The Modern Civil Justice System: An Overview Summary of the First Report

CHAPTER 1

1.1 Setting the Stage
1.2 Public Confidence
1.3 Dispute Resolution as a Whole
1.4 Allocation and the Use of Resources
1.5 A Unified Management/Administrative Model
1.6 Changing Attitudes, Roles and Responsibilities
1.7 Management of Cases
1.8 Additional Areas
1.9 The Modern Civil Justice System
1.10 Conclusion


Disputes, unlike wine, do not improve by aging. Many things happen to a cause and to parties in a dispute by the simple passage of time, and almost none of them are good. Delay in settlement or disposal of conflicting claims is ... a primary enemy of justice and peace in the community.
—Willard Z. Estey

When the system works, it works well, and many cases testify to that; But when it goes off the rails, people tend to remember the bad experience. It's not perfect, but its better than a shotgun in a field, like in some other countries.
—Citizen at a public meeting

1.1 SETTING THE STAGE


The need for the Review

We will do well to remember those statements.

No civilized society can remain stable without a mechanism whereby its members can resolve their disputes peacefully and, where necessary, in a binding fashion. The alternative to such a mechanism is chaos at best, and unbridled violence at worst.

Unreasonable delay in the disposition of disputes is, indeed, "the enemy of justice and peace in the community". It leads inevitably to unreasonable costs. It breeds inaccessibility. It fosters frustration, and frustrates fairness. The administration of justice falls into disrepute.

People become alienated.

Patterns of this nature have been developing in Ontario over the past number of years. Unacceptable delays and mounting costs, with their attendant implications for inaccessibility and mistrust of the system, have become endemic.

Backlogs are mushrooming on the crowded urban calendars of Toronto, Ottawa, Windsor, Brampton, Newmarket and Whitby, to name only the hardest hit centres. There is more civil litigation. It is more complex. It takes longer to prepare, to settle and to try. It is fostered by an increasingly "rights-oriented" and litigious society; enhanced in the prism of mass media coverage; and nurtured by a continuing onslaught of legislation from all levels of government giving people more and more opportunities to go to court.

These developments pose serious threats to the civil justice system which, simply put, is in a crisis situation.

The Civil Justice Review


The Civil Justice Review has been established at the joint initiative of the Chief Justice of the Ontario Court of Justice and the Attorney General for Ontario to address these problems and to propose "specific and implementable solutions" for them. Its mandate is,

to develop an overall strategy for the civil justice system in an effort to provide a speedier, more streamlined and more efficient structure which will maximize the utilisation of public resources allocated to civil justice.

In addressing the concept of a modern civil justice system, and what its features should be, we determined that we would measure our recommendations against the following criteria, which we see as the legitimizing principles underlying such a system. These benchmarks are:

  • Fairness
  • Affordability
  • Accessibility
  • Timeliness
  • Efficiency and Cost-Effectiveness
  • Accountability, and
  • A Streamlined Process and Administration

Characteristics of the Modern Civil Justice System


To meet these benchmarks, in our view, a modern civil justice system for Ontario must have at least the following characteristics:

  • It must have the confidence of the public, and the public must have a legitimate and meaningful involvement in the way the system works.
  • It must be properly and adequately funded and resourced.
  • It must focus on "dispute resolution" as a whole, and make available to the public, on an institutional basis, both the traditional court adjudication processes and the whole panoply of alternative dispute resolution ("ADR";) techniques which enable parties to work out their disputes on their own or with the assistance of a third party.
  • Its courts must be presided over by an impartial and completely independent judiciary, the members of which must be of the highest calibre and character and who must be representative of the society they are being entrusted to judge. As the civil justice system evolves, judges, we believe, will be called upon to bring skills as case managers and general dispute resolvers to their role as well.
  • Its administration must likewise be staffed by qualified and trained personnel at all levels.
  • It must feature a unified management, administration and budgetary model for the administration of the justice system, featuring clealy defined lines of responsibility.
  • It must be equipped with modern computer and electronic technology to enable the participants in the system to work effectively as an integrated whole.
  • It must operate under the model of caseflow management, a time and event managing system which facilitates early resolution of cases, reduces delay and backlogs, and lowers the cost of litigation. Caseflow management shifts the overall management of cases through the time parameters from the Bar -- where it has traditionally been -- to the judiciary, streamlines the process, permits the introduction of ADR techniques, and creates an environment where judges, administrators and quasi-judicial officials can work together to integrate the various elements of the system into a co-ordinated whole.

