"The benchmark of a civilized society is the quality of its justice"
In addressing the concept of a modern civil justice system, and what its features should be, we determined that we would measure our recommendations against the following criteria, which we see as the legitimizing principles underlying such a system. These benchmarks are:
- Efficiency and Cost-Effectiveness
- Accountability, and
- A Streamlined Process and Administration
To meet these benchmarks, in our view, a modern civil justice system for Ontario must have at least the following characteristics:
- It must have the confidence of the public, and the public must have a legitimate and meaningful involvement in the way the system works.
- It must be properly and adequately funded and resourced.
- It must focus on "dispute resolution" as a whole, and make available to the public, on an institutional basis, both the traditional court adjudication processes and the whole panoply of alternative dispute resolution ("ADR";) techniques which enable parties to work out their disputes on their own or with the assistance of a third party.
- Its courts must be presided over by an impartial and completely independent judiciary, the members of which must be of the highest caliber and character and who must be representative of the society they are being entrusted to judge. As the civil justice system evolves, judges, we believe, will be called upon to bring skills as case managers and general dispute resolvers to their role as well.
- Its administration must likewise be staffed by qualified and trained personnel at all levels.
- It must feature a unified management, administration and budgetary model for the administration of the justice system, featuring clearly defined lines of responsibility.
- It must be equipped with modern computer and electronic technology to enable the participants in the system to work effectively as an integrated whole.
- It must operate under the model of case flow management, a time and event managing system which facilitates early resolution of cases, reduces delay and backlogs, and lowers the cost of litigation. Case flow management shifts the overall management of cases through the time parameters from the Bar -- where it has traditionally been -- to the judiciary, streamlines the process, permits the introduction of ADR techniques, and creates an environment where judges, administrators and quasi-judicial officials can work together to integrate the various elements of the system into a co-coordinated whole.
These themes and concepts are developed in more detail throughout this, our First Report and will continue to evolve, in consultation with the various participants in the justice system, as we work toward our Final Report later this year. What follows in the remainder of this Chapter is a brief commentary on the more significant features, in order to set the context for our recommendations.1.2 PUBLIC CONFIDENCE AND PARTICIPATION
In order for the public to have a feeling of confidence in the integrity of their civil justice system they are entitled to:
- timely and affordable civil justice
- be able to understand the system which provides that justice, at least in its fundamental elements if not in its procedural complexities and,
- basic, straightforward, information to assist it when it comes into contact with the system.
As the noted American jurist, Justice Felix Frankfurter, expressed it:
"The Court's authority, consisting of neither the purse nor the sword, rests ultimately on substantial public confidence in its moral sanction"
Like most other institutions in to-day's society, the Courts are the subject of increasing scrutiny by the public and the media. This scrutiny makes it ever more apparent that the Court be worthy of the public confidence which is the ultimate basis for societies willingness to accept its decisions.
This is particularly so at a time when the Charter of Rights and Freedoms has placed the Courts at the centre of many controversies which in former days were the sole preserve of the Legislatures and Parliament. At the same time, new and proliferating legislation in areas such as family law, consumer protection law, environmental law, class actions and tax and corporate-commercial law -- to name only a few -- is placing the civil justice system in the public eye on a daily basis.
As a result, the public is demanding more of a say about what goes on in the justice system, and the ability to participate in a meaningful way in affecting what happens. As the public member of the Review put it, there is presently
"No meaningful and substantive role for the citizen in the justice system. Citizens are less willing today to place blind faith and trust in institutions, in professionals and in elected officials. They are more demanding of accountability, more insistent on openness and more determined to be involved in actively shaping our institutions.
The Civil Justice Review agrees that the public must be given a more participatory role in the civil justice system, and we have elaborated on this view in the Chapter called "Changing Attitudes, Roles and Responsibilities.