Docket: T-2301-14
Citation:
2014 FC 1115
Ottawa, Ontario, November 21, 2014
PRESENT: The Honourable Mr. Justice Mosley
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BETWEEN:
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THE HONOURABLE LORI DOUGLAS
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Applicant
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and
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THE ATTORNEY GENERAL OF CANADA
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Respondent
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and
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INDEPENDENT COUNSEL IN THE MATTER
CONCERNING THE HONOURABLE LORI DOUGLAS
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Intervener
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ORDER AND REASONS
[1]
This is a motion brought in the context of the
proceedings undertaken by the Canadian Judicial Council (the CJC or Council) to
investigate the conduct of the Honourable Lori Douglas, Associate Chief Justice
of the Court of Queen’s Bench of Manitoba (Douglas ACJ).
[2]
Douglas ACJ has filed an application in this
Court for judicial review of the Inquiry Committee’s decision to admit certain
photographs into evidence. In this motion she seeks an Order, pursuant to section
18.2 of the Federal Courts Act, RSC 1985, c F-7, to stay the decision of
the Inquiry Committee to admit the photographs subject to confidentiality,
sealing and non-disclosure orders.
[3]
In a letter to the Court dated November 13,
2014, the Attorney General of Canada, named as Respondent in the application
for judicial review and this motion, consented to the motion for a stay on the
basis that it was in the public interest to maintain the status quo
until the Federal Court has exercised its supervisory jurisdiction and the
application is finally determined.
[4]
Recognizing that it was also in the public
interest for the inquiry to proceed with as little delay as possible, the
Attorney General also submitted that if the stay is granted, the timelines for
the judicial review application should be abridged and the hearing expedited. The
Applicant agrees that the hearing of the application should be expedited.
[5]
On November 18, 2014, the Independent Counsel to
the Inquiry requested leave to intervene under Rule 109 of the Federal
Courts Rules. The Applicant and the Respondent consented to the
intervention of the Independent Counsel on the stay motion. The Independent
Counsel was granted leave to submit a motion record and to appear at the
hearing of the motion on November 20, 2014 to make oral submissions objecting
to the motion.
[6]
The Attorney General did not submit written
representations or make oral submissions on the hearing of the stay motion but
appeared through counsel and spoke to questions from the Court.
[7]
For the reasons that follow, I stay the Inquiry
Committee’s ruling that the impugned photographs are admissible, pending
determination of the underlying application for judicial review on the merits.
I.
Background
[8]
On March 13, 2014, the CJC appointed three
members to the Inquiry Committee constituted to investigate allegations made
against Douglas ACJ, following the resignation of the first Inquiry Committee).
The members of the second Inquiry Committee are the Honourable François Rolland
(who will serve as Chairperson), the Honourable Austin Cullen and Ms Christa
Brothers QC.
[9]
By judgment dated March 28, 2014, I disposed of
an application brought by Douglas ACJ alleging a reasonable apprehension of
bias on the part of the Council: Douglas v Attorney General (Canada), 2014 FC 299 [Douglas 2014]. That decision is presently under appeal.
[10]
Ms Suzanne Côté, who succeeded Mr Guy Pratte as
Independent Counsel after he resigned, delivered a Notice of Allegations
outlining three allegations against Douglas ACJ on March 31, 2014. The first
allegation is that Douglas ACJ failed to disclose certain facts in her
application for judicial appointment. The second allegation is that the
photographs posted online “could be seen as inherently contrary to the image
and concept of integrity of the judiciary, such that the confidence of
individuals appearing before the judge, or of the public in its justice system,
could be undermined”. The third allegation is that Douglas ACJ failed to
disclose certain facts to Mr Pratte in the course of the proceedings involving
the first Inquiry Committee.
[11]
On October 1, 2014, Douglas ACJ filed a motion
requesting that the Inquiry Committee (1) dismiss the allegations without
resort to a formal evidentiary hearing and (2) declare the photographs
inadmissible and return them to her. The Inquiry Committee heard the motion on
October 27 and 28, 2014. It dismissed the motion from the bench.
