2018 NLSC 245, 2018 NLSC 245

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Re: Provincial Court Act , 1991 , 2018 NLSC 245 Date : December 4, 2018 Docket : 201801G5421 In The Matter of the Provincial Court Act , 1991 , S.N.L. 1991, c. 15, as amended; And In The Matter of a complaint against the Honourable Judge John Joy by the Director of Public Prosecutions for Newfoundland and Labrador and a complaint by the Newfoundland and Labrador Legal Aid Commission; And In The Matter of a hearing into an application by the Respondent [Honourable Judge John Joy] before an adjudication tribunal of the Judicial Complaints Panel; AND IN THE MATTER OF an appeal by the Honourable Judge John Joy [“Appellant”] from Reasons For Decision dated 20 July 2018 of the adjudication tribunal of the Judicial Complaints Panel Before: Justice James P.

Adams Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: November 27, 2018

Summary: The Applicant, a Provincial Court Judge, in an uncompleted matter applied for leave to appeal the decision of an adjudication panel established to hear a number of complaints filed against him and to stay the hearing of the complaints until the appeal is heard should leave to appeal be granted. Held : Both applications are denied as the Applicant did not meet the test for the grant of leave to appeal – that leave is required in the interests of justice; nor the test for a stay of proceedings: (1) a serious issue to be tried; (2) irreparable harm to the Applicant; and (3) the balance of convenience/inconvenience. Appearances:

David C. Day, Q.C. Appearing on behalf of the Applicant Augustine F. Bruce, Q.C. Complaints Presenting Counsel Authorities Cited: CASES CONSIDERED: ExxonMobil Canada Properties v. Canada-Newfoundland and Labrador Offshore Petroleum Board, 2017NLTD(G) 80; Canadian Natural Resources Ltd. v. Wood Buffalo (Regional Municipality), 2011 ABQB 220; U.F.C.W., Local 1252 v.Cashin (1994), (NL CA), 124 Nfld. & P.E.I.R. 201, 384 A.P.R. 201(Nfld. C.A.); Kelowna (City) v. British Columbia(Human Rights Commission), (BC SC), [1999] B.C.J. No. 1848, 19 B.C.T.C. 132 (S.C.); Langor v.

Spurrell (1997), (NL CA), 157 Nfld. & P.E.I.R. 301, [1997] N.J. No. 264 (C.A.); Weir’s Construction Ltd. v. Warford Estate, 2016NLCA 65; RJR — MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311; Howe v. Institute ofChartered Accountants (Ontario), (ON SC), [1994] O.J. No. 2907, 121 D.L.R. (4th) 149 (Ct. J. (Gen. Div.) (Div.Ct.)) STATUTES CONSIDERED: Provincial Court Act, 1991, S.N.L.,1991, c.15 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch.

D; TEXTS CONSIDERED: Ethical Principles for Judges, Canadian Judicial Council, Catalogue Number JU11-4/2004E REASONS FOR JUDGMENT Adams, J.: INTRODUCTION [1] The Applicant, the Honourable John Joy, a Judge of the Provincial Court of Newfoundland and Labrador, has sought leave toappeal the decision in an uncompleted matter pursuant to Rule 58 of the Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D (the “leave application”) and a stay of the decision dated 20 July 2018 of an adjudication tribunal pending determination of the appeal ifthe leave application is granted pursuant to

section 25.4 of the Provincial Court Act, 1991, S.N.L.,1991, c. 15 (the “Act”) and Rule 58.06of the Rules of Court (the “stay application”). Both applications were heard together.

For the reasons which follow, both the leaveapplication and the stay application are dismissed. background [2] On or about 20 March 2014 Judge John Joy is alleged to have authored a Memorandum containing inappropriate commentsrespecting the administration of justice in Labrador which was delivered via email by him to a Crown attorney, the Director of CourtServices of the Provincial Court, the Legal Aid Commission, two members of the private bar and several Provincial Court judges.

He isalso alleged to have made similar comments in oral statements in an open-court session on or about 28 February 2014. [3] On or about 25 March 2014 the Director of Public Prosecutions for Newfoundland and Labrador filed a complaint againstJudge Joy with the Complaints Review Committee established under the Act (the “DPP complaint”).

