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| Davd MacDonald |
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| Chris MacDonald |
Following R. v. Jordan there has been a significant reallocation of court resources — including judicial time and administrative support — away from civil and other matters and toward criminal cases, in order to ensure that criminal trials are completed within the strict constitutional timelines set by the Supreme Court, 18 months for Ontario court matters and 24 months for Ontario Superior Court matters.
It is worth considering the precedent of the Jordan-related judicial shift required to effect the two-year trial imposed in criminal trials. It is instructive in the context of the significant added judicial time commitment that will arise from the CRR with its requirement for mandatory judicial case conferences and that cases be tried within 24 months.
The Civil Rules Review Working Group does not provide detailed breakdowns of current judicial time to determine what amount of an increased judicial complement and court staff will be required to deliver a court-driven system. How can a system be designed without determining whether and what resources are available to deliver it?
We need that granular information to ensure appropriate numbers of court staff and judges are in place to deliver on the requirement for judicial case conferences, never mind for trial within two years. There will need to be resources for mandatory judge-presided conferences for the over 150,000 civil cases currently in the system and the additional 66,000 civil claims issued each year, for a total of over 216,000 civil cases. If we don’t determine the judicial hours required and ensure the correct number of judges are allocated for case conferences, the CRR proposals will never get out of the blocks, access to justice will suffer, and the civil justice crisis will have worsened.
The Justice Geoffrey Morawetz report Ontario Superior Court of Justice: Modernizing the Justice System 2019-2023 provides helpful data, which supports the conclusion that the delays caused by the current system are caused by judicial scarcity. With additional demands imposed by the CRR, these delays will only worsen unless many more judges are hired to deal with the backlog and the mandatory judicial conferences for every civil case.
For the estimated 216,000 cases in the current backlog and/or the 66,000 cases added each year, the CRR proposes each to have a scheduling or directions conference, or both, as the backlog is integrated. This means that quick turnaround trial dates will need to be arranged for all cases in the backlog even before new cases are integrated, case conferences arranged and two-year trial dates assigned.
The judicial reallocation demonstrated by the Jordan-related requirements proves there will need to be both a significant increase in and a significant shifting of judges and court staff to deliver the judicial intervention the CRR currently proposes.
No change in Superior Court judicial complement since R. v. Jordan
Pre-Jordan (2016) vs. today
- Superior Court judges: The Ontario Superior Court of Justice has a current complement of 341 judges and 15 associate judges as of the most recent annual report.
- No change over time: There has been no significant increase in the number of judges or associate judges since R. v. Jordan was decided in 2016. The court’s complement has remained relatively stable, with minor fluctuations and some administrative restructuring despite the fact that the number of civil cases and criminal cases has been increasing.
Current system and challenges
- Resource strain: The Ontario Superior Court already faces significant resource constraints, making it difficult to provide timely case conferences for all matters.
- The CRR Phase 2 advocates for more judicial case conferences and earlier judicial intervention to accelerate civil litigation but acknowledges that current staffing is insufficient for universal case conferences for every claim.
Calculating required number of additional judges to deliver the CRR proposals
If you assume that 150,000 existing civil actions each require a 15- to 45-minute judicial case conference (avg. 30 minutes), and 66,000 new civil claims are issued each year — each of which also requires a 30-minute-on-average case conference — then the total number of case conferences per year would be 216,000 (150,000 + 66,000) and the total judicial time required is 216,000 case conferences × 30 minutes = 6,480,000 judicial minutes.
Assuming a full-time judge works eight hours per day, five days per week, 42 weeks per year (approx. 100,000 minutes/year), the number of judges required to handle this load is 64 judges.
So, 64 full-time judges would be required to manage this case conference workload annually, for the claims currently in the system and repeating each subsequent year.
This would need to be a permanent addition of judges. Assuming each new year brings an additional 66,000 claims and the same number resolve each year, managing 210,000 cases for the directions conferences and scheduling conferences alone would require 64 judges’ full-time attendance each year, on an ongoing basis.
Lack of proportionate allocation of judges between civil and criminal matters: 2019–2023
This chart shows that in Superior Court, roughly 6,000 criminal cases are managed each year as compared to about 63,000 civil claims (Source: Ontario Superior Court of Justice: Modernizing the Justice System, 2019-2023 Report, published 2024).
Despite having over 10 times the number of civil matters compared to criminal, civil litigation has stalled as judges are pulled to handle criminal charge attendances.
Emblematic of the current civil case crisis, civil trial fixed dates that were assigned a year or more in advance are now being vacated weekly because a judge is not available. The civil system is suffering from an acknowledged lack of judicial resources.
Analysis: Recognizing the increased judicial resources required in Superior Court to bring to trial in two years, civil matters that total 10 times the criminal court load
Ontario’s Auditor General’s 2019 Annual Report (Volume 3, page 144) found that the criminal case backlog is increasing, and that, between 2014-15 and 2018-19, the number of criminal cases waiting to be disposed increased by 27 per cent.
If there is a scarcity of Superior Court justices now to address criminal justice needs when there are only 6,000 criminal cases needing trials within two years, query the number of judges necessary to be appointed or reallocated to handle the CRR mandatory judicial conferences for civil claims equivalent to over 10 times the number of Superior Court criminal matters, and into trial in two years from issuance of claim (not including the civil case backlog).
We know for certain that given increasing times for resolution of criminal matters, the criminal justice system has no capacity to reallocate criminal judges to civil.
We also know that given the current economic climate and the reduced sum allocated to the Ministry of Justice in the recent budget, there is no source of funding to support appointment of associate justices by the province and no federal will to provide a significant infusion to appoint Superior Court justices.
The court-driven CRR proposed civil justice system needs an infusion of judges and associate judges to manage any transition to a court-driven two-year resolution track, to staff the proposed directions and scheduling conferences alone.
This is not going to happen. Since new judges won’t be appointed, the CRR proposals will not be deliverable.
Need to appoint judges to keep pace with rising population and increasing backlog
Here is a comparison of Ontario’s population in 2016 versus now, and the corresponding ratio of people per judge:
- Population in 2016: 13,448,494
- Population in 2024-2025: 16,124,116 (July 1, 2024)
- Number of Superior Court judges: 341 in 2016 v. 340 in 2024
The ratio of judges to population is in decline
The number of people per judge has risen from about 39,438 in 2016 to 47,424 in 2024. The population has increased by 20 per cent from 2016 to 2024 and the total number of judges has not increased. The number of civil judges has diminished drastically, however, due to R. v. Jordan. Given the ongoing secondment of judges to handle criminal matters first and civil last, the CRR proposals will not be successfully implemented on the existing resources. Judicial resources will collapse under the increased load.
Necessary solution
Increase the judicial complement to address civil justice matters and reduce the mandatory judicial involvement at the one-year mandated directions and scheduling conferences.
My next article provides proposals to reduce mandatory judicial involvement in directions and scheduling conferences.
David MacDonald, C.S., is a plaintiffs’ personal injury lawyer in practice for 34 years and is the founding partner of MacDonald Injury Lawyers. Chris MacDonald is a personal injury lawyer at MacDonald Injury Lawyers.
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