The Canadian Judicial Council has announced an inquiry committee will be held under the Judges Act about Justice Frank Newbould of the Ontario Superior Court of Justice over complaints that he made comments and wrote letters on an ongoing land claim issue in Sauble Beach where his family has owned a cottage for 100 years.
According to a statement from Newbould’s lawyer Brian Gover of Stockwoods LLP, the Indigenous Bar Association filed a complaint with the CJC related to a proposed land claim settlement that was discussed in 2014 at a public meeting called by the Mayor of Sauble Beach.
The land claim was to part of Sauble Beach. At the meeting, comments about the proposed settlement were requested. Newbould’s family has a cottage in the area and has owned it for nearly 100 years. He spoke briefly at the meeting.
He also wrote a letter to the town council in his “personal capacity” about the issue. Feedback had been invited before the council was to formally consider the proposal.
Newbould was notified by the CJC of seven complaints that followed, questioning whether a judge who owns property that may be affected is entitled to comment on such issues.
The complaints were dismissed by the CJC including one from the Indigenous Bar Association in January 2015 on the basis that “no further measures need to be taken by the Council pursuant to its mandate under the Judges Act.”
“The Chairperson of the CJC’s Judicial Conduct Committee expressly found that it was not in the public interest to request additional information from the complainant, or to seek Justice Newbould’s comments and those of his chief justice. Nor did the Chairperson consider it to be in the public interest to refer the matter to a Review Panel,” according to the statement from Gover.
In June 2015, the IBA requested the CJC reconsider its decision.
“It has been the position of Justice Newbould that after the complaints were dismissed, the CJC has no jurisdiction to reconsider a closed complaint. However, yesterday, February 13, 2017, the CJC notified Justice Newbould of its Review Panel’s view that this power does exist and of its decision to constitute an Inquiry Committee. This was done despite the fact that Justice Newbould had previously notified the Minister of Justice of his retirement, effective June 1 of this year, for unrelated personal reasons.
“The situation raises an issue involving perception,” the statement says. “It is one for which Justice Newbould apologized in 2014 due to the perception caused by the fact he is a judge. Throughout the entirety of his distinguished judicial career, Justice Newbould has carried out his duties effectively and without bias.”
Newbould, team lead of the Commercial Court List in Toronto, is perhaps best known for overseeing the lengthy cross-border Nortel trial.
The decision to go ahead with the inquiry was made by a Judicial Conduct Review Panel of five members, which, in accordance with Council’s 2015 procedures, brought in additional transparency and public participation to the process. The panel was comprised of three members of Council, one puisne judge and one layperson.
Members of the panel reviewed allegations relating to the judge’s participation in the debate on the proposed settlement to a boundary dispute that was the subject of a land claim involving a First Nation in Ontario.
The CJC has confirmed the issue is related to a claim in Sauble Beach involving the Saugeen First Nation.
After review of the matter, the panel agreed that, if proven, the allegations surrounding the intervention of Newbould in the context of a court case could be so serious that they may warrant the judge’s removal from office.
Nuri Frame of Pape Salter Teillet LLP, a firm that represents the Saugeen First Nation, told Legal Feeds his client did not file the complaint against Newbould despite its “deep concern about his conduct” and that his involvement had “impaired its interest and impaired the ability of all parties to arrive at a successful resolution to the issue outside of trial.”
“It is my understanding that Justice Newbould participated in a community meeting in the fall of 2014 and that Justice Newbould subsequently wrote one and perhaps more than one letter to the municipal council up there with respect to Saugeen First Nation claim regarding Sauble Beach, which is obviously a litigation going back to the middle of the nineteenth century with respect to the improper delineation of where Saugeen’s reserve ends and the failure to recognize the entirety of Saugeen’s reserve pursuant to their treaty of 1854,” says Frame.
In its statement, the CJC noted that “it is important to note that all allegations regarding the judge have not been proven. The Inquiry Committee will have the responsibility of establishing the facts about this case and of presenting a report to the Council.”
In accordance with the CJC’s Inquiries and Investigations By-laws, the inquiry committee will be comprised of an uneven number of members, the majority of which will be council members. The Minister of Justice will be invited to designate one or more members of the Bar.