CITATION: Ballam v. Justices of the Peace Review Council, 2023 ONSC 2502
DIVISIONAL COURT FILE NO.: 22-406-JR
DATE: 20230425
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Stewart, Baltman and Lococo JJ.
BETWEEN:
Dianne Ballam
Stephanie DiGiuseppe and Heather Gunter
Applicant
- and -
Justices of the Peace Review Council
Marie Henein and Matthew Gourlay
The Lieutenant Governor in Council of Ontario by and with the Advice and Concurrence of the Executive Council of Ontario
Darrell Kloeze and Jacob Eidinger
Respondents
HEARD at Toronto: April 7, 2023, by video conference
REASONS FOR JUDGMENT
Baltman J.
Overview
[1] The Applicant was a Justice of the Peace (JP) on long-term disability leave when she engaged in the practice of law without a license or insurance, and without having resigned as a JP.
[2] Over several months in 2018 and 2019, the Applicant appeared in three different judicial venues – criminal court, civil court, and before an administrative tribunal – on behalf of three different individuals. In only one instance did the Applicant inform the presiding decision-maker that she was a JP.
[3] Following receipt of a complaint by the Justices of the Peace Review Council (JPRC), the matter was referred to a Panel[^1] for a hearing to determine whether the Applicant was guilty of judicial misconduct. After various adjournments at the behest of the Applicant, the hearing proceeded. Following the hearing, the Panel concluded that the Applicant committed judicial misconduct with respect to all three incidents as alleged. After a hearing on the issue of disposition, the Panel recommended that she be removed from judicial office.
The Issues
[4] The Applicant raises two issues on this judicial review, submitting that:
- The Panel breached its duty of procedural fairness to her in proceeding with the misconduct hearing instead of offering and granting her a further adjournment.
- The Panel’s decision on disposition was unreasonable.
Jurisdiction and Standard of Review
[5] This Court has jurisdiction to hear this application pursuant to ss. 2 and 6 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.
[6] Following the Supreme Court of Canada decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 17 (Vavilov), the standard on judicial review of the merits of a decision of the JPRC is reasonableness, unless the issue on review is a constitutional question, a general question of law critical to the legal system as a whole, or a question related to jurisdictional boundaries between administrative bodies: Lauzon v. Justices of the Peace Review Council, 2021 ONSC 6174 (Div. Ct.) at para. 6.
[7] The Vavilov standard does not apply to a “a review related to a breach of natural justice and/or the duty of procedural fairness”. A tribunal is required to conduct its proceedings fairly. When there has been a breach of procedural fairness, the decision flowing from the breach is generally set aside: Vavilov, at para. 23, Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817 at para 20, Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, 1994 114 (SCC), [1994] 1 S.C.R. 202 at paras. 52-55, Canada (Attorney General) v. McBain, 2017 FCA 204 at paras. 9-14, Adams v. Aamjiwnaang First Nation, 2022 ONSC 6831 (Div. Ct.) at para. 69.
Factual Background
(i) The Applicant
[8] The Applicant is currently 66 years old. She has been a member of the Law Society of Ontario since 1991, and worked as a sole practitioner before being appointed as a Vice Chair of the Workplace Safety and Insurance Appeals Tribunal in 1997. She was appointed as a JP in 2002 and served in that role until 2014 when she suffered a head injury in a motor vehicle accident. She was unable to return to work afterwards and was place on long term disability (LTD) in 2015.
(ii) The Adjournment Application
[9] On March 14, 2019, the Applicant was notified that the Director of Crown Operations for Toronto had filed a complaint alleging judicial misconduct on her part. She was asked to respond to the complaint. She was then granted a series of extensions due to overseas travel, health issues, and pandemic-related factors.
[10] On August 17, 2020, a Notice of Hearing was served on the Applicant and her counsel for September 9, 2020, by way of teleconference. The Applicant was recovering from a medical procedure and did not appear before the tribunal on September 9. By that point she was self-represented, as her counsel (Mr. Brian Heller) was unable to continue for financial reasons. Via email she requested a two-month adjournment to accommodate her recovery and provided a doctor’s letter in support of her request. The Panel granted the adjournment, but noted that any further adjournment would require viva voce medical evidence.
[11] To accommodate the Applicant’s medical concerns, she was provided with the option of attending the hearing by videoconference or in person. The Panel also noted the Applicant’s claim of internet connectivity issues and directed that, should the Applicant decide to participate by video, JPRC staff would contact Arbitration Place (the venue for the hearing) to seek assistance for the Applicant. The hearing was scheduled to proceed in March 2021.
