Chapter 10 - Closing Comments
How apt -- these oft-repeated sentiments of Dean Roscoe Pound -- for the odyssey of the Civil Justice Review begun in April 1994, and for the cause of civil justice reform generally in Ontario. The march has begun but there is much ground to cover yet!
A joint initiative of the Ontario Court of Justice (General Division) and the Ministry of the Attorney General, the Civil Justice Review embarked upon a broad review of the civil justice system in Ontario in April 1994. Our mandate was to develop a practical and "implementable" strategy to provide a speedier, more streamlined, less costly and more effective civil justice system for the Province -- a more "just" system, in a word. We believe that we have done just that
After a year of intensive consultation with the Public and with the Bench, Bar and Administration, our First Report was released in March 1995. It contained 78 recommendations and a great deal of concerted energy has been expended since its release and acceptance by the Chief Justice and the Attorney General towards the implementation of those recommendations. This process of implementation, and the four-participant involvement of the bench, bar, administration and public in the Civil Justice Review process, have been -- to our minds -- the most dramatic developments arising out of our deliberations.
The core recommendations of our First Report were these:
- the transformation of courts -- using that term in a broad sense -- into "Dispute Resolution Centres", adopting a "multi-door" concept of dispute resolution and providing access to the system through a variety of alternative dispute resolution techniques, or "doors", depending upon the needs of the particular case;
- the elimination of existing backlog problems, particularly in the busy urban centres;
- the establishment of a province-wide case management system
- provide time standards for the speedy resolution of cases in the system;
- reduce delay and prevent the recurrence of backlogs;
- facilitate the integration of ADR techniques into the system;
- create Case Management Teams comprised of Judges, Judicial Support Officers (now to be called Case Management Masters) and Case Management Co-ordinators; and,
- assign to teams the responsibility and accountability for the management of the inventory of civil cases;
- the implementation of a technological infrastructure to modernize and automate the civil justice system;
- the enhancement of public involvement in the system;
- "plain language" communications with the public and the use of automated technology to improve the public's access to information about the system;
- four participant co-operation amongst government, bench, bar and the public in operation of the system;
- the creation of a single issue Task Force comprised of representatives from the public, the judiciary, the bar and government with a mandate to develop a proposal for a unified management, administrative and budgetary structure for the courts.
Our vision of the essentials of the modern civil justice system has not changed. In the Supplemental and Final Report we have endeavoured to reinforce the importance of those core recommendations and, happily, have been able to report on significant progress which is being made towards their implementation. Partly as an aspect of implementation, and partly as a means of providing new shape to new directions, we have also expanded and built upon the First Report's recommendations in key areas such as:
- case management, including a set of province-wide rules and a proposed "roll out" across Ontario by the beginning of the year 2000, with immediate implementation in the pilot project sites, immediate expansion to 25% case management in Toronto and immediate introduction of 100% case management in Ottawa;
- ADR, including recommendations concerning mandatory referral to mediation and a proposed service delivery and funding model;
- venue, with suggestions for spreading the caseload more evenly around the Province and for expediting the movement and hearing of cases in a way that will utilize existing facilities and resources in a more effective fashion;
- enforcement, embracing the need for consolidating reform and suggesting a guiding set of principles for that reform with its mix of privatization; small claims; and,
- landlord and tenant proceedings.
We are conscious of the fact that some areas have eluded our complete or further recommendations. The dictates of time and available resources have played a role in that. We have not been able, for example, to conduct the further examination in the area of the cost of litigation that we had hoped at the end of our First Report to be able to do. While we are satisfied that the Civil Justice Review's proposals, when put in place, will result in a less costly civil justice system, we have noted that a more systematic study of the "cost" of litigation from both an institutional and individual litigant's perspective, is required to identify the factors driving those costs and solutions to bring them within the reach of both taxpayers and disputants.
Family Law is another area which demands continued study and reform and which, indeed, warrants a full scale "Family Justice Review" of its own. The "early resolution focused" approach to family law disputes recommended in our First Report -- much of which is in the process of being set in motion -- will streamline and improve the disposition of these matters. At the same time, however, as we have noted in the Supplemental and Final Report, there are complex and deep-seated problems remaining to be addressed and resolved.
We have also observed that our call for a single issue Task Force to focus on the development of a unified management, administration and budgetary model for the operation of the justice system has not yet been taken up in any organized fashion. As we remarked in the First Report, this issue reaches beyond the civil aspects of the court system and encompasses the criminal structure as well. Finding a solution to this vexing problem for the justice system as a whole is critical to its ultimate effective reform, and we urge again that a Task Force of the sort we recommended earlier be established.
While there are certain differences between Ontario and the United Kingdom in terms of how the justice system is organized, we note the creation in England of a Court Services Agency to manage and operate the courts, as a potential model. Under this model, those charged with the responsibility of running the courts are provided with greater autonomy and freedom in incurring expenditures, recruiting and managing staff and developing systems so as best to meet the needs of all those who use the courts. They are able to do so with their own discrete budget prepared and allocated separately and apart from the maelstrom of demands and counter-demands created by the existence of other intra-departmental priorities when the administration of the courts is simply one part of a larger multi-dimensioned Ministry.
All in all, the remark of Dean Roscoe Pound -- quoted in our First Report and repeated at the outset of this concluding Chapter -- continues to ring true, injecting at the same time a sense of the challenge to be overcome and an air of reality into the exercise that the Civil Justice Review has undertaken. Court management and court reform are indeed not "sport for the shortwinded". With a dedicated, well-planned and intelligent approach, however, the course can be negotiated and the prize attained.
We hope that the process of the Civil Justice Review itself, and our two Reports, have helped to set the civil justice system in Ontario on that course. There is much, as we have said, that remains to be done.
The transmittal letter which accompanied the First Report to the Chief Justice and the Attorney General contained this statement:
It is our belief, that the process of the Review represents the beginning of a collective dialogue among the partners in civil justice. The good will and support demonstrated by the bench, bar, government representatives and the public in working together towards collective solutions were truly encouraging. It is still however a fragile dialogue and will need to be nurtured through [the Chief Justice and the Attorney General] and the leadership of [their] agents.
These observations continue to hold true. It is critical that the momentum created by the will for reform that presently exists among the leaders and members of the Ministry, the Bench and the Bar not be lost, and that new and better ways to ensure more meaningful involvement of the public continue to be sought. Consistency, persistence, continuity and focus on the part of those participating in the process will be essential.
And now, for the second wind .....!