These themes and concepts are developed in more detail throughout this, our First Report and will continue to evolve, in consultation with the various participants in the justice system, as we work toward our Final Report later this year. What follows in the remainder of this Chapter is a brief commentary on the more significant features, in order to set the context for our recommendations.

1.2 PUBLIC CONFIDENCE AND PARTICIPATION


In order for the public to have a feeling of confidence in the integrity of their civil justice system they are entitled to:

  • timely and affordable civil justice
  • be able to understand the system which provides that justice, at least in its fundamental elements if not in its procedural complexities and,
  • basic, straightforward, information to assist it when it comes into contact with the system.

As the noted American jurist, Justice Felix Frankfurter, expressed it:

"The Court's authority, consisting of neither the purse nor the sword, rests ultimately on substantial public confidence in its moral sanction"

Like most other institutions in to-day's society, the Courts are the subject of increasing scrutiny by the public and the media. This scrutiny makes it ever more apparent that the Court be worthy of the public confidence which is the ultimate basis for societies willingness to accept it's decisions.

This is particularly so at a time when the Charter of Rights and Freedoms has placed the Courts at the centre of many controversies which in former days were the sole preserve of the Legislatures and Parliament. At the same time, new and proliferating legislation in areas such as family law, consumer protection law, environmental law, class actions and tax and corporate-commercial law -- to name only a few -- is placing the civil justice system in the public eye on a daily basis.

As a result, the public is demanding more of a say about what goes on in the justice system, and the ability to participate in a meaningful way in affecting what happens. As the public member of the Review put it, there is presently

"no meaningful and substantive role for the citizen in the justice system. Citizens are less willing today to place blind faith and trust in institutions, in professionals and in elected officials. They are more demanding of accountability, more insistent on openness and more determined to be involved in actively shaping our institutions. [1]

The Civil Justice Review agrees that the public must be given a more participatory role in the civil justice system, and we have elaborated on this view in the Chapter called "Changing Attitudes, Roles and Responsibilities.

1.3 DISPUTE RESOLUTION AS A WHOLE: THE COURTS AND ADR, or, THE "MULTI-DOOR" APPROACH


Civil justice is a foundational institution in our society. We believe that the State has an obligation to make available to its members the means by which their disputes may be resolved, peacefully, through the medium of independent, objective and fair third party intervention.

This involves more, in our times, than simply the presence of courts as we have traditionally known them, albeit, the adjudicative role of an independent judiciary will remain a central and indispensable aspect of any civil justice system. Experience in our own and most other jurisdictions shows us that the vast majority of all cases settle before trial. We need to focus our attention on the process for disposition of this great majority of cases, as well as continuing to concentrate on those that do go to trial.

In a broader sense, then, "the Court" should become a "dispute resolution centre" -- a place where people go to have their differences resolved in a fashion which is most appropriate to their particular situation. This may involve resort to one or another of the wide panoply of "alternative dispute resolution" ("ADR") techniques that are available, or it may involve resort to the traditional litigation path towards court adjudication. In either case the State, in our opinion, has an obligation to ensure that these options are available to the members of the public. This is what is meant by the "multi-door" concept of dispute resolution. There are a variety of "doors" through which disputants may go, in order to find the best method of resolving their differences.

ADR is not a panacea, but among its stengths is the veritable smorgasbord of techniques which it makes available to enable the parties to create procedures and solutions that are tailor-made for their circumstances. The public should have access, within the rubric of its civil justice system, to these alternative mechanisms for finding a resolution to their own disputes themselves, either on their own or with the assistance of a third party.

At the same time, it remains essential -- indeed, fundamental -- that the civil justice system provide an impartial and fair tribunal to determine the parties' disputes in a binding fashion, when they cannot do so themselves. This tribunal we know traditionally as a "Court".

