Date: 20080115
Docket: T-1917-06
Citation: 2008 FC 50
Toronto,
Ontario, January 15,
2008
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
LORI
AKLADYOUS
Applicant
and
CANADIAN
JUDICIAL COUNCIL
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Lori
Akladyous seeks judicial review of the decision of the Chairperson of the
Judicial Conduct Committee of the Canadian Judicial Council dismissing her
complaint regarding the conduct of a federally appointed judge and of the
Executive Director and General Counsel of the Council.
[2]
For
the reasons that follow, Ms. Akladyous has not persuaded me that the decision
under review should be set aside, and, accordingly, her application for
judicial review will be dismissed.
[3]
Before
turning to the merits of the application, however, I will first address the
matter of Ms. Akladyous’ failure to appear for the hearing.
Ms. Akladyous’ Failure
to Appear for the Hearing
[4]
Ms.
Akladyous’ application for judicial review was scheduled to be heard on January
9, 2007. This date had been fixed for several months. Two days before the
hearing, the Court received a letter from an individual from outside of Canada, purporting
to act on Ms. Akladyous’ behalf. This individual was seeking the adjournment
of the hearing.
[5]
The
following day, the Chief Justice of the Federal Court issued an order directing
that the hearing proceed as scheduled.
[6]
It
is apparent from a review of the Court record that Ms. Akladyous was made aware
of the Court’s order, and was advised by the Court Registry that the hearing
would be going ahead. This is further confirmed by correspondence received
from Ms. Akladyous after the hearing.
[7]
Shortly
after the Chief Justice rendered his decision denying the adjournment request,
someone purporting to be calling on Ms. Akladyous’s behalf contacted the
Registry, and advised that Ms. Akladyous would not be attending the hearing.
[8]
When
Ms. Akladyous did not appear at the time set for the hearing, the Court
adjourned for fifteen minutes, in case she had had a change of heart, but had
been delayed. When Ms. Akladyous still had not appeared after fifteen minutes,
the hearing began.
[9]
Counsel
for the respondent then advised the Court that he was content to rely upon the
submissions contained in his memorandum of fact and law. Thus this decision has
been based entirely upon the record and the submissions of the parties.
Background
[10]
Some
years ago, Ms. Akladyous was the subject of disciplinary proceedings before the
Discipline Committee and Council of the Manitoba Pharmaceutical Association.
After the Association decided to suspend her licence, Ms. Akladyous sought
judicial review of the Association’s decision in the Manitoba Court of Queen’s
Bench.
[11]
On
June 24, 2003, at the conclusion of the judicial review hearing, the presiding
judge rendered an oral decision dismissing Ms. Akladyous’ application for
judicial review. The judge also ordered that Ms. Akladyous pay the
Association’s costs in the amount of $1,930.
[12]
The
presiding judge then asked the counsel for the Association to prepare a draft
judgment for the Court’s consideration.
[13]
By
letter dated October 15, 2003, counsel for the Association wrote to the Court
of Queen’s Bench Registry, enclosing a draft judgment. Counsel’s letter also
stated “Would you please arrange to deliver the letter and Judgment to his
Lordship, along with a copy of the pocket, if his Lordship so desires”.
[14]
A
formal Judgment was signed by the presiding judge on November 6, 2003. There
is no indication in the record that any appeal was taken from this judgment by
Ms. Akladyous.
[15]
In
September of 2005, Ms. Akladyous filed a complaint with the Canadian Judicial
Council [the “first complaint”], in which she complained that the presiding
judge had not let her speak at the hearing.
[16]
This
first complaint was subsequently reviewed by Justice Robert Pidgeon, the
Associate Chief Justice of the Quebec Superior Court and Vice-Chairperson of
the Judicial Conduct Committee.
[17]
At
the direction of Associate Chief Justice Pidgeon, the Executive Director and
General Counsel of the Council wrote to Ms. Akladyous on March 14, 2006
advising that “[her] complaint did not fall within the mandate of the Council,
as it does not relate to judicial misconduct as contemplated by the Judges
Act.” As a result, Ms. Akladyous was advised that the file relating to her
complaint would be closed.
[18]
On
May 9, 2006, Ms. Akladyous wrote to Chief Justice Bowman of the Tax Court of
Canada, alleging that both the judge who had presided over her judicial review
hearing and the Executive Director and General Counsel of the Judicial Council
had accepted bribes, and that the Executive Director had misled Associate Chief
Justice Pidgeon in dealing with her first complaint. Ms. Akladyous also
alleged that other individuals had committed fraud, to her detriment, and that
the justice system was corrupt.
