COURTS IMPROVEMENT ACT, 1996 / LOI DE 1996 SUR L'AMÉLIORATION DES TRIBUNAUX
CONTENTS
Tuesday 22 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
Substitutions present /Membres remplaçants présents:
Mr MarcelBeaubien (Lambton PC) for Mr Doyle
Mr BertJohnson (Perth PC) for Mr Hudak
Mrs MargaretMarland (Mississauga South / Sud PC) for Mr Klees
Clerk / Greffier: Mr Douglas Arnott
Staff / Personnel: Mr Mark Spakowski, legislative counsel
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The committee met at 1530 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): Good afternoon, ladies and gentlemen. We have a quorum and we will proceed with our clause-by-clause consideration of Bill 79. We had an amendment moved by Ms Boyd to subsection 1(11), and I understand there has been an arrangement with Mr Tilson that that amendment will be withdrawn and Mr Tilson will move an amendment in its stead.
Mr David Tilson (Dufferin-Peel): That's correct, Mr Chairman. This involves the regional courts management advisory committee. You may recall we debated that and I asked that that motion be set down. Mrs Boyd and I have agreed.
The Chair: Is it agreed that your motion is withdrawn, Ms Boyd?
Mrs Marion Boyd (London Centre): Yes, it is, Mr Chair.
The Chair: Mr Tilson, would you please read into the record the new amendment.
Mr Tilson: I believe all members of the committee have this. I think it was distributed.
I move that subsection 1(11) of the bill, as set out in section 75(4) of the Courts of Justice Act, be struck out and the following section be substituted:
"(11) Subsection 75(4) of the act is repealed and the following substituted:
"Frequency of meetings
"(4) The committee shall meet at least once each year."
The Chair: Is there any discussion or questions regarding the amendment moved by Mr Tilson? If not, I will call the question. All those in favour? Against? That amendment is carried.
We are now proceeding to a proposed amendment of subsection 1(17). We have to read it into the record.
Mrs Boyd: I move that section 86.2 of the Courts of Justice Act, as set out in subsection 1(17) of the bill, be struck out and the following substituted:
"Complaints
"86.2(1) Sections 51.3 to 51.8 apply to case management masters, with necessary modifications, in the same manner as to provincial judges.
"Same
(2) When the Judicial Council deals with a complaint against a case management master, the following special provisions apply:
"1. One of the members of the Judicial Council who is a provincial judge shall be replaced by a case management master. The Chief Judge of the Provincial Division shall determine which judge is to be replaced and the Chief Justice of the Ontario Court shall designate the case management master who is to replace the judge.
"2. Complaints shall be referred to the Chief Justice of the Ontario Court rather than to the Chief Judge of the Provincial Division.
"3. Subcommittee recommendations with respect to interim suspension shall be made to the appropriate regional senior judge of the General Division, to whom subsections 51.4(10) and (11) apply with necessary modifications."
The purpose of the amendment is to try and achieve the same level of accountability around discipline matters for case management masters as exists in the Courts of Justice Act when it deals with other members of the judiciary and the quasi-judiciary. I know the government is going to say, "Well, case management masters deal with issues in the General Division which is a federally appointed division rather than in the Provincial Division, which will be renamed by this bill, and therefore it's not appropriate for that to happen."
I just point out to the members of the government that what that de facto means is that you are creating a whole class of quasi-judicial people for whom there is no accountability, effectively, because the federal government is responsible for any changes to the Judicial Council, the federally appointed judges' Judicial Council, who would normally have some authority in terms of accountability here. The provincial government is creating that whole class of people and then says they can't have the same accountability as provincially appointed judges, because in fact they are only doing their work in the General Division.
We see that as a very real problem in terms of the level of accountability that is trying to be achieved in the courts of justice. I know that yesterday there were arguments made that there's not the same problem with these people because they don't deal with the public. The reality is there can be similar problems with discipline, with lack of due process among these people, as there could be anywhere else, and what the government has done by setting it up this way is making these people not accountable to anyone. They are not civil servants, because they're being appointed by order in council, and they are not going to have any line of accountability except to the Chief Justice.
