JUSTICES OF THE PEACE REVIEW COUNCIL
IN
THE MATTER OF a complaint
respecting Justice of the Peace Errol
Massiah
A Justice of the Peace in the Central West Region
SUBMISSIONS OF PRESENTING COUNSEL ON REQUEST FOR COMPENSATION PURSUANT TO SECTION 11.1(17)
Overview
1.
Pursuant to the recommendation of this Panel, former justice
of the peace Errol Massiah (“the
Applicant”) was removed from office on April 29, 2015 by Order in Council.
2.
Mr. Massiah has asked the Panel to make a recommendation
that he be fully indemnified for his legal costs in the staggering amount
of approximately $616,000.
These submissions are in
response to the Applicant’s submissions on compensation dated May 18, 2015 and are intended to supplant
the comments on indemnification made in
Presenting Counsel’s Reply Submissions on Disposition dated March 16, 2015.
3.
In short, Presenting Counsel submits that no recommendation
for compensation is appropriate in the circumstances of this case. The case law from Hearing Panels of the Justices
of the Peace Review Council holds that where a Panel recommends that a justice of the peace be removed from office, it is only in the “most unusual
of circumstances” that any compensation should be awarded,
much less hundreds
of thousands of dollars.
Presenting Counsel submits that there are no such circumstances here. As noted in Phillips, the question is not whether counsel should be compensated for their work. It is whether
the public, rather
than the client,
should be required
to foot the bill. In these circumstances, considering the misconduct committed by the Applicant and the manner
in which this case has proceeded, a
reasonable member of the public would not consider
it just for the Applicant’s legal bill to be paid by the public. Still less
would a reasonable member of the public contemplate
compensation in the breathtaking amount claimed by the Applicant – including over $500,000 claimed by counsel who
did not actually conduct the bulk of the hearing.
4.
It should be noted that the Bill of Costs submitted by Mr. Guiste includes dockets
for items such as “prep account,”
“draft resp legal indemni,” and “draft/edit comp subs”. In other words, the Applicant is asking
the public to pay his lawyer for the time spent by the lawyer asking the public to pay for him. This is well beyond anything the public should reasonably
be expected to bear.
General principles
5.
Pursuant to s. 11.1(17) of the Act, the Panel “may recommend
that the justice
of the peace be compensated for all or part of the cost of legal services incurred in connection with the hearing.” The quantum
of allowable costs is limited to “a rate for legal services that does not exceed the maximum rate normally paid by the government of Ontario for similar services”: s. 11.1 (18).
6.
As indicated by the permissive language (“may”), a
recommendation for compensation is discretionary.
In Foulds,1 the Panel endeavoured to provide some “general guidance” on how this discretion should be exercised.
The Foulds Panel noted that justices
of the peace subject to a judicial disciplinary hearing should be encouraged to retain counsel.
The Panel additionally observed that the participation of counsel can streamline the process
and save considerable public expenditure by facilitating measures such as an agreed
statement of fact. Involvement of
counsel also avoids the potentially “unseemly” spectacle
of a judicial officer pleading
his case to his peers or cross-examining the very people who
complained about him.
1 Re Foulds (JPRC, March 26, 2013), at
paras. 46-66
7.
Foulds held that the disposition ordered is
a highly relevant factor in determining whether
compensation is appropriate. Where there is no finding of misconduct at all (and
therefore no disposition), public confidence has not been undermined and there
is a “very compelling” argument
for full recovery
of costs. By contrast, where
a recommendation
for removal of office is made, the Panel expressed
“doubt whether costs should ever be recommended, except in the most unusual of circumstances.”2
8.
Where the result falls somewhere between these two extremes,
Foulds counsels that costs “might still be warranted but on a lower scale.”
(emphasis added) It enumerates the following
factors for determining the appropriateness (and appropriate scale) of compensation:3
a)
the severity of the misconduct;
b)
the complexity of the hearing;
c)
the conduct of the justice of the peace in the
course of the hearing, including
whether the justice of the peace prolonged or expedited the process;
d)
the nature of the disposition(s);
e)
whether public funds were lost as a result of
the misconduct;
f)
whether there had been previous findings of
misconduct made against the justice of the peace; and
g)
whether the conduct
in question relates
to a judicial function or impacts
judicial independence.
9.
Foulds endorsed the following
statement in Reilly v Alberta:4
Where the conduct
in question relates
to the judicial function...the state should defray the legal fees required
for the judge to defend himself or herself in order to preserve the independence of the judiciary.
10.
The Foulds Panel also expressed the view that judicial officers
should be “fairly
and adequately represented, but not at the cost of the administration of
justice as a whole.”5
2 Ibid., at para. 58
3 Ibid., at para. 62
4 1999
ABQB 252, at paras. 30-32, aff’d 2000 ABCA 241
5 Re Foulds, supra, at para. 64
11.
Following Foulds, Hearing Panels have had occasion
to apply its factors in two cases. In
Phillips, following a recommendation
for removal, the Panel refused to recommend any
compensation. It stated:6
At the outset,
we note that we are not ruling on the competence of Justice of the Peace Phillips’ counsel or whether he should
be compensated. He performed
admirably and with great skill in a difficult case. He should be compensated, and this
should be done, as would normally be the case by his client. She has both a moral and legal obligation to him.
Our task is narrower: should we
recommend to the Attorney General that compensation be awarded to Justice of the
Peace Phillips?
All of the factors militate
against such a recommendation. The misconduct was severe, and we determined that the
only way that public confidence in the administration of justice could be restored
was to recommend removal from office. Justice of the Peace Phillips created this situation by her misconduct; she was ultimately
removed from office because of her misconduct. We have considered the submission that due to the illness
of one of our Panel
members extraordinary circumstances exist. Our review of the transcript reveals
that the hearing was going to be adjourned in any event. On the return date, either a further
witness would be called and then submissions as to whether judicial misconduct
had occurred would proceed; or, the witness would not be called and counsel would proceed directly to
submissions. Under either scenario, an
adjournment would have been needed to permit counsel to prepare arguments and case law prior to making their
submissions on the evidence.
We are of the firm view that the average reasonable
Canadian fully apprised of all the facts would be shocked if any
compensation were awarded. The Panel’s
decision is that no recommendation will be made to the Attorney General
for compensation.
12.
This amounts to a strong re-affirmation of Foulds’ statement that where removal is ordered, a recommendation for
compensation is all but unthinkable.
13.
In Johnston, the Panel imposed
a seven-day suspension for misconduct it considered to be in the mid-range of seriousness.
Notwithstanding that removal was not recommended,
it too declined to recommend compensation, stating:7
6 Re Phillips (JPRC, November 4, 2013), at
paras. 8-11
7 Re Johnston (JPRC, August 19, 2014), at
p. 10
Given the gravity of the misconduct, and in particular
that the misconduct occurred while in the performance of
judicial duties with significant effect on the administration of justice, members
of the public and the public purse, we are of
the view that this is not an appropriate case for a recommendation for costs.
In deciding not to award costs we emphasize that our decision is not intended to be punitive. It is merely a reflection of the unique features of the matters
before us, and the discretionary
nature of any recommendation.
14.
