Rules of Civil Procedure ‘need to be overhauled,’ says Superior Court Chief Justice Morawetz

By Amanda Jerome

Law360 Canada (October 4, 2022, 3:14 PM EDT) -- At the first hybrid Opening of the Courts ceremony, held on Oct. 3 in Toronto, Ontario’s associate chief justice, as well as the chief justices of the Superior Court and Court of Justice, highlighted the pandemic’s lasting impact on the courts, the necessity of change in civil proceedings and the need for more digital enhancements to court proceedings even as people return to in-person hearings.

Chief Justice of the Ontario Superior Court of Justice, Geoffrey Morawetz, emphasized that the “return to in-person hearings, especially for substantive and complex matters, is an integral part of the judicial system and essential to the administration of justice.”

“Meaningful access to justice requires in-person hearings for many self-represented litigants. It is also essential to building the core ingredients of a strong and healthy bar — mentorship and collegiality. Having said that,” he added, “we also know that the availability of virtual hearings has been transformational for the courts.”

From left to right, Chief Justice Geoffrey Morawetz, Associate Chief Justice J. Michal Fairburn and Chief Justice Lise Maisonneuve at the Opening of the Courts.

From left to right, Chief Justice Geoffrey Morawetz, Associate Chief Justice J. Michal Fairburn and Chief Justice Lise Maisonneuve at the Opening of the Courts.

Chief Justice Morawetz noted that “virtual hearings open our court to greater flexibility and accessibility” when they’re “deployed for the right types of proceedings.”

“There is no going back: virtual hearings have become a permanent fixture for court proceedings,” he stressed, highlighting the “guideline” aspect of the Guidelines to Determine the Mode of Proceedings for Virtual versus in-person hearings.

Chief Justice Morawetz understands that there are “lawyers, judges and perhaps members of the public who are not completely satisfied with the Guidelines as they are. However, he noted, as chief justice he has a “responsibility to the administration of justice as a whole” and “part of that duty is to ensure that the courts are operating as efficiently and effectively as possible for the public and for the administration of justice.”

“That is the principle that must guide me in the decisions that I make about how the court will operate. That being said,” he added, “your feedback is important” and stressed that the court is “committed to reviewing the Guidelines and receiving input on them in 2023.”

“Until then, I ask that everyone work with them as they are,” he stressed.

The chief justice also stressed that “civil proceedings are an area that is ripe for major change.”

“The current situation cannot continue,” he stated, noting that if the “timeline between the commencement of a civil matter and the trial is four to five years, the civil justice system is simply not responding to the litigants.”

He emphasized that the court “runs the risk of becoming irrelevant in civil proceedings if action is not taken.”

Chief Justice Morawetz declared that the Rules of Civil Procedure “need to be overhauled.”

“The Rules of Civil Procedure were meant to provide us with a roadmap to resolution; but instead, civil proceedings have become bogged down by process. They have become a maze that is difficult for many to navigate. They have become out of step with the purpose they were meant to serve,” he added, noting that the court has an opportunity to “rewrite the rules that govern civil proceedings” and “create a new and simpler path forward.”

The chief justice envisions a “future civil court that has earned the title ‘modern’ with its use of enhanced case management and technology.” He noted that he would like to see work to improve civil proceedings “undertaken over the next two years.”

Turning to initiatives the Superior Court has introduced over the past year, Chief Justice Morawetz highlighted the Binding Judicial Dispute Resolution pilot for family cases, which is an “innovative method” the court has “implemented in four regions to help address the backlog of family cases.”

Binding Judicial Dispute Resolution, he explained, “only occurs with the advance consent of the parties” and “begins with the judge canvassing potential options for resolution of the issues that are in dispute.”

“If any of the issues are not settled on consent, the judge proceeds to adjudicate the remaining issue(s) at the same hearing. This streamlined process ensures that a final resolution is reached and that no further steps are required,” he added, noting “automatic orders” are another “notable” initiative in family law.

