2014 FC, 2014 FC 1176

Date: 20141205 Docket: T-1557-14 Citation: 2014 FC 1176 [UNREVISED ENGLISH CERTIFIED TRANSLATION] Ottawa, Ontario, December 5, 2014 PRESENT: The Honourable Mr.

Justice Martineau BETWEEN: THE HONOURABLE MICHEL GIROUARD Applicant and THE CANADIAN JUDICIAL COUNCIL AND THE ATTORNEY GENERAL OF CANADA Respondents ORDER AND REASONS [ 1 ] As a respondent, the Attorney General of Canada is seeking to strike the notice of application for judicial review filed on July 9, 2014, by the applicant, Justice Michel Girouard, of a so-called “decision” made public on June 18, 2014, in the form of a press release issued by the Canadian Judicial Council [CJC], which is also a respondent. [ 2 ] The CJC has not taken any position with regard to this motion to strike that is being challenged by the applicant. [ 3 ] The CJC’s press release reads as follows: The Canadian Judicial Council announced today the members of the Inquiry Committee established to review the conduct of Justice Michel Girouard.

The Inquiry Committee is comprised of three members: two Chief Justices appointed by the Canadian Judicial Council and one senior lawyer appointed by the Minister of Justice. The members are: the Honourable Richard Chartier, Chief Justice of Manitoba (Chairperson); the Honourable Paul Crampton, Chief Justice of the Federal Court; and Ronald LeBlanc, Q.C. of the law firm LeBlanc Maillet of New Brunswick.

The Council is also announcing that Marie Cossette of the law firm Lavery in Québec City has been appointed Independent Counsel in accordance with the Council's Bylaws and has the mandate of presenting the case to the Inquiry Committee in the public interest. Under the Judges Act , the Inquiry Committee is deemed to be a Superior Court. The Committee will decide, in the coming weeks, when it will convene to hear this matter. Inquiry Committee hearings are normally held in public, although private hearings are possible if required in the public interest and the due administration of justice.

The Committee will also decide on the full scope of its inquiry. The judge in this matter has filed a judicial review application in the Federal Court. That application is being defended by the Attorney General of Canada. In respect to those proceedings, Chief Justice Crampton has taken steps to ensure that he has no involvement with the case being heard by the Federal Court.

The mandate of the Inquiry Committee is to review all the issues and submit a report to the Canadian Judicial Council, presenting its findings and conclusions on whether or not a recommendation should be made for the removal of the judge from office. The Council will then make a recommendation to the Minister of Justice regarding the judge's ability to remain in office.

Information about the Council, including the process for public inquiries, can be found on the Council's website at www.cjc-ccm.gc.ca . [ 4 ] The present motion was heard by this Court concurrently with the motion to strike filed by the Attorney General in the judicial review application (T-646-14) that was referred to in the fifth paragraph of the CJC’s press release (see decision: 2014 FC 1175 ). The Attorney General claims that the present application for judicial review is doomed to failure.

For the purposes of adjudicating the two motions to strike, the facts alleged by the applicant in the impugned proceedings must be held to be true. [ 5 ] For the purposes of this proceeding, it should simply be noted that following receipt of confidential documents and unverified allegations, the exact nature of which was not publicly disclosed, on November 30, 2012, Superior Court Chief Justice, the Honourable François Rolland, wrote to the CJC asking that it proceed with a [translation] “review of [the applicant’s] conduct while he was an attorney” [the complaint]. [ 6 ] In January 2013, “investigation proceedings” were launched pursuant to the Judges Act , RSC 1985, c J-1 [Act], the Canadian Judicial Council Inquiries and Investigations By-laws , SOR/2002-371 [Regulations] and the Procedures for Dealing with Complaints made to the Canadian Judicial Council about Federally Appointed Judges , in force since October 14, 2010 [Complaints Procedures]. [ 7 ] In fact, the Vice-Chairperson of the Judicial Conduct Committee of the CJC, the late Honourable Edmond Blanchard, reviewed the allegations and decided to set up a Review Committee to look into the matter.

On February 11, 2014, the Review Committee pursuant to subsection 63(3) of the Act , decided to constitute an Inquiry Committee, “on the ground that the matter in issue

may prove sufficiently serious as to warrant [the applicant’s] removal from office”. [8] By means of his application for judicial review dated March 13, 2014 (file T-646-14), the applicant seeks to have theinterlocutory decision dated February 11, 2014, set aside.

He is also asking the Court to declare the Regulations and the Procedures fordealing with complaints invalid and inapplicable to the extent that these instruments authorize the CJC or one of its committees to reviewor investigate the complaint against the applicant. [9] With this latest application for judicial review, the applicant now seeks to strike the so-called “decision” of June 18, 2014.

Inlarge part, the applicant is basing this new application on the same arguments of constitutional and administrative law he put forth in fileT-646-14 against the [translation] “investigation procedures” and the February 11, 2014, decision of the Review Committee. [10] For his part, the Attorney General is now asking the Court to summarily strike the application for judicial review because theJune 18, 2014, press release is simply not a reviewable decision. Indeed, its sole purpose is to inform the public of the composition of theInquiry Committee and the name of the CJC’s independent counsel.

It is not to set out the parameters of the investigation of the InquiryCommittee.

