Ontario needs to do a better job of marketing its world-class legal system to the business community as a means of strengthening its economy during these tough financial times, Chief Justice Warren Winkler tells Law Times in an exclusive interview.
The top judge says he’s going to be “pounding away” on the need for Ontario to better promote its legal infrastructure to the business community.
To that end he’s working on a colloquium on the issue next month, which he hopes representatives from business, labour, government, the public, and justice system will attend “with a view to coming up with an approach that will enable us to highlight what I think is an extremely important aspect of our civilization as a province.”
Says Winkler: “If you’re going to have a business somewhere, you want to think that you’ve got the backing of a justice system within which you can operate your business. Where everyone’s going to be regulated by a commonality and where you’ve got access to it, you’ve got enforceability, where it’s timely, where everybody respects it. And the Commercial List in Toronto is exactly that.”
Winkler made the comments during a wide-ranging interview last week, in which he offered his views on the state of the province’s justice system.
He cites the 2004 Air Canada restructuring, under the Companies’ Creditors Arrangement Act, as an example of the Ontario justice system’s attractiveness to big businesses.
“A lot of jurisdictions wanted the Air Canada restructuring, because everybody knew it would inject a huge amount of money into the economy,” he says, noting the matter took place on the heels of the SARS crisis that battered Toronto’s tourist industry.
By the time that restructuring wrapped up, says Winkler, the city’s hotels were overflowing and law firms were consumed by work related to the file. “It just turned the economy around, having the Air Canada dispute here,” he says, adding that one lawyer told him the file brought him a “lifetime” of billings.
“What brought that was the respect for the Commercial List in Toronto,” he says. “The
respect for the integrity of that justice system and the expertise.”
And, given the current economic slowdown and Ontario’s competitive position, it’s vital to sell to the world “the systemic value of the legal infrastructure in Ontario.”
Winkler says, “If you compare Ontario and other jurisdictions where business is going to, all around the world, the legal system in Ontario is at the pinnacle. If I were marketing a business in Ontario . . . I’d be saying, ‘We’ve got a legal system that is second to none in the world.’”
And he says businesses can benefit from operating in a jurisdiction where contracts are properly enforced and patents are protected, for example.
Winkler, who became the province’s top judge in June 2007 after 14 years as a Superior Court judge, says one of his main goals for his tenure is to make the justice system more affordable for the middle class.
He notes that the courts intimidate many people, and he would like to see a system that’s more comprehensible.
Making the system easier for lawyers to navigate also will help make legal services more affordable, says Winkler, as fewer hours spent on a matter means smaller bills for clients.
“My view of the justice system is that the courts aren’t here to serve the lawyers and the lawyers aren’t here to serve the courts,” says Winkler. “Both the lawyers and the courts are here to serve the public. I see it as a public service that we do, and we must always keep that at the forefront of our minds.”
Winkler says changes in the culture of the legal profession - specifically by lawyers in big cities - has had a major impact on the justice system. The top judge, who was called to the bar in 1965, recalls the “value-based billing” used when he entered the profession.
“Some lawyers at that time kept dockets and kept track of their time, and some didn’t,” he says. “What people basically did in those times is they charged what the service was worth, and what the client could pay. They didn’t determine how much work went into the file based solely on what could get paid.”
Winkler says that when he was a young lawyer, he did the amount of work required to make sure he didn’t let the judge down, wanted to help his client, and didn’t want to embarrass himself. That sometimes meant doing more work than he got paid for. “That was the luck of the draw,” he says.
Lawyers at the firms he practised at also brought young lawyers to court for mentorship, but didn’t charge clients, says Winkler. “That’s what part of the culture was. We trained people, that was part of our cost. But in the end it paid off for us, because . . . we trained our future partners, and it was part of what we’d put back into the profession. Other people had done that for us, and it was called ‘putting back.’”
But as overhead costs have risen over the years, says Winkler, lawyers in big cities have created “business-oriented practices,” in which time is docketed, and most clients are institutions.
