The chief justice of the Ontario Superior Court questioned whether the Canadian Judicial Council was acting within its powers when it decided to reconsider complaints filed against Superior Court Justice Frank Newbould that it had previously dismissed.
Chief Justice Heather Smith raised “serious concerns” about the complaint process in a September 2016 letter to the judicial council.
In the letter, the judicial conduct committee was also asked to consider the “appropriateness” of a decision last spring by Robert Pidgeon, senior associate chief justice of the Quebec Superior Court, to order a new look into the complaints against Newbould.
Following the decision by Pidgeon, the matter was sent to a judicial council review panel.
In a ruling dated Feb. 8, it unanimously decided to appoint an inquiry committee to consider allegations that “if proven” could result in a recommendation that Newbould be removed from judicial office.
The complaints stem from the judge’s actions related to a long-standing land claim dispute in an area where his family has a cottage.
In a statement issued after the review panel’s conclusion was made public on Feb. 13, his lawyer Brian Gover suggested the issue was about perception.
“Justice Newbould apologized in 2014 due to the perception caused by the fact he is a judge,” said the statement.
The judge has since filed an application in Federal Court asking it to quash the review panel’s decision on the basis that it exceeded its jurisdiction.
Gover, a partner at Stockwoods LLP in Toronto, says no date has been set yet for the hearing.
Newbould continues to serve as team leader for the commercial court list in Toronto and notified the federal justice minister and judicial council on Feb. 10 of his intention to retire on June 1.
Mohan Sharma, counsel in the office of Chief Justice Smith, says it is standard for the judicial council to request comment from a chief justice whenever a complaint has been made against a judge in her court.
“It is not uncommon for the chief justice, as a member of the CJC, to write to its executive director about processes engaged in by the CJC,” Sharma explains.
Complaints against Newbould were originally filed by seven people in the summer and fall of 2014, according to documents now made public by the judicial council.
The complaints questioned the appropriateness of Newbould’s public statements and written comments about a land claims dispute with the Saugeen First Nation over the Sauble Beach area on the eastern shore of Lake Huron.
The dispute has been in litigation since 1994 and over the years it has been case managed by two Superior Court judges.
Newbould sent at least four emails or letters to the South Bruce Peninsula council in August 2014 in response to a request for comment from the local mayor.
One of the communications was a detailed eight-page letter. It contains advice on how to defend the claim.
The judge, formerly a senior commercial litigator, wrote that he attempted to contact lawyers for the province and federal government, but they would not speak to him about the matter.
In the letter, Newbould stated that he had contacted Warren Winkler to clarify the interpretation of an issue dating back to when Winkler was mediating the dispute and sitting as a Superior Court judge.
Newbould also disclosed in the letter that he had been able to look at most of the evidence in the dispute and could assist in recommending an outside lawyer to act for the municipality.
“The town should never agree to a settlement that does not spell out clearly that there will never be vehicles or user fees or cigarette sales on the beach,” wrote Newbould.
The application filed in Federal Court argues that Newbould acted in his “personal capacity” as a local resident and not as a judge in expressing his views.
The opinions and content of the letter were reported in the local media a few days after they were communicated to council.
“Justice Newbould says town has strong defence to native land claim at Sauble Beach,” states an Aug. 27, 2014 headline in an online story posted by Bayshore Broadcasting.
The story goes on to detail “recommendations” made by the Superior Court judge to local council, including that it “should not shy away” from defending its position in court.
Nova Scotia Chief Justice Michael MacDonald originally dismissed the complaints in early 2015.
The judge, who chairs the judicial council’s conduct committee, accepted a private apology from Newbould.
The judicial council also sought comment from Smith at this time.
“Chief Justice Smith indicated that she had nothing further to add to the comprehensive and contrite response delivered by Justice Newbould.
“It was up to the Canadian Judicial Council, not the chief justice, to determine whether Justice Newbould’s apology was sufficient,” Sharma explains.
The basis for the complaints, the initial decision and what happened over the next two years were not made public until after the release of the review panel decision last month.
Koren Lightning-Earle, president of the Indigenous Bar Association, asked in June 2015 for a reconsideration of the original decision to dismiss the complaints.
Given that Newbould has indicated he is going to retire, it appears unlikely there will be a hearing, says Lightning-Earle.
“The whole process has been very frustrating,” she states.
“Why has it taken so long,” asks Lightning-Earle. “This is a serious issue.”
Johanna Laporte, a spokeswoman for the judicial council, says there was a “voluminous record” in this proceeding and “complex issues” that had to be decided.
There was also an unexpected delay after the recusal of the original lay member of the review panel.
The land claim dispute remains unresolved and is currently being case managed by Superior Court Justice Edward Belobaba.
After a proposal aimed at reaching a settlement was not accepted, the South Bruce Peninsula council subsequently retained Jonathan Lisus, a partner at Lax O’Sullivan Lisus Gottlieb LLP in Toronto.
He did not respond to requests for comment from Law Times.