The Court of Appeal for Ontario is the highest court in the province. It is headed by the Chief Justice of Ontario, The Honourable George R. Strathy and Associate Chief Justice for Ontario, the Honourable J. Michal Fairburn. What happens when the Associate Justice of Ontario decides with apparent full intent to breach the Courts of Justice Act s.132 the Charter of Rights s.11(d) and court law established since the seventeenth century and where do the people of Ontario go?
Canadians are generally known to be polite and more willing than most to say please and thank you. We are also people who believe that as citizens we are protected by our Charter of Rights and Freedoms. There is a sense of trust in our judicial system and although some in society may take a cynical view of lawyers, we still don’t see them as with intent in breaking the law.
We believe that our courts are run by a justice system that demands absolute impartiality and independence. All judges are guided by the Canadian Judicial Council and their handbook - Ethical Principles for Judges - and the Canadian Justice Act. Lawyers also have the Law Society of Upper Canada’s Rules of Professional Conduct, (but more on that at another time), which according to the Law Society express the high ethical ideals of lawyers.
Now what happens when a judge decides that his robes give him or her the power to break the law at will? What if the judge who sits in the highest court in the province and is the Associate Chief Justice of Ontario, and her decision to break the law and remove the rights from a Canadian citizen that the Canadian Charter guarantees, is premeditated and calculated?
As stated, earlier judges can rely on the handbook Ethical Principles for Judges prepared by the Canadian Judicial Council. In this ‘handbook’ there is advice on a number of issues such as dealing with conflict of interest and impartiality. Also, there is no judge wearing robes who would not be aware of the famous and universal dictum attributed to Lord Denning of England’s House of Lords; “justice not only has to be done, it must be seen to be done.” There is no translation needed for this, not for a judge or for any right-minded individual.
It is with alarm that the realisation that all these ideals fall from reality. An example can be found on uofOWatch.blogspot.com. The masthead of this blog post states, “UofOWatch exposes institutional behaviour that is not consistent with the public good.” In a March 6, 2014, post titled ‘Supreme Court of Canada refuses to address judicial bias - Complaint to UN Human Rights Committee to follow’ loudly rings very dangerous alarm bells as to how judges can cover up issues of bias raised against them. The article states: “A judge of the Ontario Superior Court in Ottawa had a financial and emotional connection with a party in a lawsuit, and a family connection with the law firm representing that party. When the defendant in the lawsuit requested to bring a motion regarding the judge’s appearance of bias, the judge threatened him with contempt of court.” It further states in the article that the defendant raised the issue of bias with six more judges, including the Court of Appeal, but all of them refused to consider the facts.
According to the article, the Canadian Civil Liberties Association made an attempt to come to the aid of the defendant, but without success. It is important to stress that the idea of bias in judges’ decisions is far from a rare event. The apprehension of bias has been dealt with in a number of cases heard by the Supreme Court of Canada, and cases such as Baker v. Canada (Minister for Citizenship and Immigration) 1999, R v. S (R.D) and more. The Ontario Court of Appeal in 2014 overturned a decision by Justice John A. McMunagle of the Superior Court of Justice, the appeal citation was Laver v. Swrjeski.
In fairness it is true that as human beings we are fallible and can make errors. Judges are no less human, and misinterpretation of law is possible. Yet what happens when the issue at question is not error, or misinterpretation but an apparent premeditated act of breach of law? How do we explain a judge’s action when she had with full intent and planning decided to strip Canadian citizens of their Charter rights? Can such an act be permitted to go quietly out of public attention?
Associate Chief Justice for Ontario, Justice Michal Fairburn heard a Motion to Stay Costs until the appeal process with the Supreme Court of Canada may reach a conclusion. This motion was heard by Justice Fairburn on August 19, 2021, with her written decision on August 20, 2021. Did Justice Michal Fairburn willfully and intentionally breach the Charter of Rights s.11 (d), did Justice Fairburn with full intent and purpose breach the Courts of Justice Act s.132? Justice Fairburn could have recused herself from hearing this motion. Nemo judex in causa sua developed and demanded since the seventeenth century, adhered to in England, Canada and America, protects the judiciary from questions of bias. Did Justice Fairburn err in deciding to hear the motion for stay?
BACKGROUND:
We (my daughter and I) filed a Motion to Stay Costs with the Court of Appeal for Ontario. This motion was filed so that costs would be stayed until our application for leave to appeal to the Supreme Court had been decided, and if appeal was granted then until the final decision is provided by the Supreme Court. The leave application was necessitated after an appeal filed at the Court of Appeal for Ontario was dismissed. The appeal was based on two major grounds, first was the apprehension of bias against Justice Paul Sweeny of the Superior Court in St. Catharines. A second major set of grounds was non-disclosure by Justice Sweeny and counsel Michael Kestenberg of Kestenberg Seigal Lipkus LLP of Toronto.
