) ) TOM L. FOULDS Applicant – v. –, 2017 ONSC 5807

CITATION : Foulds v. Justice of the Peace Review Council, 2017 ONSC 5807 DIVISIONAL COURT FILE NO.: 453/16 DATE: 20171003 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: ) ) TOM L. FOULDS Applicant – and – JUSTICE OF THE PEACE REVIEW COUNCIL Respondent ) ) ) ) ) ) ) ) ) ) ) Jacob R.W. Damstra , for the Applicant Linda R. Rothstein and Jean-Claude Killey , for the Respondent ) ) HEARD at Toronto: September 28, 2017 LEDERMAN J. NATURE OF PROCEEDINGS [ 1 ] The applicant, Tom L.

Foulds (“Foulds”) is a Justice of the Peace who was the subject of a judicial misconduct complaint that has been referred to a formal hearing. [ 2 ] The respondent, the Justices of the Peace Review Council (the “JPRC”) is the statutory body responsible for receiving complaints about the conduct of Justices of the Peace and convening hearings into allegations of judicial misconduct against Justices of the Peace. [ 3 ] The complaint alleged that Foulds had abused his judicial office by participating in and/or attempting to influence criminal proceedings against the former boyfriend of a woman with whom Foulds was having a romantic relationship at the time. [ 4 ] A Complaints Committee was struck under s. 11(1) of the Justices of the Peace Act R.S.O., 1990, c.

J. 4 (the “ Act ”) to investigate the complaint and it ultimately issued a decision in which it ordered, pursuant to s. 11 (15) (

c) of the Act , that a formal hearing into the complaint be held by a hearing panel (the “Referral Decision”). [ 5 ] Foulds has brought an application for judicial review of the Complaints Committee’s Referral Decision.

That application has now been perfected and the hearing of the judicial review is awaiting scheduling. [ 6 ] Following the Referral Decision, a Hearing Panel was established to hear the allegations of judicial misconduct and has set three weeks for the hearing to commence on October 10, 2017. [ 7 ] Foulds has brought this motion for a temporary stay of the Hearing Panel’s proceeding pending the outcome of his application for judicial review. [ 8 ] The JPRC has brought a cross-motion to quash the application for judicial review on the basis that the application is premature and must be dismissed.

FOULD’S POSITION [ 9 ] Foulds acknowledges that as a general principle, this court will refrain from intervening in ongoing administrative proceedings. The court is reluctant to judicially review a tribunal decision that is interlocutory or interim in nature and which does not finally determine the rights of the parties. In such cases, an application for judicial review may be quashed on the basis of prematurity.

[ 10 ] However, Foulds submits that the principle of prematurity should not be invoked in this instance because: (

a) the jurisprudence establishes that it is not appropriate for a single judge to determine the issue of prematurity on a motion prior to the hearing of the judicial review application, except where the application is “manifestly premature” which Foulds says is not the case here; (

b) the Referral Decision by the Complaints Committee which is under judicial review is not an interlocutory or interim decision, but a final statutory decision; and (

c) otherwise exceptional circumstances exist in this case which warrant judicial intervention by a Panel of the Divisional Court at this stage of the discipline proceedings to mitigate any continuing unfairness. SINGLE JUDGE OR PANEL? [ 11 ] Foulds submits that the issue of prematurity is a serious issue which should be determined by the full panel hearing the judicial review application.

As a general rule, a single judge will defer questions of prematurity to the panel hearing the application for judicial review. [ 12 ] In the instant case, however, the motion to a single judge to quash the judicial review application for prematurity was initiated by way of cross-motion in response to Fould’s motion for a stay of the administrative proceedings.

The issue of prematurity relates directly to Fould’s stay motion and therefore is properly before the same judge hearing the stay motion. [ 13 ] Further, there are cases when the judicial review application is so “manifestly premature”, that a single judge on a stand-alone motion to quash ought to exercise the court’s discretion to quash or stay the application: Smith v. Ontario (Securities Commission) [2008] O.J. No. 4980 (Div. Ct.) at para. 9 ; Haigh v. College of Denturists , 2011 ONSC 2152 (Div. Ct.) at para. 10 . More recently, in Lourenco v. Hegedus , 2017 ONSC 3872 (Div.

