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What Leafs rebuild can teach courts | Michael Lesage

Friday, March 19, 2021 @ 12:17 PM | By Michael Lesage


Michael Lesage %>
Michael Lesage
Few hockey teams are as storied, and yet have boasted less success over the last half century than the Toronto Maple Leafs. Long beset by poor management, they have objectively underperformed their competitors for generations. In that time, they have struggled to make the playoffs, generally failed to advance far into the playoffs when they have qualified and completely failed to reach the finals. At various points, they have effectively fielded a team of amateurs or has-beens. In many respects, their underperformance is emblematic of that of the Ontario court system.

The Ontario court system, like most, is tasked with performing three basic functions, norm enforcement, dispute resolution and policy making. However, it increasingly fails to deliver. For instance, each year in Ontario, hundreds of criminal charges, many extremely serious, are dismissed for delay.

Meanwhile, as criminal cases are given the highest priority, other types of cases, such as family and civil, are displaced to make way. Family cases can spend years languishing within the Byzantine family system, while civil cases are “lucky” to reach trial within seven years. It is worth noting that no one can say exactly how long it takes for cases to reach trial, as that stat, (like most) isn’t tracked. Analyzed from a systems theory perspective, it would appear that the purpose of the Ontario court system (POSIWID or purpose of a system is what it does) is to delay matters until they have naturally resolved, through the death of one or all of the parties.

While the Leafs can blame some of their dysfunction upon management (think Harold Ballard), the Ontario court system can thank both its unwieldy organizational structure, along with the dysfunctional management team thereof, colloquially referred to as “the Justice League.” For those unaware, “the Justice League,” not to be confused with the Marvel superhero movie of the same name, is comprised of the judiciary, the Ministry of the Attorney General (MAG) and the Law Society of Ontario (LSO).

Looking first at organizational structure, the Ontario (Superior) courts are a somewhat unique beast. While the number of judges is determined by the province, the judges themselves are federally appointed and answerable only to the appellate courts. The courthouses meanwhile are run by (and report to) the MAG, while the lawyers who appear within report to their clients and are regulated by the LSO. There is virtually no accountability (or feedback) between members of the Justice League and stakeholder engagement is essentially unheard of. Almost any question therein can truthfully be answered with “It’s not my responsibility.” The entire system can perhaps best be thought of as a ship with three captains (who seldom speak to each other), three wheels and three rudders. Given its demonstrated success, it is a wonder this structure has not been more widely adopted into the corporate world or in the military.

The most sympathetic member of the Justice League is doubtless the judiciary. Increasingly tasked with too many demands while provided with too few resources, they are likely the only reason our court system still continues to function. Yet, to make their jobs even more thankless, they (like lawyers) must often work while the MAG runs active interference. However, rather than taking bold action, such as dismissing all criminal cases on a rolling basis until certain necessary reforms are implemented, or even revising and streamlining court rules (to allow more to be done in less time), our judges have chosen to play on while the Titanic slips beneath the waves. It’s heroic in a way, unless of course the ship could be still saved ...

The most pitiable member (or Ministry generally) is of course the MAG. Tasked with far more responsibilities than it has had management competence to perform, it has stumbled into this century while barely prepared for the last. Not surprisingly, it managed to completely miss the advent of computers, while dedicating what limited management resources it did possess to ensuring that cassette tapes received were properly labelled and stored (for which it gave itself excellent reviews per its 2018 self-assessment). As such, the MAG can scarcely be faulted for failing to notice the overall abysmal performance of the Ontario court system; i.e., criminal cases dismissed for delay, third world level wait times. Likewise, it simply lacked the awareness to notice what was happening next door in New York, whose court system was setting standards and goals and pursuing an “excellence initiative.” Conversely, the MAG was self satisfied cranking out the legal equivalent of Trabants, a real-world example of the Dunning-Kruger effect in action.

That of course leaves the LSO as the member most responsible for the current performance (or lack thereof) of Ontario’s legal system. There are a plethora of reasons for this. Initially, running a restaurant is a time-consuming and difficult job. Next, it can be challenging to run an organization and to make informed decisions based upon feelings, especially if those feelings could be mistaken. In the real world, data is gathered (i.e., wins vs. losses, sales of Camrys vs. Accords) which provides objective feedback as to the correctness of those feelings, after which adjustments can be made. At the LSO, necessary data to date has been deemed limited to the number of members, the amount those members can be charged and whether those members may belong to any identifiable protected group. Overall system performance has been given little attention and incoming lawyers are still not tested on such basic concepts as benchmarking (much as current licensees were not tested on computer literacy, which obviously had no impact whatsoever upon the collapse of the court system last year).

However, hope springs eternal. After sucking for many, many years, Leafs fans were eventually fed up and demanded change. A new general manager was brought in from the U.S. (Lou Lamoriello) with a proven track record of success. Likewise, a young Kyle Dubas was recruited, to inject data analytics into the heretofore “feelings based” (and objectively ineffective) decision-making process. New up-and-coming players were likewise recruited to join the program and to participate in the rebuild. Over the next several years, performance improved substantially, to the point where the players were no longer starting their golfing seasons until May most years.

Hopefully, like Leaf fans, the Justice League members have grown tired of the court system objectively sucking, as have many lawyers and members of the public. Like with the Leafs rebuild, perhaps some senior justices need to be brought in from New York state?

The MAG certainly needs to bring in some new management talent (and meaningful data analytics), to assist Attorney General Doug Downey (who despite best efforts, can’t fix it alone), and the court system should be publicly benchmarked against the performance of the courts in New York state. The law society meanwhile must cast aside its restaurant dreams, and with its Justice League partners begin to measure how the court system is performing, see that feedback is provided and ensure that continuous improvements are made. This will require the LSO to adopt the legal fiction that access to justice falls within its mandate, but such magical thinking will be necessary, at least in the short term to assist with the rebuild.

After all, if the Leafs no longer suck, why should our courts?

Michael Lesage is a trial lawyer and the founder of Michael’s Law Firm, a litigation boutique that specializes in complex cases involving professional negligence, business litigation, insurance coverage disputes and cases of serious injury. When not representing clients, he can often be found playing competitive sports. He also sits as a bencher at the Law Society of Ontario. You can e-mail him at michael@michaelsfirm.ca.
 
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