Complaints not involving judge's misconduct do not warrant consideration by judicial council: court

The Federal Court recently underscored that the Canadian Judicial Council (CJC) has no authority to review judicial decisions and its mandate is limited only to investigations of alleged judicial misconduct.

In Bernard v. Canada (Attorney General), 2021 FC 1487, Elizabeth Bernard filed a complaint about an alleged unfair labour practice committed by her bargaining agent. The Federal Public Sector Labour Relations and Employment Board (FPSLREB) dismissed the complaint, so Bernard sought leave to commence an application for judicial review of the FPSLREB’s decision.

A judge of the Federal Court of Appeal refused to grant leave, noting that Bernard’s proposed application for judicial review was “doomed to fail.” Aggrieved, Bernard filed a complaint with the CJC. The Interim Executive Director of the CJC refused to consider her complaint upon finding that it did not raise an issue about the judge’s conduct, but instead concerned a judicial decision for which recourse was available only before the courts.

Under the Judges Act, the CJC is mandated to “investigate any complaint or allegation made in respect of a judge of a superior court” which could lead to a recommendation to the Minister of Justice that a judge be removed from office. Complaints which do not involve a judge’s misconduct do not warrant consideration by the CJC.

In this case, the CJC had determined that Bernard’s complaint do not involve conduct that could lead to a recommendation that the judge be removed from office. The Federal Court upheld the council’s decision, observing that it is consistent with prior jurisprudence involving allegations of judges’ failure to deal properly with evidence.

The court also emphasized that the CJC’s decision is owed deference because “the CJC has the expertise to distinguish between matters that constitute judicial decision-making, for which recourse is available only before the courts, and matters that threaten the integrity of the judiciary as a whole.”