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OBA gets two views of province’s justice system

|Written By Robert Todd

Ontario Attorney General Chris Bentley last week told lawyers they have the double duty of guarding the province’s justice system while lobbying for change within it, at a time when the civil system is unreachable for many, and the criminal system is cramped by delays.

‘We have in this province, in this country, a model of a civil justice system that’s the envy of the entire free-speaking world,’ says Chief Justice Warren Winkler.

Bentley’s speech to an Ontario Bar Association continuing education conference came a day before Chief Justice Warren Winkler defended the province’s justice system as the envy of the world.

“At the end of the day we are at once the guardians for the legal foundation but also agents for its change,” said Bentley. “We are agents for its improvement, we are agents for its renewal, because . . . our system of laws must function as well as we want for the 13 million people in the province of Ontario.”

Bentley highlighted the government’s efforts to improve the civil justice system, following the report last year of former associate chief justice Coulter Osborne. The attorney general has embarked on a province-wide journey seeking input on Osborne’s report, which offered 81 recommendations to make the civil system more affordable and speedier. His full report is due for release early this year.

“I’m looking for your input because I know that, as front-line practitioners, the solutions for improving the system are here,” said Bentley.

In shifting his attention to the province’s criminal system, Bentley noted that the government has added resources, such as adding 150 Crown attorneys. However, he spoke at length about the state of the adjournment process.

Bentley said the number of adjournments in criminal cases has increased 114 per cent over the past decade, causing waste in the system as court staff, lawyers, judges, police, and the public needlessly show up to stalled proceedings.

“Indeed it’s not quite like watching paint dry on a freshly painted wall, because at the end of the paint drying you have a freshly painted wall,” said Bentley. “But with adjournment, the case simply goes from one day to the next.”

Bentley’s remarks came in the midst of public outcry over the failed prosecution of six Toronto police officers accused of corruption and beating suspects. Superior Court Justice Ian Nordheimer stayed the charges, citing undue delays from the Crown’s office.

Winkler, meanwhile, used his opportunity on Feb. 5 to speak to the OBA conference crowd to defend the province’s civil justice system. He referred to access to justice complaints as the “flavour of the month” across Canada.

“It’s very unfair to those persons who serve in the system either as lawyers, judges, or administrators,” said Winkler.

“And secondly, it’s inaccurate, because it creates the impression in the minds of the media, public, and government that this access-to-justice failure permeates the entire civil justice system from one edge to another,” he said.

“We have in this province, in this country, a model of a civil justice system that’s the envy of the entire free-speaking world. And I say that having traveled around the world and having looked at civil justice systems in many countries, and the people in those countries - including the United States and Great Britain - envy our system.”

Winkler cited a number of reasons why Ontario’s system stands above the rest:

•    In Ontario, 50 per cent of civil justice cases are heard in Small Claims Court, where Winkler said there is no access to justice problem.

•    About 12.5 per cent of civil cases are heard in the simplified rules system.

•    On the long trial list, 60 per cent of cases are personal injury cases, which are dealt with on the basis of a contingency fee.

•    Class actions are expanding, “And the whole purpose of class actions is to promote access to justice,” said Winkler.

•    In the Toronto region’s Superior Court, reforms were introduced in 2004 that have reduced the long-trial waiting list to less than a year, from 37 months.

•    “Perhaps more important than anything else, the number of events - that is, an opportunity when a lawyer has to touch a case and obviously the client has to pay for it - on average across the entire civil justice system have been reduced from some eight to less than two events,” said Winkler.

Winkler admitted there are problems in the system, but said, “The point of my dissertation with this statistical analysis is to simply show you there has to be a fence put around it.”

Winkler said front-line lawyers can improve access to justice in the following ways:

•    The Rules of Civil Procedure “should be as simple as they can be, consistent with fairness.”

•    Rules of Civil Procedure should be designed “in terms of what the benefit is . . . to the client at the end of the day and not for the purpose of procedure in and of itself.”

•    The focus should be on minimizing the number of events in proceedings to reduce client costs.

•    The idea of bifurcating proceedings must be reconsidered. Winkler said the Supreme Court is rethinking its opposition to the issue, as is the Court of Appeal; and the Commercial List in Toronto has used the system for “decades.”

•    Mediation must be considered a “core concept.”

Winkler urged lawyers in smaller firms - who he said most Ontarians deal with on legal matters, rather than large Toronto firms - to focus average cases and spend only as much time on them as is necessary, particularly on cases that require only a single document and about an hour of pretrial preparation. He said lawyers can make a very reasonable living working that way, without “shortchanging” clients.

“What the rule of law requires as a fundamental is that our civil justice system be understandable and accessible to every person in our population,” said Winkler. “And if we don’t do that . . . we run the risk of the whole legal system in this province becoming irrelevant.”

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