The House resumed at 8:02 p.m.
JUDICATURE AMENDMENT ACT
Hon. Mr. McMurtry moved second reading of Bill 79, An Act to amend the Judicature Act.
Mr. Deputy Speaker: Does the hon. minister have an opening statement?
Hon. Mr. McMurtry: Mr. Speaker, this bill is similar in intent to the amendments to the County Judges Act that we discussed just before the supper recess. I think the comments that I made in relation to the debate on second reading with respect to that bill would apply equally to the intent and principle of this legislation.
Mr. Roy: I’ve made some comments on the previous bill, Bill 78, about my concerns in the administration of justice. I would like to make certain comments about this particular bill.
There’s no doubt that the creation of what is called the Associate Chief Justice of the High Court and the office of the Associate Chief Justice of Ontario are required. There is no doubt in my mind, as well -- in view of the great increase in the case load, and the fact that the High Court, more than any other level of courts, is subject to the picking of a particular judge to do other duties on very short notice -- that it does cramp the style and flexibility of that court. Certainly, it troubles the chief justice who has to jockey his judges in various jurisdictions at various times throughout the province. In view of the increased case loads, it would appear to be sensible that the total of 38 judges be increased to a total of 42. In that measure, it’s not a burden on the financial situation of the province, because these judges, I understand, are paid by the federal government, in any event. In that aspect, I suppose, we won’t get into the finances.
But I am interested in the comments earlier by the Attorney General. You will recall, Mr. Speaker, I have said that at the High Court level especially, and I think everyone here will agree, that the calibre of individuals appointed has been just tremendous. It is to the great credit of the federal Attorney General that he has got some of the best people possible in the bar to accept an appointment at the High Court level. I would think this has happened more in the last 10 years or so than ever before.
Last Friday night, I guess, I was at a bar dinner in Ottawa where the speaker was Mr. John Robinette, QC, one of the most eminent counsel, certainly, not only in this province but in this country. He said he was concerned that some of the better people within the bar were being lost to the bar and going on to the bench. He said it with sort of a humorous tone, and generally speaking, one is talking about people who are serving in the public interest. One can say: “Well, that’s the highest calling,” but as one who has been a member of the bar since about 1929, as Mr. Robinette has, he was expressing concern that when a counsel has attained that particular level of excellence when he was an enhancement to his whole profession, he would end up being appointed a judge. He felt that to some measure it was sad.
But in any event, that is clearly a reflection of how the members of the bar --
Mr. Lawlor: Sad? John refused. He was making $250,000 a year.
Mr. Roy: I know he did. I think in fairness to --
Mr. Lawlor: He was one of the few.
Mr. Roy: In fairness to him, in view of the length of time that he’s practised, I don’t think money is the incentive for keeping him off the bench. I frankly think he’s one who enjoys greatly what he’s doing. Having served and lived frugally since 1929, I would think that money is not going to be the deciding factor --
Mr. Lawlor: L’argent, l’argent est --
Mr. Roy: I don’t know what that means, but anyway --
Mr. Lawlor: Don’t you understand French?
Mr. Roy: Not your French, I can’t.
Some of those judges serving at that level are among the finest and best brains in the country. As I said before, what concerns me is that after we appoint these people --
Mr. Foulds: Vern didn’t get his appointment.
Mr. Roy: -- they end up in a situation where they are doing administrative work.
The compendium which is attached to this bill talks about the great increase in the case load -- a 54 per cent increase at the provincial level from 1970 to 1975, and I would think at 1977, only at the provincial level, it would be over 100 per cent. Statistics from Ottawa at the provincial level indicate that there has been an increase in the case load from 1970 to 1977 of something like 150 per cent.
But in any event, the compendium goes on to say that the net result is that the courts at all levels in Ontario are becoming larger and more complex and the burden of administering them has become correspondingly heavier. This burden for the most part falls directly on the shoulders of the chief judicial officer of each court. I can understand that.
The Attorney General was saying earlier that in the administration and the case flow of the courts the judges have advised him that they want to keep their independence. They don’t want to be in a situation where the legislative arm of government is saying to them: “You are going to sit so many hours. You are going to sit in a particular court. You are going to do this. You are going to do that.” This would be in some way an infringement of the independence of the judiciary.
I can understand that to some measure, but I don’t believe for a minute that means it’s incumbent upon these judges, apart from the chief justice -- we are fast approaching a situation, and I think the Attorney General will agree with me, where the chief justice is going to become more of an administrator than a judicial officer, and he’s going to have a full-time job just administering these courts. But that doesn’t alter the fact that we should have competent experts in the field of case flow and experts in the field of how we can make better use of our facilities and make better use of the judges that we have.
I think that is the weakness. I don’t think it is incumbent on all these judges. I have seen it time and time again -- Supreme Court judges going into the county town and then they end up in a situation where they say, “Look, I have only a week. Can I sit here a week? I’ll phone Toronto and see if I can’t get another judge down here to take a particular case.” Surely there’s an inherent weakness when we force our judges into a situation where they are supposed to be judging and they become, in fact, administrators.
It seems to me that that is a weakness. I can understand what the judges are saying. But, I don’t see anything wrong in having competent administrators or having competent systems of administration. Yet, the chief justice could use that system and then flowing through the chief judge have a system of courts which is efficient and which makes full use of the existing facilities and full use of the manpower which we have.
I think this is a weakness. Just as an example, this week in Ottawa we get an extra judge. There’s one Supreme Court judge sitting hearing non-jury cases. And we get an extra judge who is going to come down to hear the jury cases. It turns out that he can only stay a week. In the criminal lineup, there are a couple of murder cases which are going to take more than a week, so he can’t hear those. So the bar, thinking, of course, that there is going to be jury work at the criminal level, aren’t expecting their jury work at the civil level to proceed. All at once, at the last minute, all the civil case jury work is called before the judge. There are about nine cases and not one of them is ready.
After the first couple of cases fall, where they say they are not ready, the other counsels down the line are saying, “Well, I don’t have to be ready before Tuesday, Wednesday, or Thursday,” and you’ve got witnesses all over the place. So everything falls just like a deck of cards, and no cases are ready. So, the judge is on the phone asking the chief justice what he should do and what type of case is he going to take. The registrar of the court is hustling all over the place to see if he can’t find some undefended divorces or something to fill the judge’s time.
This is not just an isolated instance. It continually happens. I say that that is not only the fault of the court administration, it is the fault sometimes of the profession. Very often they talk big until they get to the courtroom door and then there seems to be some reluctance to have their case proceed.
Judges say that in Ottawa there is a particularly bad situation where, apparently, counsel seem to have this reluctance. In other areas of the province there seem to be one or two law firms that can always have a case ready to go and take up the slack of the court, whereas in Ottawa they can’t seem to find anybody who is ready to do that. So, anyway, what I am trying to say --
Mr. Foulds: It has fallen since you left full time.
Mr. Roy: I can’t really say that. I am not sure sometimes that I don’t contribute to that. But, basically, if I am going to go to trial, I want the case to proceed as early as possible. If I’m not going to go to trial, I settle. Basically, I would hope that the members of the profession would take that approach.
In any event, what I am trying to say is that there is a contribution to the lack of efficiency on the part of the profession and there is a lack of efficiency about the whole administrative set-up. I am convinced that if we were to put more emphasis on the efficiency of the whole administration -- it could be flowing through the chief judge -- then you might wake up and shake up the profession.
