Docket: T-205-17
Citation:
2017 FC 326
Ottawa, Ontario, March 29, 2017
PRESENT: The Honourable Mr. Justice Boswell
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BETWEEN:
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THE HONOURABLE
JUSTICE 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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ORDER AND REASONS
(Motion for a Stay)
[1]
The Applicant, the Honourable Justice Francis
J.C. Newbould, is a federally appointed judge of the Superior Court of Justice
of Ontario. He has come to the Federal Court seeking judicial review of a
decision made by a Judicial Conduct Review Panel of the Canadian Judicial
Council dated February 10, 2017, finding that an Inquiry Committee should be
appointed to inquire into various issues concerning the Applicant’s involvement
in a public consultation on a proposed settlement of a First Nation’s land
claim in respect of Sauble Beach, Ontario, where the Applicant’s family has
owned a cottage property for nearly a century.
[2]
In his application for judicial review, the
Applicant applies for, among other things:
1.
an order quashing the decision of the Judicial
Conduct Review Panel, dated February 10, 2017, on the ground that the decision
was made without jurisdiction; and
2.
an order prohibiting the Canadian Judicial
Council from taking further steps concerning the complaints about the Applicant’s
conduct.
[3]
The Applicant has initiated the present motion
requesting an order staying the decision of the Judicial Conduct Review Panel
[the Review Panel] dated February 10, 2017, pending the outcome of the
application for judicial review. He claims that he has satisfied the well-known
tri-parte test for obtaining a stay emanating from RJR-MacDonald Inc v
Canada (Attorney General), [1994] 1 S.C.R. 311, 164 NR 1 [RJR-MacDonald].
The Respondent contends that a stay should not be granted because there are no
exceptional circumstances in this case to depart from the well-established
principle of courts not reviewing interlocutory decisions of tribunals and, in
any event, the Applicant has not met the test for a stay.
I.
Background
[4]
When a complaint regarding the conduct of a
named, federally appointed judge is filed, an administrative process involving
six stages is triggered:
1.
the Executive Director of the Canadian Judicial
Council [the CJC] reviews the complaint and decides whether it warrants opening
a file;
2.
if a file is opened, the Chairperson (or
Vice-Chairperson) of the Judicial Conduct Committee reviews the complaint and
may close the file or seek additional information;
3.
if the file is not closed, a Review Panel
reviews the complaint and the judge’s written submissions and decides whether
the complaint may be settled at this stage or whether it is serious enough to
be referred to an Inquiry Committee;
4.
if the matter is referred, the Inquiry Committee
holds a hearing, hears evidence concerning the complaint and submits to the CJC
a report in which it records the findings of the inquiry or investigation,
including a conclusion as to whether the judge’s removal from office should be
recommended;
5.
the CJC reviews the complaint and makes a
determination on its merits; and
6.
the CJC reports its conclusions, including a conclusion
as to whether the judge’s removal from office is recommended, and submits the
record of the inquiry or investigation to the Minister of Justice.
[5]
Between August and December 2014, the CJC
received seven complaints concerning the Applicant’s participation in
discussions regarding a land claim dispute that affected a cottage property
owned by the Applicant’s family. These complaints were reviewed by Chief
Justice MacDonald, the Chairperson of the CJC’s Judicial Conduct Committee [the
JCC], who, after receiving submissions from the Applicant, determined in
accordance with the CJC’s Complaints Procedures that it was appropriate to
close the files for the seven complaints. One of the closed files involved a complaint
by the Indigenous Bar Association, whose complaint file was closed in January
2015. Some six months later though, the Indigenous Bar Association requested
that the CJC reconsider the matter. According to the Applicant, this request
for reconsideration was not a new complaint, but simply reiterated the same
matters that had previously been canvassed in the review of the seven
complaints.
