If you’re not a lawyer in Ontario, and realistically, even if you are a lawyer in Ontario but don’t practice in the Ontario Courts of Justice (“OCJ”) you likely are not aware of the difference between the OCJ and the Superior Courts of Justice (“SCJ”).
OCJ has two streams: criminal and family. The criminal hears matters where the accused can be punished by two years less a day in jail, the family division deals with family law disputes that don’t involve property.
The praise I want to heap on OCJ today is the way the division of specialties leads to OCJ Judges who have at least ten years of experience in the area of law that they are hearing cases.
SCJ Judges are not afforded this opportunity. A lifelong criminal lawyer who is appointed to the SCJ will find themselves hearing commercial disputes and complex family and estate matters, as well as criminal matters. As a lawyer with currently 33 years of experience in business law, I can assure you I have zero idea about criminal law – I took it in first year law school & have done my best to block it out ever since, and family? Well, I intentionally avoided taking family law in law school, so imagine if I were suddenly appointed to the bench and had to decide whether you get custody of your children or not.
Why am I bringing this up? Well, without getting specific on the decisions and thereby getting myself in trouble with Judges who I may appear in front of in the future, let me say this: during the past five years or so we’ve had a lot of questionable decisions at the SCJ level in all areas of law made by relatively new appointees who made rulings in areas of law that they didn’t practice in before their appointment to the bench.
The impact of that means decisions have to be appealed, costing each party more in legal fees and for a period of time, until the appeal decision is released, there are decisions out there that can be used to argue that the law is not what it actually is. So, that’s not great.
As counsel, we have a duty to ensure that we are able to persuade Judges using case law and arguments that are upheld by that case law. A good strategy I have used for most of my career is to have a “basic argument” where I’m ready to start at the ground floor of my argument if the Judge is not familiar with my area of law, as well as an “advanced argument” I can skip to if I know the Judge knows the area of law.
Ultimately, it’s on counsel to be ready to “bring the Judge up to speed” on the law; we know SCJ appointees have diverse backgrounds, so we need to be prepared.
Of course, there is another solution. Create SCJ divisions and appoint lawyers to the bench with their existing specialties. Wouldn’t that be amazing? A lawyer can dream !
Inga B. Andriessen, Managing lawyer