COURTS IMPROVEMENT ACT, 1996 / LOI DE 1996 SUR L'AMÉLIORATION DES TRIBUNAUX
CONTENTS
Monday 21 October 1996
Courts Improvement Act Act, 1996, Bill 79, Mr Harnick /
Loi de 1996 sur l'amélioration des tribunaux, projet de loi 79, M. Harnick
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
Chair / Président: Mr Gerry Martiniuk (Cambridge PC)
Vice-Chair / Vice-Président: Mr Ron Johnson (Brantford PC)
*Mrs MarionBoyd (London Centre / -Centre ND)
Mr RobertChiarelli (Ottawa West / -Ouest L)
Mr Sean G. Conway (Renfrew North / -Nord L)
*Mr EdDoyle (Wentworth East / -Est PC)
Mr Garry J. Guzzo (Ottawa-Rideau PC)
*Mr TimHudak (Niagara South / -Sud PC)
*Mr RonJohnson (Brantford PC)
*Mr FrankKlees (York-Mackenzie PC)
*Mr Gary L. Leadston (Kitchener-Wilmot PC)
*Mr GerryMartiniuk (Cambridge PC)
*Mr John L. Parker (York East / -Est PC)
*Mr DavidRamsay (Timiskaming L)
*Mr DavidTilson (Dufferin-Peel PC)
Mr BudWildman (Algoma ND)
*In attendance /présents
Also taking part /Autres participants et participantes:
Hon Charles HarnickAttorney General
Ms Heather CooperAssistant Deputy Attorney General
Ms Debra Paulsethdirector, Metropolitan Toronto regional office, ATG
Mr John Twohigcounsel, policy branch, ATG
Clerk / Greffier: Mr Douglas Arnott
Staff / Personnel: Mr Andrew McNaught, research officer, Legislative Research Service
Mr Mark Spakowski, legislative counsel
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The committee met at 1602 in room 228.
COURTS IMPROVEMENT ACT, 1996 / LOI DE 1996 SUR L'AMÉLIORATION DES TRIBUNAUX
Consideration of Bill 79, An Act to improve Ontario's court system, to respond to concerns raised by charities and their volunteers and to improve various statutes relating to the administration of justice / Projet de loi 79, Loi visant à améliorer le système judiciaire de l'Ontario, à répondre aux préoccupations exprimées par les oeuvres de bienfaisance et leurs bénévoles, et à améliorer diverses lois relatives à l'administration de la justice.
The Chair (Mr Gerry Martiniuk): I call the justice committee meeting to order for consideration of Bill 79. The first order of business is the adoption of the subcommittee report.
Mr Frank Klees (York-Mackenzie): I move the adoption of the report of the subcommittee, dated October 16, 1996.
The Chair: All those in favour of adoption? Carried.
The committee welcomes the Honourable Attorney General of Ontario, Mr Charles Harnick. We are to proceed with one hour set aside for a presentation by Mr Harnick and then questions by the caucuses. Mr Harnick, the floor is yours.
Hon Charles Harnick (Attorney General): I will be very brief. I just want to review some of the areas that I gleaned were perhaps controversial as a result of listening to the debate in the Legislature.
Bill 79 provides legislative authority to appoint a new judicial administrative officer known as the case management master. The bill also changes the name of the Ontario Court (General Division) to the Superior Court of Justice and the Ontario Court (Provincial Division) to the Ontario Court of Justice. The bill permits the making of regulations to relieve charities of the time and expense of obtaining court approval for non-controversial issues. It also provides an opportunity to make a series of housekeeping amendments to the Courts of Justice Act.
I want to say a few things about case management masters. To put it in context, the role of the case management master is to support the team management approach of case management judges in dealing with civil litigation under a case management system. This is something that is going to be new to the province of Ontario and to the way we manage the civil litigation system, and it is, quite frankly, long overdue.
I can tell you that Ottawa, where I visited last Friday, will be at 100% case management on January 1, 1997, and I am hopeful that by the end of 1997 Toronto will be at 50% case management, and shortly thereafter we will move to get that to 100% case management. That's why the case management master is so important, because this individual, as well as having the same powers as current masters, as set out in the rules of civil procedure, will also have an expanded role in administering case management.
The essence of case management is to take a system that has been driven largely by the time parameters put on by lawyers to run civil cases through the court system and change it to a system whereby judges set the time limits. So cases will come into the courts, and there will be a prescribed time after a statement of claim is filed and a defence is received for examinations for discovery, for mediation, because we intend to make mediation a permanent part of civil procedure in appropriate cases. There'll be a time limit set for when the pre-trial occurs and for when the trial or the action will occur.
As it now stands, that can take in excess of five years if the lawyers feel that should be the timetable for the case. Under case management, it will no longer be the lawyers that make these decisions, it will be the judges, and they will be assisted by the case management master. The case management master becomes an indispensable tool in permitting case management to work, because the whole essence of it is to keep cases on the scheduled track. That's the failure of the civil justice system today: Cases are not on a scheduled track; they proceed when the lawyers are ready to proceed with them. This is a whole new rationale for the way our civil justice system will work.
By regulation, we will ensure that the qualifications for a master will be 10 years at the bar as a practitioner. They will receive a salary of $110,000 per annum and they will be appointed for seven-year terms, with three-year renewals to be exercised by the Chief Justice. They will also, as judicial officers, receive scheduling and clerical support, and they will have access to the appropriate technology that is being developed and implemented to make case management effective.
The appointment process, as we envision masters' appointments, will be the same as justices of the peace. Advertisements will appear in the Ontario Reports to recruit candidates. Applicants will be assessed and interviewed by local committees representing the bench, the bar, courts administration and the public. Local committees will make recommendations through the regional senior justice and the Chief Justice to the Attorney General, who will advise the Lieutenant Governor in Council on the appointment.
It's very important to note that a master's role is very different than the role of a judge. A master will very seldom have contact with the public but will have constant contact with counsel representing the public. They're involved, in addition to administrative duties, with what people in practice will refer to as interlocutory or practice motions. Any time there's a decision to be made as a result of the interpretation of the rules of civil procedure, which are contained in a compendium pursuant to the Courts of Justice Act, a master makes those decisions.
They are decisions that are technical. They often involve a determination, for instance, as to whether a question asked on an examination for discovery is a proper question. They are questions that can involve an issue as to the appropriateness and propriety of the pleadings, eg, "Is there a paragraph in the statement of claim that is not a proper paragraph or not a proper pleading?" so that someone moves to have it struck or a portion struck out; the same with a defence.
The motions often involve whether a document has to be produced, and none of the motions that a master hears involve a final determination of the case. So nothing that a master does can ever be a matter that causes a case to be dismissed. They're interlocutory orders, not final orders. Final orders must be determined by a judge. That is something that distinguishes the role of a master, and that's why I believe the appointment process that I'm talking about today is most appropriate for these kinds of appointments.
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In terms of complaints about a case management master, we believe that such complaints should be made to the Chief Justice. The Chief Justice, if the Chief Justice so desires, can refer the complaint to a panel of three for investigation and recommendation. In effect, what we're saying here is nothing new. What we're saying mirrors the process established for Small Claims Court deputy judges. The complaint process will be very similar to what we already have in terms of how we deal with deputy judges who preside in Small Claims Courts.
Again, I can tell you that that process has worked very well in the Small Claims Courts. Small Claims Court judges, deputy judges, have more contact with the public than almost any judicial officer in our civil justice system because Small Claims Courts involve cases where people appear without representation by counsel, but they appear on their own. If ever there was a place that was going to be fostering complaints against judges, it's a procedure where individuals would appear on their own without representation and as a result their contact with the judge would be closer than in almost any other instance.
