CONTENTS
Tuesday 31 May 1994
Courts of Justice Statute Law Amendment Act, 1993, Bill 136, Mrs Boyd / Loi de 1993 modifiant des lois en ce qui concerne les tribunaux judiciaires, projet de loi 136, Mme Boyd
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
*Chair / Président: Marchese, Rosario (Fort York ND)
*Vice-Chair / Vice-Président: Harrington, Margaret H. (Niagara Falls ND)
Akande, Zanana L. (St Andrew-St Patrick ND)
*Bisson, Gilles (Cochrane South/-Sud ND)
*Chiarelli, Robert (Ottawa West/-Ouest L)
Curling, Alvin (Scarborough North/-Nord L)
*Haeck, Christel (St Catharines-Brock ND)
*Harnick, Charles (Willowdale PC)
*Malkowski, Gary (York East/-Est ND)
Murphy, Tim (St George-St David L)
*Tilson, David (Dufferin-Peel PC)
*Winninger, David (London South/-Sud ND)
*In attendance / présents
Substitutions present/ Membres remplaçants présents:
Wood, Len (Cochrane North/-Nord ND) for Mrs Harrington
Also taking part / Autres participants et participantes:
Ministry of the Attorney General:
Perkins, Craig, counsel
Winninger, David, parliamentary assistant to Attorney General
Clerk / Greffière: Bryce, Donna
Staff / Personnel: Schuh, Cornelia, deputy chief legislative counsel
The committee met at 1548 in room 228.
COURTS OF JUSTICE STATUTE LAW AMENDMENT ACT, 1993 / LOI DE 1993 MODIFIANT DES LOIS EN CE QUI CONCERNE LES TRIBUNAUX JUDICIAIRES
Consideration of Bill 136, An Act to amend the Courts of Justice Act and to make related amendments to the Freedom of Information and Protection of Privacy Act and the Justices of the Peace Act / Projet de loi 136, Loi modifiant la Loi sur les tribunaux judiciaires et apportant des modifications corrélatives à la Loi sur l'accès à l'information et la protection de la vie privée et à la Loi sur les juges de paix.
The Chair (Mr Rosario Marchese): We're into clause-by-clause consideration of Bill 136, and we'll begin with section 1. Any comments or discussion on sections 1 through 7?
Shall sections 1 to 7 carry? Carried.
Section 8. There's an amendment.
Mr David Winninger (London South): I move that subsection 21.2(2) of the Courts of Justice Act, as set out in section 8 of the bill, be amended by striking out "of the Family Court" in the fifth line and substituting "referred to in clauses (1)(d) and (e)."
This section is being amended to make it clear that incumbent members of the Unified Family Court have the right to remain as supernumerary judges of the new Family Court. It's basically of a technical nature.
The Chair: Discussion? Seeing none, all in favour of the motion? Opposed? That carries.
Shall section 8 carry, as amended? Carried.
There are no amendments to sections 9, 10, 11 or 12. Is there any discussion on any of those?
Shall sections 9 through 12 carry? Carried.
There's an amendment to section 13.
Mr Winninger: I move that section 13 of the bill be struck out and the following substituted:
"Deputy Judges Council
"33(1) A council known as the Deputy Judges Council in English and as Conseil des juges suppléants in French is established.
"Composition
"(2) The Deputy Judges Council is composed of,
"(a) the Chief Justice of the Ontario Court, or another judge of the General Division designated by the Chief Justice;
"(b) a regional senior judge of the General Division, appointed by the Chief Justice;
"(c) a judge of the General Division, appointed by the Chief Justice;
"(d) a provincial judge who was assigned to the provincial court (civil division) immediately before September 1, 1990, or a deputy judge, appointed by the Chief Justice.
"(e) three persons who are neither judges nor lawyers, appointed by the Lieutenant Governor in Council on the Attorney General's recommendation.
"Criteria
"(3) In the appointment of members under clause (2)(e), the importance of reflecting, in the composition of the council as a whole, Ontario's linguistic duality and the diversity of its population and ensuring overall gender balance shall be recognized.
"Chair
"(4) The Chief Justice of the Ontario Court, or his or her designate, shall chair the meetings of the Deputy Judges Council.
"Same
"(5) The chair is entitled to vote, and may cast a second deciding vote if there is a tie.
"Functions
"(6) The functions of the Deputy Judges Council are,
"(a) to review and approve standards of conduct for deputy judges as established by the Chief Justice;
"(b) to review and approve a plan for the continuing education of deputy judges as established by the Chief Justice; and
"(c) to make recommendations on matters affecting deputy judges.
"Complaint
"33.1(1) A person may make a complaint alleging misconduct by a deputy judge, by writing to the judge of the General Division designated by the regional senior judge in the region where the deputy judge sits.
"Dismissal
"(2) The judge shall review the complaint and may dismiss it without further investigation if, in his or her opinion, it falls outside the jurisdiction of the regional senior judge, is frivolous or an abuse of process, or concerns a minor matter to which an appropriate response has already been given.
"Notice of dismissal
"(3) The judge shall notify the regional senior judge, the complainant and the deputy judge in writing of a dismissal under subsection (3), giving brief reasons for it.
"Committee
"(4) If the complaint is not dismissed, the judge shall refer it to a committee consisting of three persons chosen by the regional senior judge.
"Same
"(5) The three persons shall be a judge of the General Division, a deputy judge and a person who is neither a judge nor a lawyer, all of whom reside or work in the region where the deputy judge who is the subject of the complaint sits.
"Investigation
"(6) The committee shall investigate the complaint in the manner it considers appropriate, and the complainant and deputy judge shall be given an opportunity to make representations to the committee, in writing or, at the committee's option, orally.
"Recommendation
"(7) The committee shall make a report to the regional senior judge, recommending a disposition in accordance with subsections (8), (9) and (10).