[6]
The CJC notified the Applicant in a letter dated
September 24, 2015, that Chief Justice MacDonald had decided to defer the
reconsideration request to the most senior member of the JCC, Chief Justice
Pidgeon. After receiving the Applicant’s submissions, Chief Justice Pidgeon
decided, in a decision dated May 5, 2016, to establish a Review Panel to
determine whether an Inquiry Committee should be constituted in accordance with
subsection 63(3) of the Judges Act, RSC 1985, c J-1. In July 2016, the
Applicant provided submissions to the Review Panel on whether an Inquiry
Committee should be constituted. Counsel for the Applicant provided additional
submissions to the Review Panel on January 20, 2017. These additional
submissions outlined the reasons why the JCC had no jurisdiction to reconsider
or in any way revisit the decision to close the file on the Indigenous Bar Association’s
complaint and, further, requested that the Review Panel direct that the matter
be closed.
[7]
On or about February 13, 2017, the Applicant
received the Review Panel’s reasons for its decision to refer the complaints
against him to an Inquiry Committee. The Review Panel concluded that the JCC
had jurisdiction to reopen a complaint file to ensure that the issues in the
original complaint were completely addressed. It is this decision by the Review
Panel which the Applicant impugns in his application for judicial review.
[8]
In a letter dated February 10, 2017, the
Applicant gave notice to the Minister of Justice and Attorney General of Canada
of his decision to retire as a Justice of the Ontario Superior Court effective
June 1, 2017.
[9]
On February 15, 2017, the Applicant filed a
notice of application for judicial review of the Review Panel’s decision.
II.
Issues
[10]
The Applicant’s motion for a stay order raises
two issues:
1.
Is 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?
A.
Is the application for judicial review of the
Review Panel’s decision premature?
[11]
The Respondent submits the prematurity of the
underlying application for judicial review is a threshold issue that must be
resolved before addressing whether a stay of the Review Panel’s decision is
warranted. In Groupe Archambault v CMRRA/SODRAC Inc, 2005 FCA 330 at
para 7, 153 ACWS (3d) 253 [Groupe Archambault], the Federal Court of
Appeal stated that: “Before addressing the conditions
for issuing an interlocutory stay of proceedings, the Court must be satisfied
that its intervention is warranted under the circumstances.” The Court
of Appeal reviewed the interlocutory nature of the impugned decision and
concluded that: “the motion for a stay of proceedings
must be dismissed even before we proceed to analyse the conditions that must be
satisfied in order to grant an interlocutory stay of proceedings” (at
para 10). It is necessary, therefore, to first determine whether judicial
intervention with the administrative process involving the Applicant before the
CJC is warranted.
[12]
The Applicant acknowledges, in view of the
Federal Court of Appeal’s decision in Canada (Border Services Agency) v CB
Powell Limited, 2010 FCA 61 at paras 30-33, [2011] 2 FCR 332, leave to
appeal to SCC refused, 2011 SCCA No 267 [CB Powell], the principle of
judicial non-interference with administrative proceedings in the absence of “exceptional circumstances.” He contends, however,
that there are no prematurity concerns sufficient to defeat the serious
jurisdictional issue raised by the Review Panel’s decision. According to the
Applicant, since the present case raises at least a serious possibility that
the Court will not deem the application to be premature, the Court should, on
the basis of Douglas v Canada (Attorney General), 2014 FC 1115 at paras
37-39, [2014] FCJ No 1149 [Douglas], grant the stay even if the
Applicant is unlikely to succeed at the hearing on the merits of the judicial
review application.
[13]
The Applicant says he brings the application
challenging the Review Panel’s decision and this motion for a stay in order to
pre-empt the irreparable harm he will suffer if an Inquiry Committee is
permitted to be struck and he has no other effective remedy for avoiding this
harm. In the Applicant’s view, some of the main concerns underlying the
principle of judicial non-intervention are not present in this matter. The
reviewing court will have an exhaustive record relating to the jurisdictional
issue and will not be deprived of a full record and, moreover, the rationale to
promote efficiency in administrative proceedings and preserve scarce judicial
resources does not apply where the very issue to be decided in the judicial
review application is whether there is any jurisdiction to conduct an inquiry
at all. According to the Applicant, if the inquiry proceeds, it would be with
the risk that a reviewing court could subsequently find the entire process was
without jurisdiction, resulting in substantial time, money and judicial
resources having been wasted; whereas, if the judicial review application fails
and the inquiry proceeds anyway, there will have been a relatively small
expenditure of the Court’s resources.
