JUSTICES OF THE PEACE ASSOCIATION OF METROPOLITAN TORONTO
CANADIAN BAR ASSOCIATION--ONTARIO
CONTENTS
Monday 30 May 1994
Subcommittee report
Courts of Justice Statute Law Amendment Act, 1993, Bill 136, Mrs Boyd / Loi de 1993 modifiant des lois en ce qui concerne les tribunaux judiciaires, projet de loi 136, Mme Boyd
Justices of the Peace Association of Metropolitan Toronto
Frank Devine, member
Canadian Bar Association--Ontario
Kevin Carroll, president
Jon Snipper
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
*Chair / Président: Marchese, Rosario (Fort York ND)
Vice-Chair / Vice-Président: Harrington, Margaret H. (Niagara Falls ND)
Akande, Zanana L. (St Andrew-St Patrick ND)
Bisson, Gilles (Cochrane South/-Sud ND)
*Chiarelli, Robert (Ottawa West/-Ouest L)
*Curling, Alvin (Scarborough North/-Nord L)
*Haeck, Christel (St Catharines-Brock ND)
Harnick, Charles (Willowdale PC)
*Malkowski, Gary (York East/-Est ND)
Murphy, Tim (St George-St David L)
Tilson, David (Dufferin-Peel PC)
*Winninger, David (London South/-Sud ND)
*In attendance / présents
Substitutions present/ Membres remplaçants présents:
Murdock, Sharon (Sudbury ND) for Mr Bisson
Wood, Len (Cochrane North/-Nord ND) for Mrs Harrington
Also taking part / Autres participants et participantes:
Winninger, David, parliamentary assistant to Attorney General
Clerk / Greffière: Bryce, Donna
Staff / Personnel: McNaught, Andrew, research officer, Legislative Research Service
The committee met at 1607 in room 228.
SUBCOMMITTEE REPORT
The Chair (Mr Rosario Marchese): Before we begin with our deputants, I'd like to read a subcommittee report into the record.
"Your subcommittee met on May 19, 1994, and recommends that:
"1. Pursuant to standing order 108, the committee proceed with the matters of the control of ammunition and community-based crime prevention initiatives as detailed in the motion approved by the committee on Monday 16 May 1994; and commencing on June 6, 1994, that three days be allocated for public hearings and three days for preparation of an `action-oriented' report.
"2. The committee will request the House leaders (by order of the House) to allow the committee to meet on Wednesday, June 8, 1994, following routine proceedings for the purpose of public hearings.
"3. Individuals/groups will be invited to appear to provide evidence based on each caucus submitting a list of names to the clerk. Among the 12 individuals/groups to be invited will be two professors or lawyers specializing in constitutional law, to be invited by the clerk. The time slots for all witnesses will be for 30 minutes.
"4. If one of the individuals/groups from a caucus's list is unable to attend, the caucus will provide a replacement.
"5. That the constitutional lawyers/professors who are requested to provide expert testimony be compensated in accordance with a policy established by the Speaker of the House as follows: A reasonable sum may be allowed for a witness who appears and gives expert testimony up to an amount of $350 for each day of giving evidence, and each additional day authorized by the committee.
"6. The ministers of Consumer and Commercial Affairs, Solicitor General, Attorney General will be invited to attend and participate in the report-writing stage of the committee's considerations.
"7. Should any other individuals/groups wish to be scheduled, they be put on a waiting list pending a cancellation; and they be invited to submit written briefs to the committee by June 6, 1994.
"8. The research officer will prepare a summary of recommendations by June 10, 1994, for immediate distribution to committee members."
That's the report. Any questions or discussion?
Mr David Winninger (London South): Originally our schedule in connection with Bill 136 called for clause-by-clause on May 31 and again on June 6. Has that now changed so that we complete clause-by-clause tomorrow?
The Chair: I'm certainly hoping that's what will happen. Based on the discussion we had with other committee members, it was assumed, or at least I interpreted it to mean, that we shouldn't require more than one day of clause-by-clause.
Any other questions or statements? Seeing none, can I have a motion to approve this report?
Ms Sharon Murdock (Sudbury): I so move.
The Chair: All in favour? That carries.
COURTS OF JUSTICE STATUTE LAW AMENDMENT ACT, 1993 / LOI DE 1993 MODIFIANT DES LOIS EN CE QUI CONCERNE LES TRIBUNAUX JUDICIAIRES
Consideration of Bill 136, An Act to amend the Courts of Justice Act and to make related amendments to the Freedom of Information and Protection of Privacy Act and the Justices of the Peace Act / Projet de loi 136, Loi modifiant la Loi sur les tribunaux judiciaires et apportant des modifications corrélatives à la Loi sur l'accès à l'information et la protection de la vie privée et à la Loi sur les juges de paix.
JUSTICES OF THE PEACE ASSOCIATION OF METROPOLITAN TORONTO
The Chair: I invite the Justices of the Peace Association of Metropolitan Toronto, Mr Frank Devine and Mr Patrick Deacon. Welcome to the committee. You have half an hour for your presentation and questions.
Mr Frank Devine: Mr Chair and members of the committee, there are two associations representing justices of the peace in the province of Ontario: the Ontario-Wide Justice of the Peace Association, and the Justices of the Peace Association of Metropolitan Toronto. This submission has been prepared for your consideration by the Toronto association and we are representatives of that association.
We are here of course to speak to Bill 136, and with the time provided, we will have to limit our comments to the amendments or, perhaps more appropriately, the lack of amendments to the Justices of the Peace Act.
We feel it is our duty to advise this committee of an injustice, an injustice we believe is the result of discriminatory practices employed by the Ministry of the Attorney General in dealing with justices of the peace over a number of years. This bill does nothing to address these discriminatory practices and in fact will aggravate the situation.
"Discrimination" is not a word we use lightly, but when discussing our situation, the textbook definitions, namely "to distinguish unfavourably" or "prejudicial action or treatment," accurately describe the circumstances. If we are being discriminated against, it should be a matter of grave concern to every member of this committee as well as every member of the Legislature.
