- The Empire Club of Canada Addresses (Toronto, Canada), 20 Jan 1977, p. 186-208
- Estey, The Hon. Chief Justice W.Z., Speaker
- Media Type
- Item Type
- The financial and economic problems in the courts today. First, a detailed history and examination of the legal system in Canada covering many aspects such as the court structure, the parallels in medicine, case loads, new areas of law that have to be dealt with such as environmental law, zoning disputes, consumer law, technological advances, etc., costs, and other reasons why the courts are in difficulty. What the speaker feels the courts should be doing. The issue of delay. Suggestions for solutions. The role of Legal Aid. The strength of the Anglo-American jurisprudential system. Some summary ideas and thoughts.
- Date of Original
- 20 Jan 1977
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- Full Text
- JANUARY 20, 1977
The Ontario Tax Payer's Stake in our Judicial System
AN ADDRESS BY The Hon. Chief Justice W. Z. Estey, CHIEF JUSTICE OF ONTARIO
CHAIRMAN The President, William M. Karn
My Lord the Chief Justice, distinguished head table guests, ladies and gentlemen: Our guest of honour today is certainly among friends. According to a cursory examination of about 2,500 membership cards, it has been established that approximately 10% of our faithful supporters are qualified to practice in the legal profession, many as Her Majesty's counsel, learned in the law. They are exceeded in numbers only by those who are identified with financial institutions.
We now have one explanation as to why our club finances are kept always under close scrutiny and the limitations of our constitution rigidly observed.
Today we are reaping a further benefit from our distinguished Past President, H. Allan Leal, Q.C., LL.M., LL.D., whom we honoured at the Past President's Dinner two nights ago. Because of his friendship for our guest of honour, he had merely to ask His Lordship last June to address our club to receive an immediate response in the affirmative.
Or could it be, Allan, that His Lordship wished to observe our club at first hand to see where you spent so much of your time last year, while the Attorney-General patiently awaited reports from the Law Reform Commission of Ontario.
When I discussed the large attendance with his Lordship before the meeting, he replied that our members might be like Saskatchewan gophers. The warm weather brings them out!
Last June, when our request was made, the Hon. Mr. Justice Estey, then Chief Justice of the High Court of Ontario, was probably the busiest man in Canada, and still is. He was then looking at a backlog of 1,100 Supreme Court cases in Toronto, which he attacked with the same vigour and determination as he did the beachhead of Okinawa, where he landed during the Second World War with the Marines.
His objective was to clear that congestion by the year end, and I am told he very nearly achieved his plan. Having survived that ordeal by introducing unprecedented streamlined procedures, he was an obvious candidate to succeed Chief Justice Gale, who with Mrs. Gale honoured our head table at our Christmas Party, and who retired from the office of Chief Justice of Ontario shortily thereafter.
Our guest of honour is a native of Saskatoon, where he obtained his B.A. and LL.B. degrees from the University of Saskatchewan and was admitted to the bar of that province at the age of 22. Four years later in 1946 he was awarded his LL.M. degree from Harvard Law School.
Ontario has been the beneficiary of his talents, making him a member of its bar in 1947 and appointing him a Queen's Counsel in 1960.
During his illustrious career he has served his profession as a bencher and committee chairman in the Law Society of Upper Canada; executive member and Vice-President for Ontario, Canadian Bar Association; and as a partner from 1947-73 in the firm of Robertson, Lane, Perrett, and Estey. I have it from an unimpeachable source that it was a dull day in that firm whenever "Bud" Estey was away.
During World War II he served first as a Major in the Canadian Army at Defence Headquarters in Ottawa. He resigned and reenlisted in the Royal Canadian Air Force to see more action as he flew bombing missions over the Pacific.
To his community he has made a generous contribution as a member of the board of governors, York-Finch General Hospital, and as a member of the Kiwanis Club.
To Canada he has made a responsible contribution, serving as Commissioner, Steel Profits Inquiry, 1974; and Commissioner, Air Canada Inquiry, 1975.
Following in the footsteps of an upright, serious, hardworking Saskatoon lawyer and professor, who became a judge in the Supreme Court of Canada--his father--it is not surprising that His Lordship has progressed through the Supreme Court of Ontario to his present position.
It is a distinct privilege and honour for me to give you the Honourable Chief Justice Willard Zebedee Estey, Chief Justice of Ontario, to speak on the subject "The Ontario Tax Payer's Stake in our Judicial System".
