CITATION: Gibbon v. Justices of the Peace Review Council, 2022 ONSC 5735
DIVISIONAL COURT FILE NO.: 541/22
DATE: 20221011
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Justice of the Peace Anna Gibbon, Moving Party/Applicant
AND:
Justices of the Peace Review Council, Responding Party/ Respondent
BEFORE: Nishikawa J. (by videoconference)
COUNSEL: Anil K. Kapoor and Mariam Sheikh, for the Moving Party
No one appearing for the Responding Party
HEARD at Toronto: October 11, 2022
ENDORSEMENT
[1] The Applicant, Justice of the Peace Anna Gibbon, brings a motion for a stay pending the outcome of her application for judicial review of the recommendation of the Justices of the Peace Review Council (“JPRC”) that she be removed from office.
[2] The JPRC takes no position on the motion for a stay, provided that the application for judicial review proceeds with dispatch. The JPRC also recognizes that an order removing a justice of the peace from office is made by the Lieutenant Governor in Council, and not the JPRC.
[3] The party seeking a stay pending an appeal must satisfy the three-part test for an interlocutory injunction set out by the Supreme Court of Canada in RJR-MacDonald:
(a) there is a serious issue to be determined on appeal;
(b) the moving party will suffer irreparable harm if a stay is not granted; and
(c) the balance of convenience favours granting a stay.
RJR-MacDonald Inc. v. Canada (Attorney General), 1 S.C.R. 311, at p. 334; Urbancorp Toronto Management Inc. (Re), 2021 ONCA 613, at para. 10.
[4] In the context of an appeal, a serious issue is a ground of appeal that has a reasonable prospect of success. The appellant does not need to go so far as to show they will probably win: Fiala v. Hamilton, 2008 ONCA 784, at para. 15.
[5] Irreparable harm is harm that cannot be quantified in monetary terms or cannot be cured. In cases involving reputational damage or damage to other social attributes such as credibility, irreparable harm can be inferred from the whole of the surrounding circumstances: Newbould v. Canada (Attorney General), 2017 FCA 106, at paras. 29-30.
[6] The third part of the test, the balance of convenience, addresses the question of which of the two parties will suffer the greater harm from the granting or refusing of a stay: Urbancorp., at para. 20.
[7] I am satisfied that the Applicant has met the three-part RJR-McDonald test. In support of her application for judicial review, the Applicant raises the following significant issues: the proper application of Gladue principles in the professional discipline context; the relevance of credibility findings to determining an appropriate penalty; and the level of conduct required to remove a judicial officer. The application thus meets the low threshold of a serious issue to be tried.
[8] In addition, the Applicant will suffer irreparable harm if the recommendation is not stayed pending judicial review. The Applicant would lose her position as a justice of the peace, with the consequent reputational harm. If her application is ultimately successful, it is possible that reinstatement would not repair the harm to her reputation. Moreover, even if the application is successful, reinstatement would not be certain because reappointment is at the discretion of the Lieutenant Governor in Council. The Applicant also faces significant health and financial challenges that would be negatively impacted by her removal from office pending the outcome of the application for judicial review.
[9] The balance of convenience also favours the granting of a stay. Having taken no position on the motion, the JRPC has not submitted evidence of harm from the granting of a stay that would outweigh the harm to the Applicant in not granting a stay. Since the disciplinary proceeding began in January 2020, the Applicant has continued to serve as a justice of the peace without further incident. In addition, other than the existing proceeding, there have been no previous incidents of misconduct over the Applicant’s 10 years of service. Moreover, the public interest in the administration of justice and the finality of judicial misconduct proceedings can be maintained by ensuring that the application for judicial review proceeds in an expeditious manner.
[10] To this end, the parties have agreed to a timetable for the delivery of application materials to ensure that it proceeds with dispatch. The Applicant’s materials are to be delivered by December 13, 2022; the Respondent’s materials are to be delivered by January 31, 2023. The hearing is to be scheduled for a half-day on April 19 or 20, 2023. The Registrar is requested to confirm the hearing date.
[11] Accordingly, the motion for a stay of the JPRC’s recommendation that the Applicant be removed from office, pending the outcome of the application for judicial review, is granted. No costs are ordered.
“Nishikawa J.”
Date: October 11, 2022