Friday, September 25, 2015

Termination of Employment in Violation of Human Rights Statutes: We Protect Your Legal Rights and Get Results

Ernest J. Guiste has represented several employees over the past twenty years who have been dismissed in circumstances where their rights under the Human Rights Code and similar federal legislation have been violated.

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3.   Settlements on behalf of pregnant women dismissed from their employment;

4.   Settlements on behalf of  women who have been the victims of sexual harassment;

5.   Settlements on behalf of men who have been wrongly accused and dismissed for sexual harassment.

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Academic Appeals - Unfairness/Discrimination in the Process: We Protect and Enforce your Rights

Over the years Ernest J. Guiste has represented students who have unfortunately found themselves dismissed from their academic pursuits unfairly and sometimes in violation of the Ontario Human Rights Code.

Mr. Guiste has secured academic reinstatement for students in the areas of law, nursing and doctoral-level graduate studies and would be pleased to discuss your case with you.  Feel free to schedule a consultation -  E.J. GUISTE Professional Corporation
Tel. (416) 364-8908. 

Sunday, September 20, 2015

Hryciuk and Katzman: Two Significant Court of Appeal Decisions on Jurisdictional Error

   Jurisprudence from the Court of Appeal for Ontario proclaims that whether and how a statutorily mandated pre-conditional investigation is conducted can adversely impact the legal legitimacy of a subsequent hearing or put another way deprive a hearing panel of jurisdiction to entertain the matter referred to it for hearing.  The cases of Hryciuk  v.  Ontario 31 O.R. (3d) 1 (Ont.C.A.) and Katzman v.  Ontario College of Pharmacists 2002 Canlii 16887 (Ont.C.A.) firmly establish that jurisdiction to hold a hearing may be lost where there is non compliance with a prescribed mode of procedure or where the referring body investigates matters not referred to it and orders a hearing on them.  In Hryciuk (supra) the court held that the failure to follow the express statutory scheme calling for complaints of judicial misconduct to be investigated by the Review Council prior to proceeding to a hearing was fatal and set aside an order removing a provincial court judge from office.  In Katzman (supra) a decision suspending a pharmacist for professional misconduct was also set aside where the Court of Appeal found that "the Complaints Committee did not act within its jurisdiction in referring the matters it did to the Discipline Committee."

   In this post I will endeavor to outline for the readership the factual circumstances in which the Court of Appeal for Ontario has addressed the question at hand by reference to their decisions in Hryciuk (supra) and Katzman (supra)  Two general legal propositions stem from these two cases on the question at hand.  The first, stemming from Katzman, is that a statutory body entrusted to conduct an investigation of professional misconduct does not have an unfettered discretion to investigate. The scope of the investigation it is authorized to undertake will be ascertained from the enabling legislation.   The second, stemming from Hryciuk (supra), is that the failure to satisfy a statutory pre-condition to proceeding to a hearing will result in a loss of jurisdiction. The factual background in these two cases along with the court's analysis is instructive and worth reviewing in some detail.

Katzman (supra):

   In this case the Complaints Committee was to investigate two complaints relating to dispensing errors involving two persons(Cole and Yellen).  In the course of the investigation of the two matters other allegations of misconduct were discovered and referred to the Discipline Committee.  Mr. Katzman was convicted, suspended for two months and sought leave to appeal.  Leave to appeal was granted on the question of the jurisdiction of the Complaints Committee to refer allegations of professional misconduct to the Discipline Committee of the the Ontario College of Pharmacists. The question for adjudication amounted to this: Did the Complaints Committee have jurisdiction to refer the matter of dispensing errors not involving Ms. Cole and Mr. Yellen to the Discipline Committee ?

   The Court of Appeal for Ontario unanimously ruled that the Complaints Committee in that case lacked jurisdiction to seek out and refer additional complaints to adjudication.  They stated the following:

[37]   In summary, given the design of the Code, the jurisdiction given to the Complaints Committee by s.26(2) paragraph 1 is to refer to discipline a specified allegation which concerns, in some way, the matter complained of.  Section 26(2) paragraph 1 does not give the Complaints Committee jurisdiction to refer to discipline allegations of other misconduct uncovered during the investigation of the complaint;

[38]   In this case, there is no need to test the outer limits of what can properly be referred under s.26(2) paragraph 1.  Here the alleged dispensing errors involving other individuals, but not Ms. Cole or Mr. Yellen, came to light during the investigation of the Yellen complaint.  They do not concern the Cole and Yellen complaints at all.  They were not themselves the subject of complaints to the Complaints Committee.  Thus they could not be referred to discipline by the Complaints Committee pursuant to s.26(2) paragraph 1.