The stated purpose of Bill 136 is to improve the justice system. It sets out new methods for dealings between the executive branch of government and the judicial branch of government. There are contained in the bill new complaints and discipline procedures and a method for determining remuneration, the purpose of which is to enhance the independence of the judiciary.
In discussing the framework agreement contained in the legislation, we find the quote: "Further, the agreement is intended to promote cooperation between the executive branch of the government and the judiciary and the efforts of both to develop a justice system which is both efficient and effective while ensuring the dispensation of independent and impartial justice."
There is, however, a glaring error in the proposed legislation in that it almost totally excludes an entire branch of the judiciary, namely the justices of the peace. One must ask the questions: Is there no need to develop an efficient and effective justice system when justices of the peace are involved, and, more important, is there no need to ensure the dispensation of independent and impartial justice when justices of the peace are involved?
Before one considers what are appropriate amendments to the Justices of the Peace Act, one must first address the status of justices of the peace. The question of whether justices of the peace are members of the judiciary or employees of the Ministry of the Attorney General has been a chronic problem and a matter of considerable anxiety to us.
The matter was ventilated to some extent in the decision of the Ontario Court of Appeal in Currie v the Niagara Escarpment Commission. That case is reported in Canadian Criminal Cases, and I refer you to document 1 in your folder. In that case, His Lordship, Mr Justice MacKinnon, stated:
"The use of section 11(d) of the charter to attack a whole branch of the judiciary, some of the members of which exercise judicial powers and some of whom do not, is a rather difficult concept."
We felt that this judgement of the Court of Appeal supported our belief that we were members of the judiciary, and we assumed that the Attorney General would take cognizance of that decision by introducing appropriate measures to ensure that our status and independence were properly secured.
The assumption proved to be unduly optimistic. In fact, the lack of any action on the part of the ministry led us to doubt that the Attorney General was interpreting the decision of the Court of Appeal in the same manner as the justices of the peace.
Letters were sent to clarify the situation. As you can see by the documents numbered 2, 3 and 4 in your booklet, the present Attorney General and her two predecessors in office are very much aware that justices of the peace are members of the judiciary.
Although the highest court in the province and the chief law officer of the crown have clearly stated that we are members of the judiciary, we have learned that being members of the provincial judiciary is not the same as being perceived and treated as members of the provincial judiciary. Despite the clear indication of our status, the officials of the Ministry of the Attorney General continue to treat us as management employees, which in turn leads others to believe we are ministry employees. We offer just a few examples:
In the course of a seminar conducted in January 1990 for justices of the peace, a member of the Attorney General's legal staff addressed the topic of court reform. I asked bluntly if she was of the opinion that justices of the peace were members of the judiciary. She declined to offer an opinion on the subject and referred the question to the two provincial judges on the panel. One of the judges expressed the opinion that we were not members of the judiciary, and the other judge stated that without the opportunity to research the issue he would adopt his colleague's opinion.
I now refer you to document 5 in your folder. In a letter dated March 2, 1992, directed to me, the director of human resources for the Ministry of the Attorney General states that I am a management employee.
I refer you to document 6. In a memorandum to her staff regarding the visit of the assistant deputy Attorney General and the executive director, the court services manager of the Metro East court in Toronto describes meetings with the judiciary (criminal and family) and, at a later time, meetings with the justices of the peace.
The point we are making is that judges, directors, court service managers and even one of the ministry's lawyers sent out as a spokesperson to explain court reform are not aware of our status. If the problem were just a matter of pride or prestige, it would not be a major concern to us, but it is much more serious than that. It affects our everyday working conditions, our livelihood by way of salary, and may even affect our pension and retirement.
If we were management employees, job specifications would be drawn up for our position, as they are for every management position in the public and civil service. These job specifications set out the qualifications, duties and responsibilities, and then the position is classified. The classification results in an appropriate salary being paid for the position. The benefits of the position are clearly set out in statute.
Our position of course is not subject to classification and therefore there is no guide for anyone to use in determining an appropriate salary. We do not fall under a manager who controls a budget but receive assignment directions from judges, so there is no person responsible for our accommodations. In our view, it is not even clear in statute whether we are entitled to a pension.
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As recently as June 14, 1993, I expressed my concern to the Deputy Attorney General regarding the lack of clear evidence of our designated membership in the public service pension plan, and I refer you to document 7. In reply, I received the letter and enclosed documents marked number 8. I ask you to view the first paragraph of the second page of those documents. It would appear they had great difficulty in finding any evidence to establish we were in a pension plan, but they found a 1968 order in council and sent it to me as proof that we have a pension.
We now refer you to the order in council itself. It's the last page in the group of documents in number 8. It is a tattered piece of paper with all kinds of alterations referring to a piece of legislation no longer in existence, pertaining to a class of justices of the peace now extinct, and bearing a signature that cannot be deciphered.
We ask each of you if you would be content to rely on this document to establish your pension. We feel the ministry officials should have been too embarrassed to even send this document to us.
This uncaring attitude with regard to justice of the peace pensions has a long history. Several years ago, a report of the Royal Commission on the Status of Pensions in Ontario was released, and I refer you to document 9. It clearly recommended that all members of the judiciary should be in the same plan. The Mewett Report to the Attorney General on the Office and Function of Justices of the Peace in Ontario contained the following recommendation for justices of the peace: "That an acceptable pension plan be established."
Notwithstanding these recommendations in two separate reports, reports commissioned by the government, when a separate pension plan was devised for the provincial judiciary a few years back, the justices of the peace were deliberately excluded from the plan.
We feel the ministry's position on the status of justices of the peace could be accurately described as follows: Justices of the peace are members of the judiciary for legal reasons only, but in policy and practice they should not be considered or treated as members of the judiciary.
Referring to the bill itself, our first question was why the Justices of the Peace Act was being amended at all. In our view, it was quite clear from the first draft that the purpose was to eliminate the office of the coordinator of justices of the peace. The duties of the present coordinator were to fall under the office of the Associate Chief Judge, who would also have other responsibilities. Justices of the peace have past experience with such a system. We discovered that when the interests and concerns of justices of the peace were the responsibility of a chief or senior judge who also has other responsibilities, the interest of the justices always seemed to be secondary. That is one of the very reasons the office of the coordinator was established. It is our opinion that the office has worked very well in its first few years of existence. You will understand our surprise and dismay when we learned it was to be eliminated.
