Fairchild v. Bligh, 2015 NUCJ 17

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: Fairchild v. Bligh, 2015 NUCJ 17 Date: 20150626 Docket: 04-14-485-CVA Registry: Iqaluit Plaintiffs: Tamara Fairchild and Clare Henderson -and- Defendant: Gordon Bligh ________________________________________________________________________ Before: The Honourable Mr.

Justice Ouellette Counsel (Plaintiffs): Mark Mossey Counsel (Defendant): Sheldon Toner Counsel (JP Review Council): Michael Chandler Location Heard: Iqaluit, Nunavut Date Heard: April 29, 2015 Matters: Judicial Review; Justices of the Peace Act , S.N.W.T. 1998 (Nunavut), c 34; Public Inquiries Act, R.S.N.W.T. 1988 (Nunavut), c P-14 REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] Tamara Fairchild and Clare Henderson seek judicial review of the decision of the Justice of the Peace Review Council, dated September 5, 2014. Prior to the commencement of the scheduled application for judicial review, a preliminary issue arose as to whether or not Tamara Fairchild and Clare Henderson, as complainants, could seek judicial review of the Justice of the Peace Review Council [Review Council] decision. II. FACTS [ 2 ] Tamara Fairchild is a lawyer in Nunavut. She filed a complaint in 2012 against Gordon Bligh, a Justice of the Peace. Clare Henderson is a lawyer in Nunavut.

She filed two complaints in 2013 against Gordon Bligh. The three complaints were referred to the Review Council. [ 3 ] The Review Council held hearings in Iqaluit, Nunavut, on April 8 & 9, 2014. At the hearing, the complainants were represented by a lawyer as was the Justice of the Peace. Further, the complainants were called as witnesses and made arguments and submissions following the presentation of the evidence. [ 4 ] The Review Council rendered its decision on September 5, 2014. It dismissed Tamara Fairchild’s appeal.

With respect to Clare Henderson’s first complaint, a recommendation was made that the Justice of the Peace attend a training program on judicial ethics. In regard to the second complainant, the Review Council found Gordon Bligh’s conduct unethical and reprimanded him. [ 5 ] The complainants seek judicial review of the September 5, 2014, decision. III.

LEGISLATION [ 6 ] The relevant legislation in this case is the Justices of the Peace Act , S.N.W.T. 1998 (Nunavut), c 34, Justice of the Peace Review Council Rules of Procedure [Rules of Procedure], and the Public Inquiries Act, R.S.N.W.T. 1988 (Nunavut), c P-14. [ 7 ] Complaints respecting a Justice of the Peace may be made to the senior judge, pursuant to s 7 of the Justices of the Peace Act . Upon receipt of a complaint, the senior judge may refer the complaint to the Justice of the Peace Review Council (s 7(2)(e)). [ 8 ] The Review Council is established under s 4 of the Justices of the Peace Act .

It is composed of the senior judge, a judge of the Nunavut Court of Justice, a Justice of the Peace, and two representatives of the public.

Section 9 of the Justices of the Peace Act outlines that the Review Council shall inquire into the complaints by holding a hearing. The complainants are given notice of the hearing and the Review Council may inquire into the complaint by examining and cross-examining witnesses or reviewing relevant documents at the hearing (ss 9(2)(a)&(b)).

Further, the Review Council shall allow the complainants to be heard and to submit written or oral evidence (s 9(2)(c)). [ 9 ] Pursuant to s 9(3) of the Justices of the Peace Act , the Review Council has all the powers of a Board of Inquiry under the Public Inquiries Act, and as specifically referred to under s 11(b). In addition, the Review Council is required to follow the adopted Rules of Procedure, which were created pursuant to s 4(1) of the Public Inquiries Act. [ 10 ] The Review Council is required to appoint an Inquiry Counsel.

Section 2 of the Rules of Procedure sets out the role of the Inquiry

Counsel. The Inquiry Counsel is to act at arm’s length from the Review Council (s 2(9)) and is also required to marshal and present all credible evidence related to the complaint to the Review Council (s 2(7)). [ 11 ] In the public interest, Inquiry Council shall present all evidence whether favorable or adverse to the respondent (s 2(10)). Inquiry Council also has the authority to call any witness including the complainant and the respondent (s 2(11)). [ 12 ] Section 4(1) of the Rules of Procedure provides that a complainant has a right to appear in person or by counsel at the hearing.

Further, that “at the conclusion of the presentation of Inquiry Council, the complainant, or counsel for the complainant, has the right to present evidence and make submissions” (s 4(2)). [ 13 ] The Rules of Procedure provide that the inquiry contemplated in s 9 of the Justices of the Peace Act must be done following the principles of fairness and natural justice (Rules of Procedure, s 6). [ 14 ] Lastly, following the hearing, the Review Council is required to make a report to the Commissioner in Executive Council, the senior judge, the Justice of the Peace involved, and the complainant (s 11 of the Justices of the Peace Act ).