I do not think that is in accordance with the actions that are being taken across the country in terms of accountability in the judiciary. While I certainly hope that there would not be very many discipline problems, I frankly anticipate, given the work that these folks are being given to do, in other words, as was very clearly stated by both the minister and parliamentary assistant yesterday, that their job is going to be to make lawyers follow rules they've never had to follow before, that they are going to change the whole process whereby the courts ran at the pleasure of the timetable of lawyers, now it's going to run to the timetable that's set in the case management system, and I think we would all be very naïve to think there aren't going to be lots of complaints against these individuals, and there will be, I think, questions raised about the accountability of these folks, not necessarily by the public, but within the system itself.
That's why we're suggesting it. We understand the problem with it, given the jurisdictional issue, but we would say to the government that we think this is going to affect your ability to make these folks as effective and then as accepted as they really ought to be.
Mr Tilson: I think Mrs Boyd is right. We had this debate yesterday on this type of philosophy, and I repeat, I think we're all aware of the work Mrs Boyd did with respect to Judicial Councils, although they existed before that. There's no question that as a result of her amendments, the council was given more structure, brought more people in. I understand all that and I think we respect the work that you've done.
Mrs Boyd essentially gave my reply, actually, so we all know what each other's position is, so I will briefly repeat that the Judicial Council deals with complaints against provincial judges and that the insertion of one case management master on a body otherwise dominated by the Provincial Division will do nothing to advance, in our view, the expertise of the Judicial Council.
Further, we believe it's not equipped to deal with complaints against case management masters. The major thrust of Mrs Boyd's amendment appears to be that of accountability. She can correct it, but that appears to be her thrust, and again I will repeat the arguments that we made yesterday in opposition to her previous amendments.
There are two arguments against it. The first is with respect to tenure, which is seven years, which can be renewed, and, second, the Chief Justice of the General Division is responsible for the supervision and assignment of duties for case management masters, and that is the accountability. I know Mrs Boyd will disagree with that and say that's no accountability. Hence, I guess, we've come to an impasse.
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Mrs Boyd: I think it's interesting that the government is satisfied to let a federally appointed General Division Chief Justice be the body of accountability for a provincial employee, and a whole new class of provincial employee. I think this is a real flaw in the plan that's been set forward. But under the circumstances, the force of the argument around the inappropriateness of putting these people into Judicial Council and the reality that it might weaken Judicial Council in terms of its major tasks that it has leads me to withdraw the amendment.
The Chair: For purposes of the record, Mrs Boyd has withdrawn that particular amendment. The record shows that and we will now deal with section 1, as amended.
Is there any further discussion or questions in regard to section 1, as amended? If not, I'll call the question. All those in favour? All those against? Section 1, as amended, carries.
Section 2: There is a government amendment.
Mr Tilson: This deals with subsection 2(2) of the bill, the Charities Accounting Act.
I move that subclause 5.1(2)(a)(iii) of the Charities Accounting Act, as set out in subsection 2(2) of the bill, be struck out and the following substituted:
"(iii) directors of corporations described in subclause (ii) or of such persons described in subclause (i) that are corporations, or"
Subclause 5.1(2)(a)(iii) refers to subclauses (i) and (ii). These references were inadvertently reversed during the bill's drafting, so this is to correct a drafting error. The reference to (i) should be to (ii) and vice versa, and this amendment corrects that error.
The Chair: Is there any discussion regarding the amendment? If not, I'll call the question. All those in favour of the amendment? All those against? The amendment is carried.
Is there any discussion in regard to section 2, as amended, or questions? If not, I'll ask the question. Shall section 2, as amended, carry? All those in favour? The motion is carried.
I understand, subject to correction, there are no amendments in regard to sections 3 to 7, inclusive, and I will ask the question in regard to sections 3 to 7, inclusive. First, is there any discussion or questions in regard to sections 3 to 7? If not, I pose the question, shall sections 3 to 7, inclusive, carry? All those in favour? All those against? The motion is carried.
We are now proceeding to section 8 and I understand there is a government amendment.
Mr Tilson: I move that the table to section 8 of the bill be amended by striking out "Trial Court of Ontario" and substituting "Court of Ontario."
This section will rename the overarching umbrella as the Court of Ontario instead of the Trial Court of Ontario. The Chief Justice and the Chief Judge originally suggested the name "Trial Court of Ontario." Upon further reflection, we were informed that the judiciary now believes that the name should be changed. The current Provincial Division and the General Division courts hear appeals. For example, in the Provincial Division a provincial judge hears appeals from the provincial offences court and the General Division and the Divisional Court branch hears appeals from the Small Claims Court and appeals from various tribunals. It's not entirely accurate to refer to the court before as the Trial Court of Ontario and that is the rationale for this amendment.
