Some welcome editorial comments this week from Justice D. M. Brown, of the Superior Court of Ontario, in
Starting at para. 269 of the decision, the judge candidly describes the disproportionate time required to make rulings on complex summary judgment motions. In a nutshell, he takes aim at one area of judicial allocation, judgment writing time. He says the internal scheduling protocols should be updated to reflect the time needed to deal with summary judgments, which may take up little hearing time but deal with issues as complex as many commercial trials.
In the concluding paragraph, Justice Brown writes, “
If we are to restore the health of Ontario’s ailing civil litigation system, as judges we must not only call on those who appear before us to change their litigation culture, we also must look at our own internal scheduling culture and change it to meet the realities of our times.”
In a paper delivered at a September 12, 2012, meeting at the Ontario Bar Association, Justice Brown had disagreed with comments this writer made to the Canadian Lawyer in a August, 2012, article about the need to allocate judicial resources to meet higher demand for summary judgment motions. In fairness, Justice Brown did not, as I did, propose a separate motion court for summary judgments, separate from procedural motions. But his words are timely and represent an awakening to the need for court modernization.
Judge Brown deserves our praise for speaking candidly about the role of judicial resource administration in problems we face in the justice system. We in the practicing Bar can only encourage more transparency from the judiciary. Judges blaming lawyers will never replace cleaning out the stables. This author, in any event, will offer thanks to him for encouraging the debate. This time, you met me half way.
Lord Denning’s decision in the “cricket balls” case of Miller v. Jackson,  Q.B. 966 (C.A.), is required reading for every first year law student. Read it again, now that you’re called to the bar, and see how the great judge weaves the xenophobic values of an island nation into the common law. The judgment is the greatest legal teaching tool, and a dangerous introduction to the law. Depending on the law teacher, it is either the beginning of modern Common Law discourse or an amusing example of judicial arrogance. Denning remains on a pedestal for lawyers of prior generations. In his world, there are cricket enthousiasts and there are “newcomers.” The newcomer in Miller “is no lover of cricket.”
According to the Guardian newspaper’s obituary, Denning expressed remarks about black jury members as an “alien presence in our midst.” A champion of the ordinary man, he evidently had a problem with the new demographic of British society as not being “ordinary” enough for him. Click on the next link to see my PowerPoint presentation which has caused audiences to rethink their legal “hero”: Denning and Newcomers. Can you ever read another Denning M.R. judgment the same old way? Continue reading
ALERT is the Ontario Bar Association’s charity devoted to public legal education. It has developed an impressive bank of videos aimed mainly at the public, to describe the role of lawyers and the justice system, as well as explanatory how-to guides to court procedures. Link to the ALERT page here, and to the video site here.
I had the privilege of working with Peter Henderson and other OBA members on our Ontario Civil Justice Reform Project Working Group. Our recommendations have helped shape reforms to civil justice in Ontario. See the preliminary report to the OBA Civil Litigation Section here: civjanweb08