HON. CHIEF JUSTICE W. Z. ESTEY:
Mr. Chairman, ladies and gentlemen: First of all, Mr. Chairman, you shouldn't feel too badly about just getting the title to my speech. I only got it from my law clerk at eleven o'clock.
This is a great day for me to arrive here and find amongst the guests my old partners. At first I was worried that they were here about some discrepancy in our books. The Statute of Limitations period has another two years to go. The best part of it was, though, that for the first time since 1947 Norman Robertson didn't say to me, "Have you got any bills out today?" I also noticed that the television camera down there belongs to Rogers Cablevision. Having run one of their competitors for a while I know that tit doesn't matter what I say because not much is going to come out the other end anyway.
It's very comforting to be able to come to a club like this and discuss some phase of the law business. All laymen think of the law as slow moving and tradition-bound and regressive, and so on. But we have here a group which calls itself the Empire Club and of course obviously that organization has to be pretty precedent-minded and hidebound and regressive, because hardly anybody in this audience can even remember an Empire, and those who can figure that we were on the wrong end of it anyway.
Before I leave that question of names, it occurred to me that another funny name in town that harks back to the past is, of course, the Law Society of Upper Canada. People in Ontario think that that is a nostalgic connection to the past, but those living outside of Ontario regard it as either blatant conceit or an exercise in eastern arrogance second only to the national freight rate structure.
Mr. Chairman, I will now digress into the topic. In order to discuss with you the financial and economic problems that we find in the courts today, it's necessary to give you a brief description of the legal system in Canada. This necessity is unique to Canada. This is probably the only country in the world that understands someone else's legal system better than its own. We all know much more about the American legal system, thanks to Perry Mason and Petrocelli. In fact, when you first start into a discussion about our legal system, you have to first of all state (over sighs of amazement from the audience) that our judges are not elected. Of course, you only have to look at them for a moment to realize that!
The other thing is that we're one of the few countries in the world where the courts are not part of the political system. In China, for example, the courts are undoubtedly part of the reeducation process. In fact, the sentence for a criminal is usually to be "re-educated" so as to become a defender instead of an enemy of the people. France is not unlike that. Their courts seem to be part of the political system, at least when it comes to getting rid of internationally hot prisoners.
We have a somewhat watered-down version of the American system of separation of powers, and the judicial branch stands separate and apart from the other two branches of government--as separate as you can be when your pay comes from one of those branches.
To get back to our judicial system, it is easy to describe it in terms of U.S. parallels. It's safe always to start by saying we have Crown Attorneys--those are "District Attorneys" -and everybody knows what that means.
The other part of our system is a little more difficult, because we have a different kind of constitution than most other countries. We don't really have a constitution. We live by another country's statute--the British North America Act. When you start a discussion of anything by referring to the British North America Act, you get the same reaction that the surgeon gets when he gives that first shot of chloroform.
We can't start off by laughing at other people's systems. We have a number of peculiarities in our own court which have always amazed me. One of them is "weekly court". You know at once that that means "daily". Then we have the High Court of Ontario, which is the lower half of the Supreme Court of Ontario.
We are, in Ontario, in the common law system. It has nothing to do with common-law wives, so you'll find nothing interesting in what's about to be said. The common law system, however, is as much a part of our history as the flag. It started to evolve slowly, starting formally with the Norman Conquest. But actually the roots of our common law, which is a collection of the public habits and mores of the community in all the fields of criminal and civil activity, evolved by judicial decision--so to that it is inaccurately said to be "judge-made".
The common law, of course, has to be collected, classified, catalogued and indexed, so as to approach a system of rules for the governance of the community. That process pretty well peaked in this century, probably about World War II.
Paralleling that development, but coming even more slowly, was the establishment, back in the days of Simon de Montford, of the legislative tribunals who create the more patterned and deliberate rules which we find in our statutes. These began to be polished up in the era of Gladstone and Disraeli. And so we have in our common law system today a meld of common law coming from judicial decisions and the statute law coming from, now, the people elected in the community for the purpose of adopting those rules. Those two are now webbed together, and we share that kind of tradition with most of the other English-speaking democracies.
The same process has happened in Great Britain, the United States, Australia and Canada. First the rules were established in a small community, and they were simple. They were largely municipal, both in the judicial and legislative senses of that term. Then we saw evolve at the national government level, in England first, a combination of those two sets of rules. And finally, the gradual and slow, almost accidental, evolution to the meld of rules in a federal system. It is that complication that we have to consider today when we talk about the courts of our country.