“These new orders, which were incorporated into the Family Law Rules earlier this year at the court’s request and apply to almost all family cases, require parties to adhere to financial disclosure requirements early on in the case, before court attendances,” he said, stressing that automatic orders are a “method of decreasing the length of time and number of steps that it takes for a case to reach a final resolution.”

With regards to criminal proceedings, Chief Justice Morawetz noted that the pandemic “resulted in a number of challenges to jury trials.”

“Our prioritization of scheduling criminal matters has continued as we emerge from the pandemic. We have reached a point now where our operations in this area have stabilized. The pandemic created a backlog, but criminal proceedings are now moving ahead full force,” he emphasized, noting that the move to virtual proceedings “requires critical improvements in technology.”

For “criminal proceedings that involve in-custody accused persons,” the chief justice welcomed the “ongoing work of the Ministry of the Solicitor General to expand the virtual capacity of video suites at correctional institutions.”

“This work is crucial for in-custody accused who are required to attend a virtual appearance. It ensures that they are not limited by the unavailability of video suites in their institutions. Alongside this is the development of a consistent and fair scheduling protocol required for all in-custody accused who must attend for their appearance virtually. The court looks forward to making progress in this regard with the Ministry of the Solicitor General and Ministry of the Attorney General,” he added.

Chief Justice Morawetz also emphasized the need for digital transformation, noting that the “hard fact is that our current electronic systems are not integrated with one another and not integrated with FRANK, our court’s outdated information management system.”

“A change is long overdue,” he stressed, noting that the Superior Court, in partnership with the Court of Justice and the Ministry of the Attorney General, have established a “dedicated project team” to work on modernizing court process, procedures and technology.

This team, he explained, is “working on a multi-year project, to support the Ministry to complete the procurement process for selecting a digital solution that will meet the needs of both the Superior Court of Justice and the Ontario Court of Justice, justice participants and the public and to develop a strategy for seamless adoption of the new solution.”

“An improved end-to-end system will take several years to implement, but it will make the court more modern and accessible,” he added.

Chief Justice Morawetz concluded by noting that the pandemic “shifted the way we administer justice,” but “perhaps more significantly,” it shifted “our way of thinking.”

“These shifts have ushered us into modernization,” he explained, stressing that “we can shape the court to be forward facing, accessible, efficient and modern,” but the “hidden ingredient” is “active and sustained effort by all of us: the bar, the Ministry, court staff, the judiciary and the executive of our court.”

The Chief Justice of the Ontario Court of Justice, Lise Maisonneuve, also emphasized the modernization of the court by stressing that the continued use of technology will “be essential as we modernize our courts.”

She stressed that a “hybrid model of justice that can accommodate virtual, in-person and dual proceedings, with the ability to seamlessly transition from video to in person, across all regions, is essential.”

“That means the technology to support those proceedings is essential, too. I’m talking about everything from electronic scheduling tools, to enhanced video technology, and more access to this option across the institutions of the justice system,” she added, highlighting the expansion of CaseLines to “all 30 of our Ontario Court of Justice locations that hear family cases.”

Chief Justice Maisonneuve also highlighted the “outstanding work” of the three pilot Justice Centres in Toronto downtown East, Northwest Toronto, London and Kenora.

The pilot, she explained, “focuses on Indigenous accused and will explore a parallel approach based on both criminal and Indigenous restorative justice processes.”

“Justice Centres have proven to be a successful way for participants to address the social issues and root causes of crime, benefiting people and our society,” she added, emphasizing her hope that the government will continue to “invest and expand Justice Centres across the province.”

The chief justice also stressed that “access to justice for all must not just be an objective, but a fundamental pillar of our justice system.”

“I believe in our court system, and that’s why I’m calling for a commitment by all justice partners to deliver meaningful services to marginalized people,” she said, encouraging investment in legal aid, using technology and by “keeping our doors open to people who need to come in person.”

The chief justice emphasized the court’s commitment to “advancing equity, diversity and inclusion.”

“In the coming years, I also hope to see an increase in the diversity of judicial appointments,” she added.