This new culture, says Winkler, has become an access to justice issue, noting that lawyers’ fees in some jurisdictions - he cites the U.K. as an example - have risen to the level that many businesses won’t conduct deals there anymore. The culture in Ontario’s big cities has to change to prevent that from happening here, he says.
One principle that must be re-established is “proportionality,” says Winkler.
“It’s got to do with time and cost,” he says.
The average case involves a single document, such as a lease, mortgage document, contract, or agreement of purchase, he says. A few other materials, such as letters or e-mails, must be required to round out the case, notes Winkler.
“Now, do we really need a complicated legal system, with all the cost that that entails, to litigate those issues?” he asks. “I say no. That’s what I call the cultural change that we have to take and the profession has to take.
“The profession has to get back to where we came from, where you sit down and take a look at that sort of case, you explain it to the client, you give the client a budget, and you say, ‘Look, we can litigate this case, but I’ve got to keep the costs under control. So here’s the case and here’s what I’m going to do for you.’”
Winkler says this culture change needs to be taught to younger lawyers - and reiterated to experienced ones - at continuing legal education seminars offered by the Law Society of Upper Canada, The Advocates’ Society, the Ontario Bar Association, and other organizations.
“I think we’re going to get back to that, and I don’t think it’s a bad thing for the profession,” he says, adding that it was all about “pride in your work, duty to your client, duty to the court.”
Winkler says, “There’s an appetite” in the profession for the type of change he’s advocating. “It’s reminding lawyers of something they’ve known all along. This has got to do with professionalism.”
Winkler says the access to justice issue is hard to quantify, as it’s really about the number of people who didn’t get to see a lawyer on a particular day. He says solving the problem will be good for the business of law, as lawyers will get to see more clients, but will have to spend less time and charge less to each one.
Winkler says he’s travelled across the province to meet members of the legal community in his first year and a half as Ontario’s top judge. That’s been part of an effort to meet the needs of the system beyond the Toronto area, he says.
“I’m making a conscious effort to get out there and to meet the bench and bar, and to listen to what they say and tell them what we’re doing,” says Winkler, who also has travelled throughout Canada and the U.S. to speak to law students.
There are two important “common themes” he has heard during his recent travels throughout the province, says Winkler. The first is a call from lawyers to increase mediation as a method of saving costs for clients and speeding matters, while giving clients a better opportunity to have a say in the resolution of their issues.
Linked to that, he says, is a call for more specialized mediators and adjudicators. Winkler says the province’s current batch of judges is up to that challenge, as they have specialized knowledge in family law, criminal law, and civil justice.
“Those are the two things that I hear the bar asking for, and the bar really reflecting, I think, what their clients are telling them,” he says.
Winkler says he will continue to lobby for a unified family court in the province. But while he can continue to speak out for the need to bring the family court, which is currently split between the Ontario Court of Justice and Superior Court, under one umbrella, both the provincial and federal governments will have to get together to make that happen.
“It’s difficult for the public, because they’re not sure which court they go to,” he says. “And all this costs them money and time and frustration when they’re already emotionally stressed out.”
Winkler acknowledges that the unification of family court is a complex issue that has been pondered for many years, “But I think we have to deal with that issue, because it’s in the public interest to do that.”
In terms of the current judicial complement, Winkler said he wouldn’t suggest the province isn’t in need of more judges. But he said the greatest need is in areas with growing populations, such as Newmarket and Brampton. The continuing expansion of family law also has created a need for more judges in those courts, he says.
Winkler says a new, consolidated courthouse in Toronto is atop his financial wish list. He says the criminal system in the city needs to have more courtrooms to meet demands placed on it by the volume of cases and security requirements.
“The number one need in Toronto is for courtroom facilities,” he says. “I think there needs to be a court facility in Toronto with up-to-date, current facilities with an emphasis on criminal and family law. One big court.”
Winkler says he has talked to Attorney General Chris Bentley about the need for a new court in Toronto. “It’s a dollar-and-cents issue,” he says. “It’s a huge cost. They’re working on this . . . and I’m sure they’re trying to figure out how to address it.”