The federal system, by axiom, requires a definition of legislative powers between the two components, the provincial or state and the federal or national government. That division of power occurs much more formally in the United States and Australia than here; fairly formally here under the British North America Act. But being a British statute as it is, and coming as it does from a unitary state, it is not surprising to find that the British North America Act nowhere uses the word "federal", nowhere speaks of the national executive, and the word "cabinet" does not occur in the statute.
So when we turn to the British North America Act to find out whether or not a provincial or a federal statute is intra vires or ultra vires, you can see how much help we don't get from that statute. And of course, we cannot amend it. The British can amend it, but we cannot.
Under that statute, the courts are dealt with in a very complex way. The organization of our courts is left to the provinces. The appointment and payment of the judges is assigned to the federal government. However, that description only applies to those courts which at the time of Confederation were described as "superior courts" or county courts. All other courts, which are for convenience only referred to as "lower courts", are organized and appointed and supported financially and physically by the province. The only exceptions to what I've said are those courts which may be organized by the federal government itself, and I'll come to those in a moment.
Within the province of Ontario, we have both sets of courts, both the provincial courts--owned and operated by the province and we have the provincially organized and federally appointed courts.
To start with the Supreme Court of Ontario: there is a Trial Division and Court of Appeal Division. The Trial Division is called the High Court; the other the Appellate Division. The High Court has 38 judges, 37 appointed. One cannot be appointed because the federal government forgot to match the federal statute to the provincial statute, so we have room on the bench for one! The Court of Appeal has 14 judges. The jurisdiction of the Trial Division is over serious crimes and actions involving more than $7,500, and certain actions unique to it in the field of defamation and so on which are not of concern. to us today.
The Provincial High Court operates on a circuit system based in Toronto, in the 48 judicial centres or county towns of Ontario. The Court of Appeal sits in Toronto. The staff and court houses are provided by the province, the structure is organized under the provincial salute, but the judges are appointed and their salary is paid by the government of Canada.
Next you have the County Courts, one for each of the 48 counties. There are about 113 county court judges, because some courts have a large number of judges. The Municipality of Metropolitan Toronto (County of York) has 27. In addition to those assigned specifically to counties, there are 26 county court judges who are appointed to float about the province and sit wherever they are assigned by the Chief Judge of the County Court.
The County Court, like the High Court and the Court of Appeal, is organized, housed and staffed by the province at the expense of the Ontario taxpayers. The judges are appointed, and their salaries are paid by the federal government.
That is the federal arena.
Below that, or beside that, is a provincial court structure that is divided into four pockets, but they are not very complicated. The labels are, with one exception, self-explanatory.
First, the Provincial Court Criminal, which handles by far the bulk of the criminal law cases in Ontario. Then, the Provincial Court Family, which handles the maintenance allowances for deserted wives and dependent children and matters pertaining to family law, exclusive of matters arising out of the divorce act. Then you have the Small Claims Court, which handles claims up to but not exceeding $400. In other provinces, they have been more nervy about assigning jurisdiction which might challenge the Confederation test and thereby deprive the province of the right to appoint the judge. In Quebec, the ceiling is $3,000. Saskatchewan has always been inclined to gear the jurisdiction of the Small Claims Court to the price of wheat and it is now up to $5,000. The last provincial court is the Surrogate Court, which handles probate and administration of estates. Those courts are in fact manned by the County Court judges, but the province has the power, and has exercised that power to organize the Court.
In addition to that structure of provincially organized courts, we have operating in our province federal courts, which are both organized and appointed federally. They consist of two courts, the Federal Court of Canada, and the Supreme Court of Canada. The Supreme Court has been the court of last resort since 1950. There are no more appeals to the Privy Council.
I remember hearing a great story about that. The great Senator Ferris was arguing a case up in the Supreme Court of Canada and Chief Justice Rinfret said, "We've heard that argument before, Senator. How would you like to sit down." But the Senator kept right on going, and Rinfret kept right on cutting him off. The Senator was a little hard of hearing. His hearing varied inversely with what he wanted to hear. Finally he sat down, and in a loud voice he said, "And to think they've cut off appeals to the Privy Council."
But the Supreme Court of Canada is the last word.
