Williams v. Cabana, 2015 NLCA 8

Date: 20150216 Docket: 15/04 Citation: Williams v. Cabana , 2015 NLCA 8 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: DANIEL E. WILLIAMS APPELLANT AND: BRAD CABANA RESPONDENT Coram: Welsh, Rowe and Mercer JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 201201G3518 Appeal Heard: February 10, 2015 Judgment Rendered: February 16, 2015 Reasons for Judgment Filed: February 25, 2015 Reasons for Judgment by the Court Counsel for the Appellant: Jerome Kennedy Q.C. Counsel for the Respondent: Self Represented

The Court: [ 1 ] In June 2012, Daniel E. Williams and Alderon Iron Ore Corp. commenced an action for defamation against Brad Cabana. On December 5, 2014, Mr. Cabana applied to have the statement of claim struck on the basis that the courthouse in Corner Brook had been named after Mr. Williams. Because Mr. Williams is a member of the practicing bar, there was a question as to the possible effect, if any, on the perception of the administration of justice.

Having been advised by the Premier regarding the naming of the courthouse, Acting Chief Justice Orsborn (henceforth, Orsborn C.J.) had written to the Premier on August 12, 2014. [ 2 ] At the December 16, 2014 hearing of Mr. Cabana’s application, Orsborn C.J. said: … I have some comments I need to make on this application. I wish to advise the parties that the issue raised by this present application is such that the application should not be adjudicated upon by me or one of my Trial Division colleagues.

And the application seeks to have the Statement of Claim struck out on the basis of submissions grounded in the naming of a building in which the Trial Division sit as a court. And further, in August, I wrote, as Chief Justice of the Trial Division, to the then Premier commenting on the naming of the building. Accordingly, having considered the matter and having taken advice on it, I have concluded that neither I nor any of my Trial Division colleagues should hear this particular application.

It is critical to any court proceeding that both the perception and fact of judicial impartiality and judicial independence be maintained. As a result, and pursuant to

section 30 of the Judicature Act , I have requested the Chief Justice of Newfoundland and Labrador, Chief Justice J. Derek Green, to appoint a judge from the Court of Appeal to sit as a Trial Division judge for the purpose of this application. … … I have concluded that the letter to the Premier should be made available to the parties. … I am going to adjourn this matter until 10:30 in Courtroom No. 7, at which time it will be called before Mr. Justice Harrington, sitting as a Trial Division judge, and you can proceed there as appropriate. [ 3 ] Harrington J.A. had been appointed by Green C.J.N.L., under

section 30 of the Judicature Act , RSNL 1990, c. J-4, in response to Orsborn C.J.’s request. At the hearing, Orsborn C.J. did not receive submissions from counsel, but rather made the statement quoted above and adjourned the matter. [ 4 ]

Section 30 of the Judicature Act reads: 30

(1) Where, in a proceeding, there is no judge of the Trial Division who is able or eligible to sit or it is desirable for good reason that no judge of the Trial Division should sit, the Chief Justice of the Trial Division may request the Chief Justice of Newfoundland and Labrador to appoint one of the judges of the Court of Appeal to sit and act as a judge of the Trial Division for the hearing of the proceeding.

(2) A judge appointed under subsection (1) shall attend at the hearing of the proceeding to which that judge has been appointed and while that judge sits and acts the judge has all the jurisdiction, power and authority of a judge of the Trial Division. [ 5 ] In January 2015, an order arising from the proceedings before Orsborn C.J. on December 16, 2014 was prepared by counsel for Mr. Williams. The order was approved not by Orsborn C.J., who was absent from the province, but rather by another judge of the Trial Division.

The operative part of the order reads: IT IS HEREBY ORDERED THAT the application to strike the Statement of Claim in the within matter should not be adjudicated upon by Acting Chief Justice Orsborn or any of the Justices of the Supreme Court of Newfoundland and Labrador, Trial Division; AND THAT ACCORDINGLY , pursuant to

Section 30 of the Judicature Act , Acting Chief Justice Orsborn has requested the Chief Justice of the Newfoundland and Labrador Court of Appeal to appoint a Judge from the Court of Appeal to sit as a Trial Division Judge for the purposes of this Application; … [ 6 ] On February 2, 2015, Mr. Williams applied to this Court pursuant to rule 57.02 of the Rules of the Supreme Court, 1986 for leave to appeal the above order. Rule 57.02 reads, in part:

(1) Leave to appeal shall be obtained by application to the Court where (

a) during the course of a proceeding or prior to a final order, a party seeks to appeal from an interlocutory order, …

(4) Leave to appeal an interlocutory order may be granted where (

a) there is a conflicting decision by another judge or court upon a question involved in the proposed appeal and, in the opinion of the Court, it is desirable that leave to appeal be granted, (

b) the Court doubts the correctness of the order in question, (

c) the Court considers that the appeal involves matters of such importance that leave to appeal should be granted, (

d) the Court considers that the nature of the issue is such that any appeal on that issue following final judgment would be of no practical effect, or (

e) the Court is of the view that the interests of justice require that leave be granted. … [ 7 ] On February 10, 2015, this panel heard the application for leave to appeal. On February 16, 2015, we rendered our decision

denying leave to appeal, with written reasons to follow. These are those reasons. [8] In seeking leave to appeal, counsel for Mr. Williams characterized Orsborn C.J.’s actions on December 16, 2014 as a recusaldecision that applied not only to Orsborn C.J., but also to the other judges of the Trial Division. It was, counsel submitted, as a result ofthat recusal, that Orsborn C.J. had requested that a judge of the Court of Appeal be appointed to hear further proceedings in the case. [9] Counsel for Mr.

Williams also submitted that such a recusal decision, as he characterized it, could extend to other litigationinvolving Mr. Williams. [10] We do not agree with this characterization of what occurred on December 16, 2014. What occurred was not a recusal, andcould not be characterized as such. Orsborn C.J.’s statement was an explanation given in open court for his decision to request that ajudge of the Court of Appeal be appointed to hear the case as it was “desirable for good reason that no judge of the Trial Division shouldsit” (Judicature Act,

section 30). [11] Counsel for Mr. Williams urged us to look behind Orsborn C.J.’s decision to make the request authorized by the Act. Wedecline to do so. Orsborn C.J.’s request under

section 30 in this case was an administrative matter falling within the prerogative of aChief Justice to assign judges to individual cases. (See, for example, Valente v. R., (SCC), [1985] 2 S.C.R. 673, at pages708 to 709.) This is not the type of decision that is subject to judicial review, nor is it one for which a reasoned basis need be provided tothe parties. While on this occasion Orsborn C.J. chose to give some explanation, he was not required by law to do so. Nor does hischoice to provide the explanation that he did make this administrative decision reviewable. The order that was issued does not changethis.

The Act requires only that the Chief Justice be satisfied that it was “desirable for good reason that no judge of the Trial Divisionshould sit”. The effect of Orsborn C.J.’s request was simply to have a judge appointed to hear the matter from an alternate pool ofjudges. [12] Counsel for Mr. Williams also urged us to consider the propriety of Orsborn C.J.’s August 12, 2014 letter to Premier Marshall. This we decline to do on the basis that such a matter is not justiciable. The letter was merely provided for consideration by PremierMarshall.

The separation of powers between the executive and judicial branches of government does not preclude such interactionbetween the Premier and the Chief Justice. The letter, by its nature, is not amenable for adjudication nor suitable for judicialdetermination. [13] Accordingly, leave to appeal was refused. ________________________ B. G. Welsh J.A. _________________________ M. H. Rowe J.A. ________________________ K. J. Mercer J.A.