"Disposition
"(8) The regional senior judge may dismiss a complaint, with or without a finding that it is unfounded, or, if he or she concludes that the deputy judge's conduct presents grounds for imposing a sanction, may,
"(a) warn the deputy judge;
"(b) reprimand the deputy judge;
"(c) order the deputy judge to apologize to the complainant or to any other person;
"(d) order that the deputy judge take specified measures, such as receiving education or treatment, as a condition of continuing to sit as a deputy judge;
"(e) suspend the deputy judge for a period up to thirty days;
"(f) inform the deputy judge that his or her appointment will not be renewed under subsection 32(2);
"(g) direct that no judicial duties or only specified judicial duties be assigned to the deputy judge; or
"(h) remove the deputy judge from office.
"Same
"(9) The regional senior judge may adopt any combination of the dispositions set out in clauses (8)(a) to (g).
"Disability
"(10) If the regional senior judge finds that the deputy judge is unable, because of a disability, to perform the essential duties of the office, but would be able to perform them if his or her needs were accommodated, the regional senior judge shall order that the deputy judge's needs be accommodated to the extent necessary to enable him or her to perform those duties.
"Application of subsection (10)
"(11) Subsection (10) applies if,
"(a) the effect of the disability on the deputy judge's performance of the essential duties of the office was a factor in the complaint; and
"(b) the regional senior judge dismisses a complaint or makes a disposition under clauses (8)(a), (b), (c), (d), (e) or (g).
"Undue hardship
"(12) Subsection (10) does not apply if the regional senior judge is satisfied that making an order would impose undue hardship on the person responsible for accommodating the judge's needs, considering the cost, outside sources of funding, if any, and the health and safety requirements, if any.
"Opportunity to participate
"(13) The regional senior judge shall not make an order under subsection (10) against a person without ensuring that the person has had an opportunity to participate and make submissions.
"Crown bound
"(14) An order made under subsection (10) binds the crown.
"Compensation
"(15) The regional senior judge shall consider whether the deputy judge should be compensated for all or part of his or her costs for legal services incurred in connection with all the steps taken under this section in relation to the complaint.
"Recommendation
"(16) If the regional senior judge is of the opinion that the deputy judge should be compensated, he or she may make a recommendation to the Attorney General to that effect, indicating the amount of compensation.
"Same
"(17) If the complaint is dismissed with a finding that it is unfounded, the regional senior judge shall recommend to the Attorney General that the deputy judge be compensated for his or her costs for legal services and shall indicate the amount of compensation.
"Maximum
"(18) The amount of compensation recommended under subsection (16) or (17) shall be based on a rate for legal services that does not exceed the maximum rate normally paid by the government of Ontario for similar legal services.
"Payment
"(19) The Attorney General shall pay compensation to the judge in accordance with the recommendation.
"Non-application of SPPA
"(20) The Statutory Powers Procedure Act does not apply to a judge, regional senior judge or member of a committee acting under this section.
"Personal liability
"(21) No action or other proceeding for damages shall be instituted against a judge, regional senior judge or member of a committee for any act done in good faith in the execution or intended execution of the person's duty under this section."
1600
The Chair: Discussion or comments on the motion?
Mr Charles Harnick (Willowdale): I'm still somewhat concerned that there's an element of going overboard with respect to the way we deal with deputy judges of the Small Claims Court. It seems to me that if you stopped after you got through the review by the judge of the General Division as set out in subsection 33.1(1) and gave that individual the jurisdiction to deal with all complaints to a deputy judge, you'd have much the same situation that you now have. I don't think it's been demonstrated that you really have to go further in this area than what we have at present, simply because we're dealing with a very different situation from situations of provincial court judges or judges of the Provincial Division, as they're now known.
We're dealing with judges who are effectively volunteers; they're deputy judges. We're also dealing with a large number of cases where there is no reporter in the courtroom because of the monetary value of the case. Although you've set up an intermediate step by permitting a judge of the General Division designated by the regional senior judge to deal with these complaints as far as an initial dismissal is concerned, I think you're going overboard by referring this on to a committee in such a formal process if that initial complaint is not dismissed.
There has been no demonstrated need for any such procedure, particularly because, as I said, so many of the cases dealing in the Small Claims Court are cases where the evidence is not transcribed, there is no reporter; the monetary value of the case is such that you don't have to have a reporter. I just wanted to put those remarks on the record.
The Chair: Further responses? Seeing none, all in favour of this motion? Opposed? That carries.
Shall section 13, as amended, carry? That carries.
Any comments on sections 14 and 15? Seeing none, shall sections 14 and 15 carry? Carried.
Section 16.
Mr Winninger: I move that section 43 of the Courts of Justice Act, as set out in section 16 of the bill, be amended by striking out subsection (4) and by adding the following subsections:
"Chair
"(6.1) The Attorney General shall designate one of the members to chair the committee for a three-year term.
"Term of office
"(6.2) The same person may serve as chair for two or more terms."
The Chair: Debate on this motion?
Mr Harnick: Tell me where this section fits in. Am I looking at subsection 43(4), which in the bill before us says, "The Attorney General shall designate one of the members to chair the committee"?
Mr Winninger: We're dealing with the chair of the Judicial Appointments Advisory Committee.
Mr Harnick: That's described as subsection 43(4)? Am I right about that?
Mr Winninger: Yes, it is.
Mr Harnick: You're getting rid of subsection (4), so the preceding section will be subsection 43(3), which is entitled "Criteria." Am I right?
Mr Winninger: Yes.
Mr Harnick: And then you'll go from (3) and the next number will be 43(6.1)?
Mr Winninger: Well, we're deleting (4) and then (5) will, I presume, take the place of (4) in the numerical order. Then you'll have (6) becoming (5); (6.1) will become an additional section. Maybe we could hear from legislative counsel on this.
Mr Harnick: Yes. It seems to me, if that's the numbering, you've got to do more amending than you've done.
Ms Cornelia Schuh: The intention is to strike out subsection (4) as now numbered and to put in two new subsections that will go in after the one currently numbered (6).
Mr Harnick: So you're going to go subsection (1), subsection (2), subsection (3), and then you're going to go to subsection (5), subsection (6).
Ms Schuh: In the reprint that will appear after this committee finishes its work, the numbering will be (1), (2), (3), (5), (6), (6.1), (6.2), (7) and so on. We do a complete renumbering after third reading because it's too confusing with multiple committee stages. The decimal points, (6.1) and (6.2), are to indicate where between the existing subsections the new ones are to be inserted.
