Lawyer loses appeal bid for greater access to Ontario court and trial data

The Ontario Court of Appeal has dismissed Toronto lawyer Michael Lesage’s application for greater access to court and trial-related data, saying “no practical purpose would be served.”

Lesage has now lost his battle to get data on the workings of the province’s courts at multiple levels but insists the fight will continue.

“I will continue to advocate for transparency from the courts about how many matters go to trial and how long they take to get there,” he says.

“Unfortunately, this decision will make it harder for the public to access that type of information.”

Chief Justice Geoffrey Morawetz had already denied his request, and last November, Ontario Superior Court Justice Charles Chang ruled that the open courts principle did not apply to court data, and access to that information was solely at the court’s discretion.

Now, the appeal court has also denied Lesage’s application for declarations relating to rights of inspection and production of civil court file numbers for cases that have gone to trial.

“There is no basis for interfering with the application judge’s discretionary conclusion that the requested declarations would serve no practical purpose and therefore should not be made,” according to the decision of the three-judge panel, composed of Justice James MacPherson, Justice David Paciocco, and Justice Darla Wilson.

Lesage noted that since control over court documents rests with the judiciary, Chang ruled that once the chief justice decided to restrict access, that decision was final and there was no recourse. However, the Court of Appeal backed off from that position somewhat, ruling that the application judge could have exercised his discretion to allow access.

“One step forward, two steps back,” says Lesage.

A spokesperson for the Ministry of the Attorney General declined comment.

"As this matter is in the appeal period, it would be inappropriate to comment."

When Lesage requested more statistics on the number of cases before the courts, the number of judge-only versus jury trials, and disposition rates, the Ontario Superior Court had not released an annual report, with even the most basic case information, since 2018. It did publish a new one in early May with some new data from 2019-2023, but Lesage says it’s not very detailed.

“It shows us they are doing things, but we still have no concept of how long it is actually taking to do those things,” he says.

“It’s hard to imagine that the public would be satisfied with only knowing the ‘what’ but not the ‘how long.’”

The appeal court did not address Lesage’s argument that the open court principle should cover his requests. He says that given the difficulty and costs of challenges like his, the courts aren’t likely to decide the scope of that principle anytime soon.

Lesage says what’s significant is the decision “appears to buck clear guidance from the Canadian Judicial Council,” which he cited in his factum, that access should be provided to anonymized bulk information relating to areas such as clearance rates, age of active pending cases, and age of reserved judgments. That data should include docket information, including docket numbers and dates of dispositions.

However, those guidelines also state that out-of-the-ordinary requests for stats “need not necessarily be accommodated if their production will require costs or an allocation of resources beyond those that are reasonably available.”

The court ordered Lesage to pay the Ontario Attorney General $5,000 in costs.

Lesage, represented by Thomas Slade and Cory Giordano of Supreme Advocacy, says he is evaluating his options on next steps.