As I've indicated in my remarks a moment ago on the appointment process, masters will have a very minimal contact with the public. So if it works for Small Claims Court judges by way of their complaints procedure, I can assure you that this will work in terms of the procedure dealing with masters and the complaint process.
The final matters I want to touch on involve the extension of the term of the Chief Judge of the Provincial Division from six years to eight years. It's very important that we recognize that what will soon be known as the Ontario Court of Justice, our provincial court, is a court that probably has more business in it than all of the other courts combined. It's our provincial criminal court, it's our provincial family court.
That court needs continuity, and my concern about a six-year term is that a six-year term does not provide continuity and it doesn't provide enough of a tenure for a Chief Judge to really be in a position to control the administration of what is a very large court, without question the largest court body in this province.
I want to make clear that I looked very hard at this issue because in the General Division, soon to be known as the Superior Court of Justice, the Chief Justice and the Associate Chief Justice are appointed to those positions for life. I think it would be wrong if the provincial court didn't receive by way of tenure for the Chief Judge a period of time that provides the Chief Judge with the opportunity to accomplish and preside over a court that has considerable administrative challenges, with the time to develop in the course of that individual's tenure an administrative and jurisprudential tenure to allow the court to advance. I think one of the very great difficulties with six years is that it didn't allow that. It didn't allow the Chief Judge to have that impact on the court in an administrative or jurisprudential way. That's the rationale for the change that is to be made in that area.
Those are the comments I wish to make. I have with me representatives from the ministry to deal with some of the technical issues you may wish to raise. Heather Cooper is here, as well as John Twohig, to answer those technical problems, and Debra Paulseth is here to talk about the courts administration aspect of the changes if there are any questions.
I'd invite your comments. Thank you.
The Chair: The subcommittee made no decision on the way to proceed with questions. I assume that an equal amount of time for each caucus would be satisfactory, and there is 15 minutes per caucus. Shall we start off, Mr Ramsay, with yourself?
Mr David Ramsay (Timiskaming): Attorney General, thank you for coming before us today. We appreciate your accessibility in this matter.
I want to first talk about the case management masters. My understanding is that there have been several pilot programs across the province, and my information is that there have been mixed results from that. I see you nodding your head in agreement, so give me the rationale, if you're not getting some improvements in this, why you would proceed to bring this in province-wide.
Hon Mr Harnick: As I indicated, one of the very difficult problems with case management and what distinguishes a case management program that can be successful against one that will not be successful is the ability to keep cases on a tight time frame. The case management projects that have had difficulty -- they've all had very beneficial impacts, but some have been better than others. What distinguishes the ones that have succeeded from the ones that haven't is the ability to keep cases on a time track.
The Civil Justice Review which my predecessor Mrs Boyd announced and worked on in conjunction with Chief Justice McMurtry is a review that is about to publish its final report. The recommendation of the Civil Justice Review is very clear that the way case management can succeed is by developing the team approach. What that means is that cases where a statement of claim is filed with the court will be assigned to a case management judge, and that case management judge will be the judge who sees that case through right from the time the statement of claim is filed to the time another judge takes that case and is the presiding judge at the trial.
The Civil Justice Review made it very clear that in order to maintain the workload and to maintain the ability to monitor those cases and keep them on the time track that's going to be prescribed by the rules, it depends on having the assistance of case management masters. So the cases will be assigned to a judge. That judge will monitor all of those cases. He will be the judge who often has to decide issues as the case goes along.
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That judge will be assisted by the case management master, who will do a lot of the administrative things. For example, if discoveries are not completed on time, that master is going to make sure that case ultimately gets back on track. If there are pre-trials coming up, that master will ensure that the pre-trial will go on the date scheduled and that the parties will be there and will be prepared. If there's a trial coming up, that case management master will ensure that everything is done before that trial occurs so that the parties don't arrive on the day the trial was supposed to proceed to say: "Well, we don't have that medical report. There's an evidentiary issue that we have to deal with. There's a witness who isn't available." The case management master will conceivably be in a position to ensure months before the trial that everything is done that should be done so that the case can proceed on the day it's called.
One of the very great problems you have, and I can't stress this enough, is that we are taking this system from a system that is driven on the basis of lawyers' timetables to a system that's driven on the basis of judges' and courts' timetables. That is really a 180-degree turn in the way civil cases have proceeded in the province. It will no longer be the norm that cases take five years to be completed. They will now be completed according to the timetable laid out by the rules of civil procedure as they relate to case management.
Mr Ramsay: Much of this debate centres around the timing of changing the court names. I can understand your desire to do that. I think the new names probably bring some clarity to the system in Ontario, but the criticism has been made as to the timing because of the cost.
I understand that the ministry is saying, "Well, we're going to phase in that cost by using up old stationery, using existing signs etc," and that's obviously very laudable. The problem, though, seems that if we're striving for clarity through the renaming of the courts, won't this muddy those clear waters you're striving for by this sort of phase-in that you're doing?
Hon Mr Harnick: Not at all. I say that because, as I have travelled around this province as a litigator and now as Attorney General, there is no confusion in any community that I have ever been to in either capacity as to where the courthouse is. I have never in my life heard any courthouse referred to as "the Ontario Court (General Division) courthouse." It is known as "the courthouse."
I suspect if you go up to Haileybury and you receive a paper that says there is a motion that's going to take place at 10 o'clock in the forenoon at the courthouse, and then the address of the courthouse is reproduced as it is in those forms, there is not one person who comes from the area around Haileybury who doesn't know where the courthouse is. I say that with respect to Haileybury, Gore Bay and Toronto.
Many of the courthouses are consolidated courthouses. Go to Ottawa and it says the "Courthouse." It doesn't say "The Ontario Court (General Division)," "The Provincial Court." There's a sign out front that says "Courthouse," just the way the courthouse on 361 University Avenue says "Courthouse." So we don't have any qualms whatsoever that there will be any confusion. There will not be one single penny paid to buy new signs on courthouses because every courthouse in this province is known as "the courthouse." We will not have any difficulty in that regard whatsoever.
Let me talk about probably the most complicated jurisdiction, and that's Metropolitan Toronto. Every court -- the North York court, the Scarborough court, the Etobicoke court, the Old City Hall court and 361 University Avenue -- there's not one of those courts that was changed to reflect Ontario Court (Provincial Division), Ontario Court (General Division) when Mr Scott made the changes earlier, and certainly everyone knows where the North York court is because on every document it says 1000 Finch Avenue, or whatever; I think it's 1000 Finch Avenue. Never have I had difficulty in any community I've been to finding the courthouse, and generally the sign out in front describes it as the courthouse.
Mr Ramsay: You're saying to us today that you don't anticipate any increased costs caused by the name change?
Hon Mr Harnick: There will be no increased costs because there's not going to be a sign that's changed, and there will be no confusion because no one needs any name on the building other than "courthouse." That has always been the way in Ontario. It's been the way since our first courts were built prior to Confederation.
Mrs Marion Boyd (London Centre): I think what you're saying, though, is not that people don't get confused when they're in a jurisdiction, for example, like Brampton, where they regularly go to one court location as opposed to another where consolidation hasn't happened. You're simply saying that they haven't read the address of the courthouse they're to go to, and that's the problem?
Hon Mr Harnick: What I'm saying is that what we are doing will not add to an already confusing situation because we happen to have more than one court building in a community. You bring up the example of Brampton or Peel, where we have courts on Hurontario Street, on Clarence Street, and what's the one --
Ms Heather Cooper: There's one on Hensall.
Hon Mr Harnick: Hensall Circle, and they're all different courts. Some of them are Small Claims Courts, some of them are Ontario Court (General Division), some of them are family courts. In Hamilton we have the Unified Family Court, we have the Provincial Court in a different building, we have the General Division in yet a different building, and every court document people get specifically says what the address is. What they will see out in front is what they see now, and that's a sign that says "Courthouse." In Hamilton, as a matter of fact, they don't even have a sign on the building where the Provincial Court is because it's in an office building several flights above street level. So they don't even have a sign on that one.