[12] On January 20, 2021, the Applicant retained new counsel – Mr. Justin Khorana-Medeiros. On February 19, 2021, counsel filed a motion to adjourn the hearing for one month, citing the Applicant’s medical condition and the fact that he had only recently been retained. He relied on a letter from the Applicant’s psychiatrist, Dr. Liu, dated March 20, 2020, indicating that she suffers from anxiety and mood fluctuations, and is vulnerable to stress. Dr. Liu further noted that while under stress, she is prone to deficits in cognition, concentration and memory.
[13] The Applicant also relied on written and oral evidence from her pain specialist, Dr. Safakish, to the effect that her physical ailments along with various mental stressors were impeding her concentration and memory retention. Dr. Safakish explained that a person in chronic pain cannot sit and focus for four consecutive days. He recommended that her sitting time should be limited to four hours per day, with a break every one to two hours.
[14] The Panel ultimately granted the adjournment on the basis that defence counsel had been recently retained. Although the Panel was not persuaded that the Applicant suffered from cognitive or mental health issues that would prevent meaningful participation, her health issues would be accommodated through sitting non-consecutive days, two or three days per week, in four-hour intervals with frequent breaks. The hearing would be virtual, on the basis that the pandemic did not allow for in-person proceedings at that time. The dates were set on a peremptory basis, with or without counsel. The Panel noted the Applicant’s internet issues and suggested ways that they might be accommodated.
[15] The hearing began on March 23rd, 2021. By that point, the Applicant was once again self-represented. She did not request an adjournment. Likewise, the Panel did not inquire regarding the absence of counsel or whether a further adjournment was required.
Evidence and Findings at Hearing
(a) The Tran Matter
[16] Ms. Tran was charged with the indictable offence of possession of property obtained by crime over $5,000. Through a mutual friend, the Applicant agreed to speak with her. After doing so, she believed that Ms. Tran may have been wrongfully charged. The Applicant then appeared in court on behalf of Ms. Tran on three occasions between December 2018 and February 2019. She identified herself as Ms. Tran’s counsel, filed a “Designation of Counsel” and negotiated as such with Crown counsel. The charge against Ms. Tran was eventually withdrawn.
[17] The Panel found that the Applicant engaged in judicial misconduct by providing legal services while she was a JP, in particular appearing in court for Ms. Tran and conversing with Crown counsel.
(b) The Boubash Matter
[18] Mr. Boubash performed renovations on the Applicant’s condo. In November 2018 she appeared on his behalf in the Superior Court of Justice in Newmarket, before Master Sugunasiri (as she was then). The Applicant sought an adjournment of a motion to strike Mr. Boubash’s defence in a civil lawsuit involving a mortgage. She identified herself as a JP on LTD and indicated she was acting for Mr. Boubash pending approval or authorization from the Regional Senior Justice, Associate Chief Justice and/or the Law Society of Ontario (LSO). Before the Master, the Applicant sought an adjournment in response to a motion to strike.
[19] The Panel concluded that the Applicant committed judicial misconduct by providing legal services to Mr. Boubash, without an active license and without insurance. Although she had disclosed her status as a JP to the Court, the Panel was troubled that she appeared in court in the same region where she sat as a JP, despite testifying she was aware that it could create the appearance of a conflict of interest.
(c) The Abhar Matter
[20] The Applicant met Mr. Abhar in 2017 or 2018. He told her about his termination from the Ministry of the Attorney General and she pointed out that he could file a claim with the Human Rights Tribunal of Ontario (HRTO), and on her advice he did so.
[21] The first appearance, on February 1, 2019, was a hearing by teleconference of the Ministry’s motion to dismiss the claim as statute-barred and covered by a settlement agreement. Mr. Abhar asked the Applicant to be his voice because when he is stressed he loses his ability to speak. She agreed to be his mouthpiece, but told him she could not represent him or give him advice.
[22] At the hearing the Applicant identified herself as a “friend and support person” but said nothing about her judicial role.
[23] On August 6, 2019, a second hearing was held because the first adjudicator had departed and no recording was made of the first hearing. At the hearing the Applicant identified herself as a lawyer but stated that she was not legal counsel for Mr. Abhar and would just be relaying things that Mr. Abhar had written down.
