2022 NBKB 174, 2022 NBKB 174

IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF BATHURST BM-6-2022 Forum des Maires de la Péninsule Acadienne Inc. v. Minister of Justice and Public Safety et al. , 2022 NBKB 174 September 22, 2022 BETWEEN FORUM DES MAIRES DE LA PÉNINSULE ACADIENNE INC. , Applicant, - and - MINISTER OF JUSTICE AND PUBLIC SAFETY, Respondent, - and - CHIEF JUDGE OF THE PROVINCIAL COURT, Respondent. DECISION BEFORE: Chief Justice Tracey K. DeWare. AT: Bathurst, New Brunswick. DATE OF HEARING: July 28, 2022.

DATE OF DECISION: September 22, 2022. APPEARANCES: Jean-Marc Gauvin and Jason Godin, for the applicant Forum des Maires de la Péninsule Acadienne Inc.; Joël Michaud, K.C., and John MacCormick, for the respondent Chief Judge of the Provincial Court; Isabel Lavoie Daigle, for the respondent Minister of Justice and Public Safety. [TRANSLATION] DeWare, C.J.

INTRODUCTION [ 1 ] This decision is in response to a motion by the respondent Chief Judge of the Provincial Court (hereinafter the Chief Judge) seeking an order of the Court that the application in this case cannot be maintained and that his involvement in the litigation should be struck. FACTS [ 2 ] The applicant Forum des maires de la Péninsule acadienne (hereinafter the Forum) filed an application challenging the decision of the Minister of Justice and Public Safety (hereinafter the Minister) to close the courthouses in Caraquet and Tracadie.

The Forum named the Chief Judge and the Minister as respondents to the application for judicial review. The Minister took no position in response to this motion and did not appear at the hearing. [ 3 ] The Forum filed an application for judicial review on February 23, 2022, seeking the following orders: [TRANSLATION] a. The applicant has public interest standing in the application for judicial review. b. Exchanges via messaging, email or minutes of telephone calls or meetings and/or other communications between the respondents regarding the impugned decision be disclosed to the applicant. c.

The file containing all the information and/or data considered by the respondents in making their decisions regarding “Changes coming to court services in Judicial District of Bathurst” and specifically in the Acadian Peninsula be disclosed to the applicant. d. Leave to amend the application and to file additional affidavits as considered appropriate and just in the circumstances be granted. e. The time limits for this application be extended or abridged as considered appropriate and just in the circumstances be granted. f.

The decision of the Minister of Justice and Public Safety, announced in a news release on November 24, 2021, regarding “Changes coming to court services in Judicial District of Bathurst” and specifically in the Acadian Peninsula, and in particular his decision to close the Caraquet courthouse, transfer its cases to the Bathurst courthouse and convert the Tracadie courthouse into a satellite court, be set aside. g.

The decision of the Chief Judge of the Provincial Court, announced in a news release on November 24, 2021, to concur with the aforementioned decision of the Minister of Justice and Public Safety be set aside. h. The decision of the Chief Judge of the Provincial Court, announced in a news release on December 16, 2021, to transfer Judge Éric Sonier from Tracadie to Bathurst [and] to transfer Judge Johanne-Marguerite Landry from Caraquet to Miramichi be set aside. i.

The decision of the Minister of Justice and Public Safety to approve the transfer of Judge Éric Sonier from Tracadie to Bathurst [and] the transfer of Judge Johanne-Marguerite Landry from Caraquet to Miramichi be set aside. j. The Caraquet and Tracadie courthouses be reopened and all court services and activities that existed prior to January 1, 2022, be reinstated within 40 days. k. It be declared that any decision arising from any planning with respect to court services for the Acadian Peninsula be made on the

basis of the homogeneous Francophone nature of the Acadian Peninsula and in accordance with principles conducive to its development. Without limiting the generality of the foregoing, that a full-service courthouse be maintained at all times. I. It be declared that any study of justice-related needs or services be identified for the Acadian Peninsula in consultation with the mayors of the municipalities in the area. m. Any remedy under s. 24 of the Canadian Charter of Rights and Freedoms that is considered appropriate and just in the circumstances be granted. n.