Recent cases from the Ontario Judicial Council have likewise
taken a restrained approach to
recommendations for compensation. In the Chisvin
case, the misconduct at issue was a single impetuous act which the Panel found
to be an “aberration” and for which the judge had repeatedly expressed regret. The Panel
determined that a reprimand was all that was
required to restore public confidence. Nonetheless, the Panel declined to
recommend any compensation, stating:8
As we noted
in our reasons for disposition, Justice Chisvin is to be commended
for facing up to the fact that his conduct fell below the required standard. However, it remains that he did fall below that standard
and we did make a finding
of misconduct.
Taking into account all the circumstances of this matter,
it is our view that the public purse should not be required to bear
the cost of his legal representation.
Accordingly, the request for compensation is dismissed.
15.
It is apparent from these
authorities that where there has been a finding of judicial misconduct, a recommendation for compensation has become very much the exception
rather than the rule.
16.
Presenting Counsel makes the
following observations on how Foulds factors
may apply
in the case at bar:
a)
As already
found by the Panel, the misconduct in this case was highly serious, warranting the
Applicant’s removal from the bench;
8 Re Chisvin (OJC, February 22, 2013), at
paras. 4-6
b)
The
hearing was of moderate complexity because of the number of allegations. However, any complexity in the pre-hearing
proceedings was needlessly introduced
by Mr. Massiah’s counsel;
c)
The
Applicant’s conduct of this hearing needlessly prolonged the process and caused substantial public
resources to be expended for no good reason. Virtually none of the issues
raised in the protracted pre-hearing motions had even any arguable
merit; most were frivolous on their face. In
view of the public confidence mandate of judicial
conduct proceedings,
litigation conduct that unduly lengthens the hearing and unnecessarily increases the costs borne by the public should be discouraged – certainly
not encouraged by an award of compensation paid for by the public;
d)
There
are no “most unusual” circumstances here that would justify a departure from the general
rule that no compensation is awarded where removal
is recommended;
e)
No public funds
appear to have been lost as a result of the misconduct itself (as distinct from public funds dedicated to this judicial conduct process,
which have been substantial);
f)
There have been prior findings
of similar misconduct made against Mr. Massiah, with the caveat that the misconduct at issue here pre-dated the prior
findings;
g)
The
conduct in question does not impact judicial independence. This is not a case in which
a judge made errors in exercising his judicial function, such as Bienvenue or Cosgrove.
Even though a few of the acts of
misconduct took place
inside a courtroom, they had little
to do with Mr. Massiah’s
judicial function and the large majority of the acts were entirely separate from that function.
In such circumstances, there are no judicial independence-related concerns
in expecting that the judicial
officer will pay his own legal fees.
17.
Given the disposition ordered in the present case, it is clear that the misconduct
at issue here was more serious than in Foulds and
Johnston. It is also clear that vastly more public resources
have been expended
on the hearing than in either of those two cases,
partly because the case was more complex
but mostly because
of how the Applicant chose to litigate the matter. Presenting
Counsel submits that these considerations should factor into the Panel’s consideration of
whether the public should also be
asked to pay for the Applicant’s own
legal fees.
18.
It must also be noted that Mr. Massiah has not been assigned judicial duties since 2010,
but has been receiving full pay throughout. In these circumstances, a
reasonable member of the public would
– to say the least – look askance at Mr. Massiah receiving compensation from the public purse
for his legal
representation at a proceeding which resulted in multiple findings of
judicial misconduct and his removal from the
bench.
Responses to
specific arguments raised by the Applicant
a) Application of Re Foulds
19.
The Applicant appears
to contend that Foulds was wrongly
decided and that this Panel should
decline to follow it. By this he presumably also means that the Panel should decline to
follow the cases that have in turn followed Foulds
– for instance, Phillips and Johnston.
20.
The Applicant’s main argument – that the civil Rules’ costs regime does not apply to JPRC proceedings
– is a red herring. Foulds neither
says nor implies anything like this.
21. The Applicant’s contention that Foulds erred by “equating” a judicial conduct proceeding with professional discipline is
also erroneous. The Panel in Foulds simply
commented that
s. 11.1(17) is “unusual in the
professional disciplinary process.” It then went on to analyze the provision
on its own terms and discuss how it ought to be applied. Nothing whatsoever turns of whether a judicial
conduct proceeding is or is not akin to professional discipline.
22.
In short, the Applicant has
raised nothing that could cause this Panel to take the extraordinary step of
departing from Foulds and the cases
that have followed it.
b) Judicial independence
23.
The Applicant is correct
that financial security
is a component of judicial
independence. However, requiring justices
of the peace to pay their own legal bills, in whole or in part,
does nothing to compromise this principle.
24.
It is in the very nature of judicial misconduct proceedings that they can have a negative impact
on judicial officers who are subject to them. For instance, as here, they can
result in a justice of the peace’s
removal from the bench. The essence of
judicial independence is that a
judicial officer cannot be removed from office without cause
and that the executive
branch of government cannot arbitrarily interfere with a judicial
officer’s salary or pension.
If the prospect of losing
one’s livelihood after
cause has been established by an independent judicial discipline body does not unjustifiably interfere with
judicial independence, then it is difficult to see how the lesser
consequence of having
to pay for one’s own lawyer for legal costs incurred because of
judicial misconduct could do so.
25.
Despite having invoked
judicial independence as a constitutional principle, the Applicant has neither raised a constitutional question nor explained how his
constitutional argument would manifest in practice. Does the statutory
discretion to decline
compensation after a finding
of judicial misconduct render s. 11.1(17) unconstitutional? Are equivalent provincial and federal
acts that have no such provision at all also unconstitutional – i.e.
does the legislature or Parliament have an affirmative constitutional duty to enact such a provision?
Is a justice of the peace’s entitlement to indemnification unqualified by any kind of
proportionality? Where a judicial discipline process has been established to preserve and restore the confidence of the public
in the judiciary, does a justice of the peace who has engaged in egregious judicial
misconduct have an unconditional right
to recover legal costs even when cause has been proven that warrants
termination of judicial tenure? Posing
such questions reveals the untenable nature of the Applicant’s position.
26.
The Supreme Court has never had to address the issue of whether judicial officers facing misconduct proceedings should have
their legal fees paid after a finding of judicial misconduct
and removal from office, but the Court’s
case law strongly
suggests that no such requirement exists. For instance,
in Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249, 2002 SCC 11, the Court allowed
the Judicial Council’s appeal and reinstated its
recommendation for removal. The successful appellant – the Judicial Council
– was awarded costs. If the Court
saw nothing wrong
with ordering a
judge to pay the costs of the other side, a fortiori there can surely be no constitutional problem with requiring a justice of the peace to pay his own lawyer’s fees.
27.
It should be noted that until his recent
removal, the Applicant was making at least
$122,000 per year. In no sense does he qualify as an impecunious litigant.
28.
Further, contrary to the Applicant’s assertion (at para.
14), Presenting Counsel is unaware of any “constitutional tradition” that the
Attorney General “is responsible for indemnifying
judicial officers for the cost of their legal defence
in judicial misconduct proceedings” in
circumstances where there has been a finding of judicial misconduct.
c)
Public importance
29.
