The County and District Law Presidents’ Association is lobbying the provincial government for a bigger role in shaping the Rules of Civil Procedure, saying practising lawyers have largely been shut out from the decision-making process.
CDLPA recently sent a letter to Attorney General Chris Bentley requesting more representation on the civil rules committee, Law Times has learned.
The 29-member committee plays a critical role in managing civil justice in the province, making recommendations to the attorney general for rules of practice and procedure used in civil matters at the Court of Appeal, Superior Court, and Small Claims Court.
Dan Rosenkrantz, a member of the CDLPA executive committee, says most of the appointees to the committee are judges, with a “select number” of law society appointees.
“We’re just thinking, ‘Wait a minute, we’re practitioners in the field. We’d like some influence and input,’” says Rosenkrantz, adding that CDLPA also would like to have greater representation on the criminal rules and family rules committees.
“Rule changes have an impact on how we practise as lawyers. From CDLPA’s perspective, many of the rules are driven by issues faced in Toronto which are not faced elsewhere. Certainly rules are inapplicable or onerous or not needed.”
He says CDLPA would like to see a “smaller but more broadly based committee structure.”
Rosenkrantz says CDLPA would like the attorney general to strike a working group to look at the composition of the rules committees and make recommendations for changes. Any alterations, however, would have to go to the legislature, as the committees are mandated by the Courts of Justice Act.
“A different group, a more broadly based group, and perhaps a smaller group so it’s more functional,” says Rosenkrantz, summing up the changes CDLPA would like to see.
Rosenkrantz says the association was first alerted to issues with the civil rules committee by former associate chief justice Coulter Osborne’s 2007 report on the Civil Justice Reform Project. Osborne urged the civil rules committee to make its own recommendations to the AG on reducing its size.
He also asked for committee membership lists and meeting agendas to be posted on the Ontario Courts web site, and suggested the committee consider posting on the site minutes from its meetings.
Osborne also suggested strengthening the role of the committee’s secretariat.
He also noted that Ontario’s civil rules committee is Canada’s largest, with Manitoba second with a 16-member committee.
In its response to Osborne’s report, Rosencrantz says CDLPA indicated its desire to enhance the transparency and efficiency of the civil rules committee. At that time, he says, the association stated that it would like to see the following:
• a reduction in the size of the committee;
• a change in the membership structure to include only one Court of Appeal judge and four Superior Court judges;
• consideration of eliminating the provincial court, civil division judge;
• think about adding a Small Claims Court judge representative;
• reduce or eliminate the number of lawyers appointed by judges in favour of allowing organizations like the Ontario Bar Association and CDLPA to make appointments;
• consider time limits for appointee membership;
• give the committee direction on the frequency of meetings; and
• raise the quorum for meetings from one-third to at least a half.
While CDLPA would like to see the OBA have a bigger role in deciding who is on the civil rules committee, the issue is not on that association’s radar screen.
Lee Akazaki, chairman of the OBA’s civil litigation section, says, “The OBA doesn’t see the issue of changing the composition of the civil rules committee to be a priority, and has not advocated that to be a priority for this government.”
The civil rules committee is a “committee of the court” as defined by the Courts of Justice Act, says Akazaki.
“We don’t have a problem with the courts being able to control its own process,” he says.
“Whenever the OBA has had input into the civil rules, we’ve found that the civil rules committee has been very responsive to our concerns. They’re open to changes to the rules, and anybody can propose rule changes.”
The OBA has instead targeted its lobbying effort in terms of access to justice to the areas of simplifying rules, sustainable legal aid funding, and more efficient use of court resources.
“We’ve been pressing these issues with the attorney general,” says Akazaki.
A spokesman for the Ministry of the Attorney General says the ministry does not comment on correspondence. He declined to answer Law Times’ other questions regarding the composition of the civil rules committee.