R.M. v. M.Z., 2009 CanLII 15147 (ON SCDC)

Court File and Parties

COURT FILE NO.: DC-07-576-00 DATE: 20090403

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

B E T W E E N:

R.M. and H.K. Appellants

• and -

M.Z. Respondent

R.M. and H.K., the appellants, in person Christopher P. Thompson, for the Respondent, M.Z.

HEARD AT TORONTO: April 1, 2009

LOW J.

Reasons for Judgment

Introduction

1The appellants appeal from the order of Deputy Judge Sabol of the Small Claims Court dated November 15, 2007 dismissing the plaintiffs' action with costs. The order was obtained on motion to strike out the statement of claim and to dismiss the action on the grounds that the pleading discloses no reasonable cause of action, that it is inflammatory, and that it is an abuse of process.

2In allowing the motion and dismissing the action, the deputy judge gave no reasons. He circled the number "9(a)" on page 2 of the Small Claims Court Motion Endorsement Record and awarded $1,000 in costs to the respondent. There is no transcript and there is no suggestion that reasons were given orally.

3In the pleading, the appellants claim $10,000 from the respondent who is a judge of the Ontario Court of Justice.

4For the purposes of the motion before the deputy judge, all allegations of fact in the pleading are deemed provable.

Background

5The events which led to the action being launched emanated from a family court application brought by the Jewish Family and Child Service against the appellant R.M. concerning her children. The respondent presided over a court appearance in that application on July 29, 2005. On that occasion the appellant R.M. sought leave to have the appellant H.K. represent her as agent. The respondent did not grant leave and gave oral reasons for his refusal the substance of which are recited in summary form in the pleading. The appellants allege that the reasons were motivated by malice.

6The appellant R.M. appealed the respondent's ruling. A transcript was ordered which, when produced, was discovered to have been substantially edited by the respondent, eliminating or altering the specific references upon which the appellant R.M. relied in her appeal. As a result, that appeal was delayed while the family court application continued.

7The appellant H.K. complained to the Ontario Judicial Council concerning the respondent's editing of the transcript and the Council found the respondent guilty of judicial misconduct.

8The pleading alleges the tort of injurious falsehood – presumably in relation to the appellant H.K.. The pleading also alleges misfeasance in public office, obstruction of justice and fabricating evidence.

The Appellants' Position

9The appellants' position is, first, that the deputy judge was wrong in dismissing the action and that he should have permitted it to go to trial on a full evidentiary record and, second, that the absence of reasons is itself an error of law that requires that the matter be remitted to the Small Claims Court to be determined properly.

Absence of Reasons

10I accept the argument that the absence of reasons is, in the circumstances, an error of law. While there are cases where the reasons for the result are clear from the record, and the absence of reasons is therefore not a ground for appellate review (see R. v. Barrett, [1995] 1 S.C.R. 752), I am not satisfied that this is one of those cases.

11The motion was to strike the claim and for dismissal of the action. These are distinct remedies. An action may be dismissed even though a reasonable cause of action is disclosed in the pleading – it may be dismissed on grounds of abuse of process or on grounds that it is frivolous and vexatious. Here, the notice of motion seeks both the remedy of striking and of dismissal and asserts a number of distinct grounds for grant of relief. It is impossible, given the nature of the pleading and the diverse grounds for attacking the pleading and the action, for the litigants to discern the reasons for the order.

12As stated in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 at 879, per Binnie J."Reasons for judgment are the primary mechanism by which judges account to the parties and to the public for the decisions they render. The courts frequently say that justice must not only be done but must be seen to be done, but critics respond that it is difficult to see how justice can be seen to be done if judges fail to articulate the reasons for their actions. Trial courts, where the essential findings of facts and drawing of inferences are done, can only be held properly to account if the reasons for their adjudication are transparent and accessible to the public and to the appellate courts." In short, the delivery of reasoned decisions is inherent in the judge's role. It is part of his or her accountability for the discharge of the responsibilities of the office.

13As was also stated in R. v. Sheppard, the duty is satisfied by reasons which are sufficient to serve the purpose for which the duty is imposed, i.e. a decision which, having regard to the particular circumstances of the case, is reasonably intelligible to the parties and provides the basis for meaningful appellate review.

14It is recognized that the Small Claims Court deals routinely with high case volumes and that judges hearing cases in that court do not routinely have the benefit of the arguments of learned counsel. Nevertheless, those circumstances do not negate the general duty to give to the litigants and in particular to the losing party, some indication, however concise, of why the result went as it did.

15The Small Claims Court is intended to be an accessible forum for members of the public. It is designed to be inexpensive, speedy, and user-friendly to accommodate the large number of civil actions concerning modest amounts that may not warrant the retention of a solicitor. Where orders are made in that court that are not made intelligible to the litigants in reasons, the court fails to discharge one of its central duties and the objectives of economy and speed are thwarted. The absence of reasons itself may provide an impetus to appeal regardless of the result where the presence of reasons, however brief, may have informed a decision to accept the result.