[12]
The Inquiry Committee delivered written reasons
on November 4, 2014. It explained that it was inappropriate to decide the
allegations on a summary basis and affirmed that it had jurisdiction to decide
the third allegation, contrary to Douglas ACJ’s contention. It also refused
Douglas ACJ’s request to declare the photographs inadmissible and to return
them to her.
[13]
The Inquiry Committee found that the photographs
are relevant to the first and second allegations. It also found that admitting
them into evidence would not be unduly prejudicial. It emphasized that it would
protect Douglas ACJ’s privacy to the fullest possible extent by issuing the
necessary confidentiality, sealing and non-disclosure orders.
[14]
The Inquiry Committee intends to hold a hearing
to investigate the allegations beginning on November 24, 2014, for a duration
of ten days.
[15]
On November 6, 2014, Douglas ACJ filed an
application for judicial review of the Inquiry Committee’s decision.
[16]
On November 10, 2014, Douglas ACJ filed a notice
of motion seeking an Order staying the Inquiry Committee’s ruling that the photographs
are not inadmissible.
II.
Issue
[17]
The sole issue presently before the Court is
whether it should stay the decision of the Inquiry Committee declaring that the
photographs are not inadmissible in its proceedings, pending the determination
of the underlying application for judicial review.
III.
The Law
[18]
The Supreme Court of Canada set out the
tripartite test for interlocutory stays in RJR-MacDonald Inc v Canada
(Attorney General), [1994] 1 S.C.R. 311. At 334, the Court summarized the test
as follows:
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.
[19]
Therefore, 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.
[20]
The Supreme Court reiterated this test in Harper
v Canada (Attorney General), 2000 SCC 57 at para 4.
A.
Serious Issue
[21]
At the first stage, the Court must determine
whether the underlying application raises a serious issue. The threshold is low
– the Court must only be satisfied that “the claim is not
frivolous or vexatious”: RJR-MacDonald, above, at 335. The
Supreme Court explained the procedure which the motions judge must follow at
337-338:
The threshold is a low one. The judge on the
application must make a preliminary assessment of the merits of the case.
[…] Once satisfied that the application is neither vexatious nor frivolous,
the motions judge should proceed to consider the second and third tests, even
if of the opinion that the plaintiff is unlikely to succeed at trial. A
prolonged examination of the merits is generally neither necessary nor
desirable.
[Emphasis added]
[22]
However, the Supreme Court immediately observed
that there are exceptions to the general approach. A higher standard applies “when the result of the interlocutory motion will in effect
amount to a final determination of the action”: RJR-MacDonald,
above, at 338. The Court commented on the correct approach in these
circumstances at 339:
[A] more extensive review of the merits of the
case must be undertaken. Then when the second and third stages of the test are
considered and applied the anticipated result on the merits should be borne in
mind.
[23]
In Wang v Canada (Minister of Citizenship and
Immigration), 2001 FCT 148 at para 11, Justice Pelletier explained the
correct approach in such cases: “It is not that the tri-partite test does not
apply. It is that the test of serious issue becomes the likelihood of success
on the underlying application”.
B.
Irreparable Harm
[24]
The Supreme Court explained the second step as
follows in RJR-MacDonald, above, at 341:
At this stage the only issue to be decided is
whether a refusal to grant relief could so adversely affect the applicants’ own
interests that the harm could not be remedied if the eventual decision on the
merits does not accord with the result of the interlocutory application.
“Irreparable” refers to the nature of the
harm suffered rather than its magnitude. It is harm which either cannot be
quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other.