That court, since 1975, is accessible to the litigants of Ontario only when leave is granted to take the case there. It is Supreme Court policy to handle about 140 cases a year. That is, in effect, on a population basis, which I understand is the way you win in Loto Canada, about forty cases a year from Ontario. Less than one a week can be appealed, which means that in fact you back up the judicial process into Ontario. The Americans have achieved something similar by a very elaborate constitution in which a state is indeed a sovereign state with the power to cut its appeals off inside the state.
The other court, the Federal Court of Canada, is the successor to the old Exchequer Court, which subject will be dear to the hearts of many here as being the forum in which you fight with the government over your taxes. In addition to tax appeals, the Federal Court hears claims against the federal government, shipping and navigation (although that is concurrent with the Supreme Courts of the provinces), copyright, patents and trademarks, courts martial, and other things peculiar to the federal system. From that court there are appeals to the Supreme Court of Canada. The Federal Court sits almost continuously in the Canada Life Building in Toronto. So much for the court structure.
The reason why the courts now are so burdened, I think, can be stated very briefly. While it has taken a thousand years to evolve the common law, and now that we have finished that process, we suddenly find ourselves thrust into a new epoch. This is the era when the courts, and these elaborate rules for the governance of the society, are to be made available to all members of the community, both physically available and economically available. That goal, and its realization, has caused a tremendous increase in litigation and has, indeed, glutted some of our courts. It has done the same in the other democracies in the western world.
There is, of course, the parallel in medicine. In the early 50's, when the state-financed hospitalization plan followed by the state-financed medical care plan were introduced, we had to phase them in because there were not enough medical services to go around. With the introduction of the Ontario Legal Aid scheme about a decade ago, we experienced exactly the same result, although somewhat more gradually, because law is much less dramatic than medicine. It takes time for people to realize that they have these rights; it takes time before the law profession gets the cases into court. But the flow through the courts is like the snake swallowing the mouse. You can see the bump moving along. And one bump follows another. We are now up to $28 million a year legal aid. That is a lot of legal expense, a lot of litigation.
Many thousands of people in 1976, legally aided, would probably never have gotten to court before. But there is more to it than that. There is a wave of realization on the North American continent, perhaps more than anywhere else, that people have these rights, and that these rights can and should be enforced in the courts.
The result has been tremendous. A reporter on the Los Angeles Times staff two weeks ago decided to find out what the people are bringing to court now which they never did before. He went into the United States Supreme Court building, looked up their index of cases, and found to his amazement what that great legal machine was being called upon to determine. And I picked out from the long list four disparate examples.
Number one: a contest to determine whether or not the University of Oklahoma can be forced by the National Collegiate Athletic Association to reduce its football coaching staff from 13 to 9. Another: whether a person illegally denied access to a famous Washington bar for lack of a coat and tie had thereby suffered "humiliation, scorn and discrimination contrary to the Constitution." Thirdly, at the behest of an inmate, whether a specific federal penitentiary was unconstitutional because it was a low-cost housing project used to house non-white prisoners only. Fourthly, whether a hockey player injured in a brawl on the ice has a right of action against his adversary, both teams, the league and the referees for an injury in a fight which he started. And that will be a five to four decision!
There are other reasons why, in our case, the courts are so busy. They can be combined into one long sentence. That the introduction of measures dealing with environmental law, zoning disputes, consumer law, technological advances such as are present in the Karen Quinlan case, class actions, ombudsmen, "legally-aided" criminal defences, all are contributing their varying trickles to a torrential stream that now threatens to wash the courts and the law machine right out to sea.
Governor George Wallace, in one of his usual modest understatements, said recently, "the thugs and the federal judges have taken over the country." And this raises an historic paradox. These new rights, and the right to realize them (for one without the other is nothing), have so congested the courts that access thereto by the very people intended to be benefited thereby is in jeopardy. Consequently, with his own money, legal aid money or legal insurance money jingling in his pockets, the new litigant may have nowhere to go. The law has indeed become a spectacular growth industry. We now have in our province 11,000 lawyers. Fifteen years ago, we had half as many. The law schools are now sending them out at the rate of a thousand a year.
That is peanuts, if Jimmy Carter will pardon the expression. The United States has 425,000 lawyers. That raises a great conundrum, which I won't get into today. How is it that Japan has such a successful industrial-commercial unit competing eyeball-to-eyeball with the United States when it does it all with only 10,000 lawyers?
We're somewhere in between Japan and the United States, but as usual we are gaining on the Americans.