Mr Harnick: It doesn't make any sense to me at all. You're getting rid of (4), you're keeping (5), you're keeping (6), and then this becomes (6.1) and (6.2). I understand that.
Ms Schuh: Those numbers are really just indications of where they go in the sequence.
Mr Harnick: But what you're telling me is that ultimately everything's going to move up, so what's now (6) becomes (5)?
Ms Schuh: It will ultimately, yes.
Mr Harnick: So that really this is (5.1) and (5.2), and (5) becomes (4).
Ms Schuh: Ultimately these will be numbered (6) and (7).
Mr Harnick: Okay. It doesn't make any sense to me.
Ms Schuh: We've found that because of repeated committee stages it's less confusing for users of printed bills if we do not renumber until the final stage. I agree with you that it is confusing.
Mr Harnick: It's not just confusing, but it seems to me that it might even be improper, because if we're here voting on a particular number and we are making a particular number part of the bill, as part of that numbered clause, how can you later change it when we've amended it as a different number altogether? How can (6) become (5)?
Ms Schuh: It's always been part of the editorial function of legislative counsel working for the assembly that we do necessary renumbering as part of the printing process.
The Chair: Anything further? Okay.
All in favour of the motion? Opposed? That carries.
Next amendment, section 16, subsection 43(10).
1610
Mr Winninger: I move that subsection 43(10) of the Courts of Justice Act, as set out in section 16 of the bill, be struck out and the following substituted:
"Recommendation by Attorney General
"(10) The Attorney General shall recommend to the Lieutenant Governor in Council for appointment to fill a judicial vacancy only a candidate who has been recommended for that vacancy by the committee under this section."
The Chair: Discussion? Seeing none, all in favour? Opposed? That carries.
Section 16 of the bill, subsection 45(2).
Mr Winninger: I move that subsection 45(2) of the Courts of Justice Act, as set out in section 16 of the bill, be amended by striking out "that those needs be accommodated" in the fifth and sixth lines and substituting "that the judge's needs be accommodated to the extent necessary to enable him or her to perform those duties."
The Chair: Discussion? All in favour of the motion? Opposed? That carries.
Section 16, clause 49(2)(e).
Mr Winninger: I move that clause 49(2)(e) of the Courts of Justice Act, as set out in section 16 of the bill, be amended by inserting after "law society" in the third line "who is a lawyer,".
The Chair: Discussion? All in favour of the motion? Opposed? That carries.
Mr David Tilson (Dufferin-Peel): Mr Chairman, I'm sorry, I just arrived. My question is to Mr Winninger, or whoever. There were some issues raised by some delegations about what a lawyer is. Has that been resolved in the package of amendments? Have you dealt with that?
Mr Winninger: Yes. I think we've resolved the question in that a lawyer is one who is a member of the law society and is not retired.
Mr Harnick: Is that definition in the Courts of Justice Act or the Interpretation Act?
Mr Winninger: I don't think you'll find it defined in the Courts of Justice Act. It's the position we take that that's what constitutes a lawyer.
Mr Tilson: Is that mentioned in the bill, as to what a lawyer is? That question was left up in the air, particularly about people who may not have been called or may have been professors and may not actually be members of the Law Society of Upper Canada, or other examples. I think it was a judicial group that was here, though I can't remember their names.
Mr Winninger: I recall that discussion too. If a law professor, for example, duly qualifies as a member of the law society, he or she would be treated as a lawyer for the purposes of this act.
Mr Harnick: But which law society?
Mr Tilson: The Law Society of Upper Canada.
Mr Harnick: It doesn't say that. What if you're a lawyer in New York?
Mr Tilson: I think the point that was made is, do you have to be a member of the Law Society of Upper Canada to be a lawyer for the purposes of this bill?
Mr Winninger: The ambiguity would arise that if you didn't have a requirement that you're a member of the Law Society of Upper Canada, what would then distinguish you, necessarily, from a member of the lay public? You're not a member of the law society; it's true you may have a legal education, but there'd be very little to distinguish you from a member of the lay public, and in order to achieve that important balance between lay representation, lawyers and judges, it's thought we should qualify the lawyers in that way.
Mr Tilson: I suspect that you and the staff have spent much more time on this issue than I have, but the question still remains in my mind that conceivably there could be someone -- Mr Harnick has raised an example -- who might be a lawyer in another jurisdiction, another provincial jurisdiction, an American jurisdiction, or someone who has obtained a law degree from a Canadian university or a Canadian law school, who may be perfectly qualified to be on the council. I'm not arguing that one way or the other. I just want to know the rationale, your rationale or the staff's rationale, on that issue that was raised by that delegation. They did put forward, I thought, a very good point.
Mr Winninger: I think you know that in the context of this section it's important that we define "bencher" as a bencher who is a lawyer, because there are benchers who are not lawyers, and if we want to ensure we have the right balance of representation on the committee, we need to refine our definition of "bencher." That's why we say "a bencher who is a lawyer." That's the context there.
Mr Tilson: Could you just give me one second, Mr Chair?
The Chair: Do you want to stand it down for a few moments?
Mr Tilson: No. It may well be that there wasn't enough justification to deal with it. I'm just trying to respond to the issue that was raised. The word "lawyer" is referred to throughout the legislation -- and I know I'm getting off the amendment. For example, in (f), "a lawyer who is not a bencher" just twigged the recollection of that submission made to the committee, and I had hoped that someone would have addressed that issue. But it may well be that you felt that it didn't warrant it, and that's your decision.
Mr Winninger: Just in brief response, as we move towards plainer language in our statutes, some of these issues may arise. I understand it's the position of legislative counsel that this is a matter of plain language and that's why the word "lawyer" is used.
Mr Tilson: So from your perspective, Mr Winninger, or the staff's position, a "lawyer" is a member of the Law Society of Upper Canada?
Mr Winninger: Yes.
Mr Tilson: And that would rule out a lawyer from another jurisdiction who may not be a lawyer in Ontario, or someone who has obtained a legal education, perhaps a law professor, who is not a member of the Law Society of Upper Canada, or someone who has gone through the three years and possibly even articling and is not a lawyer.
