2014 FC 299, 2014 FC 299

T-1567-12 2014 FC 299 The Honourable Lori Douglas ( Applicant ) v. The Attorney General of Canada ( Respondent ) and The Canadian Judicial Council and the Independent Counsel to the Canadian Judicial Council and the Canadian Superior Court Judges Association ( Interveners ) Indexed as: Douglas v. Canada (Attorney General) Federal Court, Mosley J.—Ottawa, November 27, 28 and 29, 2013 and March 28, 2014.

Judges and Courts — Judicial review of Canadian Judicial Council (CJC) assertion of solicitor-client relationship with independent counsel appointed to present case to Inquiry Committee; motion for directions pursuant to Federal Courts Rules , r. 318 in relation to applicant’s request for production of certain correspondence — Inquiry Committee constituted under Judges Act , s. 63(3) , Canadian Judicial Council Inquiries and Investigations By-laws (By-laws), s. 1.1(3) to inquire into conduct of applicant, federally appointed judge — Controversy arising over manner in which Committee counsel cross-examining witnesses — Applicant seeking disclosure of communications between independent counsel, CJC — That request refused by CJC — Whether Inquiry Committee subject to judicial review — Whether application premature — Whether CJC’s assertion of solicitor-client relationship giving rise to reasonable apprehension of institutional bias — Definition of “federal board, commission or other tribunal” in Federal Courts Act , s. 2(1) central to Court’s exercise of jurisdiction — Members of CJC, Inquiry Committee not sitting as Constitution Act, 1867 s. 96 judges when exercising authorities vested under Judges Act — Rather, acting as members of administrative tribunal, subject to judicial review — Judges Act, s. 63(4) not ousting Court’s jurisdiction — Statutory tribunals not immunized from review — Availability of judicial review consistent with Parliament’s objective in creating CJC, judicial conduct process — Application not premature — Concern over role of independent counsel important — Applicant exhausting all available administrative remedies before bringing issue of institutional bias before Court — Exceptional circumstance warranting determination of application before completion of inquiry — Solicitor-client relationship not established between CJC, independent counsel — Role of independent counsel, arms’ length from CJC, Inquiry Committee, inconsistent with such relationship — Correspondence at issue ordered released to parties, placed on public file — Duty to comply with rules of natural justice, to follow rules of procedural fairness, extending to all administrative bodies acting under statutory authority — Even if allegation of attempting to dissuade independent counsel from proceeding with application for judicial review true, substantiated, not establishing reasonable apprehension of bias absent evidence of attempt to interfere with impartial presentation of evidence — Applicant not establishing institutional bias — Motion granted, correspondence at issue ordered released to parties; application dismissed.

Federal Court Jurisdiction — Canadian Judicial Council (CJC) asserting solicitor-client relationship with independent counsel appointed to present case to Inquiry Committee — Inquiry Committee constituted under Judges Act , s. 63(3) , Canadian Judicial Council Inquiries and Investigations By-laws (By-laws), s. 1.1(3) to inquire into conduct of applicant, federally appointed judge — Controversy arising over manner in which Committee counsel cross-examining witnesses — Applicant seeking disclosure of communications between independent counsel, CJC — That request refused by CJC — Whether Inquiry Committee subject to judicial review — Definition of “federal board, commission or other tribunal” in Federal Courts Act , s. 2(1) central to Court’s exercise of jurisdiction — Members of CJC, Inquiry Committee not sitting as Constitution Act, 1867, s. 96 judges when exercising authorities vested under Judges Act — Rather, acting as members of administrative tribunal, subject to judicial review — Judges Act, s. 63(4) not ousting Court’s jurisdiction — Statutory tribunals not immunized from review — Availability of judicial review consistent with Parliament’s objective in creating CJC, judicial conduct process.

Practice — Privilege — Canadian Judicial Council (CJC) asserting solicitor-client relationship with independent counsel appointed to present case to Inquiry Committee — Inquiry Committee constituted under Judges Act , s. 63(3) , Canadian Judicial Council Inquiries and Investigations By-laws (By-laws), s. 1.1(3) to inquire into conduct of applicant, federally appointed judge — Controversy arising over manner in which Committee counsel cross-examining witnesses — Applicant seeking disclosure of communications between independent counsel, CJC — That request refused by CJC — Whether CJC’s assertion of solicitor-client relationship giving rise to reasonable apprehension of institutional bias — Solicitor-client relationship not established between CJC, independent counsel — Role of independent counsel, arms’ length from CJC, Inquiry Committee, inconsistent with such relationship — Correspondence at issue ordered released to parties, placed on public file — Duty to comply with rules of natural justice, to follow rules of procedural fairness, extending to all administrative bodies acting under statutory authority — Even if allegation of attempting to dissuade independent counsel from proceeding with application for judicial review true, substantiated, not establishing reasonable apprehension of bias absent evidence of attempt to interfere with impartial presentation of evidence — Applicant not establishing institutional bias.

This was an application for judicial review of the Canadian Judicial Council’s assertion of a solicitor-client relationship with the independent counsel appointed to present the case to the Inquiry Committee constituted under subsection 63(3) of the Judges Act and subsection 1.1(3) of the Canadian Judicial Council Inquiries and Investigations By-laws (By-laws) to inquire into the conduct of the applicant, a federally appointed judge. The applicant also brought a motion for directions pursuant to rule 318 of the Federal Courts Rules in relation to her request for production of certain correspondence.

Parliament established the CJC through amendments to the Judges Act . The CJC is empowered to investigate complaints against federally appointed judges. The Council may make by-laws respecting the conduct of inquiries and investigation described in

section 63 of the Judges Act . It has done so in the form of the By-laws. In addition, the CJC has promulgated policies and procedures regarding the

conduct of investigations and inquiries. Together, the Judges Act , the By-laws, and the related policies and procedures establish a multi- stage investigation process for matters initiated by a complaint about a judge’s conduct. If the matter is serious enough, it is referred to an Inquiry Committee consisting of two or three members of the CJC appointed by the Chair or Vice-Chair of the Judicial Conduct Committee and one or two members of a provincial Bar appointed by the Minister.

The Judicial Conduct Committee is a committee constituted by the CJC and is responsible for managing all judicial conduct matters brought to the attention of the CJC, and for overseeing the investigation and inquiry. If needed, the Chair or Vice-Chair of the Judicial Conduct Committee appoints the judicial members of an Inquiry Committee, and if needed, independent counsel to present the case to the Inquiry Committee. The Policy on independent counsel sets out the “central purpose” for appointing independent counsel to act at “arm’s length” from the CJC and the Inquiry Committee.

The Policy states that the role of independent counsel is unique in that, once appointed, independent counsel do “not act pursuant to the instructions of any client” but rather in “accordance with the law and counsel’s best judgment of what is required in the public interest”. The applicant was appointed as a judge of the Family Division of the Manitoba Court of Queen’s Bench in 2005, and Associate Chief Justice of the Family Division in 2009. In 2010, a former client of the applicant’s husband submitted a complaint to the CJC alleging sexual harassment and discrimination by the applicant and her husband.

It was determined that an Inquiry Committee should be constituted pursuant to subsection 63(3) of the Judges Act , and subsection 1.1(3) of the By-Laws, to inquire into the applicant’s conduct. The independent counsel and the Inquiry Committee members were appointed by Chief Justice Wittmann. The Inquiry Committee appointed its own counsel to assist it with the proceedings. According to the Policy on Inquiry Committees, Committee counsel was not to participate actively in the hearings. His role, according to the policy, was to assist the Inquiry Committee with its rulings and with writing its report.

The Inquiry Committee sought and received submissions from the independent counsel and applicant’s counsel as to the manner in which to proceed with disclosure of the allegations and the role of independent counsel in the inquiry process. The Committee issued an extensive ruling, concluding that the process was inquisitorial in nature and that the independent counsel “does not act in the usual way of a solicitor receiving instructions from a client” and had no mandate beyond presenting the case against the judge and making related submissions on law and procedure.

The Committee determined, after the hearing of evidence commenced, that it would be more efficient for the Committee counsel to ask follow-up questions of the witnesses rather than the Committee members themselves. Controversy arose thereafter over the manner in which the Committee counsel cross-examined the witnesses. It was considered by independent counsel and the applicant to be too aggressive, outside the scope of the role of the Committee counsel and potentially unfair to the applicant.

The applicant brought a motion for the recusal of the Inquiry Committee alleging that the fact and manner of Committee counsel’s questioning raised a reasonable apprehension of bias against her. Independent counsel also formally objected to Committee counsel questioning witnesses on the grounds that it was contrary to the CJC’s By-laws and Policies and that it created a risk of an appearance of bias. The Inquiry Committee dismissed the motion for recusal and shortly thereafter independent counsel tendered his resignation to the CJC. This followed an exchange of correspondence between independent counsel and Mr.