His Worship submits
that a recommendation for compensation is justified because
the case raised “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.” (para. 15)
30.
Presenting Counsel respectfully disagrees that this case raised any significant issues of general
importance or public interest. None of the arguments advanced on the pre-hearing motions were found by the Panel to have any merit. Most were obviously meritless
and not the kind of “close
calls” on which
the public and profession would
benefit from having the
Panel’s guidance.
31.
Further, His Worship was at
the same time arguing a number of the same submissions in his very belated
and ultimately unsuccessful application for judicial
review of the prior
disposition. Many of those issues were determined by the Divisional Court before this Panel had the opportunity to rule on them, but not before considerable time had been devoted to arguing them in this venue.
32. The retention of Independent Counsel did not relate to the merit or importance of the issues raised by His Worship.
Rather, it arose
out of a well-grounded concern
that the Panel did not even have jurisdiction to deal with a number of the “jurisdictional” issues contained within His Worship’s motion.
33.
In the result,
although the Panel held that it had jurisdiction to deal with many of His
Worship’s arguments, it found no merit in any of them. Therefore, the retainer of Independent Counsel cannot be a factor
militating in favour of recommending
compensation. Fundamentally, the motions arguing lack of jurisdiction and abuse of process were an unmeritorious effort to
extricate His Worship from the proceedings, not a public interest
matter in which
the litigant could
reasonably expect the public to help
defray the costs of litigation. The fact that the Panel’s decisions may have some precedential bearing
on other cases
is not unusual, and is not indicative of a public interest
in bringing the motions. Rather, that is just the nature of adjudication in a common
law system.
d) “Judicial immunity”
34.
This case has nothing to do with “judicial immunity”, and the Applicant’s invocation of this principle (at para. 17) is entirely
misplaced. Section 20 of the Justices of the Peace Act confers upon justices of the peace
the same immunity
from civil liability possessed by judges of the superior court. It prevents justices
of the peace from being sued for acts
carried out in the course of their judicial
duties.
35.
It should go without
saying that this provision does not immunize
justices of the peace from the disciplinary process created by the
very same Act, nor does it somehow create a right to have counsel retained by a justice
of the peace paid for by the public.
e)
Admissions by the Applicant
36.
Contrary to the Applicant’s assertion
at para. 22, he made no admissions relevant to his request for compensation. His alleged concession “that some of the allegations made against him were consistent with his manner of interacting with staff prior to his first disposition” did not result
in any formal admissions that dispensed with the need for particular witnesses or otherwise streamlined the
hearing. There is no basis for according
him any credit in this respect.
f)
International instruments
37.
The international instruments cited by the Applicant at para. 27 (such as the Universal Declaration of Human Rights) are wholly irrelevant to the question
of whether the public should bear the cost of his legal
fees. Presenting Counsel
is unaware of any authority in domestic or international law for the proposition that a
non-indigent litigant in non-
criminal proceedings has a “right” to public funding of his or her legal fees.
g) Conduct of the defence
38.
The Applicant has submitted that his defence
was “clearly well grounded on recognized
and viable procedural and substantive grounds” and was not frivolous
or vexatious (para. 28). In respect of the lengthy
pre-hearing motions, Presenting Counsel respectfully
disagrees.
39.
Presenting Counsel submits
that the Applicant advanced a succession of frivolous motions which the Applicant
either knew or ought to have known had no tenable basis in law or
fact. In particular, this course of conduct included the following:
(i)
The
Applicant’s counsel, Mr. Guiste, brought a belated motion for a publication ban which
required an adjournment of the hearing.
It was based on the Applicant’s
dissatisfaction with certain
media articles which had already been published, and about which the Panel had no ability
to do anything. In the same motion, he sought both a publication ban and an order that the media publish articles that were fair. In other words, the Applicant sought
relief that was factually and legally impossible to grant. This motion also involved a baseless allegation that various agents of the Attorney
General, as well as Presenting Counsel, were “actively pursuing the removal or reputational destruction of His Worship as a justice of the peace.” The Panel also noted
that “Mr. Guiste’s
position that Presenting Counsel have been or
are engaged in an attempt
to undermine the judicial independence of His Worship illustrates a misunderstanding of
the role of Presenting Counsel.” This was only
one of many allegations made
over the course of this hearing against Presenting
Counsel, the Panel, the Registrar, and even the court reporter.
Decision on the Motion
to Ban Publication, April 11, 2014.
(ii)
The Applicant’s counsel, Mr. Guiste,
brought a motion
for recusal of the Hearing Panel on account of a reasonable apprehension of bias. The motion
was entirely baseless, and was justifiably characterized as “frivolous” in the Panel’s
decision. The Panel also observed that the Applicant’s motion contained
assertions that were “completely offensive,” “egregious,” and
“atrocious,” such as the absurd allegation
that Presenting Counsel
had somehow colluded
with the Hearing
Panel over the issue of retaining independent counsel: Decision on the Motion Alleging Bias, May 29, 2014.
(iii)
Mr.
Guiste expressed a concern that Mr. Gover’s retainer as independent counsel to provide a legal opinion
would in some way result in an unfair hearing.
He stated: “It's my duty to say look, this fellow has too close
of a relationship to Presenting Counsel and to Mr. Hutchison
and the Ministry of the Attorney General.” He indicated that it was a serious matter. He
conceded that he had not checked the case law to see if it would support
his allegation. A date was scheduled for motion
materials to be filed. No motion was ever brought.
Decision of the Panel on the Motion Alleging Bias May 29, 2014.
(iv)
Following release
of the Divisional Court’s decision
on the judicial review of the prior Hearing Panel’s findings, the
Applicant persisted in trying to re-litigate
(under the auspices of the abuse of process motion) a number of issues conclusively determined by the Divisional Court: Decision on Grounds to be Argued
on the Motion Alleging Abuse of Process, June 19, 2014.
(v)
Mr.
Guiste served and filed at least three Notices of Motion seeking disclosure and particulars, in respect of material
that was either irrelevant or already in his
possession. For instance, he complained that the witness contact information he had been provided was insufficient, but
then acknowledged in submissions that he “had
to date made no effort
to speak with the witnesses.” He also demanded
witness statement summaries even though he was already in possession of verbatim
transcripts: Decision on the Motion
for Disclosure and Particulars, June 12,
2014.
(vi)
On November
10, 2014, after the Panel had taken the matter under reserve,
Mr. Guiste filed a Motion for Directions re Evidence making irrelevant and belated
claims about evidence led before the Panel months earlier. In dismissing the Motion, the Hearing Panel made an order “to control and prevent any further abuse
of this process” that Mr. Guiste
cease trying to re-open the hearing and stop
sending unsolicited correspondence to the Panel: Decision on the
Applicant’s Motion for Directions, November 18, 2014.
(vii)
this same period of time post-hearing, Mr. Guiste filed a Motion attempting to once again argue the jurisdictional
points raised by the earlier motion, which
remained under reserve.