On or about 6 May 2014 twoseparate complaints arising out of the same actions of Judge Joy were filed by the Newfoundland and Labrador Legal Aid Commission(the “LAC complaint”), one of which is the subject of these applications. [4] The complaints alleged that Judge Joy violated a number of the rules of a Code of Ethics approved by the Judicial Council ofthe Provincial Court of Newfoundland and Labrador (“Code of Ethics”) and the Ethical Principles for Judges authored by the CanadianJudicial Council (“EPJ”) and adopted by the Judicial Council of the Provincial Court of Newfoundland and Labrador. [5] Under the provisions of the Act the complaints were referred to the Complaints Review Committee, which, having foundreasonable grounds to believe Judge Joy engaged in the conduct complained of, referred both complaints to the Judicial ComplaintsPanel.

The Judicial Complaints Panel appointed a Tribunal (the “Tribunal”) pursuant to

section 24 of the Act to hear the complaints.

The Tribunal through the Complaints Presenting Counsel issued two Notices of Hearing respecting the complaints – one in respect of the DPP complaint entered into evidence as Consent No. 1 and one respecting the LAC complaint entered into evidence as Consent No. 2. Each Notice of Hearing contained a Notice of Particulars of the complaints and a date for the hearing. [ 6 ] Prior to any substantive hearings, Judge Joy filed four preliminary procedural applications.

For various reasons, the substantive hearings into the complaints have not proceeded to date (over three and one half years after the complaints were filed). There is no suggestion that the preliminary applications taken by Judge Joy were without merit or were taken solely for the purpose of delay. Nevertheless, the fact remains that there has not been a single day of hearing on the substantive issues raised in the complaints to date.

I am advised that tentative dates for the hearings to commence have been set for late January 2019. [ 7 ] The fourth application of Judge Joy before the Tribunal raised a number of issues: 1) It questioned the constitutionality of section 25(3) (

b) of the Act as offending certain provisions of the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the “ Charter ”) or the rules of natural justice. 2) It questioned what actually constitutes the two complaints to be heard. 3) It questioned whether the Code of Ethics or the EPJ are legally valid or applicable to Judge Joy. [ 8 ] Application number four went before the Tribunal for determination on various dates in 2018. On 20 July 2018, the Tribunal issued its written decision with reasons entered into evidence as Consent No. 3. The Tribunal concluded at paragraph [80] of its decision: [80] For these reasons we find that: 1. Section 25(3) (

b) of the Act does not offend sections 7 or 11(

d) of the Charter or the rules of natural justice. 2. The complaints to be heard are as set out in the Notices of Hearing and the attached statements of particulars of the complaints with the exception of the references to the 10-point Code [Code of Conduct] contained therein. 3. The common law and the EPJ are applicable to the Respondent in the present case. The 10-point Code [Code of Conduct] is not. [ 9 ] It is from that decision the present applications are taken. the legislation [ 10 ]

Section 25.4(1) of the Act states: 25.4(1) A complainant or a judge affected by a decision or order of an adjudication tribunal may, within 30 days after receiving notice of the decision or order appeal the decision or order to the Trial Division by filing a notice of appeal with the Trial Division. [ 11 ] Section 25(3) (

b) of the Act states: 25.

(3) An adjudication tribunal to whom a complaint is referred under paragraph 23(1)(

c) shall … (

b) provide to the judge and the complainant a statement of the particulars of the complaint. Rules of Court 58.03(1) A person must seek leave of a judge to start an appeal where any of the following circumstances apply: (

a) the person intends to appeal a decision made in an uncompleted matter; …

(6) A judge may grant leave to appeal where the judge is satisfied that the interests of justice require that leave be granted.

(10) A failure to seek or obtain leave to appeal a decision made in an uncompleted matter does not (

a) prejudice the right of a party to appeal from that decision on an appeal taken once the matter is completed; or (

b) limit the power of a judge to grant an order on an appeal from a completed matter that the judge considers appropriate. positions of the parties Judge John Joy [12] Judge Joy submitted that the provision of particulars of the complaint pursuant to section 25(3)(

b) offends the rules of naturaljustice because it involves the adjudication panel in the prosecution of the complaint. He submitted that it offends the panel’sappearance of independence. [13] Judge Joy also submitted that the inclusion of paragraph three in the particulars provided by the Tribunal in the Notice ofHearing in the DPP complaint and paragraph four in the LAC complaint constitute additional allegations to the complaint and should bestruck.