We have voiced strong objections to both the Chief Judge and the Ministry of the Attorney General regarding changes to the office of the coordinator. It is our view that the role of the coordinator is a full-time position and cannot be performed properly on a part-time basis. If anyone has any doubt about this fact, they need only study the hectic schedule maintained by the current coordinator for the past three years. There are approximately 600 justices of the peace in the province, and our position is that it is not unreasonable to have one person appointed with the exclusive responsibility to operate the office of the justice of the peace.
In recent weeks, we have been assured by the Deputy Attorney General that it is not the intention of the government to eliminate the office or reduce the role of the coordinator. We have also been assured by the Chief Judge that it has never been his intention to eliminate the office of the coordinator. We have been given to understand that the only change being made is in the title and that the office will continue to exist in its present form. If this is the case and the only change being made is in the title, then we have no objection to the amendment.
There is also a last-minute amendment to the Justices of the Peace Act being proposed that would make available to the Justices of the Peace Review Council the dispositions that the bill makes available to the Judicial Council. We were first notified April 24, 1994, that such amendment may be put forth, but it was some time later before we received the draft amendment through the coordinator's office. It expands the dispositions available to the review council after a hearing is held into the conduct of a justice of the peace. It appears that these additional options are available only after a full public hearing has been conducted. Also, in relation to provincial judges, the Judicial Council has the authority to set up a mediation process for complaints. This does not appear to be the case for justices of the peace.
This committee may wish to investigate whether there is some method of the review council taking disciplinary action and dealing with less serious complaints prior to putting the taxpayers to the expense of a full public hearing. Having not had the opportunity for a more detailed study of the matter, we offer no specific suggestions at this time.
As a general principle, the position of both justice of the peace associations is that anyone performing a service for the public, especially anyone who is being paid out of the public purse, must be accountable for their conduct. We fully support the concept that there should be a complaint and discipline process for members of the judiciary that is both fair to the public and the judicial officer involved. We also support the position that the process should be consistent for all members of the provincial judiciary.
I refer you now to document 10. You will see by the letter we received notifying us of a possible amendment that the reason for the amendment was to "make this improvement and the complaints and discipline process for justices of the peace, consistent with what is being done for other members of the provincial judiciary."
We have to question why the government is being inconsistent in its efforts to be consistent. The bill very clearly sets out a method for dealing with the remuneration of all members of the provincial judiciary, with the exception of justices of the peace. Would it not be consistent to provide a method of dealing with the remuneration of justices of the peace? The bill enshrines the Provincial Judges Remuneration Commission into the Courts of Justice Act and makes the findings of the commission in relation to salary binding on both the government and the judiciary. Would it not be consistent to enshrine the Justices of the Peace Remuneration Commission into the Justices of the Peace Act and make the findings of the commission in relation to salary binding on both the government and the judiciary?
There are a number of questions we would like to see debated as the committee discusses sweeping changes pertaining to the judiciary in Bill 136:
(1) Why is the justices of the peace branch of the judiciary segregated from the other branches of the provincial judiciary?
(2) In providing a method of determining remuneration for the provincial judiciary, is it proper to exclude one branch, namely the justices of the peace?
(3) How are justice of the peace salaries determined at the present time?
(4) How have justice of the peace salaries been determined for the past 25 years?
(5) What criteria are employed and what comparators are used in determining justice of the peace salaries?
(6) Why are justices of the peace excluded from the pension plan established for the provincial judiciary?
(7) Are justices of the peace employees of the Ministry of the Attorney General? If not, who is their employer?
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Our association is not here today to ask this committee to rewrite this entire bill by amending the Justices of the Peace Act so that it contains a corresponding section to every section of the Courts of Justice Act pertaining to provincial judges. However, we respectfully request that the committee consider the importance of a truly independent judiciary in a democracy. We urge you to treat this as a non-partisan matter and give unanimous consent to three amendments as follows:
(1) Amend the Justices of the Peace Act to incorporate the Ontario Justices of the Peace Remuneration Commission into the act.
(2) Amend the Justices of the Peace Act to make the recommendations of the Ontario Justices of the Peace Remuneration Commission in relation to salary binding on both the government and the justices of the peace.
(3) Amend the Courts of Justice Act to incorporate the Justices of the Peace Act as a new section of the act.
The adoption of these amendments would help end several years of discrimination, clearly acknowledge that justices of the peace are members of the judiciary, and would enhance the independence of the judiciary by taking some control away from the Ministry of the Attorney General and putting it in the trust of an independent body of citizens under the Ontario Justices of the Peace Remuneration Commission.
Part of our mandate as members of the judiciary is to ensure that persons are treated fairly and equally under the law. We are requesting that the members of the Legislature ensure that justices of the peace receive fair and equal treatment under the law. Thank you.
Mr Robert Chiarelli (Ottawa West): I apologize that I was late getting in and didn't hear the first part of your submission, but I'm interested in knowing what level of consultation with your association existed before Bill 68 was introduced last June or July. As you're aware, this legislation was introduced in one form last summer, was subsequently withdrawn because there was a lot of concern from a number of groups, and was reintroduced as Bill 136. To what extent were you able to have meaningful dialogue before Bill 68 was introduced for first reading on the issues in this bill, and second, to what extent did you have meaningful dialogue with the ministry when Bill 136 was introduced, or when the legislation was reintroduced?
Mr Devine: Prior to Bill 68, there was no dialogue whatsoever. We received the bill and saw they were eliminating the office of the coordinator and we started making our views known.
After Bill 136, I attended one meeting to argue about this point. I also had a meeting with the Chief Judge. At that meeting, as I mention in the brief, the government was assuring us that there was no intention to eliminate the office of the coordinator, and when I met with the Chief Judge he said that wasn't his intention either. But it appeared to us in the first draft of the bill that that was the intention.
Mr Chiarelli: In terms of the dialogue you've been having with the government relative to your three recommendations, what's your understanding at present of the government's response to these three recommendations?
