ONTARIO JUDICIAL COUNCIL - PROCEDURES … · Web viewIf the complaint raises allegations of conduct about a judge who is presiding over a court proceeding, the Council will not generally

ONTARIO JUDICIAL COUNCIL

PROCEDURES DOCUMENT

Revised May 15, 2018

Table of Contents1. OVERVIEW________________________________________________________________5

Introduction______________________________________________________________________5

The Procedures that Govern the Complaint Process______________________________________6

Membership of the Judicial Council____________________________________________________6

The Complaint and Discipline Process__________________________________________________6

Interim Recommendation of Suspension with Pay or Reassignment to a Different Location______8

Holding a Hearing into a Complaint____________________________________________________8

Privacy and Confidentiality of the Complaint and Discipline Process_________________________9

2. DEFINITIONS______________________________________________________________11

Procedural Rules__________________________________________________________________11

3. INTERPRETATION__________________________________________________________12


4. COMPLAINTS – GENERAL____________________________________________________12

Legislative Provisions______________________________________________________________12


5. COMPLAINTS ABOUT THE CHIEF JUSTICE OR THE ASSOCIATE CHIEF JUSTICE OR THE REGIONAL SENIOR JUSTICE APPOINTED TO THE JUDICIAL COUNCIL______________________14


6. CONFIDENTIALITY OF THE COMPLAINT PROCESS_________________________________15


Procedural Rules re Confidentiality___________________________________________________17

7. Exceptions to the General Requirement of Confidentiality of Documents and Information_18


INVESTIGATIONS______________________________________________________________20


8. Investigations by Complaint Subcommittees____________________________________20


9. Judge’s Response to a Complaint_____________________________________________22


1

10. Interim Recommendation of Reassignment or Suspension with Pay_________________23



11. Report of the Complaint Subcommittee________________________________________25



12. Review Panels____________________________________________________________28



13. Review Panel’s Decision on the Appropriate Disposition__________________________29



14. Notice of the Decision to the Complainant and to the Judge_______________________32



HEARINGS____________________________________________________________________33


Statutory Powers Procedure Act_____________________________________________________33

Translation, Interpretation, and Bilingual Proceeding____________________________________33


15. Hearing Panels____________________________________________________________35



16. Independent Presenting Counsel_____________________________________________36



17. Legal Counsel for the Judge__________________________________________________37


18. Notice of Hearing__________________________________________________________37


19. Public Information about Hearing Proceedings__________________________________38

2



20. Exceptions to Fully Open Hearing — Criteria____________________________________40


21. Criteria for Disclosing Identity of the Judge when a Hearing is Private_______________41


22. Pre-Hearing Procedures_____________________________________________________41



Judge’s Response to the Notice of Hearing_____________________________________________41

Disclosure_______________________________________________________________________42

Pre-Hearing Conference____________________________________________________________42

Pre-Hearing Motions______________________________________________________________43

Agreed Statement of Facts__________________________________________________________43


23. Dispositions by the Hearing Panel____________________________________________45



COMPENSATION______________________________________________________________49

24. Recommending Compensation for Judges’ Legal Costs____________________________49



ORDER OF ACCOMMODATION___________________________________________________52

25. Disability Renders Judge Unable to Perform Essential Duties of Office_______________52


26. Application for Accommodation of Needs Arising from a Disability__________________53



CONTINUATION IN OFFICE_______________________________________________________58

27. Continuation in Office After Age 65___________________________________________58


3


REPORTS TO THE ATTORNEY GENERAL_____________________________________________60

28. Reports to the Attorney General______________________________________________60


MEETINGS___________________________________________________________________61

29. Meetings of the Judicial Council______________________________________________61



APPENDICES__________________________________________________________________62

APPENDIX A - Courts of Justice Act (Excerpt)___________________________________________63

APPENDIX B - Statutory Powers Procedure Act__________________________________________82

APPENDIX C - Protocol Regarding the Use of Electronic Communication Devices in the OJC Hearing Proceedings____________________________________________________________________108

APPENDIX D – Agreed Statement of Facts____________________________________________110

4

1. OVERVIEW

Introduction

There are two primary ways in which judges are held accountable in our justice system. Appellate review holds judges accountable for the quality of their legal reasoning and decisions, but it is equally important to hold judges accountable for their conduct. The conduct of a judge can affect public confidence in the individual judge, in the judiciary in general, and in the justice system itself.

In Ontario, the Courts of Justice Act1 establishes the Ontario Judicial Council as the body to receive and investigate complaints about the conduct of provincially appointed judges. Anyone who has concerns about a judge’s conduct and believes that the conduct needs to be investigated and addressed should direct their complaint to the Judicial Council. If an allegation of misconduct about a provincial judge is made to any other judge or to the Attorney General, they are obliged by law to refer the complainant to the Judicial Council.

The objective of the Judicial Council’s complaint process is to maintain public confidence in the judiciary and to restore that confidence when it is negatively affected by the conduct of a provincial judge.