1.4 THE ALLOCATION AND USE OF RESOURCES


The modern civil justice system will re-think the way it utilizes its resources. It will re-allocate existing resources in an effective way and it will invest in new resources which will enable it to provide a higher quality of justice in a less costly and more efficient manner in the long term. By "resources" we are referring to human resources, technology, physical facilities and funding.

  • Human Resources


    People perform different functions and roles in the justice system. We must see that they are able to do so in the most effective manner possible in order to ensure the highest quality of justice. This means that the civil justice system must allocate its personnel, in the course of processing its case load, in a fashion which facilitates the right people performing the right tasks at the right stage in the proceedings.

    The people working in the system must be highly qualified, and they must be provided with the necessary support and training to permit them to perform their functions and roles properly.

    Judges are responsible for adjudicating, for assisting the parties in settling, and -- in their evolving roles as case managers -- for managing the flow of cases through the system. Court administrators are responsible for administration, for managing the operation of the system and for maintaining the necessary infrastructure to ensure that the system can and does work.

    We believe that in between the case processing functions performed by court administrators, on the one hand, and those performed by judges, on the other hand, there is a wide range of activities which can be dealt with more expeditiously and in a more cost-effective manner by non-administrators and non-judges. These activities do not require a judge for their performance, but they do require legal training, some case management and ADR skills, and the ability to exercise discretion and make decisions of a quasi-judicial nature. We are proposing the creation of an officer of the Court to be known as a "Judicial Support Officer" to fill this role.

    As will be apparent in the reading of this First Report, we are proposing that judges, court administrators and judicial support officers can most effectively carry out their roles in the context of a system of caseflow management. We recommend that they do so in "case management teams" consisting of judges, judicial support officers and case management co-ordinators, and that the concept of "judicial teams" be extended across the province to facilitate the implementation of this approach.

    In this way, we see judges, quasi-judicial officials and administrators being able to devote their time and energies in the most effective manner to their true functions and roles in the system.

  • An Independent Judiciary


    To ensure the requisite high quality of justice and the fair and impartial determination of matters coming before the Courts, a strong, and completely independent judiciary is essential. An independent judiciary is one of the hallmarks of our free and democratic society. This is not just a trite platitude: any reforms to the justice system must be measured against the need to preserve that value.

    In addition, those who are appointed to the judiciary must be of the highest calibre, experienced in the practice of law and in life, and reflective of the make-up of the society whose people they are being asked to judge. With case flow management techniques likely to become more prevalent, judges need to acquire skills in utilizing ADR processes and in the management of case loads as well.

  • Courthouses and Facilities


    A civil justice system requires courthouses and facilities for the trial and disposition of cases. They are expensive, but they are also an important symbol that justice is present in the community.

    Modern courthouses must be designed to meet the needs of the modern justice system. They will be centres for dispute resolution in a caseflow managed system, not simply centres for the disposition of cases by trial. Accordingly, they must be designed to accomodate the exigencies of such a system. They will require real courtrooms for the trial of those actions which must be tried, but they will also require other rooms and facilities for case management activities, ADR processes and case conferences. Their efficient use of court facilities will depend on their flexibility and adaptability while equipped with up-to-date multi-media technology capacity.

  • Technology


    Our vision of the civil justice system will require a modern computer and electronic technology infrastructure. Nothing less will enable the participants in the system to work effectively as an integrated whole, and to provide the necessary information and data for the management of the system.

    Automation in Ontario is modest, at best. While there are some applications in operation in various locations -- particularly in connection with the three case management pilot projects in Windsor, Sault Ste Marie and Toronto -- and while the Ministry is currently gathering operating data from across the Province and inputing it into a computer data base, these efforts are sporadic, not necessarily compatible, and insufficient. What is needed is a province-wide network and system that will allow those who work in the civil justice system to have access to common data banks, that will generate reliable statistical data for analysis and management purposes, and that will eliminate at least part of the avalanche of paper which is engulfing and paralysing the system.

