MacLennan v. Ontario Judicial Council, 2013 ONSC 7043

CITATION: MacLennan v. Ontario Judicial Council, 2013 ONSC 7043

DIVISIONAL COURT FILE NO.: DC-13-1895

DATE: 2013-12-03

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Hennessy, McCartney and Toscano Roccamo JJ.

B E T W E E N:

H. KENNETH MACLENNAN

Self - Represented

Applicant

• and -

ONTARIO JUDICIAL COUNCIL

Patricia D.S. Jackson and Molly M. Reynolds, for the Respondent

Respondent

HEARD: November 8, 2013 (Ottawa)

ENDORSEMENT

1This is a Judicial Review concerning two decisions made at the Cornwall Public Inquiry by Ontario Court Justice G. Normand Glaude, the Inquiry Commissioner (the Judge).

2The first decision concerned an Application for standing (and funding) at the Inquiry which was dismissed by the Judge on August 10, 2006.

3The second decision concerned an Application for funding to review the dismissal of August 10, 2006. This Application was dismissed on January 6, 2009 by the Judge.

4The Applicant herein made a complaint to the Ontario Judicial Council concerning the dismissal of August 10, 2006, and on January 26, 2007, the Council advised the Applicant by letter it was dismissing the complaint for the following reasons;

“The complaints sub-committee determined that you are dissatisfied with the decision made by Justice Glaude to deny you standing or funding before the public inquiry of which he is the Commissioner. The sub-committee reported that this was a decision made by a Commissioner in the course of his duties and if correct, it is subject to judicial review by a court. In addition, the complaint sub-committee advised that you made no allegation of judicial misconduct by Justice Glaude and therefore your complaint is outside the jurisdiction of the Ontario Judicial Council.”

5Similarly, the Applicant complained to the Council regarding the decision of January 6, 2009 and on October 9, 2009 the Council advised the Applicant that it was dismissing the Application for the following reasons;

“The review panel advised that the findings and conclusions made by the Commissioner fell within his decision-making duties at the public inquiry. They observed that allegations of error relating to the Commissioner’s findings and conclusions were properly the subject of judicial review and not within the mandate of the Judicial Council. The review panel noted that your complaint did not concern misconduct on the part of the Commissioner and dealt with matters that were outside of the jurisdiction of the Council.”

6On May 07, 2013 the Applicant filed an Application to the Divisional Court for judicial review of the two decisions of the Ontario Judicial Council noted above. The Applicant divided his argument into “6” claims set out in his Application Factum in which he argued he was not appealing the Judge’s decision to the Ontario Judicial Council, but rather complaining of misconduct on the Judge’s part, as well alleging a lack of procedural fairness on the part of the Ontario Judicial Council.

7The standard of review as set out in Dunsmuir v. Her Majesty the Queen in Right of the Province of New Brunswick, 2006 32411 (SCC) makes it clear that with respect to judicial reviews of administrative tribunals, if the issue is one of law the standard is correctness, and if it is one of fact, the standard is reasonableness. The issues herein are clearly fact driven, and thus the standard is reasonableness.

8As was set out in the material filed, The Ontario Judicial Council is an independent body established under the Courts of Justice Act to address complaints about the conduct of provincially appointed judges. Its duties involve receiving, investigating and addressing complaints alleging misconduct. It is composed of judges, lawyers and community members. It is mandated to establish rules governing its own procedures. Its rules are set out in a “Procedural Document”. In this case it is abundantly clear that no procedural unfairness occurred.

9The Respondent argues for dismissal of the Application based on two main arguments;

1. That the disposition of the complaints was reasonable

2. The unreasonable delay in bringing this Application before the court.

10Regarding the reasonableness of the decision, it is accepted that a body such as the Ontario Judicial Council has special expertise in separating judicial conduct, which requires the intervention of the Judicial Council, from the decision of a judge, which may be subject to further appeal. Here, the Council found the basis of the 2008 complaint was that the Applicant disagreed with the Judge’s decision on standing. In the 2009 complaint, the Applicant again expressed his disagreement with the reasoning and decision of the Judge and alleged misconduct on the part of the judge. After reviewing the circumstances herein, we see no reason to interfere with the Judicial Council’s decisions. Characterizing the complaints as misconduct, rather than as a disagreement with the decision, does not change the nature of the complaint. So, all considered, we feel the decision of the Ontario Judicial Council in dismissing the complaints on the basis of lack of jurisdiction was reasonable.

11Dealing with the issue of delay, the law is clear that dismissal for delay can be considered

if:

1. The delay is unreasonably lengthy;

2. There is no good reason given for the delay;

3. Prejudice results therefrom.

12Here, the delays in bringing this Judicial Review were unduly lengthy, about 69 months since the dismissal of the first complaint, and 41 months since the dismissal of the second complaint. The Applicant indicated that the delay was as a result of inadequate reasons for the dismissals, as well as his inability to obtain sufficient information from the Council and others about how he should proceed. We do not accept this explanation, in light of the lengthy delays, as being satisfactory. And it is clear that a judge waiting for a decision from a higher authority on either his conduct or an appeal from his decisions, can be greatly prejudiced regarding his ongoing work. Further delay also prejudices the Council’s mandate to maintain the public’s confidence in the judiciary if dissatisfied complainants can reopen cases against a judge at any time. So, it would appear that here, all necessary conditions for a dismissal for delay have been satisfied.

13For all of the above reasons, the Application for Judicial Review is dismissed.

14The parties presented Bills of Cost. The Applicant claims his costs, based on actual expenses, of $2100.55. The Respondent claims partial indemnity costs of $13,872.91. We believe in this case costs should follow the cause, but at a reduced rate under all the circumstances. Therefore an all-in figure for costs is fixed at $5000.00 to be paid by the Applicant.

Hennessy, J.

McCartney, J.

Toscano Roccamo, J.

Released: December 3, 2013

CITATION: MacLennan v. Ontario Judicial Council, 2013 ONSC 7043

DIVISIONAL COURT FILE NO.: DC-13-1895

DATE: 2013-12-03

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

H. KENNETH MACLENNAN

Applicant

• and –

ONTARIO JUDICIAL COUNCIL

Respondent

ENDORSEMENT

Hennessy, McCartney and Toscano Roccamo JJ.

Released: December 3, 2013

CITATION: MacLennan v. Ontario Judicial Council, 2013 ONSC 7043

DIVISIONAL COURT FILE NO.: DC-13-1895

DATE: 2013/12/03

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Hennessy, McCartney and Toscano Roccamo JJ.

B E T W E E N:

H. KENNETH MACLENNAN

Self - Represented

Applicant

• and -

ONTARIO JUDICIAL COUNCIL

Rachael Pauls and Molly M. Reynolds, for the Respondent

Respondent

HEARD: November 8, 2013 (Ottawa)

CORRIGENDUM TO ENDORSEMENT (January 29, 2014)

Corrected Decision: Counsel Patricia D. S. Jackson was removed from the record and replaced with Counsel Rachael Pauls in the original decision issued on December 3, 2013.