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Judges

Most of the judges dealt within this guide are judges of the Superior Court of Ontario, and those 'above' them in the Ontario Court of Appeal. These judges are appointed under s.96 of the Constitution Act. There are numerous other types of judges appointed under Ontario's Courts of Justice Act (family, criminal and small claims court), and under the Federal Court Act and Supreme Court of Canada Act.

. Nova Scotia (Attorney General) v. Judges of the Provincial Court and Family Court of Nova Scotia

In Nova Scotia (Attorney General) v. Judges of the Provincial Court and Family Court of Nova Scotia (SCC, 2020) the Supreme Court of Canada considered the court production of confidential Cabinet documents for purposes of a judicial review regarding judicial salaries, which is governed by a 'Bodner' review established in the sister case of British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia (SCC, 2020). The procedures for a Bodner review [stemming from the SCC case of Bodner v. Alberta, 2005 SCC 44] are set out here:
[28] Thus, the party seeking to have the confidential Cabinet document produced must first establish that there is some basis to believe that the document may contain evidence which tends to show that the government failed to meet one of the requirements described in Bodner, understood, as they must be, as building on Beauregard v. Canada, 1986 CanLII 24 (SCC), [1986] 2 S.C.R. 56, and the Provincial Judges Reference. Only then will the government be required to produce the document for judicial inspection. Having inspected the document, the reviewing court determines whether the document in fact provides some evidence which tends to show that the government failed to comply with a requirement described in Bodner. If the document provides such evidence, the court can order production as part of the record, subject to public interest immunity or any other applicable rule of evidence invoked by the government.
. British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia

In British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia (SCC, 2020) the Supreme Court of Canada considered the court production of confidential Cabinet documents for purposes of a judicial review over judicial salaries, which is governed by a 'Bodner' review:
[5] In its judicial independence case law, this Court has consistently sought to strike a balance between several competing constitutional considerations by establishing a unique process for setting judicial remuneration, backed up by a focused, yet robust form of judicial review described in Bodner v. Alberta, 2005 SCC 44, [2005] 2 S.C.R. 286.[1] In resolving this appeal, the rules of evidence and production must be applied in a manner that reflects the unique features of the limited review described in Bodner, and respects both judicial independence and the confidentiality of Cabinet decision making.

[6] For the reasons that follow, where a party seeking Bodner review requests that the government produce a document relating to Cabinet deliberations, it must first establish that there is some basis to believe that the document may contain evidence which tends to show that the government failed to meet one of the requirements described in Bodner. Only then would the government be required to produce the document for judicial inspection. If the document does in fact provide some evidence which tends to show that the government’s response does not comply with the constitutional requirements, the court can then determine whether its production is barred by public interest immunity or another rule of evidence invoked by the government.

....

[36] Building on the approach established by the Provincial Judges Reference, in Bodner, at para. 31, this Court set out a three‑part test for determining whether a government’s decision to depart from a commission’s recommendation meets the rationality standard:
(1) Has the government articulated a legitimate reason for departing from the commission’s recommendations?

(2) Do the government’s reasons rely upon a reasonable factual foundation? and

(3) Viewed globally, has the commission process been respected and have the purposes of the commission — preserving judicial independence and depoliticizing the setting of judicial remuneration — been achieved?
[37] Under the first two parts of the test, the focus is on the reasons given by government for departing from the commission’s recommendations: Bodner, at paras. 32‑33 and 36. The government “must respond to the [commission’s] recommendations” by “giv[ing] legitimate reasons for departing from or varying them”: paras. 23 and 24. The reasons must “show that the commission’s recommendations have been taken into account and must be based on [a reasonable factual foundation] and sound reasoning”: paras. 25 and 26. The reasons must also “articulat[e] the grounds for rejection or variation”, “reveal a consideration of the judicial office and an intention to deal with it appropriately”, “preclude any suggestion of attempting to manipulate the judiciary” and “reflect the underlying public interest in having a commission process, being the depoliticization of the remuneration process and the need to preserve judicial independence”: para. 25.

[38] The third part of the Bodner test looks to whether the government has respected the commission process and, more broadly, whether the purposes of that process have been achieved: paras. 30‑31, 38 and 43. This new part of the test was added by this Court in an effort to achieve the “unfulfilled” hopes this Court had in the Provincial Judges Reference of depoliticizing the process of setting judicial remuneration and thereby preserving judicial independence: paras. 10‑12 and 31. The third step in the Bodner test requires the court to take a global perspective and ask whether the government demonstrated respect for the judicial office by engaging meaningfully with the commission process: see paras. 25, 31 and 38.

[39] However, this addition in Bodner was not intended to transform the analysis into a probing review of the process through which the government developed its response, whether it took place within the executive, the legislature or both. As a result, I cannot agree with the Provincial Court Judges’ Association that references to the “totality” or “whole of the process” in Bodner, at para. 38, were meant to expand the scope of review such that the Cabinet decision‑making process must necessarily be scrutinized in every case.