Normand Sabourin, the Council’s Executive Director and Senior General Counsel. Counsel for the applicant requested a copy of the resignation letter and any related communications pursuant to rule 317 of the Federal Courts Rules . After this request was refused, the applicant brought a motion for directions pursuant to rule 318 of the Federal Courts Rules in relation to its request for production of the correspondence. Mr.

Sabourin replied that all the communications requested were between himself, on behalf of the Vice-Chair, and independent counsel and that since they were not in the possession of the tribunal, whose order was subject to judicial review, and as they were irrelevant to the Inquiry Committee’s decisions, rules 317 and 318 of the Federal Courts Rules were not applicable. Moreover, Mr. Sabourin wrote, the communications were subject to solicitor-client privilege, as asserted by the Vice-Chair of the Judicial Conduct Committee on behalf of the CJC. On this basis, Mr.

Sabourin refused to disclose the requested communications. Chief Justice Wittmann appointed a new independent counsel to the Inquiry Committee who took no steps in furtherance of the former independent counsel’s application for judicial review and, as he was no longer in a position to maintain it, the application was ultimately dismissed for delay. The applicant’s motion for a stay of the proceedings before the Inquiry Committee pending the determination of her application for judicial review was granted.

The applicant brought a motion for directions pursuant to rule 318 of the Federal Courts Rules in relation to its request for production of the Sabourin-independent counsel correspondence. The Prothonotary dismissed the CJC’s objections to the applicant’s request for disclosure. She also found that the CJC’s assertion of a solicitor-client relationship with the independent counsel was a “decision” within the meaning of rule 317 , that the communications respecting that decision constituted the record of the decision, and that they were therefore amenable to disclosure, subject to the question of privilege.

The Inquiry Committee resigned prior to the hearing of the application. As a result, the issues relating to the Inquiry Committee ruling became moot and what remained to be determined were the applicant’s requests for declaratory relief with respect to the CJC’s assertion of a solicitor-client relationship with the independent counsel. Preliminary questions were raised by the CJC relating to the jurisdiction of the Court to consider the application and, should jurisdiction be established, as to whether the application was premature.

The principal issues were (1) whether the Inquiry Committee and the Council are subject to judicial review as a federal administrative tribunal when conducting investigations and inquiries under the Judges Act; (2) whether the application for judicial review was premature; and (3) whether the CJC’s assertion of a solicitor-client relationship with independent counsel gave rise to a reasonable apprehension of institutional bias. Held , the motion for directions under rule 318 of the Federal Courts Rules should be granted and the correspondence at issue released to the parties; the application should be dismissed.

(1) Are the Inquiry Committee and the Council subject to judicial review as a federal administrative tribunal when conducting

investigations and inquiries under the Judges Act? Central to the exercise of the Court’s jurisdiction is the definition of “federal board, commission or other tribunal” found in subsection 2(1) of the Federal Courts Act . The

section 2 definition has been described by the Supreme Court of Canada as “sweeping” and going “well beyond what are usually thought of as ‘boards and commissions’”. To fall within the scope of the definition, a body need only exercise or purport to exercise jurisdiction or powers conferred under

an Act of Parliament or under an order made pursuant to a Crown prerogative. It was indisputable that the CJC and its Inquiry Committees are creatures of a federal statute, the Judges Act , and the source of their authority was clearly that federal legislation. The individual members of those bodies did not carry out their assigned function as judges appointed under

section 96 of the Constitution Act, 1867 (

section 96 judges), and did not therefore fall within the specific exclusion of

section 96 judges in the definition. The fact that the CJC bodies are comprised of persons who are, for the most part,

section 96 judges does not alter the status of these bodies. They exist as statutory entities solely because they were created by the Judges Act and not because of any inherent jurisdiction related to the judicial status of the members. Similarly, members of the CJC and its Inquiry Committees did not sit as judges when they were exercising the authorities vested upon the Council under the Judges Act . They were acting as members of administrative tribunals conducting “an investigation or inquiry” and exercising an exceptional jurisdiction unrelated to their ordinary capacities.

As the primary determinant of whether a body is a “federal board, commission or other tribunal” is the source of the authority and not the nature of the body exercising the authority, inclusion within the scope of the definition does not thereby make the body part of the executive branch of government.

The CJC’s inclusion in the definition of “federal board, commission or other tribunal” did not imply that it is part of the Executive and its role in judicial conduct matters was not inconsistent with being a “federal board, commission or other tribunal” subject to the judicial review jurisdiction of the Federal Courts. There was no ambiguity with respect to whether the Council or Inquiry Committee are “federal board[s], commission[s] or tribunal[s]” for the purposes of

section 18 of the Federal Courts Act when the terms of subsection 63(4) of the Judges Act are read in the broader legislative context. The provision “deems” these bodies to be superior courts in making inquiries or investigations but does not create them as superior courts under

section 101 of the Constitution Act, 1867 . Nor does the provision expressly oust the jurisdiction of the Court. The inclusion of one or two members of the Bar, in addition to the judicial members, also undermined the CJC’s position that Parliament’s intent was to make the Committees operate as part of the judiciary. The inclusion of representatives of the Bar provided an opportunity for participation by the public, albeit a specialized public, in the discipline process but it was difficult to see how this supports the view that it is a judicial function.

That is not to say that Inquiry Committees comprised of judicial and non-judicial members have lacked independence from the executive and legislature in carrying out their functions in the past. Rather, they have carried out their duties independently as administrative tribunals, not as superior courts. It was an unfounded leap of logic to assert that the “necessary consequence” of the deeming provision is that the supervisory jurisdiction of the Court is ousted. It does not follow that ensuring independence requires that Committee and Council decisions be immune from judicial review.

Parliament chose to “vest” the CJC with the powers of a superior court without transforming it into a court. Immunizing the Council’s decisions from review offends the principle that all holders of public power should be accountable for their exercises of power. Where the issue arising from an impugned decision goes to a breach of procedural fairness, the decision-making body may be deprived of jurisdiction. Statutory tribunals cannot be immunized from review of such errors.

The clear parliamentary intent reflected in the Federal Courts Act is that all persons and bodies empowered by federal statutes are subject to judicial review by a court familiar with the federal legal context, unless expressly exempted by law. Before a judge can be removed from office, he or she is entitled to a fair hearing. This fair hearing is essential not only as a matter of administrative law, but as a component of the constitutional requirement for judicial security of tenure.

The supervisory jurisdiction of the Court over the Council and its Inquiry Committee serves an important function in the public interest of ensuring that the judicial conduct proceedings have been fair and in accordance with the law. That function is entirely consistent with Parliament’s intent as reflected in the legislation. Parliament cannot be understood as having intended to remove all recourse to the courts from the person most directly affected through a “deeming” provision such as subsection 63(4).

Such a fundamental departure from the principle that bodies exercising statutory powers are subject to judicial review should only be done deliberately and through an explicit legislative statement. The availability of judicial review is consistent with Parliament’s objective in creating the CJC and the judicial conduct process—to devolve the inquiry and review process to the judicial branch without removing Parliament’s ultimate power to remove a judge.

(2) Was the application for judicial review premature? The general rule is that parties may proceed to the courts to seek judicial review of a decision only after they have pursued all adequate remedies available to them in the administrative law process. There must be exceptional circumstances to justify the exercise of discretion to allow the judicial review to proceed. This principle extends to concerns about procedural fairness or bias. A determination of bias at the interlocutory stage runs the risk of proliferating litigation unduly. Here, the application was not premature. Given Mr.

Pratte’s resignation shortly after he had filed a separate application for judicial review, the applicant was correct to pursue her efforts to determine what had occurred. In doing so, she exhausted all available administrative remedies before bringing the issue of institutional bias before the Court. The response of the CJC was to assert a solicitor- client relationship, claim privilege and withhold its communications with the independent counsel. It was difficult to understand how the applicant could then have obtained a ruling on the issue from Chief Justice Wittmann.

Nor would it have been appropriate for the applicant to seek a ruling on the issue from the Inquiry Committee as that body had no authority to rule on decisions made by the Vice- Chair, and was a delegate of the Council with a limited and specific purpose. There were other exceptional circumstances that warranted a determination on the application before the inquiry was completed. The

proceedings of the Inquiry Committee and before the Court resulted in lengthy delays during which the applicant was suspended from the active performance of her duties as a superior court judge and the applicant was at risk of losing that constitutionally protected status. The considerable judicial resources that have been expended in dealing with the application and related motions would have been wasted if the matter did not proceed to a conclusion.