He also raised some new jurisdictional arguments which the Panel characterized as “frivolous and meritless.” The
Panel went on to note that “that His Worship Massiah’s decisions to
bring meritless motions to try to reargue
his
case while the Panel is deliberating on its decisions
on the hearing could be perceived
by the public as consistent with a deliberate attempt to delay the Panel in reaching a final decision.” The return date originally scheduled
for delivery of the Panel’s decision had to be adjourned as a result of the time lost dealing with the Applicant’s
improper attempts to re-argue the case: Decision on His Worship’s Motion for Leave to Have the Hearing Panel
Entertain Further Submissions, November 19, 2014.
40.
The public cannot
reasonably be expected
to pay for a justice
of the peace to advance arguments that are frivolous
and without merit, let alone ones that are “offensive” and “atrocious”, as happened
in this case. To reiterate, Foulds makes
it clear that in cases of
serious misconduct, compensation should be the exception rather than the rule even where the defence was conducted
entirely appropriately. It would therefore be entirely incongruous to award compensation where the proceeding
was conducted in the manner in which
the Applicant chose to conduct it.
41.
In his submissions (at paras. 29-34), the Applicant has
attempted to re-argue the merits of
various pre-hearing motions.
Presenting Counsel does not propose
to respond, because the
Panel has already definitively pronounced its views on these matters. Suffice
it to say that none of these re-arguments should cause the Panel to revisit its earlier findings that the Applicant’s various motions were without
merit and that Mr. Guiste’s conduct was at times inappropriate.
42.
To be clear, Presenting
Counsel recognizes that the hearing proper, as opposed to the pre- hearing motions, was conducted
appropriately and efficiently by Mr. House.
h)
“Ex Post Facto Laws”
43.
The Applicant’s complaint
appears to be that the Review Council
has recently changed its Procedures to require
that requests for compensation pursuant
to s. 11.1(17) should, like the hearing itself, take place in public.
44.
Contrary to what the Applicant appears to believe, there is
no general prohibition against “ex
post facto laws”. The Charter protects
against retrospective criminalization of conduct
and post-offence increases in punishment. Nothing
in the law creates a vested
right against amendments to a tribunal’s procedural rules. Indeed, even in the criminal sphere, legislative changes
that are procedural rather than substantive are presumed to operate retrospectively: R. v.
Dineley, [2012] 3 S.C.R. 272, 2012 SCC 58.
45.
In any event, the Applicant has not explained why holding this part of the hearing
in public would be in any way unfair to
him.
Conclusion
46.
The amount claimed by the
Applicant as compensation for his legal fees is exorbitant by any measure. Despite
the needlessly protracted nature of the pre-hearing motions,
this was ultimately a seven-day hearing. It was not particularly long or
complex. In no conceivable
circumstances should it have cost over $600,000 to defend. If the Applicant
wished to spend
that much on his defence,
that of course
was his right.
By the same token, however,
the public cannot reasonably be expected to foot the bill for this costly choice.
47.
There does not appear to be
any precedent for a Panel to make a compensation
recommendation of anywhere
close to the magnitude requested
here. The previous
high water mark would
seem to be the $122,000
paid to Mr. Massiah following the prior hearing.
48.
Consider also that Mr. Massiah has not been assigned work
since August 23, 2010. Until April 29, 2015 he was receiving his full salary.
In these circumstances, requiring the public to also pay for the Applicant’s legal defence would
be seen as intolerable by a reasonable observer.
49.
Rather, this is a case where the Panel may choose to find that no recommendation for compensation should be made. There are no “most unusual”
circumstances within the meaning of Foulds which would rebut the presumption that a justice of the peace found to have committed serious misconduct that warrants
removal from office should pay his own
lawyer’s bill.
ALL OF WHICH IS RESPECTFULLY
SUBMITTED
Dated at Toronto, Ontario this
25th of May, 2015
JUSTICES OF THE PEACE REVIEW COUNCIL
IN THE MATTER OF A HEARING UNDER
SECTION 11.1 OF
THE JUSTICES OF THE PEACE ACT, R.S.O. 1990, c. J.4,
as
amended
Concerning
a Complaint about the Conduct of
Justice
of the Peace Tom L. Foulds
Before: The Honourable Justice P. H. Marjoh Agro,
Chair
Regional
Senior Justice of the Peace Bruce Leaman
Dr. Emir Crowne, Community
Member
Hearing Panel of the
Justices of the Peace Review Council
REASONS
FOR DECISION
Counsel:
Ms.
Marie Henein Mr. Brian Greenspan
Henein
Hutchison, LLP Greenspan
Humphrey Lavine
Presenting
Counsel Counsel
for His Worship Tom L. Foulds
Introduction
[1]
The Justices of the Peace
Review Council, pursuant to Section 11(15)(c) of the Justices of the Peace Act, R.S.O.1990, c. J. 4, as amended (“the
Act”), ordered that a complaint regarding the conduct of Justice of the Peace
Tom Foulds be referred to a Hearing Panel of the Review Council, for a formal
hearing under Section 11.1 of the Act.
[2]
His Worship Foulds was
appointed as a justice of the peace on July 12, 1999.
[3]
Prior to the incident that
is the subject of this hearing, and thereafter, His Worship presided at Old
City Hall Courthouse in downtown Toronto.
[4]
The
Notice of Hearing, dated March 26, 2013, particularizes the complaint against
His Worship and is appended to these reasons as Exhibit 1. The
essence of the complaint is that on Saturday, April 28, 2012, His Worship
Foulds acted inappropriately when he attempted to influence the course of an
investigation that was being undertaken by Public Health inspectors of the City
of Toronto pursuant to their duties under the Health Protection and Promotion Act, R.S.O. 1990, c. H7.
[5]
The
object of the inspection was a local restaurant owned and operated by a friend
of Justice of the Peace Foulds.
[6]
The
Panel heard submissions from his counsel that since this incident, His Worship
continues to preside there, including over matters of the type of legislation
with which he was complained to have interfered.
[7]
Three days were set aside
for the hearing.
[8]
At the opening of the
hearing on July 22, 2013, an Agreed Statement of Facts, signed by His Worship
and his counsel and by Presenting Counsel, was tendered and filed as Exhibit 2
in these proceedings. The content of that agreement is also appended to these
reasons.
[9]
At para. 25 of that
Statement, His Worship admitted that his actions as particularized therein
constituted judicial misconduct.
[10] This
Panel accepts that the Agreed Statement of Facts supports such a finding.
[11] There
is, therefore, no threshold inquiry that needs to take place concerning the
impugned conduct. The necessity of a lengthy hearing has been obviated.
Applicable approach to disposition
[12] A
finding of misconduct can lead to the imposition of any one of, or combination
of, the range of statutorily prescribed dispositions: subsections 11.1(10) and
(11) of the Act.
[13] Ranging
from least to most serious, the Panel may,
a)
warn the justice of the
peace;
b)
reprimand the justice of the
peace;
c)
order the justice of the
peace to apologize to the complainant or to any other person;
d)
order that the justice of
the peace take specified measures, such as receiving education or treatment, as
a condition of continuing to sit as a justice of the peace;
e)
suspend the justice of the
peace with pay, for any period;
f)
suspend the justice of the
peace without pay, but with benefits, for a period up to 30 days; or
g)
recommend to the Attorney
General that the justice of the peace be removed from office in accordance with
section 11.2.