Costs and disbursements for this proceeding be awarded to the applicant. [ 4 ] The Chief Judge takes issue with his involvement in the application. He has not filed an answer to the application and seeks to have the claim against him struck out. The Chief Judge has filed a motion seeking the following orders: [TRANSLATION] (

a) the dismissal, under Rule 23.01, of the application of the Forum des maires de la péninsule acadienne as against the respondent Chief Judge of the Provincial Court on the basis that there are no adequate grounds for relief against the Chief Judge and that the applicant lacks the legal capacity to bring the application against him; (

b) in the alternative, the striking out, under Rule 27.09, of the allegations in the Notice of Application relating to the respondent Chief Judge and his so-called decisions on the grounds that the allegations are scandalous, frivolous or vexatious, an abuse of the process of the Court and not in conformity with the Rules of Court ; (

c) such other relief as the Court considers appropriate; (

d) all with costs and disbursements payable by the Forum des maires de la péninsule acadienne to the respondent Chief Judge. [ 5 ] The Chief Judge of the Provincial Court explains the grounds for the court order sought in his motion as follows: [TRANSLATION] The decision to close the Caraquet courthouse and convert the Tracadie courthouse into a satellite court was made by the Minister or the Executive Council; it was not made by the Chief Judge. 1.

In the Notice of Application, the applicant seeks to have set aside the decision of the Minister of Justice and Public Safety to close the Caraquet courthouse and convert the Tracadie courthouse into a satellite court. The applicant also seeks to have set aside the so-called “decision” of the respondent Chief Judge “to concur with the decision of the Minister of Justice and Public Safety”. 2. However, the respondent Chief Judge does not have the authority to open or close courthouses, nor does he have the authority to approve or disapprove the provincial government’s decisions in this regard.

The impugned decision rests solely with the Minister or the Executive Council. 3. In the absence of a statutory power or legal duty vested in the respondent Chief Judge in relation to the opening or closing of courthouses, there has been no action or inaction on his part that is subject to judicial review. 4. If, on the other hand, the application relates to anything other than a decision of the respondent or his so-called breach of a public duty, the application is an action in the guise of judicial review.

The judicial immunity codified in s. 3.1 of the Provincial Court Act prohibits proceedings against a judge of the Provincial Court. The applicant does not have standing to challenge the decision of the respondent Chief Judge to transfer the judges assigned to the affected courthouses, which decision was a necessary consequence of the provincial government’s decision. 5. The applicant also challenges the decision of the respondent Chief Judge to transfer Judge Eric Sonier from Tracadie to Bathurst and to transfer Judge Johanne-Marguerite Landry from Caraquet to Miramichi. 6.

Unlike the decision to close the Caraquet courthouse and convert the Tracadie courthouse into a satellite court, the decision to transfer the judges actually falls within a statutory power vested in the respondent Chief Judge under s. 10 of the Provincial Court Act . 7. However, the applicant does not have standing to challenge the transfer of these two judges. 8. Moreover, the transfer of the judges was the necessary consequence of the decision to close the Caraquet courthouse and convert the Tracadie courthouse into a satellite court, which decision did not lie with the respondent Chief Judge.

The challenge to this decision is therefore a collateral attack on the decision of the Minister or Executive Council. 9. Such other grounds as the Court may agree to hear or receive. ISSUES

[ 6 ] The issues raised by the parties that the Court is called upon to decide in this case can be broken down as follows: (

i) Is the motion imprecise? (ii) Does the decision to close a courthouse rest with the Chief Judge of the Provincial Court? (iii) Is the so-called decision of the Chief Judge of the Provincial Court to confirm or concur with the Minister’s decision subject to judicial review? (iv) Does the applicant have standing to challenge the transfer of the judges? LAW AND ANALYSIS Is the motion imprecise? [ 7 ] The Forum suggests that the Chief Judge did not specify the provisions he relies upon in support of his motion, contrary to Rule 37.03 of the Rules of Court . I do not accept that argument in this case.

The Notice of Motion clearly explains the relief sought and the grounds and rules relied upon. The importance of particulars in pleadings is to ensure that the parties are fully aware of the exact nature of the issues to be addressed. In this case, the nature of the order sought by the Chief Judge is unambiguous. In addition, the applicant responded fully to all the issues raised in its written and oral submissions. Does the decision to close a courthouse rest with the Chief Judge of the Provincial Court? [ 8 ] The Chief Judge of the Provincial Court does not have the authority to open or close courthouses.

Subsection 92(14) of the Constitution Act, 1867 confers responsibility for the administration of justice to the provinces: Subjects of exclusive Provincial Legislation 92 In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, 14. The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts. [ 9 ] New Brunswick (Attorney General) v.

