In federal budget consultation, FOLA calls on Ottawa to fill judicial vacancies

Organization also wants feds to help invest in courtroom infrastructure, technology

In federal budget consultation, FOLA calls on Ottawa to fill judicial vacancies
Douglas Judson, chair of FOLA

The Federation of Ontario Law Associations (FOLA) is calling on the federal government to make “necessary investments” in the Ontario Superior Court of Justice.

FOLA, which represents Ontario’s 46 county and district law associations, wants Ottawa to fill judicial vacancies in the province and set aside resources to assist provincial attorneys general in modernizing courthouse infrastructure and technology. The federation addressed a letter to Prime Minister Justin Trudeau, Minister of Finance Chrystia Freeland, and Minister of Justice and Attorney General David Lametti, as part of 2023 budget consultations.

As of Feb. 1, Ontario was sitting at 20 Superior Court vacancies, four in the Family Court, and three in the Court of Appeal, according to the Office of the Commissioner for Federal Judicial Affairs Canada

“There is a significant disparity between how quickly you might get a day in court from one region to another,” says Douglas Judson, chair of FOLA. “We certainly don't want people to engage in forum shopping when they're bringing new proceedings, but so long as there are advantages to being in one county versus another, you can see why a person might want to do that. It is a basic fairness thing. We should have our courts set up so that regardless of where you commence the proceeding, you can get before a judge within a reasonable period of time.”

“We think the court is doing its part to allocate scarce judicial resources and time, as best it can,” he says. “We need the federal government to hold up its end of the bargain and ensure that they are filling vacancies when they arise in a timely fashion, and that they are providing appropriate support for the administration of the work of the people in those roles.”

Judson practises in Fort Frances, which is around 350 km west of Thunder Bay. He recently scheduled a full-day motion for June 12, and he says the other lawyers on the file, who were from Toronto, were shocked he was able to get a hearing in just five months’ time.

“They might be waiting a year and a half for that date,” he says. “That's great for me, up in the north-west that I can get court dates more readily. There's more availability. But it's not really fair on a province-wide basis that depending on where you live, you might not be able to push your matter through court as quickly.”

FOLA’s letter notes that, in addition to creating delay, judicial vacancies drive up the cost for litigants, because counsel will appear at the assigned date, but the court will not get to their matter “because a court sitting is overburdened with an unrealistic list.”

Some of the strain on the system could be eased if the feds allocated resources to enhance courthouse infrastructure and technology, said FOLA.

“The first thing is they need to actually fill the vacancies,” says Judson. “We need to have enough bodies to do these jobs to make sure that the courts are properly staffed. But I think we can also take the pressure off of these issues by supporting the court in its administration to make sure that when resources have become available in one jurisdiction, they can help in another.”

“I certainly think that the court is doing a lot of that work on its own. But if there are ways that we can make the scheduling process less resource-intensive and faster than we can probably make more efficient use of court time to ensure that, even if we're not getting that full complement of judges, we're using the judges that we have in a more efficient manner,” he says. “I think that's the key piece is that we need the federal decision makers when they set their budget to make sure that there are resources designated to help solve these problems.”

The FOLA letter refers to the 2014 Supreme Court of Canada case, Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), to highlight that “access to justice is fundamental to the rule of law, and rule of law is fostered by the continued existence and availability of the superior courts.” This was the basis on which s. 96 off the Constitution Act was found to “confer a degree of constitutional protection” for access to justice, said FOLA.

“The point simply being that the [Supreme Court] has recognized that we need to have reasonable access to our courts to seek remedies and dispose of disputes that come up in civil, family, and criminal contexts, and if we're not providing the court with appropriate resources to do that work, it really undermines that constitutional guarantee.”

In the letter, FOLA also pressed the federal government on legal aid.

Ottawa used to contribute half the funding required for Ontario’s legal aid system, and as that share has been reduced, legal aid has declined and is no longer serving the needs of the province’s citizens, said FOLA. The Alliance for Sustainable Legal Aid (ASLA) also participated in the consultation last December, and FOLA said it adopted the group’s comments on the subject of legal aid.

Along with FOLA, ALSA’s members include The Advocates’ Society, the Criminal Lawyers’ Association, the Family Lawyers Association, the Refugee Lawyers Association, the Association of Community Legal Clinics of Ontario, the Federation of Ontario Law Associations, the Ontario Bar Association, the Mental Health Legal Committee, and the Law Society of Ontario.

Insufficient legal aid funding could leave justice inaccessible for many vulnerable Ontarians, and is leading to a rise in self-represented litigants, said ALSA. According to the National Self-Represented Litigants Project, 50 percent of all family court applicants are self-represented. That number is 80 percent in urban areas. In Civil and appellate courts, 40 percent of all cases involve a self-rep. When litigants are unrepresented, their cases taking longer on average, the system gets overburdened, said ALSA.

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