19.1 Human Resources
The civil justice system is very people-intensive. Its successful operation is dependent upon the co-ordinated and effective activity of large numbers of employees, judges and lawyers. As a Task Force, we have been highly impressed by the dedication and capacity for work demonstrated by each of these groups of people. We believe that with the innovations that we are proposing they will be able to work, not harder but, more effectively in their individual efforts.
A great deal has been said throughout this First Report about human resources and about how they may be more effectually utilized and managed in order to maximize their contribution to the system and to permit people to make that contribution in a fulfilling way. We will not repeat those observations here. However, a few additional comments are in order.
Much of the work performed by staff is highly manual.
A document for use in a civil case, for instance, must pass through many hands and across many desks. It has often been said that this type of work can be quite mindless, with very little value added by the employees who may have to stamp documents, enter a piece of information in a record book, or check material for adherence to the Rules. This processing activity is very time-consuming, and many employees have questioned the wisdom of perpetuating it.
Given the significant number of parties that need to see case documentation and the vast number of pieces of paper that may need to be part of the court file, large components of our valuable resources are consumed by repeatedly processing and storing this information. This sort of activity entails a large cost to the government for employees, as well, to say nothing of the costs associated with storing files and using valuable courthouse space.
It became readily apparent throughout our consultation phase that court personnel are extremely committed to supporting the justice system and want a meaningful role in the administration of justice. Their knowledge of the system could be better used if the many labour intensive manual processes which absorb their current energies and time are replaced with re-thought approaches to those processes and automation to support filing and information management.
Staff in the courthouses across the province want to serve the public better. They feel that there are inherent inefficiencies in the system which cause delay and cost to litigants. As well, staff would like to assist in better informing the public about the court process and the staff's role in the system.
Most court office employees only participate in a limited part of a case moving through the system. Very often, they have little awareness of the whole system and how their piece of the process forms part of the ultimate resolution of the case. Much of the literature dealing with the management of human resources describes the potential for improved productivity when employees feel some ownership and sense of accomplishment as part of a team that has accountability for an entire product.
One of the greatest challenges facing us as the proposed changes in this Report are implemented will be their impact on staff resources. Training and redeployment plans must be developed to manage the transition inherent in the work that employees will be performing in a full case flow management environment. Rather than being focused simply on the movement of paper and files, staff support will be critical to the movement of cases through to resolution by aiding the judicial teams in managing the workload and the adherence to time standards and procedures.
Development of the human resource strategy will require input from employees, from their labour representatives, and from human resource specialists in government. Job specifications will have to be written, training modules developed, and opportunities to compete for these realigned functions will have to be provided to the court office personnel affected by the proposed system changes.
The realignment of the financial and human resources will be very much dependent upon our ability to eliminate unnecessary functions and duplicative procedures currently endemic in the system, through automation and the re-thinking and streamlining of the administrative processes, as we have proposed. We believe that the needed resources can be freed up for reallocation and financing of the new system which calls for case managers and judicial support officers.
The dictates of policies of restraint, of the social contract and of policies of redeployment, when implemented in the unique context of the justice system have had a negative impact upon service. The principles of implementing these current strategies must be reconsidered in light of the growing imperative for well-trained, well-managed and more sophisticated professional administrators in the system.
Our proposed changes should ease the current burden on lawyers who are pressured by their clients, by the complexities of the system, and by too much paper. We know from representations by the bar that lawyers are sympathetic to the concerns of court staff and the environment in which they now work. They also support the need for well-trained, well-managed and more sophisticated professional administrators.
Much has been said about the role of the judiciary in this First Report -- the need for an independent judiciary, case management, our concept of the judicial teams, circuiting and judicial support officers, for instance. We will not dwell on those aspects of the Report here again.
Judicial resources will need to be considered in another context, as well, however. We have learned that there has never been any standards by which to establish the appropriate level of judicial resources needed for each Region or for the Province as a whole. The team approach and the introduction of judicial support officers within a caseflow management system could have significant impact on judicial workload. It is important that a criteria be established for determining the appropriate level of judges and the allocation of these resources.