[14]
The Respondent maintains that, even by framing
the challenge in the application for judicial review as one of jurisdiction,
the Applicant cannot meet the high threshold required to place this case in the
narrow category of exceptional circumstances. According to the Respondent, the
Applicant can challenge the CJC’s jurisdiction to reconsider complaints in
front of the Inquiry Committee itself and it has the expertise to determine its
own jurisdiction. Contrary to the Applicant’s assertion that the reviewing
court will have an “exhaustive record” on which
to decide the jurisdictional issue, the Respondent says that, until a final
decision has been rendered by the CJC, the Court will not have the benefit of
the CJC’s reasons regarding its interpretation of its own jurisdiction. The
Respondent says the Applicant’s case is distinguishable from Douglas
since the harm in that case would have been a direct result of an interlocutory
decision by an Inquiry Committee and could not have been repaired at the
conclusion of the tribunal process through judicial review.
[15]
It is well established that applications for
judicial review are properly brought at the conclusion of an administrative
process after all issues have been determined and the reviewing court has the
benefit of the complete record. The rationale for this principle was summarized
in CB Powell:
[30] The normal rule is that parties
can proceed to the court system only after all adequate remedial recourses in
the administrative process have been exhausted. The importance of this rule in
Canadian administrative law is well-demonstrated by the large number of
decisions of the Supreme Court of Canada on point…[citations omitted]
[31] Administrative law judgments and
textbooks describe this rule in many ways: the doctrine of exhaustion, the
doctrine of adequate alternative remedies, the doctrine against fragmentation
or bifurcation of administrative proceedings, the rule against interlocutory
judicial reviews and the objection against premature judicial reviews. All of
these express the same concept: absent exceptional circumstances, parties
cannot proceed to the court system until the administrative process has run its
course. This means that, absent exceptional circumstances, those who are
dissatisfied with some matter arising in the ongoing administrative process
must pursue all effective remedies that are available within that process; only
when the administrative process has finished or when the administrative process
affords no effective remedy can they proceed to court. Put another way, absent
exceptional circumstances, courts should not interfere with ongoing
administrative processes until after they are completed, or until the
available, effective remedies are exhausted.
[32] This prevents fragmentation of the
administrative process and piecemeal court proceedings, eliminates the large
costs and delays associated with premature forays to court and avoids the waste
associated with hearing an interlocutory judicial review when the applicant for
judicial review may succeed at the end of the administrative process anyway…
Further, only at the end of the administrative process will a reviewing court
have all of the administrative decision-maker’s findings; these findings may be
suffused with expertise, legitimate policy judgments and valuable regulatory
experience… Finally, this approach is consistent with and supports the concept
of judicial respect for administrative decision-makers who, like judges, have
decision-making responsibilities to discharge…
[33] Courts across Canada have enforced
the general principle of non-interference with ongoing administrative processes
vigorously. This is shown by the narrowness of the “exceptional circumstances”
exception. Little need be said about this exception, as the parties in this
appeal did not contend that there were any exceptional circumstances permitting
early recourse to the courts. Suffice to say, the authorities show that very
few circumstances qualify as “exceptional” and the threshold for exceptionality
is high…Exceptional circumstances are best illustrated by the very few modern
cases where courts have granted prohibition or injunction against
administrative decision-makers before or during their proceedings. Concerns
about procedural fairness or bias, the presence of an important legal or
constitutional issue, or the fact that all parties have consented to early
recourse to the courts are not exceptional circumstances allowing parties to
bypass an administrative process, as long as that process allows the issues to
be raised and an effective remedy to be granted...the presence of so-called
jurisdictional issues is not an exceptional circumstance justifying early
recourse to courts.