Charlotte County Barristers’ Society Inc. , 2016 NBCA 32 , considered an issue arising from the closure of a courthouse. In this decision, the Court of Appeal discussed in passing the fact that the decision to close the courthouse was a decision of the Province: In sum, I conclude the Barristers’ Society is seeking to challenge by judicial review the Province’s decision to close the St. Stephen and Grand Manan courthouses, a decision that was obviously taken before it was announced on March 31, 2015, and broadly made known on that date or immediately after.

The impugned decision was pronounced on March 31 and the public was informed that day or the next. Everything that happened in the aftermath confirms the decision to close the facilities was a final decision. It was incumbent on anyone wishing to challenge it by judicial review to act in a timely manner, so that the decision-maker might then rely on the finality principle and proceed with the implementation of its decision.

Barring exceptional circumstances, of which there are admittedly none, it follows that the application for judicial review was out of time. [ 10 ] The Chief Judge maintains that his powers are conferred exclusively by s. 10(1) of the Provincial Court Act , R.S.N.B., c. P-21. The Act lists the powers of the Chief Judge as follows: Powers and duties of chief judge 10(1) The chief judge shall supervise the judges in the performance of their duties and have the power and duty to (

a) designate the places where a judge is to hold sittings, (

b) designate the places where a judge is to establish and maintain an office,

(

c) designate the days on which a judge is to hold sittings at a place, (

d) designate the places and the areas within which a judge is to exercise their jurisdiction, (

e) designate, with the consent of the Minister, the place at which a judge is to establish residence, (

f) require a judge to act during the absence of another judge in the place and stead of the judge who is absent, (

g) issue directives, administrative standards and procedures to the judges, and (

h) establish continuing education requirements for judges. [ 11 ] During the hearing, I asked counsel for the Forum what remedies were available with respect to the Chief Judge in the context of this judicial review. It is not possible to order the setting aside of the Chief Judge’s decision as he did not make the decision to close the courthouses.

It is also not possible to order the Chief Judge to reconsider the closure of the courthouses because he does not have the power to revisit the issue or the power to interfere with the decisions made regarding the use of the courthouses. [ 12 ] The decision to close a courthouse does not rest with the Chief Judge of the Provincial Court. Decisions either to open or close courthouses rest solely with the executive branch of the government.

Is the so-called decision of the Chief Judge of the Provincial Court to confirm or concur with the Minister’s decision subject to judicial review? [ 13 ] The Chief Judge’s decision, if there was one, to concur with the Minister’s decision to close the courthouses is not a decision from which any consequences or actions flow. The Minister, in the course of his duties, may consult with the Chief Judge about the closure of courthouses or any other administrative issue facing the Department of Justice. The Chief Judge may share his concerns, opinions or observations.

However, the fact remains that the decision to act on a specific issue such as the courthouse closures is a decision that rests solely with the Minister despite any consultation he may have undertaken in making that decision, including with the Chief Judge. [ 14 ] The Forum explains in the application that the Chief Judge’s decision [TRANSLATION] “to concur with the Minister’s decision” was announced in a news release issued by the Minister dated November 24, 2021.

The portion of the news release that refers to the Chief Judge reads as follows: “The chief judge of the Provincial Court was consulted about the changes and concurred with the decision.” The application against the Chief Judge is based entirely on this news release. [ 15 ] The evidence includes no statements by the Chief Judge about the closure of the courthouses. It is not known whether the Chief Judge, during his consultations with the Minister, advised the closure of the courthouses.

However, while the Chief Judge agreed with the Department’s decision in this regard, his advice is not subject to judicial review. In Taseko Mines Limited v. Canada (Environment) , 2019 FCA 319 at paras. 36 and 43 , the Federal Court decides the issue as follows: [36] It is generally accepted that applications for judicial review lie not only with decisions and orders, but can also be brought where the conduct attacked affects “legal rights, impose[s] legal obligations, or cause[s] prejudicial effects” ( Sganos v. Canada (Attorney General) , 2018 FCA 84 , at para. 6 ; Air Canada v.

Toronto Port Authority et al. , 2011 FCA 347 , [2013] 3 F.C.R. 605 , at para. 29 ; Democracy Watch v. Canada (Attorney General) , 2018 FCA 194 , at paras. 28-29 ). Based on this principle, this Court has held that reports by the National Energy Board are only recommendations to the GIC and, as they lack any independent legal or practical effect, are thus not reviewable ( Gitxaala and Trans Mountain ). For the reasons that follow, I believe that the same reasoning applies here. [43] Having duly considered that argument, I feel bound to reject it essentially for the reasons articulated in Trans Mountain .

