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Ottawa May 02 2008 Ontario lawyers will soon see major changes to both the civil and criminal justice systems, according to the province’s attorney general. Chris Bentley told The Lawyers Weekly that he plans to soon implement recommendations made by former Ontario Associate Chief Justice Coulter Osborne in his 176-page preliminary report on the province’s civil justice system, released last November. Bentley said during his province-wide consultations with the profession in 11 communities, which have included visits to six of Toronto’s major law firms and stops in such smaller communities as Elliot Lake, reaction to the 81 recommendations in the Osborne report has been “favourable.” He explained that the Ministry of the Attorney General and the Civil Rules Committee have been collaborating with the goal of establishing a “package” of initiatives in response to the recommendations – most of which would not require legislation. One that would is Osborne’s suggestion – which Bentley endorses – to immediately increase the Small Claims Court’s monetary jurisdiction from $10,000 to $15,000, with a further increase to $25,000 within two years, as is the case in British Columbia, Alberta, Yukon and Nova Scotia. Osborne proposed an amendment to Rule 31, which would limit discovery for each party in an action to a maximum of one day, or seven hours – unless otherwise agreed to by all parties or as subject to a court order. The “semblance of relevance” test “relating to any matter in issue in the action” would also be replaced with a “simple relevance” test “relevant to any matter in issue in the action” in all discovery-related rules, according to the Osborne report. Bentley said he’s also “very interested” in Osborne’s recommendations related to simplified procedure in which the monetary jurisdiction of Rule 76 would be increased to $100,000, or double the current limit, and each party would be allowed up to two hours of discovery “after giving due consideration to the cost... in relation to the amounts or issues at stake.” Though the Attorney General wouldn’t say exactly when the government would act on the recommendations, he said it would be “sooner rather than later” and that any rule changes would be made together and applied throughout the province. “If you’re a practitioner, you need certainty and not face a situation where you don’t know whether to open your mail because the rules change so often,” said Bentley, who spent nearly 25 years in practice as a criminal lawyer and acknowledged that he deferred to the opinion of civil-law specialists for guidance. His expertise, however, has also made him eager pursue reforms of the criminal justice system. Statistics show that the challenge he faces to develop rules and procedures to ensure a “faster, more effective, more affordable and more accessible” civil justice system is no less significant in the criminal justice domain. For instance in 1992, an individual charge spent an average of 115 days in the system. By last year, the average time to disposition had almost doubled, to 205 days. In 1992, an accused would have to make a courtroom appearance – including bail hearings, first appearances, setting court dates, pre-trial and preliminary hearings and the actual trial – an average of 4.3 times before the court disposed of the charge. By 2007, the number had more than doubled to 9.2 times. And of those, six of the appearances involved adjournments where the case was “simply moved from one day to the next,” added Bentley. To highlight the extent of the delays, he explained that with 600,000 charges in the system at any given time, one extra minute on every charge represents an additional 10,000 hours or 416.7 days that needs to be found to keep the wheels of justice turning. Bentley suggests that improvements can be made to better process cases through the criminal justice system by “refocusing” the resources already in place. But the president of the Ontario Bar Association argue that both the civil and criminal systems are in desperate need of one major resource: money. Following the release of this year’s provincial budget in late March, Greg Goulin issued a terse, one-paragraph statement, which noted no new funding “specifically targeted to alleviating access to justice issues.” Without such a financial boost “to help the overburdened legal system manage its demands, public confidence will decline,” stated Goulin, a criminal lawyer in Windsor, Ont. In an interview, the OBA president expressed concerns that by next spring, legal aid could run out of money and the demand for more judges will be even greater. He explained that on a larger scale, Ontario’s troubled economy and significant job loss in the province will lead to greater pressures on the legal system. For example, the inability to handle debt could lead to marital breakdowns and possibly domestic violence, creating a myriad of family and criminal law issues. The inability of leaseholders to meet their rental obligations could put new demands on commercial litigation and employment law. “In times of economic hardship, an under-funded justice system will not generate respect for the rule of law because the public cannot efficiently access it,” said Goulin. But Bentley insists that reforming the civil and criminal justice systems is not “just about money,” and said the provincial government has already invested more resources by building more courthouses, hiring more court staff, Crown lawyers and police, and appointing additional judges and justice of the peace. “It’s about how the system is using the resources most effectively,” said the Attorney General. And he explained that the OBA, The Advocates’ Society and the Law Society of Upper Canada are collaborating with the ministry on ways to better explain the civil litigation process for the general public. James Morton, past-president of the OBA, said that while lawyers would welcome more funding, the government and Bentley should be given credit in trying to simplify and streamline the justice system, while making it more accessible. However, he feels that specific areas could be further improved upon, as has been done in compensating deputy judges who were in effect fulfilling their duties on a pro bono basis. “I’ve seen cases where examinations for discovery have gone on for 300 days. That’s not a system that can function,” he said. Morton explained that similar problems are encountered in B.C., where the civil justice system is being overhauled and the Rules of Civil Procedure are being changed to formalize the principle of proportionality - a theme underlying Osborne’s report. “My fear is that if nothing’s done, our civil system will simply become unusable for businesses and our criminal system will go back to [1990, R. v.] Askov, where cases are dismissed wholesale because of delays,” said Morton. But when implemented, some of the Osborne report’s recommendations – such as amending Rule 20 to give motion judges the authority to summarily dispose of cases based on the credibility of evidence – will bring much-needed improvements to the system, said Toronto commercial lawyer Glenn Smith, who served on the technology advisory committee of the Osborne-led Civil Justice Reform Project. He explained that lawyers have been hamstrung in not being able to argue against cases going to trial on the basis the claims have “no merit.” A member of the Sedona Canada committee that drafted e-discovery practice guidelines, Smith was also encouraged by Osborne’s support for what Smith considers to be one of the “best points” of the Sedona principles, namely that lawyers “meet and confer regarding the identification, preservation, collection, review and production of electronically stored information,” according to the Civil Justice Reform Project’s recommendations. |
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