Mr Robert Chiarelli (Ottawa West): Or one of the thousands who hasn't paid his fees.
Mr Tilson: Yes. Those people are simply not a lawyer for the purposes of this legislation. That's what you're saying?
Mr Winninger: That's the correct interpretation.
Mr Harnick: Dealing with clause (2)(f), where it says, "a lawyer who is not a bencher of the Law Society of Upper Canada, appointed by the Law Society," what I wonder is, do you envision that that lawyer who will be part of the Judicial Council will be a lawyer possibly from outside of the Ontario jurisdiction?
Mr Winninger: I'm sorry. Just in the way you posed that question, I thought I understood you to say, would there be a lawyer possibly from outside of Ontario's jurisdiction serving as a lawyer on that council? If you were saying as a layperson --
Mr Harnick: No, I'm saying as a lawyer. I mean, I can be a lawyer in Manitoba and qualify to be a lawyer who is not a bencher of the Law Society of Upper Canada. The Law Society of Upper Canada can go ahead and appoint a lawyer who practises in Manitoba to be on that committee and qualify with the wording in (2)(f). I don't think that would happen, practically speaking, but it is rather imprecise language. You might want to say, "A lawyer practising in the province of Ontario who is not a bencher," "qualified to practise in the province of Ontario," "called to the bar in the province of Ontario."
1620
Mr Winninger: I've just confirmed with the staff here. A lawyer who may be qualified outside of the province of Ontario but is not a member of the Law Society of Upper Canada would not be treated as a lawyer for the purpose of this section.
Mr Harnick: That's not what it says, though.
Mr Tilson: You haven't defined what a lawyer is.
Mr Harnick: I don't think there's a whole lot to worry about here, because it's going to be an appointment made by the law society, as opposed to an appointment made by the government.
Mr Chiarelli: You never know. They've been known to import people from Manitoba before.
Mr Tilson: Indeed.
The Chair: Mr Harnick was raising a question still. I thought the three of you were conferring and might have another reaction to his comments. Is there one?
Mr Winninger: I don't know that I can respond, other than by restating our position. You may well be a lawyer qualified to practise in another province or who's received a diploma in another province but hasn't joined the Law Society of Upper Canada. That lawyer would not be embraced under this particular section.
Mr Harnick: That's what you say, but that's not what the section says. That's what you'd like it to mean, but it doesn't necessarily have to be interpreted that way, because there are no definitions.
Mr Winninger: As you well know, we have a Law Society Act that prescribes who may practise law, and without going into very convoluted language, the "lawyer" suggests, I would say, both to laypeople and professionals, that this is someone who is duly qualified to practise law under the Law Society of Upper Canada act.
The Chair: Do you have some suggestions about what you think should be there?
Mr Harnick: If that's the intention, and I'm sure it is the intention, I just think it might be advisable to say that it has to be a lawyer recognized by the Law Society of Upper Canada or called to the bar in Ontario.
Mr Winninger: Maybe I can short-circuit this process. If you wish to ask for unanimous consent to reopen section 1 so that we can add a definition of "lawyer" along the lines that you suggest, "A lawyer shall be someone who is qualified to practise law," or "a member of the Law Society of Upper Canada," we can do that. That's not a problem, if you still have difficulty with it.
Mr Harnick: I don't have difficulty with it. I just think if you want to be perfectly clear and you want it to mean what you're telling me it means, you should do something, but it's up to you.
Mr Tilson: I didn't mean to raise all this. Mr Winninger has probably defined the issue that I thought. My understanding is you can't call yourself a lawyer, for a starter, because you could be fined, under the Solicitors Act, is it? I forget what the legislation is. If you call yourself a lawyer, there's a provincial offence. Presumably, that's what you're relying on.
My sole question dealt with what a lawyer was for the purposes of this legislation, and you have clarified that, that what everyone thinks is a lawyer -- in other words, a practising lawyer who calls himself a lawyer -- is the intent of this legislation. That's what you're saying, just thank you very much to the people who made the presentation, but you feel that's the way the definition should stand? Thank you.
Mr Winninger: So is that can of worms now closed?
Mr Harnick: I think it's up to you. Certainly if you want to add a definition of "lawyer," I don't think we would be in a position to say that we don't consent.
Mr Winninger: We don't. I guess I was throwing the onus in your direction if you still had difficulty with it. We don't have difficulty with it.
The Chair: All in favour of this motion? Opposed? That carries.
Section 16 of the bill, subsection 49(4.1).
Mr Winninger: I move that section 49 of the Courts of Justice Act, as set out in section 16 of the bill, be amended by adding the following subsection:
"Term of office
"(4.1) The regional senior judge who is appointed under clause (2)(c) remains a member of the Judicial Council until he or she ceases to hold office as a regional senior judge."
The Chair: Discussion? All in favour of this motion? Opposed? That carries.
Section 16 of the bill, subsection 49(13).
Mr Winninger: I move that subsection 49(13) of the Courts of Justice Act, as set out in section 16 of the bill, be struck out and the following substituted:
"Review panels
"(13) The Judicial Council may establish a panel for the purpose of dealing with a complaint under subsection 51.4(17) or (18) or subsection 51.5(8) or (10) and considering the question of compensation under section 51.7, and the panel has all the powers of the Judicial Council for that purpose."
The Chair: Discussion? All in favour of this motion? Opposed? That carries.
Clause 49(18)(b).
Mr Winninger: I move that clause 49(18)(b) of the Courts of Justice Act, as set out in section 16 of the bill, be amended by striking out "or in consideration of the question of compensation under section 51.7."
The Chair: Discussion? All in favour of the motion? Opposed? That carries.
Section 16, subsection 49(19).
Mr Winninger: I move that subsection 49(19) of the Courts of Justice Act, as set out in section 16 of the bill, be amended by striking out "or in consideration of the question of compensation under section 51.7" in the last three lines.
The Chair: Discussion? All in favour of the motion? Opposed? That carries.
Subsection 51.1(1).