[14] The
approach to be taken is described by the Honourable Justice Dennis O’Connor In the Matter of a Complaint Respecting The
Honourable Madam Justice Lesley M. Baldwin, (OJC, 2002)[1]:
The purpose of judicial misconduct
proceedings is essentially remedial. The dispositions in s. 51.6(11) should be
invoked, when necessary in order to restore a loss of public confidence arising
from the judicial conduct in issue.
Paraphrasing the test set out by the
Supreme Court in Therrien[2]
and Moreau-Bérubé[3], the
question under s. 51.6(11) is whether the impugned conduct is so seriously
contrary to the impartiality, integrity and independence of the judiciary that
it has undermined the public’s confidence in the ability of the judge to
perform the duties of office or in the administration of justice generally and
that it is necessary for the Judicial Council to make one of the dispositions
referred to in the section in order to restore that confidence.
It is only when the conduct complained
of crosses this threshold that the range of dispositions in s. 56.6(7) is to be
considered. Once it is determined that a disposition under s. 56.6(11) is
required, the Council should first consider the least serious - a warning - and
move sequentially to the most serious - a recommendation for removal - and
order only what is necessary to restore the public confidence in the judge and
in the administration of justice
generally.
[15] While
Justice O’Connor was referencing the legislation pertaining to misconduct
hearings for judges, his comments are equally applicable to hearings under the Justices of the Peace Act.
[16] As
the Supreme Court of Canada noted in Therrien
(Re), 2001 SCC 35 at paras. 110 and 111:
110. ... the personal qualities, conduct and image
that a judge projects affect those of the judicial system as a whole and,
therefore, the confidence that the public places in it. Maintaining confidence
on the part of the public in its justice system ensures its effectiveness and
proper functioning. But beyond that, public confidence promotes the general
welfare and social peace by maintaining the rule of law. In a paper written for
its members, the Canadian Judicial Council explains:
Public confidence in and respect for the
judiciary are essential to an effective judicial system and, ultimately, to
democracy founded on the rule of law. Many factors, including unfair or
uninformed criticism, or simple misunderstanding of the judicial role, can
adversely influence public confidence in and respect for the judiciary. Another
factor which is capable of undermining public respect and confidence is any
conduct of judges, in and out of court, demonstrating a lack of integrity.
Judges should, therefore, strive to conduct themselves in a way that will
sustain and contribute to public respect and confidence in their integrity,
impartiality, and good judgment.
(Canadian Judicial Council, Ethical Principles for Judges (1998), p.
14)
111.
The public will therefore demand virtually irreproachable conduct from
anyone performing a judicial function. It will at least demand that they give
the appearance of that kind of conduct. They must be and must give the
appearance of being an example of impartiality, independence and integrity.
What is demanded of them is something far above what is demanded of their
fellow citizens.
Aggravating Factors
[17] The
Panel is of the view that several decisions taken by His Worship Foulds on
April 28, 2012 at the restaurant owned by a long-time friend were ill-advised
and constitute aggravating circumstances.
[18] Rather
than realizing the compromising position in which he had placed himself and
absenting himself when the inspectors arrived that night, he joined the owner
and the two inspectors in the kitchen and set upon a course of action
demonstrative of a severe error in judgment not befitting an experienced
judicial officer.
[19] His
Worship had the option either to leave the restaurant when the inspectors
arrived, or at least remain unobtrusively in the bar area of the establishment.
Instead, by taking the inspection report from the owner’s hand, and commenting
that he was very familiar with that form, he put forward an equivocation that
blurred the line between his presence being purely private in nature, to one
which traversed the personal/professional divide.
[20] Justice
of the Peace Foulds personalized his plea by saying he would be attending a
major function at the restaurant to which he would be bringing friends and
colleagues and he did not want them to see the sign relating to the previous
inspection.
[21] We find this to be an egregious interference
with the independent and impartial exercise of a regulatory duty by two public
officials, striking at the heart of their function and severely impugning His
Worship’s own integrity and that of the administration of justice that he is
sworn to serve.
[22] We conclude that this conduct is worthy of
sanction.
Mitigating Factors
[23] Chief
among the aspects in His Worship’s favour in this proceeding is his
acknowledgment of misconduct.
[24] By
so doing, and by agreeing to a set of facts sufficient to support such an
admission, considerable cost and time that would have been necessary to hear
witnesses on this issue, were saved. Specifically, further public funds
which would have been spent to enable the two inspectors to attend to
testify at this hearing, were avoided.
[25] Secondly,
perhaps in anticipation of one of this Panel’s possible dispositions, His
Worship has sent letters of apology to both inspectors. This reflects his
remorse in his engaging in a course of action that was unbefitting his position
as a justice of the peace.
[26] Thirdly,
His Worship Foulds comes before this Panel without a history of findings
of judicial misconduct after 14 years as a justice of the peace.
[27] His
community service before appointment and his current service as a Canadian
Armed Forces reservist speak to his otherwise exemplary character.
Disposition
[28] Having
determined that the misconduct is worthy of sanction, the Panel’s focus must be
remedial and relate to the judiciary rather than the specific justice of the
peace: In the Matter of a Complaint
Respecting Justice of the Peace Jorge Barroilhet, October 15, 2009 at
para. 10, citing with approval Ruffo v
Conseil de la Magistrature, [1995] 4 S.C.R. 267:
... As such, the role of the Hearing
Panel in addressing judicial misconduct is not to punish the part, i.e. the
individual justice of the peace who stands out by conduct that is deemed
unacceptable but, rather to preserve the integrity of the whole, i.e. the
entire judiciary itself.
[29] This
is consistent with the view that the personal qualities and conduct of a
judicial officer affect the judicial system as a whole and the confidence the
public places in the institution and its members.
[30] Public
confidence in the judicial system as a whole must be restored.
[31] In
our view, neither a warning nor a reprimand would restore public confidence in
the integrity of justices of the peace of the Ontario Court of Justice.
[32] We
have found His Worship to have attempted to influence the regulatory duties of
public officials whose employer, the City of Toronto, appears before him and
other justices of the peace in this region as a litigant.
[33] The
public must know, as a result of our disposition, that misconduct of this kind
is not countenanced by the Ontario Court of Justice.
[34] In
particular, City inspectors must have confidence that they can perform their
duties independently and without fear of intimidation, direction or reprisal
from judicial sources.
[35] His
Worship has provided letters of apology to both involved inspectors. To order
further apologies, in the circumstances, would be redundant.
[36] The
possible option of ordering further education has, to some extent, already been
dealt with. The Panel heard that His Worship Foulds, along with all justices of
the peace, as recently as the spring of 2013, attended a continuing education
seminar which included a component on ethics.
[37] One
might reasonably infer this education session had some impact on
His Worship’s decision, taken with the benefit of counsel, to acknowledge
his misconduct.
[38] The
Panel is therefore of the view that no further specific education in this area
is necessary, though His Worship is encouraged to avail himself of similar
continuing education as it might arise.
[39] Remaining
dispositions include suspensions (with and without pay), or a recommendation to
the Attorney General that His Worship be removed from office.
