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October 18, 2010

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PAGE 2 NEWS OcTOber 18, 2010 • Law Times BY MICHAEL McKIERNAN Law Times former assistant Crown attorney from Brantford, Ont., wants $1.2 mil- lion in lost salary and pension from the provincial government for failing to follow through on what he says was a promise to make him a judge. Don Angevine will be in court in early December to fi ght off a motion for summary judgment brought by the Ministry of the Attorney General, which believes his claim has no chance of success. Th e proceedings follow an earlier failed attempt by the ministry to have Angevine's claim struck soon after he fi led it in 2008. "Eff ectively, they're trying to snuff out our claim at an early stage again without being re- quired to go through a trial," says Paul Amey, Angevine's lawyer. While many lawyers tell war stories about judicial appoint- ments they thought they had but that never materialized, this one Former Crown seeks $1.2M over promised judicial appointment A is diff erent, according to Amey. "Th is is not the usual case of those hundreds of lawyers who no doubt feel disappointed that they never got the appointment somebody promised them. Th is is the lawyer who got the phone call that lawyers are sitting on pins and needles waiting to re- ceive from the attorney general congratulating him on his ap- pointment. It's quite diff erent." Angevine began working as an assistant Crown attorney in 1977, two years after his call to the bar. He spent the bulk of his working years in Brantford be- fore retiring in 2006. According to his statement of claim, Angevine applied to the judicial appointments advisory committee in 1992. After an in- terview, a provincial offi cial alleg- edly told him he had the job and would be assigned to the provin- cial court in Brampton, Ont. During a meeting with the regional senior justice for Brampton, Angevine was even told to prepare a guest list for his swearing-in ceremony, ac- cording to the statement of claim. None of the allegations have been proven in court. But things began to go awry in late December 1992 when former attorney general Howard Hamp- ton called him. "Congratulations. As you know, you have been chosen to be appointed to the provincial court. Unfortunately, there has been a bit of a mix- up. Th ere are 12 people who have been promised positions, and we only have 10 positions available, so you are going to have to wait a few months until there is a new opening," a paraphrased version of the conversation in Angevine's claim alleges Hampton told him. Angevine claims he contacted the ministry for a status report in 1994 after hearing nothing about his appointment. He says George Th omson, the deputy attorney general, recommended he take on some high-profi le prosecu- tions for evaluation. Another year later, Angevine alleges, Th omson told him at a convention it was "no longer a question of if you are going to be appointed but it is only a question of when." According to Angevine's claim, Hampton and Th omson "made an off er accepted by the plaintiff to appoint the plaintiff to provin- cial judge in the future and while the plaintiff was employed by the defendant as a Crown attor- ney, which constituted a binding agreement between the parties." A decade later, when An- gevine retired, the ministry still hadn't followed through on the alleged promise. He fi led his lawsuit soon after. Amey says his client is anx- ious to get the matter settled but is prepared to go to trial if that's what it takes. "All we're asking for is money," Amey says. "We're not asking them to appoint him a judge. It's what we calculate his real out-of-pocket loss will be during his lifetime by never hav- ing got that appointment." Angevine says he stuck to his job on the basis of the prom- ised appointment. At the same time, he claims he eschewed career-advancement opportuni- ties within the ministry in the expectation a position on the bench would be forthcoming. In the meantime, while Th omson moved on to a new job with the federal Department of Justice, a second candidate re- ceived his delayed appointment after getting the same message from Hampton back in 1992, according to the statement of claim. Hampton himself cycled through various jobs, including minister of natural resources and leader of the NDP in opposi- tion. He remains an MPP. Still, Angevine claims succes- sive attorneys general encour- aged him to apply for positions on the provincial court bench as they came up. Between 1992 and 2006, he applied for more than 100 vacancies and got two more interviews with the advi- sory committee, according to the statement of claim. In a judgment dated Dec. 2, When More is Too Much 2008, Ontario Superior Court Justice Donald Gordon dis- missed the ministry's attempt to have the claim struck. While the claim could have included more detail, Gordon said it did enough to set out the elements of a contract: off er, acceptance, and consideration. "It is not the role of the mo- tions judge to rule on the rea- sonableness of the purported facts or the likelihood of suc- cess," Gordon wrote. "It will be for the trial judge to so de- termine on a full and complete evidentiary record." Gordon also said the parties' disagreement over the limita- tion period was a matter for trial. Th e ministry argues An- gevine waited too long to fi le his claim, but when the par- ties return to court in Decem- ber, Amey says he'll argue the limitation period should begin much later, when Angevine dis- covered the ministry wouldn't fulfi l its alleged promise. Brendan Crawley, a spokes- man for the ministry, said in a statement: "We are defending this claim. It is our position that judicial appointments are made following the process set out in the Courts of Justice Act. We will make our submissions in open court in due course." LT Marketplace PRACTICE FOR SALE Irrelevant cases chewing up your research time? Get the best cases first. 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