[19]
Chief
Justice Bowman then referred this letter to the Canadian Judicial Council.
[20]
By
letter dated June 26, 2006, the Executive Director and General Counsel of the
Judicial Council wrote to Ms. Akladyous, noting that she had provided no
evidence to support the grave allegations in her second complaint. The letter
further stated that:
I have reviewed your allegations, as well
as the information already on file regarding your complaint. Given the nature
of these allegations, and in light of the fact that your earlier complaint was
thoroughly reviewed, and given the mandate of the Council has been carefully
explained to you, I come to the conclusion that your most recent correspondence
constitutes an abuse of the complaints process. Accordingly, I will not be
opening a complaint file in regard to your most recent allegations.
[21]
Ms.
Akladyous then wrote to the Chief Justice of the Supreme Court of Canada with
respect to her concerns regarding both the judge who had presided over her
judicial review hearing and the Executive Director and General Counsel of the
Judicial Council.
[21]
[22]
Amongst
other things, Ms. Akladyous’ letters alleged that the presiding judge had
accepted a bribe from counsel for the Manitoba Pharmaceutical Association. In
this regard, Ms. Akladyous alleged that the reference to “the pocket” in counsel’s
October 15, 2003 letter to the Court Registry was really a cryptic reference to
a cheque to be given to the judge.
[23]
Ms.
Akladyous’ correspondence also alleged that Executive Director and General
Counsel of the Judicial Council had been involved in a fraud.
[24]
Ms.
Akladyous’ letters to the Chief Justice were forwarded to the Canadian Judicial
Council by the Chief Justice’s Executive Legal Officer.
[25]
These
letters appear to have been treated as a third, fresh complaint by the Judicial
Council. Ms. Akladyous’s third complaint was then reviewed by Chief Justice
Richard Scott, in his capacity as Chairperson of the Council’s Judicial Conduct
Committee.
[26]
On
October 13, 2006, Chief Justice Scott wrote to Ms. Akladyous, advising her that
he had reviewed her complaint, and that he had also asked the Judicial
Council’s outside counsel to review the matter. Based upon both reviews, he
had “found no basis for the very serious allegations that you have made”.
[27]
The
operative portion of Chief Justice Scott’s letter states that:
There has been no wrongdoing. Rather it
appears that you have entirely misunderstood communications between [counsel
for the Association] and the court. [Counsel’s] reference to “a copy of the
pocket” is a reference to the file folder in which court papers are held in
court offices. It does not refer to a payment of any kind. [Counsel] drafted a
formal judgment. The practice of the successful party drafting the formal
judgment is well established and the normal course of proceeding in our courts.
It is without foundation to suggest any impropriety in connection with the
drafting of the formal judgment. The oral reasons delivered by [the presiding
judge] on June 24, 2003 and later transcribed reflect [the presiding judge’s]
decision. It is commonplace for judges to deliver reasons in this manner.
As you are aware, the Canadian Judicial
Council is not a forum in which correctness of a judicial decision is reviewed.
[28]
Chief
Justice Scott then advised Ms. Akladyous that “no complaint file will be opened
and this matter is now closed”.
[29]
It
is this decision that forms the subject matter of Ms. Akladyous’ application
for judicial review in this Court.
Issues
[30]
As
I understand Ms. Akladyous’ memorandum of fact and law, she takes issue with
certain of Chief Justice Scott’s findings of fact.
[31]
Ms.
Akladyous also takes issue with the fact that Chief Justice Scott was involved
in this matter, as, according to Ms. Akladyous, “Judicial Council law” dictates
that members of the Canadian Judicial Council are not to be involved in
decisions regarding judges in their own province.
[32]
Ms.
Akladyous further alleges that Chief Justice Scott decided as he did, either in
an effort to “cover” for his fellow Manitoban judge, or because he himself may
have accepted a bribe.
[33]
The
respondent also raises an issue with respect to the identity of the appropriate
respondent. This will be addressed first.
The Identity of the
Appropriate Respondent
[34]
Ms.
Akladyous has named the Canadian Judicial Council as the respondent in this
case.
[35]
Rule
303(1)(a) of the Federal Courts Rules provides that an applicant shall
name as a respondent “every person directly affected by the order sought in the
application, other than a tribunal in respect of which the application is
brought”.
[36]
Rule
303(2) provides that “Where in an application for judicial review there are no
persons that can be named under subsection (1), the applicant shall name the
Attorney General of Canada as a respondent”.
