By Joanne Paulson

Early in his tenure, Ontario Superior Court Chief Justice Geoffrey Morawetz was confronted with the looming and life-upending possibility that very soon, the courts would have to close.

The COVID-19 pandemic reared its head in December 2019, and by March 2020, Morawetz knew he had to act. Fast.

“I took my cue from Adam Silver, the commissioner of the National Basketball Association,” he relates today. “When he cancelled the NBA season (on March 11, 2020), I said, this is pretty significant. It was two days later that we made the decision that we had to shut down in-person hearings.”

Aware more than anyone that the courts require daily access, the Chief Justice, then only in place since the previous July, rolled up his sleeves and plunged in.

“We had a crisis group together at the court with now-retired Associate Chief Justice Frank Morrocco and Justice Michael Brown and some others, and we met for 88 straight days, seven days a week, 8:30 every morning. How were we going to deal with this?”

Ultimately, e-filing, remote video appearances, and the introduction of commercial grade technology in courtrooms were pillars of the solution.

Many jurists from across the country watched what Morawetz was doing. Before long, the measures he and his group put in place became the COVID-era gold standard, with many of those changes remaining in place today.

Yet, he said, “no one person can do this on their own.”

“It was obviously a challenging situation, but we had a lot of co-operation from the Ontario Ministry of the Attorney General, from the Ontario Bar Association, the Advocates’ Society . . . even the cellphone providers. It was really a collaborative response to an emergency situation.

“We take great pride in that we never shut down. We were instantly able to provide alternative ways to have hearings.”

A Distinguished Career

Morawetz retired in May after a distinguished career that began when he was called to the bar in 1980 after graduation from the University of Western Ontario Faculty of Law (1978). He was first a lawyer at Borden & Elliot (now Borden Ladner Gervais LLP) from 1980 to 1998, before moving to Goodmans LLP.

Morawetz is renowned as a nationally- and internationally-recognized expert in bankruptcy and insolvency law after years on the Commercial List in Ontario. He was appointed to the Ontario Superior Court of Justice in 2005, followed by Regional Senior Justice of the Toronto Region in 2013, and then Chief Justice of the Superior Court in July 2019.

He is a Fellow of the Insolvency Institute of Canada, a Fellow of the American College of Bankruptcy, a member of the International Insolvency Institute and an editor of the Canadian Bankruptcy Reports. Since 2008, he has also served as advisor to the Canadian Delegation at the United Nations Commission on International Trade Law - Working Group V - Insolvency Law.

There were many other major achievements, but two among them were reforming rules of civil procedure, largely an effort to shorten court wait-times, and digitalization of the court system.

The final policy proposals for the former have been submitted, and Attorney General Doug Downey has indicated they will move forward with a phased-in approach, Morawetz said.

“This was something that I really felt quite strongly about. Province-wide, we’ve now hit an average of close to six years between commencement of an action and trial. I really feel this is far too long.

“The civil courts are on the verge of becoming irrelevant if that’s the access point. This is a major reform, and it’s designed to cut that wait time down considerably so the average commencement to trial will be two years or shortly over two years. It took a lot of work.

“We had incredible co-operation from Attorney General Downey. He’s just been spectacular in his support of the courts in that area.

“The other person I would credit is David Corbett, Deputy Attorney General, whom I’ve known for 40 years. Just an outstanding individual who strives for excellence in everything he does.”

Again in co-operation with the ministry will be complete digitalization for both the Superior Court and the Ontario Court of Justice, which will be rolled out over the next three to four years.

“Gone are the days of Charles Dickens and the quill pen and the paper,” Morawetz said. “It’s long overdue. I think that will have a real positive effect on the public.

“We do have a five-year strategic plan that’s been set out for the court. Our processes are antiquated to some degree. Can they be improved upon? I think they can.”

Downey reciprocates Morawetz’s respect.

“Chief Justice Geoffrey Morawetz has dedicated more than two decades to serving on the bench, including nearly seven years as Chief Justice of the Superior Court of Justice of Ontario. Throughout his tenure, he demonstrated steady and thoughtful leadership during a period of significant change across Ontario’s justice system,” Downey said.

Working with the Ministry of the Attorney General, Morawetz played a vital role in advancing modernization efforts including the introduction of e-filing, expanded use of remote video appearances and the introduction of commercial-grade technology in courtrooms, Downey said.

