Friday, May 29, 2015


                                                                                                File No. 05-22-041/1PD2


Justice of the Peace in the
Central East Region


Professional Corporation
Trial & Appellate Advocacy
245 Yorkland Blvd., Suite 302
Toronto, Ontario
M2J 4W9

Ernest J. Guiste
(416) 364-8908
(416) 364-0973 fax

Barrister & Solicitor
31 Prince Arthur Avenue
Toronto, Ontario
M5R 1B2

(416) 707-6271
(416) 960-5456 fax

Co-counsel for HW Massiah


1.         Does the financial security component of judicial independence carry with it an obligation that the Respondent be indemnified by the Attorney General for the costs associated with his defence in these judicial misconduct proceedings under the Justices of the Peace Act  ?

2.         Does the financial security component of judicial independence carry with it an obligation that the Respondent be indemnified by the Attorney General for the costs associated with his defence in judicial misconduct proceedings under the Justices of the Peace Act, where as here, the legal basis for the misconduct is contingent on the adjudication of the Human Rights Code, preliminary questions going to jurisdiction and abuse of process?

3.         Does the financial security component of judicial independence carry with it an obligation that the Respondent be indemnified by the Attorney General for the costs associated with his defence in judicial misconduct proceedings under the Justices of the Peace Act where the Hearing Panel expressly invite counsel for the parties to resolve the following legal questions,  seeks out Independent Counsel for legal advice and orders that the preliminary motion be adjudicated on a full evidentiary hearing and the Hearing Panel denies the Respondent of an opportunity to participate in a Pre-Hearing Conference to explore resolution short of a hearing in circumstances?

 4.         The Respondent submits that the answer to all three questions above is yes.  The reasons in support of this conclusion is delineated below.

 Additional questions of law
for Panel’s adjudication:

5.                                 1.         Did the Respondent have a legal right to defend
                                                those allegations raised in the Notice of Hearing
                                                which he did not admit to in his written response
                                                to the Complaints Committee notice letter to him ?

                                    2.         Assuming the Respondent has such a right, does
                                                the refusal to indemnify him for the cost of
                                                defending himself render such a right illusory,
                                                deprive him of access to justice and denude the
                                                proceedings of fairness and legal legitimacy ?

 6.         The Respondent respectfully submits that the answer to both questions is yes.  The overriding rationale for this is founded in the fundamental tenets of our system of justice. Judicial officers are the guardian of the Constitution and the Rule of Law.  They must never be seen to be influenced in any manner by the administration.  We have a clear separation of those functions in our system.  The ability of the Respondent to fully defend himself in such a system is critical to the legal legitimacy of the decision to remove him.  He makes $122,000 per year. He could not properly defend himself were it not for all of the counsel who have defended him to date rising to the call of duty and providing him with a proper defence in reliance on the age old practice of the Attorney Generals indemnifying judicial officers for the cost of their defence.

                                                Compensation Documents First Hearing – Tab 10


7.         It is settled law that a Justice of the Peace is a judicial officer entitled to the full rights of judicial independence.  This reality is confirmed by s.20 of the Justices of the Peace Act which affords them the same immunity from liability as a judge of the Superior Court of Justice.

                                                Ell    v.  Alberta 2003 S.C.C. 35 at para 24
                                                Justices of the Peace Act, s.209

8.         Accordingly, it is simply wrong in law to suggest that the general costs provisions in civil litigation and or the regulated provisions apply to justices of the peace with respect to their indemnification for costs incurred in defending themselves in judicial misconduct under the Justices of the Peace Act.  One simply has to look at the multitude of cases where justices of the peace have consistently been indemnified for the costs associated with defending themselves – even where they are removed from office. 

                                                Re Blackburn 1994 (Hogan J.)
                                                Re Romain 2002 (Otter J.)
                                                Re Obakata 2003 (Mocha J.)
                                                Re Sinai 2008 (Carr J.)
                                                Re Quon 2007 (Di Filipis J.)
                                                Re Kowarsky 2012 ( Hawke J.)
                                                Re Massiah 2012 (Vailencourt J.)

9.         The following pronouncements by respected jurists make it abundantly clear that a finding of misconduct does not disqualify a justice of the peace from indemnification for the costs of defending judicial misconduct proceedings:

                         “Costs in the proceeding are not contingent on success”

                                                Otter J. In Re Romain 2002

                         “It should be noted that there is no provision in the statute
                        which ties a recommendation as to costs with a recommendation
                        for removal.”  

                                                Hogan J. In Re Blackburn 1994     
10.       In civil litigation the general principle is that costs follow the outcome.  This means that the successful litigant is compensated by the losing party for having to either assert or defend their right or honour.  Costs in this regime are clearly governed by the Courts of Justice Act and
Rule 57 of the Rules of Civil Procedure.

11.       It is clear that the drafters of the Justices of the Peace Act clearly did not intend to incorporate the civil litigation costs framework in the adjudication of the issue of indemnification of justices of the peace otherwise they would have stated so in the Act.

12.       It is also clear that the drafters of the Justices of the Peace Act intended for a speedy
and efficient adjudication of the issue of indemnification outside of the traditional costs assessment before an Assessment Officer.

13.       Accordingly, Re Foulds 2013 has no binding or persuasive authority on the issue of compensation.  Firstly, at para 50 the panel equates the compensation issue for justices of the peace with the professional disciplinary process.  This is clearly wrong.  Justices of the Peace are neither employees or professional liscense holders.  They are part of the judiciary.  Secondly, the panel comments that the “awarding of costs” in judicial misconduct proceedings lacks consistency but fails to articulate this point with any authorities.  In fact,  judicial officers are consistently compensated for the cost of their defence in judicial misconduct proceedings and it is in rare circumstances that they are not.  It will be instructive to analyze those rare circumstances where they are not in adjudicating this aspect of the case.