But that is going to take decisions by the Attorney General. I think they are decisions that might not please everybody. My colleague from Nipissing (Mr. Bolan) was asking why we have a level of county and Supreme Court. Really, in this day and age, we shouldn’t have it. We should just have the Supreme Court level. Is it reasonable in this day and age that we have all the Supreme court judges sitting here in Toronto, then go on the circuit to various areas of the province? I really think that should be changed. I don’t think that’s reasonable today. I think we’ve passed the stage of the old idea that, in the old cowboy town you get the out-of-town judge to come in --
Mr. Ruston: The hanging judge.
[8:15]
Mr. Roy: -- as an impartial arbiter coming from the big city to right the wrongs of everybody. I think we could have local judges in the Supreme Court. I see no reason why the county areas, be it Windsor, Ottawa, London -- not Toronto, of course -- should get the same service as Metropolitan Toronto from the Supreme Court. I don’t see why we shouldn’t get equal service from the Supreme Court. I think it’s time to make that sort of decision. If it so happens that it’s the nature of a case where it’s best to get an out-of-town judge, fine. They do it anyway in a provincial court or in a county court.
But, I think we really have to come down and make these meaningful decisions. I appreciate the concern expressed by the Attorney General that when you appear to get things rolling with a chief justice like Mr. Justice Estey, all at once he’s appointed to the Supreme Court of Canada. I can appreciate that that’s a loss. That is a great loss, because I think, at least my short experience --
Mr. Lawlor: I have never seen a judge rise so fast
Mr. Roy: Well, his rise, from just one of us, I shouldn’t say “one of us”; rather, one of you, because he had his QC --
Mr. Lawlor: It is either one of two things. It’s either brilliance or politics.
Mr. Roy: I don’t really know about politics. I do know that his sense of humour was sans pareil, if you understand what I mean.
Mr. Lawlor: It was at least that.
Mr. Roy: So he went in a very short time, a couple of years probably, from Crown lawyer to High Court Judge, to Chief judge of the High Court --
Hon. Mr. McMurtry: Court of Appeal, Chief Justice of the High Court, Chief Justice of Ontario.
Mr. Roy: -- Chief Justice of Ontario, Supreme Court of Canada. It’s just fantastic. I think it’s unheard of in the annals of judicial history.
Mr. Foulds: Sounds like William Shatner.
Mr. Lawlor: Poor old Laskin.
Mr. Roy: You’re torn between two sorts of principles where the Attorney General says, “This was a good man. I think we could have used this fellow. He gave every indication that he was moving in the right direction.” On the other hand --
Mr. Lawlor: “If you would only stick around for a month.”
Mr. Roy: -- you have the situation where the federal people say, “Look, we want our best brains, our most competent judges on the Supreme Court of Canada.” Those are the two opposing principles and it’s difficult for me as just a little country lawyer to be able to make that momentous decision and say the Attorney General is right or Mr. Trudeau is right in what he did.
I do think we can all be unanimous in the conclusion that we’ve lost a good man. Hopefully there will be a new chief justice who will look at some of these things. I think we must give leadership and the Attorney General has got to give leadership. I think there is a fine line and yet there is an area where we can do some work --
Mr. Foulds: He wants the leadership. He is going for the leadership.
Mr. Roy: -- about telling judges that we want full use of their time. I don’t think judges will be concerned about whether this flows through the associate chief justice or through the chief justice. They’ll accept that. They realize that sometimes the whole system is not giving the best possible effort or the most efficient effort to the community. I think they’re prepared to accept that.
What concerns me is this eternal problem of saying, “We’ve got to be careful because they want their independence.” That’s been said to us here by four Attorneys General. The time has come, Mr. Speaker. The time is going to pass us by and society is going to say, “What’s happening?” The pressure is going to be too much. You’re wondering if this is all within the bill, Mr. Speaker, and I say it is. It’s right there.
Mr. Deputy Speaker: Which section? I was just wondering which section you were referring to.
Mr. Roy: I’m speaking generally on the bill, because I’m reading from the compendium where it talks about all of these things. Who am I to question the opinion of the Attorney General of this province, eh? Right?
Hon. Mr. McMurtry: You are absolutely right.
Mr. Roy: The Supreme Court of Canada occasionally differs with him, but --
Mr. Foulds: It never stopped you before.
Mr. Roy: -- not the member for Ottawa East. Never! Never, Mr. Speaker.
I think it’s important that we point these things out, that hopefully we’ll see --
Mr. Foulds: What things? What have you pointed out so far?
Mr. Roy: The member for Port Arthur will understand. I’m glad to see that he’s -- what? deputy or acting House leader? He’s acting House leader and maybe we’ll get to educate him yet --
Mr. Deputy Speaker: Is that in this particular bill?
Mr. Roy: Is it mentioned in the bill that the member is -- I don’t really know.
Mr. Foulds: I hope it includes the salary raise, I tell you.
Mr. McClellan: You haven’t said a damn thing.
Mr. Roy: I appreciate that some of the things I say are not understandable to some of the members of the NDP. But I’m not trying to convince them. Hopefully I’m trying to convince my colleague, the Attorney General, who’s just making notes of every word I’m saying right now. That’s why I know what I’m saying is important.
Mr. McClellan: Absolutely unintelligible.
Mr. Foulds: What is he making notes with?
Mr. Roy: Hopefully, in the near future we will see some meaningful changes take place within the administration -- some of those changes I have been mentioning. And if that happens, the government will get the full support of the members on this side. We will even give them credit for having original ideas over there. Not only the Minister of Correctional Services (Mr. Drea) gets original ideas. We say the Attorney General has finally taken the bull by the horns and he is going to solve matters.
Mr. Lawlor: Frank Drea?
Mr. Foulds: Wasn’t Frank Drea the guy who wanted to elect the Supreme Court? Didn’t he make a speech about electing the Supreme Court?
Mr. Roy: Mr. Speaker, thank you for using your discretion as wisely as you have.
Hon. Mr. McMurtry: As widely or wisely?
Mr. Roy: Wisely.
Mr. Lawlor: I think I have said pretty well all that is of value about this sort of thing a long time ago. I just mentioned the protocol sections of the legislation which titillates us all I am sure. With that I look forward to the small claims court bill.
Mr. Roy: What happened?
Mr. Lawlor: I’ve lost interest.
Hon. Mr. McMurtry: Very briefly, I want to reiterate, that one of the prime purposes of Bill 79 is to relieve the chief justices of the two Supreme Courts -- the appellate division and the trial division -- from the administrative responsibilities. I want to re-emphasize that. It is to relieve them of some of these administrative tasks so that they can spend more time judging.
I sympathize with a number of things that have been said by the member for Ottawa East with his usual eloquence.
Mr. Lawlor: I have never heard him speak so long about so little.
Hon. Mr. McMurtry: I must admit I am totally astounded by the brevity of the member for Lakeshore.
Mr. Roy: So am I.
Mr. McClellan: He said 10 times as much as either of you.
Hon. Mr. McMurtry: But I hesitate to say that because I am sure he will make up for it with the small claims court bill.
Mr. Lawlor: You are perfectly right. If you have been to dinner with the Speaker it does make you more succinct.
Motion agreed to.
Third reading was also agreed to on motion.
PROVINCIAL COURTS AMENDMENT ACT
Hon. Mr. McMurtry moved second reading of Bill 80, An Act to amend the Provincial Courts Act.
Hon. Mr. McMurtry: Mr. Speaker, just to reiterate what I said when I introduced the bill, again we are attempting to create an associate chief judge at each division of the provincial courts -- that is the criminal and family division -- for reasons similar to those advanced in relation to the county court and the Supreme Court of Ontario.
Secondly, the intent of the bill is to provide an amendment to the Provincial Courts Act to allow for the awarding of costs in provincial court family court proceedings.