Mrs Boyd: On the issue of the stationery, which I think was the other issue that had been raised around cost, and that would involve forms as well as personal stationery for judges, you're simply saying that you have an agreement that people will finish out what they've got now, and when it's replaced, it will be a gradual replacement?
Hon Mr Harnick: Exactly.
Mrs Boyd: So the reality of the name change is really to meet the concerns that have been raised within the judicial community itself. The confusion is not public confusion; the confusion is among the courts across Canada.
Hon Mr Harnick: The judges in what is now described as the Ontario Court (General Division) have expressed to me on numerous occasions the fact that when they describe Ontario Court (General Division), there is often a feeling that they work in a post office, and judges are concerned about that perception of the description of the court they work in. It doesn't accord with the name of any other court in the country.
They have, from a jurisprudential point of view, a very difficult time when they write a judgement and it's published in the Ontario Reports having lawyers elsewhere understand when they want to cite an Ontario court case in a British Columbia court what is an Ontario Court (General Division). Why isn't it called the Superior Court of Justice, because that's what they're called in all the other provinces, save and except where they're called the Court of Queen's Bench?
Quite simply, I think the Superior Court of Justice also has the advantage of being a name that accords with the description of the high court as set out in the Criminal Code, so it's a much more appropriate name. I think as well that the Ontario Court of Justice reflects the court that is within the purview of the province of Ontario, so that these names are much more accurately descriptive and satisfying to the judges and to the public.
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Mrs Boyd: Do you say that in fact your plan is for the appointment process to be the same as justices of the peace and that that is the method by which you would get some input from the interested parties, including the public? I'm very curious as to why that isn't spelled out in the bill.
Hon Mr Harnick: I don't believe that it has to be spelled out in the bill. The difficulty with the appointment of the position of master is that it is a highly technical position and it's a position that I believe has to reflect the confidence of the bar. What I'd point out to you is the fact that we are not appointing criminal or family court judges this way. We are appointing an individual who does a highly technical job and I suppose a job that the public would have very little ability to understand, so I'm concerned that people who are appointed as masters have the technical ability to deal with the rules of civil procedure, which are complicated, which involve a huge amount of jurisprudence. Can I see your rules, John?
For the benefit of the committee, these are the 1996-97 Ontario rules of civil procedure. I can tell you that some years ago the rules were amended. They used to have some 650 rules. What they did some years ago is they narrowed it down to about 76 rules, but with subsections and everything else, there are probably well over 700 now.
This is not a simple position, but it's a position where someone has to have an incredible ability to understand a very intricate, very esoteric and, quite frankly, very unexciting aspect of the law but a very necessary aspect of the law, and it's certainly my intention, if the appointment process is set up the way we've indicated, to make sure that the appointment of these individuals will be with recommendations from the bar in particular and the judges, on the basis of people who possess the very intricate knowledge of this book.
I can tell you that it is not a parallel to talk about people who would be appointed to this job as compared with people who might be seeking a judicial appointment. Yes, there may be people who can aspire to both, but quite frankly, this is a very, very unique job. If you take a look at over the years the people who have been appointed to this job, they have been outstanding quite simply because they are a unique breed of individuals who have an affinity to understand the rules of civil procedure.
Mrs Boyd: So you're saying it wouldn't be like the justices of the peace; in fact there wouldn't be public membership on these committees?
Hon Mr Harnick: We will attempt and endeavour to ensure that there is public membership on these committees, but remember that, again, we're not talking about an appointment of an individual who has a large degree or component of public involvement in the execution of his or her duties, but we will endeavour to ensure that there is a public component, so for instance, if the Advocates' Society is going to review applications, we would ensure that the Advocates' Society has some public representation on their body that could review these kinds of appointments. We can do the same with the Canadian Bar Association and any other groups that might be interested in reviewing these appointments. But the most important aspect of choosing a master is that someone has to have an affinity for the job of dealing with the interpretation of very complicated rules.
Mrs Boyd: Now you've really confused me, because you said it was going to be the same as justices of the peace. In the case of justices of the peace, there are representatives of different lawyers' groups -- that's what the Advocates' Society is -- and members of the public. This sounds very different from saying you'd have it reviewed by the Advocates' Society and make sure they have public input. That's a very different issue.
Hon Mr Harnick: No, no, that's not what I'm saying. What I'm saying is that we would like to see the appointments reviewed by a group such as -- and I say this as an example -- the Advocates' Society, but we would want to see, as part of that committee review, some public involvement with the Advocates' Society to review that application. That's something we would want to see.
Mrs Boyd: This review would then come in front of this appointments committee that gets advertised and --
Hon Mr Harnick: If the Advocates' Society were to review a particular appointment, we would want a component involved with the Advocates' Society's committee that would reflect and include public involvement.
Mrs Boyd: I really suggest you retract that you're going to appoint these the way you do justices of the peace, because that's not the way justices of the peace are appointed.
Hon Mr Harnick: Justices of the peace are appointed as a result of a committee that's involved with the bench, the bar and the public sitting as a committee together.
Mrs Boyd: That's right.
Hon Mr Harnick: That's exactly what I'm saying. The Advocates' Society would have representation. There would be representation with the Advocates' Society of members of the public and somebody who would represent the Chief Justice who could then review the applications that would come in. It would be very, very similar to the way we appoint justices of the peace.
Ms Cooper: It will be a community process. When we're ready to appoint a master, for example for Windsor, you'd have a community process much like the JP process that would have bench and bar and ministry and public reps screening all of those applications and then interviewing and selecting from that list for recommendation to the chief and then through to the Attorney General.
Mrs Boyd: That sounds wonderful, except for justices of the peace it's in the Courts of Justice Act. What you're saying is, "Trust us; this is just going to happen." Is it not in the Courts of Justice Act?
Mr John Twohig: No, Mrs Boyd, I don't believe it's in the Courts of Justice Act.
The Chair: Excuse me, I don't want to interrupt, but could you identify yourself for the purposes of the record?
Mr Twohig: John Twohig from the Ministry of Attorney General. Mrs Boyd, I don't believe that's in the statute.
Mrs Boyd: I thought it was. I'm sorry. I beg your pardon.
Mr Twohig: No. So in that sense, it's similar to the justice of the peace process in that they're local committees and neither process would be in the statute, although eventually they may end up there.
Mrs Boyd: Yes, that's fine.
The second question I had for you on this kind of an issue is, obviously these folks, although they may not be seen by the public very much, have a great deal of power. Just the very first power of deciding what is a matter of dispute could be a fairly significant power, couldn't it?
Hon Mr Harnick: I don't think they decide what is a matter of dispute.
Mrs Boyd: They decide what is going to actually move forward into the adjudication process.
Hon Mr Harnick: No, I don't think they do at all. I think that what they do is they review pleadings to make sure that there are aspects of a pleading that aren't inflammatory, frivolous, vexatious; that when you plead in a case, you have to plead facts, not evidence, so that they may say that's evidence, it's not fact. Because the pleadings really set the goalposts of a lawsuit.
I also tell you, and it's important to note, that any decision made by a master on an interlocutory motion is appealable, so that you will appeal any decision to the weekly court. It's not in the run-of-the-mill case. That is not an expensive or onerous proposition; it's really a hearing de novo of an interlocutory matter before a single judge of what is now the Ontario Court (General Division).
Mrs Boyd: But you foresee these people doing this process in family law as well, which is a slightly different matter.