“In addition, Chief Justice Morawetz worked in close collaboration with the Ministry to support the implementation of Ontario's landmark Courts Digital Transformation initiative. This unprecedented, long-awaited undertaking delivered a fully integrated online filing, case management, and hearing platform. This world-class initiative represents the largest digital transformation of our justice system in Ontario’s history.

“Together, we also launched the historic Civil Rules Review, a joint initiative to modernize the Rules of Civil Procedure and make civil proceedings more effective, responsive, and timely for people across Ontario.”

Thoughts from the Insolvency File

Morawetz served as judge on the Toronto Commercial List for eight years including a four-year tenure as team leader, giving him a unique perspective on how insolvency law operates and can be improved.

To that latter end, he encourages insolvency professionals to look outside their specific area of practice.

“When you’re working on an insolvency file, whether you’re working for the debtor or the creditor, you tend to think of your particular silo,” he said. “You have to take a broader view.

“Certain areas of the law do not fit nicely together. They collide; it’s an untidy intersection.

“Examples would be the protection of the environment which has to be considered along with the interests of the debtor and secured creditors; and in family law, too, the protection of the spouse.

“You also have to take into account, in the resource area, the legitimate interests of First Nations or Indigenous groups,” he added.

Regulatory regimes are different for very good policy reasons, and it’s incumbent upon insolvency professionals to recognize that these are legitimate concerns and interests that must be considered when moving a debtor through complex restructuring, he said.

Regarding efforts to develop a national model for a Companies’ Creditors Arrangement Act (CCAA) initial order, Morawetz said there should be a federal approach because of the importance of consistency across the country, but with some caveats.

“It’s been on the table for probably four or five years. In Ontario, there are a number of model orders that are very important, and they have worked exceptionally well. It saves a lot of time if you’re starting with a form of order that has been already vetted and used before.

“If parties want something different, they have to be prepared to explain why the amendments are required.”

However, there are challenges in areas of jurisdiction because some fall under provincial law, in which case certain exceptions may be necessary.

He said he has always thought such things should be developed by the bar in consultation with other insolvency professionals.

“Having model orders develop organically from the bar and then become standard practice and recognized through court orders are becoming the gold standards.

“The judge will speak through her or his own judgments and the reasons. It’s up to the parties to draft the court order for the judge’s review. That’s how I’ve always approached it. There are other jurisdictions around the world that take a very different approach.”

The CCAA has also been amended during his tenure to change the duration of an initial order to 10 days, and while Morawetz largely agrees with the change, he notes it may not be perfect.

“Sometimes it’s not enough; sometimes it’s adequate. I am of the view that it is good practice for the day one order to provide limited relief. Whether 10 days should be adjusted? Sure. Perhaps. A case could be made that it should be 15 days or 20 days.”

The change came because many orders are made ex parte with no or little notice to any other party, with the expectation that a judge would rule on the order on the first day.

That was unwieldy, because a 200-page loan agreement could be put before a judge with no one knowing what it contained.

“The amendment limits the relief that can be obtained so the company can get through the first 10 days and keep the lights on,” he said. “Then you have the opportunity to provide all interested parties with notice so they can, at the come-back hearing ten days thereafter, bring forth their views.

“Should you go back to the old days where you get all the relief on day one? I don’t think that’s appropriate and I don’t think you’re going to see that.”

Admiration for Morawetz’s legacy

Canadian insolvency professionals, including lawyers, trustees and public servants, note that Morawetz’s legacy is wide-ranging, from his knowledgeable rulings to his support of new practitioners.

Craig Munro, the current Chair of CAIRP, remembers Morawetz from the early days of his career in Toronto. Morawetz already had a reputation as an up-and-coming young lawyer.

Munro said Justice Morawetz comes from “insolvency royalty” in Canada.

“His father was Carl Morawetz, a highly respected insolvency lawyer known as one of the elder statesmen in the insolvency industry. Basically, he and Justice Lloyd Houlden wrote the book all of us followed as a learning source and reference guide. Morawetz’s brother, Richard, was also an insolvency practitioner as a Licensed Insolvency Trustee and member of CAIRP.”

After moving to Vancouver, Munro intersected with Justice Morawetz at various industry conferences and noted that “he was always willing to speak on a panel and share his knowledge and insights.”

At such a conference earlier this year, Munro approached Morawetz to congratulate him on his retirement.

“My comment to him was, I’m one of the people in this room old enough to remember your father and I am sure he would be very proud of the career that you’ve had.”

