Law Times

Law Times • march 13, 2017 Page 3 www.lawtimesnews.com Issues arise from a land claim dispute Complaints process against judge questioned BY SHANNON KARI For Law Times T he chief justice of the Ontario Superior Court questioned whether the Canadian Judicial Council was acting within its powers when it decided to re- consider complaints filed against Superior Court Justice Frank Newbould that it had previously dismissed. Chief Justice Heather Smith raised "serious concerns" about the complaint process in a Sep- tember 2016 letter to the judicial council. In the letter, the judicial con- duct committee was also asked to consider the "appropriate- ness" of a decision last spring by Robert Pidgeon, senior associ- ate chief justice of the Quebec Superior Court, to order a new look into the complaints against Newbould. Following the decision by Pidgeon, the matter was sent to a judicial council review panel. In a ruling dated Feb. 8, it unanimously decided to appoint an inquiry committee to con- sider allegations that "if proven" could result in a recommenda- tion that Newbould be removed from judicial office. The complaints stem from the judge's actions related to a long-standing land claim dis- pute in an area where his family has a cottage. In a statement issued after the review panel's conclusion was made public on Feb. 13, his law- yer Brian Gover suggested the is- sue was about perception. "Justice Newbould apolo- gized in 2014 due to the percep- tion caused by the fact he is a judge," said the statement. The judge has since filed an application in Federal Court asking it to quash the review panel's decision on the basis that it exceeded its jurisdiction. Gover, a partner at Stock- woods LLP in Toronto, says no date has been set yet for the hearing. Newbould continues to serve as team leader for the com- mercial court list in Toronto and notified the federal justice minister and judicial council on Feb. 10 of his intention to retire on June 1. Mohan Sharma, counsel in the office of Chief Justice Smith, says it is standard for the ju- dicial council to request com- ment from a chief justice when- ever a complaint has been made against a judge in her court. "It is not uncommon for the chief justice, as a member of the CJC, to write to its execu- tive director about processes engaged in by the CJC," Sharma explains. Complaints against New- bould were originally filed by seven people in the summer and fall of 2014, according to docu- ments now made public by the judicial council. The complaints questioned the appropriateness of New- bould's public statements and written comments about a land claims dispute with the Saugeen First Nation over the Sauble Beach area on the eastern shore of Lake Huron. The dispute has been in liti- gation since 1994 and over the years it has been case managed by two Superior Court judges. Newbould sent at least four emails or letters to the South Bruce Peninsula council in Au- gust 2014 in response to a re- quest for comment from the lo- cal mayor. One of the communications was a detailed eight-page letter. It contains advice on how to de- fend the claim. The judge, formerly a senior commercial litigator, wrote that he attempted to contact lawyers for the province and federal gov- ernment, but they would not speak to him about the matter. In the letter, Newbould stated that he had contacted Warren Winkler to clarify the interpre- tation of an issue dating back to when Winkler was mediating the dispute and sitting as a Supe- rior Court judge. Newbould also disclosed in the letter that he had been able to look at most of the evidence in the dispute and could assist in recommending an outside law- yer to act for the municipality. "The town should never agree to a settlement that does not spell out clearly that there will never be vehicles or user fees or cigarette sales on the beach," wrote Newbould. The application filed in Fed- eral Court argues that Newbould acted in his "personal capacity" as a local resident and not as a judge in expressing his views. The opinions and content of the letter were reported in the local media a few days af- ter they were communicated to council. "Justice Newbould says town has strong defence to native land claim at Sauble Beach," states an Aug. 27, 2014 headline in an online story posted by Bayshore Broadcasting. The story goes on to detail "recommendations" made by the Superior Court judge to local council, including that it "should not shy away" from defending its position in court. Nova Scotia Chief Justice Mi- chael MacDonald originally dis- missed the complaints in early 2015. The judge, who chairs the judicial council's conduct com- mittee, accepted a private apol- ogy from Newbould. The judicial council also sought comment from Smith at this time. "Chief Justice Smith indicat- ed that she had nothing further to add to the comprehensive and contrite response delivered by Justice Newbould. "It was up to the Canadian Judicial Council, not the chief justice, to determine whether Justice Newbould's apology was sufficient," Sharma explains. The basis for the complaints, the initial decision and what happened over the next two years were not made public un- til after the release of the review panel decision last month. Koren Lightning-Earle, presi- dent of the Indigenous Bar As- sociation, asked in June 2015 for a reconsideration of the original decision to dismiss the com- plaints. Given that Newbould has indicated he is going to retire, it appears unlikely there will be a hearing, says Lightning-Earle. "The whole process has been very frustrating," she states. "Why has it taken so long," asks Lightning-Earle. "This is a serious issue." Johanna Laporte, a spokes- woman for the judicial council, says there was a "voluminous record" in this proceeding and "complex issues" that had to be decided. There was also an unexpect- ed delay after the recusal of the original lay member of the re- view panel. The land claim dispute re- mains unresolved and is cur- rently being case managed by Superior Court Justice Edward Belobaba. After a proposal aimed at reaching a settlement was not accepted, the South Bruce Pen- insula council subsequently re- tained Jonathan Lisus, a partner at Lax O'Sullivan Lisus Gottlieb LLP in Toronto. He did not respond to re- quests for comment from Law Times. LT Tel: 905-841-5717 www.bolandhowe.com THE PROOF IS IN THE PRECEDENTS Verdict: Jones v Ross (Newmarket) 4073/87 (ONSC) SNOWMOBILE ACCIDENT? Consider referring your client to us Tim Boland For further liability verdicts, ask for our Trial Report Card Untitled-3 1 2017-03-13 11:58 AM NEWS Chief Justice Heather Smith raised 'serious concerns' about the complaint process against Superior Court Justice Frank Newbould in a letter to the Canadian Judicial Council. Chief Justice Smith indicated that she had nothing further to add to the comprehensive and contrite response delivered by Justice Newbould. It was up to the Canadian Judicial Council, not the chief justice, to determine whether Justice Newbould's apology was sufficient. Mohan Sharma

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