By Cristin Schmitz for The Lawyer's Daily
Justice Minister David Lametti is poised to start filling the backlog of superior court vacancies that more than doubled around last fall’s federal election, The Lawyer’s Daily has learned.
But lawyers and courts say that chronic appointment delays are taking a serious toll on the public. As of Jan. 7, 2020, there were 68 vacancies in federal superior courts across Canada, according to the website of the Commissioner for Federal Judicial Affairs.
That compares to only 31 vacancies when Parliament adjourned for the summer break at the end of June 2019. In the intervening seven months, Ottawa has made only three judicial appointments — two in British Columbia in December, and one to the Supreme Court of Canada.
Most of the vacancies (including on the provincial courts of appeal) are in: Ontario 19; Quebec 12, British Columbia eight, Alberta eight and the Federal Court/Court of Appeal eight. Some smaller courts, such as the New Brunswick Court of Queen’s Bench Family Division, are also awaiting appointments.
The large spike in judicial vacancies occurred in the second half of 2019, despite Lametti appointing at what would have been a record-setting pace last year (89 appointments and elevations by July 2019), following a record high number of 107 the year before, and 102 appointments in 2017, according to the Office of the Commissioner for Federal Judicial Affairs. (There was another lengthy appointment hiatus in 2015-2016 as the incoming Trudeau government overhauled the federal judicial appointment process to attract more diverse applicants).
The present backlog arose in the context of a pause during Parliament’s summer break; the caretaker convention that kicked in after the federal election was called last September (obliging the government to defer appointments until after the Oct. 21, 2019, election); and the reality that a new cabinet was not in place to approve governor-in-counsel appointments until November. The Liberals have also had more posts to fill since they formed government in 2015, having created 75 new judicial positions across Canada to deal with population growth, burgeoning asylum claims and the expansion of Unified Family Courts.
Nevertheless, delays in filling vacancies, and a shortage of superior court trial judges in British Columbia (which is asking Ottawa to create new positions on the B.C. Supreme Court) contributes significantly to trial and other litigation delays in the province, says Ken Armstrong of Vancouver’s Armstrong Naish Trial Lawyers, president of the Canadian Bar Association’s B.C. branch.
Delays in judicial appointments predated the current seven-month hiatus in appointments, he said. “I don’t believe [the election] is the only reason for delay in appointments,” Armstrong remarked. “It has been a chronic problem.”
Armstrong told The Lawyer’s Daily the problems have sparked a crisis in the administration of justice in his province, so much so that he wrote Lametti in mid-January urging the justice minister to speedily fill the trial court’s seven vacancies.
“Parties are regularly arriving at court for trials and hearings, then are being sent away because of a lack of judges to hear the cases,” Armstrong wrote. “Those parties have often spent substantial time and money preparing for court appearances, and witnesses have also been inconvenienced. The financial cost to those involved is substantial, but the emotional cost is often equally significant as those seeking finality to their disputes are left waiting months or even years longer.”
Statistics provided by the B.C. Supreme Court indicate that postponements of trial and long chambers applications spiked in 2019 with, for example, more than 12 per cent of scheduled trials being “bumped” — the highest level of bumping in at least 12 years (140 trials were bumped as against 987 trials that were heard in 2019. That compares to less than four per cent of scheduled trials being bumped in 2018.)
Armstrong said he heard back swiftly from Lametti’s officials. “The answer [from the government] is that there is a need for more applicants,” said the Vancouver personal injury litigator, who has been reaching out to the members of the bar to encourage them to apply for the prestigious posts which currently pay puisne judges $329,900 per annum, plus a lucrative indexed pension when they retire.
“I wasn’t given really any indication [of the size of the existing pool of approved applicants], just encouraged to encourage people to apply,” Armstrong explained. “In particular they did identify [that they are seeking applicants from] a practice area of family law. There’s always a need for female applicants, and interestingly for British Columbia [the government is seeking] French speakers.”
In interactions with the bar, Lametti, his predecessor as justice minister, Jody Wilson-Raybould, and Department of Justice officials have encouraged more applications for the bench, with a recent focus being B.C. and Saskatchewan. Armstrong said he did not have any insight as to why there appears to be a shortage of approved applicants in his province (a similar situation is said to exist in Saskatchewan). He said he doesn’t believe that the pay is too low to attract well-qualified candidates.
(According to the website of the Commissioner for Federal Judicial Affairs, there were 997 applications for the federal benches in 2016-17; 252 in 2017-18; and 320 in 2018-2019. Fifty-six per cent of applications assessed over those three years were screened out as “unable to recommend” by the judicial advisory committees who vet applicants.)
Lametti’s press secretary, Rachel Rappaport, told The Lawyer’s Daily “our government is proud of our strong record of appointing highly qualified members of the legal community to the judiciary. Since we came to power in 2015, our government has made 340 new appointments and elevations.”
