A former assistant Crown attorney from Brantford, Ont., wants $1.2 million in lost salary and pension from the provincial government for failing to follow through on what he says was a promise to make him a judge.
Don Angevine will be in court in early December to fight off a motion for summary judgment brought by the Ministry of the Attorney General, which believes his claim has no chance of success.
The proceedings follow an earlier failed attempt by the ministry to have Angevine’s claim struck soon after he filed it in 2008.
“Effectively, they’re trying to snuff out our claim at an early stage again without being required to go through a trial,” says Paul Amey, Angevine’s lawyer.
While many lawyers tell war stories about judicial appointments they thought they had but that never materialized, this one is different, according to Amey. “This is not the usual case of those hundreds of lawyers who no doubt feel disappointed that they never got the appointment somebody promised them.
This is the lawyer who got the phone call that lawyers are sitting on pins and needles waiting to receive from the attorney general congratulating him on his appointment. It’s quite different.”
Angevine began working as an assistant Crown attorney in 1977, two years after his call to the bar. He spent the bulk of his working years in Brantford before retiring in 2006.
According to his statement of claim, Angevine applied to the judicial appointments advisory committee in 1992. After an interview, a provincial official allegedly told him he had the job and would be assigned to the provincial court in Brampton, Ont.
During a meeting with the regional senior justice for Brampton, Angevine was even told to prepare a guest list for his swearing-in ceremony, according to the statement of claim. None of the allegations have been proven in court.
But things began to go awry in late December 1992 when former attorney general Howard Hampton called him. “Congratulations. As you know, you have been chosen to be appointed to the provincial court.
Unfortunately, there has been a bit of a mix-up. There are 12 people who have been promised positions, and we only have 10 positions available, so you are going to have to wait a few months until there is a new opening,” a paraphrased version of the conversation in Angevine’s claim alleges Hampton told him.
Angevine claims he contacted the ministry for a status report in 1994 after hearing nothing about his appointment. He says George Thomson, the deputy attorney general, recommended he take on some high-profile prosecutions for evaluation.
Another year later, Angevine alleges, Thomson told him at a convention it was “no longer a question of if you are going to be appointed but
it is only a question of when.”
According to Angevine’s claim, Hampton and Thomson “made an offer accepted by the plaintiff to appoint the plaintiff to provincial judge in the future and while the plaintiff was employed by the defendant as a Crown attorney, which constituted a binding agreement between the parties.”
A decade later, when Angevine retired, the ministry still hadn’t followed through on the alleged promise. He filed his lawsuit soon after.
Amey says his client is anxious to get the matter settled but is prepared to go to trial if that’s what it takes. “All we’re asking for is money,” Amey says. “We’re not asking them to appoint him a judge.
It’s what we calculate his real out-of-pocket loss will be during his lifetime by never having got that appointment.”
Angevine says he stuck to his job on the basis of the promised appointment. At the same time, he claims he eschewed career-advancement opportunities within the ministry in the expectation a position on the bench would be forthcoming.
In the meantime, while Thomson moved on to a new job with the federal Department of Justice, a second candidate received his delayed appointment after getting the same message from Hampton back in 1992, according to the statement of claim.
Hampton himself cycled through various jobs, including minister of natural resources and leader of the NDP in opposition. He remains an MPP.
Still, Angevine claims successive attorneys general encouraged him to apply for positions on the provincial court bench as they came up.
Between 1992 and 2006, he applied for more than 100 vacancies and got two more interviews with the advisory committee, according to the statement of claim.
In a judgment dated Dec. 2, 2008, Ontario Superior Court Justice Donald Gordon dismissed the ministry’s attempt to have the claim struck. While the claim could have included more detail, Gordon said it did enough to set out the elements of a contract: offer, acceptance, and consideration.
“It is not the role of the motions judge to rule on the reasonableness of the purported facts or the likelihood of success,” Gordon wrote. “It will be for the trial judge to so determine on a full and complete evidentiary record.”
Gordon also said the parties’ disagreement over the limitation period was a matter for trial. The ministry argues Angevine waited too long to file his claim, but when the parties return to court in December, Amey says he’ll argue the limitation period should begin much later, when Angevine discovered the ministry wouldn’t fulfil its alleged promise.
Brendan Crawley, a spokesman for the ministry, said in a statement: “We are defending this claim. It is our position that judicial appointments are made following the process set out in the Courts of Justice Act. We will make our submissions in open court in due course.”