[24] The Panel accepted the Applicant’s position that in assisting Mr. Abhar, she did not act as counsel, but rather in the nature of a support person. However, it found that the Applicant committed judicial misconduct by failing to disclose her status as a JP and by misleading the Tribunal into thinking she was a lawyer with an active license.
The Panel’s Decision on Disposition
[25] Following its findings of judicial misconduct, the Panel received written submissions on disposition. In its decision dated June 20, 2022, the Panel considered the aggravating and mitigating factors identified in Re Chisvin (Ontario Judicial Council, 2012) at paras. 41-49.
[26] The Panel identified the following aggravating factors in particular:
a) Her Worship’s conduct was not an isolated event but part of a pattern of conduct that persisted over a prolonged period of time.
b) Her conduct occurred in courtrooms.
c) Her Worship did not demonstrate insight into the extent and nature of her misconduct.
d) There was no evidence of remedial efforts.
e) Her length of service and background made her misconduct and lack of insight especially troubling.
f) She did not have a license or liability insurance.
g) Her representations in court were misleading.
h) She acted for Ms. Tran, in part, to test her own cognitive abilities.
[27] The mitigating factors were:
a) The Applicant’s lack of any disciplinary history.
b) The evidence of good character from numerous witnesses.
[28] The Panel acknowledged the evidence of the Applicant’s good character and unblemished history, but expressed concern about the scope and repetition of the misconduct as well as the Applicant’s refusal or inability to understand what she did wrong. It noted that the Applicant’s misunderstanding of her obligations as a judicial officer persisted despite the benefit of almost two years’ reflection.
[29] The Panel ultimately concluded that no option short of removal could restore public confidence in the integrity of the judiciary and the administration of justice.
Issue #1: Did the Hearing Panel breach the duty of procedural fairness in proceeding with the hearing?
[30] The Applicant asserts that it was wrong for the Panel to proceed on March 23, 2021 without further inquiry into why the Applicant was self-represented and whether a further adjournment was required. She argues that this was especially important given the health concerns she had previously identified, in particular her cognitive deficits.
[31] There are several difficulties with this assertion. First, while she presented evidence at the adjournment motion from her pain specialist regarding her physical limitations, she had no current evidence on her mental or cognitive function. All she produced was a nearly one-year old letter dated March 20, 2020, from her psychiatrist, Dr. Liu, whose dominant concern was her mood disorder (depression and anxiety). While Dr. Liu makes brief reference to potential deficits in cognition, memory and concentration during periods of stress, nowhere does he allude to cognitive deficits that would deprive her of her ability to conduct her defence.
[32] Second, the Applicant’s own submissions at the outset of the hearing belie any significant ongoing health issues. After the Chair invited her to ask for breaks “sooner rather than later”, if needed, she responded:
Thank you so much, Your Honour. I can just say, and I advised the two presenting counsel, that since – it’s been a couple months, I think, I’m feeling much better than I was. I have stopped taking a statin drug that the doctor had me on that I really believe was causing tremendous problems, and I feel infinitely better than I did. So if I feel I’m getting some kind of a cramp or something and I need a few minutes, I’ll certainly let you know, but I’m hopeful that, by and large, we can just carry on in a normal fashion.
[emphasis added]
[33] This assurance would have given the Panel confidence that the Applicant was willing and able to fully participate in the hearing.
[34] Third, the panel granted the accommodations recommended by Dr. Liu, in particular that the hearing occur on non-consecutive days, with the only exception being that the hearing was held by videoconference. The Applicant was provided with a private space at a reporting facility near her home in order to participate in the hearing. She was also provided with technical support from Arbitration Place if needed. This arrangement was a reasonable alternative to her psychiatrist’s recommendation that the hearing be conducted in-person in light of the state of the COVID-19 pandemic in March 2021 and the Applicant’s own assertion that she was in a high-risk category for catching viruses.
[35] As it turned out, the hearing proceeded intermittently over several months. It began on March 23, and continued on March 26, April 19 and 23, May 11, and June 8, 2021. The Applicant thus had ample time to rest and prepare throughout.
[36] Fourth, it is undisputed that the Applicant was self-represented for financial reasons, and there is no evidence that would have changed with an adjournment.
[37] In sum, it was within the discretion of the Panel to proceed with the hearing as scheduled in all of the circumstances. Any alleged failure of the Panel to offer the Applicant yet another adjournment of this much-delayed hearing was not, in my view, procedurally unfair in any way.
