Docket: A-118-17
Citation:
2017 FCA 106
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CORAM:
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PELLETIER J.A.
TRUDEL J.A.
RENNIE J.A.
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BETWEEN:
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THE HONOURABLE
FRANCIS J.C. NEWBOULD
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Applicant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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REASONS
FOR JUDGMENT
PELLETIER J.A.
I.
INTRODUCTION
[1]
This is an appeal by the Honourable Mr. Justice
Francis Newbould (the appellant) from the dismissal of his motion for a stay of
a decision of the Judicial Conduct Review Panel (the Review Panel) dated
February 10, 2017 constituting an Inquiry Committee to inquire into his
conduct. In effect, the appellant seeks to prevent the continuation of the Canadian
Judicial Council (CJC) proceedings investigating his conduct until such time as
his application for judicial review of the Review Panel’s decision is decided.
In reasons reported as 2017 FC 326, the Federal Court dismissed the motion on
the grounds that it was premature and, in the alternative, that he had not
satisfied the irreparable harm portion of the tripartite test set out in RJR—MacDonald
Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311 at 334, 111 D.L.R. (4th) 385 [RJR—MacDonald].
[2]
For the reasons set out below, I would dismiss
the appeal.
II.
FACTS
[3]
In late 2014, the CJC received a number of
complaints about the appellant’s involvement in a public controversy regarding
an aboriginal land claim in the vicinity of a cottage property owned by his
family. The Chairperson of the CJC’s Judicial Conduct Committee, Chief Justice
MacDonald, after reviewing these complaints and the submissions of the
appellant, closed the files while communicating to the appellant his concerns
about the latter’s conduct. This outcome is contemplated by section 5.1 of the
CJC’s Procedures for the Review of Complaints or Allegations about Federally
Appointed Judges (the 2014 Review Procedures).
[4]
Six months later, one of the complainants, the
Indigenous Bar Association, requested reconsideration of the decision to take
no further action with respect to its complaint. Chief Justice MacDonald
deferred the reconsideration request to the next most senior judge on the
Judicial Conduct Committee, Senior Associate Chief Justice Pidgeon. In a decision
dated May 5, 2016, Pidgeon S.A.C.J. decided to forward the matter to a Review
Panel to determine whether an Inquiry Committee should be constituted.
[5]
In response to an invitation to make submissions
to the Review Panel, the appellant provided submissions as did his chief
justice, Chief Justice Smith of the Ontario Superior Court of Justice. In her
letter Chief Justice Smith raised the question as to whether the 2014 Review
Procedures in force at the time the original complaints were received or
the subsequent revision of those procedures (the 2015 Review Procedures)
provided for reconsideration at all, or by someone other than the original
decision maker.
[6]
Before the Review Panel advised him of its
decision, the appellant wrote to the Minister of Justice resigning from his
office as judge effective June 1, 2017.
[7]
In a decision dated February 10, 2017, the
Review Panel concluded that the CJC had jurisdiction to reopen the Indigenous
Bar Association’s complaint. It went on to constitute an Inquiry Committee as
provided in section 63(3) of the Judges Act, R.S.C 1985 c. J-1 (the Act)
and subsection 2(4) of the Canadian Judicial Council Inquiries and
Investigations By-laws, 2015, SOR/2015-203.
[8]
The appellant applied for judicial review of
that decision, seeking a declaration that the CJC had no jurisdiction to
reconsider Chief Justice MacDonald’s decision and an order prohibiting the CJC
from taking any further steps concerning the complaints disposed of by Chief
Justice MacDonald. In his notice of application he alleges that Pidgeon
S.A.C.J. had no jurisdiction to reconsider the decision of Chief Justice
MacDonald in relation to the same subject matter and therefore, Pidgeon
S.A.C.J. had no jurisdiction to refer the matter to a review panel. As a
result, the Review Panel was itself without jurisdiction to constitute an
Inquiry Committee.
[9]
In the interim, the appellant moved for an order
staying the decision of the Review Panel pending the outcome of his application
for judicial review. That motion was heard by Mr. Justice Boswell of the
Federal Court.
III.