However, no appeal lies from a decision of the Review Council (s 11(3)). IV. ISSUE [ 15 ] Do the complainants have standing to bring the judicial review application? V. ANALYSIS [ 16 ] The issue to be determined is whether or not the complainants have standing to bring a judicial review application. Do the complainants, as interested individuals, have standing to seek judicial review? If the complainants have standing, is the standing limited in relation to procedural fairness of the proceedings?

If the complainants do not have standing to seek judicial review as individuals, should they be granted standing in the public interest? A. Standing as complainants or interested individuals [ 17 ] Generally, in professional disciplinary proceedings, the complainant has no standing to seek judicial review of the merits of a disciplinary body’s decision, except where the issue of procedural fairness is engaged (Warman v Law Society of Alberta, 2015 ABQB 230 at para 49 , [2015] AJ No 377 (QL) [Warman] ; Tupper v Nova Scotia Barristers’ Society, 2013 NSSC 290 at paras 30-31 , 336 NSR (2d) 211 [Tupper] ).

In Tupper , McDougall J notes: [31] The issue of whether a complainant in a professional disciplinary matter has standing to apply for judicial review has been considered in a number of cases: Friends of the Old Man River Society v. Association of Professional Engineers, Geologists and Geophysicists of Alberta, 2001 ABCA 107 , leave to appeal refused [2001] SCCA No 366; Berg v. British Columbia (Police Complaint Commissioner), [2006] B.C.J. No. 1027 (BCCA) , leave to appeal refused [2006] SCCA No 300); M.H. v. College of Physicians and Surgeons of Alberta, 2006 ABQB 395 ; Pound v. Lunney, 2007 BCSC 85 ; Allen v.

College of Dental Surgeons of British Columbia, 2007 BCCA 75 ; Metropolitan Centre Inc. v. Abugov Kaspar Architecture, Engineering, Interior Design, 2007 ABQB 419 ; Emerman v. Assn. of Professional Engineers and Geoscientists of British Columbia, 2008 BCSC 1186 ; Mitten v. College of Alberta Psychologists, 2010 ABCA 159 ; Robichaud v. College of Registered Nurses of Nova Scotia, 2011 NSSC 379 . These authorities appear to be in agreement that a non party does not have standing to seek judicial review of the merits of a disciplinary body’s decision.

Where judicial review has been found to be available, it has been limited to issues relating to procedural fairness. [Emphasis added]. [ 18 ] The legislative framework under the Nunavut Justices of the Peace Act is substantially similar to the other statutes governing professional disciplinary proceedings which were considered in the cases listed in Tupper . The Justices of the Peace Act contains provisions that regulate the appointment and discipline of Justices of the Peace in Nunavut. As such, although the complainants in this

matter were entitled to procedural fairness as participants at the hearing before the Review Council, they are “non-parties” to the entiredisciplinary proceedings being conducted under that statutory framework because their rights will not be affected by the disciplinaryprocess. [19] In Warman at para 33, Pentelechuk J confirms: (i) “it has long been recognized that the only parties to the disciplinary process arethe member and the regulating body”; and (ii) “complainants are merely witnesses to the proceedings as they are ‘not [parties] in thecomplaint process.” She referred to Davidoff v Law Society of Alberta, 2014 ABQB 370 at para 51, 80 Admin LR (5th) 172 [Davidoff],where Belzil J notes that “[t]he disciplinary proceedings against [the professional member or respondent] have no effect on [thecomplainant’s] personal or economic interests”, and dismissed the complainant’s application for judicial review on the basis that he hadno standing to bring the application (para 53). [20] However, there may be unique factual circumstances or exceptional situations in which standing may be granted to complainants toseek judicial review.

In unique factual circumstances, the court might consider granting a complainant standing (See Kipiniak v OntarioJudicial Council, 2012 ONSC 5866 at paras 20, 26, 298 OAC 389 [Kipiniak]). The Ontario Superior Court of Justice in Kipiniakexpressly stated that: Rather than being a passive observer, [the complainant] was directly and specifically impacted by the conduct at issue in the complaint.He was the object of the conduct. It is at least arguable that this gives him sufficient interest to be granted standing.

However, we do notrest our decision on this basis. [Emphasis added] (para 20). [21] The facts of the present case, however, are distinguishable from that in Kipiniak. In Kipiniak, the complainant was unrepresentedand was not given full procedural rights, including a thorough inquiry into his complaint. In this case, the complainants were representedby legal counsel and were further permitted to present evidence, arguments, and submissions. B. Standing limited to fairness of the proceedings [22] The issue is whether or not the complainants were afforded procedural fairness at the hearing.

The complainants were allowed toenter evidence at the hearing, call witnesses, cross-examine witnesses, and submitted closing arguments in support of their positions.These are the indicia of the right to procedural fairness as reflected in s 9(2)(

c) of the Justices of the Peace Act. [23] The complainants further argue that the Review Council “failed to provide reasons for its decision to reject the call for the removalof JP Bligh”. This does not satisfy the requirement for establishing a breach of procedural fairness. Firstly, the Justices of Peace Actgives the Review Council the authority (discretion) to select a remedy of its choice under s 11(2).