[40] We
will deal with removal first. In our view, removal from office is best suited
to the most grave cases of misconduct where no other disposition, or
combination of dispositions, would meaningfully restore public confidence in
the administration of justice.
[41] That
is not the case here.
[42] Because
of the seriousness of the misconduct demonstrated by His Worship Foulds, and
mindful of the appearance of that conduct in the eyes of the public, this Panel
has unanimously concluded that the appropriate disposition in this case is a
period of suspension.
[43] It
is our view that a suspension with pay in this case would be perceived as an
insufficient method to redress public confidence. Such suspensions, when
routinely imposed on other persons whose job it is to uphold the laws of the
land, are often viewed as paid leave and tend to further undermine public
confidence.
[44] Counsel
for His Worship acknowledged that over the course of this complaint process,
Justice of the Peace Foulds continued his presiding duties at Old City Hall,
which duties would include matters in which the City of Toronto was a litigant.
[45] It
is our view that the only sanction which will restore the public confidence in
both this justice of the peace and that bench as a whole, is to suspend His
Worship Foulds without pay, but with benefits, for a period of seven
consecutive calendar days commencing Monday, the 9th day of
September 2013.
Costs
[46] Mr.
Greenspan, counsel for His Worship, made application for a recommendation for
costs. He argued that with the
assistance and benefit of counsel, an Agreed Statement of Facts was tendered
thereby abridging this hearing from three days to one half day and sparing the
attendance of witnesses and the costs related to that attendance.
[47] Mr.
Greenspan provided the Panel a docket itemizing his work and time spent on this
matter as well as the work and time spent by his junior associate. The time
attributed to Mr. Greenspan is 15.1 hours and to his associate 11.2 hours.
[48] Subsection
11.1(17) of the Act permits this Panel to compensate a justice of the peace for
all or part of costs incurred in a proceeding under the Act:
(17) The
Panel may recommend that the justice of the peace be compensated for all or
part of the cost of legal services incurred in connection with the hearing.
[49] The
quantum of allowable costs is limited to “a rate for legal services that does
not exceed the maximum rate normally paid by the government of Ontario for
similar services”: subsection 11.1 (18) of the Act.
[50] This provision is unusual in
the professional disciplinary process.
[51] The awarding of costs in
judicial misconduct proceedings has lacked consistency and there is no case law
that directly addresses the approach to be taken by a Panel in making a
recommendation.
[52] While
addressing the issue of costs in the matter before us, we aim to also provide
some general guidelines.
[53] Certainly
respondents to these hearings should be encouraged to retain counsel.
[54] In
this case, counsel assisted with the preparation of an Agreed Statement of
Facts, a feat that might not otherwise be accomplished without the benefit of
counsel. That alone saved considerable public expenditure.
[55] The
participation of counsel also insulates complainants and other witnesses from
cross-examination by the very respondent about whom they complained, thereby
amplifying procedural fairness and the overall dignity of the process.
[56] Although
judicial members of a Panel are screened for any personal or professional
connection to a respondent, the addition of counsel for a respondent avoids the
unseemliness of a judicial officer directly pleading his case to his peers.
[57] In
instances where the alleged misconduct is referred to a public hearing, and
ultimately dismissed, there is a very compelling argument for the recovery of
all costs (in accordance with sub-sections 11.1 (17) and 11.1 (18) of the Act)
as the public’s confidence has not been undermined in the least.
[58] In
cases where, pursuant to subsection 11.10 (g), a recommendation to the Attorney
General is made that a justice of the peace be removed from office, we doubt
whether costs should ever be recommended, except in the most unusual of
circumstances
[59] When
a Panel recommends removal from office it means that nothing short of removal
is ‘enough’ to restore the public’s confidence. That very public would unlikely
countenance the awarding of costs for such extreme misconduct.
[60] In
other cases where there is a finding of misconduct, there is a spectrum of cost
recommendations that might arise, all subject to the limitations in subsections
11.1 (17) and 11.1 (18) of the Act.
[61] In
cases where no misconduct is admitted, but where it is eventually established
by the Panel, then costs might still be warranted but on a lower scale.
[62] Some
factors that might be weighed are these:
a) the
severity of the misconduct;
b) the
complexity of the hearing;
c) the
conduct of the justice of the peace in the course of the hearing, including
whether the justice of the peace prolonged or expedited the process;
d) the
nature of the disposition(s);
e) whether
public funds were lost as a result of the misconduct;
f)
whether there had been previous
findings of misconduct made against the justice of the peace; and
g) whether
the conduct in question relates to a judicial function or impacts judicial
independence.
[63] In Reilly v Alberta, 1999 ABQB 252, at paras. 30-32, aff’d by 2000
ABCA 241,
the court held that:
Where
the conduct in question relates to the judicial function...the state should defray the legal
fees required for the judge to defend himself or herself in order to preserve
the independence of the judiciary.
[64] These guidelines would serve the public interest by ensuring
that its judicial officers are fairly and adequately represented, but not at
the cost of the administration of justice as a whole.
[65] In this case, where there is an Agreed Statement of Facts
and an admission of judicial misconduct, there is some measure of public
good that is attached to the timely and efficient resolution of this
complaint.
[66] For these reasons we recommend that costs be awarded to His
Worship for the preparation of the Agreed Statement of Facts and hearing
attendances, assessed at 10 hours,
apportioned between Mr. Greenspan and his associate, and fixed in the sum of
$3000.
DATED at the City of Toronto
in the Province of Ontario this 24th day of July, 2013.
HEARING
PANEL:
The Honourable Justice P. H. Marjoh Agro, Chair
Regional Senior Justice of the Peace Bruce Leaman
Dr. Emir Crowne, Community Member
EXHIBIT
“1”
JUSTICES OF THE PEACE
REVIEW COUNCIL
IN THE MATTER
OF a
complaint respecting
Justice of the Peace
Tom Foulds
Justice of the Peace
in the
Toronto Region
notice of HEARING
The
Justices of the Peace Review Council (the “Review Council”), pursuant to
subsection 11(15)(c) of the Justices of
the Peace Act, R.S.O. 1990, c. J.4, as amended (the “Act”), has ordered that the following matter of a complaint
regarding the conduct or actions of Justice of the Peace Tom Foulds be referred
to a Hearing Panel of the Review Council, for a formal hearing under section
11.1 of the Act.
It
is alleged that you have conducted yourself in a manner that is incompatible
with the due execution of your office and that by reason thereof you have
become incapacitated or disabled from the due execution of your office. The particulars of the complaint regarding
your conduct are set out in Appendix “A” to this Notice of Hearing.
The Hearing Panel of the Review Council will convene
at the Justices of the Peace Review Council Boardroom, Suite 2310, 1 Queen
Street East, in the City of Toronto, on Wednesday, the 17th day of April, 2013,
at 2 p.m. in the afternoon or as soon thereafter as the Hearing Panel of the
Review Council can be convened to set a date for the hearing into the
complaint.
A justice of the peace whose conduct is the
subject of a formal hearing before the Review Council may be represented by
counsel and shall be given the opportunity to be heard and to produce evidence.