[Emphasis added]
[25]
The case law holds that irreparable harm cannot
be substantiated through speculation as to the potential outcome or effects of
an administrative decision: VIA Rail Canada Inc v Cairns (2000), 26
Admin LR (3d) 52 (FCA) at para 4 [VIA Rail]; Cognos Inc v Canada (Minister
of Public Works and Government Services), 2002 FCT 882 at para 21; Telecommunications
Workers Union v Canadian Industrial Relations Board, 2005 FCA 83 at para 8.
[26]
The jurisprudence also recognizes that harm to
the moving party’s professional reputation might amount to irreparable harm: Bennett
v British Columbia (Superintendent of Brokers) (1993), 77 BCLR (2d) 145
(BCCA) at paras 18-19; Adriaanse v Malmo-Levine, [1998] FCJ No 1912
(FCT) at paras 20-22; Viswalingam v Fort Smith Health Centre (1992), 36 ACWS
(3d) 1008 (NWTSC) at paras 57, 61-62 [Viswalingam], rev’d for different
reasons Viswalingam v Forth Smith Health Centre (1993), 46 ACWS (3d)
1138 (NWTCA).
[27]
The case law also accepts that harm to the
moving party’s mental health might amount to irreparable harm: Viches v Canada (Minister of Citizenship and Immigration), 2001 FCT 389 at para 14.
[28]
Harm which has already occurred does not justify
a stay: VIA Rail, above, at para 6. However, the test is met if the
moving party demonstrates that the harm will continue – or a different harm
will occur – unless a stay is granted: Viswalingam, above, at paras
61-62.
C.
Balance of Convenience
[29]
In RJR-MacDonald, above, at 342, the
Supreme Court elaborated upon the final stage as follows:
The third test to be applied in an application
for interlocutory relief was described by Beetz J. in Metropolitan Stores
at p. 129 as: “a determination of which of the two parties will suffer the
greater harm from the granting or refusal of an interlocutory injunction,
pending a decision on the merits”. In light of the relatively low threshold of
the first test and the difficulties in applying the test of irreparable harm in
Charter cases, many interlocutory proceedings will be determined at this
stage.
The factors which must be considered in
assessing the “balance of inconvenience” are numerous and will vary in each
individual case.
[Emphasis added]
[30]
Subsequently, courts have taken the public
interest into account in a variety of public law cases which do not involve the
Charter.
[31]
In Todd v Canada (Attorney General), 2005
FC 439 at 29, Justice Simon Noël articulated the public interest in holding a
professional disciplinary hearing:
Finally, the balance of convenience lies more
with the public interest in seeing justice be done than with Mr. Todd’s
personal interests in not having this matter proceed. It is acknowledged that
Mr. Todd will incur not only legal costs, but also personal costs in the way of
stress, a potential adverse finding, and potential damage to his reputation, if
the hearing is held as scheduled, while the Superintendent, on the other hand,
arguably only risks losing its jurisdiction over the matter if this interim
stay is granted. The balance of convenience, however, is more complex than
this, and it seems logical that if there has been professional misconduct by
Mr. Todd in his activities as a Trustee in bankruptcy, the public ought to be
aware of this. Likewise, if his conduct has been blameless, then it is in the
interest of all parties – Mr. Todd as well as the public he may serve in the
future – for Mr. Todd’s innocence to be known.
[32]
There is some authority to the effect that the
balance of convenience tilts in favour of the moving party where the requested
stay would not affect the general operation of legislation. In Viswalingam,
above, at para 66, the chambers judge stayed a disciplinary hearing against a
physician because
Only the proceedings against the plaintiff will
be temporarily restrained. This case is not a test of the regulatory provisions
of the Medical Profession Act. No other proceedings are affected. The
only person who is directly affected is the plaintiff.
[Emphasis added]
[33]
These cases can be reconciled because this stage
of the tripartite test constitutes a discretionary weighing exercise. The fact
that a stay only directly affects one person weighs in favour of granting the
stay, whereas the public interest in the prompt adjudication of professional
misconduct weighs in the other direction.
IV.