Ct.), Corbett J. sitting as a single judge of the Divisional Court quashed an application for judicial review for prematurity. [ 14 ] Accordingly, it is appropriate to have the cross motion to quash the judicial review application for prematurity heard by the same judge hearing Fould’s motion for a stay. IS THERE PREMATURITY? [ 15 ] Stratas J.A. in Canada (Border Services Agency) v.

CB Powell Limited , 2010 FCA 61 explained the principle of prematurity as follows at para. 31: This means that, absent exceptional circumstances, those who are dissatisfied with some matter arising in the ongoing administrative process must pursue all effective remedies that are available within that process; only when the administrative process has finished or when the administrative process affords no effective remedy can they proceed to court.

Put another way, absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted. [ 16 ] This principle of prematurity arises from concerns about the fragmentation of the administrative process, increased costs and delays, and respect for the administrative process. [ 17 ] Here, Foulds is attempting to challenge the Referral Decision of the Complaints Committee.

Yet that decision does not decide anything other than there is to be a full hearing into the allegations raised in the complaint before a Hearing Panel. [ 18 ] All of the grounds upon which the judicial review application is based, attacking the Referral Decision, are arguments that can be put before the Hearing Panel. [ 19 ] None of the grounds for judicial review challenge the fairness of the hearing which is yet to take place.

There is no allegation that the specific Hearing Panel members who will preside over that hearing are tainted by any reasonable apprehension of bias or that anything about the hearing process has been unfair in the course of the Hearing Panel making decisions on preliminary matters. [ 20 ] Foulds submits that neither the Act nor the JPRC rules of procedure set out in the JPRC Procedures Document provides for a right of appeal of either a Complaint Committee’s statutory decision regarding its disposition of its investigation into the complaint, or, a Hearing Panel’s decision regarding the disposition of the complaint. [ 21 ] In this sense, he argues that the Referral Decision is not procedural in nature but rather a statutory final decision.

Once the Complaints Committee orders a formal hearing, the entire complaints process becomes public and impacts the reputation of the judicial officer and the justice system as a whole. He submits that such an order to have a formal hearing, as opposed to other available statutory options, has the effect of determining the rights of a justice of the peace. [ 22 ] A lack of appeal rights from a Complaints Committee’s Referral Decision does not detract from the principle of prematurity in this case.

Under the JPRC Procedures Document , the Hearing Panel is empowered to hear motions raising the very challenges which constitute the grounds for Foulds’ application for judicial review. Section 18(3) of the Procedures Document provides as follows:

(1) Without limiting the generality of the foregoing, a motion may be made for any of the following purposes; (

a) objecting to the jurisdiction of the Review Council to hear the complaint; (

b) resolving any issues with respect to any reasonable apprehension of bias or institutional bias on the part of the panel; (

c) objecting to the sufficiency of disclosure by presenting counsel;

(

d) determining any point of law for the purposes of expediting the hearing; (

e) determining any claim of privilege in respect of the evidence to be presented at the hearing; (

f) any matters relating to scheduling; or (

g) seeking a publication ban or an order that the hearing or part thereof be heard in camera… [23] Foulds is not prejudiced by an absence of a statutory right of appeal from the Complaints Committee Referral Decision.

Hecan air all of his grievances about what the Complaints Committee did or failed to do before the Hearing Panel. [24] Even after the disposition of the allegations on their merits by the Hearing Panel, the remedy of judicial review at theconclusion of that process is available to Foulds and at that point the court would have the benefit of a full evidentiary record on allissues and the Hearing Panel’s reasons on any issues raised before it.

This is preferable to the early, piece meal review at this stage ofthe administrative process being proposed by Foulds. [25] The cases are legion that, absent exceptional circumstances, an application for judicial review from a screening orinvestigatory body that does not finally determine the rights of the applicant are premature: for example, see Volochay v.

