Chapter 1 - How We Got To Where We Are

I cannot over-emphasize the critical importance of this First Report of the Civil Justice Review. The civil justice system in Ontario is in crisis. As well as the increasing cost, the system is labouring under the tremendous weight of a growing backlog of cases, and a serious lack of adequate resources. Litigants must wait an inordinate length of time to resolve their civil disputes. Significant initiatives are absolutely essential if our court is to be able to provide timely and affordable justice to the citizens of this province.
Chief Justice R. Roy McMurtry [1]

1.1   The Civil Justice Review

The Civil Justice Review was established in April 1994 at the joint initiative of the former Chief Justice of the Ontario Court of Justice and the former Attorney General for Ontario, to address the twin problems of expense and delay threatening the civil justice system, and to propose "specific and implementable solutions" to those problems. Its mandate is [2] :

[T]o 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

On March 9, 1995, after a year of intensive consultation, the Civil Justice Review released its First Report [3] . The First Report contains 78 recommendations which collectively constitute our vision of how the modern civil justice system should operate. While we recognize that this vision may seem ambitious, we are confident that the recommendations made in our First Report, and those we make in this our Supplemental and Final Report, are sufficiently "specific and implementable"that the Government and the Court can act immediately upon them. Indeed, steps have already been taken to do so.

In the First Report, the members of the Review identified certain criteria or benchmarks against which we felt our recommendations should be measured. We see these criteria as the legitimizing principles underlying a modern civil justice system. They are:

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

1.2   Recap of "The Modern Civil Justice System in 10 Years: What Will It Look Like?"

The First Report sets out a framework for the modern civil justice system as we envisage it should look like in ten years' time [4] . The concept was to design a civil justice system which takes new ideas about dispute resolution and about effective management and administration of the justice system, and combines these with the important axioms upon which a "just" system is based, while employing modern technology and a sound funding structure to make them effective.

For the Civil Justice Review, this process involved not only the creation and development of new solutions, but also the co-ordination and integration of a number of civil reforms already being experimented with in such areas as case management, alternative dispute resolution and new technology. The distinctive feature of the First Report is its recommendation of a framework for the modern civil justice system that combines and weaves all of these "strands" or concepts into an integrated whole.

Since this framework provides the context for the recommendations contained in our Supplemental and Final Report as well, we set it out here again, for emphasis and clarity:

The Modern Civil Justice System in 10 Years: What Will It Look Like?

  1. It will focus on Dispute Resolution As a Whole,
  2. Centering on a "Multi-door Concept", and
  3. 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.
  4. Small Claims and Landlord and Tenant matters will be dealt with separately and in a more simplified fashion.
  5. 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,
  6. A unified management, administrative and budgetary structure with clear lines of responsibility and accountability; and finally,
  7. The system will be made as simplified and understandable as reasonably possible, and will provide methods to incorporate public participation and accountability in a legitimate way.

Our conclusions have been re-affirmed not only by our own deliberations leading to this Supplemental and Final Report, but also by others who have made similar recommendations after conducting similar enquiries in other urisdictions.

In this respect, we note particularly the highly regarded recommendations of The Woolf Inquiry in the United Kingdom [5] , and the sweeping pan-Canadian study recently released by the Canadian Bar Association under the leadership of Ms. Eleanore Cronk. [6]

1.3   Overview and Purpose of the Supplemental and Final Report

The recommendations contained in the Supplemental and Final Report are intended to supplement, not supplant, the recommendations made in our First Report. Indeed, the recommendations made in the First Report form the foundation and basis for the Supplemental and Final Report.

We noted in the First Report that many of its recommendations could be implemented immediately. The transmittal letter to the Chief Justice and the Attorney General stated:

Although this document is only our first report, we feel strongly that the implementation process recommended should begin now. In our view, it will not be necessary to await the results of our Final Report before initiating action. The task ahead of us is enormous. We need to get on with the plan for implementation while the window of change remains open

We are pleased to note that a number of our recommendations are in the process of being implemented. A full report on implementation is set out in Part II of this Report.

At the same time, it was recognized throughout the First Report that there were various aspects of the civil justice framework which needed to be dealt with further, including [7] :

  1. issues surrounding the cost of justice, both from an institutional or systemic perspective, as well as from the perspective of individual litigants;
  2. legal aid;
  3. the form of service model and funding options with respect to court-connected ADR;
  4. the criteria for determining the allocation of judicial resources;
  5. implementation of the family law recommendations;
  6. methods of streamlining the examination for discovery process and making it more cost-effective;
  7. venue (place of trial);
  8. enforcement procedures;
  9. small claims;
  10. landlord and tenant matters;
  11. effective ways of dealing with construction liens; and,
  12. issues relating to records management in the civil justice system.

Most of these issues will be dealt with in Part III of this Report. With the exception of some further comments respecting contingency fees, however, we do not intend to elaborate further on the general question of the cost of civil justice or on the issue of legal aid. Nor do we intend to address the criteria for determining the allocation of judicial resources. The consultation process following the release of the First Report and further research have led us to realize that these issues are beyond the scope of our mandate to recommend "specific and implementable solutions" and, moreover, cannot be adequately dealt with within the timeframe of this review.