Analysis
[34]
For the reasons that follow, I have concluded
that a stay is appropriate under these circumstances. Nonetheless, I wish to be
clear that I am not deciding whether Douglas ACJ will succeed in the underlying
application. The Court will grant or dismiss that application upon further written
and oral submissions and consideration of the matter.
A.
Serious Issue
[35]
In my view, this motion calls for the application
of the usual “serious question” standard.
Independent Counsel has not made a case that the elevated standard should apply
and I am not satisfied that granting the stay “…will in
effect amount to a final determination of the action”: RJR-MacDonald,
above, at 338. Ms Côté conceded during her oral submissions that the Committee
could proceed with the hearing of evidence pending the outcome of the judicial
review application. Her argument was essentially that in reaching a conclusion
on the allegations, the Inquiry Committee members must view the photographs,
but that could occur at a later stage of the inquiry proceedings. If a stay is
granted, it is not a foregone conclusion that the Inquiry Committee will hold a
hearing without the photographs in evidence and then issue its report without
having had the benefit of that evidence which it considers necessary for completing
its task.
[36]
I am satisfied that the Applicant meets the low
threshold of the “serious question” test. She has
raised serious issues about the relevance, probative value and prejudicial
effects of the photographs. Without deciding the merits of her application for
judicial review, I find that it is not frivolous or vexatious.
[37]
Also, at this stage, I need not decide whether
the underlying application is premature. The Court will answer that question
when deciding the merits of the application. If there is a serious possibility
that the Court will not deem the application premature, I should grant a stay“even if of the opinion that the plaintiff is unlikely to
succeed at trial”: RJR-MacDonald, above, at 337-338.
[38]
In Canada (Border Services Agency) v
CB Powell Limited, 2010 FCA 61 at paras 30-33, the Federal Court of Appeal
affirmed the principle of judicial non-interference with administrative
proceedings in the absence of exceptional circumstances. The principle is that
individuals should not go to the courts until the administrative process is
complete or they have exhausted all effective remedies within that process. As
I explained in Douglas 2014, above, this principle is subject to limitations
in exceptional circumstances.
[39]
In my view, Douglas ACJ presents a serious case
that her application may fall within such exceptional circumstances. She does
not bring her application to prevent a negative decision on the merits. Such
applications are manifestly premature because they become moot if the tribunal
ultimately sides with the applicant. Douglas ACJ challenges an interlocutory decision
in order to pre-empt irreparable harm that will allegedly occur as the direct
result of that interlocutory decision, irrespective of the Committee’s final
decision. She has no other effective remedy for avoiding this harm, she argues,
since the Inquiry Committee dismissed her motion to have the photographs
declared inadmissible. As such, the argument that the underlying application is
not premature constitutes a serious issue to be tried.
[40]
Contrary to the argument of the Independent
Counsel, I do not consider that I am bound by my previous finding in Douglas
2014, at para 142, that I would have found the application in that matter
premature but for certain exceptional circumstances. Nor will that finding bind
the Court when it decides the underlying application. In Douglas 2014,
the application concerned the relationship between the CJC and Independent
Counsel. The harm which Douglas ACJ currently raises was not at issue.
B.
Irreparable Harm
[41]
I am also satisfied that the Applicant has established
that she will suffer irreparable harm in the short term, in the absence of a
stay.
[42]
There is consistent authority to the effect that
harm to an individual’s personal or professional reputation amounts to
irreparable harm. In a previous decision imposing a stay on the Inquiry
Committee proceedings, Douglas v Attorney General (Canada), 2013 FC 776
at paras 24-28, Justice Snider accepted that the disciplinary proceedings risked
harming the Applicant’s reputation and dignity interests. While the issues in
the application and motion before Justice Snider were different, I have reached
a similar conclusion.