16The appellants have referred me to the recent decision of my sister Bellamy J. in Vuong et al v. Toronto East General & Orthopaedic Hospital, [2009] O.J. No. 472. In Vuong, the same deputy judge, Judge Sabol, dismissed the plaintiffs' claim without giving reasons. The defendant in the action had sought dismissal on the ground of res judicata and on the ground that the action was frivolous or vexatious or otherwise an abuse of the court. Bellamy J. held that appellate review was not possible in the absence of reasons and remitted the matter to the Small Claims Court for a rehearing of the motion before a different judge. I am invited to do the same.

17The respondent urges that, in the interests of judicial economy, the matter ought not to be remitted but simply dealt with de novo. I have been referred to a number of cases where an appellate court has, in the absence of reasons for a decision below, considered a matter de novo. There is, however, no statement of principle in those decisions that where no reasons are given for the decision below, the matter should as a matter of course be heard de novo rather than remitting it to the proper forum of first instance. I am of the view that I have a discretion in this, and I am guided by the observation in R. v. Sheppard, supra, that where the trial decision is deficient in explaining the result to the parties, but the appeal court considers itself able to do so, the appeal court's explanation in its own reasons is sufficient.

18The attacks on the action in the Vuong case were made on the basis of res judicata and abuse of process. Those attacks rely on facts external to the pleading whereas the motion in the case at bar relies entirely on legal principles and can be determined within the four corners of the statement of claim. In that, this case is distinguishable from Vuong, and I am satisfied that this court is able to give an adequate explanation to the parties for the result. Accordingly, I decline to remit the matter to the Small Claims Court for a rehearing.

The Merits of the Claim

19In my view, the result arrived at by the deputy judge in Small Claims Court was correct.

20Taking the facts alleged in the pleading as true, it is apparent that everything that the respondent did to which objection is taken was done qua judge of the Ontario Court of Justice. The statements about Mr. H.K. to which exception is taken and which presumably form the subject matter of the injurious falsehood claim were statements made in court in the course of ruling that Mr. H.K. was not to be permitted to represent Ms. R.M. in the family court. The ruling itself, denying leave, was a ruling by the respondent as a judge of the court. The editing of the transcript of the proceedings was done as the judge presiding over the hearing of which the transcript was the written record.

21The ruling not permitting Mr. H.K. to appear was a ruling against Ms. R.M. who was the party in the family court proceedings. She had a right of appeal and she pursued it. Any defects in the transcript of the proceedings could and should have been dealt with in the course of the appeal which is the only proper avenue of attack. Insofar as the statement of claim complains of the ruling, it is a collateral attack and is an abuse of process.

22Mr. H.K. had no status to appeal the ruling as he was not a party, but he also had no right to appear as agent in the proceeding. While the court had a duty to entertain the request by Ms. R.M. to have Mr. H.K. represent her, the court had no obligation to accede to the request. That was matter in the discretion of the respondent. Mr. H.K. has no cause of action arising out of the refusal to grant leave.

23The statement of claim alleges that the respondent has fabricated evidence and obstructed justice. These allegations do not give rise to a civil cause of action even if true.

24Injurious falsehood and misfeasance in public office are recognized torts but in the context of the facts as pleaded, cannot possibly succeed against the respondent because of the principle of judicial immunity.

25As Mr. H.K. very helpfully submitted, the principle of judicial immunity is one of great antiquity and has been a part of the common law since the early 17th century.

26Judicial immunity is inextricable from judicial independence. A robust democracy requires a fearless judiciary and it is for the purpose of preserving judicial independence that immunity is accorded to judges – not in respect of personal matters – but in respect of any activities related to judicial functions. As was stated in Bradley v. Fisher (1871), 80 U.S. 335 at 347-8 cited in H.K. v. Ontario (Court of Justice (Provincial Division)), [1995] O.J. No. 601 at para 36,

… it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions without apprehension of personal consequences to himself. Liability to answer to everyone who might feel himself aggrieved by the action of the judge, would be inconsistent with the possession of this freedom, and would destroy that independence without which no judiciary can be either respectful or useful. As observed by a distinguished English judge (in Taafe v. Downes (1813) 3d Moore's Privy council 41), it would establish the weakness of judicial authority in a degrading responsibility.

The principle therefore which exempts judges of courts of superior or general authority from liability in civil actions for acts done by them in the exercise of their judicial functions obtains in all countries where there is a well-ordered system of jurisprudence … nor can this exemption of the judges from civil liability be affected by the motives with which their judicial acts are performed. The purity of their motives cannot in this way be the subject of judicial inquiry. This was adjudged in the case of Floyd & Barker, reported by Coke in 1608 @ 12 Coke 25, where it was laid down that the judges of the realm could not be drawn in question for any supposed corruption impeaching the verity of their records except before the king himself, and it was observed that if they were required to answer otherwise, it would "tend to the scandal and subversion of all justice", and those who are the most sincere would not be free from continual calumniation.