Mr. Roy: On this bill, we are, obviously, in favour, especially on the second matter of the question of the provincial courts, family division, having the power to award costs. I recall that there has recently been some jurisprudence, I think, in that area. One provincial court judge some place in this province has awarded costs. I thought that was a precedent that had been established. But I suppose sometimes precedents are established by somewhat stretching the existing law. I think it is incumbent on this court -- I think it is a necessity that that power be spelled out clearly and that provincial judges of the family division have that power, considering the nature of the litigation or the nature of the proceedings before them.
As for the associate chief judge of each division of the provincial court, I’m not convinced that that is something which is necessary, just as I’m not convinced that it is not. I just can’t get too excited one way or the other. My concern, in seeing amendments come forward under the Provincial Courts Act, is that it would appear to me that much more substantial changes could have been made to the Provincial Courts Act. The reason I say this is that as one who represents a riding in Ottawa, I’ve had the experience first-hand of what happens when there are weaknesses within a particular piece of legislation.
I am referring specifically to the weakness in the provincial courts legislation dealing with the judicial council, the function of the judicial council, the scope of the authority or the jurisdiction of the judicial council. Within the Provincial Courts Act there is legislation which says these hearings are to be in private. Yet we had a situation in Ottawa where we may ask what good is the hearing being in private when it’s on the front pages of every newspaper in the city that there is a hearing. People come to conclusions, whether the information or the complaint against the judge has any merit or not. The minute there is a front page story saying that a senior judge is before the judicial council, his credibility has been seriously undermined.
I would like to hear some comment from the Attorney General whether we are going to see this type of legislation. It appears to me that with the experience in Ottawa involving Judge Swabey and Judge Williams, there was a situation where I think it was clearly pointed out there are some weaknesses and some serious gaps within the legislation which has set up this judicial council. It seems to me if you are going to protect the integrity and the efficiency of the judiciary they cannot be subject to public whims. Any misfit in a community can make a complaint against a judge. The minute it is referred to judicial council, if it’s on the front page of a paper, the presumption is that someone has done wrong. The public will exercise the onus against the judge.
I mention this because, in both Judge Williams’ and Judge Swabey’s cases, let’s presume they had been innocent. Really their effectiveness has been seriously undermined by having continually, every second day, the front page of the paper saying something about the judges being involved in this or involved in that. I say very seriously to the Attorney General that I really hope we are going to see legislation which will not only make the hearing private but will make the fact that there is a hearing private as well. The bar association in Ottawa, as the minister will recall, asked that there be an inquiry to find out the source of the information being fed the newspapers about this hearing and to investigate all of this.
The newspapers hadn’t broken the law or anything. Considering the competitive nature of the press you could hardly blame them, if they got a scoop, for using it. I think it is incumbent on us, if we believe in the integrity and the independence of the judiciary, to protect ft. That is one aspect of it.
Mr. Foulds: There is a difficulty there.
Mr. Roy: There is a difficulty there. I trust my friend could understand that the freedom of the press or the public’s right to know is not absolute. If it is, we have many laws which make it not absolute. For instance, one can have a preliminary inquiry without the public knowing what is going on. Or would you want proceedings in family court involving juveniles to be public? These are all things where we feel there are other principles which are just as important as the public’s right to know or the freedom of the press.
Mr. Foulds: What amendments would you propose?
Mr. Roy: I would propose an amendment that would say that not only is the hearing private but the fact that there is a hearing shall not he public until there is some sort of determination. I can make a comparison that if the police were to publish the fact that they are investigating someone, investigation does not necessarily mean they have a prima facie case. Once the charge is laid, then it’s public and that’s fine. But the fact they would be investigating someone and that would become public could seriously undermine the reputation of someone.
[8:30]
Take the member for Port Arthur. He’s a public figure. What would the fact that the police are investigating do to his reputation?
Mr. Foulds: They already have in 1971 and 1973. It was on the front page of the Globe. They even tapped my phone too.
Mr. Roy: What I’m saying basically is that these are some of the things I would hope the Attorney General will bring forward. We’ve got to tighten up that legislation or we’re getting ourselves into a situation. At the time that the judicial council is looking into this, at that point the press should know. If there is a breach of the law by a judge, then he should get the same treatment as anyone else. But at least we should determine that there has been a breach and he should not be judged in the press before at least there’s been that determination.
That’s concerned me to no end. I’ve got into fights with the press in Ottawa about this whole issue. I would have hoped that when this Provincial Courts Act was brought forward, we might have seen that. I appreciate there has not been that much time.
I say again that I think it’s extremely important. We go out of our way to have legislation that treats the individual on the street fairly. We say to him, “You shall have every safeguard to see that your rights are protected.” That applies all the way through the system. But at the top level, if a particular judge doesn’t get fair treatment or if our police officers have legislation which is unfair to them, how can we expect these people to render justice, if the minute there is a problem at their level, they are not treated with the same type of civil rights?
That’s concerned me and I thought I should put that on the record. I would hope we’ll see legislation coming in a very near future to tighten up that whole thing. I think that is important legislation appointing the judicial council. I think it’s necessary. On the other hand, we must be very careful we don’t have a type of setup whereby we can undermine the process unfairly. Once the damage is done, we’ve ruined the reputation of certain individuals and certain judges. Sometimes it can be unfair. I’m not saying it happened in this particular case. Had they been innocent, could these judges have gone back to sit in the courts after their names had been on the front pages all summer? I think it would have been a problem. There would have been a perception on the part of the public that they’d done some wrong when they had not. I think we should look at that.
Mr. Foulds: The same thing applies when someone has been charged.
Mr. Roy: But they had not been charged. They were only being investigated.
Mr. Lawlor: Mr. Speaker, have you ever seen Albert more Gallic, more Cyrano de Bergerac, swaggering, tocsins clamouring, get the sword out, up and down the hallway, meeting the bride of somebody else, I think?
Interjections.
Mr. Lawlor: Isn’t it farouche, as the French say?
Mr. Foulds: It struck me more like Sancho Ponza.
Mr. Roy: I am not sure what he said but whatever he said --
Mr. Lawlor: You know Cyrano de Bergerac. I am comparing you to him tonight. Aren’t you pleased? What do you want to be, d’Artagnan? Which musketeer do you think you are, with all the swashbuckling, all the sword rattling, all the noise in the night? Listen, in this particular piece of legislation -- I think it’s Bill 80 --
Hon. Mr. McMurtry: I never thought this bill would provoke such majesty of language.
Mr. Lawlor: -- this is one of the visitations that the minister has. He’s a fortunate fellow. He has a deputy minister from the academic world, from the world of pure logic. There’s nothing more logical than logic if you take it seriously. He says, “We’re going to have an associate justice here, and an associate justice there. You are going to have them in the High Court. You may as well have them in the low court.” You have them all over the place. Once you start, there’s no end to it. Here we have them in the Provincial Courts Act.
Hon. Mr. McMurtry: I think we should have an associate member for Lakeshore.
Mr. Lawlor: Come on! This is pure malarkey. In each instance the minister should make a justification for it.
Interjection.
Mr. Lawlor: Here you are, monornaniacally -- far from logic -- it’s a kind of mania -- you’re proliferating associate justices all over the park.
Mr. Breithaupt: When everyone’s somebody, then no one’s anybody.
Mr. Lawlor: Associate Chief Justice of the High Court, associate chief justice of the county court, associate chief justice of the criminal division of the provincial court. You may as well round it out, so to speak whether he’s needed or not. Whether he’s associate chief judge of the provincial court, family division. So we get the whole --
Mr. Foulds: Why don’t we have an associate chief judge of the small claims court?
Hon. Mr. McMurtry: We’re coming to that.
Mr. Lawlor: We will. We haven’t really got around to appointing justices of that court yet.