    There are many applications of computer and electronic technology available on the commercial market and ready for utilisation to-day, which could make the system function more effectively. Although they involve initial capital expenditures in terms of hardware, software and training, these technologies will save money in the long run and are worth the investment. They include -- to name but a few -- applications which permit:

    • electronic filing of documents directly from lawyers offices to the court data bank;
    • imaging, to input documents brought to the courthouse by litigants acting on their own behalf and who do not have the equipment for electronic filing;
    • automatic payment by debit or credit card;
    • video conferencing;
    • the generation of accurate statistics for purposes of financial and administrative management;
    • the scheduling of cases, motions, case conferences and most other "events" in the system;
    • the storage of data with much smaller space requirements and in a manner that makes it accessible simultaneously by anyone requiring and entitled to access, from anywhere, for any number of purposes related to the processing of cases.

    Apart from the enhanced management information that would be generated from the investment in these technologies, the amount of savings in terms of reduced paper flow, reduced storage and the re-allocation of staff will be very significant.

    The Bench, the Bar, Government, and the rule-makers need to embrace the concept of modernizing the civil justice system so that the introduction of technology will flow smoothly.

  • Proper and Adequate Funding


    The modern civil justice system must be properly and adequately funded.

    At present, the Ontario Government allocates 0.54% of its total budget to courts administration. If one takes into account the revenues generated by civil justice through fees, the annual net allocation to courts administration is closer to 1/4 of 1%. This has been the pattern for many years. At the same time, courts administration's share of the budget for the entire Ministry of the Attorney General has been progressively decreasing, due in part to the increase in funding for Legal Aid.

    What is required, in our opinion, is a complete re-evaluation of the way in which resources are allocated and protected for Courts Administration. At the moment, the budget for Courts Administration is buried in the overall budget of the Ministry of the Attorney General. In our view, it should be separated and dealt with on its own footing, particularly in light of our suggestion for a unified management model. When funding considerations for the administration and infrastructure of the justice system are mixed in with overall ministry priorities -- many of which are understandably "policy" or "program" oriented -- they are too easily "shunted to the rear" in the face of competing demands for diminishing resources.

    The justice system is not a black hole down which governments must simply pour more money, more judges and more resources. The system must be accountable and made to operate in a way that demonstrates the effective use of existing resources already allocated to it. However, the effective utilization of existing resources and the judicious investment of new and additional resources are both pivotal to a properly functioning civil justice system.

    We have attempted to identify practical efficiencies which can be introduced within the civil court system and which will lead to savings. This, coupled with the streamlined and cost-effective nature of the new system that we are proposing, will lead to an availability of resources which, we believe, will provide the primary source of the funding needed to effect the changes we propose.

    Technology inititiatives are one area where the investment of new funds is justifiable. That new investment now will pay dividends in terms of savings and efficiencies which will allow for re-investment to support the modern civil justice system.

    This type of investment strategy will place the system on a proper financial footing and provide the needed savings to enable the re-thinking and re-allocation of existing resources to be done in other areas more effectively.

1.5 A UNIFIED MANAGEMENT/ADMINISTRATIVE MODEL


At the present time, the the management and budgetary administration of justice in Ontario is in bi-furcated hands.

Management and administration are partly the responsibility of the judiciary, but primarily the responsibility of Courts Administration. Budgeting is solely within the purview of Courts Administration, and through it, the Executive branch of government and the Legislature.

Judges are accountable for matters of administration bearing directly on the exercise of their judicial function. Primarily, this responsibility embraces control over the lists and the scheduling of cases, and over the assignment of judges and courtrooms for the hearing of those cases. This responsibility is a necessary adjunct to the preservation of the institutional independence of the judiciary.

On the other hand, the Ministry of the Attorney General -- the major litigant in the courts -- is responsible for the budget which enables the judiciary to perform these "judicial administration" functions. At the same time, the Ministry, through its Courts Administration branch, is responsible for virtually all other matters which provide the infrastructure to enable the judiciary to perform their general judicial functions. The statutory jurisdiction over staff, the administration budget generally, financing, technology, organization and physical facilities rests with the Ministry.