Issue #2: Was the Hearing Panel’s decision on disposition unreasonable?
[38] The Applicant’s conduct, as established at the hearing, was self-evidently improper and clearly contrary to the ethical principles that apply to the judiciary. Indeed, on this application for judicial review, the Applicant does not challenge either the reasonableness or the correctness of the Hearing Panel’s finding of judicial misconduct.
[39] The essence of her position on disposition is that her behaviour arose from a cognitive disability. She asserts that although the Panel had significant evidence before it that she was not at full cognitive capacity when these acts occurred, it analyzed her conduct through the lens of an able-bodied person with full cognitive function. Because her misbehavior occurred while she was effectively disabled by cognitive challenges, a full revocation of her license is overly punitive. Her behaviour – properly characterized – could have been addressed through a reprimand and suspension until the point she could demonstrate that she is medically able to resume judicial duties. The public could have confidence in her as her cognitive function returned.
[40] There are two problems with this argument. First, as I explained above, there is no reliable medical evidence to suggest that any cognitive disability was a significant contributing factor to her misbehaviour.
[41] Second, her advocacy during both the misconduct and penalty hearings – while ultimately not successful – was lucid and relevant. Her written submissions following the hearing were capable and coherent. There was nothing of significance to suggest a cognitive deficit. To the extent her strategy during the litigation may be questioned, that does not signify lack of cognitive function but, at most, possible poor judgment.
[42] As for the Applicant’s assertion that her poor judgment, in turn, arose from her cognitive difficulties, thus mitigating her behaviour, the transcript belies any significant cognitive malfunction. In particular, her assertion that the transcripts are “replete with instances” where it is clear she was compromised by her disabilities or the absence of counsel is not supported by a review of the transcripts and the record. The examples she cites in support of that contention were minor or inconsequential to the Panel’s ultimate findings[^2].
[43] Moreover, while the Applicant was ultimately unsuccessful, there is no reliable basis to conclude that the Panel’s conclusions of misconduct would or could have been any different with higher cognitive function. This is not a case where better advocacy during the hearing would have changed the result, as the underlying facts were never seriously in dispute.
[44] The Respondent maintains that in her submissions on disposition the Applicant was adamant that she did nothing wrong. I think a fairer characterization of her response is that she equivocates. For example, in her written submissions on disposition, despite “accepting” the Panel’s finding that she was “wrong”, and asserting that she feels “ashamed” of her actions, she continued nonetheless to justify or rationalize her actions, and called into question some of the evidence about the complaints. By that point – almost five months after the findings of misconduct had been made – she would have had plenty of time to reflect on the seriousness of her actions and formulate a fulsome and unreserved apology had she chosen to do so.
[45] That said, the Applicant’s lack of acknowledgement or contrition is not an aggravating factor, but rather the absence of what could have been a significant mitigating factor: Re Phillips (Justices of the Peace Council, 2013) at para 24. Indeed, this is a case where a sincere, unqualified acceptance of wrongdoing may have been a powerful mitigating factor. Regrettably, it is absent.
[46] In sum, in all of the circumstances the penalty cannot be characterized as unfit or unreasonable and there is no basis in the record that would justify interfering with it upon review.
Conclusion
[47] For the reasons above, I find that the Applicant’s hearing was procedurally fair and the Panel’s recommendation for her removal from office was reasonable. The Order-in-Council was therefore properly issued. The application is thus dismissed.
[48] In accordance with the agreement of counsel, the Applicant shall pay $7,500 in costs to the Respondent JPRC. No costs have been sought by the LG.
___________________________
Baltman J.
___________________________
Stewart J.
___________________________
Lococo J.
Released: April 25, 2023
CITATION: Ballam v. Justices of the Peace Review Council, 2023 ONSC 2502
DIVISIONAL COURT FILE NO.: 22-406-JR
DATE: 20230425
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Stewart, Baltman and Lococo JJ.
BETWEEN:
Dianne Ballam
Applicant
- and –
Justices of the Peace Review Council
The Lieutenant Governor in Council of Ontario by and with the Advice and Concurrence of the Executive Council of Ontario
Respondents
REASONS FOR JUDGMENT
Released: April 25, 2023
[^1]: The Honourable Justice Joseph A. De Filipis (Chair), Her Worship Liisa Ritchie (Justice of the Peace Member), and Ms. Lauren Rakowski (Community Member).
[^2]: Applicant’s Factum, para. 74.