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JUDGES - Complaints against - Judicial councils

Friday, June 23, 2017 @ 8:48 AM  

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Appeal by Justice Newbould from the dismissal of his motion to stay a decision of the Judicial Conduct Review Panel, constituting an Inquiry Committee to inquire into his conduct. In 2014, the Canadian Judicial Council (CJC) received complaints about Newbould’s involvement in a public controversy about an aboriginal land claim in the vicinity of a cottage property. The chairperson of the CJC’s Judicial Conduct Committee reviewed the complaints and closed the file. One of the complainants, the Indigenous Bar Association, requested a reconsideration of the chair’s decision. Upon reconsideration, the matter was forwarded to a Review Panel to determine whether an Inquiry Committee should be constituted. Newbould provided submissions to the Review Panel. Before the Review Panel advised him of its decision, Newbould wrote to the Minister of Justice resigning from his office as judge effective June 1, 2017. The Review Panel’s decision, issued in February 2017, recognized the CJC’s jurisdiction to reopen the complaint, and constituted an Inquiry Committee. Newbould applied for judicial review, seeking a declaration that the CJC lacked jurisdiction to reconsider the initial decision, and an order prohibiting the CJC from taking further steps concerning the complaints. He moved to stay the Review Panel’s decision pending the outcome of his judicial review application. The Federal Court held there were no extraordinary circumstances to justify interfering with the ongoing administrative proceedings until they were completed. The Court considered Newbould’s motion premature, given that the Crown was not seeking to strike out Newbould’s judicial review application. Alternatively, the Court found that, while Newbould’s application raised a serious issue, he failed to provide clear and compelling evidence that he would sustain irreparable reputational harm if the Review Panel’s decision was not stayed.

HELD: Appeal dismissed. The Federal Court erred in finding Newbould’s motion for a stay premature. However, the application of the tri-partite test in RJR-MacDonald persuaded the appeal court to dismiss the appeal. The Court may have erred in excluding the possibility of proof of damage to reputation by inference, but even on that standard, Newbould failed to satisfy the evidentiary burden on him. The reputational harm of which Newbould complained was inherent in the process in which he engaged. He was already been exposed to a certain amount of public exposure as result of the complaints and CJC proceedings. The Court did not fall into palpable and overriding error in concluding Newbould failed to show he would suffer irreparable harm if the stay not granted.

Newbould v. Canada (Attorney General), [2017] F.C.J. No. 515, Federal Court of Appeal, J.D.D. Pelletier, J. Trudel and D.J. Rennie JJ.A., May 19, 2017. Digest No. TLD-June192017011