Mr Devine: I know they're opposed to making the remuneration commission findings binding on both. At that one meeting we had, I mentioned putting the Justices of the Peace Act into the Courts of Justice Act; they certainly haven't done it here, but they didn't say they were outright opposed. To the other amendment of putting into the Justices of the Peace Act the remuneration commission, they've said no as well.
Mr Winninger: I listened very carefully to a number of your points, and I have a couple of questions arising out of your submissions.
First of all, you've suggested that the Attorney General introduce appropriate measures to ensure that your status and independence were properly secured. I recall the fact that it is only relatively recently that we changed the way in which appointments to justices of the peace are conducted, with the establishment of local advisory committees made up of a diverse group of individuals that would recommend appointments of justices of the peace to the Attorney General; and also the introduction of full- and part-time salary remunerations to JPs as opposed to piecework in the past. Does that not go a long way towards establishing independence and the kind of status that you're seeking here today?
Mr Devine: I agree that the new process of appointments is a great improvement, but as I recall, it was merely a policy statement by the Honourable Howard Hampton in the House. Of course, if it's followed -- and it appears it's being followed -- that's fine, but it wasn't put in as an amendment to the act, nor were we consulted before. But having said that, that is a much better situation and certainly enhances independence in that a committee is choosing these people and you don't just have perhaps the friend of a friend of somebody automatically appointed. It does a good deal to enhance the independence. It is a step forward.
In the second point you're making, the conversion situation is an attempt to put everyone on salary but split the job into two different categories, presiding and non-presiding, and have two different salaries. But the bottom line is that there is no proper method of determining what those are.
They're starting a thing called the Justices of the Peace Remuneration Commission, but as it's presently set up, it's merely nothing more than an advisory board. It can hold hearings, make recommendations, and we would even like to know who makes the decisions. We assume it's civil servants in the Ministry of the Attorney General, under the Deputy Attorney General, who decides their salaries. That's all we can find out. Perhaps the committee can find out exactly how it's done.
The Provincial Judges Remuneration Commission is much different. It's right in the act and it's binding. That's what we would like to see, and we think that's fair. If we are properly paid, the ministry has lawyers and finance people who will convinced the committee of that. If we're overpaid, they'll convince them of that and our salaries will be reduced. If we are underpaid, hopefully they will take steps to correct it.
Mr Winninger: I have a number of other questions, but the Chair has cautioned me that time is exceedingly short, so I'll make this general. I understand that there's a province-wide association of justices of the peace that numbers some 500 members, plus or minus.
Mr Devine: Yes, there is.
Mr Winninger: And your representation is approximately 40 justices of the peace from the Toronto area?
Mr Devine: We're 48, I believe, at the present time.
Mr Winninger: I also understand that the provincewide association supports the bill as currently drafted. It may well welcome the amendments we're making around added dispositions to the Judicial Council as they affect justices of the peace, but is it not true that the provincewide association actually supports the current wording of the bill? If so, why is it that your particular group takes a different position?
Mr Devine: I can't agree with you there. The Ontario-wide association -- the president's actually observing today. We're not at differences in what's contained in here; they just didn't feel this was the forum that anything would be done. If you're asking me, are they of the opinion that the Justices of the Peace Remuneration Commission should be binding and placed into the act, the answer is very much yes, but they've been told it isn't going to be done, so they've left it at that. I am certain they believe it should be binding, and as a matter of fact I've been at meetings with their president and we both asked the same question: Can we not make this similar to the judges?
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Ms Murdock: We had a discussion beforehand but, surprisingly, we didn't discuss any of this. I articled with the crown and spent almost my entire articling year before justices of the peace, so I have an feeling for them.
I want to go to where you change the coordinator to Associate Chief Judge--Coordinator of Justices of the Peace and ask the parliamentary assistant for a clarification. According to page 6 of the presentation, the change is being made in title only. I'm not reading it that way. I'm reading it that an Associate Chief Judge would be given the title of coordinator of justices of the peace. Am I reading that wrong?
Mr Winninger: My understanding is that there was a desire to link the provincial court more closely with the justices of the peace, and in fact what we have here is provision for the appointment of the office of the Associate Chief Judge--Coordinator of Justices of the Peace. This associate judge will be vested with responsibilities for the justices of the peace as a coordinator, so it's not as though we're taking that particular responsibility and diffusing it in any way.
Ms Murdock: But it would mean that the body that is being the coordinator at the present time would no longer be in charge of the 600 justices, that a person who has other duties as well would coordinate the justices. Is that what you're saying?
Mr Winninger: The Associate Chief Judge may in fact have many duties, but one that will be specifically assigned will be the duty of coordination. It's not to say that a judge of the provincial court, an Associate Chief Justice, can't deal with many different responsibilities at one time and that it should be within the exclusive purview and that one particular judge should devote all of his or her time to those responsibilities.
The Chair: We'll have to find another time to discuss this matter. Mr Deacon and Mr Devine, thank you very much for appearing before this committee today.
CANADIAN BAR ASSOCIATION--ONTARIO
The Chair: I invite Kevin Carroll, Stephen Whitzman and Brad Hartley, from the Canadian Bar Association. Thank you for coming. We have half an hour.
Mr Kevin Carroll: Thank you very much, Mr Chair, ladies and gentlemen. It is always a pleasure for the Canadian Bar Association of Ontario to appear before this committee, as we have made many submissions to you in the past on a great variety of bills. Today I am happy to tell you that the bar association wholly endorses what this committee has done in terms of this legislation, which I suppose to some of you will come as a bit of a surprise. Frequently we are here to criticize legislation or proposed legislation, sometimes very vociferously and other times perhaps a bit more subtly, but when we attend to be critical, I think it is also balanced and fair that we come and advise you that we think you have done an outstanding job on this piece of legislation.
As was mentioned a few moments ago to our predecessors here before you, the bill was in a previous form and many amendments and changes have been made. We are particularly pleased that a number of the suggestions and submissions in two of the bar association's recommendation papers to you have been adopted, that is, particularly recommendations of the Judicial Appointments Advisory Committee -- Mr Whitzman is available to respond to questions any of you may have in that regard -- as well as the submission to the Attorney General on the composition of Ontario Judicial Council.
