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Court File No.

T-1713-18

FEDERAL COURT
B E T W E E N:

THE HONOURABLE JUSTICE PATRICK SMITH

Applicant (Moving Party)

and

ATTORNEY GENERAL OF CANADA

Respondent (Respondent)

APPLICATION UNDER subsection 18.1(1) of the Federal Courts Act, R.S.C. 1985,
c. F-7, as amended.

NOTICE OF MOTION

TAKE NOTICE THAT THE APPLICANT will make a motion to the


Court on October 9, 2018, at 9:30 a.m. at the Federal Court, 180 Queen Street West,
Toronto, Ontario.

THE MOTION IS FOR an order:

1. Staying the decision of the Honourable Robert Pidgeon, Senior Associate


Chief Justice of the Québec Superior Court, in his capacity as Vice-Chairperson of
the Judicial Conduct Committee (“JCC”) of the Canadian Judicial Council
(“Council”), dated August 28, 2018, to constitute a Judicial Conduct Review Panel to
determine whether to constitute an Inquiry Committee to inquire into whether the
applicant should be removed from judicial office, (the “Referral Decision”) and ;

2. Costs of this motion;

3. Such further and other relief as counsel may advise and this Honourable
Court may deem just.
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THE GROUNDS FOR THE MOTION ARE:

1. The applicant, a judge of the Superior Court of Justice, agreed to accept the
position of Interim Dean (Academic) of the Lakehead University Bora Laskin Faculty
of Law (the “Faculty of Law”) effective June 1, 2018. The applicant accepted that
position with the support of his Chief Justice, Chief Justice Heather Forster Smith of
the Superior Court of Justice of Ontario, and of the federal Minister of Justice. Chief
Justice Smith granted the applicant a six-month leave of absence from his judicial
duties to permit him to assume the responsibilities of Interim Dean (Academic).

2. On April 16, 2018, the Interim President and Vice-Chancellor of Lakehead


University, Dr. Moira McPherson, reached out to the applicant on an urgent basis and
asked him to consider an appointment as Interim Dean at the Faculty of Law. Dr.
McPherson’s request came at a time of existential crisis for the fledgling Faculty of
Law. Its former dean, Angelique EagleWoman, had resigned in April 2018. She had
made public allegations of systemic racism at the University, and suggested that her
efforts had been “thwarted” by the University, which “systematically sought to
minimize” her work as dean. Given the Faculty of Law’s commitment to Indigenous
law as one of its three pillars, her allegations of systemic racism at the University
were deeply troubling, and bred significant distrust among students, faculty, and the
surrounding Indigenous community. The appointment was intended to commence
May 1, 2018, and would continue until the search for a permanent dean was
completed (or some other time as was mutually agreeable). Dr. McPherson
approached the applicant based in large part on his significant work with Indigenous
communities.

3. The applicant wrote to Chief Justice Smith to request her approval and that of
the Minister of Justice to accept a secondment to the Faculty of Law. Minister
Wilson-Raybould granted approval for the applicant’s proposed leave. Minister
Wilson-Raybould indicated that she had “no concerns” about the special leave. In
fact, the Minister indicated that in the event that a leave of more than six months was
required, she would consider further requests for additional leave.
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4. On April 30, 2018, Chief Justice Smith granted the applicant a leave of
absence from his judicial duties from June 1, 2018 to November 2018, pursuant to s.
54(1)(a) of the Judges Act. Chief Justice Smith expressed that the applicant’s role
would require clear parameters: he could not accept remuneration from the
University; his role was to be limited to academic leadership; and he was to delegate
administrative authority, including recruitment, financial decisions, and academic
appeals, to other members of the Faculty of Law.

A. The Council Considers the Applicant’s Appointment as Interim Dean


(Academic)

5. On May 9, 2018, the Council’s Chief Administrator, Norman Sabourin, wrote


to the applicant stating that his recent appointment as Interim Dean of the Faculty of
Law “may warrant consideration” by the Council. Mr. Sabourin did not identify a
complaint that was brought to the CJC’s attention. Rather, Mr. Sabourin’s decision
was based on media reports.

6. On May 11, 2018, Chief Justice Smith provided a response on the applicant’s
behalf to Mr. Sabourin’s May 9 letter. Chief Justice Smith provided Mr. Sabourin
with the background facts that led to the applicant’s appointment as Interim Dean,
with a view to addressing any concerns he might have had. She expressed her view
that the matter was thoroughly considered and approved, and that therefore any
further review by the Council was unwarranted.

7. Notwithstanding Chief Justice Smith’s letter, Mr. Sabourin referred the matter
to Chief Justice Pidgeon in his capacity as Vice-Chairperson of the JCC. On May 22,
2018, Mr. Sabourin wrote to the applicant conveying Chief Justice Pidgeon’s request
for comments from the applicant about the precise scope and nature of the duties he
intended to undertake at Lakehead University, and additional details about the
approval of a leave from his judicial duties. On May 24, 2018, the applicant provided
a focused response to Chief Justice Pidgeon’s questions.

