Rai v. The Honourable Madam Justice Métivier [Indexed as: Rai v. Métivier]

76 O.R. (3d) 641

[2005] O.J. No. 3327

Court File No. 04-DV-001073

Ontario Superior Court of Justice

Divisional Court

Matlow, Brockenshire and Mazza JJ.

August 8, 2005

Courts -- Judges -- Retirement -- Senior regional judge refusing to renew appointment of deputy judge of Small Claims Court who had served for two consecutive terms and who was turning 75 -- Senior regional judge having authority to take any relevant factor into account in making reappointment decision -- Fact that Courts of Justice Act does not contain provision for mandatory retirement at age 75 not making age an improper or irrelevant consideration -- Decision not patently unreasonable.

Administrative law -- Judicial review -- Standard of review -- Standard of review of decision of senior regional judge not to renew appointment of deputy judge of Small Claims Court that of patent unreasonableness.

The applicant served two consecutive three-year terms as a deputy judge of the Small Claims Court. The respondent, a senior regional judge, declined to renew his appointment because he was turning 75 and she considered it advisable to bring in younger deputy judges who needed to gain experience. The applicant brought an application for judicial review of that decision.

Held, the application should be dismissed.

The standard of review of the respondent's decision was that of patent unreasonableness. The respondent was entitled to take into account any relevant factor in making a reappointment decision. The reason which she gave was eminently reasonable. The fact that the Courts of Justice Act, R.S.O. 1990, c. C.43 does not provide for mandatory retirement for deputy judges does not mean that age is an improper or irrelevant consideration.

APPLICATION for judicial review of the decision of a senior regional judge declining to renew appointment of a deputy judge of the Small Claims Court.

Cases referred to

Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 778 (SCC), [1998] 1 S.C.R. 1222, [1998] S.C.J. No. 77, [1998] 1 S.C.R. 982, [1998] S.C.J. No. 46, 160 D.L.R. (4th) 193, 226 N.R. 201

Statutes referred to

Courts of Justice Act, R.S.O. 1990, c. C.43, s. 32 [as am.] Human Rights Code, R.S.O. 1990, c. H.19

R. Caza and Nicole D. Winsor, for applicant. Barbara McIssac, for respondent. Leslie McIntosh, for intervenor, Attorney General for Ontario.

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The judgment of the court was delivered by

[1] MATLOW J.:-- This application for judicial review is dismissed. The parties and the intervenor may make submissions regarding costs in writing. We ask that any submissions claiming costs be exchanged and filed with the Divisional Court Registrar in Ottawa within 20 days and all other submissions be exchanged and filed within 20 days thereafter.

[2] The applicant is a lawyer who served as a deputy judge of the Small Claims Court in Ottawa for two consecutive three-year terms commencing in July 1998, and ending in July 2004. The respondent is a judge of the Superior Court of Justice and the senior regional judge of the East Region of the court in Ottawa.

[3] Section 32(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the "Act") confers the authority on a regional senior justice to renew the appointment of a deputy judge for one or more three-year terms. It reads as follows:

32(2) A regional senior judge of the Superior Court of Justice may renew the appointment of a deputy judge for one or more three-year terms.

[4] Although s. 32(1) of the Act requires the approval of the Attorney General to the initial appointment of a deputy judge by a senior regional judge, subsequent renewals of the appointment do not require the Attorney General's concurrence.

[5] The decision of the respondent refusing to renew the applicant's appointment which is the subject of this application are contained in letters dated April 16, 2004 and August 12, 2004, sent by the respondent to the applicant. The first letter reads, in part, as follows:

Dear Deputy Judge Rai

I understand you have been asking for more time allocated to you for sitting as a deputy judge.

Mr. Justice Lalonde and I are conscious of the need to ensure continuity in the services offered to Small Claims Court litigants, and therefore are consciously enabling the scheduling lawyers who will be with us for a lengthy period of time, to develop experience as deputy judges.

We are aware that you will be 75 in June, and thus ending your term of service according to the same protocol as for Superior Court judges.

This will be confirmed to you later and our formal thanks will be expressed at that time.

