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Matlow asking Federal Court for review

|Written By Shannon Kari

Ontario Superior Court Justice Ted Matlow will seek judicial review of a Canadian Judicial Council disciplinary panel decision that recommended his removal from the bench.

Paul Cavalluzzo, counsel for Matlow, confirmed to Law Times that the judge will be asking the Federal Court of Canada to review the findings of the panel that were released on May 29.

Cavalluzzo added he will request that the judicial council defer taking further action in its disciplinary process while the Federal Court action is ongoing. The judicial council announced late last week it will hold a public meeting on July 21 in Toronto and Matlow is scheduled to make an oral statement.

A spokesperson for the judicial council said at press time it would not be responding about whether it will put its process on hold before the application is filed in Federal Court.

The conduct of Matlow, in his public and ongoing criticism of the City of Toronto legal department in approving a real estate development next to his home, was described as “manifestly and totally contrary to the impartiality, integrity and independence of the judiciary” by the inquiry committee that presided over the disciplinary hearing. The committee was chaired by former Newfoundland premier Clyde Wells, who is the chief justice of that province.

The City of Toronto solicitor, Anna Kinastowski, filed the initial complaint against Matlow in 2006, a few months after he was on a Divisional Court panel that ruled against the city.

Unless it agrees to the request to put the disciplinary process on hold, the full judicial council will decide on a final recommendation to the federal justice minister.

A confidential judicial council report obtained by Law Times, which paved the way for the disciplinary hearing, suggests the judicial body would not be favourable to Matlow.

The February 2007 report contains the findings of a five-judge panel, which ordered a hearing after receiving written submissions. The report was obtained independently by Law Times and not from any party connected to the proceeding.

The panel, chaired by Associate Chief Justice Jeffrey Oliphant of the Manitoba Court of Queen’s Bench, made criticisms of Matlow that were almost identical to that of the inquiry committee’s findings last month.

“Justice Matlow’s actions were neither measured nor restrained and hardly such as would befit the judicial office,” the report stated. The allegations against Matlow were compared by the panel to that of a judge who renders a decision that is “impeccably reasoned and legally correct,” yet it is clear in open court that the judge is impaired by alcohol or drugs.

Six of the judges who participated in the February 2007 report and the advisory committee hearing are also members of the full Canadian Judicial Council.

Matlow, who has served on the bench for 27 years, is only the second Superior Court judge that an advisory committee has concluded there are grounds for removal.

A similar finding was made in 1996 against a Quebec judge who privately berated three members of a jury before sentencing, for their verdict that convicted a woman of second-degree murder in the death of her husband.

The unanimous finding against Matlow by the advisory committee concluded that he was “incapable of performing the duties of his judicial office,” because of his conduct related to the proposed real estate development a few doors from his home. The judge also contacted politicians, including the attorney general, and a columnist at the Globe and Mail.

The last media contact took place a few days before he sat on a Divisional Court panel hearing an injunction application against a City of Toronto streetcar expansion project. The panel granted the injunction and the city later filed a recusal motion.

Kinastowski stressed that the complaint filed by the city was not because of any specific ruling, but a result of a “continuing pattern” of behaviour by Matlow. “This is about the administration of justice,” she told Law Times.

Local media were notified the same day the city filed its motion seeking Matlow’s recusal because the streetcar expansion project was a high-profile issue, she said.

Matlow had presided over five cases involving the city while he publicly opposed the development near his home and there were no calls for his recusal on these cases, the advisory committee heard.

The city has a large legal staff and not everyone would have known of Matlow’s public criticism, said Kinastowski.

The written complaint filed with the judicial council in 2006 stated that Kinastowski became aware that Matlow was on the injunction panel on the final day of the two-day hearing. There was a one-week delay in completing a review of whether to seek his recusal because “relevant files were in storage,” the complaint said.

Some of the harshest criticism by the advisory committee was a result of Matlow contacting the media and urging it to write stories about the proposed real estate project on his street.

Coincidentally, Wells was also the subject of a complaint to the judicial council in 2003 for writing the Globe and Mail to criticize one of its stories about a decision of the Newfoundland Court of Appeal. The complaint by former Conservative politician John Crosbie was dismissed by the chairman of the council’s judicial conduct committee.

While Wells was found to have acted in good faith, the dismissal urged “abundant caution” by judges before contacting media about specific rulings and recommended that courts be provided with communications advisors.

To read the report go to: http://www.cjc-ccm.gc.ca/english/conduct_en.asp?selMenu=conduct_inq_matlow_en.asp

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