Mr. Foulds: In the next bill?
Mr. Lawlor: We will in 10 minutes’ time. And next week he’ll appoint an associate chief justice of that particular level of court. That’s really what it comes to.
Mr. Foulds: Why are you giving the Liberals all these opportunities to appoint them?
Mr. Lawlor: Once they start out -- I mean, the bureaucratic mind, the sheer logic, drives one from one position to another ineluctably. It’s quite terrifying, and I stand here somewhat terrified by the sheer logic of the position, and not in the least convinced as to its practicality.
I think before dinner the minister made some kind of a speech saying that it was really necessary in order, I hope, to keep them all working where they belong, in the courts. He did not want to happen in the courts what happens in the field of education, where some of the most distinguished and capable teachers are echeloned -- I think that’s the word --
Mr. Breithaupt: It’s a good one.
Mr. Lawlor: -- lifted, like Ezekiel on the clouds, you know -- brrrrr -- up onto some kind of echelon --
Mr. Roy: I wonder if Hansard got that.
Mr. Lawlor: -- where they’re no longer of service either to themselves or to the rest of the human race.
There are hundreds of them and they’re all making 50,000 bucks a year, and it’s terrifying. Don’t do it with the judges. A man with that particular capability who is able to tell who is lying. There aren’t many of us who can tell who is lying. We can’t even tell when we’re lying ourselves. We have to spend time at it, you know.
Mr. Breithaupt: Certainly the electors were fooled.
Mr. Lawlor: To be able to assess a witness in the box and say, “He’s pushing it. He’s overloaded.” In that particular case, you have to be really careful, particularly about overloading.
Hon. Mr. McMurtry: Particularly when you have dinner with the Speaker.
Mr. Lawlor: The business of costs. This cuts both ways. It’s a Dostoyevsky of a sort -- it has good and bad features. Awarding of costs under provincial courts, family division, can add to the costs of litigation. I suppose the hon. minister will argue when he stands up, if he is able to stand up, that it will cut back on litigation. If cost is to be considered one of the elements in the whole situation, they’d be somewhat loath to push it, and it will have a beneficial effect on the pure case load.
On the other hand, what we’re seeking to do is make the courts more approachable to a greater number of people. The costs of litigation are so horrendous now and to introduce it, as the minister is doing in this legislation, into the family court setup, where it was formerly excluded, is really a questionable move. To many individuals, if they come in to see me at the constituency office, I say, “Stay out of the courts. You can’t win even if you win.”
The edge on costs, the double feature there, the fact of solicitor-clients and the client-and-client cost situation will bear too heavily. The costs are emerging more and more often as a predominant feature, the costs being greater than the amount under litigation.
Can you imagine a more backward, retrograde, horrendous situation than that, Mr. Speaker? It’s very common. You don’t want to get into that in the family court setup between husbands and wives and the children situation all the way round.
Mr. Roy: I disagree. What about the husband who gives --
Mr. Lawlor: And yet the Attorney General is doing it. This is what his legislation is designed to bring about.
Mr. Roy: There should be costs.
Mr. Lawlor: We have enormous respect for the office and for his capabilities. We don’t like going against the grain, but on the basis of the pure logic of this situation, associate judges all over the place, on no really justifiable principles, and then the imposition of costs in this particular court, I find the legislation very questionable.
Mr. Deputy Speaker: Are there any other members wishing to speak on Bill 80? If not, the hon. minister.
Hon. Mr. McMurtry: First of all, if I may respond to the remarks of the member for Ottawa East and, more particularly in relation to the unhappy situation with respect to some of the provincial court judges in Ottawa who, I appreciate, have been enormously embarrassed by some of the rather unfortunate publicity that has been very evident over the course of the summer in relation to their own personal situation. There are a number of issues raised by this.
First of all the information and the facts, that have been brought forward by some of the press to titillate the public -- I just don’t know where they came from. They certainly did not come from the judicial council They certainly did not come from anyone associated with the Ministry of the Attorney General.
Of course, the member for Ottawa East raises the issue as to whether, at any time, the public should have any knowledge of the fact that there even is a hearing of the judicial council. Certainly, in this case, I don’t think at any time did we bring that fact forward to the public. At the same time, I have to say that there may be cases in which the public has an interest in knowing that there is a hearing. I can think of one case in particular that has occurred during my tenure as Attorney General and that is when a statement or behaviour is attributed to a judge in open court that offends a great percentage of the population.
In those circumstances it may well be in the interests of the administration of justice --
Mr. Roy: We’re not talking about the same thing.
Hon. Mr. McMurty: No, no, but we’re talking about the judicial council and I’m saying that in those circumstances it may be in the public interest and in the interest of the administration of justice for the Attorney General to indicate the matter will he reviewed by the judicial council. I think you have to differentiate between alleged misconduct that may occur in a courtroom, in public, as opposed to something that may have occurred outside the courtroom, as was the case insofar as the Ottawa judges were concerned. I regret very much the publicity that has occurred in relation to that matter.
[8.45]
I would also like to assure the member for Ottawa East that I’m not satisfied with the present state of that legislation. I think he would be interested to know, as would the other members of the Legislature, that I have requested the former Chief Justice of Ontario, the hon. George Gale, to review that legislation and make recommendations to us with respect to possible amendments. I think this might be of interest to the members because I share his concern and believe the legislation, insofar as the function of the judicial council is concerned, could be improved.
With regard to the learned contribution by the member for Lakeshore, on the provision for awarding of costs in the family division of the provincial court, I would like to make two or three observations. It should decrease the cost of litigation for the successful party awarded costs, since that party will have some relief in relation to legal fees and disbursements.
At the present time, it is often a woman who is looking for support from a defaulting husband. Under the present legislation, she may be timid about going to court herself, which she can do. She may feel more comfortable with, and obviously in many cases will benefit from, the services of a lawyer. It’s important, if she has a meritorious case, that she knows she will get some relief from the costs of hiring a lawyer in relation to these expenses.
Mr. Lawlor: Don’t you think he’ll simply increase the fee?
Hon. Mr. McMurtry: It will also discourage frivolous defences and indeed frivolous applications. But more important than that, Mr. Speaker, I think the provision is necessary in family court, particularly in the light of our family law reform legislation, because we know under that legislation the family court will be given increased jurisdiction, and in our view, it’s important the litigant has the possibility of obtaining some relief in relation to legal fees.
The House divided on the motion by Hon. Mr. McMurtry for second reading of Bill 80, which was approved on the following vote:
Ayes |
Nays |
Ashe Auld Baetz Belanger Bernier Birch Bradley Breithaupt Brunelle Campbell Eakins Eaton Epp Gaunt Gregory Grossman Haggerty Hall Handleman Havrot Johnson Jones Kerrio Lane Leluk Maeck Mancini McCaffrey McCague McGuigan McKeough McKessock McMurtry McNeil Miller (Haldimand-Norfolk Newman (Windsor Walkerville) Nixon Norton Parrott Peterson Pope Reed (Halton-Burlington) Riddell Rotenberg Rowe Roy Ruston Sargent Scrivener Stephenson Sterling Taylor (Simcoe Centre) Timbrell Turner Villeneuve Walker Williams Wiseman Yakabuski -- 60. |
Bounsall Bryden Cooke Davidson (Cambridge) Davison (Hamilton Centre) Foulds Germa Gigantes Laughren Lawlor Lupusella Makarchuk Martel McClellan Philip Samis Warner Wildman -- 18. |
Ayes 60; nays 18.
Motion agreed to.
Third reading was also agreed to on motion.