Hon Mr Harnick: It could evolve to that, but initially case management will not involve family law cases. I think to put in perspective the role of the master is to take a look at the masters that we now have and the role they now play and the function that they now play and to say, "How are these masters going to be different?" They're going to have that same role as the existing masters, but in addition they will also have the administrative role that case management would provide. So that is the extra dimension, and that extra dimension involves almost totally the keeping of cases on the track that involves pushing lawyers to make sure that they're maintaining the time limits that are set out.
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Mrs Boyd: If you were to expand case management masters into the family law area, my reading of the act is that you would not need another change to the act, that in fact that's just a process of change that you would institute administratively. So this does in fact give power to have case management masters in any aspect of the civil justice system.
Hon Mr Harnick: What I say to you is yes, that's so. What I also say is that masters have for a long time been involved in family law. The master's role in family law has become very much diminished as a result of the expansion of the Unified Family Court, so I think the development of that court will have a great deal to say about the direction we move in.
It's certainly our hope, and you're well aware of this, that the Unified Family Court expand and develop its own process to deal with matrimonial and family cases and that that court really be the specialized arbiter of those issues. You are right that it can impact and there can be involvement of masters, but that is nothing new.
Mrs Boyd: In the Civil Justice Review, in addition to what you would now call case management masters and what they just called masters, there was another part to this team. There was the case management judge and then there was the case management master and then there's the case management administrator.
I'd be really interested because one of the issues I raised in talking to the bill was how you envisage the very necessary administrative supports to both the case management judge and to the case management master to ensure that all this happens, and the position of case management administrator -- I believe that was the terminology used in the Civil Justice Review -- was there.
I'm curious as to whether you envision a bit of a shift within the administrative structures so that you have an equally capable administrative person who can give the kind of support to the judge and the case master and this kind of direction, quite frankly, to the rest of the court administration staff to ensure that this all works in one sort of seamless flow.
Hon Mr Harnick: I'm going to let Debra deal directly with that.
Mrs Boyd: She's fairly familiar with case management review.
Ms Debra Paulseth: Yes. That's absolutely correct, Mrs Boyd. We have looked at reallocating our current trial coordinators and we will have a case management coordinator attached to the judicial team. As well, this case management master would share some administrative support because -- I know you're well aware -- we're trying to look at allocating all of our resources from administrative resources to our most expensive and rare resources, the judicial resources, to where they're really needed. So we're using the administrative wherever possible to make very uncomplicated decisions, matters on consent that could go before an administrative person, to these more technical matters that the master will deal with and then our judges in the trial situation.
If I could just add with respect to the family law matter as well, the authority for these case management masters will be set out in more detail in these one set of case management rules which we are dealing with as well that will be the uniform set for the province.
As I know that you know, Mrs Boyd, there is also a family rules committee that is looking at one set of family court rules for the province, and there will then be an effort to go with the one set of family case management rules. There is not quite yet consensus as to the role of the master in the family area. It has been different in different parts of the province and has played a different role. I think we're also aware of the recommendations in the first report of the review that said interim matters in what will be the Superior Court are so important in family law that the recommendation there was that masters not deal with those interim matters of custody and access and children's issues. So that is not touched by any of the proposals today.
Mrs Boyd: The reason I'm asking is that the section of the bill that refers to the family rules committee clearly anticipates that you would want to have representatives of case management masters on the family rules committee. It's important to show that you are enabling yourself to take steps in future that you're not taking yet.
I'm sorry my colleague from Downsview isn't here because she was quite strongly critical that you weren't accomplishing very much in this act, and one the reasons I really wanted you to come and appear is that in fact you're laying the groundwork for a lot of the changes that need to happen, and it's important for people to understand that, yes, this first step may not accomplish everything, every miracle that people want, immediately, but in the long run, you're setting out a process by which you can accomplish that.
It's a plan that was done in conjunction with the public and the bar and the judiciary and courts administration. It's a really huge step, and it just seems to me that it's important for people to see that that's an integrated process and that what we see before us in the act may not look like much, but in fact may be one of the more substantial changes we've seen in the courts.
Hon Mr Harnick: I think as well when the province-wide rules become available, the context of this act becomes much clearer, and also -- I'm entitled to get political here -- there are some people who never want to understand or will never want to profess to understand what it is we're doing here.
Mrs Boyd: One of the things that the civil justice committee obviously also recommended was that you need the kind of technical infrastructure that's going to make this possible, and when my friend from Timiskaming was talking about forms, ideally, in the long run, you want an essentially formless system. You basically want this to be a technologically driven system.
One of the real problems I'm sure you face is how to achieve that. However many of these changes you make, without those kinds of changes, we're going to continue to see some of the criticisms that continue to rage, somewhat publicly, about the actual process and how it affects individual litigants. Can you tell us a little bit about, given the very tough financial position that the government has taken, how you plan to provide that technical infrastructure?
Hon Mr Harnick: Certainly. I think you're aware of the fact that we are going to begin this fall in Toronto an electronic filing project which will mean that people can now file their statement of claim electronically, and we will log that in our information system. The other aspect will be that parties, once a defence is also filed, will exchange their own documents, will keep their own documents, and when they come to court they will prepare a record that will be available for the judge that the judge will give back to them once the motion or the trial is completed.
The court will no longer become the repository of court documents that no one ever reads. What ends up happening in the court today is that we open a file, we keep the file in the clerk's office, it goes back and forth to the court and to the clerk's office every time there's a motion or we have a record prepared, and it's filed for the purpose of the motion. It goes upstairs and ultimately finds its way back into the court file.
Mrs Boyd: We hope.
Hon Mr Harnick: We hope. What we've found out is that we now have about $9 million worth of documents we store in a warehouse every year that no one ever reads, no one ever looks at and the taxpayers continue to pay for it. The problem with the system is that it is totally paper driven. We have thousands of people whose job it is to fill these files up with paper, carry them around and then deposit them back on the shelf. The justice system has suffered a great deal because of this procedure, and we are determined that when case management is up and running it will be as paperless a system as possible.
What we're looking at is partnering opportunities with the private sector, not unlike what they've done in New Brunswick, where they've hired a consulting conglomerate to deal with how to convert their system from a paper-driven to an electronic system. We want to do that in conjunction, as they did in New Brunswick, with the private sector. We believe the private sector can find huge savings for the justice system and be paid out of those savings so that we can afford modern technology, which the ministry has never had, because it's imperative that we have this technology and the right information systems to deal with proper implementation of case management.
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The other aspect to it is that as we look at that technology, it would be shortsighted to look at technology only in terms of this one aspect of the system that we run. We want to, in the course of developing the right technology, have a technology information system that's broad enough to include other things that the court system is involved with, and that involves the criminal area, so we're looking for the kind of information system that can be broader than just looking at case management. You're right. It's a very important component of the success of case management.
The Chair: Thank you, Mrs Boyd. We have approximately nine minutes left. I think Mr Tilson had a question.
Mr David Tilson (Dufferin-Peel): We seem to have lost about --
The Chair: You can stretch it if you wish, Mr Tilson.
Mr Tilson: That's good, Mr Chairman.
I'd like to ask a question with respect to section 2 of the bill, which has to do with the amendment to the Charities Accounting Act, and then I'd like to ask a couple of questions on case management.
Section 2 amends the Charities Accounting Act to allow the Attorney General to make recommendations on the recommendations of the public guardian and trustee. One of the questions that has been asked from time to time is that our government, the Conservative government, has indicated it will be attempting to reduce red tape everywhere, throughout all our systems, and certainly that would not exclude courts, so the question being asked is that we're philosophically trying to remove red tape from the system and yet here we are in this bill introducing a second part of it that in fact is going to be making regulations.
Hon Mr Harnick: In fact we're getting away from the regulations having to be made through the Lieutenant Governor in Council and we're substituting that the Attorney General can make the regulations on the advice of the public guardian and trustee, so we're avoiding the Lieutenant Governor's regulation-making power, which has been the traditional manner of dealing with these issues.
