Saturday, October 17, 2015

What is Hryciuk Error ?

   Hryciuk Error is a form of jurisdictional error committed by an administrative actor where they receive and act on allegations which were not previously screened in the manner mandated by a statutory scheme.  The term takes its name from the seminal judicial misconduct case of Hryciuk  v.  Ontario 31 O.R. (3d) (ONCA).  In that case Justice Jean MacFarland, acting as a statutorily appointed Commissioner under the Courts of Justice Act, recommended to the Attorney General of Ontario that Justice Hryciuk be removed from office as a Provincial Court Judge as a result of her findings of judicial misconduct.

   Unfortunately, Justice MacFarland decided to hear three new allegations which were not screened by the Review Council before they came to her for adjudication.  Judge Hryciuk was not asked to respond to those allegations prior to the matter coming to hearing since they formed no part of the initial complaint.

   This was a fatal jurisdictional error ruled the Court of Appeal for Ontario.  Justice of Appeal Abella writing for court was clear in delineating the jurisdictional error committed by Justice MacFarland in her recommendation for removal from office.  The following excerpts are from the case headnote and are in a nutshell what constitutes "Hryciuk Error":

"The language of the statute is unambiguous, and leaves 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 does this all mean ?

   For my lay readers, this means that all of the allegations forming the basis of removal from office must have been screened in the screening process prescribed by the statute in advance of the hearing. The Court of Appeal in Hryciuk was clear in its decision that not every complaint against a judicial officer warrants a hearing.  Hence, where there is a Notice of Hearing that Notice of Hearing can not raise issues which were themselves not screened by the referring body and the judicial officer was not provided an opportunity to respond to them prior to the hearing.

How should lawyers respond ?

   When I am consulted on such questions of law my practice is first and foremost to read the enabling legislation. The enabling legislation will guide you on this point. My next step is to review the Notice of Hearing to see if it is in congruence with the initial complaint and the investigation.  The Notice of Hearing can not raise legal claims or conclusions which themselves were not screened by the referring body.  If there is a lack of congruence between the Notice of Hearing  - the initial complaint, the investigation and the disposition - this opens up the legitimate arguments of jurisdiction, abuse of process and potentially a reasonable apprehension of bias and potentially a lack of institutional impartiality and independence between the statutory actor and the wing of the executive with the ultimate responsibility for making the removal decision. The key which underlies all of this is the simple principle that justice must be seen to be done !  This simple principle takes on a stronger meaning  - I submit - when judicial independence is at stake.

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