This has never been done in Canada, and indeed, we have been able to find very little research on the question in other jurisdictions. Although this is a time of limited fiscal envelopes, this issue will need ongoing careful consideration. We hope to be able to address this matter in our Final Report.
Throughout the Consultation phase of the Review, suggestions were made which focused on various practical efficiencies that could be introduced into the system to promote the more effective use of current resources. Many of these, we wish to emphasize, are precisely the kinds of proposals that are essential to the reallocation of our resources if the demands of the new civil justice system are to be met successfully.
A number of these suggestions have been dealt with and developed in previous sections of the Report, and we will not repeat those here. For reference purposes, however, we note the following examples:
- the introduction of technological efficiencies (Chapter 18.1)
- a caseflow management system that minimizes paper intensive administrative support (Chapter 13)
- impact studies for changes to legislation, Rules, regulations and practice directions (Chapter 19.5)
- a streamlined record-keeping system (Chapter 15)
- the re-examination of service requirements (Chapters 14 and 18.1)
- opportunities for the private sector to play a role in service of documents and examinations for discovery (Chapters 13.7 and 13.10)
- the more efficient scheduling of motions (Chapter 13.8)
There are a number of other practical efficiencies which need to be examined separately.
Court Staff Scrutiny of Documents:
In almost every General Division court office, counter staff review documents that are filed in order to ensure compliance with the Rules of Civil Procedure and the local practices of the court.
This practice fulfills an important function from the judiciary's perspective in that it improves the quality of the materials finding their way to judges, thus minimizing the amount of time they must spend dealing with materials that do not conform to the Rules. On the other hand, it is a practice which provokes a great deal of frustration on the part of court staff, who must spend a great deal of their time reviewing such documents, and who feel -- with some justification, if our consultation phase is an accurate measure of the situation -- that they are frequently being asked to spend time correcting matters that are the lawyers' job to get right in the first place.
We recognize the legitimacy of this frustration.
Another difficulty arises because the degree of staff scrutiny of documents is uneven and varied across the Province. This variation engenders frustration on the part of the lawyers, who have to deal with different scrutiny practices.
Frustration, and the strain on relationships that it creates, are not the only consequences of these difficulties. They lead to additional costs to clients, the public, and lawyers. And they lead to significant additional administrative costs.
It is important to detect problems in documents at an early stage. It is also important, however, to develop principles of consistency and to utilize scarce human resources effectively. These factors must be balanced.
We believe that the creation of a protocol regarding the examination of court documents would be helpful in addressing this problem.
We recommend that representatives from Courts Administration, the Judiciary and the Bar develop a protocol with respect to the examination of court documents by court staff, and that the protocol be communicated to all court offices in the province and be applied throughout the province.
Flexibility in Filing Court Documents
Currently, Rule 4 of the Rules of Civil Procedure requires that all documents which need to be issued must be filed with the court by personal attendance. Any other document can be filed by ordinary mail. Many court offices and particularly those operating under the Case Management Rules have allowed for some flexibility in filing through the use of facsimile transmissions.
The expanding use of other methods of delivering correspondence and documents, such as through courier services and by means of electronic filing, should also be taken into account. We see no reason why the process of filing documents with the Court should not be adapted, where appropriate, to these evolving methods.
We recommend that the Rules Working Group of the Implementation Team consider the development of broader and more flexible approaches to the filing of court documents.
Examinations for Discovery in Court Offices:
Rule 34 of the Rules of Civil Procedure provides that, unless there is an agreement between the parties, oral examinations for discovery must be held before an "Official Examiner". The duties associated with this responsibility often fall to the local court office. Over the years, qualified private court reporting services have been established in many areas of the Province, however, thus diminishing the need for such services to be provided through court offices. The Ministry decided to phase out this role in the court offices.