(3) Did the CJC’s assertion of a solicitor-client relationship with independent counsel give rise to a reasonable apprehension of institutional bias? It was clear from the record that the independent counsel accepted the mandate to serve as such before the Inquiry Committee, not as a lawyer for the Vice-Chair of the JCC, but under the terms set out in the CJC By-laws and Policy.

The content of the CJC By-laws and Policy statements that relate to the role of the independent counsel reflected the intent to carve out a position at arms-length from both the CJC and the Inquiry Committee to ensure fairness in the presentation of the evidence to the Committee. In that role, independent counsel had no client. That role was inconsistent with the creation of a solicitor-client relationship if the letter and spirit of the By-laws and Policies were to have any real meaning. No solicitor-client relationship was established between the CJC and the independent counsel in the course of his appointment.

However, even if such a relationship had been created, the communications pertaining to the independent counsel’s appointment and resignation were not privileged. Legal advice privilege attaches to communications between solicitors and clients for the purpose of obtaining or giving legal advice. The letter from Mr. Sabourin to independent counsel was the best evidence of the nature of the relationship between the Council and the independent counsel. There was no indication in the letter that the independent counsel was to provide legal advice to the CJC, to the Vice-Chair of the JCC or to Mr. Sabourin.

This role was presented to the independent counsel as a duty undertaken in the public interest. Any evidence that attempted to “add a gloss on, modify or supplant” the terms of appointment was to be considered with caution. The mere fact that a lawyer is appointed to perform a legal function is not sufficient to establish either of these requirements. The communications between Messrs. Sabourin and Pratte relating to his appointment and resignation were not subject to solicitor-client privilege. It was therefore ordered, under rule 318 of the Federal Courts Rules , that the correspondence between Messrs.

Sabourin and Pratte in the sealed packet be released to the parties and be placed on the public file. The subject of a judicial conduct proceeding is deserving of a high degree of fairness. The duty to comply with the rules of natural justice and to follow rules of procedural fairness extends to all administrative bodies acting under statutory authority.

Taking the applicant’s allegations at their highest, what the applicant believe occurred in this instance was an attempt to dissuade independent counsel from proceeding with an application for judicial review with respect to the Inquiry Committee’s procedural rulings. Even if that allegation was true and could have been substantiated, it would not have established a reasonable apprehension of bias on the part of the decision maker unless there had been evidence of an attempt to interfere with the impartial presentation of the evidence to the Inquiry Committee.

Where independent counsel believes that the Committee has erred in the procedures it has adopted or in its rulings on evidentiary matters, his or her responsibility is to place those concerns on the inquiry record. It would then be open to the judge who is the subject of the inquiry or any other person affected to seek judicial review if they considered it necessary to address the concerns. There was no suggestion in these proceedings that the Vice-Chair of the JCC, or anyone else from the CJC interfered with Mr. Pratte’s presentation of evidence and submissions to the Inquiry Committee.

The applicant did not established that a well-informed person viewing the matter realistically and practically, and having thought the matter through, would conclude that the Vice-Chair of the JCC had demonstrated bias in asserting a solicitor-client relationship or would do so in a substantial number of cases. STATUTES AND REGULATIONS CITED Canada Labour Code , R.S.C., 1985, c. L-2, s. 58. Canadian Judicial Council Inquiries and Investigations By-laws , SOR/2002-371, ss. 1 “Judicial Conduct Committee”, 1.1, 2(1),(1.1),(2), 3, 8, 10.1, 13.

Constitution Act, 1867 , 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982 , 1982, c. 11 (U.K.),

Schedule to the Constitution Act, 1982 , Item 1) [R.S.C., 1985, Appendix II, No. 5], ss. 96 , 99, 101 . Courts Administration Service Act , S.C. 2002, c. 8. Federal Court Act , R.S.C. 1970, (2nd Supp.), c. 10, ss. 18, 28. Federal Court Act , R.S.C., 1985, c. F-7, s. 2 “federal board, commission or other tribunal” (as am. by S.C. 1990, c. 8, s. 1). Federal Courts Act , R.S.C., 1985, c. F-7, ss. 2 “federal board, commission or other tribunal”, 3, 4, 18, 18.1, 28. Federal Courts Rules , SOR/98-106, rr. 303(2),(3), 317, 318. Judges Act , R.S.C., 1985, c. J-1, ss. 60, 61(1) , 62 , 63 , 65 .

Parliament of Canada Act , R.S.C., 1985, c. P-1. Professional Code , R.S.Q., c. C-26. Supreme Court Act , R.S.C., 1985, c. S-26. Tax Court of Canada Act , R.S.C., 1985, c. T-2. CASES CITED applied :

Anisman v. Canada (Border Services Agency), 2010 FCA 52, 400 N.R. 137; Slansky v. Canada (Attorney General), 2011 FC 1467,[2013] 3 F.C.R. 558, affd 2013 FCA 199, 364 D.L.R. (4th) 112, leave to appeal to S.C.C. refused [2014] 1 S.C.R. xii; Air Canada v.Lorenz, (FC), [2000] 1 F.C. 494, 175 F.T.R. 211 (T.D.); Committee for Justice and Liberty et al. v. National EnergyBoard et al., (SCC), [1978] 1 S.C.R. 369, (1976), 68 D.L.R. (3d) 716. distinguished: Minister of Indian Affairs and Northern Development v. Ranville et al., (SCC), [1982] 2 S.C.R. 518, (1982), 139D.L.R. (3d) 1. considered: Cosgrove v.

Canadian Judicial Council, 2005 FC 1454, [2006] 1 F.C.R. 327, revd 2007 FCA 103, [2007] 4 F.C.R. 714, leave to appealto S.C.C. refused [2007] 3 S.C.R. x; Douglas v. Canada (Attorney General), 2013 FC 451, [2014] 4 F.C.R. 494; Douglas v. Canada(Attorney General), 2013 FC 776; Douglas v. Canada (Attorney General) (September 13, 2013), T-1567-12 (F.C.); Moreau-Bérubé v.New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249; Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62,[2010] 3 S.C.R. 585; Canada (Attorney General) v.

Canada (Commissioner of the Inquiry on the Blood System), (FCA), [1997] 2 F.C. 36, (1997), 142 D.L.R. (4th) 237 (C.A.); Taylor v. Canada (Attorney General), 2001 FCT 1247, [2002] 3 F.C. 91,affd 2003 FCA 55, [2003] 3 F.C. 3, leave to appeal to S.C.C. refused [2003] 2 S.C.R. xi; MacKeigan v. Hickman, (SCC), [1989] 2 S.C.R. 796, (1989), 94 N.S.R. (2d) 1; R. v. Verrette, (SCC), [1978] 2 S.C.R. 838, (1978), 85 D.L.R.(3d) 1; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Sztern v. Deslongchamps, 2008 FC 285, 80 Admin. L.R. (4th)147; R. v.

S. (R.D.), (SCC), [1997] 3 S.C.R. 484, (1997), 161 N.S.R. (2d) 241; Newfoundland Telephone Co. v.Newfoundland (Board of Commissioners of Public Utilities), (SCC), [1992] 1 S.C.R. 623, (1992), 95 Nfld. & P.E.I.R.271; 2747-3174 Québec Inc. v. Quebec (Régie des permis d’alcool), (SCC), [1996] 3 S.C.R. 919; Blank v. Canada(Minister of Justice), 2006 SCC 39, [2006] 2 S.C.R. 319; Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008SCC 44, [2008] 2 S.C.R. 574; R. v. Campbell, (SCC), [1999] 1 S.C.R. 565, (1999), 171 D.L.R. (4th) 193. referred to: Borowski v.

Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342, (1989), 57 D.L.R. (4th) 231; Black v. AdvisoryCouncil for the Order of Canada, 2012 FC 1234, 46 Admin. L.R. (5th) 1; affd 2013 FCA 267, 64 Admin. L.R. (5th) 76; Toronto (City) v.C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’Association, 2011 SCC 61, [2011] 3 S.C.R. 654; Gagliano v. Canada (Commission of Inquiry into the Sponsorship Program andAdvertising Activities), 2008 FC 981, 88 Admin. L.R. (4th) 157; Canadian College of Business and Computers Inc. v.

Ontario (PrivateCareer Colleges Act), 2010 ONCA 856, 17 Admin. L.R. (5th) 245; Ermineskin First Nation v. Minde, 2008 FCA 52, 372 N.R. 268; Jockv. Canada (Minister of Indian & Northern Affairs), (FC), [1991] 2 F.C. 355 (T.D.); Onuschak v. Canadian Society ofImmigration, 2009 FC 1135, 5 Admin. L.R. (5th) 214; Gratton v. Canadian Judicial Council, (FC), [1994] 2 F.C.769, (1994), 115 D.L.R. (4th) 81 (T.D.); Cosgrove v. Canada (Attorney General), 2008 FC 941, 331 F.T.R. 271; Akladyous v. CanadianJudicial Council, 2008 FC 50, 325 F.T.R. 240; Conacher v.