Rappaport said that between February and June 2019, for example, the B.C. Supreme Court received seven new judges, bringing the total number of vacancies down to two. “That number increased over the following five months when no new appointments were being made,” she explained. “The minister appointed one new justice to the court in December 2019, and will continue to fill vacancies in British Columbia, and on courts across the country, in due course.”
As of Jan. 31, 2020, Ontario’s busy Superior Court of Justice — the nation’s largest superior trial court — has 20 vacancies, as well as a need to appoint two regional senior justices, and a senior family court judge, said the court’s executive legal officer, Mohan Sharma.
Asked for a breakdown by vacancy dates, Sharma provided figures showing that nine of the vacancies arose before the election writ dropped last September. Three vacancies only arose in January 2020. The oldest vacancy (in Sudbury) dates back to Aug. 29, 2017, while five vacancies have languished since 2018, including three that Parliament specifically created to address trial delays on June 21, 2018 (Bill C-74) — in Newmarket, Sudbury and Windsor (in the wake of the Supreme Court’s imposition of presumptive ceilings on trial delays in R. v. Jordan 2016 SCC 27.)
“There is a high number of vacancies in the Ontario Superior Court of Justice, but in light of the timing of the writ period, the federal election, and time needed by the federal government to form cabinet, this is not unusual,” Sharma remarked. “The chief justice [Geoffrey Morawetz] is in regular contact with the federal judicial affairs adviser and we are hopeful these vacancies will soon be filled.”
Sharma noted that judges typically provide six months notice in advance of their supernumerary election or early retirement. “The intention is to afford the federal minister of justice sufficient time to fill the vacancy, seamlessly,” he explained.
“Unfilled judicial vacancies have a direct impact on the ability of the court to provide early hearing dates,” he said. “The court’s sitting schedule is fixed approximately one year in advance. We know when a vacancy is expected to arise and we schedule matters to a “judge to be assigned” in the hopes that the vacancy will be filled on time. When vacancies are left unfilled in the short term, this can usually be managed. However, when vacancies persist for months or years, it creates real havoc on the court’s schedule. It pushes out the time within which the court can offer a hearing date. Regional senior judges must constantly readjust court calendars and judicial assignments — usually on a weekly, or sometimes daily, basis.”
Sharma said the challenges have been especially acute in recent years, including the pressures in criminal cases following Jordan; the growing number of self-represented litigants; and the court’s desire to live up to its public commitment to prioritize matters involving children.
“To afford the earliest possible hearing dates, many of the court’s judges have given up vacation weeks and time reserved for writing judgments,” he noted. “While the court’s judges remain committed, the pace at which many are working is simply not sustainable.”
The problem is possibly “most dire” in Brampton, where more superior court judges are needed. “The courthouse lacks sufficient courtrooms and there is a demand for more judges,” Sharma explained. “It takes approximately 18 months to have a civil pretrial heard, and a further 18 months for a civil trial. New courtrooms are soon expected to be complete in Brampton, although this will only relieve the necessity of having to transfer cases out of Brampton to be heard in other nearby courthouses. To achieve real improvement in Brampton, the provincial government must fully complete construction of the recent addition to the Brampton courthouse, and the federal government must make additions to the court’s judicial complement.”
Other superior court locations in Ontario also require additional judges, Sharma added. “Our office has provided data, and a business case to the federal Department of Justice seeking further additions to complement, and we are pleased that the Ontario government has supported our business case,” he disclosed. “We are also optimistic that, with the prime minister’s recent mandate letter to the minister of justice, there will soon be additions to the court’s judicial complement.”
(The prime minister instructed Lametti last December to “provide additional support to help reduce delays across the court system, including providing resources to hire new Crown prosecutors and new judges.”)
Rappaport emphasized that the justice minister “is always working to widen the pool of qualified candidates for judicial positions as well as positions on the independent judicial advisory committees. In his meetings with legal groups across the country, the minister regularly discusses how the process works and encourages potential candidates and those in their networks to apply. We are always open to good ideas about how we can reach new networks and continue our efforts to encourage outstanding candidates to put their names forward.”
She explained that in recommending judicial appointments to the cabinet, the justice minister carefully reviews the JACs’ recommendations, and also takes into account a number of factors, “including the needs of the court, the diversity of the bench, each candidate’s area of expertise and the strength of their application.”
One factor which can (but does not necessarily) contribute to judicial appointment delays is when the mandates of the judicial advisory committees (JACs) expire, as they did in 2019, on a staggered basis, in January, March and June 30 (there should normally be a sufficient pool of approved candidates to permit appointments to continue).
The larger JACs have been reconstituted, in Ontario, Quebec, British Columbia and Alberta, but the government has not yet revived the JACs in Saskatchewan, Manitoba and the four Atlantic provinces.
The Canadian Bar Association’s president, Vivene Salmon, stressed that “justice must be rendered in a timely way to ensure confidence in the system.”
She noted that some courts have identified the need for new judicial positions that have yet to be approved, while seven of the JACs currently have no members. “The CBA is willing to lend its expertise in resolving this very important justice issue,” Salmon told The Lawyer’s Daily.