Against this advancing army of litigants, each armed with a lawyer, there stands a mere handful of judges cringing in court houses such as our flagship up on Nicholas Street in Ottawa, unveiled in 1870 with all the hydro and plumbing running down the outside because it was built to be the county jail! The question is, how do we now contend with this flood? Realistically, which way should the taxpayer turn to solve this problem?
Before I get into that, let me say a word or two about the problem in terms of dollars and cents. As I have said, we have 150 Supreme Court and County Court federally-appointed judges. What I didn't tell you was that we have about 115 to 130 (depending on the day you make the count) provincial criminal judges, about 70 provincial family court judges, and a few in the small claims court. We have all those judges, sitting in 450 court rooms. That throws up a strange statistic. The provincial Criminal Court occupies 1481/2 court rooms. I suppose Wintario operates in the other half. The Supreme Court actually uses very few facilities; the bulk of the operation is in the provincial court.
Consequently, it is no surprise when you turn to the dollars and cents, which I am going to do now, to find where the money goes. The budget of the Attorney General, for the fiscal year ending in March, was $95.8 million.
That's out of a provincial budget of $10.3 billion. Justice gets .93% of the total tax collected and borrowed money. That $96 million is divided, as between the courts and the other areas for which the Attorney-General is responsible, on the basis of $62 million for the courts, of which more than half, $37 million, goes into the provincial court system, and in turn most of that goes into the provincial criminal court. The county courts require $20 million a year of your money to operate. The Supreme Court comes at a bargain of $3.8 million.
In addition to those costs, you the taxpayer have to pay about $10 million in federal judges' salaries in Ontario, and you put out $28 million in Legal Aid, and about $7.5 million to prosecute all the crimes. Your stake in that court operation is tremendous.
Mr. Chairman, you have said that most of this audience are people in the financial world, so I can give them one note of cheer, which they will appreciate better than anyone else present, that sometimes the greatest opportunity arises in the face of the worst financial statement. Consider, for example, the tremendous value of the Johnny-on-the-Spot concession down at the Montreal Olympic Stadium, where in the words of the Zenith TV ads, "the money ran out before the wash rooms ran in." So perhaps the Province of Ontario, by setting out its system the way it has and thereby forcing the community to fuel it with the necessary money, has made available relatively inexpensively the opportunity for this generation of Ontario taxpayers to fund a reasonably sound and well-balanced legal system without a sudden investment of money such as we had to put into the hospital program to which I have adverted.
The last illustration I want to give you to measure the magnitude of the operations of the courts is in the number of cases handled. These figures have to be explained and we don't have time for that today. But where they are glaringly misleading, I will make a comment.
The Court of Appeal of Ontario, and I have mentioned already that that court is in effect the last word in Ontario, handled last year 1,803 cases, of which we estimate 35 or 40 could be appealed to the Supreme Court of Canada. When you consider that the year consists of 52 weeks, 1,803 is a lot of appeals, almost every one of which is fought out with a lawyer on each side. Each fellow arrives with a great big thick factum, and 1,800 cases is a lot of law!
I point that out because the figures that you will hear now might distort your sense of balance between these courts.
The High Court Trial Division last year handled 24,532 cases, among 37 judges and three supernumerary judges. The County Court Criminal Division handled 5,800 cases, and the Civil Division 21,800. Let me say that those 27,000 odd cases are very important. You might be left with the impression, reading quickly about jurisdictions of courts, that the County Court is a minor league. That is not the case. Their jurisdiction almost matches the Supreme Court jurisdiction. In criminal law, essentially murder is the only difference, and in Civil Law the more serious cases get into the Supreme Court. But there are in that 27,000, thousands of serious civil cases and in the county towns that is the usual forum in which they are litigated.
Now we get into the big numbers. The Provincial Court Criminal Division last year handled 2.9 million cases. Filed in their records were 3.9 million cases. They have an inventory of one million cases. That is a lot, and I'm going to come back to that point.
The Provincial Family Court handled 51,000 cases, but many of those are much more complicated than a comparable number on the criminal side.
The Small Claims Court handled 132,000 cases. The court rooms in which those cases are disposed of have become a serious bottleneck. It is easy to assail the executive branch of government and say that we don't have enough court rooms. One of the reasons we have not enough in the City of Toronto, which is where the bind really is, has nothing to do with the provincial government at all. The real reason that we do not have enough court rooms in the Supreme Court and the County Court is that a City Council a little more than ten years ago said, "You can't put footings under the courthouse on University Avenue which will allow it to be extended up another ten storeys because we don't wish the new city hall to be overshadowed by the court-house." So now we have a six-storey Court House and a forty-four storey hotel overshadowing the city hall.
