SEAN KENNEY v. MITCHELL, 2023 NBKB 99

Citation : 2023 NBKB 099 Date: May 30, 2023 Docket : FC-293-2022 IN THE COURT OF KING'S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF FREDERICTON BETWEEN: SEAN KENNEY AND MITCHELL ALBERT Applicant -and- THE HONOURABLE JUDGE KENNETH L. OLIVER Respondent Date of Hearing: Date of Decision: Subject Matter: May 10, 2023 May 30, 2023 Small Claims Appeal Judicial Immunity Before: Justice Terrence J. Morrison Burton, New Brunswick Appearances: Sean Kenney,per se

Mitchell Albert, per se Joel Michaud, K.C. for the Respondent DECISION Morrison , J . I. INTROD UC TION [ 1 ] The Appellants brought an action through the small claims r egim e aga inst Judge Kenneth L. Oliver, a sitting judge of the New Brunswick Provincial Court, seeking a judgement and damages against him. The Appellants alleged that the Respondent abused his position of trust, acted in his own self-interest, and acted in bad faith. The Respondent denied the claims and alleged that the claim failed to disclose a reasonable cause of action.

The Respondent also asserted a claim of judicial immunity submitting that he is immune from civil liability for acts done in the exercise of his judicial functions·. [2] In the original proceedings the Respondent filed a pre-trial application seeking a dete rm ination of the question of judicial immunity. The Adjudicator proceeded to hear the pre-trial application and issued a ruling with respect to that preliminary issue.

By written decision and reasons dated October 17, 2022 (the "Adjudicator's Decision") the Adjudicator granted the preliminary application, concluded that the Respondent is immune from civil liability and dismissed the Appell an ts' claim. [3] T he Appellants filed a Request for Appeal By Way of New Hearing (Form 16). At the outset of the hearing of this matter I explained that since the Adjudicator dismissed the claim on a preliminary question of law there was no evidence given in the original proceeding and no adjudication on the substance or merits of the Appellants' claim.

Accordingly, s. 42(1) of the Small Claims Act Regulation, NB Reg 2012-103 (the " Regulation ") applies and not s. 39 which governs most appeals. I explained to the Appellants that the present appeal would not proceed as a trial de nova because there was no trial in the first instance and no decision on the substance of the claim. I also advised the Appellants that despite the procedural irregularity of their appeal (Form 16 rather than Form 17) I would treat their appeal as having been properly filed pursuant to s. 49(2) of the Regulation .

Accordingly, I proceeded to hear the Appellants' submissions with respect to the preliminary issue of judicial immunity which is the substance of the Adjudicator's Decision. IL APPELLANTS' SUBMISSIONS

[4] The Appellants submit that the law applies equally to all and that no person, including a judge, is above thelaw. They also submit that there is no immunity from liability when an official acts unlawfully. They suggest that the Respondent'sconduct was unlawful. The Appellants also submit that it is unfair that the Respondent was not required to appear before the Adjudicatorto answer for his conduct. [5] As noted by the Adjudicator, it is difficult to ascertain the facts from the Claim (Form 1).

However,representations made by the Appellants make it clear that the conduct the Appellants allege is unlawful relates to directions and rulings made by the Respondent in court proceedings at which the Appellantsappeared or were required to appear. III. RESPONDENT'S SUBMISSIONS [6] Counsel for the Respondent filed a written submission.

At the hearing of this appeal, the Respondent'scounsel made no oral submissions and advised the Court that he was content to rely on his written submission. [7] The Respondent's written submission, broadly speaking, refers to the legal authorities and principles that theAdjudicator considered in rendering his decision. In addition to immunity to civil liability, the Respondent submits that he also enjoystestimonial immunity and cannot be compelled to testify about his judicial acts. In support of his position, the Respondent reliedprimarily on the Supreme Court of Canada decision in Mackeigan v.

