Ontario Chief Justice Warren Winkler wants legal system accessible, understandable, cheaper

Ontario Chief Justice Warren Winkler's office is furnished with reminders of his western heritage. There's a photo of his grandfather's grain elevator in Harmsworth, Man., and sculptures of bronc-riding cowboys on his desk.

But it's a hefty blue and green hardcover that catches the 69-year-old chief justice's eye. "Look at that book," he says, gesturing to a nearby shelf. "It's that thick."

Winkler is pointing to the Rules of Civil Procedure, a tangle of dos and don'ts for steering a case through the civil court system. In size, it rivals War and Peace or a repair manual for a Boeing 747. But for Winkler, it's not just a dense set of regulations. It's a symbol of a justice system that's too complicated, lumbering and costly.

All this must change, he says.

The justice system needs to pay more attention to the human toll of litigation and simplify the court process, especially for people struggling, Winkler says.

"For someone who's lost their job, it's a devastating thing, not only for them, but for the whole family."

At the same time, Winkler says the legal profession needs to approach its work from a different perspective, saying goodbye to "over-lawyering" and trying to resolve cases as simply as possible – perhaps even setting budgets – to keep the costs in line with what middle-class Ontarians can afford to pay.

"I think we need a culture shift," he says.

Winkler sat down with the Star in an interview to reflect on his first months in office and his goals.

It's been a year since Prime Minister Stephen Harper surprised the legal community by plucking Winkler from the trial court bench – he was the senior Superior Court judge in Toronto – and installing him in the province's most powerful judicial post. He succeeded Roy McMurtry, who'd hit the judge's mandatory retirement age of 75.

Before becoming chief justice, Winkler, a former labour lawyer and class action specialist, earned a reputation as a highly effective mediator and was credited with keeping Air Canada flying, having resolved an impasse between the airline and its unions.

When he stepped into the top job last June, it was with " a real interest" in reforming the civil justice system. It's sometimes thought of as the side of the courts where businesses go to hammer out disputes, but it's also where ordinary Canadians seek justice for the legal problems of everyday life.

"It could be because somebody built something on their home and it's no good, or somebody didn't pay them for work they did," Winkler says. In a series of stories last year about the hurdles facing middle-class Canadians with legal problems, the Star estimated the cost of a routine three-day civil trial at approximately $60,000.

What usually drives up costs are time-consuming pre-trial procedures, including cross-examination of potential witnesses. The system now offers "simplified trials," which eliminate that step, for lawsuits claiming less than $50,000 in damages. But that leaves out most wrongful dismissal cases, says Winkler. Raising the cap so they can also take the simpler route to court could resolve them faster, as would greater use of mediation, he says.

Ontario's family courts, meanwhile, have their own problems. Child custody battles are often dealt with in provincial court and property issues get sorted out in Superior Court. In many places, including Toronto, they're in different buildings, which can result in total confusion for the families involved.

Winkler believes a solution is expanding the network of "unified family courts," already in place in 17 locations around the province, a move that's not without controversy because it shifts all family cases into Superior Court and would likely require federal co-operation to bring more judges into the system.

Winkler never planned to end up in the legal profession, let alone at the top of the heap.

Married with two daughters and now a grandfather, he's full of homespun stories about growing up in Pincher Creek, a town of 3,600 in southwestern Alberta, about an hour from the Montana border. While it's true he spent his formative years in the unpretentious surroundings of the single-stoplight town, Winkler also comes from an accomplished family.

His father, Tony, and his brother, Winkler's uncle Carl, both graduated from university, unusual for a pair of rural Manitobans during the Depression. Carl Winkler was a Rhodes Scholar. Both brothers aspired to work for the National Research Council, but the federal agency wouldn't hire more than one family member.

Carl Winkler accepted the job and later became a distinguished chemistry professor at McGill University in Montreal, where he's still remembered as a major league star for supervising a staggering number of Ph.D. students, including a Nobel Prize winner.

Chief Justice Winkler's father returned home and ran a hardware store, which arsonists burned to the ground just after Winkler was born. Tony Winkler soon found work running a grain elevator in Pincher Creek and, in January 1939, when Winkler was 6 weeks old, the family set out across the Prairies in a 1928 Dodge.

Winkler attended the University of Manitoba, but had no job and no idea what to do after getting his B.A, so he came home and pondered his future while sitting on a mountain.

As Winkler tells it, he decided to apply to law school, but didn't really know where the law schools were. He guessed that Toronto, Western and Queen's universities would have one. "My dad said, 'I'm pretty sure there's this place called Osgoode Hall.' "

He settled on Osgoode because he was dazzled by the course calendar. "It had a great big coat of arms on the front." His first lecture was taught by Sydney Robins, now a retired judge of the Ontario Court of Appeal, who was recently appointed by the province to look into compensation for Steven Truscott.

"He was such a dapper guy," Winkler recalls. "So erudite. He was urbane, that's what he was. I thought, 'Boy, if that's what it means to be a lawyer, I'd really like to be like him.' "

Today, Winkler considers his western background an advantage because, he says, it never lets him forget there's a world outside Toronto. He's travelled the province extensively in recent months, speaking and meeting with lawyers and judges, and plans to do more.

As often as he can, Winkler escapes to the country, where he has a farm. A dog lover, he's also taken up birdwatching and has a book where he writes down the kinds of birds he's spotted through his binoculars. He's on the board of Bird Studies Canada, a conservation group, and chair of the Long Point Waterfowl and Wetlands Research Fund.

Winkler is proud his father, who eventually became a high school teacher, started a course in law for his students, decades ahead of his time. Tony Winkler would take his students down to the Pincher Creek police station or to the courthouse and try to explain the system "on a level they could understand."

"He would say, 'If your dad didn't get paid for the cattle he sold, here's what his options would be.' "

In his own way, Winkler says his father was trying to make the justice system more understandable and accessible. Like father, like son.

"The justice system exists for the people who use it," he said. "It doesn't exist for the judges and it doesn't exist for the court's benefit. I say this to judges all the time."



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TRIALS TOO LONG? WINKLER WON'T SAY

There's only one question Chief Justice Warren Winkler wouldn't answer during a 90-minute interview with the Star – whether he agrees with his appeal court colleague, Justice Michael Moldaver, that criminal trials are "spinning out of control."

Moldaver angered the defence bar when he began speaking out three years ago about criminal trials taking too long, suggesting defence lawyers are partly to blame for bringing groundless pre-trial motions claiming violations of their client's constitutional rights.

Winkler declined to weigh in, noting the province recently appointed two experts to look into how long it takes to get complex criminal cases to trial.

As for other subjects:

• At a time when standard procedure in big law firms is lawyers billing by the hour, Winkler suggests legal organizations such as the Advocates' Society, a trial lawyers association, could set up programs to school lawyers in an alternative approach – distilling key issues in a case and arriving at a reasonable overall fee.

• While Stephen Harper recently announced a new method for selecting Supreme Court judges, with MPs vetting a shortlist, Winkler says he wasn't convinced there was much wrong with the old system, given the calibre of the current nine-member bench. "I say if the process is flawed, how did they get there?" The newest member, Justice Marshall Rothstein, was questioned by a committee on live television prior to his 2006 appointment. Concerns it would turn into a circus weren't borne out, Winkler says.