Court File and Parties
Citation: Kipiniak v. The Ontario Judicial Council, 2012 ONSC 5866
Divisional Court File No.: 224/12
Date: 2012-11-09
Ontario Superior Court of Justice Divisional Court
Before: Lax, Hambly and Lederer JJ.
Between:
Andrew Kipiniak Applicant
– and –
The Ontario Judicial Council Respondent
Counsel: Andrew Kipiniak, In Person Andrew A. Finkelstein, for the Respondent
Heard: October 10, 2012
Reasons for Judgment
Lax J.
[1] This is an application for judicial review of a decision of the Ontario Judicial Council (OJC). It arises from a complaint that the applicant, Mr. Kipiniak, made to the OJC about the conduct of Justice Pamela Thomson of the Toronto Small Claims Court.
[2] The complaint was filed on September 29, 2010. The OJC disposed of the complaint on May 7, 2012, some 584 days later. When the OJC had made no determination of the complaint by May 3, 2012 (day 580), Mr. Kipiniak prepared this application for judicial review. The application was served on the OJC and filed in the Divisional Court office on May 4, 2012. Three days later, on May 7, 2012 (day 584), the OJC’s disposition letter was sent by courier to Mr. Kipiniak.
[3] The background to the complaint involves contentious litigation between the applicant and two parties who are mother and daughter. The litigation involved matters before the Landlord and Tenant Board and in the Superior Court and also included a series of claims in the Small Claims Court. One of the Small Claims Court matters came before Justice Thomson on June 9, 2010 as a ‘to be spoken to’ attendance. On June 15, 2010, Justice Thomson made orders on her own initiative dismissing two of Mr. Kipiniak’s actions and prohibiting him from commencing any further proceedings related to their subject matter in any Small Claims Court in Ontario. The complaint to the OJC was based partly on the applicant’s hearing on June 9, 2010 and partly on the orders Justice Thomson made on June 15, 2010.
[4] The order of June 15, 2010 was the subject of an appeal to this court that was heard on November 16, 2010. In extensive written reasons released February 7, 2011, the court found (per Molloy J.) that the orders were made without jurisdiction and in breach of the principles of procedural fairness and natural justice.[^1] The court set aside the orders and Mr. Kipiniak was awarded costs of $1,600.00 representing his out-of-pocket expenses.
[5] Mr. Kipiniak’s complaint was investigated by a complaint subcommittee of the OJC appointed for that purpose in accordance with the procedure mandated by the Courts of Justice Act, R.S.O. 1990 c. C.43 (CJA) and the OJC’s Procedures Document. The CJA requires that the subcommittee be composed of a judge (other than the Chief Justice) and a person who is neither a judge nor a lawyer. Pursuant to that procedure, the subcommittee conducted an investigation and referred the matter to an OJC panel. The review panel determined that the appropriate disposition was a referral to The Honourable Heather Forster Smith, Chief Justice of the Superior Court of Justice pursuant to section 51.4(18)(c) of the CJA with a condition that Justice Thomson participate in appropriate judicial education as selected by the Chief Justice. The Chief Justice reported back to the review panel and after considering the report of the Chief Justice, the apology of Justice Thomson and her acknowledgment of her inappropriate conduct, the review panel was satisfied that no further action was required and the file was closed.
[6] In the notice of application, Mr. Kipiniak raised one issue:
(a) Whether the OJC should be compelled to issue a determination in respect of the complaint.
[7] In his Factum, Mr. Kipiniak raised a number of additional issues. The relief Mr. Kipiniak now seeks includes:
(i) a determination by this court in relation to Justice Thomson’s improper conduct;
(ii) an admonishment of the OJC for its handling of the applicant’s complaint, including a possible Inquiry;
(iii) a letter of apology from Justice Thomson to both the applicant as well as the unsuccessful parties to the judicial appeals of Justice Thomson’s decision; and
(iv) reimbursement of out-of-pocket disbursements incurred in the application for judicial review.
