Court File and Parties

Citation: Thibaudeau v. Ontario (Court of Justice), 2008 ONCA 702 Date: 2008-10-14 Docket: C48118 Court of Appeal for Ontario Before: O’Connor A.C.J.O., Simmons and Lang JJ.A.

Between:

Scott Thibaudeau Applicant (Appellant)

and

His Worship, Justice of the Peace, David S. S. Stafford and Attorney General for Ontario Respondents (Respondents)

Counsel: Brian R. Kelly and John R. Mann, for the appellant Paul D. Stern and James R. D. Clark, for the respondent His Worship David Stafford, Justice of the Peace Eliott Behar, for the respondent Attorney General for Ontario

Heard and released orally: October 8, 2008 On appeal from the order of Justice James H. Clarke of the Superior Court of Justice, dated November 13, 2007.

Endorsement

By the Court:

[1] The appellant, who is a paralegal, acted as an agent for an accused on a trial of a Provincial Offences Act offence in front of the respondent justice of the peace. After acquitting the accused, the respondent notified the appellant that he would be initiating proceedings under s. 50(3) of the Provincial Offences Act R.S.O. 1990, c. P.33 as it read at the time. Following a hearing, the justice of the peace barred the appellant from appearing before him as an agent for anyone other than himself.

[2] Section 50(3) read:

The court may bar any person from appearing as an agent who is not a barrister and solicitor entitled to practise in Ontario if the court finds that the person is not competent properly to represent or advise the person for whom he or she appears as agent or does not understand and comply with the duties and responsibilities of an agent.

[3] Subsequently, Clarke J. dismissed the appellant’s application for certiorari. He found that there are two separate bases upon which a court can make an order under s. 50(3). A court has jurisdiction to make an order under the second branch of the test even though a particular trial is completed. Further, the application judge rejected the appellant’s claim of a reasonable apprehension of bias. Finally, the application judge concluded by saying that even if he was wrong in his interpretation of s. 50(3), no substantial wrong or miscarriage of justice occurred that would warrant the exercise of discretion to grant the order in the nature of certiorari.

[4] The appellant argues that the justice of the peace lacked jurisdiction to make an order under s. 50(3) because he did not make the order until after the particular trial on which the appellant appeared had been completed. We do not need to decide whether the justice of the peace could have made the order under the first branch of s. 50(3) even after the trial had been completed because we agree with the application judge that the justice of the peace had jurisdiction to bar the appellant under the second branch of s. 50(3). That section draws a distinction between whether the agent “is not competent properly to represent or advise” his or her client, and whether the agent does not appear to “understand and comply with the duties and responsibilities of an agent”. The distinction is demonstrated by the legislature’s use of the disjunctive “or” to separate the two branches of the test. The second branch is not tied to a particular trial and relates to the conduct of an agent generally. The fact that challenged conduct could also be relevant to a bar under the first branch does not preclude a justice of the peace making a bar under the second branch.

[5] In any event, in this case, much of the agent’s conduct referred to by the justice of the peace, both in his letter and in the proceedings considering the issue, addressed the agent’s conduct generally. The challenged conduct was not restricted to the circumstances of the particular trial of the agent’s client. For example, the agent’s alleged conduct included being unable to accept the court’s rulings, visibly displaying fits of temper, speaking over the justice of the peace, and forcefully pushing courtroom furniture.

[6] This conduct was relevant to the agent’s ability to comply with the duties and responsibilities of an agent. Further, while the justice of the peace noted the agent’s lack of preparation for the particular trial, he also noted the agent’s lack of preparation for his trials generally. The appellant’s ability to prepare necessarily overlaps with his responsibility as an agent. Since, in our view, the appellant’s conduct was clearly relevant to the second branch of the s. 50(3) test, which is not restricted to conduct in a particular case, we would not give effect to this ground of appeal.

[7] Regarding the appellant’s second ground of appeal, the appellant argues reasonable apprehension of bias based upon the justice of the peace’s comments when he notified the appellant of the s. 50(3) proceedings both in court and in the letter outlining the appellant’s conduct. On this issue, the application judge reviewed the allegations and, when he considered those comments in the context of the record as whole, he was not persuaded that the justice of the peace predetermined the outcome of the case. In coming to this conclusion, the application judge outlined the extensive opportunities the justice of the peace gave to the appellant to retain counsel and to present his case. We agree with the application judge that the impugned language of the justice of the peace did not raise a reasonable apprehension of bias.

[8] Accordingly, the appeal is dismissed.

RELEASED: Oct. 14, 2008 “D. O’Connor A.C.J.O.” “DOC” “Janet Simmons J.A.” “S.E. Lang J.A.”