Judge Joy submitted that these paragraphs in the particulars have the effect of treating the EPJ as a standard or code of conductfor judges. [14] In respect of the application for a stay of proceedings, Judge Joy submitted that should leave be granted, it would be difficult to proceed with a hearing on the merits of the claim until the appeal ofthe Tribunal’s decision had been heard and decided as the appeal goes to the substance of the complaints.

Complaints Presenting Counsel [15] Complaints Presenting Counsel submitted that the authorities are clear that leave to appeal in an uncompleted matter shouldonly be granted in exceptional circumstances. He submitted that Judge Joy has not met the test which is that it must be in the interests ofjustice to grant leave.

He submitted that granting leave to appeal would lead to a fragmentation of the complaints process and amultiplicity of actions, all of which would be contrary to the interests of justice. [16] In respect of the application for a stay, Complaints Presenting Counsel submitted that the issue is moot if leave to appeal is notgranted.

But in respect of the application, if leave is granted, counsel submitted that Judge Joy has not met the three-part test for thegranting of a stay: one, a serious issue to be tried; two, irreparable harm; and three, the balance of convenience. analysis The Leave Application [17] Leave to appeal in an uncompleted matter may be granted if it is shown to be in the interests of justice: Rule 58.03(6). Theconsiderations which inform the “interests of justice” test were canvassed at length by Burrage, J. of this Court in ExxonMobil CanadaProperties v.

Canada-Newfoundland and Labrador Offshore Petroleum Board, 2017 NLTD(G) 80.

Based on the authorities from thisjurisdiction and elsewhere in Canada reviewed by Justice Burrage, he concluded (a conclusion with which I agree) at paragraph 21 ofExxon Mobil that “the court, except in exceptional circumstances, should not interfere with the ongoing administrative process bygranting leave to appeal of interlocutory rulings”, that is, rulings in uncompleted matters. [18] The difficulties of granting leave in such circumstances include the fragmentation and bifurcation of the issues; delay anduncertainty before the Tribunal has completed its mandate; and, the risk of failing to accord appropriate deference to the statutorydecision maker acting within its jurisdiction (see, Canadian Natural Resources Limited v.

Wood Buffalo (Regional Municipality), 2011ABQB 220, paragraphs 25 to 26). [19] Similar expressions of concern appear in our own Courts. In U.F.C.W., Local 1252 v. Cashin (1994), (NLCA), 124 Nfld. & P.E.I.R. 201, 384 A.P.R. 201(Nfld. C.A.) Marshall, J.A stated at paragraphs 36 and 44: 36. There is sound reason to support this practice of requiring leave to hear appeals from interlocutory orders. If decisions taken in theprocess of trial were appealable as a matter of right, litigation might never be brought to completion and disputes could be interminablyprotracted as trial courts waited upon outcomes of appeals.

Successive courts in this jurisdiction have always been mindful of such aconsequence flowing from appeals from judgments pronounced during the course of an action and have shown a reluctance to hear them.Gushue, J.A., in Bank of Montreal v. H.O. House Ltd. (1978) 15 Nfld. & P.E.I.R. 30 expresses this reticence at pp. 41-42 in thefollowing terms: It is apparent that judges at first instance must of necessity make interlocutory orders every day which are based on permissive ordiscretionary powers.

If it were possible to challenge each of such decisions on simple legal or technical grounds, the litigants who wereso disposed could ensure that matters involving them were never brought to completion. The wheels of justice could indeed be broughtto a halt, and it is to avoid this possibility that ... it is, and should be so, difficult to maintain a successful appeal from such orders. This isnot to say that this Court will never interfere with a discretionary order, but I think it fair to say it will only do so in extreme cases. 44. In

summary, therefore, the consideration of ultimate issues on appeal should be reserved as a general rule until the ultimate

decision on the merits of the case has been rendered. While it is evident that procedural and discretionary rulings not directly affectingthe ultimate outcome of an action ought not to be heard on interlocutory appeal, those involving substantive rights where the decidingforum continues to be seized with the merits of the action ought not, as a general rule, to be entertained either. [20] In Exxon Mobil, at paragraph 32, Burrage, J. referred to the case of Kelowna (City) v. British Columbia (Human RightsCommission), (BC SC), [1999] B.C.J.