Mr Winninger: I move that subsection 51.1(1) of the Courts of Justice Act, as set out in section 16 of the bill, be struck out and the following substituted:
"Rules
"51.1(1) The Judicial Council shall establish and make public rules governing its own procedures, including the following:
"1. Guidelines and rules of procedure for the purpose of section 45.
"2. Guidelines and rules of procedure for the purpose of subsection 51.4(21).
"3. Guidelines and rules of procedure for the purpose of subsection 51.4(22).
"4. If applicable, criteria for the purpose of subsection 51.5(2).
"5. If applicable, guidelines and rules of procedure for the purpose of subsection 51.5(11).
"6. Rules of procedure for the purpose of subsection 51.6(3).
"7. Criteria for the purpose of subsection 51.6(7).
"8. Criteria for the purpose of subsection 51.6(8).
"9. Criteria for the purpose of subsection 51.6(10)."
1630
The Chair: Discussion? All in favour? Opposed? That carries.
Subsections 51.2(5) and (6).
Mr Winninger: I move that section 51.2 of the Courts of Justice Act, as set out in section 16 of the bill, be amended by adding the following subsections:
"Bilingual hearing or mediation
"(5) The Judicial Council may direct that a hearing or mediation to which subsection (3) applies be conducted bilingually, if the council is of the opinion that it can be properly conducted in that manner.
"Part of hearing or mediation
"(6) A directive under subsection (5) may apply to a part of the hearing or mediation, and in that case subsections (7) and (8) apply with necessary modifications.
"Same
"(7) In a bilingual hearing or mediation,
"(a) oral evidence and submissions may be given or made in English or French, and shall be recorded in the language in which they are given or made;
"(b) documents may be filed in either language;
"(c) in the case of a mediation, discussions may take place in either language;
"(d) the reasons for a decision or the mediator's report, as the case may be, may be written in either language.
"Same
"(8) In a bilingual hearing or mediation, if the complainant or the judge who is the subject of the complaint does not speak both languages, he or she is entitled, on request, to have simultaneous interpretation of any evidence, submissions or discussions spoken in the other language and translation of any document filed or reasons or report written in the other language."
The Chair: Discussion? All in favour? Opposed? That carries.
Subsections 51.5(10.1) and (10.2).
Mr Winninger: I move that section 51.5 of the Courts of Justice Act, as set out in section 16 of the bill, be amended by adding the following subsections:
"Non-application of SPPA
"(10.1) The Statutory Powers Procedure Act does not apply to the Judicial Council's activities under subsections (8) and (10).
"Notice to judge and complainant
"(10.2) After making its decision under subsection (8) or (10), the Judicial Council shall communicate it to the judge and the complainant, giving brief reasons in the case of a dismissal."
The Chair: Discussion? All in favour? Opposed? That carries.
Subsection 51.7(1).
Mr Winninger: I move that subsection 51.7(1) of the Courts of Justice Act, as set out in section 16 of the bill, be amended by striking out "all or part of" in the fourth line.
The Chair: Discussion? All in favour? Opposed? That carries.
Subsection 51.7(5).
Mr Winninger: I move that subsection 51.7(5) of the Courts of Justice Act, as set out in section 16 of the bill, be amended by striking out "If the complaint is dismissed with a finding that it is unfounded" in the first two lines and substituting "If the complaint is dismissed after a hearing."
The Chair: All in favour? Opposed? That carries.
Subsection 51.7(7).
Mr Winninger: I move that subsection 51.7(7) of the Courts of Justice Act, as set out in section 16 of the bill, be struck out and the following substituted:
"Amount of compensation
"(7) The amount of compensation recommended under subsection (4) or (5) may relate to all or part of the judge's costs for legal services, and shall be based on a rate for legal services that does not exceed the maximum rate normally paid by the government of Ontario for similar services."
Mr Harnick: I'm unclear as to the meaning of subsection (7), because subsection (7) states that, "The amount of compensation recommended under subsection (4) or (5) may relate to all" of the judge's costs "or part of the judge's costs," and then it goes on to say, "and shall be based on a rate for legal services that does not exceed the maximum rate normally paid by the government of Ontario."
What is the maximum rate for similar services from the government of Ontario? Does the government of Ontario traditionally see these kinds of cases so that they affix an hourly rate?
Mr Winninger: I'm advised by staff with me today that the average rate is $225 an hour. That's a tariff that applies virtually across the board.
Mr Harnick: So if you hire a lawyer who charges you $300 an hour, they might pay all of it or they might only pay up to the $225.
Mr Winninger: I'm again advised by staff that normally a lawyer agreeing to work for a judge in these proceedings would be inclined to cut his or her hourly rate and accept the rate normally paid of $225 an hour.
Mr Tilson: I think the point that we're trying to raise is that this is obviously a serious matter, and the judge may want to retain the best counsel --
Mr Harnick: It's his career on the line.
Mr Tilson: That's right. He's finished if he doesn't get proper legal advice. He's finished if he doesn't -- I hate that smile, but however -- get proper legal counsel. He may wish to retain the best counsel in the province -- or in the land, for that matter.
Mr Winninger: I'm going to allow staff to add to this, but I'm advised that we get the best lawyers in Ontario for that rate.
Mr Tilson: That's a nice shot and you may be correct. All I'm saying is that the judge, to be fair to him or her, with serious allegations, may wish to retain the best counsel possible, and what this legislation is saying is that the difference would be borne by the judge personally.
Mr Winninger: I have with me Craig Perkins of the Ministry of the Attorney General, who should be no stranger to many of you, and perhaps he can add to what I've already said.
Mr Craig Perkins: We in the Ministry of the Attorney General and indeed across the government are able to negotiate with private lawyers, including those who are the very leaders of the profession, to provide services to the government at the Ontario government maximum tariff, and we would expect that a judge going into this situation would similarly bring it to the attention of counsel that there is a maximum and counsel would take the brief on that basis, that there was a maximum.
It's always possible, I suppose, that counsel would expect a premium and ask that the judge pay a portion of that personally and then the judge would have to make a decision on whether that counsel was the appropriate counsel on the case.
1640
The Chair: All in favour? Opposed? That carries.
Subsection 51.8(5).
