In 1996, the Ontario Civil Justice Review released its final report, which set out an overall strategy to make Ontario's civil justice system speedier, more streamlined and more efficient. 1 At about the same time, the Canadian Bar Association's (CBA) Systems of Civil Justice Task Force Report recommended the development of strategies and mechanisms to assist in the continued modernization of the civil justice system on a national basis. 2 The Civil Justice Review and the CBA reports triggered significant reforms in Ontario to enhance access to justice. Changes included the introduction of simplified procedures, case management, mandatory mediation and the increase in the monetary jurisdiction of the Small Claims Court to $10,000 from $6,000.
More than 10 years have passed since the Civil Justice Review and the CBA released their reports. Many of their recommendations have been implemented in Ontario, and throughout Canada generally, with positive results. Yet cost and delay (two related issues) continue to be cited nationally and provincially as formidable barriers that prevent average Canadians from accessing the civil justice system.
In 2001, the Government of Ontario and the Superior Court of Justice jointly appointed the Task Force on the Discovery Process in Ontario to identify problems with discovery and to make reform recommendations. In its 2003 report, the task force found that cost and delay associated with discovery are barriers to access to justice. 3 Accordingly, it recommended cost- and time-saving rule changes and the development of best practices or guidelines as norms for the conduct of discoveries. The task force acknowledged that not all discovery problems could be resolved by the imposition of more and new rules. For this reason, the task force's best practices guidelines were intended to address many problems that could be attributed to the adversarial “culture of litigation.”
In March 2006, the Advocates' Society held a Policy Forum entitled Streamlining the Ontario Civil Justice System to search for creative ways to promote efficient, less expensive dispute resolution in our courts so that access to justice would be enhanced. 4
In May and December 2006, the Canadian Forum on Civil Justice hosted a two-part national conference, Into the Future: the Agenda for Civil Justice Reform. The conference examined a variety of issues, including the status of civil justice reforms in Canada, impediments to effective reform and the development of a national direction for civil justice systems in the future. 5
Other jurisdictions in Canada have recently undertaken formal reviews of their civil justice systems. In November 2006, the Civil Justice Reform Working Group of British Columbia's Justice Review Task Force released its report, Effective and Affordable Civil Justice. 6 The working group was formed to explore fundamental change to British Columbia's civil justice system, starting from the time a legal problem develops through the entire B.C. Supreme Court litigation process. The working group made three key recommendations to respond to a system that is said by many to be “[t]oo expensive, too complex, and too slow.” 7
And lawyers, judges and, most importantly, members of the public for whom the system exists have all voiced strong views in papers, conferences and the media about the cost of the civil justice system, trial delays and the apparent rise in the number of self-represented litigants in recent years. 8
Civil Justice Reform Project Mandate and Overview
In June 2006, the Attorney General of Ontario, the Honourable Michael Bryant, asked that I lead the Civil Justice Reform Project (the “Review”) and prepare a report addressing the issues raised in the Terms of Reference. My mandate is to review potential areas of reform and deliver recommendations which, if implemented, would make the civil justice system more accessible and affordable for Ontarians. The recommendations should be suitable for implementation within a reasonable time and provide meaningful results in enhancing access to justice. More specifically, I was asked to (a) identify key areas for reform; (b) develop reform options; and (c) make specific recommendations as to which of the proposed options would best achieve the Review's core objectives.
My Terms of Reference, which are reproduced at Appendix A, did not include family law or criminal matters. Nonetheless, I have tried to take reasonable account of the extent to which family and criminal matters consume resources, including judicial resources.
Consistent with the Terms of Reference, I have throughout taken into account the following issues and principles, all of which are subsets of the broad access to justice theme:
- Access: This is the overarching issue. Both represented and unrepresented litigants must have real access to the civil justice system.
- Proportionality: The review that I have undertaken and my recommendations are designed to be responsive to the principle that the time and expense of any proceeding should be proportionate to the amount in dispute and the importance of the issues at stake.
- Culture of litigation: Recommendations should recognize that rule and other regulatory reform alone might not adequately respond to problems in the system. Ways to foster cultural change among the bench and bar should be considered. I view cultural change to involve more than civility. It includes the way business is done in the civil justice system, including the role of judges, lawyers and unrepresented litigants.
In framing and calibrating my recommendations, I have also tried to recognize that civil justice related problems differ throughout Ontario. For example, consultations revealed that problems with discovery and production are mainly Toronto problems. In addition, support for a substantial increase in the monetary jurisdiction of the Small Claims Court and the simplified procedure was significantly greater in Toronto than elsewhere. In the end, I concluded that modifying some central recommendations to take account of regional differences was preferable to having different rules in different parts of the province. I concluded that regional procedural refinements can be achieved through appropriate practice directions, that is, practice directions not inconsistent with the rules.
In the early stages of this Review, a consultation paper (reproduced at Appendix B) was prepared and distributed widely to judges, major bar groups and other users of the civil justice system. The consultation paper canvassed preliminary areas where reform was needed and options for change had been identified. It was not intended to, and did not, exhaustively list all matters that could be the subject of this Review.