[43]
The Applicant does not speculate as to harm
which might arise if the Inquiry Committee ultimately renders a negative
decision. She alleges that she will suffer harm as soon as the members of the
Inquiry Committee view the pictures, and again when the quorum of the CJC may
view them upon receiving the Committee’s record and report. Within the context
of these interlocutory proceedings, I can see no reason to cast doubt on
Douglas ACJ’s contention that she will suffer a blow to her dignity if her
peers view the photographs.
[44]
The Independent Counsel has argued that it is
not a foregone conclusion that a full quorum of the CJC will view the
photographs, since the CJC remains master of its own procedure. However,
Douglas ACJ’s supposition that a full quorum of the CJC (17 or more Chief
Justices or Associate Chief Justices) will look at the photographs while
exercising its functions is reasonable. The idea that the CJC might exercise
its discretion to depart from the procedures prescribed in its policies is more
theoretical than the harm which Douglas ACJ seeks
to avoid. While the Inquiry Committee has provided assurances that it will
issue various protective orders, it has not undertaken to recommend that the
full quorum should not view the photographs.
[45]
In any event, it is the nature of harm – not its
magnitude – which must be “irreparable”: RJR-MacDonald,
above, at 341. The nature of the alleged harm which disclosure of the
photographs will inflict upon Douglas ACJ’s reputation and psychological state
does not depend on the exact number of people who will view the photographs. Whether
the public interest in the proper administration of the judicial inquiry process
outweighs that harm is not a question to be determined by the Court on this
motion.
[46]
The Independent Counsel points out that the
photographs have been publicly available on the Internet at various times since
2002. The Applicant acknowledges that at least two of the photographs continue
to be accessible on what has been characterized by others as “cyber-misogyny” sites. The Independent Counsel notes
that, by her count, at least 11 members of the CJC have also already viewed the
photographs. Because of their prior involvement in the matter, these members
will not take part in any subsequent stages of the proceedings. There is no
indication that any of the judges who sit on the Inquiry Committee or may
become involved in these proceedings later on have already seen the pictures.
[47]
In sum, the second step of the test is met. The
case law accepts that the kind of harm the Applicant seeks to avoid is
irreparable. Although she has endured analogous harm in the past, she should
not be made to endure a novel disclosure of the photographs before the Court
pronounces upon the merits of her application.
C.
Balance of Convenience
[48]
Upon weighing the competing relevant factors, I
have concluded that the balance of convenience favours interlocutory relief.
[49]
The public interest clearly calls for the
expeditious resolution of disciplinary complaints, as stated by the Attorney
General of Canada and the jurisprudence. The public has an interest in learning
whether the person under scrutiny can continue to perform her judicial functions
notwithstanding the allegations made against her.
[50]
However, in this case there are countervailing
public interest considerations favouring a stay. The Applicant points to the
emerging social consensus in Canada that intimate images should not be disclosed
or disseminated against the will of the persons they depict unless it is
absolutely necessary. If the stay is refused and the Applicant subsequently
succeeds on the merits of her application for judicial review, the Court will
have condoned an unnecessary disclosure of such images. Such a result would be
especially unfortunate in the context of disciplinary proceedings which implicate
judicial independence.
[51]
A stay would not affect the direct interests of
any person other than Douglas ACJ. Furthermore, it would only affect the
portion of the decision holding the photographs admissible. Its effect on the administrative
proceedings would not be excessive, since the Inquiry Committee could continue
its work in the absence of the photographs.
[52]
The parties and the Independent Counsel favour
an expedited hearing on the merits. Thus the underlying application may be
decided within an acceptable period of time. The proceedings before the Inquiry
Committee should not suffer an incommensurate delay as a result of my decision
to grant a stay.
[53]
On the one side lies the indisputably important
public interest in efficient administrative action. On the other lies the
public interest in preventing the unnecessary disclosure of intimate images, the
irreparable harm faced by Douglas ACJ and the prospect of an expedited hearing
on the merits. In my view, the balance tilts in favour of granting the stay so
as to preserve the status quo until the Court disposes of the underlying
application.
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