Hickman (SCC), [1989] 2 SCR 796. [8] The Respondent submits that the Adjudicator's Decision is correct in law and that the Respondent is immunefrom civil liability. The Respondent asks that the Adjudicator's Decision be affirmed. IV. ANALYSIS AND DECISION [9] On the nature of the Respondent's conduct, which is the basis of the Appellants' claim, the Adjudicator foundas follows: [28] I turn now to the facts in this matter. It is difficult to ascertain many facts from the Claim (Form 1) itself. It contains general, but vague allegations of judicial wrongdoing.

However, both claimants made representations at the hearing of the application.In those representations they confirmed that they appeared before the Defendant judge in the Provincial Court of New Brunswick andalleged that they were wronged by his judicial actions. Further, their written submission in response to the application for dismissal isreplete with complaints regarding the manner in which the Defendant exercised his judicial functions.

[10] The Adjudicator conducted a thorough examination of the leading authorities on the question of judicialimmunity. Although it is neither necessary nor fruitful for me to repeat the analysis, I believe it is helpful to highlight a few passagesfrom the decision: [3] Inextricably woven into the fabric of judicial independence is the principle of immunity from civil liability for decisions made andactions taken in the exercise of judicial functions. It is imperative that judges be free from the threat of civil litigation in order to fulfiltheir role and honour their oath of office.

Otherwise, they would potentially be subject to civil suit during, or after, every adjudication.And it is trite to say that every adjudication ends with at least one, if not more, dissatisfied party. [...] [21] Judicial immunity from civil suit is an absolute immunity. It applies to acts alleged to have been done maliciously, in bad faith,corruptly, or without reasonable cause. Otherwise, every discontented litigant could allege such misconduct and the doctrine would ceaseto have any legal effect.

The absolute nature of the civil immunity was addressed by Justice Karakatsanis, as he then was, of the OntarioSuperior Court of Justice in Trai v. Klug, 2005 Can LIi 19788 (affirmed (ONCA), leave to appeal denied [2006]S.C.C.A. No. 169 at paragraph 7: The plaintiff) submission that an illegal act cannot be part of judges' duties and therefore cannot be the subject of a civil immunity is, atfirst blush, logical. However, all suits against judges in relation to their cases would necessarily allege that they have acted improperly -either negligently, outside their jurisdiction, maliciously or even illegally.

The civil immunity is absolute for any acts related to or inconnection with their judicial capacity - whether they are proper judicial actions or not. The immunity relates to civil liability only. The right to be tried by an independent and impartial tribunal is an integral part of the fundamental justice described bys. 7of the Charter. The constitutional protection is there to ensure that judges can perform their duties independently, impartially and freefrom concern that they will be personally sued for unpopular decisions. [...] [23] Further, it does not mean that a judge has a right to be wrong.

Decisions of judges may be overturned on appeal, subject to theappropriate standard of appellate review. Procedures for such appeals are prescribed by statute. Nor does it mean that a judge's conductmay not be subject to review. A procedure is prescribed for a complaint to the Canadian Judicial Council and that body may imposesanctions in the event of a finding of judicial misconduct. Those are the two avenues that a dissatisfied litigant may pursue to address ajudicial error or alleged judicial misconduct. [...] [27] The above legal principles are inviolable.

They are too important to be interfered with. [... ) [29] The allegations made by the Claimants fall within the ambit of the Defendant's exercise of his judicial functions. The Defendantis immunized from civil liability for these complaints pursuant to the principle of judicial immunity. [11] In my view, the Adjudicator's Decision with respect to the question of judicial immunity is sound and inaccordance with well-founded and long-standing legal principles. I find no error of law in the Adjudicator's Decision.

[12] In their oral submissions, the Appellants' argued that it was unfair that judges could not be held to account for their actions. However, as pointed out at paragraph 23 of the Adjudicator ' s Decision, there is a process available for judges to be accountable for their actions : a complaint to the appropriate judicial oversight body. In this case that would be a complaint to the New Brunswick Judicial Council. [13] For the forgoing reasons, the Adjudicator's Decision is affirmed, and the Appellants' appeal (application) is denied.

The Respondent has been successful and is entitled to recover costs from the Appellants jointly and severely which I fix in the amount of$1,500.00. DATED at Burton, New Brunswick, this 30th day of May 2023. Terr ce J. Morrison, J.C.. B.