If civil actions could be maintained in such cases against the judge, because the losing party should see fit to allege in his complaint that the acts of the judge were done with partiality, or maliciously, or corruptly, the protection essential to judicial independence would be entirely swept away. Few persons sufficiently irritated to institute an action against the judge for his judicial act would hesitate to ascribe, any character to the acts which would be essential to the maintenance of the action.

27Mr. H.K. acknowledges that the respondent's comments about him, made in court, were made in the course of discharging judicial functions and would be the subject of judicial immunity. He argues however, that judicial immunity does not extend to the respondent's action in editing the transcript of the proceedings because that was not done in court and, because it was judicial misconduct and without jurisdiction, it cannot have been in relation to the discharge of judicial functions.

28I do not accept those arguments. First, judicial functions encompass not only those activities that are carried out in open court and visible to the public but also a myriad of other activities that are never on view. The fact that activities occur below the water line does not diminish the fact that they are related to or ancillary to judging (the most obvious of these being the writing of reasons). Second, that the act of editing the transcripts was in the course of discharging judicial duties is evident from the fact of the finding of judicial misconduct by the Ontario Judicial Council concerning that conduct, a fact upon which the pleading relies. Third, while exceeding jurisdiction takes an act or decision of a judge out of the realm of correctness, it does not take the activity out of the realm of judging.

29The scope of judicial immunity has recently been considered in Tsai v. Klug, [2005] O.J. No. 2277 (S.C.J.), aff'd 2006 4942 (ON CA), [2006] O.J. No. 665 (C.A.), leave to appeal denied [2006] S.C.C.A. No. 169. As Karakatsanis J. stated at paras. 4-7 of her reasons in striking out the statement of claim and dismissing the action:

4 The plaintiff takes the position that any protection or immunity to judges in the exercise of their judicial functions cannot encompass an illegal act. By definition, the plaintiff argues, an illegal act would clearly be beyond the scope of their judicial capacity.

5 Section 82 of the Courts of Justice Act states that a Deputy Small Claims Court Judge has the same immunity as a Judge of the Superior Court. Similar provisions have been found to provide absolute civil immunity for commissioners of inquiries and justices of the peace in the execution of their judicial function.

6 In Morier and Boiley v. Rivard, [1985] 2 S.C.R. 716 (S.C.C.) at pp. 737 ff, the Supreme Court of Canada considered whether judicial immunity extended to acts that may be without or in excess of jurisdiction. The Supreme Court of Canada held that the civil immunity of Superior Court Judges in Ontario and Quebec was absolute. While the immunity does not extend to purely personal acts, judges are however immune for any acts done in the course of or in connection with their legal duties, even if the acts are malicious or mal fides. The Court cites with approval a number of old English cases. At page 737:

In Fray v. Blackburn (1863), 3 B. & S. 576, it states at p. 578: It is a principle of our law that no action will lie against a Judge of one of the superior Courts for a judicial act, though it be alleged to have been done maliciously and corruptly ... The public are deeply interested in this rule, which, indeed, exists for their benefit, and was established in order to secure the independence of the Judges and prevent their being harassed by vexatious actions.

7 The plaintiff's submission that an illegal act cannot be part of judges' duties and therefore cannot be the subject of civil immunity is, at first blush, logical. However, all suits against judges in relation to their cases would necessarily allege that they have acted improperly - either negligently, outside their jurisdiction, maliciously or even illegally. The civil immunity is absolute for any acts related to or in connection with their judicial capacity - whether they are proper judicial actions or not. The immunity relates to civil liability only. The right to be tried by an independent and impartial tribunal is an integral part of the fundamental justice protected by s. 7 of the Charter. The constitutional protection is there to ensure that judges can perform their duties independently, impartially and free from concern that they will be personally sued for unpopular decisions.

30As well, the scope of judicial immunity is expansive rather than narrow, as is illustrated in Pispidikis v. Scoggie, [2002 23209 (ON SC), 2002] O.J. No. 5081 (S.C.J.), aff'd 2003 27059 (ON CA), [2003] O.J. No. 4830 (C.A.) where the defendant, a justice of the peace, sentenced the plaintiff to a year of imprisonment where the maximum was 6 months and Hamalengwa v. Duncan, [2005] O.J. No 851 (S.C.J.), O.J. No. 3993 (C.A.), leave to appeal denied [2005] S.C.C.A. No. 508 where the defendant wrote an allegedly defamatory letter to the Law Society inviting an inquiry into the plaintiff's conduct as a lawyer.

Conclusion

31As there is no allegation in the appellants' pleading concerning the conduct of the respondent that does not fall within the ambit of activities either directly related or ancillary to judicial functions, the respondent is absolutely insulated from civil action by the principle of judicial immunity. Accordingly, the result below was the correct one and the appeal is dismissed.

Costs

32Costs of the appeal are to the respondent, fixed at $3,500. In awarding costs to the successful party and in arriving at this figure which is significantly less than the amount claimed and significantly less than would have been justifiable in a Superior Court matter, I have considered and balanced the principle of proportionality, the fact that the action was an abuse of process, the absence of reasons below, and the level of complexity of the issues which, in my view, was not high.

Low J.