Response to the Review

CHAPTER 6

6.1 Generally
6.2 Concerns of the Public
6.3 Concerns of the Judge
6.4 Concerns of Courts Administration
6.5 Concerns of Lawyers


6.1 Generally

The overwhelmingly uniform response to the Consultation Stage of the Review was the urge for changes to the civil court system.

Many of the identified problems in the current system were shared concerns by the public, the court staff, the judges, and the lawyers. All spoke out against the delays, costliness, and complexity of the process; and most agreed that a renewed focus on the resolution of disputes was essential. Alternate dispute resolution options were consistently suggested as a necessary part of the process.

Those who had experienced case management -- and many of those who had not -- welcomed it as a positive step, particularly if the progress of the case was judicially controlled and properly supported by adequate resources. Adequate resources, we were told, included the efficient and consistent use of technology applications that would reduce the amount of paper in the system and minimize the need for more court staff time.

The collaborative approach of the Civil Justice Review was very favourably received. Many people quickly realized that this approach was unique and hoped that it indicated an end to the problematic relationship among the public, bench, bar, and court staff. This relationship, it was readily acknowledged, was best characterized by suspicion and a lack of communication. These difficulties were inherent stumbling blocks to the effective operation of the Regional Courts Management Advisory Committees and the Ontario Courts Management Advisory Committee.

It seemed apparent to all -- and was made readily apparent to us -- that the meaningful involvement of the public and more constructive roles for the court staff, bench, and bar were essential to any proposed solutions.

6.2 The Concerns of the Public

In General:

In general, the members of the public were frustrated and sometimes angry with the court system. Their growing disrespect was apparent. They wanted more information in clear, plain language about the process; and they wanted a more simplified process, itself, with less cost and fewer delays. They wanted to see the mystifying complexity of the courts eliminated and they wanted to participate in a meaningful way in the decision-making processes that would accomplish these goals.

The Process:

From the public's perspective the system is too complex and is seemingly designed to increase their cost, to limit their access, and to confound their expectations. Before they begin a court case they have a certain set of expectations which are rarely fulfilled. When the process becomes inevitably confusing, there is little if any information to explain what is happening. Many are frustrated in their attempts to meet with a judge and wonder why they cannot be part of the closed door discussions among the lawyers and the judges during the settlement phases of the lawsuit. They do not want to wait until trial to see a judge.

Many members of the public commented on the scheduling of motions and trials. The cost, inconvenience, and general disorganization of running lists for trials and fifty or more motions set for the same date and time is, in their view, mysteriously inept at best and grossly mismanaged at worst. They feel that they must wait inordinate lengths of time for everything, even decisions from their trial judge. It should be noted that the Bar expressed similar frustrations in this respect.

Those public members who had been involved in appeals to the Court of Appeal or the Divisional Court expressed concern about the lengthy delays in having their matters heard and the mystifying complexities of the process, and about the cost involved.

Some were very complimentary about the service they received from court staff. Others had the distinct impression that the court staff were too busy to help or did not see it as part of their job to do so.

The Small Claims Court information booklets and packages were praised as helpful and clear. In the event of an appeal from a Small Claims Court decision, however, the praise turned to frustration. There is no information package available, and the process is complex and confusing.

There is a great deal of confusion about the enforcement provisions. The public is not aware of how limited the resources available for enforcement are.

The System:

The most common concern expressed by the public was the inability to identify anyone in charge of the system. From both a litigant's and a taxpayer's perspective, this was troubling. Combined with this perceived lack of accountability were issues of uncertainty about the process and about the outcome of their particular cases.

Litigants in the civil court system believed they were at a disadvantage compared to those dealt with in the criminal system. They believed that their cases were given last priority, thus exacerbating the delays and the high costs.

Many suggestions about training in alternate dispute resolution techniques for professionals working in the system were made. The public want their cases resolved rather than just being the subject of elaborate technical manoeuvres. For the most part, they do not care whether their cases are resolved in a courtroom or elsewhere; they simply want them resolved. They view lawyers and judges as too accepting of delays. To this end, litigants indicated a willingness to travel to other court locations if their case could be heard sooner.

