Chapter 13.3 Civil Justice Review: March 1995

Circuiting:

Circuiting has been a hallmark of the superior court in Anglo-Canadian jurisprudence since the time of the Normans in the eleventh century. In Ontario, circuiting can be traced back to the first act of the new government of Upper Canada in 1792, which introduced the English common law as the applicable law in civil and criminal matters in the province [67] .

Prior to the change in the structure of the courts in October 1990, the superior trial court was the High Court of Justice, a division of the Supreme Court of Ontario. It consisted of 55 judges who were based in Toronto (although appointed on a basis intended to be representative of the province), but who circuited to each county and district centre twice yearly. The District Court was the "resident" court in those communities, although its members also sat from time to time in other District Court centres within their regions and around the province [68] .

Since 1990, circuiting has continued in the General Division, but it is a circuiting of a different nature than that which characterized the former system, and it is a circuiting which has been met with far less enthusiam by the judiciary. Moreover, it is a type of circuiting which leads to various inefficiencies and which has had an affect upon the morale of the judiciary.

These difficulties need to be addressed, in our opinion, and the whole question of circuiting approached with a view to adapting its strengths to modern day realities and to integrating those strengths into the overall rubric of caseflow management which we are recommending for the Province.
Advantages to Circuiting

Circuiting is an integral characteristic of the superior trial court. It brings the following qualities to the deliberations of the court:

* First, and most importantly, it provides for consistency in the administration of justice in Ontario by,
-encouraging a uniformity in application of the law across the province; and,
-avoiding "balkanization" of the province into different pockets of law-applying segments.
Without circuiting, separated legal communities have the potential to develop their own brand of justice. A circuiting judge helps to ensure that decisions are rendered which are consistent with those being delivered elsewhere in the province.

* Secondly, circuiting brings a "fresh face" quality to the administration of justice across the province.
The potential for an insulated Bench and Bar to develop an unhealthy familiarity amongst themselves not only enhances the prospect of balkanized justice, it creates the risk of weakening the aura and reality of impartiality on the part of the judiciary, which is the bedrock upon which our justice system rests.
A circuiting judge brings a new face to judicial deliberations in the community, one that is not caught up in local perceptions or familiarities.

* Thirdly, and conversely, the circuiting judges themselves are provided with a new and differing perspective, not only on the legal environment in which they are accustomed to working but on differing parts of Ontario as well. Exposure to new places and faces is important. It is not healthy for the individual judge, or good for the public, for a judge to spend an entire career in any one place -- whether that place be at the corner of Queen St. and University Ave. in the City of Toronto, or in Thunder Bay, or Timmins, or Windsor, or Brockville, or Barrie, or anywhere else in Ontario. Variety benefits all.
Historically, circuiting has served to maintain a sense of strength and vitality amongst those who engage in it. Requiring judges to deal with a wide variety of civil and criminal matters in a wide variety of locations across the province infused them with a renewed robustness and vigour. It also contributed to the development of a collegiality and cohesion amongst the members of the circuiting court. Overall, the quality of justice was enhanced by the process.

Circuiting Since 1990

Since 1990, circuiting has continued to take place in the General Division. Today, however, "circuiting" has come to represent, with few exceptions, the travelling of judges within the newly created Regions of Ontario. Moreover, within the Regions themselves circuiting is frequently confined to "mini-circuits" along one particular route or another, or in a particular area.

In our view, these developments have diluted the advantages and purposes of circuiting in a superior trial court.

Judges in the Ontario Court of Justice (General Division) are expected to circuit within their Regions, unless they cannot do so for reasons of health. Toronto is an exception, since it is one city comprising an entire Region. There, judges do not circuit; however, because of the concentrated volume, they move around by subject matter in 6 month rotations. This latter phenomenon can create similar difficulties to that of geographical circuiting, in terms of the scheduling of cases and assignment and availability of judges -- both of which are factors that have to be taken into account in developing a viable caseflow management system.

It is the opinion of this Review that circuiting, as presently constituted, can be improved.

The convention of circuiting only within the Regions, and frequently only within limited areas within Regions, increases the potential for balkanization of the justice system in Ontario. While this practice may maintain a consistency and uniformity in the administration of justice within the Regions -- or, at least, within the mini-circuits inside of those Regions -- it may well have the opposite effect for the province, as Regions and mini-regions become more and more identified as jurisdictional units in themselves. Furthermore, with judges circuiting around Regions instead of around the province, the "fresh face" too readily becomes a "familiar" face and the values of differing perspectives and experience are lost.

In addition, circuiting as presently constituted has created the perception, if not the reality, that circuiting assignments are not evenly allocated around the province and that circuiting is taking place simply for the sake of circuiting. In the words of some, circuiting has become "merely a deployment of resources" or "merely an exchange of judges" , without regard to the important underlying values which give it its worth. Not infrequently, a judge will travel from community A to community B, while another judge at the same time is travelling from community B to community A.

In Toronto, some judges are concerned that changing assignments by subject-matter is forcing the Court in that Region into an unwarranted trend towards specialization. While there are advantages to judges being available, and able, to spend large portions of their time presiding in matters regarding which they have a particular expertise and interest, it remains the case that judges appointed to the Ontario Court of Justice (General Division) are judges of the superior trial court of general jurisdiction in all civil and criminal matters. It is important that judges continue to have exposure to all areas of the law in order to maintain the essential character of the Court and to provide the judiciary with the "battery-recharging" lift and robustness that dealing with a variety of matters permits. When the pressure of volume and scheduling leads to judges being allocated more or less permanently to their areas of "expertise" because they can more "efficiently" -- that is to say, more quickly -- process the workload, these values are eroded in the long run.