                                                Reilly  v.  Wachowich 1999 ABQB 639 (Canli)
                                                Ruffo  v.  Quebec [1998] R.J.Q. 254
                                                Fortin  v.  Ministre de la justice Quebec 2002 Canlii 1160

Financial Security Component
of Judicial Independence:      

14.       A significant component of the right of judicial independence is financial security for judicial officers.  Strict procedures are put in place to ensure that the executive branch of government does not and is not seen to hold any influence over judicial compensation.  S. 21.1(20 of the Justices of the Peace Act evidences this important interest.  Sections 20 and 11.1(17) combined provide the statutory articulation of the constitutional tradition that the Attorney General is responsible for indemnifying judicial officers for the cost of their legal defence in judicial misconduct proceedings.


 Issues transcending the parties
and in public interest:

15.       The Respondent urges the Hearing Panel to recommend full indemnification.  This is especially true in circumstances – where as here – the Respondent asserts novel and significant questions of statutory interpretation touching on jurisdiction, abuse of process and judicial independence which clearly transcend the parties and are in fact in the public interest.  The Respondent’s litigation has provided answers to the following questions of statutory interpretation and public importance:

                                    1.         Clarification on the in-writing requirement in s.10.2;
                                    2.         Clarification on who can bring a complaint;
                                    3.         Clarification on whether a Complaints Committee, as distinct
                                                from the Review Council, can receive a complaint under the
                                    4.         Clarification of a Hearing Panel’s jurisdiction to consider acts or                                                     decisions of a Complaints Committee;
                                    5.         Clarification on what is “unwelcome” and “vexatious’ “sexual
                                                harassment” in the court setting;
                                    6.         Clarification of the elements of compliance with natural justice and
                                                fairness in the investigation stage of JPA proceedings;
                                    7.         The application of Blenco to proceedings under the JPA
Additional grounds for

16.       The Respondents respectfully submits that in addition to the above – the following facts and circumstances justify full indemnification for the costs incurred by this judicial officer in defending himself.

Judicial Immunity:

17.       While some of the allegations did not go to the actual discharge of his judicial duties.  It is clear that counts 1,3 and 13 of the Notice of Hearing touched the discharge of his judicial duties to litigants before the Court and no such litigants were called to testify in support of this claim.  Section 20 of the JPA protects sitting justices of the peace from such attacks on the discharge of their judicial functions.

                                                s.20 of JPA – Judicial Immunity

 Novel and Unprecedented Case:   

18.       The case against His Worship Massiah was novel and unprecedented.  Never has a justice of the peace been prosecuted for judicial misconduct founded on a violation of the Ontario Human Rights Code with respect to not only his workplace interactions with court-staff but in the manner of the discharge of his judicial duties with litigants before the court based solely on the observations of court-staff in the absence of any complaint from the impacted court-staff or any litigants appearing before the court and in the absence of a clear policy in the Ontario Court of Justice touching on interactions between judicial officers and court staff. 

19.       The Region of Durham, the employer of the subject employees, who has a duty under the Ontario Human Rights Code and the Occupational Health and Safety Act to provide a harassment-free workplace for its employees was not aware of any facts or circumstances giving rise to a poisoned work environment created by the Respondent.

Hearing Panel Pronouncements:

5)         This Hearing Panel posed the question to both Presenting Counsel and Counsel for His Worship as to whether we ( the Panel) have the jurisdiction to consider the actions of the Complaints Committee.  The Hearing Panel determined that its jurisdicition in this regard must be determined prior to the hearing of the abuse of process motion.  Oral argument on this narrow issue was heard on April 9th, 2014.

                                    Decision on Threshold Jurisdiction Questions (June 6th, 2014)

10)       There appear to be no decisions from judicial conduct hearings for justices of the peace where relief for alleged irregularities in the complaints process were considered or granted.


22)       With respect to the Panel’s second question concerning its authority to determine that validity of a “complaint” under section 10.2 of the JPA, we rely on Sazant(supra), para 189.  It resolved that competing positions of Krop and Sutherland over a discipline committee’s authority to review the investigatory stage which led to a hearing.  If the “issues” went to the underlying jurisdiction of the committee to proceed with a hearing” then a review of the investigatory process is appropriate.

23)       This is exactly the circumstance this Hearing Panel is being asked to consider by His Worship.  It is whether former Presenting Counsel, Mr. Hunt, could be considered a complainant and whether the materials which he sent to the Review Council could constitute “a complaint”.  A “complaint” pursuant to 10.2 is an overriding requirement under the Act for the establishment of a complaints committee.

                                    Decision on Threshold Jurisdiction Questions – June 6th, 2014

24)       In our view, Sazant provides the authority for the Hearing Panel to consider the circumstances in the investigatory process as threshold issues.  The Panel can consider whether the Complaints Committee’s decisions or actions affect the exercise of a power of the Panel concerning its own mandate.  If the investigatory process is found to have been appropriate, then the Panel has the jurisdiction to conduct the hearing on its merits.

25)       We accept that the Hearing Panel has jurisdiction to consider the specific issue of the sufficiency of the “complaint” within the meaning of s.10.2 in assessing whether it has jurisdiction to conduct he hearing. 

                                    Decision on Threshold Jurisdiction Questions – June 6th, 2014

27)       In response to the jurisdiction question raised by the Panel, in our view, both Presenting Counsel and Counsel for His Worship also provided materials and/or oral submission related to the abuse of process and fairness motion.  As well, Mr. Gover also commented on abuse of process and fairness issues in his legal opinion.  Submissions from all counsel on those issues have been instructive.


