SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: M214/10
DATE: 2012-01-05

RE: R. v. Gregory Goodridge and Paul Slansky

BEFORE: Madam Justice F. McWatt

COUNSEL:
Daniel Guttman and Hart Schwartz, for the Crown

Paul Slansky, Acting in Person

HEARD: November 28, 2011 and December 22, 2011

ENDORSEMENT

[1] This application is brought by Mr. Paul Slansky representing himself. Mr. Slansky originally asked for “review by writ of certiorari and an originating application for prohibition and 24(1)” in November, 2010. He asked that the order of Provincial Court Judge Ritchie dismissing his application to be removed as counsel for Gregory Goodridge be quashed and a mistrial be declared. The application asked for costs.

[2] On January 10, 2011, Mr. Slansky was removed as counsel for Mr. Goodridge by Ducharme J. of this court. Justice Ducharme did not hear the costs application against Ritchie J., but deferred it to a future date. That part of the motion is now before me. On November 7, 2011, the Crown consented to a new trial for Mr. Goodridge based on Justice Ritchie’s refusal to remove Mr. Slansky as counsel during the trial and what came as a result of his decision.

[3] My brothers Ducharme J. and Trotter J. have so far disposed of this matter fairly. Mr. Slansky should have been removed as counsel of record by Justice Ritchie at the outset of his application to be removed. A new trial for Mr. Goodridge was the only just remedy for the learned trial judge’s error in denying Mr. Slansky’s application and forcing the trial on.

[4] All that remains now is the issue of costs requested by Mr. Slansky against Mr. Justice Ritchie, personally, and an order for costs against Mr. Slansky requested by the Crown.

[5] Mr. Slansky was forced to bring this application to the Superior Court on a straight-forward issue which should have been resolved before Justice Ritchie. It is unfortunate. However, it has all now been corrected for Mr. Goodridge’s sake.

[6] Mr. Slansky’s application for costs is dismissed for the following reasons.

[7] Mr. Justice Ritchie enjoys absolute immunity from civil liability for actions performed in his judicial capacity [ s. 82 of the Courts of Justice Act, R.S.O. 1990, c. C.43; Kopyto v. Ontario (Court of Justice (Provincial Division)), [1995] O.J. No. 601 at paras. 36 to 46 (Ont. Ct. (Gen. Div.)); Tsai v. Klug, [2005] O.J. No. 2277 (S.C.J.); affirmed https://www.canlii.org/en/on/onca/doc/2006/2006canlii4942/2006canlii4942.html, [2006] O.J. No. 665 at paras. 5-8 (C.A.); Collins v. Canada (Federal Court Judge), [2010] O.J. No. 5210 at paras. 11-17, (S.C.J.); Pispidikis v. Scroggie, https://www.canlii.org/en/on/onsc/doc/2002/2002canlii23209/2002canlii23209.html, [2002] O.J. No. 5081 (S.C.J.), aff’d https://www.canlii.org/en/on/onca/doc/2003/2003canlii27059/2003canlii27059.html, [2003] O.J. No. 4830 at paras. 15-17 (C.A.); Hamalengwa v. Duncan, [2005] O.J. No. 851 (S.C.J.), aff’d https://www.canlii.org/en/on/onca/doc/2005/2005canlii33575/2005canlii33575.html, [2005] O.J. No. 3993 at para. 28 (C.A.); Ettinger v. Peters et al, [2010] No. 23 at paras. 5-5 (S.C.J.); and Unterreiner v. Wilson et al. (1982), https://www.canlii.org/en/on/onsc/doc/1982/1982canlii1814/1982canlii1814.html, 40 O.R. (2d) 197 at para. 19 (Ont. Ct. (Gen. Div.)), aff’d (1983), https://www.canlii.org/en/on/onca/doc/1983/1983canlii1968/1983canlii1968.html, 41 O.R. (2d) 472 (C.A.)].

[8] Mr. Slansky has not filed a notice attacking the constitutionality of section 82 of the Courts of Justice Act in time. No argument on that issue was made before me.

[9] Mr. Slansky (and also Mr. Goodridge) has exercised the appropriate methods for a remedy for Justice Ritchie’s erroneous decisions in this case. Mr. Slansky has further recourse to complain about the learned trial judge’s conduct, but costs against Justice Ritchie are barred by his immunity.

[10] The Applicant’s motion before Justice Ducharme relied on section 783 of the Criminal Code - that Justice Ritchie exceeded his jurisdiction in dismissing Mr. Slansky’s application to be removed from the record. Justice Ducharme made no finding that Justice Ritchie exceeded his jurisdiction. In fact, it was within the trial justice’s jurisdiction to do what he did. In this case it was simply the wrong decision which was corrected on review. Section 783 does not apply. It also does not appear to apply in this jurisdiction [ Mayrand v. Cronier (1981) https://www.canlii.org/en/qc/qcca/doc/1981/1981canlii3189/1981canlii3189.html, 63 C.C.C. (2d) 561 (Que. C.A.)].

[11] Mr. Slansky also repeatedly maintained during his submissions that section 783 of the Criminal Code refers to a criminal proceeding so that any application of s. 82 of the Courts of Justice Act giving absolute immunity from civil liability to Justice Ritchie did not apply in this case. The applicant maintains that Mr. Goodridge’s case is a criminal one from which this application springs. The costs being sought against Justice Ritchie are “criminal costs”. I disagree. Even if section 783 did apply, it specifically refers to “civil proceedings” being taken against a provincial court judge. Civil costs are what Mr. Slansky seeks in this application. Justice Ritchie, as I have already set out, has absolute immunity.

[12] There is no basis to award costs against the Crown in this case.

[13] The Crown’s application for costs to be awarded against Mr. Slansky is also dismissed. Although this matter could have become less inflamed by Mr. Slansky and he should have considered more carefully his claim for costs, I do recognize his frustration over what occurred in the Provincial Court.

[14] The Crown contends that as Mr. Slansky is acting on his own behalf as the applicant in this matter seeking money for himself as a party to these proceedings, the ordinary rules for awarding costs against a party should apply [ Collins v. Canada (Federal Court Judge), [2010] O.J. No. 5210 at paras. 20 to 25 (S.C.J.); R. v. Bérubé, [2010] O.J. No. 1271 at para. 45 (S.C.J.); Courts of Justice Act, supra, s. 131(1) ].

[15] Although it could be argued that Mr. Slansky’s motion for costs was a result of bad judgment and that Rule 57.07 of the Rules of Civil Procedure should apply, an order for costs against a solicitor should only be made in rare circumstances [ Marchand (Litigation Guardian of) v. Public General Hospital Society Chatham, [1998] O.J. No. 527 at para. 115 (S.C.J.) ].

[16] I cannot say that Mr. Slansky was clearly derelict in his duties as an officer of the court because of the unusual decisions made by the trial judge, but he should have known that he could not have succeeded on this motion.

[17] I acknowledge that a lot of effort has been made by the Crown to respond to this motion. Perhaps, the Crown should have agreed with Mr. Slansky at the trial that he should have been removed from the record ─ although it was not obliged to do so because Mr. Goodridge’s trial had already been adjourned on many prior dates.

[18] In all of the circumstances, and because this matter went so far afield from what should have occurred based on the actions of all the parties, there shall be no costs against Mr. Slansky.

[19] The motions are dismissed.

McWatt J.

Date: January 5, 2012