[8] Mr. Kipiniak understands that the issue raised in the application for judicial review became moot once the OJC had dealt with the complaint. He informed the court that he decided to continue with the judicial review application after being advised in letters from the Registrar of the OJC that this remedy was available to him if he was dissatisfied with the OJC’s decision. These letters have some significance as I will later explain.
[9] During the course of the hearing, it was explained to Mr. Kipiniak that this court has no authority to order an inquiry into the OJC’s conduct or to substitute our opinion for that of the OJC or make our own determination in regard to Justice Thomson’s conduct. Moreover, there is no basis for finding that the OJC was biased in favour of Justice Thomson or that it intentionally delayed issuing a determination on the complaint for the purpose of “stonewalling” the investigation.
[10] The OJC takes the position that Mr. Kipiniak has no right of judicial review with respect to the OJC’s determination of his complaint. For this argument, it relies principally on the decision of this court in PC Ontario Fund v. Essensa.[^2] Further, it submits that even if judicial review is available, Mr. Kipiniak has no standing to challenge the OJC’s investigation or disposition of his complaint. For this proposition, the OJC relies primarily on the decision of this court in Pieters v. Ontario College of Teachers.[^3] Finally, the OJC submits that in the event the court’s judicial review function is engaged, the applicable standard of review on these facts is reasonableness.
Standard of Review
[11] As we will go on to explain, it is our view that the court’s judicial review function is engaged in this case. We agree with the respondent that the court’s review can only be applied to: (a) the procedure that was followed as contemplated by the CJA and the OJC’s Procedures Documents; and (b) the outcome in the context of the available outcomes under the CJA.
[12] The statutory mandate of the OJC includes addressing complaints alleging misconduct on behalf of a provincial court judge. Mr. Kipiniak takes issue with the confidential nature of the OJC’s complaints procedure and suggests that this indicates something nefarious. The confidential and private nature of the complaints procedure is mandated by statute and intended to achieve a balance between accountability on the part of the judges for their conduct and constitutionally protected judicial independence.[^4] The CJA requires that the subcommittee’s investigation and report and the review panel’s deliberations be kept private. Subject to our comments below on the issue of delay, there was nothing unfair about the procedure that the OJC followed to determine the complaint. In fact, the procedure is mandated by the CJA.[^5] Neither is there anything unreasonable about its disposition of the complaint. The review panel exercised its discretion to refer the matter to the Chief Justice pursuant to section 51.4(18)(c) with a condition related to education. This is one of the outcomes contemplated by the CJA and within its statutory mandate. The OJC addressed the relevant aspects of the complaint. The letter dated May 7, 2012 provided sufficient reasons to inform Mr. Kipiniak of the procedure that was followed and the disposition of the complaint.
[13] Mr. Kipiniak submits that Justice Thomson should be removed from office because of errors made in the litigation between himself and Kinga and Ewa Dubiel.[^6] This relates to questions of law subject to appeal and is not an allegation about conduct engaging the jurisdiction of the OJC. In any event, these errors were corrected on appeal. For the same reason, we do not give effect to Mr. Kipiniak’s contention that in view of the decision in his favour, the OJC erred in failing to find Justice Thomson “incapable of adjudicating in court”. The Supreme Court of Canada has explained that the appeal process is “designed to correct errors in the original decision –” and “suffices to deliver justice to those aggrieved by the error made by the judge of first instance”.[^7]
[14] On the issue of delay, we are satisfied that there is no basis for the allegation that the OJC intentionally delayed issuing its determination for an improper purpose. There is no evidence to support Mr. Kipiniak’s “stonewalling” allegation. Nonetheless, we do not condone the length of time it took to resolve this complaint. Mr. Kipiniak was understandably frustrated and upset. He wrote twice to the Chief Justice of Ontario in his capacity as Chair of the Ontario Judicial Council. His concerns became particularly acute after he received the appeal decision of the Divisional Court finding that Justice Thomson’s orders were made without jurisdiction and in breach of principles of natural justice and procedural fairness. Although for the most part, the Registrar of the OJC responded in a timely and appropriate fashion to each of Mr. Kipiniak’s letters, it is understandable that Mr. Kipiniak became distrusting of the complaint process and the protection it endeavours to afford to members of the public when that process extended over what we regard as an unreasonably lengthy period of time.