20.       “Secondly, I agree that, based on what I now have heard about what likely remains to be argued in relation to abuse of process, that there is merit in having the abuse of process issue conclusively argued once all of the evidence has been heard.” 

                                                (June 18th, 2014 @ p.68 ln19)

21.       “What we would propose to do is have those reasons in by the 7th of July, when we would normally have been proceeding; however, we will not rule on them until we have heard evidence, so to allow, with caution, any potential further issues about abuse of process to be canvassed after the evidence is in.  So, its a Pyrrhic victory to some extent, Mr. Guiste.   I
agree with you that we can adjourn the abuse of process motion argument itself from today.”

                                                (June 18th, 2014 @ p.69 ln 15)

 Fair Admissions Made
Early in Process:

22.       Early in the investigation process His Worship Massiah clearly conceded that some of the allegations brought against him were consistent with his manner of interacting with staff prior to his first disposition and that he would not interact with staff in that manner in the future.  He confirmed this position at the hearing too.

                                                His Worship Massiah’s Written Response
                                                Transcript of Proceedings of July 29th, 2014

23.       Prior to embarking on a formal hearing His Worship sought unsuccessfully to avail himself of a Pre-Hearing Conference pursuant to Rule 14 of the Procedures in order to narrow the issues and attempt settlement.

23a      At the outset, the Respondent provided authority addressing the jurisdiction of the Hearing Panel to address his motions.  He stated the following at para 25 of his initial factum dated July 11th, 2013:

25)       IT IS RESPECTFULLY SUBMITTED THAT although the enabling legislation does not expressly provide this panel with this authority as it does the complaints committee that such authority is vested in the panel by virtue of its right to adjudicate questions going to its jurisdiction.

23b.     Independent Counsel retained by the Hearing Panel provided similar legal advice in May, 2014, ten months later.

25)       ALTERNATIVELY, IT IS RESPECTFULLY SUBMITTED THAT the (sic) after completing the hearing the panel is entitled to dismiss the complaint(s) with or without a finding that it is unfounded and a request is made for such an order – with the understanding that should the decision on the motion be deferred that the Applicant shall have the right to adduce further evidence in support of the claims raised herein.

23c      Indeed, Presenting Counsel echoed the same point in their factum dated July 19th, 2013 in the following words:

34)       In conclusion, Presenting Counsel submits that the motion should be dismissed, without prejudice to renew it at the end of the Hearing.

23d      IT RESPECTFULLY SUMBITTED THAT the record reveals that any suggestion that the Respondent delayed these proceedings is not grounded in fact or the tribunal record.  It would appear that the following unforeseen events lengthened the hearing and made the proceedings unintentionally more complex:

                        1.         Hearing Panel’s questions and request for assistance on
                                    their jurisdiction;

                        2.         Ms. Blight’s late revelation that she sat on a prior Complaints
                                    Committee involving the Respondent and voluntarily recusing

                        3.         *Late, incomplete or non-disclosure of relevant information by
                                    Presenting Counsel;

                        4.         Hearing Panel’s decision to decide their jurisdiction first – almost
                                    a year after the motion was raised in July, 2013 by the Respondent.

Legally recognized
and arguable defences:

24.       On the findings made against His Worship the Ontario Human Rights Code provides the following defences:

                                    1.         Jurisdiction – deferral to alternate forum – s.45;
                                    2.         Delay – s.34(1)(2)
                                    3.         Consent/Welcome/Not vexatious Defence

                                                CHRC   v.  Canadian Armed Forces et al 1999 Canlii 18902
                                                Anamguya  v.  Intercon Security 2011 HRTO 2186
                                                Szabo  v.  Regional Municaipality of Niagrara 2010 HRTO                                                         1083 Lavoie  v.  Calabogie Peaks et al 2012 HRTO 1237
                                                OHRC  V.  Howard 2004 HRTO 8

25.       His Worship exercised his right under the Human Rights Code and the Justices of the Peace Act to contest those allegations leveled against him which he did not admit to in his written response based on both the substantive and procedural defences provided by those statutes along with s.23 of the Statutory Power Procedures Act and the common law doctrine of abuse of process.

Right to Defend
One’s Self Fundamental:

26.       The right to defend one’s self is perhaps the most fundamental legal right in our system of justice.  So fundamental is this right that it is in fact incorporated in the Justices of the Peace Act in s.11.2(1) and (2).

27.       The following international conventions are further evidence of this important and fundamental right:

Universal Declaration of Human Rights, G.A. Res.271(III), UNGAOR, 3d Sess., supp. No. 13, UN. Doc. A/810 (1948) 71

Article 12.

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honur and reputation.  Everyone has the right to the protection of the law against such interference or attacks.

International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171

Article 17

1.   No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2.   Everyone has the right to the protection of the law against such interference or attacks.

His Worship Massiah’s

28.       It can not reasonably be said that the Respondent’s defence was frivolous, vexation or without merit.  His defence was clearly well grounded on recognized and viable procedural and substantive grounds which were clearly acknowledged and welcomed by the Hearing Panel. The defence was clear and consistent commencing in July, 2013. 

Duty of Counsel
to defend:

29.       Counsel has a well recognized duty to defend his or her client.  Given that a “complaint” provides the Hearing Panel with both the jurisdiction to embark on a hearing and make a recommendation for removal following a hearing under the JPA, counsel was duty bound to advance the three motions advanced on behalf of the Respondent.

