversion of less serious offences from the courts and the early resolution of those cases that are capable of resolution.

Early indications are that the strategy may be having the desired affect to this point, at least in the Provincial Division. The affect may then find its way to the General Division, thus contributing to the "breathing space" opportunity to which we have previously alluded.

Although the actual rate of Criminal Code offences being tried in the Provincial Division has remained relatively steady at slightly better than 10.5% between January 1, 1993 and December 31, 1994, the total number of Criminal Code trials is down because the total number of charges received has declined. Furthermore, the percentage of such cases being disposed of before trial has risen significantly from 59.1% to 69.5% (the goal is 72%).

The direct impact of these initiatives on the General Division is not yet clear. The number of indictments entering the General Division is down somewhat since 1991/92, but not significantly overall since 1989/90 [13] . There was a sharp drop in the number of indictments added to the General Division's load in 1990/91, followed by a slightly sharper increase in 1991/92, followed by a levelling off in number during 1992/93 and a slight drop in 1993/94.

Some caution is necessary in assessing the impact of these numerical trends on the General Division, of course. As in civil cases, fewer numbers of cases coming into the system do not necessarily translate into fewer demands on trial resources - particularly if the cases coming in are the "hard" cases that require more trial time by their nature, and particularly in view of the increasing demands of time now being imposed by jury trials and Charter motions.

Nonetheless, while the full impact of the Criminal Investment Strategy on court pressures cannot be fully determined as yet, there are indications that it is having a positive impact.

A Federal Government initiative will also have an important affect on the number of criminal cases entering the General Division system. Bill C-42 will increase the number of what are known as "hybrid" offences in the criminal system. "Hybrid" offences are those in which the Crown has the right to elect whether to proceed by way of indictment or by way of summary conviction proceedings [14] . It is expected that the amendments to the Criminal Code resulting from Bill C-42 will increase the number of instances in which the Crown will elect to proceed by way of summary conviction, thereby reducing the number of committals to the General Division. Again, it is too early to predict what impact this initiative will have on the courts, but it has the potential to make a significant difference in the number of cases coming into the General Division.

CONCLUSIONS

Few firm conclusions can be drawn from the foregoing, it seems to us. As we point out later, in the Chapter dealing with technology and management information gathering, the data is not precise and, in some cases, is not reliable.

While the trend in the number of civil cases initiated in the General Division has been markedly downward in the past 2-3 years, it cannot be said with any degree of comfort that the decline will continue. The growing pressures of motions, pre-trial activity and landlord and tenant matters are substantial.

On the other hand, the number of civil cases being initiated in the system and added to the trial lists are down at the moment and courtroom hours utilized have risen dramatically. On a province-wide basis, the General Division is disposing of slightly more cases than are added to the trial lists on an annual basis, although there remain very serious -- and increasing -- backlog problems in centres like Windsor, Brampton, Toronto, Newmarket, Whitby and Ottawa.

The criminal investment strategy, generally, and the impact of Bill C-42 dealing with "hybrid" offences, may well have the effect of diminishing the number of criminal indictments coming into the General Division. Backlog strategies are being implemented in various centres through co-operative efforts of the Bar, the Judiciary and Courts Administration.

We believe, as we have stated, that the timely confluence of these events creates an opportunity for the Court to "catch up" and to implement new strategies and reforms. It is difficult, if not impossible, for recommendations for change to be thought through and implemented when everyone involved in the administration of justice must invest all of their efforts and attention to preventing the system from falling even further behind. The trends indicated by the data we have discussed suggest there may indeed be a window of change at hand which will provide some time for reflection and some opportunity for the reallocation of resources and energy toward the implementation of a plan for action and change.

We offer that plan in the remainder of our First Report.



Footnotes:

[5] A supernumerary judge is one who has the option at age 65 to retire but who elects instead to sit 1/2 of the time of a full-time judge. Supernumerary judges receive full salary, but no pension.

[6] The exact figures, according to the CISS statistics, are 252,062 and 178,770, respectively.

[7] In Meyer v. Betel et al. (1993) 15 O.R. (2d) 129 the Ontario Court of Appeal noted that it was inaccurate and misleading to describe the limiting provisions of the legislation (section 226 of the Insurance Act R.S.O. 1990, c. I.8) as creating a "threshold", but they are commonly referred to in those terms. See Meyer v. Betel for a description and consideration of the no-fault scheme and for an analysis of the requirements that need to be met in order for a plaintiff to be able to sue under the 1990 amendments.

[8] See Chart 2 above for the pattern of motor vehicle litigation since 1979/80.

[9] Although Ministry data for pre-trials and motions does not separate criminal and civil matters, it is reasonable to assume that the majority of time spent on motions would relate to civil matters. Courtroom utilization data is only recently beginning to capture pre-trials and case management type motions that take place in judges chambers. Consequently the information given for motions and pre-trials is understated by that unknown factor. We note that this data is a reflection of "courtroom" time, not of "judge time", as it does not reflect the amount of time spent by the judiciary outside of the courtroom reviewing evidence, reading law, writing decisions and meeting with counsel and parties to attempt to facilitate settlements.

[10] Court Statistics Annual Report, supra, Provincial Summary.

[11] (1990) 59 C.C.C. (3d) 449. (S.C.C.)

[12] Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions The Hon. G.A. Martin 1993 (Hereinafter 'Martin Report')

[13] An "indictment" is the document (or "charge") by which a proceeding enters the General Division process.

[14] Summary conviction matters are dealt with in the Provincial Division. If the Crown elects to proceed by way of indictment, there may first be a preliminary hearing in the Provincial Division to determine whether there is a case to go to a judge or jury. If the accused is then "committed for trial" the matter proceeds to the General Division for trial by judge and jury, or by judge alone.