There still exist, however, court-connected facilities for these oral examinations. If the requirement for consent were removed, the court would be able to withdraw from this service, subject to the availability of properly qualified private-sector facilities for the production of reliable transcripts .
We recommend that steps be taken, through the Rules Working Group of the Implementation Team, to minimize, and eventually to eliminate, the practice of examinations for discovery being held in court office facilities, in those locations where properly qualified private-sector reporting services are available.
A number of suggestions focused on the need to conserve judicial resources.
In the context of the proposed caseflow management structure, with its judicial and case management teams, we believe that certain functions traditionally allocated to the judiciary, or to quasi-judicial officers, can be effectively dealt with by case management co-ordinators where there is consent.
These are enumerated in the following recommendation.
We recommend that, where there is consent to the order being requested, case management co-ordinators be authorized to dispose of the following matters:
- amendments to pleadings (in addition to the Registrar's existing powers in this respect)
- additions/deletions/substitutions of parties
- change of solicitors of record
- setting aside default judgements
- discharge of certificates of pending litigation
- requests for security for costs in specific amounts
- certain discovery related motions
19.3 Court Facilities
Courthouses and court facilities are an integral part of the administration of justice. They are symbols of the presence of justice in the community, and they provide the physical space from which justice is made available to the public.
Court facilities are important from the perspective of all groups involved. The adequacy and accessibility of court accommodation influences the public's perception of the quality of justice being dispensed. A significant portion of a court administrator's time is spent maintaining, improving, and reorganizing limited court space. Judges and court staff must live daily with the working conditions created within this space. Finally, the Bar looks upon the courts as a place where they need to conduct case - related business of all kinds.
The state of court accommodation in Ontario has been the subject of comment in a number of Reports in the past quarter century. The McRuer Report (1968), the Ontario Law Reform Commission report on the Administration of Ontario Courts (1973), and the Zuber Report (1987) all did so.
The Zuber Report included the following specific recommendations:
- that all new courthouse designs be based on the model of a consolidated courthouse, and that, to the extent possible, current facilities should accommodate all courts and court offices;
- that remote centres should be served by itinerant satellite court operations, with permanent Provincial satellite courts in the smaller centres of Ontario;
- that resort to ad hoc accommodation should be kept to an absolute minimum where there are permanent court accommodations;
- that a standard set of courtroom and courthouse designs be created to be used whenever new facilities are to be built or present facilities are to be renovated;
- the courthouses should be designed to ensure that judges and jurors have secure access to the courtrooms and that accused persons also have secure but separate access to the courtrooms from the holding areas;
- that public spaces in courthouses should be maintained and not renovated into courtrooms and offices; and,
- that courthouses should be well signposted, with information pamphlets available for public use.
Following the Zuber recommendations, standards for courthouse construction and courtroom space and facilities have been developed. New courthouse construction is based on a consolidated model and current court operations have been merged to the extent possible in the space provided. Resort to ad hoc accommodation has been reduced. Draft designs and actual court mock-ups have been used in wide consultation processes for proposed courthouses. Moreover, courthouses visited by the Review were observed to have information shelves with pamphlets in both official languages.
In the seven years since the release of the Zuber Report, however, the pressures on courthouse and courtroom space in Ontario have grown. The Supreme Court of Canada's decision in Askov -- directing that criminal charges must be disposed of within certain time parameters -- has resulted in the prioritizing of criminal cases on trial lists. In some areas of the Province, this has had a significant impact upon the availability of resources for civil matters. The backlog of civil cases awaiting trial has grown. Security for courthouses has been transferred to the Ministry of the Solicitor General through local police departments. Changes to the processing of cases have been made in pilot projects such as the case management sites and in technology, as in the automated writ system.