Yours truly,

Monique Métivier

Regional Senior Justice

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[6] There then followed an exchange of correspondence between the parties and others relating to the reference in the respondent's letter to the end of the applicant's term of service. In that correspondence, the applicant took issue with the respondent's expressed intention to apply the same retirement age, 75, to him in her decision not to renew his appointment beyond that age despite the absence of any statutory requirement that she do so and despite the reappointment of other deputy judges in Ontario who were older than 75.

[7] In her second letter to the applicant, the respondent confirmed her earlier decision not to renew the applicant's appointment. It reads, in part, as follows:

Dear Mr. Rai,

I have given careful and serious consideration to your request to renew your appointment as deputy judge as well as to your comments and observations to Justice Lalonde, myself and Mr. Dworkin, as Chairman of the East Region Deputy Judges Association. Your three-year term of office, as you know, expired recently, at the end of July. I will not be renewing this appointment.

I remain of the view that your reappointment would be against the general policy of the law. I understand that you take the opposite view.

This decision should in no way diminish the pride that you can rightfully take in your meaningful contribution to the administration of justice in Ontario. The public and the court are grateful for your assistance. I wish to thank you most sincerely, on behalf of the Superior Court of Justice, for your devoted service as a deputy judge of the Small Claims Court.

I wish you all the best in your future endeavours.

Yours very truly,

Monique Métivier

Regional Senior Justice

[8] Accordingly, the principal issue in this application is whether or not the respondent was entitled to refuse to renew the applicant's appointment because of his age. The applicant takes the position that age was an irrelevant factor that should not have been taken into account. The respondent and the intervenor, however, take the position that the applicant's age was a relevant factor and that she was entitled to take it into account. Both parties and the intervenor agree that there is no statutory provision in the Human Rights Code, R.S.O. 1990, c. H.19 or any other statute other than the Act that could affect the right of the respondent to take into account the applicant's age in making her decision.

[9] In my view, this application is devoid of any merit. The reappointment of deputy judges is part of the function which the

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respondent performs in her role as senior regional judge to advance the fair and efficient administration of the court in the region where she presides. The statutory provision conferring authority on her to reappoint deputy judges is totally silent with respect to the factors that she is entitled to take into account in making her decisions regarding reappointment. It follows that she was entitled to take any factor that can reasonably be relevant to a particular application for reappointment into account in deciding whether or not to make the reappointment.

[10] The reason which the respondent gave for refusing to reappoint the applicant was, in my view, eminently reasonable. The period already served by the applicant as a deputy judge and his age, taken together with the respondent's perceived need to move in younger deputy judges who needed to gain experience led her to decide that the applicant had reached the time in his judicial career when the best interests of the Small Claims Court should lead her to decide not to reappoint him and that was a decision that she was entitled to make. The fact that the Act did not specifically impose a mandatory retirement age for deputy judges or explicitly state that age was a relevant factor to the decision does not mean that it was not a relevant factor that the respondent was entitled to consider.

[11] The applicant submits that the appropriate standard of review in this case is correctness. The respondent and the intervenor both submit that it is patent unreasonableness. To resolve this issue requires the application of the now well- known and often cited four-part pragmatic and functional approach adopted by the Supreme Court of Canada in Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 778 (SCC), [1998] 1 S.C.R. 982, [1998] S.C.J. No. 46.

[12] I would accept the submission of the respondent and the intervenor and hold that the standard of review is patent unreasonableness. In brief, I would accept the respondent's analysis of this issue which is set out in paras. 45 to 79 of the respondent's factum which I set out as follows:

Standard of Review

1. The Respondent submits that the standard of review in this matter is one of patent unreasonableness.

2. The appropriate standard of review is established by employing the functional and pragmatic approach.

Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 778 (SCC), [1998] 1 S.C.R. 982 at 1004 [hereinafter Pushpanathan]. Applicant's Application Record, Tab D.

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3. The standard of review will range from one of correctness, to one of reasonableness simpliciter, to patent unreasonableness based on four contextual factors. The four factors are:

(a) the presence or absence of a privative clause or statutory right of appeal;

(b) the expertise of the tribunal relative to that of the reviewing court on the issue in question;

(c) the purpose of the legislation and the provision in particular, and;

(d) the nature of the question -- law, fact, or mixed law and fact.

Pushpanathan, supra at 1005-11. Applicant's Application Record, Tab D.

Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226 at 238 [hereinafter Dr. Q.]. Applicant's Application Record, Tab C.