Members of the public perceived a lack of respect and compassion on the part of some judges and lawyers, who appeared too willing, in their eyes, to rely upon technicalities at the expense of litigants.

6.3 Concerns of the Judge

In General:

Most predominant amongst the concerns of judges was their frustration at not being able to meet the demands placed upon them so that they can serve the public in a timely and effective way.

The Process:

The judiciary emphasized the tremendous impact which the growing complexity of the law, and the growing complexity of trials, have had on the time needed for careful consideration of the issues placed before them. Constant legislative changes and new interpretations of the law by higher courts, particularly in light of "the Charter age", demand an increasing vigilance in the courtroom.

The backlog of trials in the large urban centres was cited as a constant and demoralizing source of frustration. Several Herculean initiatives, where individual judges have donated their judgment and vacation weeks to hearing trials, have not been able to stem the tide. A concrete, implementable plan is urgently needed for this issue.

Case management was viewed by judges, for the most part, as a helpful tool for controlling the process of individual cases, but was seen as very time consuming.

Currently there are several, often conflicting, goals for pre-trials. These need to be clarified and separated so that settlement issues can be focused upon separately from trial management.

Generally, judges were very supportive of the role of the public in civil jury trials. They indicated that this was one of the few opportunities for the public to participate in the justice system.

The System:

In attempting to rationalize the limited number of judicial resources, lawyers, court staff, and judges pointed out to the Review the tremendous debilitating impact of the loss of Masters to the system.

Prior to the merger of the District and Supreme Courts in Ontario, Masters had fulfilled an important quasi-judicial role in the processing of cases in the civil justice system. In general terms, they heard and decided issues involving intermediate steps in the processing of a case, before the trial. At the time of merger, in 1990, the Ontario Government decided to phase out the position of Master.

Several, broadly consultative committees have examined this issue and uniformly recommended the urgent need for the revival of this position. [6]

The judges indicated that their role should be limited to the areas in which they are really needed, namely in the trial of cases and in assisting the parties, where possible, to settle. The loss of a subordinate judicial officer has greatly hampered the ability of the judiciary to manage their caseload in a way that is fiscally and efficiently effective. Moreover, the decision to phase out Masters without regard for the experience of those working within the system, had a demoralizing affect.

As well, judges commented on their general exclusion from the decision-making processes within the Courts Administration Division. Participation and improved communication would greatly assist in the smoother operation of the courts.

Judges also drew our attention to the current poor morale that they observe among the court staff due to constant changes and constraints in their areas of endeavour.

Judges demonstrated a strong commitment to the concept of a generalist superior trial court of general jurisdiction. They are willing to travel great distances from their homes and families in a meaningful circuiting pattern in order to accomplish this.

Some concern was expressed about the level of security in courthouses. The responsibility for policing security was transferred in 1991 to local police forces. This has produced an uneven level of security throughout the province.

6.4 Concerns of the Courts Administration Staff

In General:

Representations to the Review from staff involved in the administration of the courts, generally, depicted a sense of frustration at the repetitive, paper-intensive nature of their work and the sense that their input and suggestions were either not sought or ignored.

Most agreed that they needed the assistance of technology. They emphasized, however, the need to be provided with adequate time for proper training and a transition period.

The Process:

Court staff spoke in particular about numerous inconsistent and cumbersome procedures. They pointed out that a great deal of time is often consumed by the need to check documents for lawyers when it is the lawyers who are supposed to be responsible for complying with the Rules of Civil Procedure. We were told of a number of occasions where lawyers apparently send their clerks to the court offices for the express purpose of "learning how things should be done".

Many files that are opened with the court are never defended and staff expressed concern about the relative high cost of processing and storing paper that will never be looked at again.

Quite naturally, staff believe that the cost of some of these inefficiencies should be reallocated to resources that would make the system operate in a more timely and effective manner.