Membership on the Judicial Council includes judges, lawyers and community members, bringing an understanding of the judicial role, the perspective of the legal community that appears before judges, and the views of members of the public to investigations and decisions made during the complaint process.

International precedents have recognized that confidentiality is important to promoting the effectiveness of judicial discipline bodies and the statutory schemes under which they operate. The confidential and private nature of the complaint process required by the Courts of Justice Act is intended to achieve a balance between the accountability of judges for their conduct and the constitutionally protected value of judicial independence. The legislation establishes a complaint process that is generally private and confidential in the stages of investigation and determination of the appropriate disposition. If a hearing is ordered, the process becomes public on the filing of the Notice of Hearing as an exhibit before a Hearing Panel, unless the Hearing Panel orders that there are exceptional circumstances to warrant a private hearing.

To inform the public of the complaints that are made to the Council, of the process to address them, and of the outcome in each case, the Council provides an Annual Report on its work. The law permits the Council to provide a summary of each case but requires that the identity of the complainant and the judge be kept confidential unless the Council has ordered a hearing into the complaint.

When a hearing is ordered, the public receives information about the hearing through the Council’s website and a notice published by the Council in the local newspaper.1 RSO 1990, c C.43.

5

The Procedures that Govern the Complaint Process

The procedures that govern the Judicial Council come from two main sources. The first is the Courts of Justice Act, which sets out the basic structure, membership and responsibilities of the Judicial Council and its subcommittees and panels. The Courts of Justice Act also requires the Judicial Council to establish its own public guidelines, criteria, and rules of procedure for many aspects of its work. These Rules of Procedure contain both the most relevant sections of the Courts of Justice Act which are set out at the beginning of each section of this document after the heading “Legislative Provisions”. The rules established by the Judicial Council appear in each section after the heading “Procedural Rules”. It is important to read the Rules in conjunction with the decisions of the Judicial Council, which are available on the Judicial Council’s website, to see how the Judicial Council has interpreted the Rules and the Courts of Justice Act in previous cases.

In exercising its functions, the Judicial Council is also guided by decisions of Ontario courts and the Supreme Court of Canada in cases that relate to judicial discipline and the independence of the judiciary. These cases are equally important to understanding the work of the Judicial Council and its procedures.

The Judicial Council does not have any authority to intervene in court proceedings that relate to a complaint, nor does it have the authority to change any decision by a judge. If a complainant would like to change a judge’s decision, he or she must pursue that remedy through the courts.

Membership of the Judicial Council

The members of the Judicial Council include the Chief Justice of Ontario and the Chief Justice of the Ontario Court of Justice (or their designates), other senior judges, members of the Law Society of Upper Canada, and four members of the public appointed by the Lieutenant Governor of Ontario on the recommendation of the Attorney General of Ontario. The public members of the Judicial Council are neither judges nor lawyers.

The Complaint and Discipline Process

The purpose of the judicial discipline process is not to punish a judge for his or her misconduct. Rather, the primary goal of the process is to preserve the integrity of, and public confidence in, the judiciary.2 Respect for judicial independence is also central to the process and procedures of the Judicial Council.

Any member of the public may make a written complaint to the Judicial Council, in English or French, about a provincial judge. The Registrar and other Judicial Council staff screen complaints only to ensure that they may fall within the Judicial Council’s jurisdiction. Every complaint that may contain an allegation about conduct is reviewed by a complaint subcommittee composed of two members of the Judicial Council, who serve on complaint subcommittees on a rotating basis. One member of each complaint subcommittee is a 2 Ruffo v Conseil de la magistrature, [1995] 4 SCR 267, 1995 CanLII 49 at paragraph 68.

6

judge and the other is a community member. Complaints about persons who are not provincial judges are referred by staff to the appropriate office or body. For example, complaints about federal judges are referred to the Canadian Judicial Council and complaints about lawyers are referred to the Law Society of Ontario. If the Council receives a request for help in relation to legal matters, staff explain the Council’s limited jurisdiction to the person making the request.

A complaint subcommittee investigates every complaint in private and may, as part of its investigation, invite the judge to respond to the allegations. At the end of its investigation, the complaint subcommittee may recommend to a four-person review panel that the complaint should be dismissed, referred to the Chief Justice of the Ontario Court of Justice, or referred to a formal hearing into the complaint. In the alternative, mediation may be recommended except where: there is a power imbalance between the complainant and the judge; there is a significant disparity between the complainant’s and the judge’s accounts of the events; there is an allegation of sexual misconduct, discrimination or harassment; or, the public interest requires a hearing of the complaint. The review panel consists of two other judges, a lawyer, and a community member.

The review panel considers the investigation and report of every complaint subcommittee in private. To strengthen public confidence in the process, the identity of the complainant and the judge and information that may identify them is redacted in the materials provided to the review panel. This contributes to an objective, neutral assessment .. The review panel may only be informed of the identity of the complainant or the judge if the complaint subcommittee is not unanimous in its recommendation, resulting in the complaint itself being referred to the review panel, rather than the subcommittee making a recommendation on the disposition of the complaint. The review panel is responsible for ensuring that the complaint subcommittee’s investigation was satisfactory and it may direct the subcommittee to further investigate the complaint. The review panel determines whether the complaint should be dismissed, referred to the Chief Justice of the Ontario Court of Justice, or ordered to a hearing. In this way, at least six members of the Council, including two community members, review and consider each complaint about judicial conduct.

