In the course of this Review the issue of whether Ontario has enough judges in the civil courts was frequently raised, both by judges and members of the bar. The cry for more judges was heard most loudly in the Central West (Brampton), Central East (Newmarket), Central South (Hamilton), Toronto and East (Ottawa) regions.
This issue has also been the subject of comment by Chief Justice Smith, to date without any concurring response from the federal government. The Chief Justice's core rationale in her pursuit of more judges has been the significant increase in Ontario's population since 1990 and the federal government's failure to respond by appointing more Superior Court judges. This issue in our constitutional scheme of things involves the federal government. If there is a judicial complement problem, it is provincial. The solution (appointing more judges) lies with the federal government.
My Terms of Reference do not extend to either family law or criminal law. However, in trying to determine whether there is a case to be made for more federally appointed judges in Ontario, I cannot ignore the extent to which family and criminal matters consume judges' time. This is so because of the constitutional imperative to bring criminal maters to trial within a reasonable time (see s. 11(b) of the Canadian Charter of Rights and Freedoms) and the institutional, and sometimes statutory, imperative to assign priority to family law matters, particularly those that involve children.
There is no doubt that Ontario's population has increased since 1990. If all else is held constant, more people will yield more civil action activity and, for that matter, more criminal and family business for the courts.
I expect that if the central recommendations in this Report are implemented, there will be what I hope is a marked reduction in the cost and time required to bring a civil action that does not settle to trial. Thus, access to justice will be enhanced. Any efficiency gains derived from the implementation of this Review's recommendations will, of course, have to be taken into account in determining whether the complement of Ontario's judges should be increased and if so, where. The “if so, where” aspect of the analysis is important. As I will explain, in some judicial centres in Ontario the need for more judges is palpable to the extent that, I think, an overwhelming case exists for increasing the number of judges there.
Deploying judges by moving them between or within regions is not the answer. No region, with the possible exception of the North West, has a surplus of judges. At best, moving judges (which occurs now) represents a short-term demand-based solution. It is impractical to think that judges can be asked to sit in a region geographically remote from their offices and homes for any extended period.
Since merger of the courts in 1990, the judicial complement of Ontario's Superior Court has increased by 40, to a total of 223 judges 9 (a 22% increase since 1990). All of the increases in the judicial complement have been directly related to the need to bring criminal matters to trial within a reasonable time (the response to Askov) and to take account of Family Court expansion. No new resources have been added to specifically address civil caseloads.
According to Statistics Canada, Ontario's population increased by 26% between 1991 (10,084,885) and 2007 (12,726,336). In some discrete areas, population growth between the 1996 and 2001 censuses was significant: in Barrie (31%), Brampton (21%), Mississauga (13%), Whitby (18%) and Newmarket (15%). In other locations, population remained relatively constant over the same time period, either decreasing or increasing slightly – e.g., –7% in Sudbury to +7% in Ottawa.
Based on the best available data, Ontario has the highest population-to-judge ratio of all Canadian jurisdictions. That is to say, there are more people per judge in Ontario than is the case in any other province or territory in Canada. In addition, unlike Ontario, other provinces do not have Regional Senior Judges or Senior Family Judges.
Supernumerary judges have been statistically viewed as one-half of a regular sitting judge. There is no doubt that some supernumerary judges sit a full schedule or close to it. However, most have a sitting schedule of about half that of a non-supernumerary judge. Because of their reduced schedules, supernumerary judges frequently cannot be expected to preside over long trials.
In addition, although supernumerary judges are essential to the civil justice system, one has to recognize supernumerary status is a product of the judge's age and length of service. The election is that of the judge. The number of supernumerary judges in a particular region or judicial centre is unrelated to caseload demand. An election by a judge for supernumerary status does, however, trigger the appointment of a replacement for the supernumerary judge. As is the case with regular judges, some supernumerary judges deal with criminal and family law matters. To the extent that occurs, it is manifest the supernumerary judge is of no assistance in moving civil matters through the system.