The
Review Council may, pursuant to subsection 11.1(10) of the Justices of the Peace Act, dismiss the complaint after completing
the hearing, with or without a finding that it is unfounded or, if it upholds
the complaint, it may:
(a) warn
the justice of the peace;
(b) reprimand
the justice of the peace;
(c) order
the justice of the peace to apologize to the complainants or to any other
person;
(d) order
that the justice of the peace take specified measures, such as receiving
education or treatment, as a condition of continuing to sit as a justice of the
peace;
(e) suspend
the justice of the peace with pay, for any period;
(f) suspend
the justice of the peace without pay, but with benefits, for a period up to 30
days; or
(g) recommend
to the Attorney General that the justice of the peace be removed from office in
accordance with section 11.2 of the Justices
of the Peace Act.
You
or your counsel may contact the office of Ms. Marie Henein, Henein Hutchison
LLP, the solicitor retained on behalf of the Review Council to act as
Presenting Counsel in this matter.
If you fail to attend before the Review
Council in person or by representative, the Review Council may proceed with the
hearing in your absence and you will not be entitled to any further notice of
the proceeding.
March 26, 2013
Original Signed
Marilyn
E. King
Registrar
Justices
of the Peace Review Council
appendix
"a"
PARTICULARS OF THE COMPLAINT
The
particulars of the complaint regarding the conduct of Your Worship are set out
below:
1.
On Friday, April 27, 2012,
two Public Health Inspectors employed by Toronto Public Health inspected a
restaurant at 1496 Yonge Street in Toronto to check for compliance with Ontario
Food Premises Regulation 562/90, under the Health
Protection and Promotion Act, R.S.O. 1990, Ch. H7. As a result of the
inspection, the premises were closed due to their observance of a potential
health hazard (i.e. sewage back-up) and an order for compliance and closure was
issued. In accordance with the requirements of the policy and regulation, a red
“CLOSED” Food Safety Inspection Notice was posted at the front entrance.
2.
On Saturday, April 28, 2012,
the two Public Health Inspectors contacted the restaurant owner and advised
that they would be re-attending the premises to review the work done to date.
3.
On that same evening, you
attended the restaurant and learned that the restaurant had been closed by the
Public Health Inspectors and that they would be attending for re-inspection
that same evening.
4.
You told the restaurant
owner to keep you advised as to the status of the inspection and left the
premises to attend another function.
5.
You were contacted and
received notice that the inspectors had called and were on their way. You
waited some time and then returned to the restaurant.
6.
When you arrived at the
restaurant, you learned that the inspectors had not yet arrived and you
remained in the restaurant.
7.
As a justice of the peace
whose responsibilities include presiding over offences under the Health Protection and Promotion Act in
Toronto, you ought to have known that a Public Health Inspector for the City of
Toronto might recognize you as a justice of the peace.
8.
At approximately 8:45 p.m. the same two Public
Health Inspectors re-attended the restaurant to confirm whether certain work
had been done pursuant to the order. You
were sitting at the bar with a wine glass.
9.
The owner did not introduce
you to the inspectors. The inspectors inspected the premises and found that the
critical items which had resulted in the closure were corrected.
10.
After the inspection, the
inspectors went to the kitchen with the owner and completed a written
report. Your Worship entered the
kitchen. One of the inspectors recognized you to be a justice of the peace from
the courthouse at Old City Hall; however, he did not know your name at the
time.
11.
Your Worship said you were
there for translation. However, no translation was done. All conversation was
in English.
12.
After the written report was
completed, Your Worship took the report, stating, “Let me see this.” You
started to read it and made comments on it. Your Worship also stated that you
were very familiar with this. You said once the infractions were corrected, the
inspectors should issue a “Pass” sign. When the inspector said that the owner
now had a “Pass”, Your Worship said that the owner should have a full proper
pass, referring to the bottom portion of the notice that still showed the
results of the previous inspection as “Closed” and the enforcement action
taken. Your Worship said that the
grievous infraction was corrected, which had nothing to do with the food, and
that the restaurant owner should not have had the red “Closed” sign on his
restaurant window or been closed in the first place.
13.
The inspectors explained
that the policy required that another compliance inspection which could not be
done within 30 days. In accordance with City policy, the current notice would
remain as it was.
14.
Your Worship told the
inspectors, “That doesn’t sound fair” and informed them that there was a major
LCBO function taking place on Monday evening and many of the important
gastronomes in the City would be in attendance and many thousands of dollars of
wine would be consumed. You said that you had friends coming and you didn’t
want them to see the sign that showed the history of closure. You also stated that you didn’t agree with
the red “Closed” sign because the problem had nothing to do with food, and the
restaurant owner had already lost $5,000.00 on Saturday night.
15.
Your Worship then stated,
“You don’t have to answer right now.”
16.
The inspectors did not
change the bottom portion of the notice that disclosed the previous inspection.
17.
Your Worship’s comments and
conduct caused one of the Public Health Inspectors, who had recognized you as a
justice of the peace, to feel intimidated and nervous. He perceived Your
Worship to be advocating for the owner of the restaurant and trying to
influence the inspectors to give him a clean record and to not disclose the
closure history.
18.
The Director of Healthy Environments
for the City of Toronto submitted a complaint about Your Worship’s conduct,
indicating that Your Worship acted in an improper manner and that your conduct
resulted in the Public Health Inspectors feeling uncomfortable and pressured to
make changes (which they did not make) that were not in keeping with the
Toronto Public Health, Healthy Environment Policy for the conduct of Food
Premises Inspections. If the inspectors had complied with your request that the
previous inspection results not be disclosed to the public, the disclosure
requirements of the DineSafe Inspection and Disclosure System would have been
contravened.
19. Your
Worship acted inappropriately when you advanced your friend’s interests and
your own interests, or acted in a manner that gave the appearance that you were
advancing your friend’s interests and your own personal interests, to influence
the course of action that was being undertaken in accordance with the laws to
enforce health standards in relation to food safety by Public Health Inspectors
of the City of Toronto.
20. The
act or acts as set out in paragraphs 1 to 15, inclusive constitute judicial
misconduct that warrants a disposition under section 11.1(10) of the Justices of the Peace Act.
EXHIBIT
“2”
JUSTICES
OF THE PEACE REVIEW COUNCIL
IN
THE MATTER OF a complaint respecting
Justice of the Peace Tom Foulds
Justice of the Peace in the
Toronto Region
AGREED STATEMENT OF FACTS
His
Worship Tom Foulds, and Counsel for His Worship, Mr. Brian H. Greenspan, and
Presenting Counsel, Ms. Marie Henein, agree as provided herein.
1.
The Principles of Judicial Office of Justices of the Peace of the Ontario
Court of Justice state that the justices of the peace of the Ontario Court
of Justice recognize their duty to establish, maintain, encourage and uphold
high standards of personal conduct and professionalism so as to preserve the
independence and integrity of their judicial office and to preserve the faith
and trust that society places in the men and women who have agreed to accept
the responsibilities of judicial office.
2.
Public confidence in and
respect for the judiciary are essential to an effective judicial system and,
ultimately, to democracy founded on the rule of law. One factor which is
capable of undermining public respect and confidence is the conduct of justices
of the peace, in and out of court, that demonstrates a lack of integrity,
independence or impartiality.