SMALL CLAIMS COURTS AMENDMENT ACT
Hon. Mr. McMurtry moved second reading of Bill 81, An Act to amend The Small Claims Courts Act.
Mr. Roy: Needless to say, we on this side, and I suppose the Attorney General on his side, must be pretty pleased about having bail someone who is responsible around this place, when one considers the vote that has just taken place with the so-galled defenders of the oppressed to my left --
Mr. Wildman: Oh don’t be so niggardly.
Mr. Lawlor: On a question of privilege, the irresponsibility of that statement.
Mr. Roy: -- taking the approach that those poor wives who are chasing these defaulter husbands are not entitled to costs.
Mr. Foulds: On a point of order, Mr. Speaker, he should speak to the principle of the bill.
Mr. Speaker: Order. I have listened very intently and there is nothing that can be construed as a point of order.
Mr. Foulds: There is no way he is speaking on the principle of the bill.
Mr. Roy: I can say that; I suppose if I wasn’t --
Mr. Lawlor: Is there nothing sacred in this place?
Mr. Speaker: Order.
Mr. Lawlor: That posturing over there a --.
Mr. Speaker: Order.
Mr. Lawior: -- that preposterous hypocritical son over there --
Mr. Speaker: Order. I would caution the hon. member that we have already dealt with Bill 80. We are dealing with the principle of Bill 81.
Mr. Roy: I can understand, Mr. Speaker, that the people to my left would get very exercised, perplexed and I don’t know what I can call it, if I had to go through such an embarrassing experience as they just had. I would stand up on points of order regularly and try to avoid any debate on this.
Mr. Lawlor: We have been standing up for many years; the last bastion --
Mr. Roy: There he is. That’s what I mean. Look at him.
Mr. Speaker: Order.
Mr. Lawlor: You couldn’t expect much liberty from the Liberals.
Mr. Speaker: Will the member for Lakeshore come to order?
Mr. Lawlor: I think I will.
Mr. Speaker: We are dealing with the principle.
Mr. Lawlor: Reluctantly, I will come to order.
Mr. Speaker: Order.
An hon. member: Don’t throw him out.
Mr. Lawlor: Order is one of the last things I think I should come to.
Mr. Speaker: I won’t caution the hon. member again.
Mr. Lawlor: Caution!
Mr. Speaker: We are dealing with the principle on second reading of Bill 81, An Act to amend The Small Claims Courts Act. The hon. member for Ottawa East.
Mr. Roy: Thank you, Mr. Speaker.
Mr. Breithaupt: Don’t provoke him.
Mr. Roy: I’ll certainly try not to be provocative in any way whatsoever, Mr. Speaker, and speak to the principle of this bill.
Mr. Lawlor: Stay on the point.
Mr. Roy: On a number of the other bills we have passed, I have certainly made critical comment about how most of this legislation in fact was at best superficial and that we weren’t dealing with the real problems within the administration of justice. We on this side of the House would have liked to see much more meaningful legislation come forward to solve the problems in the administration of justice.
Mr. Lawlor: Is that the principle?
Mr. Germa: There are too many lawyers in the courts. That is the trouble. Why don’t you talk about that? Take the lawyers out of the courts.
Mr. Roy: My God, these people to my left, Mr. Speaker, are provoking.
Mr. Germa: You know what is plugging up the courts.
Mr. Acting Speaker: Order, please.
Mr. Roy: I can see they are exercised. I suppose they are embarrassed somewhat by the approach they have just taken on the previous legislation and they are trying to cover up, through noise or otherwise.
Mr. Acting Speaker: Could I ask the member for Ottawa East to stick to Bill 81? The other debate is finished.
Interjections.
Mr. Acting Speaker: Order. Could I ask the members to the left of the member for Ottawa East to please pay attention to the member for Ottawa East and to forget the last vote?
Mr. Germa: He is antagonizing us.
Mr. Acting Speaker: Will the member for Ottawa East please continue?
Mr. Roy: Thank you, Mr. Speaker. This legislation, the Small Claims Courts Amendment Act, is the typical example and the evidence of how, unfortunately, the neglect of the administration of justice for so many years is catching up to us. It also demonstrates, as I said to the Attorney General earlier in the day, why the administration of justice, which is an important factor in our whole law and order approach that should be followed in every democratic society, should not be hampered by budgets.
Back in 1963, however, the McRuer report made certain recommendations --
Mr. Martel: You never even read it; somebody told you about it. Are you talking about the McRuer report?
Mr. Roy: -- to enhance the whole system and procedure within the Small Claims Courts Act. There was a whole raft of suggestions about how we could best enhance the case flow within the small claims court system and make it more efficient and more responsive to the needs of 1977 justice. That was suggested back in 1963, but nothing was done.
Further recommendations came forward in 1974 from the Ontario Law Reform commission. Some of these recommendations have been accepted now, but really we are not dealing meaningfully with the problems within the administration of justice.
Small claims court is important. I suppose a higher percentage of the people are dealing with small claims courts than are dealing with Supreme Court or even the county courts and, unfortunately, they are having to go through a system which they consider to be not responsive to 19th or 20th century society and which gives the whole administration of justice a black eye.
I read from the compendium: “These recommendations have been fully analysed and assessed and a decision made not to implement them at this time.” It also states: “Practical consideration militates against the present implementation of the recommendations. The ministry appreciates that many desirable programs must be deferred in view of the governmental program of financial constraints. Fundamental structure change of the small claims court may be delayed without significant damage to the administration of justice.”
That whole paragraph is contradictory, because the Attorney General basically is suggesting that the recommendations of the Law Reform Commission and in the McRuer report are recommendations which will not enhance the administration of justice and are not needed.
Hon. Mr. McMurtry: Read the rest of the compendium.
Mr. Roy: I can read the rest of it. The Attorney General can read it, I suppose, in his reply. But it goes on to say: “The decision not to implement the Ontario Law Reform Commission recommendations is not based solely on practical considerations.
“The commission asserts that the time has come to restructure the small claims court system so that the general principles of its administration may be consistent with those applicable to other court systems in the province.” I am not sure how that in any way waters down what the previous paragraph says.
What we have is a situation where recommendations have been made in 1963 and in 1974, but a decision has been made by this government not to accept these recommendations. They are saying, “We can’t do it because of financial constraints but, don’t worry, we don’t feel that there will be any significant damage to the administration of justice.” That’s hogwash. There will be damage.
Unless we deal meaningfully with some of the problems facing the administration of justice at this level, there will be damage to the administration of justice -- and there has been damage to the administration of justice. It is no accident that out there the public is cynical about many procedures, about what is going on in our courts and about what is going on in the small claims court.
We on this side are all in favour of private enterprise.
Mr. Martel: No, we aren’t. Don’t put us in there.
Mr. Roy: I guess they are not.
Mr. Martel: Don’t put us in with those guys.
Mr. Roy: I wouldn’t dare talk for those fellows tonight, I tell you, Mr. Speaker. I wouldn’t dare associate myself with the people to my left -- of course not, I wouldn’t.
[9:45]
Interjections.
Mr. Roy: These people who would deny wives costs against defrauding husbands. What kind of a party is that?
Interjections.
Mr. Acting Speaker: Order.
Mr. Peterson: Poor party.
Mr. Roy: In any event, Mr. Speaker, I know it’s offensive when I talk about private enterprise to the people on my left. It’s offensive. Of course it’s offensive to them.
Mr. Martel: You are right. You keep screwing up the people.
Mr. Kerrio: That’s unparliamentary language. Did you hear that terrible language, Mr. Speaker?
Mr. Roy: Oh, my God. It’s very unparliamentary language, Mr. Speaker.
Mr. Acting Speaker: Order.
Mr. Kerrio: I think that is a good idea, Mr. Speaker.