[42]   In conclusion, we find that the Complaints Committee did not have jurisdiction to refer to discipline allegations of dispensing errors having nothing to do with the Cole and Yellen complaints. Hence those allegations were not properly placed before the Discipline Committee and the findings of misconduct based on them must be set aside.

Court's Analysis:

[30]   The disciplinary legislation here is the Health Professions Procedure Code.  It provides the procedure for the initiation and conduct of discipline proceedings against health professionals including pharmacists.  As set out in the sections quoted earlier one route to a hearing before the Discipline Committee begins with the filing of a complaint against the pharmacist.  This is then investigated by the Complaints Committee which pursuant to s.26(1) paragraph 1 may then "refer a specified allegation of the member's professional misconduct or incompetence to the Discipline Committee if the allegation is related to the complaint." [Emphasis added.]

[31]   The first and main question to be addressed is the scope of the underlined phrase.  Does it permit the Complaints Committee to refer any allegation which has arisen during the investigation of the complaint, as the respondent argues ?  Or is it limited to an allegation concerning, in some way, the matter complained of, as the appellant contends ?

[33]   In our view, there are a number of aspects of the Code which make the latter interpretation the correct one.

   The court looked to the statutory language in order to ascertain the scope of the investigatory powers of the Complaints Committee.  The court noted that "s.26(2) requires the Complaints Committee to consider (or make reasonable efforts to do so) all records and documents it considers to be relevant to the complaint. The phrase "relevant to the complaint" qualified the scope and ambit of the jurisdiction to investigate the court found.  Interestingly, the court noted that "the member's due process rights in relation to the Complaints Committee suggests that the narrower interpretation was intended."  Since s.25(5) of the Code mandated that the member receive both a copy of the complaint and a notice that he may make written submissions - which submissions the Complaints Committee was required to consider before deciding to refer an allegation to discipline - the court reasoned that this further supported the narrower interpretation because the broader interpretation could result in a situation where the member had no prior right to comment on the allegation.

[37]   In summary, given the design of the Code, the jurisdiction given to the Complaints Committee by s.26(2) paragraph 1 is to refer to discipline a specified allegation which concerns, in some way, the matter complained of.  Section 27(2) paragraph 1 does not give the Complaints Committee jurisdiction to refer to discipline allegations of other misconduct uncovered during the investigation of the complaint.

[38]   In this case, there is no need to test the outer limits of what can properly be referred under s.26(2) paragraph 1.  Here the alleged dispensing errors involving other individuals, but not Ms. Cole or Mr. Yellen, came to light during the investigation of the Yellen complaint.  They do not concern the Cole and Yellen complaints at all.  They were not themselves the subject of complaints to the Complaints Committee.  Thus they could not be referred to discipline by the Complaints Committee pursuant to s.26(2) paragraph 1.

Hryciuk  v.  Ontario (supra)

    The Hryciuk case is one of the few cases of judicial misconduct involving sexual misconduct by a judicial officer.  Justice Hryciuk faced the following matters of complaint before the public inquiry:

The complaint:

1.   That His Honour Judge Walter P. Hryciuk, on Saturday, January 18, 1992, at Old City Hall, Toronto, did sexually Assistant Crown Attorney for the Toronto Region, by kissing her without her consent.

2.   That His Honour Judge Walter P. Hryciuk, in 1988, made remarks of a sexual nature
to Assistant Crown Attorney, and drew her attention to a sexually graphic light switchplate in his judicial chambers.

General Background Facts:

   After Justice Hryciuk closed his case the inquiry was adjourned to accommodate witnesses who were not immediately available.  Just before the inquiry reconvened Justice Hryciuk was informed of there additional complaints which were never made to the Judicial Council and were not referred to in the order-in-council appointing the inquiry judge.  Despite Justice Hryciuk's objections the inquiry judge ruled that she was duty bound to hear all relevant evidence.  At the conclusion of the inquiry the learned judge recommended that Justice Hryciuk be removed from office.  Justice Hryciuk's application for judicial review was dismissed by the Divisional Court.  He successfully appealed his removal from office.