While the statistics on population growth and population-to-judge ratios are compelling, they do not paint a complete picture of the crisis on the ground in some of Ontario's civil courts. In my view, a greater focus is needed on the problems at individual court locations.
A useful way to assess the relevant volume of business in a particular region or courthouse is to determine the number of defended actions there. This approach is based on the premise that judges, for the most part, are not involved in matters that are undefended. It should be noted that looking solely at the number of defended matters, although useful, does not take the length and complexity of those matters into account. In that context the number-of-defended-cases analysis is unfair to the Toronto region, which, anecdotally, tends to have longer and more complex cases than do other regions.
Taking the number of defended cases by region, or even by courthouse, and dividing by the number of judges available at a given time sheds some light on the workload of the court measured per judge. It does not, however, take into account the length and complexity of the matters before the court or the number of interlocutory proceedings that have to be accounted for. More significantly, unless judges who are assigned to family and criminal matters are factored out of the calculus, the results will not reasonably reflect the non-family civil work of the court on a per judge basis.
In any event, it is clear to me, based on the ratio of defended cases to judges and other submissions I heard or received, that more judges are urgently needed in the following regions: Central West (Brampton), Central South (Hamilton/Kitchener), Central East (Newmarket) and probably Toronto.
One does not have to spend much time in the Brampton and Newmarket courthouses to realize how busy those judicial centres are. Simply put, there are too many cases per available judge. Coupled with other aspects of the civil justice system, this has led to delays that should no longer be tolerated.
In my view, consideration of any increase should start with consultation at the local level. An analysis of several factors will be required, including local population growth, trends in civil case activity, increases in the volume of work in criminal and family matters, courtroom operating hours for civil matters compared to criminal and family matters, and any available data on the delays in having civil matters heard.
I should say something about the specialization and assignment of judges. Where resources permit, the system will work more efficiently if, at the management, motion and trial level, assigned judges have some experience in relation to the issues that are being litigated. That happens systemically in Toronto where the court is subdivided (commercial list, family, criminal, etc.). This approach, which I endorse, only works if there is a sufficient number of judges to populate several branches of the court.
I would expand specializations to identified cases, or classes of case, where feasible. Medical malpractice and hospital negligence cases provide a useful example. The problem with these cases is not their number but rather their length and complexity. If managed and tried by judges with some experience in such matters, these cases would move through the system much more efficiently.
I would add that I see no reason why the management judge should not be the trial judge, and hear motions, unless that judge is somehow involved in, or informed of, settlement discussions. In any case, it seems to me that the rule, not the exception, should permit a case management judge to be the trial judge, subject veto rights of the parties and the judge.
If changes are made that will free-up resources, it would be useful for the court to consider, at least experimentally, individual dockets for trial judges, that is, assigning a case to a particular judge at the outset. Given the state of available technology, the fact that in some regions judges travel should not foreclose that option. It has proved to be workable and efficient in the United States. It should be considered here at least for complex, time consuming matters.
Finally, during consultations, an ongoing need was noted for the appointment of more bilingual judges, particularly in Toronto (including the Court of Appeal). Any future appointments should consider the need for bilingual judges in regions which at a practical level are required to provide bilingual trials.
Recommendations (Judicial Resources)
- The need for additional Superior Court judicial resources in Central West (Brampton), Central South (Hamilton/Kitchener), Central East (Newmarket), and probably Toronto, is compelling. The federal government should forthwith give immediate consideration to an increase in the complement of Superior Court judges in those judicial centres. Any future appointments should expressly consider the need for bilingual judges within a given region.
- In the longer term, the needs of the civil justice system from the standpoint of number of judges required should be the subject matter of a structured analysis by the federal government. That analysis should be undertaken after broadly based consultation with the Ministry of the Attorney General in Ontario. That consultation is necessary since the Ministry of the Attorney General has much of the evidence to support, or otherwise, the case for more judges. In our constitutional scheme of things, the problems are provincial. The solution in relation to the number of judges reasonably required is a federal matter. The analysis should also take account of the impact of family law and criminal matters in relation to judge time and courtroom availability for civil matters, and the need for bilingual judges.