The lack of a unified model, with a single line of accountability and clear lines of authority has led to increasing difficulties, and increasing friction between the Ministry and the Judiciary. General fiscal restraints, as governments endeavour to spread existing resources over an increasing array of public demands, have enhanced these difficulties and frictions, and made it urgent that they be addressed, in the interests of an effectively operating justice system. Compounding the problems has been a culture which has historically kept communications between Judiciary and Ministry to a minimum, on the theory that a judge's task is to adjudicate and an administrator's, to administrate.

We have concluded that the justice system can no longer function effectively in Ontario unless and until a single authority, with clear lines of responsibility and accountability, is established to deal with all administrative, financial and budgetary, and operational matters relating to court administration in the Province. This is an issue which cuts across the boundaries of the civil justice system, itself, and affects the system as a whole. Nonetheless, we believe that it must be dealt with if the civil justice system, in the long run, is to become effective.

In a Chapter entitled "Creating a Responsible Justice System Structure" we have recommended that steps be taken immediately to establish a single issue task force for the purpose of developing an implementable proposal for the creation of a unified management, administration and budgetary structure for the court system in Ontario.

1.6 CHANGING ATTITUDES, ROLES AND RESPONSIBILITIES


One of the most frequently asked questions during our consultation phase -- usually, but not always, by the public -- was,

"Who's in charge here?"

Partly this was a reflection of the tensions and inefficiencies springing from the lack of an effective management, administration and budgeting system referred to above. Partly it was a recognition that those who are the participants in the civil justice system -- judges, administrators and lawyers, in particular -- do not seem to share a sense of common responsibility for the operation of the system.

We have mentioned the difficulties and tensions between Ministry and Judiciary. The Bar, too, plays an integral role in the administration of the system. It represents the clients who use the system in the system. It has influence through that very representation and through various professional organizations and its governing body, the Law Society of Upper Canada. Like its co-participants in the system, the Bar occasionally marches to the tune of its own drummer (or drummers) as well.

All of this has led to these three constituencies becoming "the three solitudes". We are happy to be able to report that the walls between the "three solitudes" appear to be falling. There is a growing recognition that a sense of co-management of the system and of shared responsibility for its results is essential to making it operate in a proper fashion, in the interests of the public. The Chapter entitled "Changing Attitudes, Roles and Responsibilities" elaborates on this theme.

1.7 MANAGEMENT OF CASES


The Civil Justice Review recommends the establishment of caseflow management on a Province-wide basis.

The results of the three pilot projects in Windsor, Sault Ste Marie and Toronto have demonstrated that case management works if it is properly resourced, effectively planned, and the people working within the system are adequately trained. It promotes the earlier resolution and disposition of cases, reduces delay and backlog, ultimately lowers the cost of litigation, and, consequently, adds to the satisfaction of litigants.

Caseflow management is a concept which offers great potential, in our opinion, for combining and co-ordinating the various disparate elements of the civil justice system and for integrating them into a more effective whole. The creation of judicial teams across the Province, and of case management teams involving judges, judicial support officers and case management co-ordinators is central to this concept. Circuiting of judges from one Region to another is also an important feature of this province-wide orchestration of resources and personnel.

We develop this notion more fully in that portion of the Report dealing with "Management of Cases".

1.8 ADDITIONAL AREAS


Family matters, small claims and landlord and tenant matters receive separate attention in the Report. They are the three areas of civil justice that touch people the most.

Family law was a subject which dominated the public consultation phase of the Review. Family disputes engender enormous hardship, cost and emotional strain. We have endeavoured to reflect the concerns expressed and to set out a proposal which will alleviate at least some of the strains created by the system. The new process will be resolution focused. Information Services will be made available to the public to provide explanations about court proceedings -- what is required, and what may be expected; about the impact of parental separation and court proceedings on children and the services available to assist in that regard; and about alternative dispute resolution resources that are available. Early judicial intervention is proposed for most cases, even before the first motion or interim relief. The development of standard affidavits setting out the essential information required for interim relief is encouraged, in an attempt to minimize what we were frequently told was the forever damaging aspect of many of the "affidavit wars" between spouses.