Court's Analysis:

"Pursuant to s.46 of the Courts of Justice Act, there can be no removal of a provincial court judge unless two prior conditions have been met: that a complaint has been made to the Judicial Council and that the removal is recommended for any of the reasons set ou in s.46(1)(b) after an inquiry has been held pursuant to s.50.  The three new complaints heard by the inquiry judge after Judge H had concluded his defence were not first made to, or investigated by, the Judicial Council.  These complaints could not therefore, be entertained by her.  The language of the statute is unambiguous, and leave no discretion to a judge conducting a s.50 inquiry to hear new complaints not previously screened by the Judicial Council....By hearing three additional complaints not so referred, she exceeded her jurisdiction.  The Inquiry Judge based her recommendation on all of the complaints she heard, including the ones she had no authority to hear.  The evidence of those three complaints formed an integral part of her recommendation that Judge H be removed.  It was, therefore, impossible to say what her recommendation would have been if her finding had been based only on the two complaints she had jurisdiction to hear."


   What guidance do these two decisions provide to administrative tribunals and litigants who appear before them on dealing with the thorny and often challenging question of whether or not the tribunal has jurisdiction to entertain a matter ?  It seems clear from from the Court of Appeal's decision in Katzman (supra) that they placed great significance on the litigant's opportunity to know and respond to the allegations against him or her in advance of a decision referring the matter to a hearing. This makes perfect sense - especially where the referring body has a statutory power of decision. That is the referring body has the power to dismiss the complaint for example for frivolousness, abuse of process or jurisdiction.  Hryciuk (supra) makes it clear that the failure to follow a prescribed statutory procedure which may lead to a formal hearing challenging a judge's office is fatal to jurisdiction. The
Court of Appeal in Hryciuk (supra) made specific mention of the fact that the Judicial Council under that statutory scheme performs a screening function with respect to complaints brought to its attention.  J.A. Abella's words on the statutory intention with respect to the two-stage process in Hryciuk(supra) is instructive:

"The two-stage process represents a clear statutory intention that not all complaints about judges should be subjected to public disclosure.  Any such disclosure, even if the complaint is subsequently found to be without merit, can cause irreversible damage to reputation and, more importantly, to a judge's ability to maintain public confidence in his or her judicial capacities.  On the other hand, there is a significant public interest in having some complaints aired publicly for the same purpose, namely, to maintain public confidence in the judiciary. These are the competing schemes the legislative scheme is designed to balance.  The Judicial Council has, therefore, been charged with responsibility for screening allegations against provincial court judges, and to determine, after an investigation and/or hearing, whether the complaint raises a genuine issue about the judge's capacity to continue to perform his or her judicial functions.....Circumventing the statutory requirement that there be a prior vetting by the Judicial Council defeats the whole purpose of the legislative scheme, and violates the mandatory nature of the two-stage process set out in s.46 of the Courts Of Justice Act.

......The Lieutenant Governor's discretion in s.50, therefore, to order an inquiry into whether a judge should be removed, is limited to the complaints investigated by the Judicial Council.  Read in this way, the removal from office referred to in the concluding paragraph of the order-in-council is a potential outcome of the inquiry;s examination into the authorized complaints, not a general mandate."

   The arguable points of law flowing from these two decisions are as follows:

1.   An administrative actors right to conduct an investigation is typically governed by a statute and the court will look to, among other things,  the overall legislative objective and the language of the statute in ascertaining the scope of investigation that the administrative actor is lawfully entitled to undertake.

2.   The use of the words "the complaint" in the intake, investigation and disposition portions of the enabling legislation appears to be a qualifier on the misconduct which is the subject of a formal hearing and grounds for removal from office(with judges).  Commonality between the intake "complaint", the investigation "complaint" and the disposition "complaint" appears to be a fundamental requirement for jurisdiction.  The disposition "complaint" can not exceed the intake "complaint" according to Hryciuk (supra).

3.   A statutory actor that exceeds the investigatory authority granted to it or a decision maker who entertains and relies upon grounds of misconduct which were not previously vetted in accordance with a mandatory scheme calling for such vetting commit jurisdictional error which a Superior Court is entitled to quash.


Sunday, September 13, 2015

Reilly v. Wachowich, 1999 ABQB 639

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.

[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.

[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”.  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

[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 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.


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