Barreau leaves the Superior Court in its dust | Michael Lesage

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Michael Lesage

Nearly a decade ago, Justice David Brown warned of the dangers of operating the “courts of Ontario like a sort of fossilized Jurassic park” (Bank of Montreal v. Faibish [2014] OJ No. 1639). His warning went unheeded and the Superior Court stumbled. Performance has been about as expected, with long delays in family and civil cases and hundreds of criminal cases dropped each year for delay. Then COVID-19 hit, and the whole house of cards came crashing down. It must have been an awkward time to be a senior judge of the Superior Court of Ontario.

In the years that followed, the Superior Court certainly made progress. When the Internet was discovered, around March 2020, most procedures moved online and e-filing was implemented late. However, with few ongoing trials, the backlog continues to grow (and there still does not appear to be a plan to address it; i.e. why can’t more matters be delegated to associate judges or other arbitrators, rather than relying on natural morbidity?). Meanwhile, Toronto Small Claims Court, for unknown reasons, has failed to implement Zoom hearings and resume normal operations.

As COVID approached, the Law Society Tribunal was also behind. Like the Superior Court, filings were not by default electronic and the court remained paper-based and in-person, (usually) downtown. As in the Superior Court, the service of documents remained a matter of two, in addition to requiring the assistance of Canada Post, courier or bailiff. Not much was happening remotely, and as a result, with the outbreak of COVID, court operations also effectively ceased.

However, the Law Society Tribunal was much better equipped to handle the disruption and bounced back much quicker. This was probably the case for a number of reasons. Initially, the Law Society Tribunal takes its operations seriously. He knows he is responsible for adjudicating cases of alleged misconduct and has systems and processes in place to ensure this is done. Like most businesses (and functioning court systems south of the border), it tracks various (meaningful) performance metrics, such as the time from filing to case closure, and publishes them in a Annual Report. For unknown reasons, this is still not done by the Superior Court.

In addition, and contrary to the Superior Court, to the Tribunal du Barreau, there is accountability. The Tribunal is overseen by elected Benchers, and if the Tribunal (or the Law Society itself) strays too far off the rails, the Benchers are fired. Also, because the councilors finance the operations of the court themselves, as well as the licensees to whom they report, there is an intrinsic incentive to find practical and economical ways to operate. Such accountability is sorely lacking in the Superior Court, where judges are answerable, if at all, to appellate courts, while the Ministry of the Attorney General remains entirely irresponsible.

The ability of the Bar Tribunal to adapt is evident in its rules, which have been considerably revised. For example, one of the stated objectives of the Tribunal Rules is to “ensure efficient processes and procedures”, while another states that “the Tribunal operates electronically to the extent possible”. Service of documents, on the other hand, can be accomplished by one person and is as simple as copying the other party on the email when submitting the document to the court. Also, unlike the Superior Court, the court can take cognizance of generally recognized scientific or technical facts, which means in practice that it can consult Google. It remains to be seen when the Superior Court will “discover Google,” but until that happens, times should remain rich for Ontario’s many “gun experts,” even if the gates of justice remain closed to many residents.

While recognized by judges at the highest level that our legal system is broken, this information apparently did not reach the Chief Justice of Canada, Richard Wagner, who continues to state publicly that our “the judicial system is excellent.” Of course, this is at odds with objective reality, as evidenced by the large number of unrepresented litigants, the fact that our courts can’t judge cases in a timely mannerremain partially closed, or as measured by impartial outside bodies such as the world Bank. The maintenance of such a legal fiction, in the face of the facts, constitutes an obstacle to much-needed judicial reform. Could the Chief Justice be misinformed because senior Ontario judges have failed to set or monitor courthouse performance standards?

Although a Superior Court judge recently stated, albeit in another context, that “the Law Society cannot be relied upon to do anything particularly useful”, this ignores the significant improvements made to the operations of the Law Society Tribunal, which demonstrate that high quality, timely service and efficient adjudication can in fact occur in the province of Ontario (this may also be the case in other courts and the Federal Courts, but this is certainly not the case of the Superior Court). As the old saying goes “where there is a will, there is a way”.

Of course, the Superior Court faces a unique challenge that the Barreau does not have to meet, in that the functioning of the courts is the shared responsibility of judicial operations, under the aegis of the Ministry of the Attorney General. However, in most cases, especially in the civil and family sphere, court personnel are required for little more than planning, and the judiciary should rely on them about as much. Thus, if improvement is to occur, it will be because the senior judiciary takes the lead and does so in spite of, rather than with the help of, the Ministry of the Attorney General. Until then, in addition to lagging considerably behind the performance of all other court systems in Canada or the United States, the Ontario Superior Court is left behind by the Law Society of Ontario. Indeed, it must be an awkward time to be a senior judge of the Superior Court of Ontario.

Michael Lesage is a litigator and founder of Michael law firm, a litigation boutique specializing in complex cases involving malpractice, commercial litigation, insurance coverage disputes and serious personal injury cases. When not representing clients, he can often be found playing competitive sports. He also sits as a bencher of the Law Society of Ontario. You can email him at [email protected].

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