30.       Under the enabling legislation there are two statutory prerequisites to removal of a justice of the peace which clearly recognize and speak to the right to defend one’s self.  Firstly, a complaint about the justice of the peace has to have been made to the Review Council.  Secondly, only after a hearing before a Hearing Panel which finds that the justice has become incapacitated or disabled from the due execution of his or her office by reason of conduct that is incompatible with the due execution of his or her office.

31.       It is important to appreciate that the first pre-condition speaks to a complaint being made to the “Review Council” as distinct from the “Complaints Committee” as it is the “Review Council which receives “complaints” under the s.10.2(1).

 The motions advanced
by the Respondent:

Publication Ban:

32.       This motion was advanced on the basis that the issue of jurisdiction should be adjudicated before the complaints can be publized.  Clearly, if there is no jurisdiction to entertain the “complaint(s)” then publication ought not to take place.  Indeed, a panel of the Review Council ordered such a publication ban in Re Kowarsky.


33.       It was reasonable and prudent to bring a disclosure motion on behalf of the Respondent. Indeed, the record shows that contact information for material witnesses such as A, B , C, D, E, F, G, H, I, J, K, L,  were not disclosed in accordance with s.10 of the Procedures Document.  While information for A and B were finally given the hearing proper had already commenced.  That section places an affirmative obligation to “forward to the respondent the names, and addresses of all witnesses known to have knowledge of the relevant facts...” – not just the ones being called by Presenting Counsel.  It is clear that this provision was not complied with. 


34.       Asserting a claim of bias is one of the most distasteful yet at the same time one of the most important claims that an advocate may be called upon to advance on behalf of a client. The claims advanced were made in good faith in the best tradition of our adversarial system. The fact they were dismissed does not speak to whether the Respondent had a legal basis to advance them and for which he ought to be punished.  Clearly, this would put a chilling effect on a very important and fundamental part of our adversarial system.                       

Ex Post Facto Laws:

35.       The Registrar has communicated on May 14th, 2015 an intention or confirmation that the Review Council’s Procedures has been amended to make the compensation part of proceedings before a Hearing Panel part of the public hearing.            

36.       In response to this notice, counsel on behalf of the Respondent made a specific request for disclosure of the following information and documents:

                        1.         Cost of the investigation and hearing of the first proceeding;
                        2.         Cost of the investigation and hearing of this proceeding to date.

37.       At the time of writing this disclosure request remains unsatisfied.

 38.       IT IS RESPECTFULLY SUBMITTED THAT given that the proceedings against the Respondent having been started under the prior procedures where his prior counsel were both fully compensated for their efforts on his behalf, it would be contrary to natural justice, fairness and the Rule of Law to change the rules at this stage.  That would amount to an ex post facto law.  There is no valid legal justification for changing the rules at this time. Indeed, when placed in perspective the legal costs incurred here were clearly a result of the novelty and seriousness of the legal issues which arose on what was a very unique case.  Compared to the following it is not unreasonable at:

                                     1.         Re Kowarsky - $37,000 or so for a guilty plea;

                                    2.         Re Massiah(1) - $125,000 plus for a 4 day hearing
                                                with no jurisdictional questions or abuse of process
                                                and no Independent Counsel.  Also, no allegation
                                                of “unwelcome”, “vexatious” or  “poisoned work
                                                environment” or a “prior record of misconduct”;

                                    3.         It is safe to say that persons have been found to
                                                be liable of much more serious wrong-doing and
                                                have had the costs associated with defending
                                                themselves fully compensated by the Government
                                                of Ontario;

                                    4.         It is just plain wrong to single out this judicial officer. 

39.       All of which is respectfully submitted.  As has been the practice in this proceedings the Respondent will wish the same right afforded Presenting Counsel to date for a right of reply to Presenting Counsel’s submissions.

May 18th, 2015.

E.J. GUISTE  & J. House, Co-counsel for the Respondent

Reilly v. Wachowich,1999 ABQB 639

Date: 19990816
Action No. 9801-08707





- and -




of The Honourable Mr. Justice D.B. Mason

[1]        The Applicant, Judge Reilly (“the Applicant”), was the appointed, resident Provincial Court Judge in Canmore, Alberta. On or about April 3, 1998 the Respondent Chief Judge of the Provincial Court, as he then was, (“the Respondent”) issued a directive that the Applicant be reassigned from Canmore to Calgary and that he change his residence accordingly. The reason for this directive was that the Respondent disagreed with several of the Applicant’s judgments and was of the opinion that the Applicant had lost his impartiality when dealing with aboriginal offenders in criminal matters.   The Respondent did not refer the matter to the Judicial Council, as he might well have done, but instead chose to issue the aforementioned directive. In doing so, the Respondent purported to implement “corrective measures” pursuant to his statutory and constitutional authority.  Once the Respondent instituted the directive and presented the Applicant with a fait accompli, the only avenue available to the Applicant to challenge the statutory and constitutional powers of the Respondent was to bring an application for Judicial Review pursuant to Part 56.1 of the Alberta Rules of Court.

Text Box: 1999 ABQB 639 (CanLII)[2]        The Applicant instituted Judicial Review proceedings seeking a declaration that the directive of the Respondent was a nullity with certiorari and an order to quash in aid. By Judgment dated April 26, 1999, I found that the Respondent took these corrective measures wrongfully and without statutory or constitutional authority. I found further that, in taking this action, the Respondent wrongfully disciplined the Applicant, threatened his adjudicative independence and, in the process, denied him procedural fairness.

[3]        The present application concerns the issue of costs.  The Applicant contends that he is entitled to an order for costs on an indemnification basis. The Respondent argues that an award of costs against him, particularly on an indemnification basis, is wholly inappropriate.