I think often that when a bill of this sort is in its drafting stage, in its conceptual stage, many have a variety of ideas as to how it ought to read. The concepts which are set forth in this particular bill require considerable forethought, because you must anticipate what the users of the justice system must have and later be forced to live with.
In our respectful submission to you, a great deal of forethought and insight has been shown here, and we wish you to know that, with our warmest congratulations, and urge that each of you with respect to your own parties will pursue the speedy passage of this legislation.
If you have any questions for us, we would be happy to respond.
Mr Chiarelli: There's been some comment about the speed with which the new uniform Family Court will be implemented. Is the bar association satisfied with the time lines on implementation of the uniform Family Court?
Mr Carroll: Generally, yes, Mr Member. I have discussed this matter in detail with the chair of our family law section, Mr Gerald Sadvari, and his section, having reviewed it in great detail, is quite satisfied. The sooner the better, of course, because I think there is certainly a public need for disputes to be heard within that setting and the changes that you have made.
Mr Chiarelli: What's your understanding of the reasons for the delay or the long lead time to get the province fully up to speed with this initiative?
Mr Carroll: Are you referring to what was the pilot project in Hamilton-Wentworth?
Mr Chiarelli: Basically, yes. What we have had is a pilot project in Hamilton-Wentworth, we're now legislating the uniform Family Court, and my understanding is that within the foreseeable future it will be extended to two, perhaps three, geographical locations across the province.
Mr Carroll: I'm not certain what the strategy is in terms of the geographical locations. I would have thought that with a pilot project started in Hamilton-Wentworth something like 13 years ago, that would have been sufficient time for us all to have understood how that court would work.
Some years ago, when I was not sitting in the chair that I am now but involved with the bar association, I had considerable discussion with one of the judges who sat on that pilot project, and it was his view that there was no good and rational reason why that court would not have sat throughout this province.
I suspect because there are some overlapping jurisdictions between the provincial court (family division) and the federal appointees or the appointers of the new Unified Family Court judges that there are some financial considerations there, as well as working out some administrative details.
We would urge you perhaps to take to your counterparts in Ottawa a message of perhaps giving this some priority. On Saturday I had the opportunity of speaking with the federal Minister of Justice. He does consider it a matter of high priority.
Mr Chiarelli: My understanding, having also spoken to him two or three weeks ago, is that from the federal side they are very willing to appoint judges to fill the complement that might be necessary to extend the Family Court across the province, but for their part, they're waiting for a commitment from the province to provide the necessary infrastructure -- courtroom space, mediators, everything that goes with the provincial side of spending. The federal government was not going to appoint judges unless they were satisfied they had a commitment that the infrastructure was there so they'll have infrastructure to work with.
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Mr Carroll: That I think is an extremely important point, because, as I think we know, certainly in the larger urban centres the courthouses are already overburdened. If there were appointees travelling or migrating from the now provincial court (family division) to the Unified Family Court, then the courtroom facility may not be as significant a problem. However, I do think that space is always at a premium in almost any courthouse in the province.
I practise in Barrie and I can assure you that there isn't one courtroom on any given day that's not in use. There is a flow back and forth between the General Division and the Provincial Division, so that if the General Division judge is not sitting or using a courtroom, that will be made available. A good spirit of cooperation is seen in a number of jurisdictions, but infrastructure is a significant point.
Mr Chiarelli: One last, final point. Eight or 10 days ago, the Criminal Lawyers Association presented a brief to us and indicated that they had some concerns about the Judicial Appointments Advisory Committee. Are you familiar with or aware of those concerns?
Mr Carroll: I am to the extent, and the bar association probably shares that view, if I recall it correctly, that we thought it was somewhat overstaffed with laypersons. I think it is certainly wise, and in this time and age we are to some extent demystifying judicial appointment, which I think is a laudable approach. However, when looking to the selection of judges, the judiciary and the legal profession may have an opportunity through their own networking to gather the information more quickly.
For example, if a lay member of the panel wanted to make some inquiry about a particular lawyer as to whether or not he/she would be suitable for an appointment, I think it would be harder for the layperson to gather reliable data, whereas someone in the legal profession probably, if not on a first call, certainly by a third call, would have some better idea of the suitability of the candidate. To that extent, we share that view.
I might urge you, by way of minor criticism, if you were so disposed to amend the bill, to perhaps reduce the number of laypersons marginally and increase the number of legally qualified persons by the corresponding margin.
Mr Chiarelli: Thank you very much. We appreciate your support for the legislation. As you're probably aware, both opposition parties strongly support the legislation and would like to see speedy passage as well.
Mr Winninger: I'd also like to thank you for coming and for your own support for the legislation. The Canadian Bar Association has always offered strong advocacy for the legal profession while at the same time promoting the public interest. I'm also happy to hear that our legislation has responded to some of the very specific requests and submissions you've put forward. Thank you for your remarks today.
The Chair: Thank you all for making this appearance and for helping us out with this piece of legislation.
JON SNIPPER
Mr Jon Snipper: Thank you. First of all, I'd like to commend Ms Bryce, I think it is, who was so kind in assisting me in getting time and telling me what I should do and where I should go. You've got a very, very excellent clerk. I must say I was very impressed. I've never dealt with one before, but if this is the example that's being set, it's a high one.
Next, let me tell you a bit about who I am. I'm coming down as a sole practitioner who is certified as a specialist in family law. I've been practising 22 years at the bar and have a fairly extensive civil litigation background and now I'm pretty much restricted to family law.
Unfortunately, the County of Carleton Law Association, of which I am a member, simply did not have time to put together a brief to present to your committee. That association is vitally interested in what I would call the Unified Family Court, called in this legislation "the Family Court," as we have significant problems in family law matters in Ottawa that we feel can partially be addressed by the implementation of this court in Ottawa.
However, in terms of the submission I make, I have consulted with other lawyers, family law lawyers, and I have spoken to a provincial court judge who was extremely familiar with family law matters before that person went on to the criminal division of the provincial court. The remarks I am going to make, certainly about the legislation, probably would be reflected by virtually everybody in the family law section of our local bar.