In spite of this, however, we believe it is important that these issues be actively pursued. With respect to legal aid, this has already occurred to some extent since our First Report; this issue has been and continues to be a centre of controversy in the profession and in the public domain, and the Civil Justice Review feels that it cannot productively add to the debate at this time. In relation to the question of establishing criteria for determining the allocation of judicial resources to the provinces, the federal government has undertaken and is currently in the process of conducting such a study. We see no point in duplicating this work. Finally, with respect to the elusive subject of the "cost of civil justice", we will recommend in Chapter 8 that this matter be pursued by the Ministry of the Attorney General, in conjunction with the Bar, the Public and the Bench, through some vehicle other than the Civil Justice Review.

Under the Terms of Reference for the Civil Justice Review, the Fundamental Issues Group was charged with conducting research and formulating proposals with respect to issues of longer-range implications for the civil justice system. Some of these issues include:

  1. the role and function of civil juries;
  2. the question of how the superior trial court can most appropriately and effectively carry out its mandate in dealing with civil cases, in terms of the way in which various types of cases are processed within and outside of the courts;
  3. the role of Small Claims Courts in providing effective access to the system, and the jurisdiction and structure of such courts; and,
  4. certain aspects of alternative dispute resolution (ADR).

In addressing these and other issues, the Fundamental Issues Group held a consultation symposium in November 1994 and participated in a number of community meetings. In addition, the following research papers were commissioned:

Sandra Wain, Public Perceptions of the Civil Justice System

John Twohig, Empirical Analyses of Civil Cases Commenced and Cases Tried in Toronto 1973-1994

Larry Fox, Administrative Agencies Empirical Study

R. Howse and M. Trebilcock, The Role of the Civil Justice System and the Choice of Governing Instrument

Lorraine Weinrib, The Role of the Courts in the Resolution of Civil Disputes

Martha Jackman, The Reallocation of Disputes from Courts to Administrative Agencies

Kent Roach, Fundamental Reforms to Civil Litigation

Allan Stitt, Francis Handy and Peter A. Simms, Alternative Dispute Resolution and the Ontario Civil Justice System

Iain Ramsay, Small Claims Court: A Review

Margot Priest, Fundamental Reforms to the Ontario Administrative Justice System

Ian Morrison and Janet Mosher, Barriers to Access to Civil Justice for Disadvantaged Groups

The information contained in the research papers, and the input derived from the Fundamental Issues Group under the able guidance of John McCamus, have been very helpful in informing our deliberations. We wish to acknowledge, with appreciation, the contributions these authors and the Fundamental Issues Group have made to the Civil Justice Review. The research papers will be published separately, in conjunction with the Ontario Law Reform Commission, in the form of Research Studies presented to the Fundamental Issues Group.

1.4   Changes Affecting the Civil Justice Review since the First Report

Since the release of our First Report, the province of Ontario has undergone a change in government, a new Chief Justice of the Ontario Court of Justice has been appointed, and the former Chief Justice of that Court has become the Chief Justice of Ontario. In concluding this Chapter on "How We Got to Where We Are", it must be said that this stage could not have been attained were it not for the positive response and support received from Chief Justices McMurtry and LeSage and former Attorney General Marion Boyd and current Attorney General Charles Harnick, as well as from members of the Bar, the Administration and the Judiciary generally. Without this dedicated support -- which, with the ongoing input of our public representatives, continues to reflect the four-participant approach to resolving justice problems that has characterized the Civil Justice Review process -- the momentum for civil justice reform in this province might well have been blunted. So, too, would the considerable progress which has been made towards implementation of our initial recommendations, about which we will speak in Part II, have been impossible.

Certain changes in the Civil Justice Review itself need to be noted as well. Perhaps the most significant change resulted from the need to find a new co-chair following the promotion of Sandra Lang from her position as Assistant Deputy Attorney General, Courts Administration Division, to Deputy Minister, Ministry of Community and Social Services. She was replaced temporarily by Marc Rosenberg, then the Assistant Deputy Attorney General, Public Law and Policy Division, until his appointment to the Court of Appeal for the Province of Ontario. On February 8, 1996, Heather Cooper, the new Assistant Deputy Attorney General, Courts Administration Division, was named as Co-chair of the Review. She has and continues to make a significant contribution to this process. Staff at the Review has also changed. Ann Merritt, formerly the Executive Coordinator of Strategic Planning, Ministry of the Attorney General, has been appointed as Project Director, and Lillian Nazareth is now serving as the Project Administrator.


Footnotes:

[1] The Honourable R. Roy McMurtry, former Chief Justice of the Ontario Court of Justice, General Division, and current Chief Justice of Ontario, Remarks on the First Report of the Civil Justice Review (March 9, 1995) [unpublished].
[2] First Report of the Civil Justice Review (Toronto: Ontario Civil Justice Review, March 1995), at p.3 [hereinafter "First Report"].
[3] Id., at p.113.
[4] Id., at p.19.
[5] The Right Honourable the Lord Woolf, Access to Justice: Final Report to the Lord Chancellor on the civil justice system in England and Wales (July, 1996).
[6] Systems of Civil Justice Task Force Report (The Canadian Bar Association, August 1996).
[7] First Report, supra, note 2, at pp. 405 - 406.

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