The newspapers are always quick to point out the big backlog of cases. They love that word "backlog" and so do we, so that when we started to clean up the mess, instead of calling it the "Accumulation of Cases Task Force" we called it the "Backlog Blitz". We caught up on the cases and cut the number of the backlog in half. But the more important statistic is that for the serious litigation in Toronto, where a great fraction of the serious litigation of the whole nation takes place, which is one of the reasons we have a backlog--we get these one-month combines trials and now we have an eleven-month computer trial going on involving two national organizations--in Toronto we have reduced the backlog in point of time from a waiting period of 13 to 16 months down to a waiting period of six to eight months.
The waiting period has to be not less than three to five months as the law profession cannot operate any other way, having in mind the fact that the lawyers have to prepare the cases. Although some days I wonder about that! They have to examine for discovery, as we like to say, and find each others' documents, and that sort of thing. Then you have to schedule the hearing when the witnesses are in town, and the lawyers are available and not on other cases. So you have to have a backlog time period of three to four months minimum.
What would be an ideal situation, and I think we can attain it, is to have serious litigation originate by Writ of Summons in September, and have it processed through the Court of Appeal by the end of the following June. We could do that only if we were allowed to spend a little money to experiment with some new method of getting evidence typed. That is a very sore point with us because we have a serious accumulation of cases that are in appeal, but cannot be heard because nobody is available to type the transcript which was taken and recorded in court. It is a simple problem. We have 36 Supreme Court reporters, and they are busy every day recording evidence in court. When they get an order for an appeal of one of their cases, they have to come out of court and type it. We have nobody to put in their place. We haven't because we did not plan properly and put it in the budget two years ago. More seriously, we are harnessed to the idea that you have to have either someone in the court room taking the evidence or someone outside typing it. There are technological avenues available to us now which we are trying to persuade the authorities to let us use, and which I think will eliminate that time-lag whereby people who want to have a case heard in appeal can't get there because they can't get it typed.
There are other reasons besides the financial ones and the physical ones as to why the courts are now in difficulty, and why the community has an interest in doing something about it. These are what you might call the "non-financial expenses" of the courts which could be avoided.
I have dealt with the direct cost to the taxpayers. But a cost I didn't deal with and which we could reduce if we had more efficient procedures is the cost of hiring lawyers to litigate the cases. There are no figures in Ontario on the cost of legal fees in our litigation system. However, you can work it out in a rough kind of way from the number of court rooms which are active every day, and how much it costs from the legal expense point of view to operate a court room. In October, somebody worked out in a very elaborate case we had in the Supreme Court that the trial was costing the litigants directly $35 per minute. That doesn't count the cost of appeal and transcribing the evidence, which is very high. That's the high water mark. The low water mark is the smallest legal aid tariff there is. If you average those two out, and assume that three-quarters of the court rooms are busy all the time, the very minimum annual charge to the litigants in Ontario for legal fees is $70 million.
If that is out 20% one way or the other it doesn't matter very much for our purposes. It's still a great deal of money. If we could adopt procedures which would shorten the time, even an hour a day in court, you can see that in terms of $70 million that would be a great saving.
There are many things which we should be doing, and I'm going to list those, but I hesitate to do so realizing that television will take it out of context if they feel like snipping up the tape, and the press will squeeze it into the space between Ben Wicks and the Want Ads, so they'll pick out something which is going to hurt. The point is I don't want you or the press to jump to any conclusions.
I remember a great story about John A. Macdonald which has a double lesson in it about jumping to conclusions. During a campaign, one night in Smiths Falls, Sir John got up on the platform but the crowd decided they wouldn't let him speak. Finally a big fellow from the back of the hall came striding forward and announced himself as one McCarthy. He said, "This man has come all the way from Ottawa, and he's going to be heard, and I've come all the way here from my farm, and I'm going to hear him. So sit down and shut up!"
Sir John was very pleased about this, and thanked Mr. McCarthy profusely for the great service that he was rendering democracy. But McCarthy cut him off and said, "Macdonald, I want to make it clear that I am no supporter of yours. With the record you've got, I wouldn't vote for you even if you were the angel Gabriel."