I'd like to say, first of all, that I support fully the remarks that I've just read in the paper presented by the Ontario Family Law Judges Association dated May 27. Ms Bryce very kindly just gave me a two-part section and while I may not support some of the general comments made about judicial independence etc, I certainly support the comments made in part 2 of their remarks about the need for a Family Court. So I'd like to go on record as stating that.
There are some housekeeping matters that I'd like to bring to your attention as a family law practitioner that are omissions in the act. They're not serious, but they're the kinds of things that can bedevil the new court and cause procedural wrangles which are completely unnecessary at a time when the courts are burdened with substantive matters and the last thing they need is to waste time sorting out procedural matters that can be easily done here in this committee and in the Legislature.
I'm going to address in the first part of my paper, point number 1, section 21.8(3), which is the schedule of matters that are to be heard by the new Family Court. There are a number of glaring omissions, in my opinion, and these are opinions, as I say, shared by other family law practitioners. I'm not sure why these omissions have occurred or whether there's some reason or it's just oversight. However, I'm down here at my own expense and time to hope to draw them to your attention.
The first thing absent is part V of the Succession Law Reform Act. That is what used to be called dependants relief legislation, and that is really cases in which after somebody who has died who has an obligation to support a dependant, namely, a child or spouse, the child or spouse has the right to sue the estate for proper support.
It's my view, and I think the view of every family law lawyer, that that properly belongs within the jurisdiction of the Family Court and it's an absolute mystery to all of us why it's missing. In fact, you don't see general practitioners practising that kind of law. This is part of the family law specialist's domain and to find yourself in the general court litigating over support, which should clearly be in the Family Court, is odd, as I say.
It's not there, at least in the draft of the act that I was kindly sent by Ms Bryce, but it should be there and it's a mistake not to be there. We're going to end up with General Division judges deciding support issues who have no familiarity with the general level of support, how it's assessed and all the rest of it. This is clearly in the domain of the Family Court. Please amend the legislation to make sure it's there.
The second thing that's missing, and I'm sure it's unlikely to have been thought of because it doesn't arise much, but it arises frequently in Ottawa, is that appeals under the Arbitrations Act on family law matters should go into the Family Court. While arbitration, I gather, is not widespread outside of Ottawa, it is being used more and more frequently. In fact it's fair to say that most senior family law lawyers in Ottawa, because of very grievous difficulties with the General Division court in Ottawa, are now arbitrating most issues. Nobody wants to wait anywhere from a year to three years to get their cases heard.
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Under the Arbitrations Act there is a right of appeal from an arbitrator to the General Division court. If you are going to try to keep the Family Court dealing with family law matters, then clearly appeals from arbitrators on family law issues should be dealt with in the Family Court. This is, I suggest to you, a housekeeping matter that wouldn't cause anybody any grief but would do all of us in the family law field a big favour, so that where there are decisions coming down interpreting the law as it applies to arbitrators' decisions in family law matters, those matters are done by a court that's competent and skilled in family law matters and not the General Division court.
Another issue that's missing -- again, just housekeeping, but if you don't do it, you're going to cause a lot of grief for the public and a lot of grief for us as lawyers and completely unnecessary expense to the public -- is having dual proceedings in different courts unnecessarily, proceedings between spouses under the Partition Act. It happens frequently that husbands and wives, covivants of whatever sex, own property together. What happens when those relationships disintegrate is that quite frequently the property has to be sold or be dealt with. That, by law, is dealt with under something called the Partition Act, which deals with property that's held together.
Again, that seems like an obvious matter that should come into the schedule of cases that are dealt with. You would have to be selective, obviously. It would have to be Partition Act proceedings between persons who are conducting other litigation or between spouses or, as I call it, near-spousal relationships. That's the best word I can use to give you that catch-all phrase for the myriad of relationships that now are called spousal. Indeed, if the Ontario Law Reform Commission has its way, almost all these relationships are going to be treated in the same way as married relationships between heterosexuals.
The Partition Act is a housekeeping matter and the appropriate wording has to be adopted to make sure that you don't catch people who aren't in a spousal or near-spousal relationship.
Another housekeeping matter is damages arising out of breaches of domestic contracts or arising from the spousal relationship. Believe you me, folks, there is a growing field out there for lawyers in terms of spouses and near-spouses suing one another for the kinds of wrongs that they inflict on one another other than the routine support and property division.
I myself have been involved in a case in which a wife was suing her husband for damages for his brutal physical conduct towards her. I have been involved in a case in which a woman launched a proceeding to sue her husband for herpes that she received during the period of the marriage. These were cases where one was joined in another proceeding but one was completely independent, outside of the proceeding, and wouldn't have been caught by this legislation.
I encourage you that, if your point is to try and catch in one court family law matters, this kind of a matter be brought into play. It's interesting. If you were actually to look at the legislation, you'll find that the schedule does deal with domestic contracts. Strangely enough, it doesn't talk about damages for breaches, and that's a growing field. It talks about interpretation, enforcement or variation of these contracts, but nothing about lawsuits for damages. That should be there.
I'd like to reiterate that the reason I'm making these points is for the benefit of the public, so that members of the public don't find themselves going to unnecessary expense of litigating in two separate courts or being the guinea pigs who spend a fortune on lawyers to decide whether or not an interpretation of the act includes this kind of relief. I don't want to have to spend time explaining to a judge why she or he should have to include something in an act that can be corrected here and now.
There's another issue, point E in my brief, and that relates to something called the parens patriae jurisdiction. For those of you who aren't lawyers or those of you who are lawyers but haven't practised family law, there is a general provision by which what used to be known as the Supreme Court of Ontario, now the Ontario Court (General Division), had the right to supervise the welfare of children. If it was found that there was a loophole or a gap in the legislation affecting children, the court would exercise its general jurisdiction as the protector of children to do what was right for the child even though the legislation didn't address the issue.
The courts have said that the only court that has that jurisdiction is the Ontario Court (General Division), which is the successor to the Supreme Court of Ontario. It's imperative that this jurisdiction be removed from that court and be put in the Family Court, where there is a Family Court, for the obvious reason that that's the court that's now going to be dealing with all family law matters. So please give that court the right to decide matters on a parens patriae basis.