As well, I think what we have really done is taken a look at the ability to take non-contentious matters and have them satisfied without the need to go to court when it's really not necessary on non-contentious matters, thus saving charities a huge amount of administrative and legal costs. I think when you take a look at breaking down the need to have regulations that force people to go to court to solve very simple consent matters and involve the consent of the public guardian and trustee at the same time, what we're doing is creating a huge bureaucracy and we're trying to break that down. I think this is very consistent with what the government's approach has been in terms of cutting red tape.
Mr Tilson: And saving time in court, I suppose?
Hon Mr Harnick: Huge court time.
Mr Tilson: With respect to case management, we have had masters in the past in this province -- I think for 100 years we had masters -- my question has to do with what other jurisdictions the Attorney General's office has looked at with respect to introducing case management into Ontario.
Hon Mr Harnick: It's very hard to get a comparator for Ontario in terms of other jurisdictions in Canada, because they have not proceeded on the case management project to the degree that Ontario is going to proceed. Certainly the English experience where they are moving to case management and the American experience have indicated that you must have a judicial support officer to make this workable.
I think it bears noting, as we implement case management, the savings for litigants who are going to get their cases settled at a much earlier stage in litigation than they ever did before. Quite frankly, 95% of civil cases settle, but they settle after five years or when they're at the courtroom door. Now what you're doing is speeding up that process, and there has to be a tremendous saving to litigants in time, convenience and money. That's certainly what's motivating to at least an equivalent extent why we're moving in this direction.
Mr Tilson: You've mentioned the issue of Ottawa. Can you tell us when Ottawa will be ready to proceed with case management?
Hon Mr Harnick: Ottawa is going to 100% case management on January 1, 1997. They have effectively cleared the backlog that existed in their court system.
I met with Senior Regional Justice Chadwick on Friday, and he is very anxious to take the next step. His staff are all being trained in the software package that has been developed for case management in Ottawa, which I think is probably the state-of-the-art package, and I can tell you he's anxious to get the case management project to be a permanent part of the process in Ottawa and wants to have the case management supplemented with a mediation package, which we are also looking at, which will again enhance the opportunity for litigants to have their cases resolved early in the process. So that's going to become part of the case management that's developing.
Mr Tilson: One final question, Mr Chairman, and then I think Mr Klees has a question. I can remember when Mr Scott introduced this process -- I can't remember when it was; obviously it was the late 1980s -- and it was reasonably controversial, particularly among members of the bar. What reaction have you had in the consultation you and your staff have had with the judiciary and members of the bar with respect to the change of the court names?
Hon Mr Harnick: Certainly the members of the court have been very supportive, the public has been supportive and the profession has been very supportive of it.
There were reports in the papers that we were going to be spending $2 million on signage, and the reporter went out to a sign company and got an estimate for $800,000 in signage. Again, I want to emphasize that there will not be a penny spent on signage. Everyone will be able to find the courthouse in Kitchener, because it's already referred to as "the courthouse." That's what the sign says. It was never changed when it became the Ontario Court (General Division), so I have no doubt that will be accomplished and it will be accomplished at zero cost to the public.
Mr Klees: Minister, it seems to me that much of the logjam in the court system is by design. What I mean by that is you referred to the rules book, and I think we've probably all had experience with the legal system and the number of deferrals that are available within the system simply by virtue of the detailed rules that are there, and the more detailed rules you have, it seems, the more means and methodologies there are to delay a case.
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Really my question is twofold. First of all, if you're going to appoint case management masters to move things along, what authority do you envision conferring on these case managers to be able to cut through? What consequences do you envision building into the process that ensure that those vexatious, intentional deferrals on the part of the legal system, using the existing rules that are in place to legitimatize that deferral -- what do you envision there to give efficacy to the case management master? Second, is it your intention to reduce the number of rules to streamline that component of the justice system itself so that we can get to the heart of what the problem is?
Hon Mr Harnick: Certainly. Let me take the second part first. The standard rules that are going to be developed for case management, and I'm referring to the procedural rules, will lay out very specifically the time limits and the procedures that will go with case management. They will in effect, I believe, streamline the civil litigation process to a very large degree.
Don't be misled that this rule book is what bogs down the process, because it isn't. What bogs down the process is that lawyers have traditionally, and I don't say this in any right or wrong sense, dictated the speed with which cases proceed. Lawyers have always had the authority to waive time limits as between them. Everyone who works as a lawyer in the justice system has known, for instance, that a statement of claim comes in. You call up the lawyer who issued the claim and you say, "I'm going to need a month to get my statement of defence done." The answer generally is, "No problem." A confirming letter goes out saying, "I'll have my statement of defence to you in a month," and in a month the statement of defence comes. Sometimes there will be another phone call: "I just haven't gotten to it. Can you give me a couple of more weeks?" "Yeah, no problem." The next thing you know, one month has slipped to two or three months. Eventually the defence arrives, because if you move to strike it out, all that's going to happen is, because it hasn't been struck out on the merits, a judge will restore it anyway.
The next step in the proceedings is examinations for discovery. You call up the other lawyer and you say, "I want to arrange discoveries." The lawyer says: "Well, I'm not available. It's now October. The earliest time I can do discoveries is in June or July. I'm booked every day until then." That's the usual thing.
Counsel reluctantly says: "Okay, fine. We'll arrange it for June or July." Invariably something will happen that says, "Well, you know, my client can't make it then. I can't be prepared for then. I'm involved in a trial," or whatever. So it gets delayed for another three or four or five months. Then once you finally get to discoveries, you end up having some differences of opinion perhaps on production of documents or questions that are asked. There are some motions that ensue. There are transcripts that have to be ordered. There's another period of delay. Then you may have to go back and complete the discoveries, and so on and so on and so on.
It's not too hard to see that before long, a case that should have been done in a year or a year and a half is stretching into three and four years, and then finally you set it down for trial and you wait on the trial list for another 18 months till you get a date from the court.
What now is going to happen is that the rules will set out very strict time guidelines. They will say the defence has to be delivered within such-and-such and the examinations for discovery have to be completed within such-and-such; otherwise the opposite party can move to dismiss the action or the case management master can contact the parties, have the parties attend before him, find out why the delay is going on, impose the sanctions that need to be imposed to keep the case on the track that has to be kept so that cases can get through the court system in a year and a half instead of five years. The faster you get to the trial date, the more imminent it is that the case is going to be settled. But cases need an imminent trial date to settle them, and if the imminent trial date is five years down the road, the case isn't going to settle till five years down the road. If it's 18 months down the road, that case will be settled before the 18 months is reached, if it's a settleable case. That's why it's so important to implement these procedures.
The Chair: I thank the Attorney General for attending today, for his presentation and answering the questions. Thank you very much.
Hon Mr Harnick: Thank you very much.
The Chair: I know you're anxious to get back to your House duties.
Hon Mr Harnick: I'm on my way.
The Chair: It is now in order for the committee to proceed to clause-by-clause. The first section we are dealing with is what I call section 1 of the act and everyone else seems to call subsection (1). However, we do have a government motion, Mr Tilson, dealing with section 1 of the bill.
Mr Tilson: Mr Chairman, if I could read the motion, it has to do with the amendment to the Courts of Justice Act.
I move that section 1 of the bill be amended by adding the following subsection:
"(10.1) Subsections 67(4) and (5) of the act are repealed and the following substituted:
"Tenure of office
"(4) Each of the members of the family rules committee appointed under clauses (2)(d), (e), (f), (g), (i), (j), (k), (l), (m) and (n) shall hold office for a period of three years and is eligible for reappointment.
"Vacancies
"(5) Where a vacancy occurs among the members appointed under clause (2)(d), (e), (f), (g), (i), (j), (k), (l), (m) or (n), a new member similarly qualified may be appointed for the remainder of the unexpired term."