Moreover, the committee has not determined the scope of its investigation, and consequently this application for judicialreview is in any event premature. [11] In this particular case I am satisfied that this is one of those exceptional cases in which, in exercising its judicial discretion, theCourt must intervene. [12] First, it should be noted that under sections 18 and 18.1 of the Federal Courts Act, RSC 1985, c F-7 [FCA], anyone “directlyaffected by the matter in respect of which relief is sought” may file an application for judicial review of an order, act or proceeding of afederal board, commission or other tribunal, while the Court has the authority to set aside any decision thus taken, to nullify any law orregulation that is unconstitutional, ultra vires or otherwise invalid, and to prohibit the continuation of any proceeding unlawfullyconducted by the board, commission or other tribunal in question. [13] In addition, subsection 18.4(1) of the FCA states that applications for judicial review ‘shall be heard and determined withoutdelay and in a

summary way” by the Court. As a general rule, motions to strike need not be heard in such matters. Nevertheless, as theFederal Court of Appeal decided in David Bull Laboratories (Canada) Inc c Pharmacia Inc, [1995] 1 RCF 588, (CAF), the striking of an application for judicial review cannot be granted where the pleading is “so clearly improper as to be bereft ofany possibility of success”. [14] It is clear that the application for judicial review discloses no reasonable cause of action, as it concerns a press release, whichis not a decision and has no legal effect.

Moreover, a careful reading of the proceedings reveals that the applicant does not contest thecurrent makeup of the Inquiry Committee per se. Rather, he objects to the fact that the committee has the authority to determine “thescope” of its inquiry and to “review all the issues”. I will return to this question a little later after having said a few words about thepurpose of the impugned press release. [15] When the Inquiry Committee is comprised of three members, it may include a member of the legal profession appointed bythe Minister of Justice.

The other two members are members of the CJC appointed by the Chairperson (or the Vice-Chairperson) of theJudicial Conduct Committee. On June 18, 2014, the CJC published a press release revealing the names of the three members of theInquiry Committee and that of the CJC’s independent counsel. Whatever the author of the press release may have written in regard to anylegal aspect of the matter is clearly not binding on the Inquiry Committee.

In fact, we now know that no decision has been made by theInquiry Committee. [16] Before me at the hearing, one of the applicant’s learned counsel, Bâtonnier Louis Masson, indicated that it was ex abundanticautela – that is to say, out of an abundance of caution – that the applicant filed this application for judicial review.

In this case, the Courthas decided today that the arguments raised by the applicant in file T-646-14 against the legality or merits of the decision of the ReviewCommittee to set up an Inquiry Committee are premature and the Inquiry Committee should be permitted to dispose of the matter,preferably in a preliminary manner: 2014 CF 1175.

The present application for judicial review is therefore unnecessary and premature. [17] In closing, I reject any assertion by the applicant to the effect that the Attorney General cannot address the Court today inorder to seek the striking out of the notice of application for judicial review. The applicant is of the view that the Attorney General doesnot have standing in this matter, other than to argue for the validity of the Regulations, while it would be for the CJC to defend thelegality or the merits of the disputed decision, hence the reason for which the CJC is a respondent.

And therein lies the problem, becauseif we accept the applicant’s theory that the impugned decision was made under the supposed authority of the Act and Regulations, thenthe CJC should not have been designated from the start as a respondent in the notice of application for judicial review. [18] Because, we should recall that, under subsections 303(1) and (2) of the Federal Courts Rules, SOR/98-106 [Rules], thefederal board or tribunal whose decision is under review cannot be designated as a respondent; where there are no persons that can benamed as a respondent under the Rules or law, the Attorney General shall be named as a respondent.

To date, the Attorney General hasnot filed a motion pursuant to subsection 303(3) of the Rules to be replaced by the CJC and it is unclear whether such a motion would begranted by this Court (see Douglas v Canada (Attorney General), 2013 FC 451). [19] The motion to strike is therefore granted. Without costs. ORDER THE COURT ORDERS that the notice of application for judicial review, dated July 9, 2014, is struck. Without costs. “Luc Martineau”

Judge Certified true translation Sebastian Desbarats, Translator FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1557-14 STYLE OF CAUSE: L'HONORABLE MICHEL GIROUARD v THE CANADIAN JUDICIAL COUNCIL AND THE ATTORNEY GENERAL OF CANADA PLACE OF HEARING: Montréal, QuEbec DATE OF HEARING: NOVEMBER 20, 2014 REASONS FOR ORDER AND ORDER: MARTINEAU J. DATED: DECEMBER 5, 2014 APPEARANCES : Bâtonnier Gérald R. Tremblay, Ad. E. FOR THE APPLICANT Bâtonnier Louis Masson, Ad. E. FOR THE APPLICANT Robert De Blois, LL.L., CRHA FOR THE RESPONDENT THE CANADIAN JUDICIAL COUNCIL Claude Joyal, Ad.E, Q.C.

Sara Gauthier FOR THE RESPONDENT THE ATTORNEY GENERAL OF CANADA SOLICITORS OF RECORD : McCarthy Tétrault, LLP Montréal, Quebec FOR THE APPLICANT Joli-Coeur Lacasse Attorneys Québec, Quebec FOR THE APPLICANT DeBlois & Partners, LLP Québec, Quebec FOR THE RESPONDENT THE CANADIAN JUDICIAL COUNCIL William F. Pentney Deputy Attorney General of Canada Montréal, Quebec FOR THE RESPONDENT THE ATTORNEY GENERAL OF CANADA