The Chair: Is there any discussion in regard to the proposed amendment of Mr Tilson?
Mrs Boyd: Just a comment. I hope you don't find that they want another name change in another couple of days. This has been talked about for a long time, so I appreciate how annoying it is when that kind of thing happens.
The Chair: Very much so. Is there any further discussion in regard to the amendment of Mr Tilson regarding the change of name? If not, I'll pose the question. All those in favour of the amendment? All those against? The amendment is carried.
Shall section 8, as amended, carry? All those in favour? All those against? Section 8, as amended, carries.
We are proceeding to section 9 and there are two government amendments.
Mr Tilson: The first is to subsection 9(1), which is similar to the previous amendment that I just made.
I move that the table to subsection 1.1(1) of the Courts of Justice Act, as set out in subsection 9(1) of the bill, be amended by striking out "Trial Court of Ontario" and substituting "Court of Ontario."
The same rationale applies.
The Chair: Is there any further discussion in regard to that amendment? I ask the question. Shall the amendment carry? All those in favour? The amendment carries.
You have a second amendment to section 9.
Mr Tilson: This has to do with subsection 9(2) of the bill.
I move that section 10 of the Courts of Justice Act, as set out in subsection 9(1) of the bill, be struck out and the following substituted:
"Court of Ontario
"10(1) The Ontario Court of Justice is continued under the name Court of Ontario in English and Cour de l'Ontario in French.
"Divisions
"(2) The Court of Ontario shall consist of two divisions, the Superior Court of Justice (formerly the Ontario Court (General Division)) and the Ontario Court of Justice (formerly the Ontario Court (Provincial Division)).
"President
"(3) The person who is the Chief Justice of the Superior Court of Justice shall also be the president of the Court of Ontario."
This motion accomplishes two purposes: First, it amends the umbrella court name from the Trial Court of Ontario to Court of Ontario. Again, the same rationale that we've given for the previous two motions applies. Second, the motion deletes reference to the Chief Justice of the Superior Court of Justice being the Chief Justice as well as the president of the Court of Ontario. This is accomplished by deleting reference to the words "Chief Justice" in subsection 10(3).
The Chair: Is there any discussion or questions regarding the proposed amendment? If not, shall the amendment carry? All those in favour? The amendment is carried. Mr Tilson: I have a further amendment for which the same rationale applies that I've been giving. It has to do with subsection 9(8) of the bill.
I move that subsection 9(8) of the bill be amended by striking out "Trial Court of Ontario" and substituting "Court of Ontario."
The Chair: Is there any discussion regarding the motion of change of name? If not, shall the amendment carry? All those in favour? The amendment is carried.
Mr Tilson: The final government amendment is to subsection 9(10) of the bill.
I move that subsection 9(10) of the bill be amended by striking out "Trial Court of Ontario" and substituting "Court of Ontario."
The same rationale applies.
The Chair: Is there any further discussion or questions regarding the amendment? If not, shall the amendment carry? All those in favour? The amendment is carried.
Ms Boyd, there is an amendment to subsection 9(14) of the act.
Mrs Boyd: This amendment would have been consequent on the other amendments that have already been defeated or withdrawn and therefore I withdraw these amendments.
The Chair: You are withdrawing the amendment. The amendment is withdrawn.
I am now about to pose the question regarding section 9, as amended. Is there any further discussion or questions in regard to section 9, as amended? If not, all those in favour of section 9, as amended? Shall it carry? Section 9 is carried.
I do not believe there are any amendments in regard to sections 10, 11 and 12. I therefore pose the question, shall sections 10, 11 and 12 of the bill carry? Is there any discussion in regard to those sections? If not, all those in favour? Sections 10, 11 and 12 are carried.
Shall the short title of the bill carry? All those in favour? Carried.
Shall the long title of the bill carry? Is there any discussion? All those in favour? All those against? The long title carries.
Mr David Ramsay (Timiskaming): Is this the fewer courts bill?
The Chair: Is there any discussion in regard to the total bill? If not, I pose the question, shall Bill 79, as amended, carry? All those in favour? All those against? The bill is carried.
Shall Bill 79, as amended, be reported to the House? It is agreed.
We have completed our consideration of Bill 79, as amended, and I will report that bill to the House.
As there are no other matters before the committee, we are adjourned at the pleasure of the Chair. Thank you.
The committee adjourned at 1554.