With respect to Small Claims Court and Landlord and Tenant matters, we have put forward some preliminary observations and proposals. Further studies are being done in these areas in connection with the fundamental issues group of the Civil Justice Review, however, and we will return to these subjects again in our Final Report.

In connection with the Rules governing the practice in the Court, we have made a number of suggestions regarding the need for more responsiveness and de-mystification. In particular, however, we have recommended that the proposal put forward by the Simplified Civil Rules Subcommittee regarding a procedure for cases involving money or property valued at under $40,000 be adopted. The principle recommendations of that proposal are the elimination of oral examinations for discovery and the elimination of cross-examinations on affidavits in interlocutory matters, in those types of cases.

1.9 THE MODERN CIVIL JUSTICE SYSTEM: WHAT WILL IT LOOK LIKE IN 10 YEARS?


What, then, in summary, is the vision for the modern civil justice system of the next decade and the beginning of the next century? We began this Overview by noting the guiding principles underlying the deliberations of the Civil Justice Review:

  • fairness
  • affordability
  • accessibility
  • timeliness
  • accountability
  • efficiency and cost-effectiveness
  • a streamlined process and administration

Based upon our deliberations to date, and measured against the foregoing benchmarks, we offer the following concept:

THE MODERN CIVIL JUSTICE SYSTEM IN 10 YEARS: WHAT WILL IT LOOK LIKE?

  • It will focus on DISPUTE RESOLUTION AS A WHOLE,
  • Centering on a "MULTI-DOOR CONCEPT", and
  • Featuring an INDEPENDENT AND CIRCUITING COURT, employing CASE FLOW MANAGEMENT as the vehicle
    • for: screening cases into appropriate streams;
    • processing those cases in accordance with given time parameters which will be enforced;
    • integrating the various dispute resolution techniques and case management mechanisms into a co-ordinated whole;and,
    • encouraging early resolution; while,
    • utilising the right blend of judicial, quasi-judicial and administrative personnel to do so.
  • Small Claims and Landlord and Tenant matters will be dealt with separately and in a more simplified fashion.
  • Underpinning all of this will be a strategically and properly funded infrastructure of facilities, computer and electronic technology and properly trained personnel, all administered through
  • A unified management, administrative and budgetary structure with clear lines of responsibility and accountability; and finally,
  • The system will be made as simplified and understandable as reasonably possible, and will provide methods to incorporate public participation and accountabilitiy in a legitimate way

1.10 CONCLUSION


Although this vision may seem ambitious, we are confident that our recommendations are sufficiently "specific and implementable" that the Government and the Court can act immediately upon them. Some of our initial recommendations can be implemented immediately. Others require further analysis and input, which will be the subject of the Review's efforts pending its final Report.

In this First Report, we have endeavoured to set out the framework for the civil justice system of the future, as we envisage it. Some aspects of this framework remain to be developed further -- aspects dealing in particular, with the cost of justice (in its various dimensions); with the creation of the unified management, administration and budgetary model; with the way in which judicial resources are allocated to the Province and the criteria for doing so; small claims matters; with landlord and tenant matters; and with the implementation of technology.

Our Report sets out our plans for implementation.

We have listened to, and not forgotten, the innumerable individual suggestions and proposals that we have received. Each is valuable in its own right. Many will necessarily be addressed and incorporated in the course of putting our concept of the civil justice system into effect. In some cases it will be readily apparent that this is so. Other suggestions will be fleshed out in the course of the next phase of the Review.

The members of the Civil Justice Review appreciate the considerable lengths to which many people went to provide constructive input to our process, and the efforts that went into that input. The process itself has been a significant contributor to the evolution of a new sense of co-operation amongst the participants in the justice system. There currently exists a will for change on the part of those participants, we perceive, and a willingness to take the time and expend the effort needed to effect that change.

It is a window of opportunity not to be missed.



Footnotes:

[1] Remarks by Mary McConville at a Conference involving judges, court administrators and government representatives, lawyers and members of the public, held at Geneva Park on October 24, 1994; published in The Advocates' Brief, a publication of the Advocates' Society, Vol. 6, No. 4, November 1994.