Benchers file motion proposing LSO track and share Superior Court statistics, scheduling procedures

By Amanda Jerome

Law360 Canada (August 26, 2022, 1:28 PM EDT) -- Two Law Society of Ontario (LSO) benchers have filed a motion proposing the regulator “track and prominently post on its website” the “percentage of criminal, family and civil documents rejected (along with the total number of such rejections),” at the Superior Court of Justice, along with the “average amount of time from filing to trial” and the “current scheduling procedures at each courthouse to schedule criminal, family and civil motions.”

“The Superior Court of Ontario, (run by its justice sector partners, the Judiciary and the Ministry of the Attorney General) struggling in the aftermath of the Covid-19 pandemic, is experiencing problems with filing documents, scheduling motions and/or with resolving matters in a timely manner; and the Law Society has both the resources and the ability to assist its justice sector partners, and to do so is squarely within its statutory mandate,” the motion, moved by Michael Lesage, a business and commercial litigator, and seconded by Cecil Lyon, a family lawyer, stated.

Lesage told The Lawyer’s Daily that “as a practising lawyer in Ontario,” he wants to “see our system functioning better.”

Michael Lesage, business and commercial litigator

“And certainly, our system has experienced a lot of challenges in the last few years,” he added.

The motion, Lesage noted, links to statistics compiled on his website which show how the courts are “functioning when documents get submitted, which essentially underlies one of the primary steps in our system.”

“The Brampton courthouse is rejecting 45 per cent of all civil submissions and the Toronto courthouse isn’t too far behind that. Likewise, trials aren’t happening in a reasonable time,” he added, noting that if he tries to schedule a motion “some of our courts have put in silly procedures that literally take hours to comply with, just the scheduling, after the motion materials have been prepared.”

“That was the impetus,” he stressed.

Lesage also noted that “with the transition to a much more electronic court system, the ministry staff and their management resources have been tied up or occupied.”

“So, I think there’s a real opportunity here for the law society to step in and help matters by compiling and posting some of these basic statistics, along with their justice sector partners, essentially to help the system run a little bit smoother and to do their part to promote access to justice in this province,” he explained.

Lesage didn’t run the motion past the Superior Court directly before filing it with the regulator. “There’s not necessarily as good of a feedback mechanism in Ontario between lawyers, the public and the Superior Court, as might be the case in other places,” he explained.

“But,” he added, “I’m certainly hoping that the Superior Court will wholeheartedly endorse this motion and that it will get the wholehearted support of the law society administration given the mandate they’re under.”

The motion was filed in advance of the LSO’s next Convocation, which will take place on Sept.ember 29.

Lesage explained that having statistics posted will “help illustrate how Ontario is doing vis-à-vis our competitors in places like Michigan, or New York State, and Alberta.

“And it’s my hope, and my expectation, that Ontario could have some of the best functioning courts in North America, if not the world. I think that having some basic statistics available to the public and to the profession is one of the key ways to get us there,” he said.

When asked why the motion only focuses on the Superior Court, Lesage noted that it’s “where the majority of matters happen.”

“Some tribunals are largely going to be problem-free or operating very well or very efficiently, others are going to be at the far end of the spectrum. They’re subject to their own rules, their own administration, so this would not address 100 per cent of the problem, but it’s hoped that it would address a significant portion of the problem,” he added.

Lesage shared the motion on Twitter on Aug. 24 and immediately started getting feedback from the profession. He noted that the feedback has been “very positive so far.”

“I think a lot of people are really expecting there to be some action on this front. There are concurrent efforts underway by the Federation of Ontario Law Associations, which has written to the Ministry of the Attorney General regarding the problem with high rejection rates for documents and the impact that has, which basically works out to additional costs for clients as well as delays to their cases. There are also similar efforts being undertaken by the Ontario Bar Association. I think that moving in this direction is well supported in the profession. And given the important role of the regulator, I really do think it’s important that the regulator take a lead role on this. Candidly, I think it’s something the profession expects to see,” he said, noting that the plan is also “squarely in line with the law society’s Action Group on Access to Justice's plan 'to develop meaningful, public-centred solutions that advance systemic change in the justice system.’ ”

Lesage stressed that if profession and the public “would like to see improvements in the court system, it’s important for them to let both their elected representatives, along with the law society, know, [and] what their expectations are.”

“Obviously, sitting as a bencher did not convey any gifts of telepathy, so unless people tell us their expectations, we’re just not going to be able to meet them,” he explained.

The Ministry of the Attorney General did not provide comment before press time.

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