[16]
Absent exceptional circumstances, therefore,
this Court should not interfere with the ongoing administrative process
involving the Applicant before the CJC until after that process has been
completed or until the available, effective remedies have been exhausted.
[17]
I agree with the Respondent that the Applicant
cannot meet the high threshold required to place this case in the narrow
category of exceptional circumstances. In Groupe Archambault, the
Federal Court of Appeal observed that: “If judicial
review of an interlocutory judgement is rarely warranted, the granting of a
stay of proceedings pending the outcome of the review should be even rarer” (at
para 7).
[18]
This case is distinguishable from Douglas.
In this case, it appears based on a press release issued by the CJC on February
13, 2017 (of which I take judicial notice) that: while the CJC has announced
that an Inquiry Committee will be held under the Judges Act about the
Applicant’s conduct, “additional details, including the
names of the Inquiry Committee members and of Independent Counsel, will be made
public over the coming weeks.” In contrast, in Douglas an Inquiry
Committee had commenced its proceedings, and the judge initiated a motion for
an order to stay the Inquiry Committee’s decision to admit certain intimate
photographs of the judge subject to confidentiality, sealing and non-disclosure
orders. The stay in Douglas was granted because the harm would have been
a direct result of the Inquiry Committee’s interlocutory decision and could not
have been repaired at the conclusion of the tribunal process through judicial
review. The Court in Douglas stayed only the Inquiry Committee’s interim
decision that certain evidence was admissible until such time as the underlying
application for judicial review was finally determined.
[19]
It is true that there are cases where
disciplinary proceedings may be stayed prior to completion of a tribunal’s
proceedings. For example, in Adriaanse v Malmo-Levine, [1998] FCJ No
1912 (TD), 161 FTR 25, the disciplinary proceedings were stayed shortly after
the tribunal had commenced its hearing on the alleged misconduct; and in Bennett
v British Columbia (Superintendent of Brokers), [1993] BCJ No 246, 22 BCAC
300 (CA) [Bennett], the tribunal’s hearing was stayed pending the
determination of an appeal on a ruling about alleged bias. These cases,
however, unlike the present case, involved allegations of a reasonable
apprehension of bias on the part of the tribunals. As Justice Robertson
recently observed in Camp v Canada (Attorney General), 2017 FC 240,
[2017] FCJ No 230 [Camp]:
[27] …both Adriaanse and Bennett
support the understanding that potential harm to the Applicant’s judicial
reputation may amount to irreparable harm. However, those were
start-of-the-line cases where substantial time and money would have been wasted
had the tribunal hearings proceeded to completion and the judicial review
application succeeded. And most certainly, it was arguable that those cases
would have fallen within the “exceptional circumstances” category and,
therefore, early recourse to the courts should have been available.
[28] Accepting the premise that facts
make a difference, the present case is clearly distinguishable. This is an
end-of-the-line case….
[20]
The Applicant submitted at the hearing of this
motion that this case, unlike Camp, is a “start-of-the-line”
case raising exceptional circumstances that warrant the Court’s intervention to
stay the Review Panel’s decision. In my view, however, this is not a
start-of-the-line case and it does not raise exceptional circumstances. Nor,
for that matter, is this an “end-of-the-line”
case as in Camp, where the Inquiry Committee had completed its work and
made a recommendation to the CJC which had received written representations and
was in the process of deliberating on whether to make a recommendation for the
judge’s removal from office. This is a “middle-of-the-line”
case and parallels 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] FCJ No 1360 [Girouard].
