Court denies former bencher's request for civil trial data that would show extent of court delays

The Ontario Superior Court has denied a former Law Society of Ontario bencher’s request for statistics on civil proceedings that he made to illuminate the extent of civil proceeding delays in the province.

In Lesage v The Attorney General of Canada, 2023 ONSC 6444, Michael Lesage sought data on the number of Superior Court civil proceedings disposed of by trial in Toronto, Newmarket, Durham, Hamilton, Brampton, and Milton from 2015 to 2018, and from 2020 to present. He also asked for data on how many were jury trials. The court denied his request. Lesage brought an application for declaratory relief to the Superior Court and a mandamus order requiring the Ministry of the Attorney General to release the data.

Justice Charles Chang dismissed the application, finding that the open court principle does not apply to the refused information.

“It effectively eviscerates the open court principle and requires court information to be provided only if the information is available in its current format, and the court agrees to its release,” says Lesage, who practises in the Greater Toronto Area, Hamilton, and Niagara.

In the decision, Justice Chang said there is “currently no protocol in place respecting the aggregation, organization and delivery to the public of court-derived statistical information.”

The court granted Lesage’s previous request for statistical data on court timelines for the same courthouses for 2019. Based on those occurring that year, Lesage found that the average time to get a case to trial was five years and nine months. Chang said the court released the 2019 stats on the condition that the information not be reused for any other purpose without further approval, which Lesage violated by publishing the information on his website.

Lesage argued that the open court principle required the Attorney General of Ontario to provide the information and that the entire database in which the courts manage records and information should be publicly available.  

The AG argued that the court had the exclusive decision-making authority on the information’s release and that “a fundamental difference” exists between the sought information and the available procedure for public access to court documents. The AG said that the court must consider the open court principle through the lens of judicial independence and police both with caution.

Justice Chang said the leading authority on the open court principle was the Supreme Court of Canada case Sherman Estate v Donovan, 2021 SCC 25. The ruling noted that the open court principle is “constitutionally protected as part of the right of freedom of expression and ‘represents a central feature of a liberal democracy,’” that there is a “strong presumption in favour of open courts,” but that exceptional circumstances may arise where “competing interests justify a restriction” of the principle.

While Chang said that the open court principle had a “central role in ensuring fairness and accountability in the administration of justice and in maintaining the public’s faith in and respect for the rule of law,” he found the transparency the principle necessitates does not extend to the information Lesage sought.

According to Sherman Estate, the open court principle ensures that the public can attend hearings, consult court files, and that the press is free to report on the court’s workings, he said. But in this case, the judge found Lesage had not been denied the ability to attend court or view a document; he had been denied in his request that the court “aggregate, sort, and categorize bulk data for the purposes of generating one or more reports.” He said there was no apparent “statutory or jurisprudential authority that stands for the proposition that the open court principle provides for an obligation to generate court documents in the manner suggested by the applicant.”

“[T]he applicant’s demand is a bridge too far,” said Chang.

The judge also found that the authority to decide whether to provide the information was solely that of the court. He also found Lesage was not entitled to the requested order in the nature of mandamus, which, according to s. 7 of the Judicial Review Procedure Act are deemed to be applications for judicial review. Chang said that applications for judicial review must be made to the Divisional Court, and Lesage failed to properly commence his action there, properly frame the issues, and plead the matter as an application for judicial review.  

During oral submissions, Lesage requested an order to transfer the application to the Divisional Court to proceed as an application for judicial review. The AG argued the move would be prejudicial. Ultimately, Chang denied the transfer order, finding Lesage failed to provide notice, made the request too late in the process, and failed to file motion materials or “other proper evidentiary foundation.” He added that the Superior Court lacked jurisdiction to transfer the matter to the Divisional Court.

Lesage says the ruling harms the ability of the press to get information on the workings and problems of the Superior Court.

“Effectively, the court has ruled itself unaccountable,” he says.

Lesage notes that the World Justice Project (WJP) ranks Canada’s civil justice system 68th worldwide for accessibility and affordability. The WJP ranks Canada 56th in the world on its measurement of “whether civil justice proceedings are conducted, and judgments are produced in a timely manner without unreasonable delay.” Lesage has been outspoken on the issue of trial delays in Ontario.

Counsel for the AG did not respond to a request for comment.