Privative Clause

4. Subsection 32(2) of the CJA is silent on the question of review; silence is neutral.

Dr. Q., supra at 238-39. Applicant's Application Record, Tab C.

Expertise

5. If a tribunal has been constituted with a particular expertise with respect to achieving the aims of an Act, whether because of the specialized knowledge of its decision-makers, special procedure, or non-judicial ways of implementing the Act, then a greater degree of deference will be afforded.

Pushpanathan, supra at 1007. Applicant's Application Record, Tab D.

6. The Applicant correctly states that "the Respondent is a regional senior judge and is uniquely positioned to determine the needs and administration of the Ottawa Small Claims Court."

Factum of the Applicant, Gopal Rai, paragraph 32.

7. While the Divisional Court may have expertise in interpreting the Courts of Justice Act and administrative law principles, the decision to renew or not to renew the term of a deputy judge is not a legal issue, it is a purely administrative function. The Respondent has relative expertise vis-à-vis the reviewing court in making decisions that are in the best interest of the administration of justice in the Eastern Region.

Purpose of the Act as a Whole

8. As a general principle, increased deference is called for where the legislation is intended to resolve and balance competing policy objectives or the interest of various constituencies.

Pushpanathan, supra at 1008-09. Applicant's Application Record, Tab D.

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9. The court held in Dr. Q. that:

"A statutory purpose that requires a tribunal to select from a range of remedial choices or administrative responses, is concerned with the protection of the public, engages policy issues or involves the balancing of multiple sets of interest or considerations, will demand greater deference from a reviewing court. Provisions . . . that confer a broad discretionary power upon a decision-maker will generally suggest policy-laden purposes and, consequently a less searching standard of review."

Dr. Q., supra at 240. Applicant's Application Record, Tab C.

10. A legislative purpose that deviates substantially from the normal role of the courts suggests that the legislature intended to leave the issue to the discretion of the administrative decision-maker and therefore, militates in favour of greater deference.

Dr. Q., supra at 241. Applicant's Application Record, Tab C.

11. The purpose of the CJA is the efficient administration of justice in Ontario. Section 32 delegates to the Regional Senior Judge the role of appointing and renewing deputy judges -- an administrative task. Broad discretionary powers are conferred upon the Regional Senior Judge with regard to the renewal of deputy judges. While this role is purely administrative, it involves the balancing of competing interests.

Courts of Justice Act, supra s. 32. Respondent's Application Record, Tab 3, page 23.

12. The decision not to renew the term of a deputy small claims court judge must be made with regard to public policy. The regional senior judge may be concerned about the ability of a deputy small claims court judge over 75 to continue to do the job as well as a younger person (hence protection of the public), or may be concerned with encouraging younger lawyers to fill the positions (balancing competing interests).

Administrative Independence

13. Subsection 11(d) of the Charter guarantees judicial independence and impartiality.

14. The judicial independence protected by subsection 11(d) flows from "the traditional constitutional value of judicial independence" in terms of the relationship of the court or tribunal "to others, particularly the executive branch of government."

Re Provincial Court Judges, 1997 317 (SCC), [1997] 3 S.C.R. 3 at 78 [hereinafter Judges]. Respondent's Application Record, Tab D, page 116.

15. There are three core characteristics of judicial independence:

(a) security of tenure;

(b) financial security; and

(c) administrative independence.

Judges, supra, at 80. Respondent's Application Record, Tab D, page 118.

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16. The courts have defined administrative independence of the courts as control by the courts "over the administrative decisions that bear directly and immediately on the exercise of the judicial function". These functions were defined in narrow terms as:

"assignment of judges, sittings of the court, and court lists -- as well as the related matters of allocation of court rooms and direction of the administrative staff engaged in carrying out these functions. . . ."

Judges, supra, at 81. Respondent's Application Record, Tab D, page 119.

17. The renewal of an appointment of a deputy judge is one such function.

18. Sometimes a core characteristic only attaches to a particular dimension of judicial independence; administrative independence, for example, only attaches to the court as an institution. However, administrative independence may be exercised on behalf of a court by its chief judge or justice. Thus, the Chief Justice of the Superior Court of Justice is entitled to be free from interference in his or her administrative decisions.

Judges, supra, at 82-83. Respondent's Application Record, Tab D, pages 120-21.