[40] There is no doubt that the Provincial Judges Reference and Bodner require that the reviewing court focus on the government’s response. In Bodner itself, this Court looked at the Alberta, New Brunswick and Ontario governments’ responses to commission recommendations to determine whether the third part of the Bodner test had been met: paras. 83, 100 and 130‑31. That said, the third part of the Bodner test is not necessarily limited to consideration of the government’s public reasons.

[41] Moreover, this does not mean that the government can hide behind reasons that conceal an improper or colourable purpose. The Provincial Judges Reference and Bodner cannot be interpreted to mean that as long as the government’s public reasons are facially legitimate and appear grounded in a reasonable factual foundation, the government could provide reasons that were not given in good faith. Indeed, it is implicit in the third part of the Bodner test itself that, presented with evidence that the government’s response is rooted in an improper or colourable purpose and has accordingly fallen short of the constitutional benchmark set in this Court’s jurisprudence, the reviewing court cannot simply accept the government’s formal response without further inquiry.

[42] This is nothing new. In Beauregard, at p. 77, this Court made clear that “[i]f there were any hint that a federal law dealing with [the fixing of salaries and pensions of superior court judges] . . . was enacted for an improper or colourable purpose, or if there was discriminatory treatment of judges vis‑à‑vis other citizens, then serious issues relating to judicial independence would arise and the law might well be held ultra vires s. 100 of the Constitution Act, 1867” (emphasis added). This is true of all judges to whom the constitutional principle of judicial independence applies: see Provincial Judges Reference, at paras. 145 and 165.

[43] Considerations of legitimacy and respect for the process — and conversely, considerations of impropriety or colourability — permeate the entire Bodner analysis. Indeed, in Bodner, which concerned the remuneration of provincially‑appointed judges, this Court considered whether the reasons given by the Alberta, New Brunswick, Ontario and Quebec governments were “based on purely political considerations”, “reveal political or discriminatory motivations” or “evidence any improper purpose or intent to manipulate or influence the judiciary”: paras. 66, 96 and 159; see also paras. 68 and 123.

[44] Reasons that reveal an improper or colourable purpose would fail the first step of the Bodner test which requires that a government articulate a legitimate reason for departing from a commission’s recommendations. Similarly, in reviewing whether a government had relied on a reasonable factual foundation, this Court acknowledged the possibility that the government might also rely on “affidavits containing evidence of good faith and commitment to the process, such as information relating to the government’s study of the commission’s recommendations”: Bodner, at para. 36. Finally, a government’s conduct and the adequacy of its response are also directly engaged in the third part of the Bodner test, which looks to whether the government has respected the commission process and, more broadly, whether the purposes of that process have been achieved.

[45] Thus, even if a government’s public reasons appear to satisfy the requirements of Bodner, the government’s response remains subject to challenge on the basis that it is grounded in an improper or colourable purpose.

[46] In Bodner, this Court underscored that “[t]he limited nature of judicial review [of the government’s response] dictates the choice of remedies. The remedies must be consistent with the role of the reviewing court and the purpose of the commission process”: para. 42. In my view, the limited nature of Bodner review, the role of the reviewing court and the purpose of the process also have implications for the evidence considered by the reviewing court.

B. Evidence on Bodner Review

[47] The limited nature of Bodner review implies that the record for this type of review is narrower than it would be on ordinary judicial review. It also means that relevance must be assessed in relation to the specific issues that are the focus of the court’s inquiry on Bodner review: the legitimacy of the reasons given by government, the reasonableness of the factual foundation relied on by government, and the respect for the commission process by government such that the objectives of the process have been achieved. Further, since Bodner review tends to oppose two branches of the state, special considerations arise where the party seeking Bodner review requests the production of a confidential Cabinet document. As I detail below, those considerations require that the party seeking production establish that there is some basis to believe that the document may contain evidence which tends to show that the government failed to meet a requirement described in this Court’s jurisprudence, including Bodner. Only then will the reviewing court examine the document to determine whether it should be produced.
These considerations continue at paras. 73-87.

. British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia

In British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia (SCC, 2020) the Supreme Court of Canada canvasses basics of judicial independence:
[28] The constitutional principle of judicial independence flows from the recital in the preamble to the Constitution Act, 1867 that our country is to have a “Constitution similar in Principle to that of the United Kingdom”, ss. 96 to 101 of the Constitution Act, 1867, s. 11(d) of the Canadian Charter of Rights and Freedoms and s. 42(1)(d) of the Constitution Act, 1982: Beauregard v. Canada, 1986 CanLII 24 (SCC), [1986] 2 S.C.R. 56, at pp. 72‑73; Provincial Judges Reference, at paras. 84 and 105‑9; Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433, at para. 94; Conférence des juges de paix magistrats du Québec v. Quebec (Attorney General), 2016 SCC 39, [2016] 2 S.C.R. 116, at para. 31.