They are concerned about the treatment that prospective jurors receive in the system. For very nominal payment, jurors wait for long periods of time in cramped facilities only be told at the last minute that the trial has settled.

The System:

Court staff feel excluded from the communication and general relationship between the bar and the bench. Often their loyalties are pulled from one side to the other, but seldom are they invited to participate in joint discussions and decision-making. They report a different and more open relationship with the Provincial Division judges than with the judges of the General Division Bench.

Several suggestions for the increased role of administrative decision-making in certain kinds of cases were made by the staff. They believe that such changes would make judges more available for the work that only judges can do.

6.5 Concerns of Lawyers

In General:

The first concern of lawyers in most large urban parts of the province was the delay in having their clients' trials heard. They were embarrassed and felt unable to explain to their clients the rationale behind growing backlogs of trials waiting to be heard, running trial lists where their case could be called on for trial on less than a day's notice, blitzes of trials where they had to cancel other client's cases, and lengthy motion lists which inevitably led to more adjournments and wasted time. The costs of these inefficiencies to their clients, and to themselves, were unjustifiable in the lawyers' views.

In general, lawyers supported a system of case management where judges take control of the timing of cases out of the hands of lawyers and clients.

The Process:

Inconsistent practices and practice directions from local courts were uniformly discouraging to the bar. Lawyers who work in more than one courthouse or in neighbouring communities indicated that these problems were time consuming for them and costly for clients.

Most lawyers have brought some forms of technology into their offices and cannot understand why the court system continues to be so paper-oriented, with duplicate and triplicate copies of documents being required, and cumbersome procedures which demand three or four steps instead of one.

The complexities of the current legal environment increase lawyers' anxieties about negligence claims. They point to their professional duty to take all available steps to secure and protect their client's rights, even where that involves delaying a matter when it is to their client's benefit to do so.

There was consistent support for pre-trials which are well done, that is to say, where the parties are prepared, where sufficient time is made in the judge's schedule, and where the purpose of the pre-trial meeting is clear. Lawyers suggested that there needs to be separate meetings for settlement discussion and trial preparation. Early opportunity to meet with judges with their clients was urged by the bar. In addition to the above suggestions about settlement meetings and case management generally, lawyers were concerned that the current number of judges would simply not allow for these important opportunities.

Lawyers were not all supportive of juries for civil cases. They indicated that a jury was often simply used as a tactical strategy depending on the nature of the client and the particulars of the claim.

The current system of circuiting for judges was a concern. Valuable judge time is often lost when lengthier trials cannot be started near the end of a visiting judge's time.

Where parties and their counsel have abused the process, lawyers felt that the cost sanctions available in the Rules were not being adequately utilized. The Bar urged that these abusive practices need to be stopped and suggested that if the current rules do not have sufficient teeth, they should be amended.

The System:

System-wide issues for lawyers included inadequate facilities in courts, lack of security, and lack of technology.

Many lawyers, in their representations to the Review, expressed concern about the limited number of judicial resources and how they could be allocated to cover the demands of case management, pre-trials, trials, and the backlog. As indicated in the section above regarding the judicial concerns, lawyers were dismayed by the decision of the government to phase out the Master position. They believe that this has contributed to the current inefficiencies in the processing of cases and the resulting increasing costs to their clients. In addition to the reports referred to previously, it was pointed out that in many other jurisdictions, both in Canada and the United States, a subordinate class of judicial officer has been necessary to deal with the high volume of civil issues which do not require the attention of a judge.

Finally, lawyers also noted the poor morale among court staff due to the constantly changing procedures and fiscal constraint measures.


Footnotes:

[6]
Joint Committee on Court Reform, June 1991
Report to the Attorney Generals of Ontario and Canada; Joint Committee on Court Reform, Sub-Committee Report to the Civil Justice Review, November, 1994
Ministry of the Attorney General Survey, October 1992
Canadian Bar Association - Ontario, Survey, 1994, report to the Attorney General of Ontario