Mr. Acting Speaker: Would the members for Niagara Falls and Sudbury East please listen to the speaker? The member for Ottawa East, please continue.
Interjections.
Mr. Roy: I was saying that we on this side are all in favour of private enterprise and encouraging private enterprise.
Mr. Martel: No, we are not.
Mr Lawlor: Which side are you on?
Mr. Roy: But, we feel that private enterprise may not be the best place to have this, or it’s not the type of system we should have within the administration of justice.
Interjections.
Mr. Roy: But the administration of justice shouldn’t be operated on a profit and loss. There are more important criteria to be applied to the administration of justice than just making a profit or creating jobs or things of this nature. That’s why, of course, the decision has been made to carry on with private enterprise, to pay clerks on the basis of the work that’s done, the actions that are issued, and things of this nature. McRuer found that unpleasant, that it was not in keeping with the system of the administration, and I’m sure the Law Reform Commission had certain reservations about it as well.
There are certain things that cannot be judged just on the basis of efficiency. It has to be judged on its merit, on how it best serves the public, and I think one area certainly is in the administration of justice.
Mr. Peterson: Well said.
Mr. Roy: It seems to me somewhat offensive that in 1977 society, when this government and this province pride themselves in having the best whether it’s in health care or otherwise, we’re still talking about private enterprise within the small claims court.
I’m concerned about that because it’s open to abuse, of course. We’ve seen situations when, in fact, that has happened. I need not remind the Attorney General that there was some frowning of certain individuals in the Ottawa area when the barber of the member for Ottawa South (Mr. Bennett) was appointed a small claims court clerk. That’s fine. He may have been the most qualified individual. But people start asking on what basis are people appointed within the administration of justice? If one is to look at the response of the member for Ottawa South --
Mr. Peterson: He is willing to cut hair, what do you expect?
Mr. Roy: -- he said he listened to a lot of problems, possibly more than a priest and more than the local doctor. That may be, but I sort of get suspicious when I see his campaign manager appointed sheriff and then I see his barber appointed court clerk.
Mr. Martel: He appointed my friend.
Mr. Roy: So that’s the type of thing which makes people cynical about the process.
Mr. Martel: He appointed my friend Pharand. Ask him.
Mr. Roy: There are certainly amendments within some sections of the legislation which we feel represent progress, which we applaud and we will support. For instance, the increase in the amount of monetary jurisdiction makes sense today because we shouldn’t limit the jurisdiction of the small claims court to $400. In the inflationary spiral we’ve had since the early Seventies, that was not in keeping with or being responsive to the needs of the community. Raising it to $1,000 appears to us to certainly be reasonable in the circumstances.
The question of the venue, the place of trial, is something that’s important as well. It appeared to me that there certainly was abuse, as was pointed out in the compendium about certain enterprises operating out of urban centres through mail order offices and itinerant salesmen. We’re certainly in support of the fact that the section will be repealed that would permit the bringing of certain contract actions in a place where payment was made. Respectfully, Mr. Speaker, it was offensive to the system. The general principle is that litigation should be brought within the jurisdiction where the people reside. That was the main criterion; certainly not where payment was made.
I go on to applaud certain aspects of this legislation; for instance, the informality in the procedures, relating to certain people who appear before a court without being represented. It’s important that those cases not be curtailed or that certain evidence which would be important or relevant to the whole process not be denied just on the basis that the claimant hadn’t met certain rules and regulations pertaining to procedure. We certainly can applaud this.
It makes sense that certain of this evidence be admitted, that the judge again decide what weight should be given to that evidence. Very often a good claim would be denied just on the basis that the litigant or the claimant was not in a position of knowing the law, had not taken proper procedures, had not met the rules of evidence and so on. Certainly, Mr. Speaker, we’re in favour of amendments such as this.
The monetary limit on the appeal is, I suppose, in keeping with changes, such as the inflationary rate. From $200, I suppose, to $500; that makes sense to us.
The question of prejudgement interest is another method --
Mr. Peterson: We are against all inflation, though.
Mr. Roy: -- of encouraging the settlement of actions. We’re in favour of this section, certainly.
Mr. Peterson: Get on the record that we are against inflation.
Mr. Roy: A lot of this is housekeeping, of course, in keeping with other regulations that have been changed in the other court. For instance, the taking of affidavits by an agent or solicitor for the client. That seems to make sense. If it was allowed in the Supreme Court, why wouldn’t it be allowed in the small claims court?
But I suppose one of the sections which we on this side applaud most strenuously -- and I would suspect maybe the members on the other side might vote against it -- is the one which repeals --
Mr. Lawlor: Don’t invite us.
Mr. Roy: -- the Small Claims Courts Act which created a pre-trial garnishment. I would suggest to the members to my left -- Mr. Lawlor: Oh, really, really.
Mr. Roy: -- that they should vote against this. It would be consistent with their voting against the other bill.
Mr. Lawlor: Early 16th century, benighted enlightenment.
Mr. Roy: If they want to be consistent this evening, I expect them --
Mr. Lawlor: What are you talking about?
Mr. Roy: -- to oppose the bill on this.
Mr. Lawlor: You like to hear your own voice.
Hon. Mr. McMurtry: They voted against deserted wives.
Mr. Roy: That’s right. They voted against that. My colleague, the Attorney General, mentions the deserted wives. They’ll all be in favour of pre-trial garnishment, I suppose.
Mr. Lawlor: That’s the one thing you wouldn’t vote against. Benighted. Unenlightened.
Mr. Roy: I’m looking forward to some of the things they’re going to say on this legislation. But, certainly, we on this side have always felt that if people are going to start garnishing --
Mr. Lawlor: You haven’t always felt it.
Mr. Roy: -- they should have obtained judgements, and judgements which had been obtained on the merits and not just on the fact that a claim was issued. We felt that this section was, on many occasions, being abused and abused by people who had been in a position to take advantage of it.
Mr. Lawlor: I haven’t heard you say so.
Mr. Roy: I’m talking about finance companies and people who had the whole apparatus to not only intimidate people who they were after, but who were using this section as the main section for the intimidation of people who did not have an opportunity of disputing a particular claim.
Having made these comments, again -- and I will emphasize again -- we feel that if we were dealing seriously with enhancing and making meaningful changes to the administration of justice, we would have liked to have seen a more substantial bill. I’m sorry that we don’t see such a bill. So what attitude does a party take when it feels that the legislation should have gone further?
We obviously have to support what we’re being offered. We’re not going to vote against this legislation because we feel there should be more in it. But, certainly, it’s important that we emphasize that this party would have gone much further.
This party is seriously dedicated to making meaningful changes within the administration of justice. We don’t feel that justice should be allocated out on the basis of how much money is available, that there should be monetary constraints on dispensing justice across this province. We think that is a bad criterion and we want to condemn it.
Mr. Peterson: Great speech.
Mr. Lawlor: Towards the middle of the 19th century, James Cardinal Henry Newman wrote a book called “Apologia Pro Vita Sua” against Charles Kingsley. Charles Kingsley was a Liberal. He wrote “The Water Babies,” who were buried under 13 fathoms.
Mr. Kerrio: That ancient history is not going to sit well with us.
Mr. Lawlor: The Apologia had to do in this particular contest, at least, with the fact that the provisions of the Law Reform Commission of Ontario were not implemented. And beating his breast and baring it to the winds of heaven, the Attorney General comes before us with the compendium. I think if we use the compendium half valuably, he will eliminate it from our prospectus. It says:
“The McRuer report, in 1963” -- that’s a long time ago -- “and the 1974 Ontario Law Reform Commission on administration of Ontario courts recommended the abolition of the part-time private enterprise system of administration of justice in the small claims court.”