[37]
Given
that the Canadian Judicial Council is the tribunal in respect of which the
application is brought, I am of the view that it is improperly named as a
respondent, and that the Attorney General of Canada should be substituted as
the respondent in this case.
[38]
Turning
next to the issues raised by Ms. Akladyous, the first matter for determination
is the appropriate standard of review to be applied to the decision of Chief
Justice Scott.
Standard of Review
[39]
Insofar
as Ms. Akladyous’ application for judicial review involves the review of
findings of fact made by Chief Justice Scott, it is necessary to identify the
appropriate standard of review to be applied with respect to those findings.
[40]
I
carried out a pragmatic and functional analysis in Cosgrove v. Canadian
Judicial Council, 2005 FC 1454, in order to determine the appropriate
standard of review to be applied in relation to findings of fact made by an
Inquiry Committee established by the Canadian Judicial Council.
[41]
I
concluded that the factual findings of the Inquiry Committee should reviewed
against the standard of patent unreasonableness. My conclusion in this regard
was subsequently confirmed by the Federal Court of Appeal: see Cosgrove v.
Canadian Judicial Council 2007 FCA 103, application for leave dismissed, [2007] S.C.C.A. No. 242.
[42]
While
this case involves a decision made by the Chairperson of the Judicial Conduct
Committee of the Canadian Judicial Council, rather than by an Inquiry Committee
established by the Council, I am of the view that the analysis that I carried
out in Cosgrove is equally applicable in this case, and that the factual
findings in issue here should also be reviewed against the standard of patent
unreasonableness.
[43]
Ms.
Akladyous’ allegation that Chief Justice Scott should not have been involved in
a matter involving a judge from his own province arguably raises a legal or
jurisdictional question. It is not necessary to determine the standard of
review applicable to this issue, as I am satisfied that there is no merit in
this argument, whatever standard of review is applied.
[44]
Finally,
Ms. Akladyous’ allegation of corruption and bias on the part of Chief Justice
Scott raises a question of procedural fairness – that is, whether she received
a fair hearing from an unbiased decision-maker.
[45]
It
is not necessary to go through a pragmatic and functional analysis in relation
to questions of procedural fairness – it is for the Court to determine whether
the procedure that was followed in a given case was fair or not, having regard
to all of the relevant circumstances: Sketchley v. Canada (Attorney General),
[2005] F.C.J. No. 2056, 2005 FCA 404, at ¶ 52-53.
The Complaints Process
[46]
In
order to put the issues raised by this application into context, it is helpful
to have an understanding of the complaints process involving federally
appointed judges.
[47]
The
Canadian Judicial Council complaints process was described by the Federal Court
of Appeal in Cosgrove, previously cited, at paragraphs 69-73. The
Federal Court of Appeal noted that a complaint brought by anyone other than a
federal or provincial Attorney General, is subject to a multi-level process.
This process is described in the Procedures for Dealing with Complaints made
to the Canadian Judicial Council about Federally Appointed Judges (the
“Complaints Procedures”).
[48]
The
first level of this process involves the complaint being reviewed by the
Executive Director of the Council to determine whether it warrants the opening
of a file. No file is opened if the complaint is clearly irrational or an
obvious abuse of the complaints process. If a file is opened, the complaint
progresses to the second level.
[49]
At
the second level, the complaint is referred to the Chairperson or
Vice-Chairperson of the Canadian Judicial Council’s Judicial Conduct
Committee. Either of these individuals may dispose of a complaint summarily if
it is outside the mandate of the Council, where, for example, a complaint seeks
a review of a judge's decision rather than a judge's conduct. A complaint may
also be summarily dismissed if it is trivial, vexatious, made for an improper
purpose, manifestly without substance, or does not warrant further
consideration.
[50]
Chief
Justice Scott’s decision was made at this second level.
[51]
Where
a complaint is not dismissed summarily, the Chairperson may seek additional
information from the complainant, the judge or the judge's chief justice. The
complaint may then be dismissed, may be resolved on the basis of remedial
measures, or may be referred to a panel of three or five judges for further
review.
[52]
If
the panel considers the complaint serious enough to warrant an inquiry, the
panel may recommend to the Canadian Judicial Council that an Inquiry Committee
be established. If the Council is of the view that an inquiry is warranted, an
Inquiry Committee will be struck to examine the complaint.
[53]
With
this understanding of the complaints process, I turn now to consider Ms.
Akladyous’ arguments.
Chief Justice Scott’s
Findings of Fact
[54]
Ms.
Akladyous takes issue with Chief Justice Scott’s finding that it is common
practice for counsel to prepare a draft judgment for the Court. As I
understand her submissions in this regard, this finding is patently
unreasonable as it is the judge, and not the lawyer for a party, who has to
make the decision.