Canada (Prime Minister), 2010 FCA 131, [2011] 4 F.C.R. 22; A.Y.S.A.Amateur Youth Soccer Association v. Canada (Revenue Agency), 2007 SCC 42, [2007] 3 S.C.R. 217; Corbett v. Canada, (FCA), [1997] 1 F.C. 386, [1997] 1 C.T.C. 2 (C.A.); Re Diamond and The Ontario Municipal Board, (ON CA),[1962] O.R. 328 (C.A.); Crevier v. Attorney General of Quebec et al., (SCC), [1981] 2 S.C.R. 220, (1981), 127 D.L.R.(3d) 1; Shubenacadie Indian Band v. Canada (Canadian Human Rights Commission), (FC), [1998] 2 F.C. 198,(1997), 154 D.L.R. (4th) 344 (T.D.); Valente v.

The Queen et al., (SCC), [1985] 2 S.C.R. 673, (1985), 24 D.L.R. (4th)161; C.B. Powell Limited v. Canada (Border Services Agency), 2010 FCA 61, [2011] 2 F.C.R. 332; Belize Bank Ltd. v. Attorney General,[2011] UKPC 36; Zündel v. Citron, (FCA), [2000] 4 F.C. 225 (C.A.), leave to appeal to S.C.C. refused, [2000] 2S.C.R. xv; Foster Wheeler Power Co. v. Société intermunicipale de gestion et d’élimination des déchets (SIGED) Inc., 2004 SCC 18,[2004] 1 S.C.R. 456; Maranda v. Richer, 2003 SCC 67, [2003] 3 S.C.R. 193; Lim et al. v. P.E.O., 2011 ONSC 106, (2011), 23 Admin.L.R. (5th) 77 (Div. Ct.); Van Rassel v.

Canada (Superintendent of the Royal Canadian Mounted Police), (FC), [1987]1 F.C. 473, (1986) 3 C.C.C. (3d) 10 (T.D.); M. v. H., , 27 O.R. (3d) 593 (Gen. Div.); Lavigne and Ontario PublicService Employees Union et al (No. 2), Re (1987), (ON SC), 60 O.R. (2d) 486, 41 D.L.R. (4th) 86 (H.C.J.), revd subnom. Lavigne v. O.P.S.E.U., , 67 O.R. (2d) 536 (C.A.), affd (SCC), [1991] 2 S.C.R. 211, (1991), 81D.L.R. (4th) 545. AUTHORS CITED Canada. House of Commons. Standing Committee on Justice and Legal Affairs. Minutes of Proceedings and Evidence, Issue No. 27(June 16, 1971). Canadian Judicial Council.

CJC Policies regarding Inquiries, online : <https://www.cjc-ccm.gc.ca/cmslib/general/CJC-Policies-conduct-2010.pdf>. Canadian Judicial Council. Inquiry Committee’s decision on preliminary issues in the case of Mr. Justice Robert Flahiff of the SuperiorCourt of Quebec (April 1999). Canadian Judicial Council. Inquiry Committee’s decision regarding its jurisdiction to conduct an inquiry about Mr. Justice Gratton ofthe Ontario Court of Justice (February 1994). Canadian Judicial Council. Ruling of the Inquiry Committee concerning the Hon. Lori Douglas with respect to certain PreliminaryIssues (May 15, 2012).

Canadian Judicial Council. Ruling of the Inquiry Committee concerning the Hon. Lori Douglas with respect to the motion to disqualifyall members of the Inquiry Committee on the basis of alleged reasonable apprehension of bias (August 20, 2012).

Procedures for Dealing with Complaints made to the Canadian Judicial Council about Federally Appointed Judges : “ComplaintsProcedures”. Approved by the Canadian Judicial Council, effective 14 October 2010. Ruth Sullivan. Statutory

Interpretation, 2nd ed, Toronto: Irwin Law, 2007. APPLICATION for judicial review of the Canadian Judicial Council’s assertion of a solicitor-client relationship with the independentcounsel appointed to present the case to the Inquiry Committee constituted to inquire into conduct of the applicant, a federally appointedjudge. Application dismissed. MOTION for directions pursuant to rule 318 of the Federal Courts Rules in relation to a request by the applicant for production ofcertain correspondence. Motion granted, correspondence at issue ordered released to the parties.

APPEARANCES Sheila Block and Molly Reynolds for applicant. Catherine A. Lawrence and Zoe Oxaal for respondent Attorney General of Canada. Suzanne Côté and Alexandre Fallon for intervener Independent Counsel to the Canadian Judicial Council. Paul J.J. Cavalluzzo, Freya Krisjanson and Adrienne Telford for intervener Canadian Judicial Council. Chris Paliare and Richard P. Stephenson for intervener Canadian Superior Court Judges Association. SOLICITORS OF RECORD Sheila Block, Ottawa and Molly Reynolds, Ottawa, for applicant. Deputy Attorney General of Canada for respondent Attorney General of Canada.

Suzanne Côté, Montréal and Alexandre Fallon, Montréal, for intervener Independent Counsel to the Canadian Judicial Council. Paul J.J. Cavalluzzo, Ottawa, Freya Kristjanson, Ottawa and Adrienne Telford, Ottawa, for intervener Canadian Judicial Council. Chris Paliare, Toronto and Richard P. Stephenson, Toronto, for intervener Canadian Superior Court Judges Association. The following are the reasons for judgment and judgment rendered in English by Mosley J.: INTRODUCTION [1] This is an application for judicial review pursuant to

section 18.1 of the Federal Courts Act, R.S.C., 1985, c. F-7 (the FederalCourts Act). As initially filed, the application sought review of a July 27, 2012 ruling by an Inquiry Committee of the Canadian JudicialCouncil (CJC) constituted to investigate the conduct of the Honourable Lori Douglas, Associate Chief Justice of the Court of Queen’sBench of Manitoba (Douglas ACJ).

The notice of application was subsequently amended to additionally seek judicial review of theCJC’s assertion of a solicitor-client relationship with the independent counsel appointed to present the case to the Inquiry Committee, onthe basis that the assertion gave rise to a reasonable apprehension of institutional bias. [2] The week prior to the hearing of this application, the Inquiry Committee resigned. As a result, the issues relating solely to theInquiry Committee ruling became moot.

The parties have not asked the Court to exercise its discretion to consider those issues,notwithstanding that they had become moot, applying the principles set out in Borowski v. Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342. What remains to be determined are the applicant’s requests for declaratory relief with respect to the CJC’sassertion of a solicitor-client relationship with the independent counsel, and for an order of prohibition against the CJC from continuingthe proceedings in their current form.

Preliminary questions have been raised by the CJC relating to the jurisdiction of this Court toconsider the application and, should jurisdiction be established, as to whether the application is premature. [3] For the reasons that follow, I find that the Court has jurisdiction to consider the application and that the application is notpremature. However, I find that institutional bias is not made out and, accordingly, the application for judicial review is dismissed. Table of Contents Paragraph Background 4 Issues 64 Applicable Legislation 68 Standard of Review 69 Arguments and Analysis 72

(1) Are the Inquiry Committee and Council, when conducting investigations and inquiries under the Judges Act, subject tojudicial review as federal administrative tribunals? 72

(2) Is the application for judicial review premature? 127

(3) Does the CJC’s assertion of a solicitor-client relationship with independent counsel give rise to a reasonableapprehension of institutional bias? 148

Judgment 205 Annex 206 BACKGROUND The Statutory Framework Governing the Removal of a Judge [4] Subsection 99(1) of the Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) [as am. by Canada Act 1982, 1982, c. 11 (U.K.),Schedule to the Constitution Act, 1982, Item 1], reprinted in R.S.C., 1985, Appendix II, No. 5 (the Constitution Act, 1867), provides thatfederally appointed judges shall be removable by the Governor General on address of the Senate and House of Commons. [5] In 1971, Parliament established the CJC through amendments to the Judges Act, R.S.C., 1985, c. J-1 (the Judges Act).

Amongother things, the amendments empowered the Council to investigate complaints against federally appointed judges. Prior to the 1971legislation, judicial discipline inquiries were directly in the hands of the Senate and House of Commons. The Parliamentary bodies wereconsidered by many to be ill-equipped to conduct such investigations. In particular, this presented challenges to ensuring proceduralfairness.

The creation of a federal statutory body (the CJC) was intended, in part, to cure the problem, as was discussed in Cosgrove v.Canadian Judicial Council, 2007 FCA 103, [2007] 4 F.C.R. 714 (Cosgrove F.C.A.), at paragraphs 44, 45 and 48: The Constitution Act, 1867, does not establish guidelines for the procedure to be followed, or the principles to be applied, when theSenate and House of Commons are asked to consider whether the conduct of a judge warrants removal.