In March, 1994, The Coopers and Lybrand Consulting Group completed a study of the Toronto Courts for the Ministry of the Attorney General and for Management Board of Cabinet. The study included a Master Plan, Functional Planning Documents, and an implementation program for court facilities for the next twenty years. This Study cited severe drawbacks in the current courthouse facilities in Metro Toronto, including:
- lack of specialized spaces
- poor security
- poor air quality, acoustics and lighting
- lack of sallyports
- lack of features for handicapped accessibility
- poor temperature control
- substandard working conditions
- significant barriers to the efficient application of case flow management, to the ability to adapt to re-thought processes, and the flexibility for implementation of new technology
- insufficient jury and public waiting areas
- lack of space for expansion
- a continued threat of severe problems due to increasing case backlogs.
Most of the buildings, the study reported, could not be upgraded to Treasury Board and Building Code standards and for those that could, the cost would be prohibitive.
The Metro Courts Study made a number of proposals for courthouse and courtroom development in Metro Toronto. Without reviewing them in specific detail the study recommended:
- either four or five new buildings should be constructed, depending on which of the several options put forward were accepted
- the following criteria should be applied to evaluate the
- quality of service
- cost effectiveness
- customer service
- quality of workplace environment, and
- ability to accommodate uncertainty.
The Civil Justice Review agrees with these criteria and encourages the Government to proceed with the plan put forward by the Metro Courts Study. The Review has also been advised of several other large facilities initiatives which are underway in Hamilton, Brampton, Windsor and Cornwall.
It is imperative that current and future plans for court accommodation take into account the changing needs of the civil court system, as outlined in Chapter 13 and 18.1 of this Report. For example, a complete infrastructure for technology to enhance all possible efficiencies is urgently needed. Meeting and motion rooms need to be made available. Secure working space for judicial and administrative decision-making teams should be built in such a way as to support the process. Courtrooms should be kept available for trials. Public areas need to include adequate public and private meeting space, particularly in light of recommendations that clients be more included in pre-trial settlement activities relating to their cases.
The civil justice system must be properly and adequately funded. This a central theme of our Report, and one which has been touched upon many times throughout.
"Funding" is a difficult and elastic concept, however. How, and in what form and quantities, resources are to be allocated to the civil justice system in order to ensure that it is "properly and adequately funded", is much mooted question. It is a question, though, which cannot be accurately assessed and answered until the structures, the systems, the management techniques and the human resources are in place to ensure the system operates in as "effective" a fashion as possible. At the same time, the system cannot be re-thought and re-structured to allow this to happen without the allocation and re-allocation of appropriate funding. Weighed in the balance in this debate must be the reality that there are many intangibles in the justice system and that, in the end, the system must function in a way that is accessible, fair and just.
One aspect of the mandate of the Civil Justice Review is to,
consider the way in which resources are allocated to the justice system and the criteria upon which such allocation is based, whether the appointment of additional resources is needed and justified, and in what ways existing resources can be effectively re- allocated and re-aligned.
The overall theme of this, our First Report, is to outline our "vision" of the way in which the civil justice system should be re-organized, restructured and retro-fitted for the 21st century. We have set out, in summary fashion, the way in which we believe that "existing resources can be effectively re-allocated and re-aligned". Clearly there is much more that needs to be done to settle upon the ultimate way in which resources should be allocated to the justice system, the criteria upon which such allocation should be based and whether, and to what extent, additional resources may be needed or justified. These issues will continue to command our attention during the implementation stage and the consultation and research phase pending our Final Report.
In the meantime, however, we believe that the practical efficiencies which we have identified and the proposals that we have made will result in savings to the system. The first goal is to use the funds saved from these efficiencies and changes to finance from within the new, streamlined and cost-effective structure which we have put forward. In this sense, the reallocation of current resources is hoped to be the primary source of funding for those changes.
With the exception of technology, the efficiencies and savings that we have referred to will not be sufficient to fund both the new structures and processes we have proposed and the implementation of the necessary technology infrastructure to support them.