That's the amendment. I don't know whether members of the committee wish me to put forward a rationale for that.
Mrs Boyd: Yes, we do.
The Chair: Yes, please do.
Mr Tilson: That's fine.
Mrs Boyd: I know it's a terrible fault, wanting to know why we're doing it.
Mr Tilson: No, no. I just don't want to start on something if you have no problem with it.
The Chair: For the sake of brevity, if a matter is non-contentious, we'll proceed without comment. But where comment is requested, that's quite in order.
Mr Tilson: Okay. This motion corrects an error in the legislative drafting in subsections 67(4) and 67(5). In the 1994 revision of the act, the alphabetic clauses in subsection 67(2) were amended, but the corresponding changes were not made in subsections 67(4) and (5).
Subsection 67(2) sets out the membership of the family rules committee. Some members are there by virtue of their office and other members are appointed. Subsection 67(4) deals with the term of office of three years and subsection 67(5) deals with vacancies which occur during the term of appointment. Unfortunately, subsections 67(4) and (5) now incorrectly refer to members who hold a position on the committee by virtue of their office instead of to members who are there by virtue of appointment.
In other words, Mrs Boyd, this is a housekeeping amendment that corrects minor errors of the previous legislation.
Mrs Boyd: So it's not changing the length of the appointment and it's not changing the manner of the appointment.
Mr Tilson: No.
Mrs Boyd: It's simply clarifying that for these new members of the family rules committee, they follow the same rules as the other appointees.
Mr Tilson: When we get to the final report, we'll revisit the issue of the public appointments. At this stage we're not doing that. It's strictly housekeeping interests.
The Chair: Is there any further comment or discussion in regard to the amendment made by Mr Tilson? If not, I'll call the question. Shall the amendment carry? All those in favour? The amendment carries.
We are now proceeding to Mrs Boyd's first proposed amendment.
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Mrs Boyd: Subsection 1(11) of the bill, subsection 75(4) of the Courts of Justice Act:
I move that subsection 1(11) of the bill be struck out.
The concern here is that subsection (11) repeals the requirement in the Courts of Justice Act for the courts administration committees, which have public membership, membership from the bar, courts administration and the judiciary, to meet at least four times a year.
The reason that was put in the Courts of Justice Act in the first place was that our experience with these committees was that they didn't meet unless they were required to meet. We found that there were areas of the province where there wasn't enthusiastic judicial support for the regional courts administration committees, and therefore they were not called together unless they were required to be called together.
The issue here is that with the streamlining of these processes and the assurance that in fact there is buy-in by all those who are using the courts for the processes that are set up within the courts to make the courts more efficient, in fact it won't happen, because you'll find different groups not buying into that kind of process. It's important on these committees that they meet and that they discuss the problems that are being experienced in those particular areas on a regular basis so that problems so identified can go ahead.
The minister and the parliamentary assistant had said that this was to make things more flexible. Quite frankly, flexibility in this issue means that it will be possible for these committees not to meet and not to have the input. I think that will, in the long run, be a negative effect for the kinds of efforts that the Attorney General outlined in terms of trying to reform the procedures within the courts.
Mr Tilson: I have no problem debating this point, although I believe the amendment is out of order in that what you should be doing is voting whether you approve or do not approve this particular section. But I don't mind commenting on your observations.
The regional courts management advisory committee was first included in the act, as you know, in September 1990. They are composed of judges, crown attorneys, court administrators, lawyers, members of the public. They are advisory committees which are set up to discuss issues of court administration. Certainly they've played a role in assisting with court administration.
The requirement that they meet four times a year, it is felt, sometimes results in unnecessary meeting expenses. We believe the removal of the mandatory meeting four times a year will allow more flexibility with allowing the committees to decide when meetings are required.
I emphasize that there's no attempt with what this bill is doing to eliminate committees. They're still part of the Courts of Justice Act. That is, quite frankly, why our caucus will not be supporting that particular amendment, which I submit, Mr Chairman, is out of order in the first place, but I don't mind debating it with Mrs Boyd.
Mrs Boyd: Mr Chair, I wonder if you'd rule as to whether the amendment is out of order.
The Chair: He hasn't asked me to rule on it, as I understand.
Mrs Boyd: I'm asking you to rule on it.
The Chair: Okay, if you ask me to rule on it, the motion to amend is in order in that it may negate a subsection but it does not negate the whole section. So it is in order.
Mrs Boyd: Thank you, Mr Chair. Then I wonder if I can add to the discussion.
What the Attorney General is undertaking in terms of reform of the court system is very substantial, regardless of what the loyal opposition has to say. It is going to be important for those changes to be monitored on a regional level in a very clear way over the next period of time.
One of the reasons we made it mandatory was our experience between 1990 and 1994, when the new Courts of Justice Act required mandatory meetings. Where we had in particular regional justices, but some of the other parties as well, who were enthusiastic supporters of court reform, those committees met. Where we had regional senior justices who were not enthusiastic about court reform, those committees were not meeting.
Therefore we were finding some of the regional difficulties that were happening, and we've talked a lot about Ottawa today. There are other regions where there were problems that were very substantial. One of the issues we discovered in looking at how to turn that around, in looking at these court backlogs -- the kind of advice we got as a result of the Civil Justice Review was that it is very important to have these committees, to see them as a required part of the process if you're really going to have all parties working together.
I would like to think that they would meet if it weren't required that they meet, but that the experience was that they didn't. The problems were the greatest in the areas where these committees were not meeting and where that buy-in was not there into the kind of change the Ministry of the Attorney General was trying to accomplish.
I would say to you that there are still people within the system who see any kind of formal format in which all parties get together, particularly with members of the public, and discuss these issues as not being the way things have always been done. Where those parties are in a situation where they believe that these kinds of meetings are not productive for them, they may not take the action that's necessary to call these committees together even when it's very necessary that they be called together.
The provision was not put in the 1994 Courts of Justice Act with any lack of foresight. I'm not in any way attributing to the current minister an intention not to have the committees meeting. I am saying to you very urgently that there are others who have that intention, who have never believed it is important to get all the players together with members of the public and who resist that. If you take this out you will find what we experienced as a result of the former bill that was put forward by the Liberals and put into effect in September 1990 and when we put this in.
If you'd look at the really magnificent turnarounds that we have seen in some of those areas, it is important to understand that those committees played a role in that. If they are not called together by those who are chairs of them, it won't happen. The whole format is based on revolving chairs between the various parties that are involved. So the reality is that if there's resistance by one group of parties to meeting, because it requires the agreement of all, they don't meet.
Mr Klees: My concern is that we not have process drive what's happening here. If there isn't a need for a committee to meet four times a year, why would we then insist by statute that a committee meet four times a year if there isn't anything to talk about? I understand the point you're making, but what I'd caution is that we not impose a process here that might be redundant or unnecessary. Maybe there is some compromise we can find on that point, but I think the four times a year may well lock us into something that's not needed.
The Chair: Mr Tilson has the floor once he gets settled.
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Mr Tilson: We've listened to some of the comments of Mrs Boyd. I ask that this matter be set down and we'll bring it back.
The Chair: Do we have unanimous consent that the matter be set down? It is so set down.
Before proceeding, I should say that I want to introduce members of the committee to Mr Doug Arnott, who is our new clerk. There has been a rotation. Donna Bryce was suitably thanked by the members of the subcommittee at her last meeting of this committee, and Mr Arnott is an experienced clerk and we look forward to working with him.
Our next motion is by Ms Boyd.
Mrs Boyd: I move that section 86.1 of the Courts of Justice Act, as set out in subsection 1(17) of the bill, be amended by adding the following subsections:
"Advisory committee
"(1.1) The Judicial Appointments Advisory Committee established under section 43 shall make recommendations to the Attorney General for the appointment under subsection (1) of case management masters and, for that purpose, subsections 43(9), (11) and (12) apply, with necessary modifications.
