Chapter 3

I believe that the Report of the Civil Justice Review Team is a very important and historical landmark in the evolution of our civil justice system....
The Civil Justice Review Report is a most impressive beginning and represents nothing less than a blueprint for the development of a civil justice system for the next century. [1]
Chief Justice R. Roy McMurtry
[T]his government will not cast aside this Report while the more challenging and long term goals are being developed ....
I am confident that its recommendations outline a model for a faster, fairer, and more efficient civil justice system for the province. [2]
Attorney General Charles Harnick

3.1   Generally

The response to the Civil Justice Review and its First Report has been favourable. While questions have been raised about particular aspects of the vision, on the whole, the recommendations have been well received by the participants in the civil justice system.

The questions we have been asked most often during our second consultation phase have been "when will we see this happen?" and "is there the political will to implement the recommendations and a commitment to provide the necessary funding and resources?". Both the Chief Justice and the Attorney General have publicly stated that they support the Civil Justice Review and are committed to implementing its recommendations. Chief Justice LeSage has said: [3]

The pressures on the civil justice system in Ontario are continuing to mount. There is an urgent need to proceed with rapid implementation of the recommendations of the Civil Justice Review. The status quo is no longer an option.

That support is further reflected in a letter forwarded to the Co-Chairs by the Deputy Attorney General in which he states: [4]

First, we want to tell [the Civil Justice Review] that in a Ministry with far too many absolutely essential responsibilities, implementing the Civil Justice Review is a key priority. It has our Minister's commitment and that of the whole senior management team. This commitment is firm and will not waiver.

We have also heard scepticism on the part of Courts Administration as to whether members of the judiciary and the bar are prepared to make the necessary adjustments in order to make the proposed system work. As we point out later in this Chapter, we believe they have demonstrated their willingness to do so.

Even with the commitment of both the Chief Justice and the Attorney General, however, continuing emphasis on the need for a co-ordinated and collaborative approach to implementation of our recommendations is necessary. This need was highlighted by the Deputy Attorney General at the Cranberry Conference, when he said: [5]

One of the key facts we need to deal with is that it will be easy to move government and make the investment if we can come forth with a powerful and cohesive voice and it will be difficult if we do not. It is a fact of political life that these are issues where we will make progress only if there is cohesion.

We need to put aside those areas where we may have differences and present a united front committed to change. We believe the justice system participants are now doing this.

3.2   From the Public

Overall, the feedback we received from the public is that both the work of the Review and the recommendations made in the First Report address many of their concerns. Further, the public's response has been one of relief at finally being listened to.

The composition of the Review, along with its consultative process, has been based on the belief that the public dimension of the system cannot be forgotten, and must receive attention in the future. This participatory role must continue to be fostered and included as part of any future reform process.

One important way of ensuring that the public is part of this process is to keep them informed. We believe that accessible information about the civil justice system needs to be made available to the public, in order to combat the lack of understanding the public has about the law and its procedures. Without the public's understanding of the system and the problems that exist, it will be difficult to obtain their support for any agenda of change.

3.3   From the Bench

The response from the bench, as represented by the Chief Justice of the Ontario Court of Justice, has been one of consistent support. For instance, in his response to the First Report, the then Chief Justice said: [6]

It is essential that plans for implementation be carried out quickly in order to take advantage of and build momentum generated by the Civil Justice Review. I fully endorse the recommendations contained in the Report and I am pledging the commitment of our court.
His successor, Chief Justice LeSage, has said: [7]
The commitment of our court to the recommendations of the Civil Justice Review remains strong. It is imperative that implementation of the recommendations proceed as expeditiously as possible. Delay will further erode public confidence in the justice system.
The response from the rest of the bench has, in general, been positive.

Questions have been raised about some particular aspects of case management. Some are worried that it imposes "extra-duty" on judges who have difficulty enough coping with the demands on their time. This concern has arisen, in part, because when case management was initially introduced in the Toronto civil project, the judges were expected to carry out their case management functions in addition to their regular judicial duties either before or after their regular court sittings. This proved unworkable.