Mr Winninger: I move that subsection 51.8(5) of the Courts of Justice Act, as set out in section 16 of the bill, be struck out and the following substituted:
"Transition
"(5) A complaint against a provincial judge that is made to the Judicial Council before the day section 16 of the Courts of Justice Statute Law Amendment Act, 1994 comes into force, and considered at a meeting of the Judicial Council before that day, shall be dealt with by the Judicial Council as it was constituted immediately before that day and in accordance with section 49 of this act as it read immediately before that day."
The Chair: All in favour? Opposed? That carries.
Subsection 51.11.1.
Mr Winninger: I move that section 16 of the bill be amended by adding the following as section 51.11.1 of the Courts of Justice Act:
"Consultation
"51.11.1 In establishing standards of conduct under section 51.9, a plan for continuing education under section 51.10 and a program of performance evaluation under section 51.11, the Chief Judge of the Provincial Division shall consult with judges of that division and with such other persons as he or she considers appropriate."
The Chair: Discussion? All in favour? Opposed? That carries.
Shall section 16 carry, as amended? All in favour? Opposed? That carries.
All in favour of section 17? Opposed? That carries.
Section 18: There's an amendment here, subsections 18(3) to (6).
Mr Winninger: I move that subsections 18(3) to (6) of the bill be struck out and the following substituted:
"(3) Clauses 53(1)(b) and (c) of the act are repealed."
The Chair: Discussion? All in favour? Opposed? That carries.
Subsection 18(9).
Mr Winninger: I move that subsection 18(9) of the bill be struck out and the following substituted:
"(9) Subsection 53(3) of the act is repealed."
The Chair: All in favour? Opposed? That carries.
Shall section 18 carry, as amended? That carries.
Section 19, any discussion?
Mr Tilson: Yes, section 19, what does part 3 say?
Mr Winninger: We're replacing there the Unified Family Court part of the statute with reference to the Family Court division of the general court.
Mr Tilson: Mr Winninger, there's a question that's been asked by Mr Chiarelli and Mr Harnick and myself and several others, particularly in the House, and that is that there's going to be a substantial saving of moneys -- at least, we're submitting that there will be -- with respect to the salaries that will be paid federally.
The issue is that the concern was that those savings will be put into the court system or somewhere in the court system for all kinds of things, as opposed to the consolidated revenue fund. There may not be a place in this bill to deal with that, but that's an issue that remains unanswered. You may not be in a position to answer it now, but hopefully before these committee hearings end you'll have had a discussion with the Attorney General to provide an answer to that question.
Mr Winninger: As you may know, Mr Tilson, this is a bipartite process, if I can put it that way, and discussions have been ongoing for some time between our own deputy minister and the federal deputy with the view to determining how many appointments there will be to the expanded family division, where these appointments will be, and, at the same time, determining what resources can then be used to improve the infrastructure that will support those particular judges.
Mr Tilson: I'm aware of that. My question is a simple question: Where are the savings going? Because there will be savings to the province of Ontario.
Mr Winninger: Whatever savings are had as a result of the federal appointments we have undertaken to the federal government to redeploy back into the judicial system here in Ontario.
Mr Tilson: How do you propose to do that?
Mr Winninger: That's being worked out precisely in discussions between the federal and provincial levels of government.
Mr Tilson: Mr Winninger, I guess all I'm looking at is that whether it's the Advocates' Society or any other groups I've spoken to, that's a question that pops up periodically: Where is that money going? You can say you're having ongoing discussions with the federal government to the federal representatives, but the issue is, what's the province of Ontario going to do with those moneys? You may not have the answer now, and I understand that, but I would hope that before this committee rises -- is that today?
Mr Winninger: Part of this is also going to be determined in consultation and with the advice of the judicial resource --
Mr Tilson: That doesn't mean anything. I'll let Mr Harnick go at this for a while.
Mr Winninger: The local resource committees, to use the exact language.
Mr Harnick: You see, Mr Winninger, part of the problem is that we now have a government that is so desperate for cash that it has sold the GO Transit rolling stock and leased it back. When a government becomes that desperate in the management of its resources, when it owns something that's paid for and sells it in order to get the cash and then it's prepared to lease back and make payments on what it originally owned and had paid for, it's very difficult for me to believe that when the federal government begins to pick up the costs of a number of the existing judges who will be transferred from the Provincial Division to the family division, the Treasurer of this province, Mr Laughren, will continue to pay the moneys that he has been allocating, budgetwise, for judges' salaries, because those costs will have gone down.
Our concern is, by virtue of the judges now being paid by the federal government -- we don't know how many it is, granted -- we would like assurances that the budget for justice will not be cut by the amount that is being saved by not having to pay these judges. It has nothing to do with resource committees; it seems to me there has to be a commitment there by the Treasurer to maintain the level of funding that he now provides to the justice department.
1650
Mr Winninger: I'm actually surprised that you would raise this line of questioning, because it was only a few years ago, after the Askov decision, when we found ourselves with an acute backlog in the courts of Ontario, that we took resources, during very difficult fiscal and economic times, and used them to hire additional judges -- as I recall, upwards of 30 additional judges -- hired additional crown attorneys, hired the necessary support staff and dealt very effectively with that backlog and reduced it to manageable proportions that were in keeping with the eight-month rule, I think it was, under the Askov decision.
So if we were able to do that then, and you've heard just a few minutes ago that we, as a province, have undertaken to the federal government to redeploy those savings back into the judicial system, I really can't understand why you would be concerned that this money might somehow find its way into the consolidated revenue fund.
Mr Harnick: The reason that I'm concerned is because following second reading I had an opportunity to speak to the deputy minister, and the deputy minister expressed some gratitude that we raised that issue because he felt it would make his job somewhat easier, when they set the budgets to appear before the Treasurer, to maintain the levels of funding.
Really, all we're doing is asking for some assurance and putting it on the record to hopefully help the situation. We're not being adversarial; we want to make sure that the moneys that we save can go to these resource committees and that the Treasurer won't merely say: "You know, we don't have that many judges now; we've got 20 fewer judges that we're paying for. At $120,000 a year, that's $2.4 million that I don't have to give the justice department." All we're trying to do is make it easier for you to ensure that, when you go to the Treasurer, it's been noted on the record that we don't want him picking the pockets of the justice department.