It is generally accepted that theMinister is responsible for presenting the question to the Senate and the House of Commons, but it seems that on those rare occasionswhen judicial conduct was in issue, the procedural details were devised on an ad hoc basis. (ii) Historical context of

Part II of the Judges Act The absence of procedural and substantive guidance created significant problems in the late 1960s in a case involving Justice LéoLandreville: see Landreville v. The Queen, [1973] F.C. 1223 (T.D.) (Landreville No. 1); Landreville v. The Queen, (FC), [1977] 2 F.C. 726 (T.D.) (Landreville No. 2); Landreville v. R., (FC), [1981] 1 F.C. 15 (T.D.) (Landreville No.3); Martin L. Friedland, A Place Apart: Judicial Independence and Accountability in Canada (Ottawa: Canadian Judicial Council, 1995),at page 88; and William Kaplan, Bad Judgment: The Case of Mr. Justice Leo A.

Landreville (Toronto: University of Toronto Press,1996). The experience of that case led the Minister in 1971 to propose the enactment of what is now

Part II of the Judges Act…. … Many criticisms may be made about the procedure followed in the Landreville case, but it seems to me that the root of the problem wasthe lack of a fair and properly focused procedure for investigating complaints about the conduct of judges of the superior courts. Thesolution involved the enactment, in 1971, of

Part II of the Judges Act. As stated above, those provisions established the Council andempowered the Council to conduct investigations into judicial conduct and to report its recommendations to Parliament. [6] The changes to the Judges Act were enacted in the year following passage of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c.10 (the Federal Court Act), now the Federal Courts Act. The Federal Court Act, among other things, transferred responsibility forjudicial review of federal administrative tribunals from the provincial superior courts to the Federal Court of Canada, as it was thenstyled.

The Federal Court Act and the amended Judges Act were both brought into effect on August 1, 1972. Thirty years later, theFederal Court, as a separate entity from the Federal Court of Appeal, was continued as a superior court of record having civil andcriminal jurisdiction by the Courts Administration Service Act, S.C. 2002, c. 8. [7] The objects of the CJC are set out in subsection 60(1) of the Judges Act. They are to promote efficiency and uniformity, and toimprove the quality of judicial services in the superior courts.

Subsection 60(2) of the Judges Act sets out that in furtherance of theseobjects, the CJC may, among other things, make the inquiries and investigation of complaints or allegations concerning judges describedin

section 63 of the Judges Act. [8]

Section 63 of the Judges Act sets out two circumstances in which the CJC may make inquiries or investigations into the conductof a federally appointed judge. First, under subsection 63(1), the Minister of Justice (the Minister) or the attorney general of a provincecan initiate an inquiry as to whether a judge of a superior court should be removed from office for the reasons set out in paragraphs 65(2)(

a) to (d). These reasons include, as provided at paragraph 65(2)(d), a judge having been placed, due to their conduct, in a positionincompatible with the due execution of the office. Second, under subsection 63(2), the CJC may investigate any complaint or allegationmade in respect of a judge of a superior court. The investigation under subsection 63(2) is not limited to a consideration of whether thejudge should be removed from office. However, it may lead to such consideration if it is determined that an Inquiry Committee shouldbe constituted under subsection 63(3) of the Judges Act.

The CJC Inquiry and Investigation Process [9] Pursuant to subsection 61(1) of the Judges Act, the Council may make by-laws respecting the conduct of inquiries andinvestigation described in

section 63. It has done so in the form of the Canadian Judicial Council Inquiries and Investigations By-laws,SOR/2002-371 (the By-laws). The By-laws have the status of a statutory instrument and, accordingly, also have the force of law. [10] In addition, the CJC has promulgated policies and procedures regarding the conduct of investigations and inquiries.

These are theProcedures for Dealing with Complaints made to the Canadian Judicial Council about Federally Appointed Judges (the ComplaintsProcedures) [14 October 2010], and the CJC Policies regarding Inquiries, which include the Policy on Inquiry Committees, the Policy onIndependent Counsel, and the Policy on Council Review of Inquiry Committee Report. The procedures and policies are not statutoryinstruments and, therefore, are not legally binding but there is an expectation that they will be followed unless there is a justifiablereason to depart from them.

An unjustifiable departure from a policy or procedure which adversely affects the interests of a party couldamount to a breach of the legal principle of fairness: Black v. Advisory Council for the Order of Canada, 2012 FC 1234, 46 Admin. L.R.

(5th) 1; affd 2013 FCA 267 , 64 Admin. L.R. (5th) 76. [ 11 ] The relevant provisions of the Judges Act , the By-laws, Procedures and Policies are set out in the Annex to these reasons for judgment. [ 12 ] Together, the Judges Act , the By-laws, and the related policies and procedures establish a multi-stage investigation process for matters initiated by a complaint about a judge’s conduct. This process involves at least five distinct stages of consideration. [ 13 ] First, the Executive Director of the CJC completes an initial screening of all complaints and determines whether any complaint warrants opening a file, as set out in

section 2.2 of the Complaints Procedures. If no file is opened, the complainant is informed and the matter goes no further.

This initial screening serves to avoid the Council devoting time to complaints that are without substance. [ 14 ] Second, if a file is opened the Chair or Vice-Chair of the Judicial Conduct Committee reviews the complaint and may close the file, seek additional information from the complainant, or seek the judge’s comments as well as those of their chief justice as prescribed by sections 3 to 8 of the Complaints Procedures. [ 15 ] Third, if the file is not closed by the Chair or Vice-Chair of the Judicial Conduct Committee, a formal Review Panel, constituted of three to five superior court judges, considers the complaint and written submissions of the judge, and determines whether the complaint can be resolved at this stage or whether it is serious enough to warrant removal and should be referred to an Inquiry Committee, as set out in

section 9 of the Complaints Procedures and

section 1.1 of the By-laws. The Chair or Vice-Chair of the Judicial Conduct Committee appoints the members of the Review Panel pursuant to subsection 1.1(2) of the By-laws. [ 16 ] Fourth, if the Review Panel considers the matter serious enough to be referred, an Inquiry Committee is formed, consisting of two or three members of the CJC appointed by the Chair or Vice-Chair of the Judicial Conduct Committee, and one or two members of a provincial Bar appointed by the Minister, pursuant to subsections 2(1) and 2(1.1) of the By-laws respectively, as well as subsection 63(3) of the Judges Act . The Review Panel members take no further

part in the proceedings respecting the complaint against the judge. The Chair or Vice-Chair of the Judicial Conduct Committee chooses the Chair of the Inquiry Committee from within the members appointed pursuant to subsection 2(2) of the By-laws. Subsection 63(4) of the Judges Act sets out the powers of the Inquiry Committee. The Inquiry Committee hears the evidence regarding the complaints or allegations and provides a report and an inquiry record to Council pursuant to

section 8 of the By-laws. This report includes findings of fact and a recommendation as to whether the judge should be removed from office. [ 17 ] At the fifth stage of the process, Council reviews the committee report and determines the merits of the complaint or the allegations. To fulfil this role, a panel of Council is constituted of at least 17 members of the CJC who have had no prior involvement in the inquiry process in accordance with

section 10.1 of the By-laws. This panel considers whether the judge has become incapacitated or disabled from the due execution of their office. [ 18 ] Having completed the investigation and inquiry process, pursuant to

section 65 of the Judges Act and sections 10.1 and 13 of the By-laws, the Council shall report its conclusions and submit the record of the inquiry to the Minister. The record of the inquiry may include a recommendation that the judge be removed from office. As I will discuss below, this report may be considered a sixth and distinct stage of the process. [ 19 ] I note that the Chair of the Council, the Chief Justice of Canada, takes no

part in the Council’s deliberative proceedings in judicial conduct matters. That, presumably, is because any judicial review decision with respect to the process may ultimately be appealed to the Supreme Court of Canada. The Role of the Judicial Conduct Committee [ 20 ] The Judicial Conduct Committee (the JCC) is a committee constituted by the CJC and defined at

section 1 of the By-laws. The JCC consists of five members of the Council: one Chair and four Vice-Chairs. [ 21 ] According to the evidence of Mr. Normand Sabourin, the Council’s Executive Director and Senior General Counsel, the JCC is responsible for managing all judicial conduct matters brought to the attention of the CJC, and for overseeing the investigation and inquiry process pursuant to the Complaints Procedures. Where the Executive Director of the CJC opens a file in relation to a complaint, the Chair or a Vice-Chair of the JCC reviews the matter in accordance with paragraph 3.4(

b) of the Complaints Procedures and may refer the matter to a Review Panel. [ 22 ] Under

section 9.2 of the Complaints Procedures, the Chair or Vice-Chair cannot participate in any further consideration by the CJC of the merits of the complaint after referring a file to a Review Panel. Rather, according to Mr.