Macdonald replied, "McCarthy, if I were the angel Gabriel, you wouldn't be in my constituency!"
The greatest enemy we have to efficiency in the courts is delay. It has an immeasurable consequence. First of all, it increases legal fees. Secondly, it puts benefits into the hands of those who profit by delay, whether it be the custodial parent de facto, or the possessor of the asset over which the fight is being waged, or the person who is inevitably going to be required to pay something, the only question being how much, so that he retains the use of that money and the suffering plaintiff doesn't get it. Delay is our greatest single enemy, and it was well said "that justice delayed is justice denied." The question is, how do we avoid delay?
We cannot do it by simply cranking up the machine to new efficiency. It was John Diefenbaker who said, "Assembly line justice is a contradiction of terms." Normally we don't quote lawyers until they are dead, but if we don't quote John soon there won't be any of us left alive to quote him. Furthermore, he has finally ascended to that great plateau of dignity and serenity that heretofore we had reserved for the likes of Bernard Baruch, Socrates and Casey Stengel.
Mr. Diefenbaker is correct. It is no solution to talk about speeding up trials and shortening the legal process. There are many areas where we can do something, but that is not one of them.
Something which has to happen is that the hyperactive legislatures must somehow slow down and refine their product. It is inconceivable that we can go on hearing fights about the meaning of statutes when every day a new one comes out somewhere which causes someone to sue somebody and put the interpretation at issue. There are sections of one famous federal statute which are making half of our audience rich, which cannot be interpreted be experts. The man who wrote it disowns it, but it goes on. We saw one not very long ago which had to be withdrawn, mainly because of these difficulties. Legislation now seems to be the yardstick by which the "success" of a government is measured. You can claim success by measuring your statutes by the mile, by the pound or by the page, but nobody seems to measure by the content.
My first suggestion is that we should not pass statutes we don't need, and when we need one we put it in plain English. I should say as a footnote to that that Allan Leal doesn't write them!
Secondly, and here the courts are to blame, we have a flood of judgments which are too long, too involved. Sometimes they come out multi-barrelled. When four or five judges are sitting, three will feel impelled to write reasons. That burdens the law profession, which is the translation device between the court and the public. How can the law profession advise the community in the future when the courts persist in writing long, involved, unnecessarily complicated judgments showering the profession with concurrent explanations of the same result.
Where a principle is at stake, there has to be a divergence of views, and progress does not come from suppression of those divergencies. However, we can stultify progress by glutting it with law, either legislatively made or made in the courts.
Thirdly, we should simplify and we are simplifying the rules under which the courts operate. In Ontario, the government has already appointed the Williston Commission, and we have the benefit already of trial-balloon rule changes which the law profession and the courts are working on. That is a move in the right direction. The same can be said of the rules of evidence. There I don't think the legislature is to blame. Some courts have created work for themselves. The difficulties with the rules of evidence have, I think, been realized in the courts in the past ten years, and I think there should be a great acceleration in the courts themselves in simplifying them.
I think we have now had enough experience in Legal Aid to turn our guns on the parts of the system which have been permitting, if not causing, trials to be excessively long. Sometimes it is an exercise in over-sensitivity of conscience; sometimes it is lack of experience; but sometimes regrettably, it is people who would not be able to do for a private litigant that which they do for Legal Aid, which has been described as a "deaf, dumb and blind client."
Legal Aid must be retuned. The institution is tremendous. No thinking person in our community advocates its abolition, but it does have a by-product effect which is serious. It is beginning to deny access to the courts because it itself is clogging the courts. Perhaps the administrators of the system could consider putting a cap on the amount of underwriting a case will be given. In effect, that is what happens in private, unassisted litigation. The client asks the price before he starts, and in almost every other walk of life that is the way services are bought and sold. There is no invasion of the sanctified right of a free and full defence when Legal Aid says to the lawyer conducting the case, "You will perform these services as though you were acting for an ordinary client."
The next proposal that I would like to put before the community and in particular its elected representatives is that we break off from the old Anglo-Saxon/Continental tradition that every time we find a new problem we form a new court to handle it. Sometimes that is justified. We see the Government of Ontario today forming a unified Family Court to combine the functions of family law into one forum. That is commendable. But the courts of the country, like the universe itself, go through an expanding cycle followed by a collapse cycle. England is now in a collapse cycle. We are in an expanding cycle--we are creating tribunals right, left and all over the place--arbitration tribunals, the new family law tribunal, divisional court. It goes on and on. When England was in an expanding cycle, they created a court of "Probate, Divorce and Admiralty". That soon became known as the "Court of Wills, Wives and Wrecks". When England went into the collapse cycle, that court fell back into the Supreme Court adjudicature. Ten years from now, we'll be doing that.