[55]
I
do not accept Ms. Akladyous’ argument.
[56]
I
agree with Chief Justice Scott that Ms. Akladyous has misunderstood the
process. The decision dismissing her application for judicial review in the
Manitoba Court of Queen’s bench was made by the judge presiding over that
judicial review hearing. The judge’s reasons for that decision were delivered
orally by the judge at the conclusion of the hearing - months before counsel
for the Association wrote the letter enclosing the draft judgment.
[57]
The
taking out of the formal judgment is a separate procedural step, which involves
reducing the operative portions of the judge’s decision to a formal written
judgment. It is not uncommon for a judge to ask one of the lawyers to draft a
judgment that reflects the decision that the judge has already made. At the
end of the day, however, it is the judge - not the lawyers - who decides on the
precise wording of the judgment, in order that the judgment best reflects the
decision that the judge has made.
[58]
Ms.
Akladyous also takes issue with Chief Justice Scott’s finding that the
reference to “the pocket” in the letter from counsel for the Association was a
reference to the file folder in which court papers are held in court offices.
In this regard, Ms. Akladyous asserts that “The copy of the pocket is the copy
of the cheque”. Ms. Akladyous provided no evidence, however, to support her
allegation, and has not persuaded me that Chief Justice Scott’s finding in this
regard was patently unreasonable.
[59]
Ms.
Akladyous further takes issue with Chief Justice Scott’s finding that the oral
reasons delivered by the presiding judge on June 24, 2003, as they were later
transcribed, reflect the presiding judge’s decision. As I understand Ms. Akladyous’
position in this regard, she is alleging that the transcript of the hearing has
been tampered with, as the transcript does not include the arguments advanced
by counsel during the course of the hearing.
[60]
Once
again, however, Ms. Akladyous has provided no evidence to support this
allegation. Nor does she suggest that the decision reflected in the
transcribed portion of the hearing was not an accurate recording of the
decision actually rendered by the presiding judge.
Chief Justice Scott’s
Involvement in a Case Involving a Manitoba Judge
[61]
I
will deal next with Ms. Akladyous’ contention that as a sitting Manitoba judge,
Chief Justice Scott should not have been involved in a complaint with respect
to a judge from his own province, and that his involvement in this case was
contrary to “Judicial Council law”.
[62]
Ms.
Akladyous has not explained what she means by “Judicial Council law”. However,
I note that subsection 3.2 of the Council’s “Complaints Procedures” provides
that:
The Executive Director shall refer a file
to either the Chairperson or a Vice-Chairperson of the Judicial Conduct
Committee in accordance with the directions of the Chairperson of the
Committee. The Chairperson or a Vice-Chairperson shall not deal with a file
involving a judge of his or her court. [emphasis added]
[63]
Ms.
Akladyous’ objection is based on the fact that Chief Justice Scott and the
judge whose conduct is in issue are from the same province. She has, however,
provided no evidence that Chief Justice Scott is a member of the same court as
the judge who is the subject matter of Ms. Akladyous’ complaint – namely the
Manitoba Court of Queen’s Bench.
[64]
Indeed,
if I were to take judicial notice of the matter, I would find that Chief
Justice Scott is the Chief Justice of the Manitoba Court of Appeal.
The Allegations of Bias
and Corruption on the Part of Chief Justice Scott
[65]
This
then leaves Ms. Akladyous’ allegation that Chief Justice Scott decided as he
did, either in an effort to “cover” for his fellow Manitoba judge, or because
he himself had accepted a bribe.
[66]
A
claim that a judicial officer has accepted a bribe is an extraordinarily
serious allegation. In this regard, I would simply say that Ms. Akladyous has
provided not a single shred of evidence to support her claim that Chief Justice
Scott may have taken a bribe.
[67]
Nor
has she provided any evidence whatsoever to show that Chief Justice Scott was
attempting to cover up for a colleague.
[68]
Contrary
to what Ms. Akladyous seems to believe, the fact that a judge may not accept
her arguments is not, by itself, evidence of either bias or of corruption on
the part of the judge.
Conclusion
[69]
For
these reasons, the application for judicial review is dismissed.
Costs
[70]
The
respondent seeks costs against Ms. Akladyous. I see no reason why costs should
not follow the event.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. This application for judicial
review is dismissed, with costs; and
2.
The
style of cause is amended to substitute the Attorney General of Canada as the
respondent in place of the
Canadian Judicial Council.
“Anne Mactavish”
Email this Content