Saturday, June 20, 2015

PART II: Judicial Independence and Indemnification for Costs - Excerpt from JP Massiah's Costs Submissions


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.20

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.

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