Secondly, the Supreme Court hasindicated that adequacy of reasons is not a stand-alone basis for quashing a decision of an administrative decision-maker on judicialreview (Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 52, [2013] 2 SCR 559, citingNewfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708). [24] The Review Council is not statutorily required to demonstrate “why” it rejected a particular form of sanction and preferred adifferent sanction or remedy.

Accordingly, the complainants have failed to establish that there right to procedural fairness was breachedor violated. C.

Public interest [25] The complainants argue that should they not be entitled to standing as interested parties, or that standing should be limited toseeking a review of procedural fairness, that they should be entitled to judicial review on the basis of public interest. [26] The Supreme Court of Canada in Finlay v Canada (Minister of Finance), (SCC), [1986] 2 SCR 607 at paras 32-35,33 DLR (4th) 321 (QL) [Finlay], set out a three part test in determining whether a complainant can gain standing in the public interest.The Court must consider whether or not it is a justiciable issue, reflecting “concern about the proper role of the courts and theirconstitutional relationship to the other branches of government”; whether or not the challenge involves a serious issue raised by someonewith a genuine interest in its determination, reflecting a concern about the allocation of scarce judicial resources and the need to screen

out the mere busybody; and whether or not there is any other “reasonable and effective manner in which the issue may be brought before a Court”, reflecting the concern that the “Courts have the benefit of the contending points of view by those most directly affected by them.” [ 27 ] The Supreme Court recently confirmed the three part test set out in Finlay in the Attorney General of Canada v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 at para 2 , [2012] 2 SCR 524 [Downtown] . In Downtown, the Court held that in determining whether to grant standing in a public law case, courts must consider three factors:

a) Whether the case raises a serious justiciable issue;

b) Whether the party bringing the case has a real stake in the proceedings or is engaged with the issues that it raises; and

c) Whether the proposed suit is, in all of the circumstances and in light of a number of considerations, a reasonable and effective means to bring the case to court.

In effect, a party seeking public interest standing must persuade the Court that these factors, applied purposefully and flexibly, favor granting standing. [ 28 ] Applying the tests set out by the Supreme Court of Canada in Finlay and Downtown to the facts of this case, they do not support a finding that the complainants should be granted standing in the public interest. [ 29 ] Firstly, the issues in this case do not raise questions of the proper role of a court of their constitutional relationship to the other branches of government.

The issue in this case is what, if any, sanction the Justice of the Peace should receive. [ 30 ] Regarding the second part of the test, it is a fact that the complainants do have a genuine interest in the determination being made by the Review Council.

However, it cannot be said that the complainants have a real stake in the proceedings in that they are not the ones who may be subjected to any sanction under the Justices of the Peace Act . [ 31 ] As to the third part of the test, the Review Council did have the benefit of the contending points of view by those most directly affected, that is the complainants. [ 32 ] Further, in the circumstances of an application for judicial review of a professional disciplinary matter, such as the present one, it would be sufficient and satisfactory for the reviewing court making determination(

s) on the merits of an application to: (

i) rely on the Book of Record of the Review Council proceedings, filed before it in the application; (ii) hear submissions from JP Bligh; and (iii) hear submissions, within relevant scope, from the Inquiry Counsel – who is appointed by the Review Council and, significantly, mandated to perform his “duties impartially and in accordance with the public interest” (See Rules of Procedure, ss 2(8)&10).

In other words, in the absence of the complainants, there is another reasonable and effective manner in which the issue – i.e. disciplinary sanction discretionally imposed by the Review Council – may be brought before the reviewing court to ensure it has “the benefit of the contending points of view by those most directly affected by them.” [ 33 ] As a result, the facts and circumstances of the present case do not support the grant of a public interest standing. VI. CONCLUSION [ 34 ] In conclusion, the complainants do not have standing to bring this judicial review application for all of the reasons stated above,

summarized as follows: (

i) For the purpose of disciplining Justices Of The Peace, the Nunavut Justices of the Peace Act has a legislative framework that is comparable and substantially similar to that governing other professional disciplinary proceedings considered in the existing jurisprudence; (ii) Accordingly, the complainants in the present application are only entitled to procedural fairness at the hearing before the Review Council, but are not “parties” to the complaint process, since the disciplinary proceedings does not affect their personal and economic interests in the manner that JP Bligh’s (the respondent Justice of Peace) personal and economic interests are directly impacted ( Warman at para 33 ; Davidoff at paras 51-52 ; and Tupper at paras 30-31 ); (iii) The complainants in the present matter were afforded the opportunity to present their cases/positions before the Review Council; as such, there was no breach of the complainants’ right to procedural fairness; (iv) The Nunavut Justices of the Peace Act gives the Review Council the discretion to select an appropriate remedy in any given disciplinary proceeding or matter before it (s 11(2)); and (

v) The statute contains a strong privative clause which clearly indicates that no appeal lies from the decision of the Review Council (s 11(3)). [ 35 ] As a result, the applicants do not have standing to bring the judicial review application. Dated at the City of Iqaluit this 26th day of June, 2015 ___________________ Justice V.O. Ouellette Nunavut Court of Justice