Providing an update on the Court of Appeal, Associate Chief Justice J. Michal Fairburn noted that while the court now encourages “parties to attend in-person,” it plans to continue, “for at least the immediate future, providing parties with the flexibility to attend remotely if required.”

She also noted that in August, the Court of Appeal “launched a new digital case management system” which “replaces a 30-year-old legacy database.”

“We have now completed the first phase of the project, which has greatly improved document management, transforming the way our administrative staff do their work. We are working on Phase II, which will support judicial access to the system. Phase III, the final phase, which we plan to launch in 2023 will provide a new public portal for improved electronic filing, fee payment, and document access,” she explained.

According to the associate chief justice, the Court of Appeal will also be launching additional operational initiatives over the coming year, including: a “new public-facing decision database with enhanced search capacity accessible through the court’s website;” improvements to the “courtroom technology that will provide a better experience for those attendees appearing remotely;” and a “newly renovated fully accessible courtroom, providing adaptability features for people, including judges, litigants, and the public, with different needs and abilities, which will set a new benchmark for accessible courtrooms in Ontario.”

The associate chief justice also stressed that there “exists an inextricable link between the public’s confidence in the administration of justice and the upholding of our democratic institutions through the rule of law.”

“Public participation and engagement with the justice system, as well as understanding of the justice system, is an essential element of safeguarding the legitimacy of the rule of law. We must continue to evolve with this in mind,” she added, emphasizing that “confidence is not owed, it is earned.”

Addressing the court, Ontario’s Attorney General, Doug Downey, noted that the government’s Digital Transformation Initiative, “will be the most significant single-step forward in the digital evolution of justice in Canada, replacing outdated paper-based procedures with an online platform to manage cases documents and schedules.”

He also noted that during the pandemic, fly-in proceedings in remote, Indigenous communities were suspended, and many hearings had to pivot to digital platforms.

“Reliable high-speed Internet was previously unavailable to most fly-in communities, making it unfeasible” to participate in virtual court proceedings,” he added, before announcing a government investment in “affordable high-speed, satellite Internet access and videoconferencing equipment to enable virtual court proceedings” in 20 communities.

Jacqueline Horvat, treasurer of the Law Society of Ontario, also announced a new initiative: the Futures Committee.

“The Futures Committee is tasked with creating an innovation roadmap for the legal professions. Over the next several months, individuals in various areas of practice, entrepreneurs, academics and chief technology officers at law firms will share their expertise, experiences and ideas around innovative practices and technology. The findings will be synthesized and presented at Convocation in the spring of 2023 as a series of recommended actions and strategies to be adopted by the law society to promote and encourage innovation across the legal professions,” she explained.

The Opening of the Courts concluded with the awarding of the Catzman Award for Professionalism and Civility to Neha Chugh, the founder of Chugh Law in Cornwall, Ont.

Upon accepting the award, Chugh acknowledged that she has “laid awake so many nights worried” that she is “not enough for my kids,” for “my clients,” and for “other lawyers and for this profession.”

“When I think about civility and professionalism, I wonder how to balance traditional notions of civility and professionalism with our collective need to challenge systemic issues plaguing our justice system and the status quo,” she said, stressing that civility “doesn't mean avoiding conflicts.”

“This new generation of lawyers has been tasked with undoing so many historical wrongs, the weight of which can be unbearable at times. We work in a system where so many individuals are reminded that we don't belong on a daily basis,” she added, stressing that the “great privilege of being able to advocate for clients, to wade into conflict with humour and grace has saved me time and time again.”

“Dear young lawyers,” she said, “you’re enough for this job. You belong. Your advocacy matters to the young lawyers, the Black lawyers, the Indigenous lawyers, the brown lawyers in rural Ontario.”

Chugh stressed that “it is OK to be tired. It is OK to be angry, but don’t dwell in that space.”

“You may not feel like you are resilient, strong or tough. But give yourself grace first because that’s what Justice Catzman would have given you,” she added.

Photo of Opening of the Courts by Amanda Jerome. 

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