Our appeal was heard by a panel of three judges of the Court of Appeal led by Justice Michal Fairburn. Fairburn’s decision was only four sentences with no reasoning provided. Details of the appeal and Justice Fairburn’s decision were discussed in Mayorgate’s article, ‘Self Represent, Self Destruct’.
ISSUE AT HAND: Can
a judge breach the Courts of Justice Act?
Only one of three counsels, Michael Kestenberg forced the need for a Motion to Stay Costs, both remaining two counsels were unopposed to the motion. We filed our Motion Record, Factum, Book of Authorities and then a Supplementary Motion Record. Our motion was heard on August 19, 2021, and the dark face of Canada’s justice system stepped forward.
I was taking part in the motion via phone and had it on speaker for my daughter to hear everything and my two witnesses. As the judge who was to hear the motion identified herself absolute shock hit both of us. Justice Michal Fairburn identified herself, she said she had read all our material and asked if I was ready to make by submission. It is not possible to describe what went through our minds. As a self-represented litigant if I refused to have Fairburn hear the motion then my fear was, I would be held in contempt.
When filing a Motion to Stay Costs pending completion of an appeal process, the applicant must satisfy a three-part test. Part one requires an assessment of the grounds of the appeal to determine whether the applicant has a good chance of having an appeal granted. Then parts two and three deal with the balance of convenience or potential harm that granting or not granting the motion to stay costs. The motion judge may not be hearing the actual appeal nevertheless he/she needs to understand the strength of the grounds, the material provided to support it and make a judgement on the potential success of the appeal process.
Our appeal was based on the Absense of Reasoning relating to a decision written by Justice Fairburn. Now it was Justice Fairburn who decided that she would be hearing the Stay Motion. It is like permitting a thief to sit as judge against himself for theft charges. What would any right-minded individual think the result would be?
Courts in Canada claim that they are transparent, unbiased and above all else totally impartial. According to the Ethical Principles For Judges, a guide assembled by the Canadian Judicial Council at page 27, part 6 has a statement: “Judges must be and should appear to be impartial with respect to their decisions and decision making.” The heading is IMPARTIALITY and as part of the general principles it further states; “Judges should strive to ensure that their conduct, both in and out of court, maintains and enhances confidence in their impartiality and that of the judiciary.”
The Court of Appeal for Ontario is headed by the Chief Justice of Ontario, the Honourable George R. Strathy, Associate Chief Justice of Ontario, the Honourable Michal Fairburn and 30 other judges. It is the last avenue of appeal for litigants in the province as only 2% of appeals are heard in the Supreme Court. So, the COA is the last stop where people’s lives are held in the balance by the judges who preside there.
As a final point under its General Principles for Impartiality in the CJC Ethical Principles for Judges it states: “The appearance of impartiality is to be assessed from the perspective of a reasonable, fair minded and informed person.” One has to stop and ask where does this mythical reasonable, fair minded and informed person sit? Or is this all a farce spread to appease the naïve into thinking we truly have a justice system that is impartial?
Cambridge Dictionary explains impartial to be “able to judge or consider something fairly without allowing your own interest to influence you.” Collins Dictionary explains it as; “Someone who is impartial is not directly involved in a particular situation and is therefore able to give a fair opinion or decision about it.” How could Justice Fairburn claim impartiality in hearing our motion to stay costs and why did she make the premeditated decision to hear it? There are some 30 judges at the Court of Appeal, why did Justice Fairburn choose to sit on this motion? Surely, she was fully aware of all the legal ramifications.
The Courts of Justice Act s.132 states; “A judge shall not sit as member of a court hearing an appeal from his or her own decision” R.S.O. 1990 c.C.43. This is court law; it is not an online advice column. Justice Fairburn as the Assistant Chief Justice of Ontario would be fully aware of this law. As a judge of the Court of Appeal for Ontario, Fairburn broke that law but with what intent in mind? How does she justify this? Can she claim judicial discretion? Can she claim that she was going to be impartial?
There may be some right-minded individuals who would question why had Justice Fairburn, an Assistant Chief Justice of Ontario, decide to hear our stay motion in breach of the Courts of Justice Act. Our application for leave to appeal to the Supreme Court was based on the grounds that the decision of the COA was completely absent of reasoning and the potential of apprehension of bias. Justice Fairburn wrote that decision as the lead judge of the COA panel who heard the appeal. A quote from another decision of the Court of Appeal for Ontario in 2000, Benedict v. Ontario 51 O.R. (3rd) 147, this decision was written by Justice Doherty of the Court of Appeal:
“It is a finding that must be carefully considered since it calls into question an element of judicial integrity. Indeed, an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice.”