Jurisdiction
[15] Our jurisdiction flows from the Judicial Review Procedure Act,[^8] which provides in sections 1 and 2:
- In this Act,
"statutory power of decision" means a power or right conferred by or under a statute to make a decision deciding or prescribing,
(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or
(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person or party is legally entitled thereto or not,
and includes the powers of an inferior court.
2.(1) On an application by way of originating notice, which may be styled "Notice of Application for Judicial Review", the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following:
Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.
Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.
[16] As we have said, the respondent’s jurisdiction argument is largely based on this court’s decision in Essensa. In that case, the applicants were the PC Ontario Fund and the Progressive Conservative Party of Ontario (PCPO). They challenged what they said were decisions of Greg Essensa who was the Chief Electoral Officer of Ontario. His decisions were made in response to a complaint made by the PCPO in relation to suspected contraventions of the Election Finances Act.[^9] The court’s reasons address the fact that no rights or interests of the PCPO were engaged, but this was because the PCPO had no right to have an investigation conducted. The decision turns on the fact that the Chief Electoral Officer has no statutory duty to receive or to investigate complaints under the Election Finances Act. The manner in which he dealt with a complaint was a matter for his discretion. His disposition of the complaint did not therefore affect any of the PCPO’s rights, interests, property or privileges because his determinations affected no rights. It was on this basis that the court found that the remedies of mandamus and certiorari under s.2 (1)1 of the JRPA could not be engaged. The case is clearly distinguishable as the CJC is under a statutory duty to investigate and there is a specific regime in place for handling complaints.
[17] In a corollary to the first argument, also relying on Essensa, the respondent submits that no “statutory power of decision” is engaged under s. 2(1)2 of the JRPA because the “legal rights, powers, privileges, immunities, duties or liabilities” of Mr. Kipiniak are not at stake. But, a “statutory power of decision” is defined as a decision deciding or prescribing the rights, etc. “of any person or party” (emphasis added). In Essensa, no person or party was eligible to bring an application for judicial review. This is not the case here. See, Moreau-Bérubé v. New Brunswick (Judicial Council).
[18] Where a statutory decision-maker is subject to judicial review as is the case here, but there is a question as to whether or not the court can grant a remedy to the applicant, the issue is properly characterized as one of standing rather than jurisdiction. We are satisfied that the court has jurisdiction to decide the application for judicial review if Mr. Kipiniak has standing.
Standing
[19] The respondent submits that even if judicial review is available, Mr. Kipiniak has no standing because his rights are not affected. It argues that a complainant has no greater interest than other members of the public in the manner in which a complaint against a judge is disposed of. It relies on the decision of this court in Pieters v. Ontario College of Teachers, a brief oral decision in which the complainant sought judicial review of a decision of the Investigations Committee of the College of Teachers to not refer a complaint to the Discipline Committee. In that case, Mr. Pieters brought the complaint in his capacity as Vice Principal observing the principal’s actions. The court concluded that he had not established that he has “some special interest, private interest or sufficient interest”[^10] to be granted standing. His position was no different than any member of the public or other member of the College of Teachers.
[20] We would first point out that Mr. Kipiniak is in a different position than Mr. Pieters. Rather than being a passive observer, he was directly and specifically impacted by the conduct at issue in the complaint. He was the object of the conduct. It is at least arguable that this gives him sufficient interest to be granted standing. However, we do not rest our decision on this basis.
[21] As we mentioned earlier in these reasons, there is fairly extensive correspondence between Mr. Kipiniak and the OJC. After Mr. Kipiniak received the appeal reasons of this court, he wrote to the OJC on February 13, 2011, providing the citation to the decision and requesting that his complaint be given priority. Although the OJC was generally prompt in its responses to Mr. Kipiniak, there does not appear to be any response to this letter.