No. 1848, 19 B.C.T.C. 132 (S.C.) which listed a number of reasonsunderlying the Court’s reluctance to interfere in a Tribunal’s processes. These include: 1. Judicial intervention may fragment the tribunal's proceedings. 2. The tribunal may resolve the dispute to the parties' satisfaction. 3. The court's decision may be rendered moot because of the tribunal's ruling on some other aspect of the proceedings. 4. It is helpful for the court to have an evidentiary record and the tribunal's analysis of the dispute, especially in areas where thetribunal has special expertise. 5.

Courts avoid deciding constitutional and Charter issues on hypothetical facts or in a factual vacuum. [21] These concerns apply equally to pre-trial or pre-hearing procedural applications as they do to mid-hearing applications: Langorv. Spurrell (1997), (NL CA), 157 Nfld. & P.E.I.R. 301, [1997] N.J. No. 264 (C.A.). [22] In Exxon Mobil at paragraph 37, Burrage J. stated: 37. It is apparent from the foregoing authorities that ExxonMobil is swimming against a strong current of judicial precedent to theeffect that leave to appeal of interlocutory rulings should only be granted in exceptional circumstances.

The reluctance of the court toencourage a multiplicity of proceedings by permitting challenges to interlocutory rulings has been described as the “well-knownfundamental principle in administrative law” (Manitoba Hydro, at para. 56). [23] And at paragraph 39 the Court stated: 39. The following considerations emerge from the case law as serving to inform the question of whether or not exceptionalcircumstance(

s) may exist, such as to warrant the intervention of the courts in interlocutory rulings: Will the appeal unduly hinder theprogress of the proceedings, having regard to any time sensitivities? Will irreparable harm result to the appellant should leave bedenied? Will the appellant be unable to obtain a fair hearing should leave be denied? Does the interlocutory decision relate to thetribunals jurisdiction?

Could the interlocutory decision affect a party’s substantive rights? [authorities omitted] [24] In the current case, it is clear that the applications (including the present one), while legitimate, have caused a delay incompletion of the Tribunal’s mandate. It is over three and one have years since the complaint was filed and there has not been anysubstantive hearing.

The application for leave, if granted, would fragment the issues before the Tribunal and may lead to further appealsand more delay. [25] The allegations are not related to the jurisdiction of the Tribunal and therefore are within its mandate and can be dealt with inits ultimate decision. [26] The complaint of denial of natural justice does not relate to the actions of the Tribunal but to an

interpretation of the provisionof the legislation governing the complaint process (section 25(3)(

b) of the Act), an issue squarely within the jurisdiction of the Tribunalas the Act is its home legislation. [27] Not granting leave will not do irreparable harm to Judge Joy’s position.

The same issues can be raised in the hearing before theTribunal (Rule 58.03(10)) and may be further appealed at the conclusion of the substantive hearing. [28] Judge Joy has not satisfied me that the provision of the particulars in the Notices of Hearing as required by the Act or theallegation that they create a separate allegation, even if the latter were true, are sufficient to form the basis of a reason to grant leave toappeal in this case. It does not meet the test of being in the interests of justice to allow an appeal in an uncompleted matter.

In my view,the issues before the Tribunal are clear as are the particulars of the complaints against Judge Joy. The issues raised by Judge Joy in theapplication, for example, whether the EPJ applies to him, are substantive issues which will be dealt with by the Tribunal in its ultimatedecision.

And, in any event, Judge Joy is not precluded from raising the issues raised in the application before the Tribunal in thesubstantive hearings or in any appeal from the Tribunal’s final decision. [29] In conclusion, on the leave application, for the above reasons, Judge Joy has not established that it would be in the interests ofjustice to grant leave to appeal in this case in an uncompleted matter.

The Stay Application [30] In light of my decision not to grant leave to appeal, the application for a stay is really rendered moot. However, for the sake ofcompleteness, I will give brief reasons for denying the application for a stay even if the application for leave were to have been granted.