Sabourin’s evidence, the Chair or Vice-Chair’s role is thereafter confined to general oversight of the investigation process under the Complaints Procedures and By-laws; appointing the members of the Review Panel under subsection 1.1(1) of the By-laws; if needed, appointing the judicial members of an Inquiry Committee pursuant to subsection 2(1) of the By-laws and section 63(3) of the Judges Act ; and again, if needed, appointing independent counsel to present the case to the Inquiry Committee. According to Mr.

Sabourin, the role of the Chair or Vice-Chair includes instructing independent counsel with respect to their mandate, although that role is not expressly set out in the By-laws. The Role of Independent Counsel [ 23 ] Where an Inquiry Committee is constituted, independent counsel is appointed by the Chair or Vice-Chair of the Judicial Conduct Committee pursuant to subsection 3(1) of the By-laws and

section 62 of the Judges Act . Subsection 3(1) of the By-laws provides that independent counsel “shall be a member of the bar of a province having at least 10 years standing and who is recognized within the legal community for their ability and experience.” [ 24 ] The Policy on independent counsel sets out the “central purpose” for appointing independent counsel to act at “arm’s length” from the CJC and the Inquiry Committee. This is to allow the evidence to be presented and tested forcefully, in a full and fair manner,

and without reflecting any predetermined views of either body. [ 25 ] The Policy states that the role of independent counsel is unique in that, once appointed, independent counsel do “not act pursuant to the instructions of any client” but rather in “accordance with the law and counsel’s best judgment of what is required in the public interest”. The Policy emphasizes that independent counsel is “impartial in the sense of not representing any client”. Mr.

Sabourin’s evidence is that this Policy is intended to be confined to the presentation of the case to the Inquiry Committee. [ 26 ] Independent counsel must “present the case to the Inquiry Committee, including making submissions on questions of procedure or applicable law that are raised during the proceedings” and “perform their duties impartially and in accordance with the public interest” pursuant to subsections 3(2) and (3) of the By-laws, respectively. In his evidence, Mr.

Sabourin stressed that while independent counsel’s view of the public interest will be given due consideration by the Inquiry Committee and the Council, these two bodies are ultimately responsible for determining what is required in the public interest. [ 27 ] The Policy on independent counsel also provides that independent counsel lacks the authority to negotiate a “resolution” of the inquiry. This was added to the policy following an earlier inquiry in which the independent counsel sought to exercise such a role.

There is no indication in the policy that independent counsel may or may not seek judicial review of any decision by the Inquiry Committee. In Mr. Sabourin’s view, such action would be beyond the scope of the independent counsel’s mandate. The Relationship between the Chair or Vice-Chair of the JCC and Independent Counsel [ 28 ] Mr. Sabourin’s evidence is that independent counsel receive instructions with respect to their mandates from the Chair or Vice- Chair of the JCC who appoint them. These instructions, he says, are not case-specific with respect to the presentation of the case.

Rather, they relate to questions or issues independent counsel may have relating to their role or the nature and scope of their mandate. Mr. Sabourin asserts that this duty has fallen to the Chair or Vice-Chair of the JCC given independent counsel’s duty to present the case independently and impartially to the Inquiry Committee and Council, as well as the fact that the Chair or Vice-Chair of the JCC is barred from participating in any deliberation on the merits of the case by the Inquiry Committee or Council pursuant to

section 9.2 of the Complaints Procedures. [ 29 ] The Chair or Vice-Chair of the JCC do not act in their own personal interest in providing the independent counsel with instructions, according to Mr. Sabourin, but rather in the interest of the CJC as an institution. [ 30 ] Mr. Sabourin asserted further that the public interest encompasses both ensuring a fair process for the judge, as well as maintaining confidence in the judiciary as an institution. The Chair or Vice-Chair of the JCC provides instructions to independent counsel in the interest of this institutional public interest perspective.

Background to the CJC Inquiry [ 31 ] Prior to her judicial appointment, the applicant, Douglas ACJ, and her husband, Mr. Jack King, practiced law at Thompson, Dorfman, Sweatman LLP (TDS) in Winnipeg. During the couple’s private, lawful, consensual sexual activity, the applicant permitted Mr. King to take photographs for his private use. In 2002 and 2003, Mr. King posted some of these photographs on the Internet. In April 2003, Mr. King directed a client, Mr. Alexander Chapman, to photographs he had posted online, introduced Mr. Chapman to the applicant and later emailed photographs of the applicant to Mr.

Chapman. [ 32 ] In June 2003, Mr. Chapman threatened Mr. King and TDS with a lawsuit for sexual harassment. No complaint was made against the applicant at this time. In July 2003, Mr. King settled the matter by a financial payment to Mr. Chapman. The settlement terms required Mr. Chapman to return or delete from his computer all material provided by King, provide a release of all claims, and abide by a confidentiality clause. [ 33 ] In May 2005, the applicant was appointed as a judge of the Family Division of the Manitoba Court of Queen’s Bench.

In 2009, the applicant was appointed Associate Chief Justice of the Family Division. [ 34 ] In August 2010, Mr. Chapman submitted a complaint to the CJC alleging sexual harassment and discrimination by the applicant and Mr. King in 2003 (the Chapman complaint). When Mr. Chapman made his complaint to the CJC public in 2010, photographs of the applicant appeared on the Internet. Initial Screening by the Vice-chair of the Judicial Conduct Committee (JCC) [ 35 ] In accordance with the Complaints Procedures and the By-laws, and with the assistance of Mr.

Sabourin, the Honourable Neil Wittmann, Chief Justice of the Court of Queen’s Bench of Alberta, one of the Vice-Chairs of the JCC, reviewed the initial complaint against the applicant. The Vice-Chair found that the Chapman complaint warranted further consideration, and referred the complaint to a Review Panel of five judges, whom he appointed. [ 36 ] Subsequent to Mr. Chapman’s complaint, the Council received two discs of video and photographic material which were treated as a second complaint by the Executive Director acting under the direction of the Vice-Chair.

The Review Panel [ 37 ] In July 2011, after considering the Chapman complaint and additional information collected by an outside counsel retained as a fact-finder, the Review Panel concluded that the Chapman complaint might be serious enough to warrant the applicant’s removal from office. It determined that an Inquiry Committee should be constituted pursuant to subsection 63(3) of the Judges Act , and subsection 1.1(3) of the By-laws, to inquire into the applicant’s conduct.

The Review Panel referred the following two matters for the Inquiry Committee’s consideration: whether the public availability of the photographs placed the applicant in a position incompatible with the execution of her office; and whether there had been appropriate disclosure of the King-Chapman situation in the course of her application for judicial appointment.

The Appointment of Independent Counsel [ 38 ] In August 2011, Chief Justice Wittmann appointed Mr. Guy Pratte as independent counsel in the inquiry process pursuant to

section 62 of the Judges Act , and subsection 3(1) of the By-laws. Mr. Pratte’s appointment, following telephone conversations between Mr. Sabourin and Mr. Pratte, was confirmed by a letter from Mr. Sabourin dated August 29, 2011. The Inquiry Committee Proceedings [ 39 ] The Inquiry Committee members were appointed in the fall of 2011 by Chief Justice Wittmann. The Inquiry Committee appointed its own counsel, Mr. George McIntosh, to assist it with the proceedings. According to the Policy on Inquiry Committees, Committee counsel was not to participate actively in the hearings.

His role, according to the policy, was to assist the Inquiry Committee with its rulings and with writing its report. [ 40 ] The Committee sought and received submissions from the independent counsel and Douglas ACJ’s counsel as to the manner in which to proceed with disclosure of the allegations and the role of independent counsel in the inquiry process. The Committee issued an extensive ruling on May 15, 2012 [ Ruling of the Inquiry Committee concerning the Hon. Lori Douglas with respect to certain Preliminary Issues ] setting out its

interpretation of the relevant provisions of the Judges Act , and the Councils’ By-laws, policies and procedures.

Among other things, the May 15, 2012 ruling stressed [at paragraph 42] that the process was inquisitorial in nature, in contrast with adversarial proceedings, and that the Committee was “ultimately responsible for the collection and presentation of the evidence for the benefit of the Council and the public, while providing a fair opportunity for affected parties to participate”. [ 41 ] In the May 15, 2012 ruling [at paragraph 57], the Committee stated its opinion that independent counsel “does not act in the usual way of a solicitor receiving instructions from a client” and had no mandate beyond presenting the case against the judge and making related submissions on law and procedure.