19. A Regional Senior Judge of the Superior Court of Justice exercises the powers and perform the duties of the Chief Justice in respect of the Superior Court of Justice in his or her region. These duties include directing and supervising the sittings of the Superior Court of Justice and the assignment of its judicial duties. Renewal of the term of a deputy judge is also a function related to the administration of the court. These are administrative functions which require administrative independence.

20. The Divisional Court should exercise restraint before interfering with such administrative decisions.

Nature of the Question

21. The fourth factor to be considered in determining the standard of review is the nature of the question. The Applicant has wrongly characterized the question as a question of law.

Pushpanathan, supra, at 1005-11. Applicant's Application Record, Tab D.

Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226 at 238 [hereinafter Dr. Q.]. Applicant's Application Record, Tab C.

22. The question is whether the Respondent was entitled to exercise her absolute discretion not to renew the term of the Applicant.

23. Administrative law has traditionally approached the review of decisions classified as discretionary separately from those seen as involving the interpretation of rules of law. The rule has been that decisions classified as discretionary may only be reviewed on limited grounds such as bad faith of decision-makers, the exercise of discretion for an improper purpose, and the use of irrelevant considerations

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Baker v. Canada, 1999 699 (SCC), [1999] 2 S.C.R. 817 at 853 [hereinafter Baker]. Respondent's Application Record, Tab E, page 131.

24. Courts should not lightly interfere with such decisions, and should give considerable respect to decision-makers when reviewing the manner in which discretion was exercised.

Baker, supra at 853. Respondent's Application Record, Tab E, page 131.

25. The pragmatic and functional approach can take into account the fact that the more discretion that is left to a decision-maker, the more reluctant courts should be to interfere with the manner in which decision- makers have made choices among various options.

Baker, supra at 855. Respondent's Application Record, Tab E, page 133.

Appropriate Standard of Review is Patent Unreasonableness

26. Consideration of the four factors in Pushpanathan should enable the reviewing court to address the core issues in determining the degree of deference. It should not be viewed as an empty ritual, or applied mechanically.

Dr. Q., supra at 238. Applicant's Application Record, Tab C.

27. Given the absence of a right of appeal, the relative expertise of the Respondent about the issue in question vis-à-vis the reviewing court, the policy-laden function of the decision, and the fact that the question at issue is one of discretion, it is submitted that the standard of review in this matter is one of patent unreasonableness.

28. Furthermore, because the Respondent was exercising an administrative function requiring administrative independence, the court should be particularly loath to interfere with the decision.

29. In the alternative, even if the standard of review is one of reasonableness simpliciter, this court has no basis upon which to interfere with the Respondent's decision.

30. The difference between "unreasonable" and "patently unreasonable" lies in the immediacy or obviousness of the defect. If the defect is apparent on the face of the tribunal's reasons, then the tribunal's decision is patently unreasonable. But if it takes some significant searching or testing to find the defect, then the decision may be unreasonable but not patently unreasonable.

Canada v. Southam, 1997 385 (SCC), [1997] 1 S.C.R. 748 at 777 [hereinafter Southam]. Respondent's Application Record, Tab F, page 142.

31. An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it.

Southam, supra, at 776-77. Respondent's Application Record, Tab F, page 141-42.

32. Employing either standard of review, the decision of the Respondent was not unreasonable.

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33. The Respondent made a decision that was well within her discretionary power to make.

34. While age was one of the factors on which she based her decision, it was not the only factor. Nevertheless, age has been found to be a relevant consideration.

The Respondent exercised her discretion in good faith, taking into account the needs and administration of the Small Claims Court in the Eastern Region.

[13] For all of these reasons, the applicant has failed to persuade me that the decision of the respondent did not meet the requisite standard.

[14] At the commencement of the hearing of this application, counsel for the applicant, by way of preliminary objection, submitted that there was no properly admissible evidence before us setting out the respondent's reasons for refusing to reappoint the applicant. We concluded, however, that such evidence was tendered by the applicant himself in his affidavit and the exhibits attached which included copies of his correspondence with the respondent. However, because judicial review is a discretionary remedy, I would still not have been inclined to grant any relief to the applicant even if we had determined that we should give effect to the preliminary objection. Rather, I would have been inclined to postpone the hearing of this application to allow the respondent an opportunity to tender further evidence.

Application dismissed.