And so have we. But I’ll stand here tonight and say, “I don’t blame you.” If I were the Attorney General I wouldn’t either. I’d take the same position he is taking -- the costs of absorbing it into the total system would be too great at this time in history. I don’t think it’s particularly feasible. Basically, they recommend: That the court be given county or district-wide jurisdiction; that the administration of these courts be decentralized in the county and district seat with branch offices established where volumes of claims or remoteness demand; that sittings of the court be held on circuit at locations within the county where the circumstances indicate; that the fee system for the payment of clerks be replaced with smaller claims clerks with salaried members of the civil service; and that the office of bailiff of the small claims court be replaced for the use of the sheriff’s office.
The Attorney General at least has the effrontery, or I suppose he might call it the honesty, to set forth his position and that which he rejects out-of-hand and doesn’t accept at this particular time. He says he’s not going to accept it, that the constraints are such that, to absorb that private enterprise aspect, the last remnants, would not meet our needs at this particular time in history.
Mr. Roy: It’s not the last one.
Mr. Lawlor: Yes, it is.
Mr. Roy: The justices of the peace are a private enterprise.
Mr. Lawlor: They’re all under salary tenure.
Mr. Acting Speaker: Order, please.
Mr. Lawlor: The operative ones are within the salary structure.
Mr. Roy: They are -- like hell.
Mr. Lawlor: There’s a few kicking around, Mr. McRuer points out, but they don’t know under which stone they’re buried. Of the 1,073, they’re only able to locate 822. All the rest are missing. It’s a missing persons bureau. I wouldn’t take it too seriously because they’re not deriving any salary from the consolidated revenue funds.
All right, so the Attorney General is not going to implement the Law Reform Commission terms at this particular time and I’m not going to take very much issue with that. I wouldn’t either. It sits out there; the sum consolidation has been met. The number of small claims, or what we used to call division courts, are being cut back gradually. But he says that people going 120 miles to dispute or contest a $50 claim is an overburdening of the system.
Mr. Roy: We are not saying that.
[10: 00]
Mr. Lawlor: So we’ll let well enough alone for the time being, so that we can move into the new Jerusalem just the day after tomorrow. I am prepared to hold my breath until it happens.
The first factor in this legislation is that the Attorney General is not going to absorb it but is going to reform it a little bit. He is going to take out the more invidious features of the whole situation. He is going to start appointing small claims court judges. There are three of them I believe -- I am not sure -- three I think in the Metropolitan Toronto region -- but by and large we are going to start appointing them. And that’s fine. But why use county court judges, men highly trained in intricate law, for this particular thing? Perhaps the minister should go as far as the Quebec courts in the small claims, where they won’t let lawyers into the courts, so that the citizenry, the populace as such, can handle their own cases and not be opposed by slick lawyers on behalf of collection agencies. This is part of it.
Mr. Roy: The minute we proposed that the member would say we are denying a basic right to be represented by counsel
Mr. Acting Speaker: Order, please.
Mr. Kerrio: Say it, Pat.
Mr. Lawlor: It’s at such times the new ice age begins -- as the Pliocene, you know, the business of the pictograms in the cave. You do hear it from the Liberal Party from time to time, Mr. Speaker. You see the simplistic drawings, et cetera -- the figure of the rhinoceros that ceased to exist 3,000 years ago. This is the kind of thing that we are up against, the minister and I. The red Tory and the red socialist should be worth the pink socialist, I believe. But what the hell can we do with these people? All blue.
Mr. Roy: And a Liberal in there to keep you both in line.
Mr. Lawlor: So they come to small claims judges for this particular level of court. You know, Mr. Speaker, you can take them out of the air -- in other words, practising lawyers in a particular district -- if the court happens to be vacant that day. It has been the practice to enlist their aid to take over the courts for that particular period -- that’s not very wise. It adds to the prestige of the local lawyer who sits in for the afternoon and takes over the cases. But to have full-time small claims court judges under this Act will add to the prestige of this particular court and relieve the county court for more pressing engagements.
The second thing that is important is the referee. I want to refer to that because the job these men are doing is terribly important. In the notes which the Attorney General supplied us -- and simply because we use them against him, let him not desist, or even decease -- the Toronto referee’s office is essentially a judgement debt conciliation service designed to reduce the work load on the judiciary. The referee gathers information voluntarily given by judgement debtors who seek assistance and relief, often from the conflicting claims of several judgement creditors. With the knowledge of the debtors he has he approaches judgement creditors in an effort to establish consensual payment arrangements. He does a yeoman’s service.
It has been done under the office quite informally without any legislation justification whatsoever from the chief judge. It was one of his more imaginative moments. It may justify him for eternity in all other terms. Whatever else he has done badly, he did this single thing. You know, in our lives we only have to do one thing well and people remember us and they will forgive us everything else. Let’s hope so.
Anyway, I sang tonight and all my sins are forgiven. I may walk out a shorn lamb to whatever slaughter these bloody Tories may subsequently dispose. All right, so the same thing happens to judges, the chief justice in this particular instance. He sets up the referees and the Attorney General is legitimizing them. He legitimizes children, bless him. Now he is legitimizing and pouring a little holy water on the heads of referees.
My God, the baptismal font is full tonight. I mean, overflowing. It may inundate the basement if we don’t watch out.
So the referees are all set up. What a valuable service. Here is a judgement debtor with a number of judgements against him proceeding through that particular court level, et cetera, who can only find alleviation by some kind of arbitration. There is no arbitration provided in the ordinary course of affairs. He has to divide up what little income he has among half a dozen bloody creditors, and more coming in all the time, thank you.
The referee performs this function. And to recognize it, to give it legislative sanction, is a major step for a hundred thousand people in this province. A very large number of people are caught in that web. All right. Even if we do so little in the little time we have here, the minister ran place his hand on his forehead and say, “All right, I made it worthwhile -- whatever other iniquities you have to suffer from during the course of the day.”
On interest, I won’t say anything. Interest we discussed earlier with respect to the wide range of the times at which it was initiated on prejudgement, et cetera. We haven’t talked about post-judgement yet, we’ll get around to it I suspect, and the various instances in which it appears -- and the time is running with respect to this interest situation.
May I pause just one moment? It bothers me just a bit because of the prime rate of interest. Because of the limitation periods, and the fact that one doesn’t have to sue for six years, 10 years, 12 years, we have never got around to the interest stacked. Then there is the time after that with respect to notices, et cetera. It bothers me a bit that the interest just possibly could exceed the amount of the principal. That’s the way with interest, you know. “With usuria, there is no alleviation.” I quote from Ezra Pound, the old pop-eyed, caged poet, who did say some things of value.
That particular poem is right from the middle ages. They didn’t cut off interest in the Middle Ages, à la Bassanio in The Merchant of Venice. They did cut it off on the basis it was a sure usufruct over against the equity. They allowed the risk of the venture. When they sent ships off into the Atlantic, they permitted a certain return larger than the average.
The whole of capitalism is a simple question of interest. Those who earn interest --
Mr. Ruston: What section of the Act is this?
Mr. Lawlor: -- means that they do nothing for it. There is no sweat. They sit and wait and it flows back in. The banking industry -- who the hell can build the magnificent -- if you call them that -- black towers, which Byron hated, down in central Toronto? The banking institutions. And what do they do it on? Something called interest. All right. This is not the point. The Treasurer not being in the House, it is kind of wasted pushing that particular point.