"Membership of committee
"(1.2) In matters relating to the appointment of case management masters, the two provincial judges who are members of the Judicial Appointments Advisory Committee shall be replaced by two judges of the Ontario Court (General Division), appointed by the Chief Justice of the Ontario Court, and subsections 43(4) and (5) apply with necessary modifications to those appointments."
This issue is around the necessity for public input, and for input from the bar and the judiciary, into the appointments of the case management masters. The minister assures us that this will happen outside of the act, and I'm much comforted by that, but I think the reality of our situation is that we have spent many years now, under three different governments, in the province trying to find a way to take the tarnish of patronage out of the picture when it comes to judicial appointments of any sort. I think we know, and we certainly know from the Civil Justice Review, that the public out there does not have the confidence in our judicial system that is necessary if we are going to have a public that really believes it is seeing justice done in the province.
I personally think that's a great mistake on the part of some people who tend to have that impression of the judiciary. That's not been my experience of the judiciary. I think that since the issue of Appointments Advisory Committee that was set up by Mr Ian Scott, the previous Attorney General in the mid-1980s, we have seen great rigour in terms of the examination of people who come forward for judicial appointments. It is not a closed-door kind of situation. It is based on merit judged by an Appointments Advisory Committee that includes judges, members of the bar and members of the public who work very hard and spend a great deal of time going through the résumés and references of people who have applied for those positions.
It seems to me that process and the process now in place for justices of the peace is a very important part of the kind of change we want to see in terms of those very important public processes. It supports judges in their work if the public can see they are there because of merit and not because they happen to know someone or belong to whatever party was in power at the time they were appointed.
Everyone is not equally comfortable with the appointments advisory process. The federal Liberal government looked at our process and rejected it quite openly because it did not allow them to appoint to federal judgeships the people they wanted to appoint.
That has been the history of the appointment of judges throughout time, and I think that big steps were taken in Ontario. We are studied worldwide for our Judicial Appointments Advisory Committee. People have come to visit us from all over the world to look at how that process works and what kinds of qualifications are being asked for.
The reality is that if someone is a case management master working with judges, working with lawyers, making quasi-judicial decisions over a period of seven-plus years, however many three-year appointments they get, they will naturally be considered to be more qualified than anyone else for the position of provincial judge because they've already been doing some of that work.
It seems to me it's really important that the initial process of choosing those people be clearly based on merit, clearly based on what we expect of these people and how they will be looked at in terms of that process of reappointment and the process of discipline.
The process of discipline is looked at here to some extent for case management masters, and that's good, although you will see we are proposing that there be a little bit of a change in that. But to leave the appointments advisory process for case management masters out of this act I think does a disservice to the task the minister is trying to accomplish here. I think it will not make it easier for case management masters to be accepted by the public at large, and I would suggest perhaps even by the bar and judiciary, and I anticipate that there would be some difficulties with people accepting this new system until they really understood it to be in the best interests.
Our position would be, because these are judicial appointments in a very real sense, that there needs to be some process. The minister has told us today that there will be a process and that the process will be similar to the justice of the peace committee. It may well be that members of the committee are satisfied with that.
I would like to see it enshrined under the act because the temptation to create a patronage pool is there for all of us. This is not a reflection on any one party. It has been the history of these kinds of appointments in the past in this province and, as is alleged, certainly presently in many other jurisdictions.
I say it would add to the repute of what the minister is trying to accomplish if this were part of the bill, as opposed to something that was set by order in council later. In particular the way these appointments are made needs to be laid out in a very clear way, and the minister needs to be held to that in a very real way if this new position is to gain the kind of confidence it needs to accomplish the kind of change in the system it's going to have.
Mr Tilson: Mrs Boyd and Mr Harnick had some debate when Mr Harnick made his presentation to the committee. I won't repeat all of what he said but I will comment on some things. He compared the provincial judges in Ontario, who are appointed for life and have complete security and tenure and compensation -- the case management masters are quite different. They are appointed for a term of seven years, which can be renewed for a further three years.
The purpose of case managers is to make the system run more smoothly. As Mr Harnick commented, it will be very rare that the masters will have anything to do with the public. They'll be mainly dealing with lawyers. In fact, instead of the lawyers controlling the agenda, it will be the judicial system. Really, when you look at what the masters are doing, they're doing a rather different role than what the judges are doing.
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To repeat what Mr Harnick said and why our caucus is opposed to your submissions -- and I must say, if I could interrupt, we appreciate your experience as a former Attorney General, coming to this committee and offering your insight, having gone through an experience in the previous government, but with respect to this particular issue, we do not support what you're saying, for the reasons that Mr Harnick said. Further, it's a completely different court from the court where provincial judges sit.
Mrs Boyd: Mr Tilson is quite right, it is for seven years, but reappointment thereafter is at the behest of the Chief Justice. Unless the person is really awful at their job -- in which case I would have thought, given your proposal around discipline, that the Chief Justice would have brought the disciplinary process into play -- these people are essentially being appointed for life. The reality here is they are being appointed for life: Seven years on a political appointment, with the reappointments to be done by the Chief Justice. While the Chief Justice obviously would be looking at performance, I suggest that unless there have been a number of disciplinary items, it would be very unusual for a Chief Justice to not reappoint someone who was doing a decent job. The reality is we are talking about life. We are talking about somebody having a good deal of influence over how our justice system works for a very considerable period of time.
It seems to me that it's in the best interests of all of us to be sure that we are hiring these people based on merit, not based simply on who they know; that we do not have a whole class of people who in other times might have hoped that their political friends, no matter what party they are -- and I'm being very clear about that -- no matter what party they are, they no longer have access, because of public appointments processes, to provincial judgeships on that basis or to justices of the peace on that basis. This could be seen as another pool.
I would be much more comfortable if the Attorney General were willing to put into the act the process that he has suggested. I think it's a good process. I think it would allay my fears absolutely. But because it's not in the act, it is within your power as a government, within any other subsequent government's power, to simply appoint these people through patronage, and that is not appropriate.
Mr Tilson: I understand what you're trying to say, that you want this enshrined in the act. I can only emphasize that what is currently enshrined in the act for judges, we believe that because of the nature of what the master is doing -- they are, generally speaking, administrative functions. We are talking about a completely different -- I was going to use the word "animal" -- a completely different institution.
As well, which again doesn't answer your concern of enshrining it in the act, Mr Harnick today made a comment of advertising and receiving counsel from different groups and then finally receiving counsel from a local committee. I understand your saying: "Yes, thank you very much. That's not good enough. I still want to enshrine it in the act." I guess at that point I can only conclude, without repeating what I've already said, that we believe that the type of work the master is going to be doing is quite different from what a judge is doing. The judge is making judicial decisions; the case master is making administrative, technical-type decisions.
The Chair: Is there any further comment before I put the question? Shall the amendment proposed by Ms Boyd carry?
Mrs Boyd: Recorded vote, please.
Ayes
Boyd, Ramsay.
NAYS
Doyle, Hudak, Ron Johnson, Klees, Leadston, Parker, Tilson.
The Chair: The amendment is lost.
We are proceeding to the next proposed amendment of subsection 1(17) of the bill. Ms Boyd.
Mrs Boyd: I move that subsection 86.1(9) of the Courts of Justice Act, as set out in subsection 1(17) of the bill, be struck out and the following substituted:
"Standards of conduct
"(9) The Chief Justice, with the approval of the Judicial Council, may establish standards of conduct for case management masters."