[21]
In Girouard, a judge of the Superior
Court of Québec sought, like the Applicant here, to have a decision made by a
Review Panel to constitute an Inquiry Committee set aside. The Attorney General
of Canada moved to strike out the notice of application for judicial review on
the basis that the application was premature. I pause to note here that, for
whatever reason, the Respondent in this case has yet to make any such motion;
perhaps, she will do so at some later date. Nonetheless, in my view, the Court’s
reasoning and conclusions in Girouard are equally applicable in the
context of the Applicant’s motion for an order to stay the Review Panel’s
decision. The practical effect of the application being struck out in Girouard
was that the proceedings before the CJC continued; the same would be the case
here if the Applicant’s motion for a stay is dismissed.
[22]
The Court in Girouard concluded that the
application for judicial review in that case did not “fall
within the category of rare and exceptional cases justifying early intervention
by the Court” (at para 33). As in this case, the Inquiry Committee in Girouard
had not yet commenced its inquiry and it had “not been
given an opportunity to rule on the issue of jurisdiction or the invalidity of
the By-laws and Complaints Procedures as a matter of constitutional or
administrative law” (at para 35). The Court in Girouard noted
that the complaint was, as in this case, only at the beginning of the fourth
stage of the administrative process (at para 39). It further stated:
[40] Although the representative for
the Attorney General seemed to be of the view at the hearing that it is only at
the conclusion of the sixth stage that an application for judicial review may
be brought by the applicant—a claim not held in Douglas, above, and on
which it is not necessary to provide a final ruling today—it is sufficient to
decide that at this stage of the file, the applicant must, at a minimum, await
the conclusion of the fourth stage. The fact is that, on the one hand, neither
the Inquiry Committee, nor independent counsel, are bound by the Review Panel’s
report, and that, on the other hand, the notice to be given pursuant to the Act
and By-laws, has yet to be provided to the applicant, which makes it virtually
impossible at this stage to conduct an informed review of the applicant’s
multiple arguments.
[23]
The Court in Girouard allowed the
Attorney General’s motion to strike, and stated:
[47] In closing, I must also make a
trite observation: nothing prevents the applicant from filing a motion with the
Inquiry Committee for a stay of proceedings (or for recusal if he feels there
is a reasonable apprehension of bias) and from raising the administrative and
constitutional law arguments that are also mentioned in his notice of
application for judicial review. The applicant raises several key issues, some
of public interest that should preferably be decided on a preliminary basis by
the Inquiry Committee. Moreover, in the past, Review Panels have already had to
dispose of various preliminary issues of jurisdiction, evidence and even
constitutional law. While it may not be clear in the case law that the Inquiry
Committee has the power to issue a declaratory judgment having the force of res
judicata for all of Canada, it may, nevertheless, refuse to apply legislation
that is unconstitutional or contrary to the Canadian Charter of Rights and
Freedoms, if it finds that the By-laws, or the Complaints Procedures, are
inconsistent with the Act or the Constitution. This is sufficient to persuade
me, at this stage, that effective remedies are available to the applicant and
that it is up to him to exhaust those remedies prior to going before the Court.
[24]
The proceedings concerning the Applicant now
before the CJC have only recently reached the fourth stage of the administrative
process noted above. The Applicant’s application for judicial review is
premature and judicial intervention is not warranted at this stage of the
proceedings in the absence of exceptional circumstances. The Applicant’s motion
for a stay of the Review Panel’s decision is dismissed. The application for
judicial review cannot, however, be struck out in the absence of any motion to
do so.
B.
Should the Review Panel’s decision constituting
an Inquiry Committee be stayed pending the outcome of the judicial review?
[25]
In view of my determination that the Applicant’s
application for judicial review is premature and his motion for a stay
therefore dismissed, it is unnecessary to analyse whether the Applicant has
satisfied the tri-parte test for obtaining a stay. However, if I am mistaken in
my finding that the Applicant’s application for judicial review is premature
and his motion for a stay should be dismissed, I find, in the alternative, that
the Applicant has failed to satisfy the tri-parte test for a stay.
