Justice David M. Brown recently released a paper entitled, “THE FIVE HABITS OF HIGHLY EFFECTIVE AND ACCESSIBLE CIVIL COURTS: TRANSPARENCY; PERSPICACITY; CREATIVITY; SIMPLICITY; AND ACCOUNTABILITY – Reflections at the end of a judicial career”. The paper summaries the key lessons Justice Brown has learned throughout his career on the Bench. Justice Brown has been a judge for over 18 years, having spent more than 8 years as a trial judge at the Ontario Superior Court of Justice and approximately 10 years on the Ontario Court of Appeal of Ontario.

Justice Brown identifies the 5 habits which a court must incorporate into its “institutional genetic fibre”, in order to improve its role:

(1) Transparency. Provincial courts at the superior court and appellate court level must publish operational data, which would inform the public of items such as the time it takes to move a proceeding forward from start to finish. The Supreme Court of Canada website indeed publishes planning, performance and financial reports, as well as an “operational statistical summary of the past decade.” Justice Brown states, “No access to court operational data = No prospect of improving access to justice.”

(2) Perspicacity. This term is new to me and to several of my colleagues at de VRIES LITIGATION LLP. The definition of the word is “the quality of having a ready insight into things; shrewdness.” Specifically, Justice Brown states that Ontario’s adjudication system is not working properly and the system takes far too long to move cases along. It is also far too expensive. To address the issue, Justice Brown proposes perspicacity: “Applying the habit of perspicacity would involve re-imaging, from its start to its end, the dispute adjudication process offered by public courts to those who seek its services. Such re-imagining would start by recognizing that Ontario’s civil adjudication system is based on a process-design that is almost 150 years old, dating back to the 1880s. That design is outdated, inefficient, and needs to be rethought and rebuilt from the ground up.”

(3) Creativity. Justice Brown contends that the court system must bring fresh eyes and ideas to the process of designing a new public civil adjudication system that remedies its main performance deficiencies (i.e. the delays and expense associated with the court process). When it comes to “fresh eyes”, Justice Brown says there are two types: those who possess knowledge and skills about creating a system that delivers quality services to the public; and looking beyond Ontario and to other jurisdictions for guidance. Justice Brown then offers a specific re-design proposal, which is worth reviewing in full.

(4) Simplicity. Justice Brown emphasizes the need for a simplified production and discovery process and interestingly comments that a claimant should be required to disclose that it in fact has the evidence to support a claim at the outset of a proceeding. It is also noted that the frequency of self-represented litigants calls for a re-vamping of the system where individuals do not necessarily require the assistance of a lawyer to prosecute or defend a case.

(5) Accountability. This habit involves: (a) developing transparent publication of information regarding how the courts are operating (see number 1 above); (b) developing performance standards; and (c) tying part of the extra compensation paid to Chief Justices and Associate Chief Justices to whether their court meets certain performance standards, and tying part of the compensation of puisne judges to the results of their managing case in a manner that meets court-wide performance standards.

While Justice Brown acknowledges that he may not see these changes come about in his “judicial lifetime”, he remains of the view that redesigning the court system and its operation will create a more accessible and effective process for all.

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The Advocates’ Society
Mediation and Arbitration: Transforming Estates Law
December 2, 2024 – 1:00 pm to 4:00 PM (ET)

Med-Arb is a hybrid option that combines both mediation and arbitration. The parties first attend mediation to try to negotiate a settlement. If a settlement is not reached, or if some issues are settled while some remain unresolved after the mediation, the parties then proceed to an arbitration with the mediator acting as the arbitrator. The arbitrator renders a binding arbitral decision of the issue or issues that were raised, but not settled, at the mediation.  Med-Arb is an under-utilized relatively new concept in estates disputes but is attracting interest among lawyers and their clients.  Med-Arb is often quicker, more efficient, and cheaper.

Check out The Advocates’ Society program at: Mediation and Arbitration: Transforming Estate Lawyer, co-chaired by Justin de Vries and Ian Hull.