Mr Winninger: Well, we'd like to thank you for that reminder.
Mr Chiarelli: I think it's a very valid point to raise, but I'm very surprised that the Conservatives are raising it, because my understanding is that this part of government spending is not included in the exempt or protected area of the Common Sense Revolution. I would have expected you to be saying, "Would you give us assurances that this saving would be applied to the provincial debt?" So I guess it's a valid point to be raising, but I guess if you consider the source, it raises some confusion.
Mr Harnick: It's now on the record and I'm entitled to respond to it.
The Chair: This is very true. I did want to finish this by today, because we are scheduled to do other things for next week, but go ahead.
Mr Harnick: I understand. Mr Chiarelli has quite obviously not read the document. The document lays out specifically where the savings are going to be, and in so far as the justice ministry is concerned, there will be a reduction in the amount of legal aid spending, and that's spelled out clearly in the document.
I think if Mr Chiarelli wants to get involved with costs that a government wasted in terms of the way they managed resources, we can talk about Askov and we can talk about the warning that his former Attorney General was given by the courts and was absolutely ignored; it was laughed off. Then when the courts decided that they were going to call Mr Scott's bluff and the bluff of the former Liberal government, it ended up costing the justice ministry some $50 million or more to rectify the problem that Mr Scott was given several years to work at. If we're going to talk about a waste of money, Mr Chiarelli, I think that people who live in glass houses should not throw stones.
Mr Chiarelli: I was agreeing with your point. I was just commenting on the source.
Mr Harnick: If you want to comment and be accurate, you should read the document, because what you purport to say the document means indicates you haven't read it.
The Chair: All right, moving on. All in favour of section 19? Opposed? That carries.
Section 20.
Mr Winninger: We have no amendments till section 34.
The Chair: I know. We'll go quickly through. I just want to give the members an opportunity in case they see something they want to comment on.
Section 20: All in favour? Opposed? That carries.
Section 21: All in favour? Opposed? That carries.
Section 22: All in favour? Opposed? That carries.
Mr Tilson: Why not go from 22 to 33?
The Chair: Shall sections 23 to 33 carry? Carried.
Section 34: Mr Winninger with a motion.
Mr Winninger: I move that section 87 of the Courts of Justice Act, as set out in section 34 of the bill, be amended by adding the following subsection:
"Compensation
"(8) Masters shall receive the same salaries, pension benefits, other benefits and allowances as provincial judges receive under the framework agreement set out in the schedule to this act."
Mr Harnick: This is a very good opportunity for me to put on the record the issue dealing with masters. It's interesting that masters are dealt with in terms of receiving the same salaries, pension benefits etc, which I think is quite proper. I think that, as well, the government is making a major mistake in continuing the Liberal policy of phasing out masters to deal with interlocutory matters in the jurisdiction of Metropolitan Toronto. Masters have played an integral role in dealing with interlocutory matters in Metropolitan Toronto, and they have also played an integral role in the education of law students who appear before masters to deal with pre-trial motions that are within the jurisdiction of the masters.
In the jurisdiction of Metropolitan Toronto, masters have also been charged with the jurisdiction of trying construction lien cases, and we know that those cases are often long and complicated and involve voluminous documents. Masters deal with references that are referred to them by judges and perform a very valuable service in a jurisdiction that is really wanting for resources. I think the idea of getting rid of masters is a very grave mistake that the NDP government is making. I think they're blindly following what the former Liberal government started to do.
I had the pleasure last week of appearing in masters' chambers at 145 Queen Street, and I took it upon myself to count the number of matters that masters were dealing with on this particular day. I can tell you they were in excess of 100 matters. I don't know who will perform the function that the masters are now performing, but there are 100 or more items every day, not including construction lien trials, that the masters are dealing with. The judges of the merged court -- another Liberal failure and a misguided direction, which unfortunately the NDP government was not able to stop because it had already been completed -- but I don't know who on that single-level court is available to look after these interlocutory matters.
1700
I've had the opportunity of asking the Attorney General about this on occasion and I haven't been given any kind of definitive answer other than the fact that "We're studying the situation." In the meantime, while the situation is being studied, the morale of the masters, who perform the very vital functions that I've pointed out -- one in particular is the education of law students before the courts -- becomes lower and lower at every turn. As a master retires, that particular master is not replaced. The workload and the resources they have available to them ultimately will become insurmountable and that aspect of the system will fail.
I think it's very regrettable that the government sits idly by and watches this happen and cannot act and make a decision. I would strongly recommend to the people running the ministry of justice that they reconsider the issue of masters. Instead of tearing down an institution that has worked and can continue to work and perform a very vital function, they should be building upon it. I think they would be well advised to consider that.
Mr Winninger: I certainly appreciate the concerns expressed by the member for Willowdale, but I think I might say for the record that outside of Toronto, which has a number of masters, outside of Ottawa and Windsor, which I believe each still have one master, and formerly London had a master as well until Mr Justice Brown went to his reward as a judge of the General Division, but outside of those particular jurisdictions, across Ontario judges, for many, many years, have been making decisions in regard to interlocutory matters.
I believe that masters first started hearing such cases in 1869, but throughout that period of time where masters haven't sat, it's been judges who have made those interlocutory decisions. I'm pleased to say, and perhaps the member knows, that there is a Civil Justice Review Committee, chaired, I believe, by Mr Justice Blair, that is looking at the role of alternative dispute resolution and the intervention of subordinate justice officials in resolving many of these interlocutory matters. This is something that's being studied on an ongoing basis and hopefully will meet the need that the member for Willowdale addresses.
The Chair: Okay. All in favour of this motion? Opposed? That carries.
Shall section 34 carry, as amended? That carries.
Then we have section 35 to section 52.
Mr Harnick: What about your amendment to section 48?
The Chair: Is there another amendment somewhere else?
Mr Harnick: Do you not have an amendment at section 48?
The Chair: Hold on. Yes, we do. All right. Section 48 -- that's right -- of the bill, schedule to the Courts of Justice Act. We'll go up to section 47 then. Sections 35 to 47, any suggestions, any comments? If not, shall they carry? Carried.