8. On May 28, 2018, Chief Justice Smith wrote to Chief Justice Pidgeon to
reaffirm her full support for the applicant’s temporary appointment as Interim Dean
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of the Faculty of Law. She provided information about the Faculty of Law’s special
mandate of providing legal education in Northern Ontario with a view to enhancing
access to justice. She opined that the Council had an opportunity in this matter to take
concrete action to support a legal institution in crisis.

9. Chief Justice Smith sought a legal opinion on ss. 54 and 55 of the Judges Act
in the context of this matter to respond to Mr. Sabourin’s concerns, and she provided
a copy of the opinion to Chief Justice Pidgeon. The opinion she received was that
Chief Justice did not err or breach s. 55 of the Judges Act in granting the applicant
leave under s. 54, and it was not a breach of s. 55 for the applicant to take the leave,
provided his role was narrowly circumscribed and met certain conditions, which the
opinion enumerated.

10. On May 31, 3018, the applicant entered into a written agreement with
Lakehead University setting out the terms and conditions governing his assumption
of the role of Interim Dean (Academic) effective June 1, 2018. The terms of the
agreement were consistent with the conditions recommended in the legal opinion
obtained by the Chief Justice. The parties also agreed that the applicant would be
given a title reflecting his narrow, academic role: Interim Dean (Academic). On June
1, 2018, the applicant’s counsel advised Mr. Sabourin that the applicant and the
University had executed an agreement consistent with the legal opinion.

11. On July 12, 2018, Chief Justice Pidgeon wrote to the applicant to pose a
number of additional questions about his role as Interim Dean (Academic). On July
17, 2018, Justice Smith wrote to Chief Justice Pidgeon to provide a response to those
questions.

12. The applicant performed his duties in the role of Interim Dean (Academic)
pursuant to the agreement between him and the University over the summer of 2018
and into the start of the new school year, including the Faculty of Law’s orientation
week for new students.
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B. Chief Justice Pidgeon’s Referral Decision

13. The applicant received no further communication from the Council regarding
this matter until August 20, 2018, when Mr. Sabourin advised the applicant by
telephone that the Council intended to proceed with a formal review of whether it was
appropriate for him to continue to act as Interim Dean (Academic) of the Faculty of
Law. On August 28, 2018, Mr. Sabourin wrote to the applicant pursuant to s. 8.5 of
the Review Procedures, enclosing Chief Justice Pidgeon’s reasons for the Referral
Decision.

14. Upon receipt of Chief Justice Pidgeon’s reasons, Justice Smith took
immediate steps to resign from his role as Interim Dean (Academic) with the goal of
minimizing any possible disruption to the Faculty of Law or to the University.

15. In his reasons for the Referral Decision, Chief Justice Pidgeon identified the
question for the Council as “whether [the applicant’s] conduct in accepting an
appointment as Interim Dean of the Law Faculty potentially contravenes the Judges
Act or his ethical obligations as a member of the judiciary. The question is not
whether Chief Justice Heather Smith lawfully or reasonably exercised her discretion
under paragraph 54(1)(a) of the Judges Act.” He explained that Chief Justice Smith
and Minister Wilson-Raybould’s support of the applicant’s leave were merely factors
to weigh in assessing the nature and gravity of his conduct.

16. Chief Justice Pidgeon cited article 1(c) of the Council’s Ethical Principles for
Judges, which states: “Judges should avoid involvement in causes or organizations
that are likely to be engaged in litigation”. Chief Justice Pidgeon concluded that, in
his view, the applicant had erroneously weighed the inherent risks associated with
accepting the position of Interim Dean (Academic). The context surrounding the
departure of former Dean EagleWoman was inherently litigious and the subject of
public debate. Although the applicant’s role had been circumscribed, Chief Justice
Pidgeon found (that the role “goes beyond a purely ceremonial role” and is one of
leadership within the University, that takes him away from his judicial duties.

17. Chief Justice Pidgeon expressed his view that the applicant had engaged in
misconduct “by accepting a position as Interim Dean without considering the possible
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public controversy associated with the reaction from the chiefs of the First Nations
and without considering the political environment or the potential effect on the
prestige of judicial office.” He concluded therefore that the matter might be serious
enough to warrant the removal of the applicant from office, and referred the matter to
a Review Panel.

C. The Reconsideration Decision

18. After receiving the Referral Decision, the applicant made a request for
reconsideration. The request relied on a 2016 Council case in which Chief Justice
Pidgeon determined he had jurisdiction to reconsider an earlier decision to take no
further action regarding complaints against Justice Frank J.C. Newbould and to close
the file.The reconsideration request set out the errors in the Referral Decision and the
damaging impacts on the Faculty of Law and the applicant if this matter proceeds to a
Review Panel.

19. On September 19, 2018, Mr. Sabourin wrote to the applicant’s counsel and
advised, on Chief Justice Pidgeon’s behalf, that Chief Justice Pidgeon’s function in
this matter concluded at the time he issued his reasons for constituting a Review
Panel. Accordingly, Chief Justice Pidgeon determined that he may not reconsider his
decision to establish a Review Panel, since the Review Panel is now constituted.