Clause F relates to having a catch-all clause, because lawyers' ingenuity, as many of you know, is boundless, especially when it comes to thinking of new things that may increase their billings and change the law. I'm being slightly cynical. If you don't have a catch-all phrase, cleverly designed, so that in so far as somehow we've missed what should be done by naming things -- a catch-all phrase that deals with people in spousal or near-spousal relationships litigating a matter that isn't caught in any of the above. And that should again go in the Family Court. I've been practising 22 years, and I could never have dreamed then of the sea change that has occurred in family law and the kind of actions that go on between spouses and near-spouses in the courts. In 20 years, there's been a monumental change. Rather than trying to waste the Legislature's time every time some court decides a new right of action as between these people, why not put a catch-all phrase so that the right court, that is the Family Court, can be dealing with all matters dealing with family law?
That deals with my submissions in terms of amendments to this schedule that I think are necessary if you want the Family Court to be doing all the things that we as family law lawyers are doing as part of our practice. Please just give us one court to practise in; don't spread us into two courts. It's just too expensive for members of the public, and the level of competence in family law matters in the General Division court is going to descend even lower than it is now if you're not even practising it at all.
Section 21.9 is, in my view, a fundamental mistake, and why it is cast the way it is, I have no idea. Section 21.9 deals with the issue of joinder of causes of action to the litigation that's going on under the schedule litigation. For instance, the way the schedule is right now, if you sued someone for a divorce, one spouse sues another for divorce, and also has to bring a Partition Act application or sues for damages, as the legislation reads now, that person is going to have to go to the expense and waste the judge's time deciding whether or not that add-on can indeed be added on and tried in the Family Court.
It's my submission to you that it should be the reverse; that once you're suing somebody, let them sue them in one court, and if the person who is being sued thinks that for some very good reason there should be two lawsuits and two separate courts, let that person take up the judge's time trying to persuade a judge why they should be in separate courts. The onus is in the wrong place, and you should be able to issue it as of right.
As a housekeeping matter, that section unfortunately doesn't state when you should make your application for leave. It seems to intimate that the leave should go on in front of the judge who's about to hear the trial. That of course makes no sense at all, to be litigating something right up to the point of trial and then be met with a motion saying, "No, I want you to start all over in another court." It should be made clear, in my submission, that if you're going to make people join actions together, which is the only sensible thing to do, believe you me, then at least make the person who wants to object to the joinder or seek the leave, as the case may be, have to do it right away, right at the beginning so the matter is straightforward. I deal with that in the second paragraph of point 2.
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Those were what I think are the matters of good housekeeping, to make our lives as family law lawyers easier, to make justice more accessible to the public and cheaper. If you don't make these changes, guaranteed you're lining lawyers' pockets, and you're going to start with two courts having to thrash this out. Folks, there is simply no excuse for these changes not to be made. I can't imagine why they wouldn't be made. I'd like to hear from somebody, if there's some expert who's drafted this, as to whether there's any reason why these things weren't done.
I want to dwell now on a little more philosophical --
The Chair: Mr Snipper, 15 minutes have elapsed, a minute or two more. If you plan to go through it, we may not have time for questions.
Mr Snipper: Then I'll be extremely brief.
A significant point to be made is that for some reason there is nothing in the legislation that appoints a senior judge in the locality where there's a Family Court. I cannot emphasize strongly enough how important it is for a court of this nature to have a leader, somebody who can be dealt with, who, when there's a bench and bar committee, can be gone to when there are difficulties, who can give leadership to the court. A court without a local leader is a rudderless ship, quite frankly.
With all due respect to the current Chief Justice of Ontario or Justice David Steinberg, they may be brilliant men but they already have too much to do. Don't ask somebody 150 or 200 or 300 miles from Ottawa or any other centre to start being in charge of the administration of a local court, a Family Court in a place like Ottawa. It's a very fundamental mistake, and I bring this from all of us as lawyers. We want to have a regional senior judge for this court, not somebody out of town who's going to come in on a white horse and try to fix things up when they go wrong. It's a very large mistake in the legislation and I don't know why that's occurred. Whether it's financial or otherwise, it's a mistake, and there should be someone designated.
There is a problem, and I'll just summarize. It relates, in the Family Court matters, to the business of rotating judges in and out of the General Division into the Family Court. Family law is a recognized specialty now in Ontario. You get certified as a specialist by the law society. One of the banes of the existence of family law lawyers is finding yourself in front of a judge who has no interest in or experience in family law, which I think would characterize the majority, if not the vast majority, of General Division judges.
The way the legislation is structured, it seems to me that there is every opportunity for turning this court into nothing more than an adjunct of the General Division court. I make the point in my paper about the fact that there is a failure to specify in the bill what is intended with the permanent judges. How long are they supposed to sit there? Is it for only six months of the year and rotate out? How often are the other judges who aren't family law experts to come in? There are all these kinds of issues.
The last thing I'll say is that you have incorporated a voluntary evaluation of provincial court judges. I think central to the proper administration of judges and accountability of judges now is evaluation of judges at all levels. It should be compulsory and it should be there. There just is no excuse any more for judges not to be part of some evaluation process by the users of the system, and I've dealt with that. I don't know whether constitutionally you could require an evaluation process for General Division judges. It may not be possible; I don't know. But if you ever get the opportunity, do it, and I think that on the provincial court level it should be compulsory. That's the only way there is any way of getting at judges, outside of reporting them individually.
Those are all the comments I'd make in the time I've got, and I hope you'll read the paper.
Mr Chiarelli: I want to thank Jon very much for coming in and making his presentation. I can't respond technically to the points you've been raising. They appear to be very substantive and significant points that perhaps have been overlooked. I would encourage the parliamentary assistant and also people in the ministry to look at your brief very carefully. I will have it by my side when we're doing clause-by-clause, raising questions on it and trying to monitor whether any of your concerns can be accommodated. I do want to thank you for giving us the benefit of your years of experience and comments on it. I think it was a very well-put-together brief.
