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Judges - Regional Senior Judge

. Hunter v. King

In Hunter v. King (Ont CA, 2022) the Court of Appeal addressed a COVID-era venue scheduling issue which turned largely on the discretion of the Regional Senior Judge [CJA 14(2)]:
The Governing Principles Regarding the Location of a Trial

[6] The Regional Senior Judge’s authority over trial sittings is found in three sources: s. 14 of the Courts of Justice Act, R.S.O. 1990, c. C.43; in a direction by the Chief Justice of the Superior Court; and in the court’s inherent jurisdiction to control its own process.

[7] Section 14 of the Courts of Justice Act provides:
14 (1) The Chief Justice of the Superior Court of Justice shall direct and supervise the sittings of the Superior Court of Justice and the assignment of its judicial duties.

Regional senior judges

(2) A regional senior judge of the Superior Court of Justice shall, subject to the authority of the Chief Justice of the Superior Court of Justice, exercise the powers and perform the duties of the Chief Justice in respect of the Superior Court of Justice in his or her region.

Delegation

(3) A regional senior judge of the Superior Court of Justice may delegate to a judge of the Superior Court of Justice in his or her region the authority to exercise specified functions.
[8] The other two sources of the Regional Senior Judge’s authority were canvassed by Durno J. in R. v. Singh, 2018 ONSC 1532, who gave some background on the courtroom situation in Brampton. He stated, at para. 148:
To address the Brampton courtroom shortage, the Chief Justice has ordered that any proceeding in Brampton can be transferred from the Central West Region to Central South Region if it is determined by the RSJ or his or her designate that the proceeding cannot be held in Brampton. As has been repeatedly stated, there is always an overriding commitment by the Court to take all reasonable steps to keep as many proceedings in Brampton as possible.
[9] Durno J. added, at para. 153, that the court’s inherent jurisdiction also plays a role, and includes “those residual powers required to permit the court to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner”. See also, Ontario v. Criminal Lawyers' Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at para. 21.

[10] This court should not lightly second guess the discretionary decisions of local judges. As Hourigan J.A. observed in Louis v. Poitras, 2021 ONCA 49, 456 D.L.R. (4th) 164, at para. 3:
There is no single province wide answer to the problems we face in delivering timely civil justice; local conditions will necessarily impact the choice of effective solutions. However, what must remain consistent across the province is that motion and trial judges have the discretion to respond to local conditions to ensure the timely delivery of justice. It is a necessary corollary to that proposition that intermediate courts of appeal should not lightly second guess those discretionary decisions.
The Appellant’s Argument

[11] The appellant’s jurisdictional argument rests on the decision of Daley R.S.J. in Kapoor v. Kuzmanovski, 2018 ONSC 4770, 31 M.V.R. (7th) 247, who relied on Singh. Daley R.S.J. noted his authority, at para. 62: “Where other courtrooms within Central West Region are not available, the Regional Senior Justice for Central West Region was authorized to transfer cases to Kitchener in Central South Region.” After quoting para. 148 of Singh, set out above, he stated:
Following Durno J.’s decision in Singh, as Regional Senior Judge I have determined that where there is no courtroom space in Brampton for a civil jury trial, the appropriate and lawful course is to conduct the jury selection in the judicial centre where the case is to be tried. For example, a Brampton civil jury trial transferred to Kitchener would have the jury selected in Kitchener from a jury panel of Kitchener residents. Thus, there would be no need to look to the Jury Transport Program. This jury selection model will continue to apply to all civil jury cases transferred from Brampton whether to Kitchener or to another judicial centre in Central West Region. [Emphasis added.]
[12] The appellant relies especially on the underlined words and submits that in Kapoor Daley R.S.J. made a policy decision under the mandate given to him by s. 14 of the Courts of Justice Act, which then became binding in all civil jury proceedings under his control, including this case. The appellant argues that Trimble J. had no authority under this policy to select a jury from the Brampton panel and then send the jury to Kitchener to hear this case.

The Principles Applied

[13] I begin with the observation that there is a presumption of regularity in the logistical and administrative decisions made by local judges that should not be lightly second guessed. Although this presumption has been expressed in the criminal law context, in my view it applies equally in the civil context. In the criminal law context, see: R. v. Kapoor (1990), 1989 CanLII 7250 (ON SC), 52 C.C.C. (3d) 41 (Ont. H.C.), at p. 68, per Watt J. (as he then was), and R. v. Parmar et al. (1987), 1987 CanLII 4104 (ON SC), 61 O.R. (2d) 132 (Ont. H.C.), per Watt J., affirmed 1989 CanLII 7216 (ON CA), 53 C.C.C. (3d) 489 (C.A.). In the civil law context, see: Eastside Pharmacy Ltd. v. British Columbia (Minister of Health), 2019 BCCA 60, 21 B.C.L.R. (6th) 1, at para. 49; Gordon D. Cudmore, Civil Evidence Handbook, loose-leaf, 4th ed. (Toronto: Thomson Reuters Canada Ltd., 2022), at para. 4-18.

[14] I accept the view expressed in Singh and Kapoor that the optimal arrangement is that the jury is selected from the panel drawn from the place the trial is to be heard. But that optimal situation must yield to circumstantial practicalities.

[15] Daley R.S.J. knew the limits of his authority, which he recited in Kapoor. I do not accept the interpretation placed upon his language in Kapoor by appellant’s counsel, that the only appropriate and lawful course is to conduct the jury selection in the judicial centre where the case is to be tried. The language actually used by Daley R.S.J. is not exhaustive of his lawful authority to deal with local circumstances.

[16] Daley R.S.J. was fully aware of his authority to set policy and also to dispense with it. Because he pre-tried the case immediately before Trimble J. set about selecting the jury from the Brampton panel as part of a civil case blitz and noted that the “case may be sent to Orangeville or Kitchener”, I have no doubt that he well knew that the trial could happen in either Orangeville or Kitchener with a jury drawn from the Brampton jury panel, despite his words in Kapoor. In the general pandemonium around jury selection in a blitz, it seems highly unlikely that Daley R.S.J. did not know that the jury would be selected that very day from the Brampton panel. It was fully within the authority of Daley R.S.J. to make that decision, and Trimble J.’s implementation decision must be presumed to fall within the terms of s. 14(3) of the Courts of Justice Act.


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