A website was also created to increase awareness about the Review and to seek written submissions broadly from members of the public. General information about the Review and the consultation paper appeared on the website (http://www.civiljusticereform.jus.gov.on.ca/english/default.php), which was accessible from the Ministry of the Attorney General's website and websites of various other organizations (e.g., Canadian Forum on Civil Justice, The Advocates' Society, County of Carleton Law Association).
Notices also appeared in the Ontario Reports and The Lawyers Weekly, inviting written submissions from the legal community. Over 60 written submissions were received from bar associations or other organizations, lawyers, members of the judiciary and members of the public.
In addition to written submissions, consultation meetings were held with bar associations in each region of the province, members of the judiciary, officials at the Ministry of the Attorney General, key litigant organizations, a number of law firms and other users of the civil justice system. A list of those consulted is attached at Appendix C. Relevant issues were not limited to those contained in the consultation paper. All submissions that I received were reviewed and, to the extent I thought warranted, taken into account.
As part of the consultation process, I met with the Chief Justice of Ontario – with both Chief Justice Roy McMurtry, as he then was, and Chief Justice Warren Winkler. I also met earlier with Chief Justice Winkler in his capacity as Toronto's Regional Senior Judge and with the Associate Chief Justice of Ontario, the Chief Justice of the Superior Court of Justice, the Associate Chief Justice of the Superior Court of Justice, Ontario's Regional Senior Judges, Superior Court judges in each region of the province and masters in Toronto and Ottawa.
I established three bar-bench advisory committees to provide advice in identifying and assessing reform options. These committees included a Toronto Advisory Committee and an Out-of-Toronto Advisory Committee, recognizing the reality that different solutions may be needed for different regions of the province.
Early in the consultation process, it became clear that several reforms were focused around the greater use of technology between parties and within the court. Accordingly, I established a Technology Committee to consider emerging issues including electronic discovery, electronic trials, electronic filing of documents and, most importantly, electronic document production – that is, how the parties and their counsel will share information in circumstances where the use of hard copy is impractical on cost and efficiency grounds.
Members of each of the Advisory Committees are set out below:
Tom Conway (Ottawa)
Peter Cronyn (Ottawa)
Carl Fleck (Sarnia)
Kristopher Knutsen (Thunder Bay)
Peter Kryworuk (London)
Marvin Kurz (Brampton)
William Leslie (Barrie)
Michael O'Hara (Sudbury)
William Sasso (Windsor)
John Walker (Sault Ste. Marie)
Justice Colin Campbell
Honourable James Farley
Justice Thomas Granger
Justice Russell Juriansz
I am grateful to all members of the three Advisory Committees for their invaluable contributions, not only in identifying needed changes but also in crafting the content and scope of those changes. Although the Technology Committee frequently spoke in what, to me, was something of a foreign language, I hope I got the message on the need to provide a structure for the cost-efficient sharing of relevant information among counsel and, in those cases which do not settle, in the courtroom.
I was also assisted by staff at the Ministry of the Attorney General, Court Services Division. They provided legal research and administrative support to the Advisory Committees and me. Without their able assistance I would still be at the starting gate. Ministry staff involved were:
- Mohan Sharma, Counsel, Court Services Division
- Caroline Mandell, Counsel, Court Services Division
- Todd Sherman, Counsel, Court Services Division
- Yasmin Shaker, Counsel, Court Services Division
- Brandon Parlette, Counsel, Court Services Division
- Laura Craig, Counsel, Court Services Division
- John Lee, Counsel, Policy Division
- Trish Coyle, Articling Student, Court Services Division
- Vaia Vagenas, Articling Student, Court Services Division
I particularly want to recognize the invaluable contributions of Mohan Sharma, the project's director, who worked efficiently and tirelessly in organizing our extensive consultation process and in collating the many submissions I received, both directly and through the consultations.
I should also express my appreciation to the many judges and lawyers who took the time to provide me with their views on what ails the civil justice system and on how it can be made better without blowing it up and starting all over again. Some made formal submissions; others simply told me what their views were. Both the bench and the bar, I think, are receptive to recommendations which, if implemented, will make the civil justice system work better. Many of their concerns and suggested solutions are shared by unrepresented litigants with whom we met or who made submissions to the Review.
I have tried to recognize that for every plaintiff, there is also a defendant. That is to say, access to justice has to be viewed not only from the standpoint of the party seeking relief, but also from the standpoint of the party from whom the relief is sought.
I think it is reasonable to say that meaningful improvement in access to justice can be achieved only if the justice system can provide mechanisms for the more timely resolution of litigated disputes at a reasonable cost to both the plaintiff and the defendant. That can be achieved only if we develop processes by which resources committed to a particular litigated issue are proportional to what is at stake, however that may be measured.
In addition to trying to recognize the principle of proportionality, I have attempted to develop recommendations that, as I have frequently put it at consultation meetings, will run the serious risk of working if they are implemented. I have also been mindful of the need that my recommendations should be implementable within a reasonable time frame.
On most issues there were competing views. No one suggested that doing nothing was a viable option.