I want to mention to the Chair and perhaps the clerk that I was under the impression that we had a provision for per diems for witnesses and covering expenses. I certainly would suggest, especially in view of the substance of the brief, that the committee consider a per diem for this witness and covering his expenses.
The Chair: Under some circumstances the Chair would do that. But if that's the request of the committee, we could just approve that today, if you're all in favour, and we'll make the necessary arrangements.
Mr Snipper: I wouldn't want a per diem. I don't mind coming down, but if anyone wanted to cover at least my train fare down here, I'd be delighted.
Ms Murdock: Isn't transportation normally covered?
The Chair: When requests are made by individuals, as a committee we tend to decide how to deal with that.
Ms Murdock: Given what lawyers can make in a day and the fact that you've come all the way from Ottawa, you won't get anywhere near what you would have made in one day at work. We usually cover it; I think that goes without saying.
Mr Snipper: I brought my computer on the train, so it wasn't a complete waste.
The Chair: Mr Snipper, if you'd contact us through Ms Bryce, we'll make the necessary payment for some of the bills you've incurred.
Mr Winninger: Thank you as well. Now that we've got our money concerns out of the way, maybe we'll return to your very specific suggestions. Before I was elected in 1990, a good part of my practice was family law, and I think I can see where you're coming from on a number of these points. However, I need to give you, with the assistance of our policy advisers, some technical responses to your concerns.
If we look at A, B and C, as you're probably well aware, if jurisdiction under the Succession Law Reform Act, the Arbitration Act and the Partition Act were included in this legislation, it would then, I'm told, become exclusive to the Family Court of the General Division. That's certainly a concern and that's why 21.9 was put in there, under appropriate circumstances to yoke these kinds of actions together.
As a practising family lawyer your experience may have been different. I didn't get as heavily involved, perhaps, in succession law reform matters as you do, but 21.9 is designed to address your concern that you not wind up in two courts where it would be entirely appropriate to be in one, but the jurisdiction and the exclusivity of jurisdiction would be a concern.
I might just respond to a few of your points, and then if there's time you can respond in turn. Point D, in regard to "damages arising out of breaches of domestic contracts, or arising from the spousal relationship": You've pointed out quite correctly that in the schedule to 21.8, paragraph 2 is mentioned: proceedings for the interpretation, enforcement or variation of a marriage contract and so on. We believe that damages are subsumed under enforcement there; that's the advice I have today from our policy advisers. You're shaking your head. Maybe I can just make two other points and then, if there's time, we could hear from you again.
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In terms of paragraph E and your concern about parens patriae jurisdiction being vested in the Family Court as well, I'd just point out, in section 21.1, that what we're dealing with is a branch of the Ontario Court (General Division), known as the Family Court, so it's logical to conclude that since it's a branch of the General Division the parens patriae jurisdiction would follow by virtue of the fact that it is, in many respects, a section 96 court that would enjoy parens patriae jurisdiction.
There's just one other point I need to make in regard to a further point you made about the qualifications of Family Court judges, the concern that we don't find judges appearing in the Family Court who have little interest in family law matters. I think that's a very valid concern, judging from my own experience as well as what you've shared today. But subsection 21.4(2) indicates that a judge will not be assigned to the Family Court or preside over the Family Court before receiving authorization from the Lieutenant Governor in Council. It would be our position that those judges who do preside over our Family Court are those who not only display an active interest in matrimonial matters, but also are judges with the appropriate qualifications to preside in those courts. That's our response.
Mr Snipper: I'd like to be treated equally with the justices of the peace.
In response to your point that it would then become an issue of sole jurisdiction of the court, I'm not quite sure what it means. If it means that part V of the Succession Law Reform Act and the Partition Act, circumscribed to deal with the appropriate people, came to be dealt with solely by that court, I am in favour of it. I say yea, that's what I want. I do not want these General Division judges, who are not family law matters, dealing with it. So I don't see that as a fear, I see that as an improvement.
In terms of parens patriae, you may be right. The point is this: I believe in drafting legislation and contracts that make things clear. A classic example is the use of the word "enforcement." I guarantee you, if you do not add the word "damages," there will be litigation over whether damages are included within the word "enforcement," and some poor member of the public is going to have to pay someone to argue over that, because there may be enough at stake for someone to make the point. Why bother relying on a general policy decision and what somebody thinks will be included? The truth of the matter is that "enforcement" now has a special meaning out there because there's an act, there's something called the family support plan, that enforces judges, so I think there's going to be a propensity in the courts to view enforcement as being just that. Once you have damages, you then enforce the judgement for damages. But establishing damages is not an enforcement of the contract.
You may be right, but please don't make a member of the public have to litigate it. Just add the words there and then no one will ever have to litigate it and no judge will have the luxury of making the mistake of ruling that it doesn't, and so on and so forth. That's the gravamen of my remarks of this nature. Don't leave it to someone to have to litigate. We, in the legal profession, appreciate the kindness of the opportunity to do that, but members of the public deserve better. They need clarity, they need certainty, and that's one of the ways you can do it. That would be my response in terms of the issues you raise, Mr Winninger.
Mr Winninger: Just one brief word, and I'm not being at all argumentative here. Your position, and I understand why you would say this as a family lawyer, is let's bring partition, arbitration, succession law reform into the Family Court.
I've known many lawyers who only did estate law and never had anything to do with family/matrimonial matters or appeared in Family Court. Similarly, I've known lawyers who only did real estate and dealt with matters of partition in a context totally divorced from the matrimonial context, and the same with arbitration.
I admit it's a bit of a value judgement as to where you place it. If it does result in exclusivity, which I'm told it does, there are probably countervailing arguments to place these three procedures in a separate court, except where it's quite clear and logical that they be linked and be dealt with in one proceeding.
Mr Snipper: I'm hoping there's some dialogue that can go on after this, whoever your policy adviser is that I could speak to and argue the issue out with. I'm interested enough in it to take the time.
The Chair: You may want to call the members, or they might call you. Mr Snipper, thank you very much for taking the time to come from Ottawa to appear.
I just remind those of you who have amendments to bring to this committee to submit them before 12 o'clock tomorrow, for clause-by-clause.
The committee adjourned at 1726.