1.                  Is the Applicant entitled to his costs on the application for Judicial Review?

2.                  If costs are appropriate should those costs be on an indemnity basis or on a party and party basis, in accordance with Schedule C of the Alberta Rules of Court?


[4]        The Applicant argues that judicial independence was central to the determination of the Judicial Review Application. He contends that, as a member of the Judiciary, it is his responsibility to enforce and protect the constitutional right to a fair and impartial hearing. As such, he was duty bound to challenge the Respondent’s directive by way of Judicial Review.

[5]        The Applicant argues that it would be contrary to the public interest to decline his application for indemnification in several respects. Firstly, he argues that it would necessarily infringe his right to financial security, one of the three core characteristics of judicial independence. Secondly, the Applicant states that it would lead to a chill effect and would discourage other members of the Judiciary from fulfilling their duty to protect and enforce the constitutional right to an impartial hearing. Thirdly, it may dissuade judges from acting in accordance with the Ethical Principles for Judges as set out by the Canadian Judicial Council. Finally, the Applicant submits that, if the Court declines to grant full indemnification in this instance, the ability of Chief Judges to act in a constitutionally impermissible manner in the future will be enhanced.

[6]       The Applicant suggests that an award for costs on an  indemnification basis would be appropriate as it satisfies the criteria enumerated by the courts in previous decisions. These criteria will be discussed more fully below. Alternatively, the Applicant requests an order for party and party costs with the application of a multiplier, such that the amount ordered would effectively compensate him for all of his legal expenses. For the purposes of this calculation, the Applicant suggests that column 5 should be used and the Judicial Review hearing should be treated as though it were a trial.

Text Box: 1999 ABQB 639 (CanLII)[7]        The Applicant states further that he is not seeking costs against the Respondent in his personal capacity, but in his capacity as the incumbent of the Office of the Chief Judge. The Applicant suggests that the Respondent would be indemnified by the Provincial Government in any event and would not suffer any personal liability even if costs were awarded against him.
However, the Applicant argues that, even if the Government refused to reimburse the Respondent for the Applicant’s costs, this Court should not be dissuaded from making the requested order because there are no special rules exempting Chief Judges from the personal payment of costs.


[8]        Although costs may be awarded against a true respondent on Judicial Review, the Respondent takes the position that no costs should be awarded against an administrative tribunal where it limits its submissions to jurisdictional issues. The Respondent argues that the general rule is that costs should only be awarded where the tribunal has lost jurisdiction through capricious or arbitrary conduct or where it has acted in bad faith. Even on the rare occasion where such conduct is found, the Respondent contends that party and party costs, as opposed to costs on an indemnity basis, are appropriate.

[9]        The Respondent states that he legitimately believed that he had the requisite authority to make the impugned decision by virtue of sections 2(5) and 9 of The Provincial Judges Court Act, R.S.A. 1998 c. P-20.1. As such, he states that he was entitled to defend his jurisdiction and present his case on statutory authority and that he should not be penalized for having done so.
The Respondent suggests further that, if the general rule regarding costs were relaxed such that they were awarded more readily, it would discourage litigants from pursuing or defending their position in Court. Consequently, he suggests that awarding costs in this case would set a dangerous precedent.

[10]      In the event that costs are warranted, the Respondent submits that they should be party and party costs only. He contends that indemnity costs are only appropriate where the unsuccessful litigant has demonstrated blameworthy conduct. The Respondent suggests that he has not demonstrated any misconduct during these proceedings and as a result he should not be visited with such costs.

[11]      The Respondent advised there is no guarantee that the Government will reimburse him for any of his costs, particularly any costs awarded on an indemnity basis. He suggests that an indemnity award would tend to indicate that he had acted outside the scope of his duty in which case the Government may take the position that it is not responsible for his legal costs.

[12]      The Respondent submits that an award of costs against him personally would infringe his judicial independence, specifically his administrative independence. He submits that all of the arguments the Applicant makes regarding the potential threat to his financial security if this application is not granted, apply with equal force to the Respondent’s administrative independence if the application is granted.  The Respondent states further that it is the

Government’s responsibility to ensure that the Applicant enjoys financial independence, not the Respondent’s.


[13]      The parties have referred me to a number of decisions which discuss the general principles in relation to awards for costs. I find that those decisions can be separated into three distinct categories based on the nature of the litigation within which they arise.

1.    Standard Litigation

[14]      It is well settled, and indeed codified by Rule 601(1) of the Alberta Rules of Court, that costs are within the Court’s discretion. Nonetheless, some general principles have been established in awarding costs in the context of standard litigation between private parties. In Jackson and Parkview Holdings v. Trimac Industries (1993), 138 A.R. 162, (Q.B.), Hutchinson, J. addressed the issue of where an award of costs on an indemnity basis would be appropriate.  The Court stated that generally costs will follow the event and, where awarded, they will be on a party and party basis. At page 166-167 the Court quoted, with approval, from Reese v. Alberta (Minister of Forestry, Lands and Wildlife) (1993), 133 A.R. 127 (Q.B.), where McDonald, J. discussed the Canadian philosophy in relation to awards for costs. In Reese, the Court found that awards of costs are made with a view to striking a balance between two competing interests: 1) a successful party that has not demonstrated any blameworthy conduct should not be required to pay for his/her legal costs; and 2) prospective litigants should not be discouraged from asserting or defending their rights by having to bear all of the legal costs incurred by the successful litigant.