20. On September 24, 2018, the Applicant filed an application for judicial review
of the Referral Decision and the Reconsideration Decision on the grounds that the
Referral Decision is unreasonable, and the Reconsideration Decision was a incorrect
or, alternatively, unreasonable failure by Chief Justice Pidgeon to exercise his
jurisdiction to reconsider the Referral Decision.

D. The Test for a Stay

21. The application for judicial review raises a serious issue to be decided. The
Referral decision is based on an unreasonable interpretation of s. 56 of the Judges Act
and is inconsistent both with prior precedent of sitting judges serving in law school
leadership roles and with a prior decision of the Council. Chief Justice Pidgeon’s
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reasons demonstrate a profound misunderstanding of the information he received


regarding the applicant’s narrow, limited role as Interim Dean (Academic). He failed
to consider relevant factors including (a) that the appointment was supported by Chief
Justice Smith and the Minister of Justice; (b) the applicant’s extensive experience in
Indigenous and Aboriginal law, (c) the applicant’s sincere motivation to protect the
Faculty of Law’s hard-won accreditation and reputation, and to meaningfully advance
its efforts at reconciliation with local Indigenous communities, and (d) that in
facilitating the appointment, the court had an opportunity to support the Faculty of
Law at a critical point in its existence. The reasons fail to appropriately consider the
impact of the Council’s actions both on the Faculty of Law and on the applicant
personally.

22. Further, the unreasonable Referral Decision ought to have been reconsidered
by Chief Justice Pidgeon. There is a serious issue to be decided in the judicial review
application as to whether Reconsideration Decision was an incorrect or, in the
alternative, unreasonable refusal to exercise jurisdiction. The Reconsideration
Decision is inconsistent with the Council’s previous decisions and a misinterpretation
of the powers of the Vice-Chairperson of the JCC under the By-Laws.

23. If this Court does not grant a stay, the Applicant will suffer irreparable harm.
The referral to a Review Panel and the potential for the Review Panel to constitute an
Inquiry Committee, resulting in the holding of a public hearing, will irreparably
impact the applicant’s livelihood and reputation. The striking of an Inquiry Panel will
subject to scrutiny on a national stage the applicant’s continued fitness to hold
judicial office on the basis of actions he took in a responsible and diligent manner,
selflessly and in accordance with the expectations Canadians have of those who hold
judicial office. He was motivated only by his desire to assist the Faculty of Law and
to promote legal education – particularly Indigenous legal education – in Canada, and
had the full support of his Chief Justice and the Minister of Justice

24. The balance of convenience favours granting a stay. The Applicant is the only
party with a direct interest affected by the Review Panel’s consideration of this matter
and potential Inquiry Committee proceedings. There is no complainant in this matter.
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The Applicant will suffer grave reputational and professional harm if the Referral
Decision is not stayed and the Review Panel proceeds with a review and potential
initiation of an inquiry process. On the other hand, the Respondent and the Council
will suffer no prejudice if the Review Panel’s review is stayed pending the outcome
of the judicial review on its merits. Further, it would be a waste of public resources to
permit the review to proceed, only to have the Federal Court find mid-way through
the proceedings that the review was not properly commenced because the Referral
Decision was unreasonable and the Reconsideration Decision was an improper failure
to exercise jurisdiction.

25. Section 18.2 of the Federal Courts Act, R.S.C. 1985, c. F-7;

26. Section 63 of the Judges Act, R.S.C. 1985, c. J-1;

27. Such further and other grounds as counsel may advise and this Court may
permit.

THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the


hearing of the motion:

1. The affidavit of Ephry Mudryk, sworn September 24, 2018, and the exhibits
thereto; and

2. Such further and other evidence as counsel may advise and this Court may permit.
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September 26, 2018 Brian Gover


STOCKWOODS LLP
Barristers
Toronto-Dominion Centre
TD North Tower, Box 140
77 King Street West, Suite 4130
Toronto ON M5K 1H1

Brian Gover (22734B)


Tel: 416-593-2489
briang@stockwoods.ca

Andrea Gonsalves (52532E)


Tel: 416-593-2491
andreag@stockwoods.ca

Tel: 416-593-7200
Fax: 416-593-9345

Lawyers for the Applicant

TO: ATTORNEY GENERAL OF CANADA


Department of Justice
Ontario Regional Office
Department of Justice Canada
120 Adelaide Street West, Suite #400
Toronto, Ontario M5H 1T1
Tel: 416-973-0942
Fax: 416-973-3004

Lawyers for the Respondent


Court File No.T-1713-18

FEDERAL COURT

BETWEEN:

THE HONOURABLE
JUSTICE PATRICK SMITH
Applicant

- and -

ATTORNEY GENERAL OF CANADA

Respondent

NOTICE OF MOTION

STOCKWOODS LLP
Barristers
Toronto-Dominion Centre
TD North Tower, Box 140
77 King Street West, Suite 4130
Toronto ON M5K 1H1

Brian Gover (22734B)


Tel: 416-593-2489
briang@stockwoods.ca

Andrea Gonsalves (52532E)


Tel: 416-593-3497
andreag@stockwoods.ca

Tel: 416-593-7200
Fax: 416-593-9345

Lawyers for the Applicant