The members of the Review believe that this concern has been addressed by the proposal for creating case management teams to be responsible for the processing of cases in the caseflow management system. The case management teams will consist of not only judges but also the necessary administrative support in the form of Case Management Co-ordinators, and the necessary case management and adjudicative support in the form of Case Management Masters. When a case is assigned, it will not be assigned to an individual case management judge but to a "case management team". We believe this team concept will relieve the judges of the clerical and administrative aspects of case management and from some of the interlocutory motion work they carry.

Other questions we heard focused on the "team concept" itself and on "inter-regional circuiting" and "individual calendaring". There has been uncertainty as to what these recommendations would mean for a particular Region and locality. We note, however, that the proposed "team concept" is compatible with the already existing organization of judges in regions with mini-circuits.

One area we did not deal with at length in our First Report, and which was raised during our second consultation phase, was the Court of Appeal. The backlogs there are significant and we heard many complaints about the delay and costs involved in appeal proceedings. Some of these concerns are already being addressed. For example, a Backlog Committee has been created chaired by The Honourable Mr. Justice Coulter A. Osborne.

3.4   From the Government

At the conference in Collingwood, the former Attorney General Marion Boyd stated that: [8]

Many in the Legislature have expressed concern about the delays. That access is a concern among all political parties. That you [the Civil Justice Review] will likely find the same commitment no matter what party is in government.

We are pleased to report that this view has been borne out. The new Attorney General Charles Harnick has stated that: "this government will not cast aside this Report while the more challenging and long term goals are being developed." Mr. Harnick went on to add that short-term measures outlined in the Report can and should be implemented now, while longer-range plans for proposed technological improvements are being developed. In particular, he said: [9]

As part of a long term solution, the report includes a series of recommendations related to technology that will require significant investment. The report also identifies short term measures addressing the current backlog crisis as well as a case management model. These measures can and should be implemented while the committee develops a business plan for the capital investment required to phase in the necessary technology.

The recommendations of the First Report have also received support from the federal government. After the release of the First Report, the Civil Justice Review received a letter from the Deputy Minister of Justice offering his government's assistance with any further consultation or study and, in particular, with respect to the proposed single issue task force for a unified administration, management and budgetary structure. The federal government also expressed an interest in jointly exploring both alternative dispute resolution mechanisms and civil justice technology innovations.

3.5   From Courts Administration Staff

When we consulted with members of courts administration, we heard that front-line staff were very pleased to see so many of their suggestions incorporated in the First Report. There was a sense of relief here too, that someone was acknowledging their experience and concerns. We were also told that staff believe that something will be done as a result of the Review and are willing to participate in the process. The Task Force would like to acknowledge the significant contribution front-line staff have made to the review process and to the development of a shared responsibility for the system.

3.6   From the Bar

The Civil Justice Review has received written responses from the Civil Litigation Section, the Construction Law Section and the Family Law Section of the Canadian Bar Association - Ontario, as well as from the Advocates' Society, the Carleton County Law Association, Association Des Juristes D'Expression Française De L'Ontario, and individual lawyers. Generally, these responses have been supportive of the Report's recommendations and vision. As stated in one such response: [10]

We believe that your report has perceptively analyzed many of the problems facing civil litigants in this province and that many of the solutions proposed by your team are sensible, achievable and deserving of our support.

Similarly, another response noted that: [11]

The report reflects a massive effort of consultation and synthesis. The Civil Justice Review Committee has identified the significant problems with Ontario's system of civil justice. In many cases the Civil Justice Review Committee has analyzed and proposed concrete solutions to these problems.