[26]
When considering an application for a stay, a
three-stage test is adopted. As stated by the Supreme Court in RJR-MacDonald:
43 …First, a preliminary assessment
must be made of the merits of the case to ensure that there is a serious
question to be tried. Secondly, it must be determined whether the applicant
would suffer irreparable harm if the application were refused. Finally, an
assessment must be made as to which of the parties would suffer greater harm
from the granting or refusal of the remedy pending a decision on the merits.
[27]
The RJR-MacDonald test is conjunctive, in
that to be entitled to an order staying the Review Panel’s decision in this
case the Applicant must satisfy all three elements of the test. Furthermore, as
noted in Douglas: “the moving party shoulders
the burden of proving that three conditions are met: (1) there is a serious
issue to be tried, (2) the moving party will suffer irreparable harm if the
stay is not granted and (3) the balance of convenience favours the moving party”
(at para 19). It is trite law that the issuance or refusal of a stay
lies within the Court’s discretion.
[28]
The Applicant says the underlying application
for judicial review raises a serious issue about whether the Review Panel acted
without jurisdiction in referring previously-closed complaints against the
Applicant to an Inquiry Committee. According to the Applicant, whether the CJC
is about to strike an Inquiry Committee without any jurisdiction to conduct an
inquiry is a serious question to be decided.
[29]
The Applicant asserts that he will suffer
irreparable harm if this Court does not grant a stay of the Review Panel’s
decision and such harm has a particular meaning for the judiciary, where tenure
is institutional, personal, and based on public confidence. A stay is necessary,
the Applicant says, to prevent the reputational damage to him inherent in a
public inquiry process. The reputational harm he would suffer is significant in
this case, the Applicant claims, because of his long service and respected
career as a Superior Court judge and his impending retirement. Moreover, the
Applicant says it is inconceivable that an inquiry will be concluded prior to
his retirement, and to start the process now, with a serious live question as
to its jurisdictional basis, will only damage his professional reputation; and
since the process will not be completed before his retirement, there is no
prospect that his reputation could be redeemed through a favourable outcome.
[30]
The Applicant argues that the balance of
convenience favours staying the Review Panel’s decision pending the outcome of
his judicial review application on its merits. If the Review Panel’s decision
is not stayed and an inquiry process commenced, that process will have been for
naught should this Court find that the Inquiry Committee was struck without
jurisdiction and grant the underlying application for judicial review on its
merits. In the Applicant’s view, neither the Respondent nor the CJC will suffer
harm or inconvenience from the granting of a stay and, while the public has an
interest in seeing proceedings dealt with expeditiously, the CJC itself has
previously stated that “the public interest would not
be served by further expending public funds for legal proceedings when the
judge is retiring” in a matter of months. Additionally, the Applicant
points to a letter from the President of the Canadian Superior Courts Judges
Association to the CJC dated March 8, 2017, stating that it is “not in the public interest” to move forward with an
inquiry in light of his imminent retirement.
[31]
The Respondent maintains that the issues
challenging the CJC’s jurisdiction to reconsider a complaint are not only
frivolous or vexatious and do not raise a serious issue, but they also are not
ripe for adjudication at this stage of the tribunal’s proceedings.
[32]
The Respondent notes that the alleged harm
cannot be speculative or hypothetical, and that allegations concerning
reputational harm cannot be based on simple assertions and the harm must be
caused by the decision at issue. According to the Respondent, the Applicant’s
claim that he will suffer irreparable harm remains hypothetical and
speculative, and any damages occasioned to him were as a result of the media
coverage of his participation in the public discussions regarding settlement of
the First Nation’s land claims.
[33]
The Respondent claims that the public has an
interest in non-interference with the decision-making process of administrative
tribunals, and that the public interest also favours the expeditious resolution
of disciplinary proceedings. There are no countervailing public interests, the
Respondent states, to outweigh the well-recognized public interest in not
interfering with the decision-making process of administrative tribunals.
