Law Times

PAGE 4 Executive the real threat to independence: Crown Continued from page 1 year, Superior Court Justice Kevin Whita- ker agreed and dismissed the association' ficer will act in the best interests of the ad- ministration of justice and that this consid- eration — what is fair and just — shall oc- cupy the first priority in exercising a statu- tory power of discretion," wrote Whitaker. "It may also be presumed that the executive will, in part, occupy and move in the po- litical realm. A reasonable observer should conclude that independence in matters of reappointment and revocation are better protected by the former than the latter. As of last year, there were more than 400 application. "It may be presumed that a judicial of- s " deputy judges across 90 locations in Ontar- io. More than 80 per cent of sitting deputy judges have served more than one term and have been reappointed. The regional senior judge, having the approval of the attorney general, appoints each deputy judge ini- tially. However, the regional senior judges control the reappointment process thereaf- ter and don't have to provide reasons as to why they reappoint a deputy judge. According to Whitaker' have been no recent cases to suggest that fixed-term appointments are inconsistent with judicial independence or that a rea- sonable observer would conclude a region- al senior justice would interfere with it. But McCutcheon says his clients argue a s decision, there lack of input into the reappointment pro- cess can create significant problems for deputy judges. "The processes are really very different NEWS June 25, 2012 • Law Times 'Extreme caution' needed in costs orders against lawyers independence over the last few years paints a diverse picture on the subject. In its 2001 decision on the provincial A look at Canada's approach to judicial judges reference, the Supreme Court of Canada found there was constitutional protection for judicial independence de- spite its visible absence from the Consti- tution. In the same breath, it also found that governments should be required to set up commissions to keep politics out of the process for determining judicial remuneration. This isn't the first time the association has brought up the issue of judicial inde- pendence in the context of the reappoint- ment process for deputy judges. In November 2009, transcripts from the Ontario legislature show Ken Koprowski, a deputy judge since 1994, spoke about the same issues discussed in the association' appeal last week. " to be given by the senior regional judge for refusing to appoint or reappoint a deputy judge, Among other things, no reasons have mechanism for that person to challenge or contest that decision of the senior re- gional judge. When I think of what went on with Justice Paul Cosgrove, this is the total antithesis of that procedure. There is no mechanism to contest it." Cosgrove, an eastern Ontario judge, " said Koprowski. "Also, there is no s Continued from page 1 year. They said it infringed their rights to freedom of expression. Galganov participated in the constitu- tional challenge even though he wasn't a resident of the township. In August 2010, Métivier ruled he had no standing to bring the application. Similarly, Métivier ruled the township' constitutional rights. Neither has brought actions against s bylaw didn't violate Brisson's Bickley for improper conduct. The court ordered $100,000 in costs against Galganov last year as well as $80,000 against Brisson. Several issues arose during the litigation that put Bickley at the centre of allegations by the township of poor conduct. The first issue involved a notice of ex- amination of former Russell mayor Ken Hill filed by Bickley and an intention to call him as a witness in the matter. Bickley later changed his mind and decided not to call Hill. The moves cost the township significant time and money, the applica- tion judge noted. But Weiler determined the applica- across the province, which can lead to in- consistencies," says McCutcheon. "I'm not sure why it hasn't been brought up before. Maybe no one wanted you to challenge it." But Robert Charney, counsel for the attorney general in the appeal matter, said during oral arguments last week that that' not the case. "The court has pointed out that it' has a vested interest in the outcome of a court proceeding, but a reasonable person could conclude a regional senior judge would not have the same type of interests. The Supreme Court of Canada has said time and time again that we can trust the heads of our judiciaries." "It could be argued that the executive " said Charney. s executive and the reappointment process that is a threat, not the process and a re- gional senior judge, s the resigned from the bench in 2009 follow- ing an inquiry by the Canadian Judicial Council into allegations by then-Ontario attorney general Michael Bryant that he had vilified the state. Cosgrove had ruled in 1999 that the Crown attorney, police, and a deputy attorney general had committed 150 constitutional violations in connection with murder charges against Julia Elliott. Elliott was on trial for the grisly murder of her former lover at the time. A second trial