As previously stated, a Motion for Stay of Costs has a three-part test which needs to be satisfied, and part one is an assessment of the Supreme Court leave application. Can a fair and right-minded individual think it possible that Justice Fairburn had a clear and definite self-interest in our stay motion?
Courts greatly rely on previous decisions made for guidance in their deliberations. Those case laws not only guide a judge but they also put into perspective the direction of the current law to ensure fairness and uniformity of decision making. Quoting from R. Bow Street Metropolitan Stipendiary Magistrate, ex p. Pinochet Ugarte (No.2) 1999 1 A11 E.R. 577 (H.L), Lord Browne-Wilkinson states under the heading – Apparent Bias:
“In my judgement, this case falls within the category of case, viz where the judge is disqualified because his is a judge in his own cause. In such a case, once it is shown that a judge is himself a party to the cause or has a relevant interest in its subject matter, he is disqualified without any investigation into whether there was a likelihood or suspicion of bias. The mere fact of his interest is sufficient to disqualify him unless he has made sufficient disclosure.”
Disclosure is a key component to all legal hearings before any court and it applies equally to all parties involved, including the judge presiding over the matter. This concept, this law of full disclosure ensures fairness in a hearing and eliminates so called justice by ambush. Fairburn made no disclosures of any kind, again as already stated she simply said she read all our filed material. Now here lies the secretive nature of the Court of Appeal for Ontario, no transcript is available of any proceeding. No public scrutiny is permitted at all. One can request an audio recording but you have to agree not to use it in any way at all other than supplement your own notes. This agreement carries the threat of a prison term if breached. So much for transparency and democracy.
The legal principle that no man should sit in judgement in his own cause is an accepted principle in any democratic jurisdiction in the world. It has found its origins in Latin from the seventeenth century: “nemo judex in causa sua debet esse.” In United States v. Morgan (1940) 313 US 409 at page 421, Mr. Justice Frankfurter (an assistant justice of the United States Supreme Court 1939-1962) states:
“In a wide range of other situations the impression may be received that an adjudicator is likely to be biased. A person ought not to participate or appear to participate to an appeal against his own decision, or act or appear to act as both prosecutor and judge: the general rule is that in such circumstances the decision will be set aside.”
This legal principle has been echoed through the House of Lords with references by Lord Browne-Wilkinson, Lord Denning and Lord Diplock. In Canada this most basic principle is endorsed by the Court of Appeal for Ontario in Benedict v. Ontario 2000. One question remains, what was the motivation behind Justice Michal Fairburn’s decision to hear our motion to stay costs?
Chief Justice of Ontario Strathy set out the test for stay of proceedings pending an application to the Supreme Court. In deciding this kind of motion, the court must consider the following factors: 1) whether there is a serious question to be determined on the proposed appeal; 2) whether the moving party will suffer irreparable harm if a stay is not granted; 3) whether the balance of convenience favours a stay. This test was set out by Strathy C.J.O. in Livent Inc. v. Deloitte & Touche, 2016 ONCA 395, 131 O.R. (3rd) 784, at paras, 4-5.
Further in Livent Inc. at para 7-8 it states, “Deciding whether there is a serious issue to be determined requires a preliminary assessment of the proposed merits of the appeal, as well as the proposed merits of the application for leave to appeal. The threshold at this stage is low.”
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| Justice Fairburn, ACJO, Court of Appeal decision, file: C68308.M52712 |
Justice Fairburn in her decision to dismiss our stay motion wrote, “First, there is no serious question to be determined on the proposed appeal to the Supreme Court.” Fairburn also refers to Livent Inc. quoting the three-part test.
Would any fair-minded individual see this statement from Fairburn agree that she had made an assessment and judgement of an appeal against her own previous decision? I repeat the Courts of Justice Act R.S.O. 1990, c.C 43 s.132; “A judge shall not sit as a member of a court hearing an appeal from his or her own decision.” Referring to Justice Michal Fairburn’s own words, would that same fair-minded individual find that Fairburn breached the Courts of Justice Act?
Does the law matter in Canada? Are judges permitted to do as they please and act as demi-gods for the halls of justice? A panel motion had been filed to strike Fairburn’s decision and it is to be heard on December 8th. This panel of three judges are of the Court of Appeal for Ontario, and Justice Fairburn is the Associate Chief Justice for Ontario. What is to be expected as a result?
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Part 1 - Self Represent, Self Destruct
Part 3 - Judicial Cloak of Protection
Part 4 - Supreme Court of Canada commits highest aberration of its own law
Part 5 - What is a Measure of a Judge