The issue here of course is how we are going to be sure that case management masters, who clearly are going to have a very important role to play, are held to a code of conduct that is a judicial code of conduct. These people may be different from judges in some ways, but many of the powers they are given under section 86 of this bill are judicial in nature. They are safe from liability, as are judges, specifically set out in this bill, and so the code of conduct is extraordinarily important.
The Judicial Council is made up of members of the judiciary, all levels of the judiciary, and the bar and the public, and it seems to me that it is appropriate for the Chief Justice to have the approval of the Judicial Council to establish these codes of conduct so that there is buy-in from all those people around those codes of conduct, so that they own it, so that when they complain about the behaviour or the conduct of a case management master -- and I can assure you many will. When the case management master has to do exactly what has been described here to keep these cases on track, despite what lawyers want, that is going to create a lot of problems. It seems to me that having the code of conduct established by the Chief Justice but approved by the Judicial Council would give them a greater level of authority to actually accomplish what they want to accomplish.
I think Mr Klees's question earlier, how are they going to actually have the authority to do this -- or somebody asked it earlier; I thought it was you -- is a very important one. One of the real issues here is making sure that their status and the confidence that all of these groups have in them and the confidence that they have in the conduct of their business is there so that they will have that kind of authority and will be able to do the very delicate job that they've been assigned.
I don't understand why it would be any different than it is in the Courts of Justice Act for provincial judges. Because that adds authority to their code of conduct, it seems to me it would be appropriate for it to be here.
Mr Tilson: I have the Attorney General's Rules of Practice before me, and I'm referring particularly to section 49 of the Courts of Justice Act, which deals with the Judicial Council. I presume you're familiar with that, Mrs Boyd. It lists off the various people who are involved in the Judicial Council. There's the Chief Justice of Ontario, who is Mr McMurtry; the Chief Judge of the Provincial Division; a regional senior judge of the Provincial Division; two judges of the Provincial Division; the treasurer of the Law Society of Upper Canada; a lawyer who's not a bencher of the Law Society of Upper Canada; four persons who are neither judges nor lawyers, appointed by the Lieutenant Governor in Council on the Attorney General's recommendation. None of these people has anything to do with the General Division.
Currently the Judicial Council deals with complaints about the conduct of Provincial Division judges, and section 49 outlines what it's composed of. Currently this council has no role whatsoever to play in cases which are heard by the current General Division, which is the new Superior Court of Justice, so we believe it would be completely inappropriate to have a court which has no role or oversight for case management masters to approve standards developed by the Chief Justice of the General Division.
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The comments I would be making in addition to that would be similar to the comments I made with respect to your previous amendment. In other words, this is a completely different institution and it has absolutely nothing to do with the General Division.
Mrs Boyd: What you say is only true to some extent. The cases that may end up in General Division, depending on the way in which -- certainly family cases, and this anticipates family cases being looked after by case management masters. Family cases deal in provincial court and family cases are clearly anticipated by you to be added to the responsibilities of these case management masters; otherwise you wouldn't be adding them to the family rules committee. So the reality is that that may be true for civil actions that are only dealt with in the General Division, but it certainly isn't true for family matters.
I share the Attorney General's wish that the Unified Family Court will become the reality across the province. It's not the case now and it will be a very long time before we can be sure that the federal government will appoint enough section 96 judges to have that happen. The reality is, in the meantime, I do not believe the minister is going to be able to wait to have case management masters involved in family law matters. Given the experiments that have happened at 111 Jarvis and the necessity for case management within the family court division, I think that is very important. It's nowhere more important around codes of conduct than it is in terms of family law, because all of us as MPPs know that when we are getting complaints about what is happening in the courts, the vast majority of those complaints are coming to us as a result of the problems in family law area.
Mr Tilson: I can only comment on that that one of the staff, Debra Paulseth, who I believe you know, made comments this afternoon that there were no plans to move the case management matters into the family law area. I can only repeat that these types of cases have nothing to do with the General Division. I know what you're saying, if you start getting into family law, but that statement has been made and I believe at this particular point in time that has to be relied on.
Mrs Boyd: With respect, I think if you look at Hansard, you will see that there was a clear admission that this opens the gates that no one has to come back to do anything in the law to change the fact that case management masters would be looking after family law. There's absolutely nothing required, and in fact you clearly anticipate that it will.
Mr Tilson: No, I don't believe that was made --
Mrs Boyd: The family rules committee changes clearly put you in a position where you are enabling case management masters to work with the family rules committee, so you do clearly anticipate this at some point.
Mr Tilson: There's been no agreement on rules on that particular point. I can only repeat that at this stage it's speculation by Mrs Boyd, and at this particular point we say that we're talking about a completely different institution.
Mrs Boyd: Then why did we just pass amendments to put case management masters on the family rules committee? They have nothing to do with family rules, if that's what you're doing, so why did you need that section and why did you make changes to it?
Mr Tilson: The motion didn't deal with case management masters.
Mrs Boyd: Subsection (10.1) does not deal with --
Mr Tilson: No. As indicated, Mrs Boyd, we can only say it was a housekeeping change, a technical change, and did not do what you're suggesting.
Mrs Boyd: It doesn't add case management masters to it?
Mr Tilson: No.
Mrs Boyd: I think your explanatory note suggested that it did. Am I wrong? I may well be and I'll certainly be happy to withdraw those comments if indeed that's the case. It certainly wasn't my understanding that this was the issue.
The Chair: What section are you referring to, Ms Boyd?
Mrs Boyd: The first amendments that we did, Mr Chair. My understanding of the changes that were there in terms of the act -- I'm wrong. I'm just looking at it and I'm wrong, so I withdraw those comments about the family rules committee. You're quite right. It was two lawyers, not two case management people, who were being added, so I apologize.
Mr Klees: Just by way of clarification, it's my understanding that it's the intention that the rules of conduct or the authority that's to be conferred on the case management masters will be conferred by regulation. Is that correct?
Mr Tilson: Maybe I could let Mr Twohig comment on that.
Mr Twohig: The jurisdiction of the case management masters, as with masters, is conferred for the most part by the rules of civil procedure. Those rules of civil procedure are recommended by the civil rules committee, which is composed of judges, lawyers and personnel from the courts administration division. They recommend rules to the legislation and regulations committee of cabinet and they find their way into the regulations in that way.
Mr Klees: So there will be somewhere within that body some rules and regulations to which the case management masters will have to adhere?
Mr Twohig: Their jurisdiction will be set out in those regulations, but not their code of conduct. That's what this motion concerns: what their ethical code is and how they should make their decisions, rather than what decisions they can make.
Mr Klees: Can you give me some idea of where in fact they will get their direction regarding their code of conduct?
Mr Twohig: There isn't a code of conduct for case management masters. I think it's fair to say there isn't a code of conduct for masters or as yet even for Provincial Division judges. Bill 79 says that if there should be a code of conduct, ethical standards as to how case management masters should conduct themselves, that should be devised by the Chief Justice of what will be the Superior Court of Justice. Mrs Boyd's motion says that in addition to the Chief Justice proposing them, they should be approved and agreed upon by the provincial judicial council.
Mr Klees: Thank you for that clarification.
The Chair: Is there any further comment before we deal with the proposed amendment? If there's no further discussion, I'll put the question: All those in favour of the amendment, say "aye." Did you wish a recorded vote, Ms Boyd?
Mrs Boyd: Yes.
Ayes
Boyd.
NAYS
Doyle, Hudak, Ron Johnson, Klees, Leadston, Parker, Tilson.
The Chair: The motion is lost. As the time is now five to 6 and we have one more amendment proposed in regard to section 1 and then we would continue with the motion we set down earlier -- I would suggest that hopefully Mr Tilson will have instructions in regard to the earlier motion and we could then proceed tomorrow at 3:30 -- I would therefore adjourn the hearing to tomorrow at 3:30 pm in the same room.
The committee adjourned at 1751.