The Bar has also expressed concern with some of the Task Force's proposals. The concern raised most often stemmed from the Review's support of the Simplified Rules Subcommittee proposal to eliminate examinations for discovery in cases below $40,000. However, during our consultations, we repeatedly heard that the public cannot afford to litigate cases under $40,000 and, in our view, this raised important access to justice issues which must be addressed. Notwithstanding the concerns expressed by the Bar, the Simplified Rules Committee proposal has been adopted, albeit for cases under $25,000. In addition, a mechanism has also been adopted to evaluate how effective the simplified rules are in addressing the problem of unaffordable litigation. Finally, we note that other jurisdictions have also recommended restricted procedures including limited discovery for cases under a prescribed monetary value [12] .

The Bar also suggested that we should have made specific recommendations about the uniform administrative, management and budgetary structure for the court system, instead of proposing that a single issue Task Force be established for this purpose. The Bar is of the view that this issue does not require any further study and should be acted upon.

The Civil Justice Review agrees. However, in recommending that a unified structure for courts administration is necessary, we recognized in our First Report that the need for such a structure "applies across the justice system in the Province as a whole -- to a structure for both civil and criminal matters" [13] . As our mandate is limited to civil justice reform, we are not in a position to recommend a specific structure. It is important that all participants in the broader justice system take part in developing this structure, including the Ontario Court of Appeal, the Ontario Court of Justice (Provincial Division) and the criminal justice system.

Aside from these comments, it is apparent that members of the Bar support the overall objective of the recommendations contained in the First Report. There is a willingness among the Bar to commit to taking part in an agenda for change. As stated by Clifford Lax, (then) President of the Advocates' Society: [14]

We applaud the comprehensive nature of your report and the thoroughness of your conclusions. We trust that our comments or reservations are not in any way interpreted as a lack of support for the thrust of your report. Changes are needed and the Advocates' Society will be pleased to play whatever role and provide whatever assistance to ensure that the justice system is made more efficient and less costly while retaining at least the current levels of quality and fairness.

We believe that this is true of the Bar in general.


Footnotes:

[1] The Honourable R. Roy McMurtry, former Chief Justice of the Ontario Court of Justice, General Division, and current Chief Justice of Ontario, Address (Ontario Court of Justice (General Division), Spring Seminar, Toronto, Ontario, May 5, 1995) [unpublished].
[2] Charles Harnick, Attorney General, Address (Dinner in Honour of Lord Woolf, Osgoode Hall, September 6, 1995) [unpublished].
[3] The Honourable Patrick J. LeSage, Chief Justice of the Ontario Court of Justice, General Division, Address (Council of Regional Senior Justices, September 9, 1996) [unpublished].
[4] Letter from Larry Taman, Deputy Attorney General to the Honourable Mr. Justice Robert A. Blair (October 25, 1995).
[5] Larry Taman, Deputy Attorney General, Address (Cranberry Conference, Collingwood, Ontario, May 1, 1995) [unpublished].
[6] The Honourable R. Roy McMurtry, former Chief Justice of the Ontario Court of Justice, General Division, and current Chief Justice of Ontario, Address (Cranberry Conference, Collingwood, Ontario, May 1, 1995) [unpublished].
[7] The Honourable Patrick J. LeSage, Chief Justice of the Ontario Court of Justice, General Division, Address (Council of Regional Senior Justices, May 23, 1996) [unpublished].
[8] Marion Boyd, former Attorney General, Address (Cranberry Conference, Collingwood, Ontario, May 1, 1995) [unpublished].
[9] Charles Harnick, Attorney General, Address (Dinner in Honour of Lord Woolf, Osgoode Hall, September 6, 1995) [unpublished].
[10] Letter from Clifford Lax, Q.C., President of the Advocates' Society to the Honourable Mr. Justice Robert A. Blair (September 18, 1995).
[11] Canadian Bar Association - Ontario, Civil Litigation Section News, Special Edition (April 1995), at p.5.
[12] See, for example, 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).
[13] First Report of the Civil Justice Review (Toronto: Ontario Civil Justice Review, March 1995), at p.121.
[14] Supra, note 10.

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