[22] On May 30, 2011, he wrote to the Chief Justice of Ontario. At that time, eight months had passed without a disposition of the complaint. In his letter, he acknowledged that writing to the Chief Justice could be inappropriate and respectfully asked, “that I be advised of the status and when I might expect a determination of my complaint”. He again expressed his concerns that the complaint was being “stonewalled”. The Registrar answered that letter on June 9, 2011 and in it, she acknowledged Mr. Kipiniak’s letter to Chief Justice Winkler dated May 30, 2011. The Registrar is a lawyer and signed some of her correspondence, including this one, with her professional designation, “LL.B.”.
[23] On January 3, 2012, Mr. Kipiniak again wrote to the Chief Justice. In that letter, he “respectfully ask[ed] that you, as Ontario’s Chief Justice and Chair of the Ontario Judicial Council, investigate the inaction of the Ontario Judicial Council and direct that a determination regarding my complaint be made without further delay.”
[24] The Registrar wrote back on January 16, 2012 and said, “I am responding on behalf of the Chief Justice”. The letter was copied to the Chief Justice. The Registrar explained why it would be inappropriate and contrary to the legislation for the Chief Justice to intervene in the complaints process to address a complaint. She then wrote:
... After the complaints process has been completed, you will be sent a letter to inform you of the decision. Judicial review through the courts provides a means of accountability. A party who is dissatisfied with the decision of the Judicial Council may pursue judicial review through the courts.
[25] In a subsequent letter dated May 14, 2012, the Registrar advised Mr. Kipiniak that, “[d]ecisions of the Ontario Judicial Council may be judicially reviewed if a legal basis exists to do so.” Although this statement is less explicit, it would be reasonable for a member of the public who received these letters (at least one of them written on behalf of the Chief Justice of Ontario), to conclude that the remedy of judicial review was available to him if he was dissatisfied with the disposition of the complaint.
Conclusion
[26] In this case and in these somewhat unique circumstances, we are satisfied that Mr. Kipiniak has sufficient interest to be granted standing to bring this application for judicial review. Nonetheless, for reasons given, we are unable to grant Mr. Kipiniak any of the remedies he seeks and the application for judicial review must be dismissed. Although costs normally follow the event, these are circumstances where we would deny costs to the successful party. Rather, we award costs to Mr. Kipiniak in the amount of $382.00 representing the filing fee of $181.00 for the judicial review application and the fee of $201.00 for perfecting the application.
[27] The application is dismissed with costs to the applicant in the amount of $382.00.
Lax J. Hambly J. Lederer J.
Released: November 9, 2012
CITATION: Kipiniak v. The Ontario Judicial Council, 2012 ONSC 5866
DIVISIONAL COURT FILE NO.: 224/12
DATE: 20121109
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LAX, HAMBLY AND LEDERER JJ.
BETWEEN:
ANDREW KIPINIAK
Applicant
– and –
THE ONTARIO JUDICIAL COUNCIL
Respondent
REASONS FOR JUDGMENT
LAX J.
Released: November 9, 2012
[^1]: Kipiniak v. K. Dubiel, Kipiniak v. E. Dubiel, 2011 ONSC 825, 2011 ONSC 825 (Div. Ct.). [^2]: 2011 ONSC 2641 (Div. Ct.), aff’d, 2012 ONCA 453. [^3]: [2008] O.J. No. 527 (Div. Ct.). [^4]: CJA, ss. 49(11), 51(6), 51.3(5), 51.4(6), (17), (18). [^5]: CJA, s. 51.4. [^6]: See, footnote 1. [^7]: Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11 at para. 58. [^8]: R.S.O. 1990, c. J.1 (JRPA). [^9]: R.S.O. 1990, c. E.7. [^10]: The quotation is taken from Cowan v. Canadian Broadcasting Corp., [1966] 2 O.R. 309 at 311 (C.A.).