We believe, however, that an investment strategy in technology will reap benefits in itself, and that such a strategy is not only a necessary one, but also a sound one. Immediate benefits can be gained from the operational changes that technology will bring, and technology initiatives will pay for themselves, both in the form of short and long term savings and in the form of costs avoided. An investment in new funding will be required at the front end for its implementation, but we are satisfied that the business case can be made for doing so.
The members of the Civil Justice Review are acutely aware of, and sensitive to, the current climate of fiscal restraint and constraint. As part of the strategy for taking an overall look at the question of how resources are allocated to the civil justice system, however, it is imperative that further restraints not be imposed on the funding available to the Courts Administration Division of the Ministry of the Attorney General. To impose such further cuts at this juncture of the Review's efforts could severely jeopardize our work and would seriously erode the integrity of the entire system.
A momentum is growing and a will for change coalescing. This momentum and emerging will had begun to formulate before the establishment of the Civil Justice Review, through the umbrella efforts of the Joint Committee on Court Reform and through the various initiatives that are outlined in our Terms of Reference. Furthermore, the Civil Justice Review process has proved to be a remarkable catalyst in itself. Representatives from the Public, the Bench, the Bar and the Ministry are working together, seriously and decisively, to collaborate on solving critical and pressing issues in the court system. Together they have accepted a shared responsibility for the system, and have committed to working together on solutions.
We must seize the emerging opportunities and protect existing resources for the re-alignment needed to implement the new process. We act at the public's peril, if we do not.
19.5 The Impact of Change
We were reminded on numerous occasions during our consultation phase of the tremendous impact upon the courts and upon the entire civil justice system made by new legislation, new regulations, new rules (and even new practice directions) -- and by changes in existing laws of that nature. Very little, if any, advance analysis appears to be done to gauge the impacts of such action on the administration of justice.
At the same time as the system is finding itself squeezed for resources, demands on the courts and the justice system as a whole resulting from a plethora of "law-making" initiatives, are expanding, almost exponentially. Family law legislation, consumer legislation, tenants' rights legislation, environmental legislation, corporate-commercial legislation, class action legislation, regulatory legislation in general, and a host of other rules and regulations -- not to mention the Charter of Rights and Freedoms -- have all placed enormous and growing strains on the system. The former dean of Stanford Law School, Dean Bayliss Manning, called this explosive phenomenon "hyperlexis", by which he meant "the pathological condition caused by an overactive law-making gland". He noted, in this connection:
Measured by any and every index, our law is exploding. New statutes, regulations and ordinances are increasing at geometric rates at all levels of government. The same is true of reported decisions by courts and administrative agencies. Whole new legal fields spring into being overnight, such as environmental law; older fields like property are experiencing infinite fission. Statutory codes .... are becoming more particularistic, longer, more complex, and less comprehensible. We are drowning in law. (emphasis added)
We believe that in the midst of this maelstrom of expanding law, it is imperative that consideration be given -- in a systematic way and in advance -- to the impact that proposed legislation and regulations of all kinds will have on the courts, the judiciary, and courts administration and costs for the public.
One area which needs to receive as much attention in this regard as others relates to rules and practice changes. What may be considered by the rulemakers or the drafters of practice directions to be minor changes can impose significant demands on administrative staff, on the utilization of facilities, on judges and on the bar. We became increasingly sensitized to this point throughout our consultations because it was driven home to us on a number of occasions by both administrators and members of the bar. If not considered in consultation with all concerned groups, rules may be varied to cure some ill, but create three or four other "ills" in the process.
We must be mindful of the accompanying cost of these impacts, which must either be absorbed by the system -- either in the operations of the courthouse or the lawyers' offices, or both -- and passed on to the litigant and the public. They are a drain on Legal Aid funding as well.
We recommend that legislators, regulation-makers, rule-makers and authors of practice directions be required to conduct "impact studies" (including research and appropriate consultation) on the effect of proposed changes and initiatives on judicial, administrative and legal resources before implementation of the proposed changes or initiatives.