THE DECISION UNDER REVIEW
[10]
After setting out the facts and the parties’
submissions, the Federal Court set out the issues which it was called upon to
decide:
1.
Was the application for judicial review of the
Review Panel’s decision premature?
2.
Should the Review Panel’s decision constituting
an Inquiry Committee be stayed pending the outcome of the judicial review?
[11]
The Federal Court began its analysis of the
prematurity issue by referring to a decision I wrote as a single judge of this
Court sitting on motions, Groupe Archambault v. CMRRA/SODRAC Inc., 2005
FCA 330, 357 N.R. 131 [Groupe Archambault] in which I stated at
paragraph 7: “Before addressing the conditions for
issuing an interlocutory stay of proceedings, the Court must be satisfied that
its intervention is warranted under the circumstances.” Following my
review of the circumstances, I dismissed the motion for a stay before
considering the RJR—McDonald test for an injunction or a stay of
proceedings.
[12]
In light of this authority, the Federal Court
reviewed the law as to prematurity and adequate alternate remedies, quoting at
length from this Court’s decision in Canada (Border Services Agency) v. C.B.
Powell Limited, 2010 FCA 61, [2011] 2 F.C.R. 332. The Federal Court was of
the view that there were no extraordinary circumstances that would justify
interfering with the ongoing administrative proceedings until they were
completed or until all effective available remedies were exhausted.
[13]
The Federal Court referred to the case of Girouard
v. Inquiry Committee Constituted Under the Procedures for Dealing With
Complaints Made to the Canadian Judicial Council About Federally Appointed
Judges, 2014 FC 1175, [2014] F.C.J. No. 1360 (QL) [Girouard]. In
that case, the Federal Court struck a notice of application brought by a
federally appointed judge seeking judicial review of a Review Panel decision to
constitute an Inquiry Committee. The Federal Court did so on the basis that the
application for judicial review was premature: see Girouard at para. 17.
In the course of discussing Girouard, the Federal Court commented that
the Attorney General had not brought a motion to strike out the underlying application
for judicial review. In the result, the Federal Court dismissed the application
for a stay on the basis that it was premature. Given that there was no motion
before it seeking the striking out of the application for judicial review, it
did not do so.
[14]
In the event that this Court did not agree with
its view as to prematurity, the Federal Court addressed the merits of the
motion for a stay. As is well known, the elements of the tri-partite test in RJR—MacDonald
are:
1.
A serious question to be tried; (serious issue)
2.
Irreparable harm if the relief is not granted;
and (irreparable harm)
3.
The balance of convenience.
RJR—MacDonald
at 343
[15]
In this case, the Federal Court found that the
application for judicial review raised a serious issue and that it was neither
frivolous nor vexatious.
[16]
On the issue of irreparable harm, the Federal
Court found that any harm to the appellant’s reputation had conceivably already
occurred as a result of media coverage of his participation in the public
controversy in relation to the aboriginal land claim. The Federal Court found
that irreparable reputational harm could not be proven by unsubstantiated
allegations; in the Court’s view, irreparable harm could only be established by
clear and compelling evidence. The Federal Court found that there was no
evidence that any harm suffered by the appellant would be irreparable.
[17]
Given that the tri-partite test is conjunctive,
the Federal Court did not go on to consider the balance of convenience since
the appellant’s motion for a stay failed on the issue of irreparable harm.
IV.
STATEMENT OF ISSUES
[18]
The issues considered by the Federal Court are
the issues in this appeal. The question as to whether prematurity is a preliminary
issue which must be decided prior to consideration of the tri-partite test is
challenged by the appellant as is the Federal Court’s conclusion that no
reputational damage amounting to irreparable harm has been shown here.
V.
STANDARD OF REVIEW
[19]
This is an appeal of a discretionary decision of
a judge of the Federal Court. As a five-member panel of this Court found in Hospira
Healthcare Corporation v. Kennedy Institute of Rheumatology, 2016 FCA 215
at paragraph 79, 402 D.L.R. (4th) 497, the standard of review in such a case is
the appellate standard identified in Housen v. Nikolaisen, 2002 SCC 33,
[2002] 2 S.C.R. 235: correctness for questions of law and palpable and
overriding error for questions of fact and questions of mixed fact and law,
save where an extricable question of law can be identified.