later resulted in her conviction. When it comes to deputy judges, Mc- Cutcheon argued there are no mechanisms in place for them to ensure the reappoint- ment process is entirely independent. "There should be some type of mecha- tion," said McCutcheon. "Right now, there simply isn't." Until then, McCutcheon says the as- s capacity to perform a judicial func- " LT tion judge failed to "consider not only whether the mayor Hill incident caused unnecessary costs but whether, in doing so, Bickley was acting in his personal ca- pacity or as an agent for his clients." Bickley explained the incident in an law on biased expert witnesses," the applica- tion judge noted. However, Weiler said the court couldn't use hindsight to evaluate Bickley's decision. Lastly, the township made several complaints that Bickley's conduct both complaints when she noted that "at the hearing, Bickley oſten could not find cases to which he referred, had not al- ways brought the materials he needed with him, and did not understand that the 'joint' book of authorities filed by the township referred to the Galganov and Brisson applications being heard jointly and were not intended for the joint use of counsel. before the hearing and during it contrib- uted significantly to its time and costs in the action. Weiler summarized the township' s principle of "extreme caution" in awarding costs personally against a lawyer. "Finally, if an order of costs is to be Still, Weiler said the court must apply the " affidavit. "As I explained to counsel for the Township of Russell, my primary reason to cross-examine mayor Ken Hill was to ensure the admissibility of the transcript of the radio interview with mayor Ken Hill which took place on June 18, 2008, and to expand upon his positions," Bick- ley said in his affidavit. "In seeking his attendance at the hearing, I deny that my intention was to embarrass Ken Hill as alleged by the Township of Rus- sell in the within motion. At all times, I was following instructions of my client." However, due to solicitor-client priv- nism in place for input when it comes to the reappointment process or an indepen- dent body that will be able to assess a can- didate' sociation will simply have to "wait and see what the court has to say. made against a lawyer personally on the basis of negligence, then that negligence must be based on a breach of the objec- tive standard of care of a reasonably com- petent lawyer in the same position," wrote Weiler. "Here, that position would be of a lawyer acting on instructions or with the approval of his clients." Ronald Caza, the lawyer for the town- ilege, the appeal court decision noted Bickley couldn't expand upon his ac- tions as they pertained to his conduct in the case. Similarly, the second issue involved in cross-examining Mr. Galganov as to his expertise and researching the state of the "The township wasted time and money s matter. peal court has issued clear directions on the question of costs against lawyers. "In this case, the clients weren't upset with Mr. Bickley. It was the succeeding party that was upset. I think the court sent very clear directions that when a client hasn't waived solicitor-client privileges and the clients have given their lawyer specific in- structions throughout the process and all the steps taken were properly reviewed, courts must be vary cautious about awarding personal costs against a lawyer. an application by Bickley to obtain leave to have the Brisson and Galganov appli- cations heard together and to have Gal- ganov be an expert in Brisson' O'Brien, a senior partner at Nelligan O'Brien Payne LLP, adds the ruling is also a good reminder that advocates shouldn't fear personal costs awards against them in such cases. Besides setting aside the order, the ap- " peal court awarded Bickley the costs of the motion before the application judge, the motion for leave to appeal, and this month' appeal on a partial indemnity basis. Weiler fixed those costs at $25,000. s LT CANADIAN LAW LIST 2012 YOUR INSTANT CONNECTION TO CANADA'S LEGAL NETWORK Inside you will find: • an up-to-date alphabetical listing of more than 58,000 barristers, solicitors and Quebec notaries, corporate counsel, law firms and judges in Canada; • contact information for the Supreme Court of Canada, the Federal Court of Canada, Federal Cabinet Ministers, departments, boards, commissions and Crown corporations; • legal and government contact information related to each province for the Courts of Appeal, Supreme Courts, County and District Courts, Provincial Courts, law societies, law schools, Legal Aid, and other law-related offices of importance. MORE THAN A PHONE BOOK Hardbound • Published February each year • On subscription $149 • L88804-571-26084 One-time purchase $165 • L88804-571 • ISSN 0084-8573 Prices subject to change without notice,to applicable taxes and shipping & handling. Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation www.lawtimesnews.com CLL - 1/4 pg - 5X.indd 1 1/20/12 10:55 AM CANADIAN LAW LIST ship in the matter, was away from the office until July and was unavailable for comment. O'Brien, meanwhile, suggests the ap-

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