You can’t manage what you can’t measure

If there’s no access to court operational data, there’s no prospect of improving access to justice in this country.

That’s how former Ontario Court of Appeal Justice David Brown sees it. In the latest episode of Verdicts and Voices, he and host Alison Crawford have a lively chat about the kind of information that helps people measure progress and identify issues.

Brown says that, while there are some exceptions, most courts in Canada do not report statistics and other data about their operations to the degree they should. This includes sharing information on backlogs, new cases, and the average time it takes for most matters to get to trial.

“The ones who do it usually publish a gamut of statistical indicia of what kind of work they do and how long it takes to get to certain hearings,” he says

“Rare is the case where, at least at the trial level courts, you will find a court reporting on [for example], ‘if you touch base with us with a problem on day one, it will take you two years, three years, four years, on average, to get through us.’ That kind of data just is not there for most of the courts.” 

Brown, who retired in 2024, attributes the discrepancies to leadership. In a recent discussion with two people who manage several administrative tribunals in Ontario, he was told they were under orders from the attorney general to develop, track, and publish metrics on their performance. 

“And yet the attorney general, whose ministry is responsible for the administration of the courts, doesn't do the same on the Superior Court side.” 

Toronto lawyer Michael Lesage has fought for years to have access to court and trial-related data. When the attorney general denied his freedom of information request, he turned to the courts. In November 2023, 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. 

Lesage appealed that ruling, but his application was dismissed last June by the Ontario Court of Appeal, which said “no practical purpose would be served” by interfering with the lower court’s discretionary conclusion.

When Lesage initially requested 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 noted it wasn’t very detailed.

The court recently posted 2024 proceedings data on its website.

Brown suggests one approach to addressing the situation is to tie court operational data reporting to the salaries of those overseeing the courts. 

“Given that the chief justices are responsible for the administration of their courts, why shouldn't part of their salary be tied to whether their courts are performing well?” 

In addition to adjudicating disputes, Brown says a large part of a frontline judge’s duty is case management. He thinks that 10 to 20 per cent of their salaries could be tied to whether they meet specific performance indicators.

“How else are you going to get people to take things seriously, unless you attach money to it?” he asks.

“People yell and scream about judicial independence, but I don't think judicial independence is an excuse or a crutch for poor performance, because you're serving the public, and it's the public who suffers if the courts don't perform well.”

Brown contends there’s no real incentive for governments to take the courts seriously in terms of their resourcing. 

“My personal view is that over the two decades that I was part of the court system in Ontario, not enough effort was done to publicize the perilous state of the courts and the need for more resources.”

The public is, by and large, completely “at sea and ignorant” of what's going on in the courts, he says. It’s only once they get involved in a lawsuit that they suddenly discover how bad delays can be. 

Ultimately, it is the courts’ core mandate to provide good service of adjudication of cases to the public.

“This is not ancillary. This is not secondary. This is not an afterthought. If you can't do this, you aren't doing your job," Brown says.

Tune into the full interview to hear more about what organization Brown thinks would be best equipped to coordinate court data collection and what metrics he thinks all courts should be collecting.