College ofMassage Therapists of Ontario, 2012 ONCA 541. [26] Foulds submits that exceptional circumstances exist in this case because the Complaints Committee lacked jurisdiction tomake specific determinations and findings of fact in relation to judicial misconduct and as a result, on those aspects of the complaint, theHearing Panel lacks jurisdiction to proceed. Further, he submits that, in the context of allegations against a judicial officer, there is aprospect of real unfairness through a denial of natural justice, if the hearing proceeds.

That is, so he argues, because of, among otherthings, the nature of the Complaints Committee decision, its failure to provide complete disclosure, its failure to evaluate evidenceprovided by Foulds, and the involvement and actions of two members of the Complaints Committee in a previous ComplaintsCommittee which investigated an unrelated complaint against Foulds. [27] Allegations of procedural unfairness, or jurisdictional error, or even allegations of bias at the Complaints Committee stage donot give rise to exceptional circumstances when these alleged deficiencies may be raised before the Hearing Panel.

All of the concernsraised in the judicial review application can be put forth to the Hearing Panel and it has the powers to effect appropriate remedies as itsees fit.

It is that body that is responsible for deciding whether there has been any judicial misconduct and will determine Fould’s rightsafter which he will have the opportunity to bring a fresh application for judicial review of the Hearing Panel’s rulings and decision, ifnecessary. [28] Hence, Fould’s application for judicial review of the Complaints Committee decision can be said to be “manifestlypremature.” THE STAY MOTION [29] A stay of proceedings of a statutory tribunal is an extraordinary and discretionary remedy. It should only be granted inexceptional circumstances.

The test for a stay has been established by RJR - MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311 and Foulds must establish: (

a) that there is a serious issue to be tried; (

b) that he will suffer irreparable harm if the stay is not granted; and (

c) that the balance of convenience favours the granting of a stay [30] Although the threshold to establish a serious issue to be tried is a low one, it has not been met here by reason of the findingthat the application for judicial review is premature: Newbould v. Canada (Attorney General), 2017 FCA 106 at para. 24. [31] Even still, no irreparable harm has been established. All of the arguments impugning the Referral Decision may be raisedbefore the Hearing Panel which is to begin shortly.

Further, Foulds will be entitled to seek judicial review of the Hearing Panel’sdecision at the conclusion of its processes and that constitutes an adequate alternative remedy. Any harm arising from the publication ofallegations against Foulds has already happened and a stay of proceedings will not assist him in this manner. This is not a case wherethere is a risk of Foulds being unable to obtain a fair hearing before the Hearing Panel.

His only complaints are with respect to theReferral Decision which has already been rendered by the Complaints Committee. [32] As for balance of convenience, a stay would prejudice the public interest function of the JPRC and the Hearing Panel. Maintaining public confidence in the justice system requires that a judicial officer’s conduct be virtually irreproachable: Therrien v.Quebec (Minister of Justice), 2001 SCC 35 at para. 111. The JPRC plays an important role in this regard and its processes should notlightly be interfered with.

Avoiding delay of its proceedings far outweighs the prejudice from the risk that the administrative proceedingmight have to be held all over again on the theoretical possibility that Foulds could successfully challenge the Referral Decision. Accordingly, the balance of convenience does not favour granting a stay of the Hearing Panel’s proceedings. CONCLUSION [33] For these reasons, Fould’s motion for a stay of the JPRC hearing is dismissed and the cross-motion is granted.

An order willgo quashing the application for judicial review for prematurity. [34] If the parties cannot agree as to costs of the motion and cross-motion, they may make written submissions within 15 days.

___________________________ Lederman J. Released: October 3, 2017 CITATION : Foulds v. Justice of the Peace Review Council, 2017 ONSC 5807 DIVISIONAL COURT FILE NO.: 453/16 DATE: 20171003 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: TOM L. FOULDS Applicant – and – JUSTICE OF THE PEACE REVIEW COUNCIL Respondent REASONS FOR JUDGMENT Lederman J. Released: October 3, 2017