The Committee concluded that it had complete responsibility for its process and control of that process subject to the legislation, the Council’s policies and the principle of fairness. On that basis, the Committee determined, after the hearing of evidence commenced, that it would be more efficient for its counsel, Mr. McIntosh, to ask follow-up questions of the witnesses rather than the Committee members themselves. [ 42 ] Controversy arose thereafter over the manner in which Mr. McIntosh cross-examined Mr. King and the TDS Managing Partner at the relevant time, Mr. Sinclair.

It was considered by independent counsel and the applicant to be too aggressive, outside the scope of the role of the Committee counsel and potentially unfair to the applicant. [ 43 ] On July 26, 2012, the applicant brought a motion for the recusal of the Inquiry Committee. The applicant alleged that the fact and manner of Committee counsel’s questioning raised a reasonable apprehension of bias against her.

Independent counsel also formally objected to Committee counsel questioning witnesses on the grounds that, among other things, it was contrary to the CJC’s By-laws and Policies and that it created a risk of an appearance of bias. On July 27, 2012, the Inquiry Committee dismissed the motion for recusal with preliminary oral comments. The Inquiry Committee provided written reasons for its decision on August 20, 2012 [ Ruling of the Inquiry Committee concerning the Hon.

Lori Douglas with respect to the motion to disqualify all members of the Inquiry Committee on the basis of alleged reasonable apprehension of bias ]. Proceedings before the Federal Court [ 44 ] On August 20, 2012, the applicant filed a notice of application for judicial review of the Inquiry Committee’s dismissal of her recusal motion. That same day, independent counsel filed a notice of application for judicial review of the Inquiry Committee’s ruling that it was empowered to instruct Committee counsel to cross-examine witnesses. [ 45 ] On August 26, 2012, Mr.

Pratte tendered his resignation as independent counsel to the CJC, effective immediately. This followed an exchange of correspondence between Mr. Pratte and Mr. Sabourin. [ 46 ] On August 27, 2012, counsel for the applicant communicated with Messrs. Sabourin and Pratte by email, requesting a copy of the resignation letter and any related communications. She noted that since the CJC’s Policy on independent counsel states that independent counsel has no client, there should be no issue of privilege. In a second email on August 27, 2012, counsel for the applicant repeated her request that she be provided with Mr.

Pratte’s resignation letter and any related communications. She also asked that Mr. Sabourin advise who was giving him instructions so she could communicate directly with that person if Mr. Sabourin would not respond. That same day, Mr. Sabourin replied stating that he could not accede to the request, that the assertion that his communications with Mr. Pratte were not privileged was incorrect, and that any concerns about the process should be raised before the Inquiry Committee. [ 47 ] In a letter to Mr. Sabourin dated August 28, 2012, counsel for the applicant made a formal request for the production of Mr.

Pratte’s resignation letter and any related communications in the possession of the CJC pursuant to rule 317 of the Federal Courts Rules , SOR/98-106 (the Federal Courts Rules ). [ 48 ] On September 17, 2012, Mr. Sabourin replied that all the communications requested were between himself, on behalf of the Vice-Chair, and Mr. Pratte, and that since they were not in the possession of the tribunal, whose order was subject to judicial review, and as they were irrelevant to the Inquiry Committee’s decisions, rules 317 and 318 of the Federal Courts Rules were not applicable. Moreover, Mr.

Sabourin wrote, the communications were subject to solicitor-client privilege, as asserted by the Vice-Chair of the Judicial Conduct Committee on behalf of the CJC. On this basis, Mr. Sabourin refused to disclose the requested communications. [ 49 ] On September 27, 2012, Chief Justice Wittmann appointed Ms. Suzanne Côté to replace Mr. Pratte as independent counsel to the Inquiry Committee. Ms. Côté took no steps in furtherance of Mr.

Pratte’s application for judicial review and, as he was no longer in a position to maintain it, the application was ultimately dismissed for delay. [ 50 ] The Attorney General of Canada was named as the respondent in both judicial review applications. Subsection 303(2) of the Federal Courts Rules provides that the Attorney General shall be named respondent when there are no persons that are directly affected

by the order sought in the application or who are required to be named as respondents. By motion under subsection 303(3), the Attorney General sought to be removed as respondent on each application because of a concern that his involvement would be inconsistent with his role as Minister of Justice should the inquiry result in a recommendation for removal.

In reasons delivered on April 30, 2013, Prothonotary Tabib found that the Minister of Justice’s role in the judicial discipline process was not incompatible with his role as a subsection 303(2) respondent because he has broad discretion in determining how he will participate in a judicial review proceeding. He was not required to defend the application and could limit his participation to making submissions to assist the Court: Douglas v. Canada (Attorney General) , 2013 FC 451 , [2014] 4 F.C.R. 494. [ 51 ] In the same decision, Mr. Chapman’s motion to be added as a necessary respondent was dismissed. Mr.

Chapman had earlier filed an application for judicial review of the legality of the independent counsel’s resignation and of the CJC’s decision to accept the resignation. That application was subsequently abandoned. [ 52 ] On May 21, 2013, Douglas ACJ filed a motion for leave to amend her application to add a new ground, namely that the CJC’s assertion that a solicitor-client relationship exists between independent counsel and Chief Justice Wittmann gave rise to a reasonable apprehension of institutional bias. The motion was granted on May 29, 2013.

Douglas ACJ’s fresh as amended notice of application was filed on June 10, 2013. Notice of the applicant’s intent to bring such a motion had been given to the CJC in October 2012. [ 53 ] The CJC’s motion for leave to intervene in these proceedings was granted on June 11, 2013.

It was limited to the issue of the nature and characterization of the relationship between the independent counsel and the CJC and/or the Vice-Chair of the Judicial Conduct Committee and whether that relationship and/or the assertion of a solicitor-client relationship between them gives rise to a reasonable apprehension of institutional bias against the applicant. [ 54 ] The Inquiry Committee’s motion for leave to intervene and that of the Canadian Superior Courts Judges Association (the CSCJA) were denied.

With respect to the CSCJA, Prothonotary Tabib was not persuaded that the association had anything to contribute that would differ from that put forward by the applicant. She determined that the Inquiry Committee’s submissions could only go to the broad public interest in allowing the Committee to complete its work, a position that could be put forward by the Attorney General. Moreover, the Committee was the “Tribunal” whose decision and process was under review.

Its impartiality was directly at issue and its intervention could be perceived as defending against or taking an adversarial position towards the applicant. [ 55 ] The new independent counsel, Ms. Côté, sought and was granted leave to intervene limited to the nature of the role of independent counsel and independent counsel’s relationship to Committee counsel, to the CJC and to the Vice-Chair of the Judicial Conduct Committee. Her appeal of that order was dismissed. [ 56 ] On July 12, 2013 [ Douglas v.

Canada (Attorney General) , 2013 FC 776 ], Justice Snider granted the applicant’s motion for a stay of the proceedings before the Inquiry Committee pending the determination of her application for judicial review. Justice Snider noted (at paragraph 15) that while there might be a defence of prematurity: … there [were] clear statements in the CJC Policies regarding the impartial role of Independent Counsel and the fact that Independent Counsel is “not representing any client”.

These statements, upon a preliminary examination, may also raise a serious issue with respect to the assertion of solicitor-client privilege by the CJC. [ 57 ] The applicant brought a motion for directions pursuant to rule 318 of the Federal Courts Rules in relation to her request for production of the Sabourin-Pratte correspondence. On September 13, 2013, Prothonotary Tabib [T-1567-12] dismissed the CJC’s objections to the applicant’s request for disclosure on the basis of a lack of relevance.

She also found that the CJC’s assertion of a solicitor-client relationship with the independent counsel was a “decision” within the meaning of rule 317 , that the communications respecting that decision constitute the record of the decision, and that they are therefore amenable to disclosure, subject to the question of privilege.

Prothonotary Tabib further held that even if she was wrong, the communications were relevant to the issues raised in the judicial review and that the interest of justice required that the documents should form part of the record before the Court on the merits of the application, but would remain sealed and treated confidentially until further order of this Court. The CJC brought an appeal motion to set aside this decision.

On November 5, 2013, the CJC abandoned its appeal. [ 58 ] On October 11, 2013, Douglas ACJ filed an amended fresh as amended notice of application, as authorized by the order of Prothonotary Tabib dated October 10, 2013. [ 59 ] Following the resignation of the Inquiry Committee, on November 20, 2013, the independent counsel sought and was granted further leave to intervene to address the issue of the prematurity of the relief sought by the applicant in relation to her allegation of institutional bias.