[15]      In Jackson the Court stated that awards for costs should deviate from the general principle of party and party costs only where the case is rare, exceptional or unusual. Following a careful and scholarly review of a number of authorities from various courts, Hutchinson, J. summarized nine examples of what has been judicially considered to constitute rare and exceptional circumstances warranting a departure from the general principle of awarding party and party costs. Based on his findings of law, Hutchinson, J. found that costs on an indemnity basis were appropriate in that case.  The Court of Appeal declined to interfere with these findings and affirmed the decision as it relates to costs (see: Jackson and Parkview Holdings v. Trimac Industries (1994), 155 A.R. 42).

[16]      In  Sidorski et al v. C.F.C.N. Com. Ltd. (1997), 206 A.R. 382 the Court of Appeal restated the principles set out in Jackson and adopted the list of examples cited by Hutchinson, J., of rare and exceptional circumstances in litigation between private parties where the courts have departed from the general rule of awarding party and party costs. The examples tend to indicate that it is the conduct of the litigation which is determinative of what scale of costs is appropriate in any given circumstance. That principle was expressly recognized by the Court of Appeal in Colborne Capital Corp. v. 542775 Alberta Ltd., [1999] A.J. No. 33.  In Lawson v.
British Columbia (Solicitor General) (1992), 88 D.L.R. (4th) 533 the British Columbia Court of Appeal similarly found, at page 588, that solicitor and client costs should only be awarded where there has been “reprehensible, scandalous or outrageous conduct deserving of chastisement”.

Text Box: 1999 ABQB 639 (CanLII)That statement was later explicitly adopted by the Supreme Court in Young v. Young (1993), 108 D.L.R. (4th) 193 at page 283. As was noted by Eric T. Spinks in his essay Party and Party Costs (Alberta Law Reform Institute, October 1995), decisions of this nature demonstrate the courts recognition of the trend towards the use of costs to control litigants’ behaviour and provide an incentive to efficient litigation.

2.    Administrative Tribunals

As above the Respondent suggests, an order of costs does not lie against an administrative tribunal which limits its submissions to the issue of jurisdiction. In that regard, I was referred to R v. Ontario Labour Relations Board (1969), 4 D.L.R. (3d) 485 (Ont. H. Crt.).

[17]      In St. Peter’s Estates Ltd. v. Prince Edward Island (Land use Commission) (1991), 2 Admin. L.R. (2d) 300 (P.E.I. S.C.), the Court found that costs awards should only be made against an administrative tribunal in unusual and exceptional circumstances such as where the tribunal acted in a capricious, bad faith or arbitrary manner, or otherwise contrary to the rules of natural justice.   At paragraph 15, the Court stated that:

. . . it might be said that where the tribunal has acted in good faith and conscientiously throughout, albeit resulting in error, the reviewing tribunal will not ordinarily impose costs. On the other hand, where these characteristics have not been clearly evident, the Court will cast a caustic eye upon it, which will normally result in costs being awarded against it.

[18]      In Construction and General Labourers Union, Local 1097A v. M.F. Schurman Construction Limited (1985), 56 Nfld. & P.E.I.R. 353 (P.E.I. S.C.) the Court stated that, although an administrative tribunal has the right to be wrong, it does not have the right to act in a cavalier manner regarding its own jurisdictional right to proceed in the first instance.

[19]      The Nova Scotia Supreme Court declined to award costs in the case of Logan v. Nova Scotia (Denturist Licencing Board) (1994), 25 Admin L.R. 285, where the administrative tribunal had not misconducted itself and its decision was not perverse. This is consistent with the much earlier decision in Regina v. Liverpool Justices , [1960] 1 W.L.R. 585, where the English Court of Queen’s Bench found that costs would only be awarded against a justice or a tribunal for acting perversely or without regard to the fundamental principles to which every court ought to adhere. Even in those instances, the Court found that costs should only be awarded in flagrant cases.

[20]      The Applicant cited the decisions in Tolko Industries Ltd. v. Big Lakes (M.D.) et al.
(1998), 217 A,R, 369 (Q.B.) and Grochowski v. Alberta Association of Architects (1996), 184
A.R. 233 (C.A.) for the proposition that an administrative tribunal may incur costs where it has exceeded or lost its jurisdiction or where it has committed a breach of natural justice. In Grochowski, the Court of Appeal awarded solicitor and client costs against a tribunal that exceeded its jurisdiction and failed to afford procedural fairness to the applicant.

3.    Constitutional Litigation Concerning the Independence of the Judiciary

Text Box: 1999 ABQB 639 (CanLII)[21]      The present matter is one of several recent cases  calling into question the internal workings of the Court and its management. Decisions of this nature are demonstrative of the growing difficulty in Canada of Chief Judges having to administer large and complex courts. I was referred by the parties to a number of cases which involved applications for costs in circumstances which involved the third arm of the government and the constitutional issue of judicial independence.

[22]      I was referred by the Respondent to Mackin v. New Brunswick (Minister of Finance) (1998), 21 C.P.C. (4th) 29 (N.B. Q.B.). In that case, the Plaintiff judge had elected to become supernumerary in lieu of retiring.  The legislation that provided for supernumerary status was then repealed and replaced with a system where retired judges were engaged to hear cases on a per diem basis. The plaintiff brought an action challenging the constitutional validity of the legislation and refused to hear any cases pending the determination of the action.  The Chief Judge obtained an order requiring the plaintiff judge to carry out his duties. In response to that order, the plaintiff returned to court but either adjourned the cases before him or ordered stays of proceedings. The Minister of Justice then brought a complaint against the plaintiff alleging neglect of duty and misconduct. The complaint was dismissed and the plaintiff judge brought an application for costs against the Minister.  Although the Court refused to grant solicitor and client costs, on the basis that the requisite misconduct did not exist, the Minister was ordered to pay all reasonable legal expenses. The Court determined that a refusal by the government to provide legal representation for the plaintiff was incompatible with the concept of judicial independence.