There are some inefficiencies in any system of circuiting. Since most judges now travel between communities, unless health prohibits, there are, in fact, more judges circuiting today than was the case in the past. Judges who are constantly away from their "home base" however, cannot work as effectively in the long term as those who are not. We were told by judges and lawyers that there is often a loss of productive time during the last 2 or 3 days of any circuiting rotation because the judge is unable to embark upon a case that might extend beyond the end of his or her "sittings" in that community. Judges travel on their own time. The fact that they are away from home impacts negatively on judicial morale.
A Re-Assessment

The primary difficulties associated with present day circuiting are its focus on restricted geographical areas, the frequency with which judges must travel within those limited areas, and the strain and inefficiencies arising out of such frequent travel.

These difficulties can be addressed, in our view, by making changes to the manner of circuiting which will re-inject into the system the values outlined above which were embodied in the traditional form of circuiting. Those values -- consistency and uniformity in the application of the law across the Province, the judicial "fresh face", and the maintenance of a diverse and vigorous Bench -- are paramount, in our view, and must be maintained in order to ensure the highest quality of justice throughout Ontario. The inefficiencies of circuiting can be dealt with through the implementation of circuiting conventions and exchange protocols. Amongst other things, such conventions and protocols can ensure that there are judges "to cover" for held over circuiting judges.

Circuiting should remain as a central characteristic of the superior trial court. It must be re-structured, though, to avoid the pitfalls we have discussed and to enhance the strengths that it brings to the Court.
The Form of the "New" Circuiting

In conjunction with our concept of teams of judges around the province operating under the umbrella of an overall caseflow management system, we recommend that circuiting be re-organized along the following lines:

* Judges in all Regions will be assigned to teams.
This idea has already been employed successfully. As we have previously explained each team will be allocated an inventory of cases to deal with, from their inception into the system, and will be given the responsibility of processing those cases to conclusion. To enable it to carry out its mandate, each team will be provided with a support structure comprised of the necessary staff (including access to judicial support officers and case management co-ordinators), facilities and technological capabilities which will allow the team to do so.
The team, under the direction of its team leader, and in conjunction with the Regional Senior Justice, will decide how it will deal with its case load -- who will hear motions, conduct pre-trial conferences, engage in ADR processes and hear trials; when; and where.
* We anticipate that the "team" concept and the present concept of the "mini-circuit" can be effectively combined. Travel will be for the purpose of effecting the team's work, as organised by the team in conjunction with the Regional Senior Justice. This sort of travel will be necessary to even the workload and to equalize the resources, particularly in the smaller court centres, but it should reduce the amount of travelling, the amount of downtime and inconvenience that presently exists.
* The primary focus of circuiting, however, would be on circuiting between Regions. Inter-regional circuiting would require circuiting among all eight regions by judges from all eight regions. Such a process would ensure that circuiting is divided equitably among all judges of the General Division, thus reducing excessive circuiting time for individual judges and reducing the impact of geography.
The amount of time that judges will be required to circuit is a matter to be determined by the Chief Justice. There may be some exceptions, we would anticipate, for those whose health precludes such travel or who, for other legitimate reasons, are unable to participate.
The circuiting judge would be fitted into the team concept. Incoming circuit judges will exchange with outgoing circuit judges. We think it preferable, however, that the incoming judge be assigned to preside at trials as much as possible. In this fashion, the values which circuiting is designed to foster are best preserved and enhanced.
Inter-regional circuiting is, in our view, the most effective way in which to ensure that uniformity and consistency, the notion of a"fresh face" to justice with its attendant implications, and the promotion of a continually re-invigorated judiciary -- all important values which circuiting has historically brought to the justice system -- are protected. When judges truly travel around the province, rather than simply around a Region or parts of a Region or across the street, these concepts continue to be nurtured and strengthened, and circuiting ceases to be merely "an exchange of judges" or "circuiting simply for circuiting's sake". The public benefits from this.
*
* In an attempt to minimize the inefficient down time which sometimes attends the end of a judge's circuiting rotation, we believe consideration should be given to a proposal put forward by the members of the Advocates' Society in Central East Region [69] . The proposal is to put into practice, in an effective way, the creation of a "short list" of matters which can be ready to proceed on quite short notice -- something which has been tried in Central East before. The concept has been tried in other locations, such as Kingston, as well.
This "short list" concept depends upon the co-operation of the Bar, and the willingness of its members to respond quickly when "downtime" occurs as a result of a collapsed list or the inability of a circuit judge to begin a long matter. With the consent of counsel, civil cases which are realistically expected to take less than two days to try, and long motions, are placed on a list of cases ready to proceed on short notice. When trial co- ordinators get "the feel" that a regular sitting is likely to collapse, or that there is likely to be some "unused" time at the end of a sitting, they will notify counsel with cases on the short list to be alert and to advise whether or not they can be ready to proceed. Experienced trial co-ordinators do this now. In this way, it is hoped, cases will be found to fill in what may become unused downtime for the judge and the court.

RECOMMENDATIONS:

We recommend that circuiting be recognized as a central feature of the Ontario Court of Justice (General Division) and that judges of that court be required to circuit between regions, for a number of weeks per year to be determined by the Chief Justice. Judges should move into and out of the "Judicial Teams" to be be established throughout the province. Circuiting within Regions should take place in the context of the team concept, as directed by the Chief Justice and the Regional Senior Justice.