3.
The public expects that
justices of the peace must be and must give the appearance of being an example
of impartiality, independence and integrity.
4.
Justice of the Peace Tom
Foulds, the subject of the complaint, is now and was at all times referred to
in this document, a justice of the peace of the Ontario Court of Justice. His
Worship Foulds has served in that capacity since July 12, 1999
Events
of April 27, 2012
5.
On Friday, April 27, 2012,
two Public Health Inspectors, Jeff Henderson and Marius Mihai, attended at a
restaurant located at 1496 Yonge Street in Toronto to conduct a routine
compliance inspection under the Health Protection and Promotion Act, R.S.O.
1990, ch. H7.
6.
As a result of the
inspection, the restaurant was ordered closed due to the observations of the
inspectors of the existence of a health hazard. An order for compliance and
closure was issued. As required by the regulations, a red “CLOSED” Food Safety
Inspection Notice was posted at the restaurant’s front entrance.
7.
The owner requested that the
inspectors return the following day as he wanted to re-open the restaurant at
the earliest possible opportunity. The inspectors agreed to return to the
restaurant the next day, Saturday, April 28, 2012, to view the work done to
date.
8.
On the evening of Saturday,
April 28, 2012, Justice of the Peace Foulds attended at the restaurant and
learned that the restaurant had been closed by the Public Health Inspectors and
that they would be attending for re-inspection for re-inspection later that
evening.
9.
His Worship Foulds told the
restaurant owner, who was a personal friend, that as the owner’s primary
language was French, he should obtain an interpreter in order to ensure that
communication with the inspectors would be clear. His Worship Foulds also asked
the owner to advise him of the status and outcome of the inspection.
10. Justice
of the Peace Foulds was contacted by the owner and was advised that the
inspectors had called and were on their way for re-inspection. His Worship
waited some time, and in the belief that the inspection would have been
completed and that the inspectors would no longer be present, he returned to
the restaurant.
11. When
Justice of the Peace Foulds re-attended at the restaurant, he learned that the
inspectors had not yet arrived, but he remained at the restaurant.
12. At
approximately 8:45 pm, the two Public Health Inspectors attended the
restaurant. They observed two females in the bar area and a male, later
identified as Justice of the Peace Foulds, sitting at the bar with a glass of
wine.
13. His
Worship indicated to the inspectors that he was in attendance for the purpose
of translation for the owner of the restaurant.
In fact, no French language was spoken. All conversation was in English,
including conversation between the restaurant owner and His Worship.
14. The
health inspectors inspected the premises and concluded that the restaurant
could be re-opened.
15. After
the inspection, the inspectors went to the kitchen with the owner and completed
a written report. Justice of the Peace Foulds also entered the kitchen. It was
at this point in the brighter light of the kitchen that Inspector Henderson
recognized His Worship as a justice of the peace from Old City Hall as he had
appeared before him in court on prior public health inspection cases. The other
inspector, Inspector Mihai, was under the impression that His Worship was the
restaurant owner’s lawyer.
16. The
inspectors completed the report and provided it to the owner. Justice of the
Peace Foulds took the report stating: Let me see this. While holding the
report, he indicated that he was very familiar with this. Justice of the Peace
Foulds started to read the report and comment on it. Inspector Henderson felt
intimidated and nervous because he perceived that His Worship was making
demands for them to do certain things.
17. His
Worship said the Inspectors should return on Monday and issue a “Pass” sign.
The inspector said that the restaurant was now being issued a “Pass”. When the
inspector said he had a “Pass” sign now, His Worship said words to the effect
of “No, like a proper…a full pass.” His Worship said that the bottom portion of
the sign which would show previous inspection on April 27, 20012, closed, along
with enforcement action taken should not be included on the sign. He said that
because the sewage backup was corrected, that should not show.
18. He
advised the inspectors that there was a major LCBO function taking place on Monday
evening and that many important individuals would be in attendance and many
thousands of dollars of wine would be purchased. He indicated that he was aware
of this as he had purchased tickets and would be bringing friends and
colleagues to the function and did not want them to see the sign. He also said
he didn’t agree with the sign because it had nothing to do with food, that the
restaurant owner had lost $5,000 on Saturday night and the sign would not be
fair to him and he said words to the effect that: He’s already lost enough, ok?
19. There
was a long pause. After the pause, His Worship said words to the effect of,
“You don’t have to answer right now.”
20. Mr.
Mihai then responded saying they probably would not be able to count Monday as
a re-inspection because the policy required that a re-inspection could not be
done in less than 30 days.
21. The
Health Inspectors did not change the notice that disclosed the results of the
previous inspection.
22. The
conduct of the Justice of the Peace Foulds caused the Public Health Inspector
who recognized him as a justice of the peace to feel intimidated and nervous.
23. The
inspectors’ perception of the interaction was that the justice of the peace was
advocating for the owner of the restaurant and trying to convince the inspectors
to give him a clean record by not disclosing the closure history.
24. The
Director of Healthy Environments for the City of Toronto submitted a complaint
to the Justices of the Peace Review Council about His Worship’s conduct, as set
out above, indicating that His Worship’s conduct resulted in the Public Health
Inspectors feeling uncomfortable and pressured to make changes that were not in
keeping with the Toronto Public Health, Healthy Environment Policy for the
conduct of Food Premises Inspections.
Admissions
25. Justice
of the Peace Foulds admits and the parties are prepared to proceed on the basis
that his actions as contained in this Agreed Statement of Facts constitute
judicial misconduct.
26. Justice
of the Peace Foulds admits that as a justice of the peace whose
responsibilities include presiding over offences under the Health Protection
and Promotion Act in Toronto, he should have appreciated that a Public Health
Inspector for the City of Toronto might recognize him as a justice of the
peace.
27. Justice
of the Peace Foulds now appreciates and understands that his actions could have
been perceived as an attempt to influence or interfere in the course of action
being undertaken in accordance with the laws to enforce health standards in
relation to food safety by Public Health Inspectors of the City of Toronto.
28. His
Worship Foulds agrees that a disposition ordered by the Justices of the Peace
Review Council must be sufficient to restore and preserve the dignity and
integrity of the judicial position. The disposition should also seek to restore
public confidence in His Worship Foulds’ integrity and ability to carry out his
duties as a justice of the peace.
29. His
Worship agrees that he will provide letters of apology to the two inspectors,
Jeff Henderson and Marius Mihai. He further agrees that his presence during the
inspection and his intervention was inappropriate. He regrets that this
personal concern for a friend compromised his judgment in the circumstances.
30. His
Worship agrees that he will not repeat such conduct in the future, mindful of
the potential harm that such conduct poses to public confidence in the
integrity and impartiality of the judiciary and to the administration of
justice.
Original
Signed Original dated July 10, 2013
____________________________ _________________
Justice of the Peace Tom Foulds Date
Original Signed Original
dated July 10, 2013
____________________________ _________________
Brian H. Greenspan Date
(Counsel for Justice
of the Peace Foulds)
Original Signed Original
dated July 15, 2013
____________________________ _________________
Marie Henein Date
(Presenting
Counsel)
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