Fourth point. The Attorney General is accepting a broader view of evidence. He should accept the broader view of evidence with respect to hearsay, with respect to dying declarations, with respect to the whole panoply of those absurdities. What can one expect from a professional institution? We will willy-nilly, ineluctably, erect for ourselves a whole panoply. This is our professional rectitude, to set up nice rules of evidence as to what is excluded, what is included, what the judges may consider, and what may be considered outside the pale in a thousand instances. It serves our particular sanctimony. It always has with professional associations.
In this particular Act and, I’m suggesting, in a much wider contest, the rules of evidence are jettisoned, and overlooked. They say, “You may present whatever documentary evidence you please.” It’s up to the judge sitting on the bench to say what it’s worth. And so it should be in all the higher courts too. I hope this is only the beginning; that centuries and centuries of overlay, of obfuscation and the archaic, in the terms of the silly rules of evidence, will be wiped away and that what common men, what ordinary men, consider evidential, and would consider to have weight here and there, we can entrust to our judiciary to weigh similarly and say, “I don’t place very much weight on that person’s evidence. I think that person’s a liar or is serving his particular interest”; so that, in another way, will give weight to it.
That seems to me far closer to the grain. Our rules of evidence have developed such an artificiality that they obscure the truth, prevent it and act as a wall against penetrating honesty and human decency, rather than extracting and revealing it. Quite the contrary happens. It brings about, through these artificialities and this damned civilization, the contrary effect of that which was originally intended.
Why don’t we be honest enough men to come to that recognition and say let’s clear out some of this dross and this pretence that governs human affairs? The minister is doing it in this particular piece of legislation, up to a point, and I assent to it.
He has extended the monetary jurisdiction up to $1,000. That’s quite a move. That will cover a lot of ground, $1,000 in cases. I’m in favour of it with all these relaxed rules and everything else. it will relieve the county court level, which ipso facto will relieve the next highest level. It has that cascading effect. If the minister moves in on the appointment of small claims court judges, it will beneficially affect the whole system. Those judges, I suspect -- and I don’t know what their wage level is, but it would be probably somewhat lower than the others -- will siphon off a great deal of the friction and discontent that is accumulating and building in these lower figures with respect to getting their adjudications. The fact that they can penetrate through all the web of built-up evidential rules and come to some kind of adjudication will be highly beneficial to the county court level and will clear that out.
[10:15]
The next thing that he has done is what I call the T. Eaton section, section 6 of this particular legislation, that is that if one stipulates in one-year contracts that the place of payment will be the city of Toronto, then they may use the first division or small claims court of the city of Toronto as their forum for adjudication.
That is not fair, and never has been, to many defendants who are obliged to return and resort to an office, I believe, on Adelaide Street in Toronto, in order even to file their claim and to make their objections known.
That is a very heavy burden. It was a plagued commercial interest to the major corporations who stipulated, for this particular fact, that wherever you made your payment -- and they said where you made your payment; if you had bought the thing in Moosonee, your place of payment was Toronto and that is where the action could be initiated and carried out, obviously much to the detriment of the defendant, whatever defence they may have in this particular case. The Attorney General is wiping that out. He is saying the venue of that basically is where the defendant resides; and that is fine, that is the way it should be. And in the Metropolitan area, there is a diversity of small claims courts which can handle that.
I don’t know how much weight to put, Mr. Speaker, on the business of wiping out the garnishee before judgement, but over the years there has been nothing more iniquitous. Imagine, before your case is tried, before the merits of that case are in the least determined -- you may have no merits whatsoever -- you may garnishee a man’s salary. That was done constantly and overtly by all kinds of collection agencies, et cetera, throughout our province. I came across it time after time.
It brought the whole of the justice system under disrepute that you would issue this particular kind of document to initiate your whole proceedings. The cries have been sufficient and finally have not come to deaf ears. This Attorney General has finally heard, and I credit him for it. So I hope he is wiping it out tonight, that you may not garnishee before judgement. It is incredible that it ever existed at all. In no other court would it be heard of. The outcries from the profession and from the people who were being afflicted would have been such -- but somehow or other this has persisted for half a century in this particular area.
Finally, I do find it a little questionable that you cut off appeals to the court of appeal on any monetary judgement under $500. That gives a great amplitude to arbitrary judges. He knows, sitting on the bench, that if he awards judgement for $499 or $490 you are cut off. I have seen it done. I have stood in the courtroom and watched that particular procedure. Not on that basis, but on lower, I think it was $300 at an earlier time, and it was almost a kind of defiance.
I think if people feel they are legitimately entitled to appeal, those figures should he lower. Again, it is a kind of petty thing, the setting up of a numbers game. I think $300 should be retained at the very least, even with all the inflationary pressures from which we suffer. It gives a kind of egotistic satisfaction to a judge to play you under the figure and keep it down. He knows he is not subject to the scrutiny of the higher court. A more salutary thing is for lower court judges to be aware that the higher court has overseership. It keeps them much more sensitive to the currents operating in the law.
Apart from that one factor, I find your legislation on the whole quite palatable, and we will vote for it. Thank you.
Hon. Mr. McMurtry: Thank you, Mr. Speaker. There is very little to add to the eloquent support of this bill that we have already heard from the two speakers, except in relation to the matter of appeal. I think this whole issue of the appeals is very much a two-edged sword. I think it’s quite true, what the member for Lakeshore states, that if a judge is sitting on a matter under $100 knowing that it cannot be appealed there could be a temptation to be arbitrary. But I rather think that really plays very little role with judges today, and I rather think that it could be abused by the wealthier litigant through appeals, by forcing the small ordinary citizen through an appeal. And obviously, the only reason for appealing an amount under $500, considering the cost of the appeal, would be on a matter of principle. Regrettably, people of means are more likely to take advantage of that; or to put it more accurately they are more able to afford the luxury of appealing on a matter of principle.
So my concern is that this would detract from the character of the people’s court and could, again, be used as an instrument to beat about the head of the small ordinary litigant who just could not really afford to seriously fight an appeal when it amounted to something under $500. So I would just simply ask, with respect Mr. Speaker, that the member for Lakeshore reflect on that and reconsider his position.
Motion agreed to.
Ordered for committee of the whole House.
Hon. Mr. McMurtry: I am prepared to go into committee now, although there is one other bill in committee of the whole House; I think it is Bill 77. I wanted to advise the members that two or three issues -- not of major importance -- have been raised by the rules committee of the Supreme Court, so I was going to ask that the committee of the whole House defer the consideration of Bill 77 until next week. Perhaps in view of the fact that there are some parallels between both bills, they should both stand over until next week.
Mr. Breithaupt: Mr. Speaker, we would attempt to have both of these bills dealt with next Tuesday. I believe there is a request to revert to orders of the day, and perhaps we could complete our evening once that item was attended to.
Mr. Foulds: Mr. Speaker, could we ask the unanimous consent of the House to revert to bills so that the member for Scarborough West (Mr. Lewis) may introduce for first reading his balloted item. The precedent was set earlier this afternoon, Mr. Speaker, when it was agreed to do so for the member for Durham East (Mr. Cureatz).
Mr. Speaker: Does the hon. member for Scarborough West have unanimous consent?
Agreed.
Mr. Lewis: I much appreciate the House’s indulgence. It was my neglect that precipitated this.
INTRODUCTION OF BILLS
TOXIC AND HAZARDOUS SUBSTANCES ACT
Mr. Lewis moved first reading of Bill 90, An Act respecting Toxic and Hazardous Substances.
Motion agreed to.
Mr. Lewis: Mr. Speaker, this bill is quite consciously put forward to fill the gap which is not covered by the present Occupational Health Act dealing with the testing of hazardous substances by an independent research agency prior to their introduction into the work place or the environment
On motion by Hon. Mr. McMurtry the House adjourned at 10:26 p.m.