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Matlow faces review over possible ethical breach

|Written By Helen Burnett

The Canadian Judicial Council is set to deliberate next month on whether a complaint filed against Ontario Superior Court Justice Ted Matlow will head to an inquiry committee, which could ultimately result in his removal from the bench.

The complaint was brought forward by Anna Kinastowski, a solicitor for the City of Toronto, in January 2006 and stems from a claim of a “reasonable apprehension of bias” on the part of Matlow, based on his involvement with an organization called Friends of the Village from 2002 to 2004.

The organization opposed a proposed joint venture between the City of Toronto and a developer for the construction of a large real estate development called the “Thelma project” near Spadina Road in Matlow’s Toronto neighbourhood of Forest Hill Village.

His counsel notes that Matlow’s participation in the group involved meeting with members of city council and the city legal department, appearing before city council committees, writing to the mayor, responding to media requests for comment, and obtaining standing before the Ontario Municipal Board as a private citizen.

In October 2005, after his involvement with the Thelma project issue, Matlow presided over a three-person Divisional Court panel, involving the city of Toronto, the Toronto Transit Commission, and SOS Save our St. Clair, over the proposed streetcar right of way on St. Clair Avenue. The panel unanimously ruled against the interests of the city.

Following the decision, the city and the TTC brought a motion to have Matlow recuse himself from the panel, in light of the perceived similarities between the two cases and concerns over bias.

Matlow refused to recuse himself from the panel, while the other two members of the panel, justices Susan Greer and Ellen Macdonald, found that the panel should be struck and a new panel should hear the application again.

Greer and Macdonald noted that while they had been aware of Matlow’s support of Friends of the Village, they had not been aware of his e-mails to local politicians and to city officials, but also said that there was no need to inform them of those activities. They did, however, say had they been aware of the content of Matlow’s correspondence “We would have questioned him on the appropriateness of him presiding on this panel.”

The city’s complaint to the CJC was referred to a panel of five judges for consideration, which issued a report recommending the council call a formal hearing into the matter by an inquiry committee. The council will be deliberating the recommendation of the five-person panel at a meeting in the first week of April. If the CJC decides to call for a hearing, a panel of three judges will preside.

Over the last decade, the Canadian Judicial Council has received an average of 165 complaints a year, and resolves 94 per cent of these within six months. The CJC reports only six cases have proceeded to an inquiry committee, the last one in 2004.

Norman Sabourin, executive director and general counsel for the CJC, told Law Times the five members who were on the panel as well as the three judges who would be appointed to the inquiry committee do not participate in the council’s deliberations on whether or not to call for an inquiry committee into the complaint.

According to the CJC’s complaints process, after considering the report of an inquiry committee, the council may recommend to Parliament that the judge be removed from office.

Lorne Sossin, associate dean at the University of Toronto law school, notes that although it is rare to hold formal inquiries, in certain cases it can be beneficial to do so.

“While inquiries are concerning because they reflect the seriousness of particular allegations against the conduct of a particular judge, to the extent they lead to greater public exposure to these issues and greater public understanding of when and how these boundaries are to be drawn, they may be beneficial,” he says.

In submissions to the CJC, Matlow’s counsel said the St.Clair streetcar right-of-way issue is unrelated to the Thelma project, and the legal issues involved in the two projects are completely different.

They noted that his involvement with the Thelma project was in his capacity as a private citizen, in which he was entitled to engage. They also claim that a judge’s decision whether or not to recuse from a case is outside the CJC’s jurisdiction, which it says excludes matters of judicial decision-making in order to protect the independence of the judiciary and to ensure the fair operation of the courts.

“If a judge’s rulings with respect to recusal are allowed to become the subject of investigations into judicial ethics and the basis for discipline or removal from office, this will encourage litigation tactics of intimidation which will undermine the security and independence of the judiciary and encourage judge-shopping,” says the submission.

Matlow declined to comment on the matter, saying only that the case raises some important issues regarding the extent to which a judge can speak publicly about matters that affect the judge directly.

Trevor Farrow, a professor of legal ethics at Osgoode Hall Law School, says the key is for judges to have a balance between making strong decisions supporting the rule of law with the protection of the integrity of the bench and the public.

“While it certainly will be talked about amongst the judiciary and the legal public at large, I don’t see this as the opening of a floodgate to put in jeopardy the independence of the bench,” he says.

As judges and their rulings are coming under more scrutiny from both the media and in civil discourse in general, this can be tough for judges, given that they are also members of society, says Farrow.

“There’s got to be a balance to let judges have a meaningful role in society, but recognizing that they also hold positions of significant trust, and when a potential conflict of interest arises, that conflict has to be taken seriously,” he adds.

“Increasingly, judicial ethics have come to focus on the appropriate role for judges in society - as citizens, as neighbours, and as members of social, ethnic, cultural, and religious communities. I do not think we want judges who live apart from their community. Judges who are active members of their community are, I think, better judges,” says Sossin.

“Because of those connections and activities, however, judges must be alert to when it will be necessary to disclose prior relationships to issues or litigants and when it will be necessary, based on those relationships, to recuse themselves from particular cases.”

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