Furthermore, the Respondent says the public has an interest in knowing whether
the person being investigated can continue to perform their judicial functions.
[34]
The Applicant’s motion for a stay of the Review
Panel’s decision pits his individual interests against those of the CJC which,
as an administrative decision-maker, has been tasked by Parliament in Part II
of the Judges Act to conduct inquiries as to whether a judge of a
superior court should be removed from office for any of the reasons set out in
paragraph 65(2) of the Judges Act.
[35]
After consideration of the parties’ submissions
and in view of the jurisprudence noted in these reasons, I have determined that
the Applicant’s motion for a stay should not be granted and, therefore, his
motion is dismissed. The Applicant has failed to show with clear and convincing
evidence that the harm arising from the Review Panel’s decision is or would be
irreparable and, in any event, maintaining the integrity of the principle of
judicial deference to an uncompleted administrative proceeding trumps the
Applicant’s interests since his circumstances are not exceptional.
[36]
I accept that the Applicant raises a serious
issue in his application for judicial review of the Review Panel’s decision.
The Applicant’s challenge to the CJC’s jurisdiction to reconsider a complaint
by way of his application for judicial review is neither frivolous nor
vexatious.
[37]
As to irreparable harm, this case does not
present concerns similar to those in Douglas. Any harm caused to the
Applicant’s reputation by reason of the Review Panel’s decision has conceivably
already occurred as a result of media coverage of his participation in the
public discussions concerning settlement of the First Nation’s land claim (see Canada
(Immigration and Refugee Board) v Canada (Attorney General), 2010 FC 1064
at para 34, 194 ACWS (3d) 832, and Camp at para 28). A party cannot
satisfy the irreparable harm component of the RJR-MacDonald test in
relation to allegations of reputational harm by relying, as the Applicant does
in this case, upon unsubstantiated assertions; irreparable harm cannot be
inferred and it must be established by clear and compelling evidence (see: Gateway
City Church v. Canada (National Revenue), 2013 FCA 126 at para 14, 445 NR
360; also see Choson Kallah Fund of Toronto v Canada (National Revenue),
2008 FCA 311 at paras 5, 8, 172 ACWS (3d) 801, leave to appeal to SCC refused,
[2008] SCCA No 528). There is no such evidence that any harm suffered by the Applicant
would be irreparable.
[38]
Moreover, it is possible that any reputational
harm or damage suffered by the Applicant arising by virtue of the Review Panel’s
decision might be alleviated if and when the Inquiry Committee determines that
his conduct was not misconduct warranting a recommendation that he should be
removed from judicial office. The Applicant contends that since the Inquiry
Committee will be unable to complete its investigation before his imminent
retirement, there is no prospect that his reputation could be redeemed through
a favourable outcome. The Applicant’s retirement date is not tomorrow though,
and he has offered no evidence as to how long Inquiry Committee investigations
take on average or as to how long the Inquiry Committee’s proceedings will take
in this case. It is at least conceivable that the Inquiry Committee may have
completed its work before June 1, 2017. Presumably, in view of the Applicant’s
pending retirement, the Inquiry Committee will proceed promptly and
expeditiously. Furthermore, even if the Inquiry Committee has not completed its
work before the Applicant’s retirement, it may determine, as did the Inquiry
Committee in the Inquiry into the conduct of the Honourable Lori Douglas, to
stay its proceedings in view of the Applicant’s pending retirement.
[39]
In view of my determination that the Applicant
has not established that he will suffer irreparable harm because of the Review
Panel’s decision, it is unnecessary to address the third element of the RJR-MacDonald
test as to which of the parties would suffer greater harm from the granting or
refusal of the stay pending a decision on the merits of the judicial review
application.
[40]
Neither party made any submissions as to costs
at the hearing of this matter. The Respondent’s motion record makes no request
for costs. Pursuant to Rule 400(1) of the Federal Courts Rules,
SOR/98-106, there shall be no order as to costs.
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