[23]      The Applicant referred me to Ruffo c. Quebec (Ministre de la justice), [1998] R.J.Q. 254 (C.S. Qué).  In that case, the appellant judge applied for a declaration that she was entitled to costs against the Minister of Justice for legal expenses incurred in her defence against two complaints brought before the Judicial Council. The Minister opposed the application on the basis that the complaints did not relate to acts arising from the exercise of the plaintiff’s judicial function. The Court referred to Reference re the Remuneration of Judges of the Provincial Court of Prince Edward Island (1998), 150 D.L.R. (4th) 577, where the Supreme Court of Canada refused the right to recover legal fees on the basis that the litigation did not directly and immediately impact the exercise of the judicial function. In Ruffo, however, the Court found that the substance of the allegations did concern the plaintiff’s conduct in her judicial capacity and, as such, there was no reason for the Minister’s refusal to pay the costs requested. The Court stated that, if the decision to pay the plaintiff’s legal costs was left to the discretion of the executive, it would permit the executive to punish judges who did not render judgments favourable to the government and reward those who did. The Court concluded that such a result would impair the independence of the judiciary.

[24]      In Reference re: Territorial Court Act (N.W.T.), s.6(2), (1997), 152 D.L.R. (4th) 132 (N.W.T. S.C.), the Court addressed the constitutionality of legislation which provided for the appointment of deputy territorial judges for periods of two years or less. The legislation allowed for the revocation of those judicial appointments upon the written recommendation of the Chief

Text Box: 1999 ABQB 639 (CanLII)Judge. The Chief Judge in that case challenged the constitutional validity of the legislation and the Court ultimately determined that it was largely unconstitutional. The Chief Judge sought full reimbursement for his legal costs. The Minister took the position that only party and party costs would be appropriate.  There Vertes, J. found, at paragraph 143, that :

The Minister’s position would in effect apply a general litigation practise to this reference. I do not consider this case to be litigation in the normal sense of that word.

And later in the same paragraph:

The issues on this reference touch directly on fundamentally important considerations of the independence and impartiality of the Territorial Court. As submitted by the Chief Judge he has an obligation to intervene in the interests of the judiciary and in the public interest for the orderly administration of justice. No one else did so.

In that case, the Chief Judge was awarded full and reasonable solicitor and client costs.

[25]      In Ell et al. v. Alberta, [1999] A.R. TBEd. MR. 101 (Q.B.), the applicants challenged the constitutional validity of proposed amendments to the Justice of the Peace Act, R.S.A. 1980 c.
J-3. The proposed legislation effectively prohibited the three individual applicants from being appointed as sitting or presiding Justices of the Peace because they did not have law degrees and, as such, they could not satisfy the necessary qualifications for presiding judges as provided for by the amendments. My brother McMahon, J. concluded that the legislation offended the constitutional principle of judicial independence.  The Court declined to award solicitor and client costs and instead awarded costs taxed on column 5, multiplied by 1.5 of Schedule C, together with all reasonable disbursements. For the purposes of that calculation the Court treated the Special Chambers application as a trial including second council fee.  The Court distinguished Ruffo on the basis that the complaint in Ell was not one to the Judicial Council which required the applicants to defend themselves. It should be noted that Ell is currently under appeal, both with respect to the merits and the order as to costs.

[26]      Finally, in Hamann c. Québec (Ministre de la justice) (17 février1999), no C.S. Québec 200-05-010247-984 (C.S. Qué.) the plaintiff, a Municipal Court Judge, sought a declaration that he was entitled to have his legal expenses, which were incurred defending two complaints before the Judicial Council, paid by the Minister. The Minister conceded that if the acts complained of fell within the plaintiff’s judicial function then the fees incurred by the plaintiff in defending the matter before the Council must be defrayed by the State. The Court found that the plaintiff benefited from the presumption of innocence and, as such, it was not up to the Minister to determine whether the plaintiff’s actions were within or outside the judicial function. In other words, so long as criminal condemnation was not pronounced against the plaintiff, the Minister was obligated to pay the plaintiff’s legal costs.

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[27]      With respect to the first issue, I find that the Applicant is entitled to costs against the Respondent as Chief Judge.

Text Box: 1999 ABQB 639 (CanLII)[28]      As above, the Applicant was successful in his quest for a declaration that the Respondent exceeded his jurisdiction and authority. In the context of general litigation, costs generally follow the event and are granted to the successful party on a party and party basis. However, as previously stated, the Respondent takes the position that this proposition does not apply to administrative tribunals on Judicial Review. He relies on the aforementioned authorities for the proposition that costs should not be awarded against an administrative tribunal where it has limited its submissions to the issue of jurisdiction and has not lost its jurisdiction through capricious or arbitrary conduct. I accept those propositions in standard cases of Judicial Review, however, I adopt the reasoning of Vertes, J. in re: Territorial Court Act, in that matters such as the one presently before the Court cannot be considered “litigation in the normal sense of that word”. This is also consistent with the statement made by McMahon, J. in Ell where he found that the importance of the constitutional challenge in that case greatly exceeded that of usual private interest litigation.

[29]        Notwithstanding the personality conflicts between these two protagonists, their personal differences and their divergent jurisprudential perspectives respecting the proper administration of criminal justice with respect to aboriginal peoples, this dispute related directly to the developing tension between the administrative independence of the Court, embodied in the office of the Chief Judge, and the judicial independence of the members of the Court. Specifically, the issue in the present case concerns the constitutional and statutory jurisdiction of the Chief Judge to discipline a member of the Court vis a vis that member’s individual right to judicial independence. As such, I find that different considerations come to bear on the issue of whether an award of costs is appropriate.

