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| Michael Lesage |
Making up half of court’s lethargic management team (alongside the senior judiciary) the MAG is responsible for staffing and administering Ontario’s courts. Generally speaking, this means providing an expensive building (in this case a $956-million courthouse), an accompanying maintenance and administrative staff, and inside each courtroom, a judge (if provincial), court reporter and clerk. The “output” after hearing is invariably an order, or a written decision by the judge, in the form of a .pdf file, that in some cases needs to be further stamped by the administrative staff (though in many cases, does not).
Given the inability of the MAG to situate staff inside the new downtown courtrooms (specifically clerks and court reporters), matters are not proceeding. Frustrated judges are apparently throwing up their hands and adjourning cases, unwilling to proceed absent the same staffing support they have always had. For good measure, a few judges have voiced complaints that “something must be done (by the MAG of course) to demonstrate a commitment to not just the letter, but the very heart and soul of the Jordan decision.”
However, while court reporters are doubtless “nice to have,” it seems odd, in the era of Zoom and digital recorders, that judges can’t simply turn on Zoom, click the record button, and proceed with their dockets, to the best of their ability. Afterwards, the recording could be emailed to the parties or court’s administration. It may not be as nice or quite as quick as doing things the way they have always been done, but it would show a real commitment to the soul of the Jordan decision to perform some, rather than no adjudication (R. v. Jordan [2016] 1 S.C.R. 631). Cy pres immediately comes to mind. Alternately, perhaps court reporters could take advantage of that same Zoom technology to appear remotely, allowing some, rather than no court business to proceed?
The absence of court clerks in a modern court system is perhaps more troubling. In the absence of clerks, judges can either do nothing (as appears to be the case currently), or move through their dockets, to the best of their ability. This will of course require some judges to learn new skills or to perform tasks once viewed as distasteful, such as emailing the parties directly, but again, surely this is preferably to accomplishing nothing? Likewise, perhaps clerks could also appear via Zoom. Again, while it may not be ideal, it beats making no progress on the day’s dockets.
As Ontario’s court system enters into its fourth year of continuous operations, it would do well to take note of what’s happening in arbitration proceedings, where for a decade or more, single arbitrators have adjudicated entirely online, in many cases without support staff. Despite that, at the end of the hearing, those same arbitrators have been able to deliver decisions (typically a .pdf file), which is something that Ontario’s courts are increasingly incapable of doing.
The general dysfunction of the Ontario courts, and the apparent lack of adaptability of certain judges is cause for concern. While it’s widely acknowledged that the MAG is utterly abysmal, often unable to even accept documents for filing, we must start to worry about some of our judges, who keep doing the same things (essentially complaining that the MAG must, by itself, make conditions in the court system better) while expecting different results. Einstein had a definition for that type of behaviour.
Of course, the MAG cannot be excused for being utterly incompetent at courts administration. Ultimately, if competence requires putting clerks and court reporters into its shiny new downtown courtrooms, it should do so, or contract staffing out to industry. If the MAG can’t even accomplish that, perhaps it should add some actual clowns to its management team? At least the clowns may make the public, who’s footing the bill for this nonsense, laugh.
Michael Lesage is a trial lawyer and the founder of Michael’s Law Firm, a litigation boutique that specializes in complex cases involving professional negligence, business litigation, insurance coverage disputes and cases of serious injury. When not representing clients, he can often be found playing competitive sports. He is also a former bencher at the Law Society of Ontario. You can email him at michael@michaelsfirm.ca.
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