VI.
PREMATURITY
[20]
In RJR—MacDonald at pages 337-38, the
Supreme Court discussed the characteristics of “a
serious question to be tried.” It noted that there were no specific
requirements to be met in order to satisfy the test; the threshold is a low
one. The judge hearing the motion for the injunction (or stay) is required to
make a preliminary assessment of the merits of the case. If the judge concludes
that the issues raised are not frivolous or vexatious, the test is satisfied
even if the judge’s own view is that the applicant is unlikely to succeed when
the case is heard on the merits. The Supreme Court brought this portion of its
analysis to a close by remarking that “[a] prolonged
examination of the merits is generally neither necessary nor desirable”: RJR—MacDonald
at 338.
[21]
This is to be contrasted with Groupe
Archambault, where the following comment appears at paragraph 7: “Before addressing the conditions for issuing an
interlocutory stay of proceedings, the Court must be satisfied that its
intervention is warranted under the circumstances.” This led the motions
judge in that case to dismiss the motion for a stay before even addressing the RJR—MacDonald
factors. While the result in Groupe Archambault can perhaps be justified
on its facts – the underlying judicial review, a challenge to a decision as to
the disclosure of documents in the course of a discovery process, was doomed to
fail – its reasoning cannot be reconciled with RJR—MacDonald.
[22]
The insertion of a decision on the merits of the
underlying application before consideration of the tri-partite test for
granting a stay or an injunction pre-empts the question of whether there is a serious
issue, as the Supreme Court has conceived it. It forces applicants who need
only meet a low threshold under the serious issue
branch of the tri-partite test to satisfy the more demanding test of showing extraordinary circumstances as a condition of being
heard on their application for a stay. Prematurity/extraordinary circumstances
is a feature of the law of judicial review, and not of the law of injunction.
The creation of a requirement that prematurity be negatived before the tri-partite
test can be considered is a conflation of the law governing two distinct
remedies, for which no justification has been offered other than a repetition
of the rationale underlying the doctrine of prematurity.
[23]
I can only conclude that Groupe Archambault
was wrongly decided and ought not to be followed. As it was a decision of a
single judge of this Court, Groupe Archambault is not binding on a panel
of the Court so there is no need to engage in the analysis set out in Miller
v. Canada (Attorney General), 2002 FCA 370 at paragraphs 8-10, 220 D.L.R.
(4th) 149.
[24]
To summarize, prematurity and extraordinary
circumstances (two aspects of the same policy of judicial restraint) are not
free-standing preliminary questions which must be addressed before considering the
tri-partite test. These issues should be considered under the heading of serious issue where, consistently with RJR—MacDonald,
the question is whether their weight is such that the underlying application
can be considered frivolous or vexatious. If not, the Court proceeds to the
next step of the analysis.
[25]
In this case, the Federal Court’s determination
that it could dismiss the appellant’s motion for a stay on the basis of
prematurity was based on an error of law, though the responsibility for the
error lies elsewhere. This error would justify our intervention but for the fact
that consideration of the tri-partite test persuades me that the appeal must be
dismissed.
VII.
THE TRI-PARTITE TEST
[26]
The Federal Court found that there was a serious
question as to the jurisdiction of the CJC to reconsider complaints which it
had previously dismissed. The Federal Court’s conclusion on this point was not
challenged in the argument before us. As a result, I will proceed on the basis
that this portion of the tri-partite test has been satisfied.
[27]
Two issues have been raised in relation to
irreparable harm, (i) whether the Federal Court chose the right evidentiary
standard and (ii) whether the Federal Court made a palpable and overriding
error in concluding that the appellant would not suffer irreparable damage if
the stay was not granted.