[30]      In Ruffo, the Court found that, because provincially appointed judges are guaranteed judicial independence and the litigation in that case directly and immediately impacted on the judicial function, an award of costs was appropriate. In the present circumstances, I find that the litigation similarly impacted the judicial function and that costs are also warranted in this instance. In Ruffo, the Court found that if the payment of costs were left to the discretion of the executive it would weaken public confidence in the independence of the judiciary. In Hamann, the Solicitor General of Quebec conceded that the legal fees incurred by a judge required to defend himself before the Judicial Council must be defrayed by the State where the conduct in question related to the judicial function. I appreciate that an award of costs in the present case would not be against the Government per se, however the same principle applies - a failure to award costs in this case would effectively undermine the independence of the Judiciary.
Obviously that result must be avoided.

[31]      The Respondent attempts to distinguish the decision in Ruffo from the subject case on the basis that the plaintiff in that case had no choice but to defend herself against allegations made to the Judicial Council.  In this case, the Applicant voluntarily brought the matter before

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Text Box: 1999 ABQB 639 (CanLII)the Court via Judicial Review. The Respondent points out that my brother McMahon, J. distinguished Ruffo from Ell on that basis and that I should be persuaded to do the same in this instance. Ell involved a constitutional challenge to the validity of the Justice of the Peace Act, whereas Ruffo involved two complaints made to the Judicial Council regarding the Plaintiff’s conduct. I agree with my brother McMahon, J. that those two situations are significantly different, however I do not think that the present circumstances are so easily distinguishable from Ruffo. In this case, I have found that the Applicant had no choice but to bring an application for Judicial Review in order to challenge the jurisdiction of the Respondent because the Respondent failed to take the complaint to the Judicial Council in the first instance. Ruffo and the within case are similar on the basis that they both concern disciplinary action taken against the litigant judges. The Respondent cannot now avoid an order of costs by having wrongfully assumed the role of the Judicial Council in meting out discipline. Although Ell and the present case are not indistinguishable in many respects, I decline to distinguish them on the basis and for the purpose suggested by the Respondent.

[32]      As above, I find that the issues raised on the application for Judicial Review directly and immediately impacted the judicial function and, as such, the Applicant must have his costs. In coming to this determination, I am mindful of the difference between awarding costs against the Government and, as here, against a Chief Judge. However, I find that costs must be awarded in this instance in order to maintain judicial independence and impartiality. Who will ultimately be responsible for the payment of those costs is necessarily secondary to the constitutional concerns. The Respondent argues that an order for costs against him may interfere with his right to administrative independence in the event that he is responsible for his legal expenses. As I have not been asked to determine who is properly responsible for the Respondent’s legal costs, including the within order for costs, I am unable to effect that outcome. However, the Applicant has expressly stated that his request for costs is against the Respondent in his capacity as the holder of the Office of the Chief Judge, the statutory delegate as provided for in the Provincial Court Judges Act.  As such I specifically make the within order on that basis.

[33]      In answer to the second issue raised in this application, I find that costs on an indemnity basis are appropriate in the present circumstances, that is to say an award of all reasonable solicitor/client legal fees and disbursements.

[34]       The Respondent takes the position that where costs are awarded against a tribunal they should only be awarded on a party and party basis.  I agree that this general proposition should be adhered to in matters of standard litigation between private parties or where an administrative tribunal is involved. However, as stated above, I do not consider this to be a matter of standard litigation.

[35]      In awarding costs, the courts generally attempt to strike a balance between the competing interests of the unfairness of having the successful party pay its costs while, at the same time, not dissuading potential litigants from asserting or defending their rights by visiting the unsuccessful party with enormous costs.  In the present matter, any balancing of interests must be secondary to protecting the constitutional right to judicial independence and impartiality.  It is not difficult

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Text Box: 1999 ABQB 639 (CanLII)to conceive of the erosion of those rights where parties in the same position as the Applicant are required, even in part, to suffer the payment of their legal expenses personally. I accept the argument made by the Applicant that, if members of the Judiciary were expected to pay legal expenses incurred in upholding their constitutional duty to protect these fundamental rights, it would necessarily attack their financial security and have a chill effect on other members of the Court.

[36]       In the event that I had found that the same considerations apply in this case as apply in standard, private party litigation, I would have had no difficulty awarding costs on the same basis. In this case, the unilateral action of the Chief Judge, beyond his statutory jurisdiction and outside of the constitutional framework, with respect to a discipline issue, does amount to rare and exceptional circumstances. Additionally, I have little difficulty concluding that the Respondent’s conduct attracts costs on an indemnification basis. As was stated in St. Peter’s Estate Ltd., an administrative tribunal will be visited with costs where good faith and conscientious conduct have not been evident throughout the proceedings. I find that the fact that the Respondent elected to take the course of action that he did, that he instituted it without procedural fairness and, in so doing, struck at the very core of judicial independence indicates conduct well outside of those parameters. Although there may have been statutory grounds for believing that the Respondent had the requisite jurisdiction to make disciplinary decisions of this nature, I find that the Respondent stepped well outside the boundaries of his jurisdiction in this instance.

[37]      For the above reasons I order that the Applicant is entitled to his costs on an indemnification basis.

DATED at Calgary, Alberta, this 16th  day of August, 1999.

J. C.Q.B.A.

Alan D. Hunter, Q.C. & M.L. McMahon for Applicant
E. David D. Tavender, Q.C. for Respondent

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