The CSCJA renewed its motion for leave to intervene in light of the position taken by the CJC in its memorandum of argument that this Court lacked jurisdiction to hear the application. The CSCJA was granted leave to file written submissions and make oral argument on that issue alone. Decisions under Review [ 60 ] As noted above, the decisions and rulings of the Inquiry Committee are no longer at issue in these proceedings.

On a preliminary motion, Prothonotary Tabib found that the assertion of a solicitor-client relationship between the CJC and the independent counsel is, in itself, a decision capable of judicial review. In addition, she found, it is relevant to the issue of institutional bias. The assertion is evidenced by Mr. Sabourin’s email of August 28, 2012 and letter of September 17, 2012 to the applicant’s counsel. [ 61 ] The Vice-Chair’s role in the process, according to Mr. Sabourin in the September 17, 2012 letter, included the appointment of Mr. Pratte. In this role the Vice-chair had “instructed him [i.e., Mr.

Pratte] with respect to his mandate”. At that point, Mr. Sabourin asserted, “a solicitor-client relationship was created, and has continued throughout the course of Mr. Pratte’s appointment”. While independent counsel act at arm’s length from the CJC deliberative bodies, he wrote, this “does not obviate the existence of a solicitor- client relationship between the Council—through the Vice-chair of the Judicial Conduct Committee—and Independent Counsel”. The Vice-chair would instruct each independent counsel with respect to their mandate but would not provide any case-specific instructions throughout the inquiry.

[ 62 ] Mr. Sabourin’s evidence is that all communications between “the Council” and Mr. Pratte were in fact communications between himself, Mr. Sabourin, on behalf of the Vice-Chair of the Judicial Conduct Committee, and Mr. Pratte. [ 63 ] As this application currently stands, Chief Justice Wittmann’s decision, in his capacity as the Vice-Chair of the Judicial Conduct Committee, to assert privilege over the communications between Mr. Sabourin and Mr. Pratte by reason of a solicitor-client relationship between the Council and Mr.

Pratte is the decision under review and the basis of the allegation of institutional bias. ISSUES [ 64 ] Prior to the hearing and despite the resignation of the Inquiry Committee, the Court was advised that the question of its jurisdiction to judicially review the actions and decisions of the Council, or an Inquiry Committee, during an “inquiry or investigation” pursuant to

section 63 of the Judges Act remained a live issue between the parties that could arise again upon the appointment of a new Inquiry Committee and resumption of the proceedings. For that reason, the parties were agreed that I should address that issue. [ 65 ] At the hearing, the applicant argued that even if the broader issue of jurisdiction could be considered moot, the Court retained jurisdiction to review Chief Justice Wittmann’s decision since it was not a decision made by the Council or the Inquiry Committee. This had been conceded by Mr. Sabourin on cross-examination.

Notwithstanding this concession, the CJC submitted that I should address the jurisdictional issue even if I concluded that it was unnecessary to do so in considering whether institutional bias had been established. Considering that the parties and intervenors came prepared to argue the broader issue and that it is a matter that will inevitably be raised again, I concluded that it was appropriate to exercise my discretion to hear and determine the jurisdictional argument. [ 66 ] Having considered the submissions of the parties and the intervenors, I would frame the issues as follows: 1.

Are the Inquiry Committee and the Council, when conducting investigations and inquiries under the Judges Act , subject to judicial review as federal administrative tribunals? 2. Is the application for judicial review premature? 3. Does the CJC’s assertion of a solicitor-client relationship with independent counsel give rise to a reasonable apprehension of institutional bias? [ 67 ] The Attorney General has limited his participation in these proceedings to assisting the Court in reaching a decision which accords with the law. He did not take a position on the merits of the institutional bias issue.

Counsel advised the Court during the case management proceedings that the Attorney General did not intend to argue that the application is premature. The position stated for the Attorney General at the hearing was that a full determination by this Court of the above issues, including institutional bias, would be in the public interest. APPLICABLE LEGISLATION [ 68 ] The relevant provisions of the Judges Act , the Federal Courts Act , and the Constitution Act, 1867 , together with the CJC’s By- laws, Complaints Procedures, and Policies are set out in the Annex.

Specific references will be made to these instruments where necessary for convenience in these reasons. STANDARD OF REVIEW [ 69 ] To the extent that a standard of review analysis is required for the first threshold question, the standard is correctness as the issue concerns a true issue of jurisdiction or vires : Toronto (City) v. C.U.P.E., Local 79 , 2003 SCC 63 , [2003] 3 S.C.R. 77, at paragraph 62 . This is not a case of a tribunal solely interpreting its own statute or statutes closely related to its function: Alberta (Information and Privacy Commissioner) v.

Alberta Teachers’ Association , 2011 SCC 61 , [2011] 3 S.C.R. 654, at paragraph 30 . In this matter, the Council seeks to oust the supervisory jurisdiction of a superior court created under a different statute, the Federal Courts Act ; a statute which it does not administer, is not closely related to the Council’s function, and with which it has no particular familiarity. [ 70 ] The question of prematurity is a mixed question of fact and law.

At its essence, the question is whether the public interest requires that the Inquiry Committee and the Council be permitted to conclude their work before being subjected to judicial review. The Council’s

interpretation of its own policies and procedures related to its judicial conduct process, including the role of inquiry committees and independent counsel, attracts considerable deference. As stated by the Supreme Court of Canada in Moreau-Bérubé v. New Brunswick (Judicial Council) , 2002 SCC 11 , [2002] 1 S.C.R. 249 ( Moreau-Bérubé ), at paragraph 62 , reviewing courts should not intervene unless the

interpretation adopted by the Council is not one that it can reasonably bear. [ 71 ] With respect to the third issue, the applicable standard of review is correctness. Where an applicant alleges a breach of the duty of procedural fairness (including apprehension of bias) by an administrative tribunal, the question for the court is whether or not the conduct of the tribunal amounts to such a breach. A tribunal that acts in the face of a breach of the duty of fairness loses jurisdiction: Gagliano v. Canada (Commission of Inquiry into the Sponsorship Program and Advertising Activities) , 2008 FC 981 , 88 Admin.

L.R. (4th) 157, at paragraph 51 ; Canadian College of Business and Computers Inc. v. Ontario (Private Career Colleges Act) , 2010 ONCA 856 , 17 Admin. L.R. (5th) 245, at paragraph 22 . ARGUMENTS AND ANALYSIS

(1) Are the Inquiry Committee and Council, when conducting investigations and inquiries under the Judges Act , subject to judicial review as federal administrative tribunals? [ 72 ] The CJC takes the position in these proceedings that Inquiry Committees and the Council itself are immune from judicial review by the Federal Court as they are deemed to be superior courts when engaged in judicial conduct matters. Douglas ACJ, the Attorney General of Canada and the CSCJA reject the assertion of immunity and contend that Parliament did not intend to shield the Council and

Inquiry Committees from judicial review when it created the regime in the Judges Act . [ 73 ] The CJC position rests almost exclusively on the deeming provision in subsection 63(4) of the Judges Act . The Council contends that this enactment, properly interpreted, reflects Parliament’s intent that the Inquiry Committees and Council are not to be treated as administrative tribunals for judicial review purposes. [ 74 ] The Attorney General’s position, supported by the applicant and the CSCJA, is that the Court should first look to the statute from which it derives its powers.

In this case, the jurisdiction-conferring statute is the Federal Courts Act . Only when the Court has determined whether it has jurisdiction pursuant to the Federal Courts Act should it turn its mind to the Judges Act . The Attorney General argues that the Federal Courts Act clearly grants the Federal Court jurisdiction. The secondary question then is whether that jurisdiction is ousted by the Judges Act . I agree that this is the correct approach to determining this issue.

The Federal Courts Act [ 75 ] The Federal Court Act , which created the Federal Court of Canada, received Royal Assent on December 3, 1970 and came into effect on August 1, 1972. The Court was created pursuant to the power granted the Parliament of Canada under

section 101 of the Constitution Act, 1867 to establish “additional Courts for the better Administration of the Laws of Canada.” At that time, through sections 18 and 28 of the Federal Court Act , supervisory judicial review jurisdiction over federal bodies was transferred from the provincial superior courts to the Federal Court. The Court was initially comprised of trial and appellate divisions. [ 76 ] The Federal Courts Act came into effect in 2002, continuing the former Trial Division of the Federal Court as a superior court of record.

Section 18 of the Federal Courts Act , continued from the predecessor legislation, grants the Federal Court exclusive judicial review jurisdiction over federal boards, commissions or tribunals other than that expressly reserved to the Federal Court of Appeal by

section 28 .

Section 18.1 sets out the scope of the remedies available on an application for judicial review of a decision or an order of a federal board, commission or tribunal on an application made by the Attorney General of Canada, or by anyone directly affected by the matter in respect of w

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