In the meantime, we have 3.9 million cases pumped into the provincial courts. Our solution in North America has always been more and bigger, therefore good and right. Perhaps the day has come, brought upon us by OPEC if nothing else, when we must stop proliferating the state apparatus to resolve disputes in the community. Therefore I suggest that we turn the clock back and take a look at the origins of the common law and the Royal Courts of Justice which were in the jury system, and at neighbourhood courts (the Red Chinese call them "people's courts") where people hear by-law offences, things of minor importance on the large scale but very important on the neighbourhood scale. We should deformalise our tribunals, starting at the lower levels.
Parallel with that, I suggest that the legislators consider reducing the spectrum of crime, so that we do not engage ourselves in lengthy, repetitive trials, the conduct of which affects nobody but the accused, and that we modify our reflex in punishment so that we incarcerate fewer and punish by community service rather than by jail sentences, which will have the effect that it has had in other countries of encouraging people who are guilty to take their medicine now instead of after a long and pointless and usually legal-aided defence, followed by a long and pointless and expensive legal-aided appeal.
As a third cousin to that, we should do something to discourage the old pioneering concept that everybody, however mean his claim, has the right to have his case ultimately decided in the Supreme Court of Canada. We can no longer afford that. The Supreme Court has said so. That's now the law of the land at that level. We have to cut back all the way down.
Let us not forget that an appeal is the weapon of the wealthier of the two litigants; the appeal is the weapon of the person who is not hurt by delay. A multiplicity of appeals demeans the lowest courts, and demeans the administrative tribunals who are appointed for their expertise when their results are held up by a succession of endless appeals.
There is no inherent virtue from on high in the right of appeal. It becomes a questionable weapon after the first absolute right of appeal. I suggest that we protect the ability of the Court of Appeal of this province to resolve serious disputes by somehow curtailing the proliferation of the right to appeal, so as to keep the door of the Court of Appeal open to those cases which require it.
There are other suggestions of a more technical nature that I will not refer to, but I point out that the suggestions which I have made are largely founded on a single, simple theme, and that is that the strength of the Anglo-American jurisprudential system has been and will continue to be the involvement in that system of people from the community. The jury system is the backbone of the Anglo-Saxon common law heritage. Therefore, in the challenge which we find ourselves now facing, we should turn back to first principles, involve the public more, resolve more of our differences at the lower level by the more economical expediency of arbitration, mediation, conciliation, neighbourhood courts, and save the expensive tribunals (housed expensively, staffed expensively and fueled by the law profession necessarily expensively) for those causes, crimes, actions and rights which must be so treated.
Finally, two things are required in these circumstances. The first, that those working in and those working with the judicial system will have to adopt new procedures and new approaches to increase the capacity of the courts without proliferating the size and number of courts, and without and I emphasize this--in any way impairing the quality of justice dispensed by those courts in the Ontario community. Secondly, that those working in the government of the community at all three levels will now find it necessary to examine the capital requirements to bring the capacity of the court system up to the community demand, and that demand will increase, even if we adopt all these measures of efficiency which I have advocated. It might be added, in articulation of these two principles, that both groups of people to whom the first two have been addressed must combine to ensure that access to the courts is not so abused as to defeat the right of others to their day in court. At the same time, we must also open our minds to new ideas and forms which we have not heretofore tried because we have not been forced to do so.
There is nothing final in the growth of the law. It is not a physical science. We will continue to progress, but we will do so only if we adapt the basic court system which we have to future needs, and if we ensure a progressive attitude in the lawmakers, both legislative and judicial.
Finally, I eschew the idea that there is a panacea easily attainable and without any cost. That is impossible. We can only process more rights, more defences, if we have more soldiers, if we have them properly equipped. All of that takes money, both public and private.
And so I come back to the statistics with which I started, and which I reviewed all too briefly with you, but which I have studied myself, and so I can say with confidence that I will see you all in court!
The appreciation of the audience was expressed by Mr. H. Allan Leal, Q.C., LL.M., LL.D., Immediate Past President of The Empire Club of Canada.