Judge Joy’s position on the stay is that if leave is granted, it would be difficult and prejudicial to proceed with the substantive hearingwhile the appeal of the Tribunal’s decision is outstanding. [31] In order to obtain a stay of proceedings of the Tribunal decision an applicant must meet the three-part test established by ourCourt of Appeal in Weir’s Construction Ltd. v. Warford Estate, 2016 NLCA 65 which is based on the three-pronged test set out in RJR —MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311.

In Weir’s Construction, Welsh J.A. statedthe test in paragraphs 15 to 18 as follows: 15. The three-pronged test to be applied in determining whether to grant a stay of enforcement of the order pending appeal isdiscussed in Rees v. Royal Canadian Mounted Police, 2005 NLCA 4, 244 Nfld. & P.E.I.R. 72 (N.L. C.A.). 16. The first prong of the test is whether there is a serious issue to be argued on appeal. This requires a preliminary, but not a detailedor extensive, investigation of the merits of the appeal to ascertain whether the appeal is frivolous or vexatious.

In this case, it cannot besaid that the appeal is frivolous or vexatious…. 17. The second prong of the test is whether the applicant for the stay will suffer irreparable harm if the stay is not granted. It is thenature of the harm, rather than its magnitude, that must be considered…. 18. The third prong of the test is an assessment of the balance of inconvenience. ... 1. Serious Issue [32] The threshold for determining whether the Applicant for a stay raises a serious issue is a low one. A refusal to grant leave toappeal is not conclusive on the merits of the issues raised which may be decided by the Tribunal.

The reviewing judge should only makea preliminary assessment of the merits of the case. Once satisfied that the application is neither frivolous nor vexatious, the Judge shouldconclude that a serious issue has been raised: RJR — MacDonald Inc. at paragraph 55. [33] Applying these principles, I conclude that Judge Joy has raised a serious issue, that is, the substance of the complaint he has tomeet. 2. Irreparable Harm [34] On this prong of the test, Judge Joy has a steeper hill to climb. He has not presented any evidence by way of affidavit orotherwise setting out the harm he will suffer.

The Brief by his counsel refers to the right of Judge Joy: 10. … to know whether the Tribunal acted with legal certitude in providing particulars of the Complaints. If the Tribunal so acted, heneeds know whether the Complaints to be defended by him are (

i) the Complaints as made by the DPP and NLLAC and referred foradjudication to the Tribunal by the Complaints Review Committee, or (ii) the Committee-referred Complaints as expanded by theTribunal in furnishing him particulars. [35] I agree with counsel for both parties that it is the nature of the harm and not its magnitude which must be considered. However, I cannot conclude that the harm alleged is irreparable in the absence of evidence to support this allegation. [36] Indeed, the circumstances of this case lead me to the opposite conclusion.

Judge Joy can raise the same issues at thesubstantive hearings as he has raised in the leave application. The particulars of which he complains actually enhance procedural fairnessin my view and provide complete and clear allegations to be dealt with by the Tribunal. Judge Joy has not been suspended and he carrieson his judicial duties. [37] I therefore conclude that Judge Joy has not met the test of establishing that he will suffer irreparable harm if a stay is notgranted. 3.

Balance of Convenience/Inconvenience [38] While strictly not necessary to deal with this prong of the test since I have found that the application failed on the second prong– irreparable harm - I will nevertheless offer my views on the third prong. [39] The Supreme Court of Canada stated at paragraph 85 of RJR — MacDonald Inc.: 85. The third branch of the test, requiring an assessment of the balance of inconvenience, will often determine the result inapplications involving Charter rights. In addition to the damage each party alleges it will suffer, the interest of the public must be takeninto account.

The effect a decision on the application will have upon the public interest may be relied upon by either party. These publicinterest considerations will carry less weight in exemption cases than in suspension cases. When the nature and declared purpose oflegislation is to promote the public interest, a motions court should not be concerned whether the legislation actually has such an effect.It must be assumed to do so.