[28]
As regards the first issue, the Federal Court applied
the clear and compelling evidence standard set out in cases such as Choson
Kallah Fund of Toronto v. Canada (Minister of National Revenue), 2008 FCA
311 at paragraphs 5-11, 383 N.R. 196 and Gateway City Church v. Canada (Minister
of National Revenue), 2013 FCA 126 at paragraph 14, 445 N.R. 360 [Gateway
City Church] and the cases cited therein. The appellant argues that in
cases involving reputational damage or damage to other social attributes such
as credibility, the occurrence of irreparable harm can be inferred, relying on
cases such as Adriaanse v. Malmo-Levine, 161 F.T.R. 25 at paragraphs
20-22, 1998 CanLII 8809 (F.C.) [Malmo-Levine], Douglas v. Canada
(Attorney General), 2014 FC 1115 at paragraph 43, 94 Admin. L.R. (5th) 229
[Douglas], and Bennett v. British Columbia (Superintendent of
Brokers), 77 B.C.L.R. (2d) 145, 1993 CanLII 2057 (B.C.C.A.) at paragraphs
17-18 [Bennett].
[29]
In my view, the presence of two lines of cases
such as these shows that the quality of the evidence – “clear
and compelling” or something less – is a function of the nature of the
irreparable harm being alleged. Where the harm apprehended is financial, clear
and compelling evidence is required because the nature of the harm allows it to
be proven by concrete evidence such as that set out at paragraph 17 of Gateway
City Church. In the case of harm to social interests such as reputation or
dignity, as in Douglas, the occurrence of irreparable harm can be
satisfied by inference from the whole of the surrounding circumstances.
[30]
In my view, the Federal Court erred in law in
excluding the possibility of proof of damage to reputation by inference.
[31]
That said, the question is whether the appellant
is able to show such damage to his reputation. The appellant says that the
proceedings before the Inquiry Committee will irreparably harm the reputation
he acquired in the course of his years on the bench. I am sensitive to this
argument, but the difficulty I have is that the harm of which the appellant
complains is inherent in the process in which he is engaged. If the appellant
is likely to suffer irreparable harm solely from the fact that his conduct will
be the subject of Inquiry Committee proceedings, then all judges who find
themselves in the same position also suffer irreparable harm. I am not prepared
to make such a finding.
[32]
This difficulty is compounded by the fact that,
in this case, the appellant has already been exposed to a certain amount of
public exposure resulting from the contemporary coverage of his involvement in
the events giving rise to these proceedings as well as in the coverage of the
proceedings themselves to date.
[33]
This is not to say that judicial conduct
proceedings can never give rise to irreparable harm to a judge’s reputation.
But in order to do so, it appears to me that there must be some factor, some
element in the surrounding circumstances that takes the case out of the normal
run of such proceedings. The judge would have the burden of showing the
presence of such a factor. Once the presence of such a factor was shown, the issue
is whether it permits the inference of the likelihood of irreparable harm.
[34]
In the cases the appellant put to us as examples
of proceedings stayed on the basis of irreparable harm, there were such factors.
In Douglas, the issue was a privacy interest in relation to certain
photos, whereas in Bennett and Malmo-Levine, the issue was the
risk of an adverse result by a tribunal which was alleged to be biased. These
factors raise issues of reputational damage but, in my view, but it was the
addition of another element which gave rise to the inference of irreparable
harm.
[35]
Does an allegation of lack of jurisdiction permit
an inference of irreparable harm? It could but I do not believe that it gives
rise to that inference in every case. The threat of damage to reputation
inherent in Inquiry Committee proceedings does not flow from the Committee’s
jurisdiction but from the evidence it hears. To the extent that the possibility
of vindication at the end of the proceedings exists, any harm suffered in the
course of proceedings could be remedied in whole or in part.
[36]
It is no doubt infuriating to be dragged into a
process which one believes has no basis in law but that does not amount to
irreparable damage to reputation. It may, in particular circumstances, give
rise to some other kind of irreparable harm but, on this record, there is no
reason to believe that we are in the presence of such circumstances.
[37]
In the circumstances, I have not been persuaded
that the Federal Court fell into palpable and overriding error in concluding
that the appellant has not shown that he will suffer irreparable harm if his
motion for a stay is not granted.
VIII.
CONCLUSION
[38]
In light of the above, I would dismiss the
appeal. As costs have not been sought, none will be awarded.
"J.D. Denis Pelletier"
“I agree
Johanne Trudel”
“I agree
Donald J. Rennie
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