[29] These provisions and the broader principle of judicial independence serve not only to protect the separation of powers between the branches of the state and thus, the integrity of our constitutional structure, but also to promote public confidence in the administration of justice: Ell v. Alberta, 2003 SCC 35, [2003] 1 S.C.R. 857, at paras. 21‑23; Conférence des juges de paix magistrats, at para. 31. They are fundamental to the rule of law and to democracy in Canada.

[30] The overarching principle of judicial independence applies to all courts, whether of civil or criminal jurisdiction and whether their judges are appointed by federal, provincial or territorial authorities: Provincial Judges Reference, at para. 106; Ell, at paras. 21‑24; Conférence des juges de paix magistrats, at para. 32.

[31] The three core characteristics of judicial independence are security of tenure, financial security and administrative independence: Provincial Judges Reference, at para. 118. The characteristic at issue in this appeal — financial security — in turn has three components, “which all flow from the constitutional imperative that . . . the relationship between the judiciary and the other branches of government be depoliticized”: para. 131 (emphasis in original). First, absent a “dire and exceptional financial emergency precipitated by unusual circumstances”, a government cannot change judicial remuneration parameters without first seeking the recommendations of an independent body, a “commission”: paras. 133 and 137. (Government can, depending on the context, mean the executive, legislature or legislative assembly.) Second, judges cannot engage in negotiations with the government over remuneration: para. 134. Finally, judicial remuneration cannot fall below the basic minimum level required for the office of a judge: at para. 135.

[32] More specifically, this appeal concerns the first component of financial security: the convening of a judicial compensation commission to make recommendations concerning judicial remuneration. The commission charged with making such recommendations must be independent, effective and objective: Provincial Judges Reference, at para. 133.

[33] The effectiveness requirement means that the commission must be regularly convened, that no changes can be made to remuneration until the commission submits its report and that “the reports of the commission must have a meaningful effect on the determination of judicial salaries”: Provincial Judges Reference, at paras. 174‑75 and 179; see also Bodner, at para. 29.

[34] To ensure that the commission’s recommendations have a meaningful effect, the government must formally respond to the commission’s report: Provincial Judges Reference, at para. 179; Bodner, at para. 22. Because of the executive and legislature’s shared constitutional responsibility to make decisions about the expenditure of public money,[5] the commission’s recommendations are not binding (unless the legislature so provides). The government must, however, give specific reasons justifying any departure from the recommendations: Provincial Judges Reference, at para. 180; Bodner, at paras. 18 and 20‑21; Conférence des juges de paix magistrats, at para. 35.

[35] To hold a government to its constitutional obligations in jurisdictions where a commission’s recommendations are not binding, the government’s response to the commission’s recommendations is subject to what this Court described in Bodner as a “limited form of judicial review”: paras. 29 and 42. The standard of justification to uphold the government’s response is that of “rationality”: Provincial Judges Reference, at paras. 183‑84; Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13, [2002] 1 S.C.R. 405, at para. 57; Bodner, at para. 29. Both the standard of justification and the test used to measure the government’s response against that standard are “deferential”: Bodner, at paras. 30, 40 and 43. Both the fact that the government remains ultimately responsible for setting judicial compensation and the fact that the nature of a Bodner review is limited serve to balance the constitutional interests at stake.
. 4352238 Canada Inc. v. SNC-Lavalin Group Inc.

In 4352238 Canada Inc. v. SNC-Lavalin Group Inc. (Ont CA, 2020) the Court of Appeal considered it's own jurisdictional range respecting procedure. In this case a party lost an objection to the Court ordering a written hearing during the COVID crisis:
[4] It is well settled that this court’s implicit or ancillary jurisdiction to manage its own process is broad. This court has the jurisdiction to make any procedural order to prevent an abuse of process or to ensure the just and efficient administration of justice: see R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 58; R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at paras. 18, 19; Marché D'Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd., 2007 ONCA 695, 87 O.R. (3d) 660, at para. 24. The court’s implicit powers include those that are reasonably necessary to accomplish the court’s mandate and perform its intended functions: see R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, at para. 70. They arise by necessary implication even in the absence of express statutory or common law authority: see Cunningham, at para. 19; see also Pierre v. McRae, 2011 ONCA 187, 104 O.R. (3d) 321, at paras. 30-42.

[5] The exercise of the court’s jurisdiction to manage its own process by directing that some appeals proceed on the written record is not inconsistent with any provision of the Courts of Justice Act or the Rules of Civil Procedure, which, in any event, do not mandate the absolute right to an oral hearing of an appeal. The Courts of Justice Act prescribes the composition of the Court of Appeal, but not the mode of hearings. And, while oral hearings are contemplated, the Rules of Civil Procedure do not explicitly direct that appeals to the Court of Appeal require an oral hearing. Rather, r. 1.04(1) expresses the governing principle that the Rules “shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.”