In order to overcome the assumed benefit to the public interest arising from the continued application of thelegislation, the applicant who relies on the public interest must demonstrate that the suspension of the legislation would itself provide a

public benefit. [40] The Act sets out a procedure for complaints against Judges of the Provincial Court. The procedure is established in the publicinterest in the protection of the administration of justice and to maintain public confidence in the judiciary. The concept ofinconvenience when considering the public interest was set out in RJR — MacDonald Inc. at paragraphs 76 and 77: 76. In our view, the concept of inconvenience should be widely construed in Charter cases. In the case of a public authority, the onusof demonstrating irreparable harm to the public interest is less than that of a private applicant.

This is partly a function of the nature ofthe public authority and partly a function of the action sought to be enjoined. The test will nearly always be satisfied simply upon proofthat the authority is charged with the duty of promoting or protecting the public interest and upon some indication that the impugnedlegislation, regulation, or activity was undertaken pursuant to that responsibility. Once these minimal requirements have been met, thecourt should in most cases assume that irreparable harm to the public interest would result from the restraint of that action. 77.

A court should not, as a general rule, attempt to ascertain whether actual harm would result from the restraint sought. To do sowould in effect require judicial inquiry into whether the government is governing well, since it implies the possibility that thegovernment action does not have the effect of promoting the public interest and that the restraint of the action would therefore not harmthe public interest. … [41] Judge Joy has the onus of establishing that it would be in the public interest to stay the statutorily mandated obligation of theTribunal to hear the complaints.

This he has failed to do. [42] As noted by Complaints Presenting Counsel in his Brief at paragraph 72: 72.

The Applicant indicates the arguments to support the proposition that the balance of convenience ought to be weighed in favour ofthe Applicant are as follows: (1) awaiting outcome of substantive hearing of the Complaints to address the grounds of appeal wouldcause unfairness to the Applicant which outweighs efficient Tribunal process, and (2) granting a stay to address the grounds of appealwould lend to Tribunal efficiency because both the Tribunal and the Applicant would have certainty about the Complaints to beadjudicated. [43] In Howe v. Institute of Chartered Accountants (Ontario), (ON SC), [1994] O.J.

No. 2907, 121 D.L.R. (4th)149 (Ct. J. (Gen. Div.) (Div. Ct.)) an accountant sought a stay in his disciplinary hearing pending the outcome of two civil suits againsthim. The Ontario Divisional Court rejected the request, noting that the prompt exercise of the disciplinary committee’s statutory powersoutweighed any inconvenience caused to the Applicant. [44] The Court stated at paragraph 18: 18.

To permit the disciplinary hearings in the case at bar to be blocked indefinitely by the existence of civil actions which may not beprosecuted expeditiously and which may ultimately be settled would be quite inconsistent, in my opinion, with a recognition of the publicinterest in the disciplinary proceedings. [45] Howe found that the test should be “where there is a real risk of serious prejudice which may lead to injustice.” For theforegoing reasons in this and the leave application, I find that Judge Joy has failed to establish any real risk of prejudice to him. [46] The public interest favours the disciplinary hearing proceed on its merits.

The Tribunal determined that the provisions in theAct are constitutional and the particulars complained of actually enhance fairness and the adherence to the rules of natural justice. Therehas yet to be one day of substantive hearing of the complaints nearly three and one half years after the complaints were filed. Thissignificantly undermines the public interest aspects of the judicial complaints procedure established by the Act and may lead to a loss ofconfidence in the judiciary and the administration of justice.

The final decision of the Tribunal, after hearing all the evidence, mayrender the substance of the complaints moot as the decision may go in Judge Joy’s favour. In any event, the decision can be appealed atthe end of the process so there is no real risk of prejudice to Judge Joy that might lead to an injustice. [47] I find, therefore, that the application for a stay would fail on the balance of convenience. [48] For these reasons, Judge Joy has failed to meet the test for a stay in Weir’s Construction and his application is thereforedismissed.

summary and conclusion [49] The application for leave to appeal is dismissed as Judge Joy has not established that it would be in the interests of justice togrant leave to appeal an uncompleted matter. [50] Likewise, the application for a stay of the Tribunal’s decision is dismissed (in addition to mootness in light of the leave toappeal decision) because on the merits Judge Joy has failed to meet the three-pronged test for the granting of a stay of proceedings.

_____________________________ James P. Adams Justice