Editorial: Refine the rules

Should justices of the peace, or judges for that matter, have their legal costs covered when they face disciplinary proceedings?
On its face, it seems reasonable to suggest that if a justice of the peace does something bad, he or she should be on the hook for legal costs. But as the Justices of the Peace Review Council has pointed out, judicial independence is an important consideration. It’s certainly valid to question that assertion since a disciplinary matter doesn’t necessarily imperil judicial independence, but it’s still worthwhile for hearing panels to consider it as justification for awarding costs.

The concerns follow reports in the Toronto Star that taxpayers have shouldered $220,000 in legal fees for five justices of the peace facing allegations since 2009. The review council had found four of them guilty of judicial misconduct while a fifth resigned before a hearing took place, according to the Star.

It’s important to note the review council doesn’t always approve such requests. Last year, it rejected former justice of the peace Donna Phillips’ request to have the public cover her legal tab after she resigned amid a recommendation to remove her from office. She had been in hot water for lying to police for her daughter during a routine traffic stop, and the panel rejected her request for costs in part because of the severity of her actions. It found the average Canadian “would be shocked” if it compensated her for her legal costs.

In its ruling on the Phillips matter, the panel noted a previous case that outlined some guidance and factors to consider in such requests. They included the severity of the misconduct, the justice of the peace’s conduct during the hearing, and any previous findings of misconduct. They’re all reasonable factors to consider.

But in light of the concerns that review council panels have gone too far in their willingness to award costs to guilty justices of the peace, it’s clear we’d benefit from detailed guidance on the issue. It’s reasonable, for example, to suggest justices of the peace should have to more clearly and specifically demonstrate how not awarding costs would imperil judicial independence. The bar should be high when it comes to the severity of cases, and it seems the factors should count against a justice of the peace who resigns ahead of facing the music.

It’s not a simple issue. While it’s reasonable to suggest costs awards should be very rare or not an option at all, the circumstances facing Manitoba Associate Chief Justice Lori Douglas are a good example of why it’s important to preserve it. If her hearing had proceeded to completion and, hypothetically, a finding of misconduct, it would have been entirely fair for Douglas to have sought costs.

Glenn Kauth

Free newsletter

Our newsletter is FREE and keeps you up to date on all the developments in the Ontario legal community. Please enter your email address below to subscribe.

Recent articles & video

Liberal MPP’s bill aims to ‘depoliticize’ and clear backlog from Ontario’s tribunal system

Ontario Superior Court awards damages after real estate deals fail due to broker's conflicting roles

Ontario Superior Court rejects jury trial in motor vehicle accident case due to procedural delays

Court of Appeal addresses wrongful conviction risk in 'Mr. Big' police stings

Empathy, human connection, and creativity separate lawyers from AI systems, says Tara Vasdani

Karen Perron named as associate justice of the Ontario Superior Court of Justice

Most Read Articles

School boards' lawyer suing social media platforms hopes trial reveals inner workings of algorithms

Court of Appeal addresses wrongful conviction risk in 'Mr. Big' police stings

Karen Perron named as associate justice of the Ontario Superior Court of Justice

Ontario Superior Court upholds human rights tribunal's authority over workplace disputes