[6] It is also beyond controversy that the COVID-19 pandemic has created extraordinary circumstances to which we must all adapt as best we can. Since March 17, 2020, there have been no in person appeals heard at the Court of Appeal. More than 100 scheduled appeals had to be adjourned. Through a series of Practice Directions, this court has endeavoured to address the tremendous disruption caused by the pandemic. As a result, appeals are being heard in writing or remotely until in person appeals can resume. Case management conferences are being held to manage and schedule them.

[7] Accordingly, it is well within this Court’s jurisdiction to order that a civil appeal be heard in writing when the due administration of justice requires it. During these extraordinary times, judicial resources are strained. The ability to hear appeals remotely is not unlimited. Where appropriate, some appeals must be heard in writing in order to ensure that appeals continue to be heard in a timely and an orderly fashion.
. R v Krouglov

In R v Krouglov (Ont CA, 2017) the Court of Appeal usefully reviews the doctrine of functus officio in the context of a consideration over error correction in a ruling:
[35] Both parties agree that the applicable principles are found in this court’s decision in R. v. Malicia (2006), 2006 CanLII 31804 (ON CA), 2006 CarswellOnt 5539, 216 O.A.C. 252, 36 M.V.R. (5th) 1, 270 D.L.R. (4th) 280, 211 C.C.C. (3d) 449, 82 O.R. (3d) 772 (Ont. C.A.). The functus officio doctrine does not prevent the correction of errors where no reconsideration of a judicial decision is required and where the court’s intention is manifest, such that the correction is consistent with that intention: Malicia, at paras. 26-31.

[36] In Malicia, MacPherson J.A. held that the test set out by Major J. in R. v. Burke, 2002 SCC 55 (CanLII), [2002] 2 S.C.R. 857 (S.C.C.), in which Major J. articulated a test for functus officio in the context of jury trials, should apply equally to judge alone criminal trials: Malicia, at paras. 25-26. In doing so, MacPherson J.A. expressly adopted the first step of Major J.’s test from Burke; namely, does the potential correction of an error involve reconsideration of the trial judge’s decision? If it does involve reconsideration, then the doctrine of functus officio prevents the correction after the indictment is signed. If it does not, then the correction can be made.

[37] MacPherson J.A. noted, at para. 27, the underlying policy rationale for allowing correction of errors that do not involve reconsideration of a judicial decision:
[T]he policy rationale enunciated in Burke for permitting correction of errors in jury cases – namely, the administration of justice would be brought into disrepute if a court were barred from correcting a recorded verdict where there is no perceptible injustice to the accused and no reasonable apprehension of bias – is precisely the same in judge alone criminal trials. A jury can make an error in recording a verdict; so can a judge. The law for permitting (and refusing to permit) corrections of errors should be, as much as possible, the same in both scenarios.
[38] In concurring reasons, Simmons J.A. agreed with the result in Malicia, and generally agreed with MacPherson J.A.’s analysis, but noted that Major J. in Burke included a second step in his test – a determination of whether the remedial jurisdiction to correct errors should be exercised: see Burke at para. 56. Simmons J.A. noted, at para. 46, that Major J. identified the driving consideration informing the test for exercising the remedial jurisdiction to be “the fear of a tainted or biased jury, or the appearance of unfairness”.

[39] While Simmons J.A. recognized, at para. 48, that in the context of judge alone trials, there is no realistic basis for concern that a judge will become influenced by outside contacts, she concluded that there may be other factors that could raise a reasonable apprehension of taint in a judge alone context. She cited, at para. 50, delay between the time of rendering the decision and the time of identifying an error as the type of circumstance that might be considered in the future. She further pointed to the fact that judges typically give reasons for their decisions as another factor that could influence whether the remedial jurisdiction to correct a verdict in criminal judge alone trial should be exercised.

[40] Similarly, in her concurring reasons, Cronk J.A. agreed with MacPherson J.A.’s general analysis that the test for permitting and refusing to permit error corrections should be the same in criminal judge alone and judge and jury trials. However, she also agreed with Simmons J.A. that different considerations may arise under the judge alone scenario, and that exercise of the curative authority for error correction will be precluded where the proposed correction, in reality, is “tantamount to a reconsideration of the verdict (or sentence)”, and “[…] where issues of unfairness or injustice to the accused or reasonable apprehension of bias arise.”: Malicia, at para. 61 [Emphasis added]. She stated, at para. 62, that factors such as the passage of time, or other factors might “so compromise the appearance or reality of trial fairness as to prevent correction of the error in the interests of justice.”



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