Section 48.
Mr Winninger: I move that the French version of the schedule to the Courts of Justice Act, as set out in section 48 of the bill, be amended by striking out "The Ontario Judges Association" and "The Ontario Family Law Judges Association" in the 12th and 13th lines and substituting "L'association des juges de l'Ontario" and "L'association ontarienne des juges du droit de la famille" respectively.
The Chair: Shall the amendment carry? Carried.
Shall section 48 carry, as amended? That carries.
Section 49 to section 52: Any discussion on any one of those sections?
Shall sections 49 to 52 carry? Carried.
There's a new section. Mr Winninger, do you want to read that into the record?
Mr Winninger: Yes, I will. In reference to section 52.1 of the bill, I move that the bill be amended by adding the following section:
"52.1 Subsections 12(1) and (3) of the act are repealed and the following substituted:
"Inquiry
"(1) The Lieutenant Governor in Council may appoint a provincial judge to inquire into the questions of whether there has been misconduct by a justice of the peace....
"Report
"(3) The report of the inquiry may recommend that the Lieutenant Governor in Council remove the justice of the peace from office in accordance with section 8, or that the review council implement a disposition under subsection (3.2).
"Same
"(3.1) The report may recommend that the justice of the peace be compensated for all or part of the cost of legal services incurred in connection with the inquiry.
"Dispositions by review council
"(3.2) If the report recommends that the review council implement a disposition under this subsection, the council may,
"(a) warn the justice of the peace;
"(b) reprimand the justice of the peace;
"(c) order the justice of the peace to apologize to the complainant or to any other person;
"(d) order the justice of the peace to take specified measures, such as receiving education or treatment, as a condition of continuing to sit as a justice of the peace;
"(e) suspend the justice of the peace with pay, for any period, or;
"(f) suspend the justice of the peace without pay, but with benefits, for a period up to 30 days."
The Chair: We read it for the record but we discussed this with Mr Winninger and we said that the amendment is out of order because it seeks to amend a section of the act and the section has not already been opened up in the amending bill. So Mr Winninger may want to ask the other members whether or not they want to deal with this.
Mr Winninger: I'm seeking unanimous consent to introduce this important amendment.
The Chair: Do we have agreement? There is agreement. All right then, Mr Winninger, anything further to add on that?
Mr Winninger: Unless someone wants an explanation of the section, I don't.
Mr Tilson: Just a minor question. We're spending some time on legal services with respect to judges. Should the same rationale apply to justices of the peace? I'm talking about tariff. I forget what the wording was.
Mr Harnick: The words that appear to be missing are "and shall be based on a rate for legal services that does not exceed the maximum rate normally paid by the government of Ontario for similar services."
Mr Winninger: I'm advised that the ministry certainly has no problem with the addition of those words to bring it into line with what prevails with judges. The intent of this section was in fact to invoke that mechanism.
1710
Mr Harnick: That's the mechanism that was used for the deputy judges as well as the judges, so I suppose to be consistent it should be used with the JPs.
Mr Winninger: Perhaps we could enlist our legislative counsel. Do we need to write that out or can we simply deal with this orally?
Ms Schuh: I think it would be good to write it out. I think the neatest way of adding this information would be to plug in a new subsection, with the side note "Maximum."
Mr Tilson: The wording that was used for the judges, and you have the wording, should be added. It's a phrase of about five words.
Mr Harnick: It should say "for all or part of the justice of the peace's costs for legal services and shall be based on a rate for legal services that does not exceed the maximum rate normally paid by the government of Ontario for similar services."
Mr Tilson: Why don't you just add those words?
Mr Winninger: Our suggestion was simply to add to the end of subsection (3.1) the following words: "and shall be based on a rate for legal services that does not exceed the maximum rate normally paid by the government of Ontario for similar services."
Mr Tilson: Fine.
The Chair: I was going to ask Mr Winninger to withdraw that particular section and re-read it, but he's already read it in for the record. If that's acceptable to everyone, we'll just leave it like that.
Mr Winninger: I thank the third party for drawing our attention to that.
Mr Tilson: Always prepared to help, Mr Chair.
Mr Winninger: I'm sure the justices of the peace will be very pleased as well.
The Chair: The legislative counsel has some concerns. Perhaps she and Mr Winninger, or others, can try to work out a language for that before we approve that section. But I think we can approve the other stuff.
Mr Tilson: What did you say? What's happening?
The Chair: We have deferred this matter for a few moments until these two lawyers confer on the appropriate language, and we'll return to it in a moment.
We'll skip over to section 53. Any comments on section 53? Shall section 53 carry? Carried.
We're moving on to section 54. Any comment on that? Shall section 54 carry? Carried.
Section 55: Any comments? Shall it carry? Carried.
Section 56: Shall that section carry? Carried.
Section 57: Shall it carry? Carried.
Section 58: Shall it carry? Carried.
Still working on the language, I presume, yes?
Mr Winninger: Yes, we are.
The Chair: All right, we'll have to pause for a few seconds until we get that. Do you want to read that into the record, Mr Winninger?
Mr Winninger: Yes, it would be a new subsection that would immediately follow subsection (3.1) in section 52.1, and that subsection would read as follows:
"(3.1.1) The amount of compensation recommended under subsection (3.1) shall be based on a rate for legal services that does not exceed the maximum rate normally paid by the government of Ontario for similar legal services."
It's perhaps just a more elegant way of expressing what we discussed earlier.
The Chair: Shall section 52.1 of the bill, 12(1) and (3) carry? Carried.
Shall the title carry? Carried.
Shall the bill, as amended, carry? Carried.
Shall I report the bill, as amended, to the House? Yes.
It's ordered that the Chair report Bill 136, An Act to amend the Courts of Justice Act and to make related amendments to the Freedom of Information and Protection of Privacy Act and the Justices of the Peace Act.
Mr Winninger: Could I just thank the opposition critics and members of the opposition, on behalf of the Attorney General, for their cooperation throughout this process. It has been very helpful and constructive.
The Chair: Very well. Any further comments? Seeing none, this committee is adjourned.
The committee adjourned at 1717.