Morawetz is “one of the few insolvency practitioners I know to have their own Wikipedia page,” Munro added. “My google search notes that he was the judge on 341 reported decisions from the Ontario court. That’s a pretty significant body of work over the span of his career. He was the justice on many of the leading and high-profile cases in Ontario over the last 20 years.

“He’s had a very distinguished career and is a very highly respected man and I wish him well on his retirement.”

Elisabeth Lang, Superintendent, Office of the Superintendent of Bankruptcy, said she has had the pleasure of knowing Morawetz since being appointed to her present role in 2018.

“From the outset, we shared a common commitment, albeit from complementary roles, to ensure that Canada's insolvency system operates with integrity, fairness, and effectiveness,” Lang said.

“It did not take me long to realize that Senior Chief Justice Morawetz embodies the wonderful Yiddish term mensch. He possesses a rare combination of brilliance and kindness and is one of the finest people I have encountered in my professional life.

“He approaches every issue with absolute integrity, always seeking to do the right thing, while remaining practical, pragmatic, and focused on solutions.”

A particularly memorable example was his leadership during the COVID-19 pandemic, Lang said, when he quickly realized the unprecedented challenges facing Canada's insolvency system.

“Senior Chief Justice Morawetz personally heard the first motion on April 27, 2020, helping to establish a practical and efficient solution that ultimately protected more than half a million Canadians from unintended adverse consequences during an extraordinarily difficult period. This is but one of an incredible number of pivotal decisions that will have a lasting impact on the Canadian insolvency landscape.”

Morawetz would undoubtedly prefer that the spotlight turn to others given how humble he is, Lang said. Yet his influence on Canada's insolvency and restructuring profession “is too significant not to be celebrated.”

Natasha MacParland, Partner at Dentons Canada LLP in Toronto, has known Morawetz since she started practicing law, and appeared before him countless times.

“I consider him to be a mentor and someone for whom I have enormous respect, both personally and professionally. He’s an icon, frankly.”

Morawetz guided the profession through a period of tremendous change, including increasingly complex cross-border restructurings, MacParland said.

“His steady leadership, both as a lawyer and a judge, helped assure our legal framework remains principled, adaptable and flexible, which will be his legacy going forward.

“As a judge, he was a pleasure to appear before. He was always prepared and engaged. He demanded excellence. You couldn’t wing it with him; he knows the law.”

MacParland recalls being a junior lawyer following her seniors into high-level meetings.

“We’d be in a massive boardroom with 20, 30 lawyers for some of these massive restructurings. He’d listened to everybody, then he turned to me and said Natasha, what do you think?

“It’s just indicative of one of his best strengths which is listening. He truly listens and he hears people. He responds to what you have said.”

He leaves the Ontario bench prepared for future success, she added.

“He’s strengthened the jurisprudence, he’s modernized the practice, he’s built confidence in the courts. Again, that is part of his legacy.”

Jonathan Krieger, Senior Vice-President and National Restructuring Leader for Grant Thornton Limited, oversees many complex restructuring cases as a Licenced Insolvency Trustee and has been in Justice Morawetz’s court many times.

“He has provided a lot of meaningful and practical guidance to both lawyers and financial advisors over the past 20-plus years,” said Krieger, also Chair of CAIRP’s corporate practice committee.

“Justice Morawetz has had an enormous impact on the development of the law for the profession. The law is codified in a number of statutes, but there is significant discretion in interpreting a complex set of facts and making the right rulings.”

Krieger also noted his sense of equity, applied when dealing with people of all levels of experience.

“He treated a first-year associate no differently than a 30-year lawyer. He gave respect to everyone who came before the court and argued a case or presented information before him,” Krieger said.

“I think that’s very important, because that’s how professionals early in their careers get started and build confidence.

“He also reminded all of us of the nobility of the profession — this is a critical job we are doing and an important role we play in society. He reminded us how complex our job is and the importance of the decisions we make.”

While Morawetz is now being celebrated largely for his years on the bench, he was also “an outstanding lawyer for the first 20 years of his career, “Krieger added. “I worked on cases he had been involved in early in my career, and he was a tremendous advocate for his clients.”

As for what is next for Morawetz, he will not be leaving the industry.

“I’m certainly enjoying things. You miss your colleagues, but I’ve made it very quietly known that I am not fading away. I’m going to be doing something going forward.

“I’ve always taken a great interest in the international restructuring work. Whether it’s international or domestic mediation, I do intend to stay active. So even though I’ve been doing it for 46 years, I still enjoy the challenges. Going forward, I know I will continue to enjoy engaging with challenging work.”