The distinction between the two schemes highlighted by the parties does not change the fact that the Final Report, in itself, affects no legal rights and carries no legal consequences ( Trans Mountain , at paras. 179-180; Gitxaala , at paras. 121-123, 125). Whether or not the Panel can be requested to review its conclusions and recommendations, the Final Report only serves to assist the Minister (or the GIC) in making their decisions. In light of the above-noted precedents and of this Court’s holding in Jada Fishing Co. Ltd. v.

Canada , 2002 FCA 103 , 41 Admin L.R. (3d) 281 , at paragraph 12 , I find that the Final Report is not amenable to judicial review. [Emphasis added.] Does the applicant have standing to challenge the transfer of the judges? [ 16 ] The Chief Judge takes no position on whether the Court should grant the Forum standing to challenge the Minister’s decision to close the courthouses. However, the Chief Judge submits that the Forum does not have the requisite standing in this case.

The Chief Judge suggests that the application on the issue of the judges’ transfers is unnecessary and the decision itself is beyond reproach. The Chief Judge transferred the judges in question as a result of the Minister’s decision. The judges had nowhere to sit following that decision.

[ 17 ] The Chief Judge argues that the Forum does not have private interest standing. In the application, the Forum seeks to be granted public interest standing. In British Columbia (Attorney General) v. Council of Canadians with Disabilities , 2022 SCC 27 , the Supreme Court of Canada summarizes the factors to be considered in deciding whether to grant public interest standing at para. 28: [28] The decision to grant or deny public interest standing is discretionary ( Downtown Eastside , at para. 20). In exercising its discretion, a court must cumulatively assess and weigh three factors purposively and with regard to the circumstances. These factors are: (

i) whether the case raises a serious justiciable issue, (ii) whether the party bringing the action has a genuine interest in the matter, and (iii) whether the proposed suit is a reasonable and effective means of bringing the case to court [.] [Emphasis added.] [ 18 ] In the circumstances of this case, I cannot conclude that the Forum has met the requirements to establish its right to public interest standing. The Chief Judge had no choice but to transfer the affected judges once the decision was made to close the courthouses.

This decision to transfer the judges, which is within the Chief Judge’s authority, was his only option in the circumstances. If the Forum is successful or for other reasons the Minister reconsiders the decision to close the courthouses, the Chief Judge may also need to reconsider the location of the different members of his court. In the meantime, the Chief Judge must work with the current reality. [ 19 ] The case does not raise a serious justiciable issue. The party bringing the action may have a genuine interest in the closure of the courthouses but not in the transfer of the judges.

The application is not a reasonable means to bring the issue of the judicial transfers to the Court. [ 20 ] The Forum contends that the Chief Judge’s motion is premature. It points to the fact that the Chief Judge has not filed an answer to the application. The Forum suggests that on the face of the record before the Court, there is a cause of action. It submits that the application for judicial review is based in part on issues of unlawful delegation of authority and decisions made at the behest of third parties.

According to the Forum, all these issues cannot be assessed until the decision makers’ records are filed in response to the application. [ 21 ] I am not convinced by the Forum’s submissions. There is no doubt that the Chief Judge plays no role in the closing or opening of courthouses. This undeniable fact will not change. Pursuant to Rule 23.01(a)(i), there are no adequate grounds for relief against the Chief Judge. [ 22 ] The parties raised a number of legal issues in their briefs as well as during oral argument.

Many of the issues raised, such as judicial immunity under s. 3.1 of the Act , and whether the application is vexatious or an abuse of process under Rule 27.09, do not need to be decided in the context of this motion. CONCLUSION AND DISPOSITION [ 23 ] For the foregoing reasons, the Court orders that: (

i) The Chief Judge’s motion is granted; (ii) The Chief Judge’s involvement in this application is struck out and the style of cause is amended accordingly; (iii) The application against the Chief Judge is dismissed pursuant to Rule 23.01 as the application discloses no reasonable cause of action; and (iv) The Chief Judge is entitled to costs in the amount of $1,000.00 payable by the Forum. DATED at Moncton, New Brunswick, this 22nd day of September 2022. _______________________________________ Tracey K. DeWare, Chief Justice of the Court of King’s Bench of New Brunswick