The Statutory Powers Procedure Act3 does not apply to the activities of a complaint subcommittee or of a review panel (Appendix B).

Interim Recommendation of Suspension with Pay or Reassignment to a Different Location

As the body designated by statute to investigate and dispose of complaints about the conduct of provincial judges, pending the final disposition of a complaint, the Judicial Council has the primary responsibility for considering whether a judge who is the subject of a complaint should be suspended with pay or reassigned to a different location.

3 RSO 1990, c S.22.7

During the confidential investigation stage, a complaint subcommittee may recommend to the regional senior judge that the judge under investigation be suspended temporarily or reassigned to another location on an interim basis. The Judicial Council has established the following criteria, which a subcommittee must consider when deciding whether to recommend a temporary suspension or reassignment pending final disposition of the complaint:

a) whether the complaint arises out of a working relationship between the complainant and the judge and if so, whether the complainant and the judge both work at the same court location.

b) whether allowing the judge to continue to preside would likely bring the administration of justice into disrepute.;

c) whether the complaint is of sufficient seriousness that there are reasonable grounds for investigation by law enforcement agencies.

d) whether it is evident that the judge is suffering from a mental or physical impairment that cannot be remedied or reasonably accommodated.

Holding a Hearing into a Complaint

If the review panel believes that the complaint subcommittee’s report discloses conduct that has some basis in fact and upon which a hearing panel could make a finding of judicial misconduct, the review panel orders that a formal hearing be held. The Statutory Powers Procedure Act applies to the hearing process, with some exceptions.

The Judicial Council retains independent Presenting Counsel to prepare and present the case against the judge at a formal hearing before a hearing panel consisting of members of the Judicial Council. The judge may participate fully in the hearing and retain counsel to respond to the allegations.

Following the hearing, the hearing panel may dismiss the complaint or order a single sanction, or a combination of sanctions, against the judge. For example, for the least serious misconduct, the hearing panel may warn or reprimand the judge; for the most serious, the hearing panel may impose a suspension without pay or recommend to the Attorney General that the judge be removed from office. The Judicial Council does not have the direct authority to remove the judge, but only to recommend removal. The Attorney General then tables the recommendation in the legislature, and it is the Lieutenant Governor who orders removal of the judge, on the address of the legislature.

Privacy and Confidentiality of the Complaint and Discipline Process

The early stages of the complaint process prior to a hearing are entirely confidential. That confidentiality is required by statute and is intended to balance the accountability of judges for their conduct with their constitutionally protected judicial independence. There are

8

several reasons why confidentiality is important at the pre-hearing stages of a judicial complaint:

a) The disclosure of unsubstantiated complaints risks undermining the judge’s authority in carrying out his or her judicial functions.

b) Without the capacity to ensure some form of confidentiality, the ability of the Judicial Council to obtain full and frank disclosures may be compromised, making the investigation process less effective.

c) The judge who is the subject of the complaint may have legitimate privacy concerns.

d) There is an overriding need to protect judicial independence.4

Constitutional guarantees of judicial independence include security of tenure and the freedom to speak and deliver judgment free from external pressures and influences of any kind. A system of accountability for judicial conduct must provide for accountability while guarding against the risk of infringing the constitutional guarantees that apply to the judge who is the subject of a complaint.

Based on the statutory framework, the Judicial Council has ordered that any information or documents relating to a mediation or a Council meeting or hearing that was not held in public are confidential and shall not be disclosed or made public, unless the Council, a review panel, or a hearing panel orders otherwise.

The confidentiality order applies whether the information or documents are in the possession of the Judicial Council, the Attorney General, or any other person. The order of non-disclosure does not apply to information and/or documents that the Courts of Justice Act requires the Judicial Council to disclose or that have not been treated as confidential and were not prepared exclusively for the purposes of a mediation, Council meeting, or hearing. The confidentiality order includes documents such as complaint letters, correspondence between the Judicial Council and the complainant or the judge, reports from subcommittees, reports from the Chief Justice, and disposition letters. Nevertheless, the Judicial Council recognizes the right of a complainant to make his or her own complaint public.

In accordance with its understanding of the statutory framework set out in the Act, it is the policy of the Judicial Council that it will neither confirm nor deny whether a particular complaint has been made to it unless the Council, or a hearing panel, has ordered a public hearing into the complaint. If a judge asks whether a complaint in relation to his or her conduct exists, Council staff will confirm whether there is a complaint.

4 In the Matter of an Application Brought by the Toronto Star and the Criminal Lawyers’ Association (OJC, 2015).

9

The Judicial Council orders a hearing when the investigation of a complaint reveals that the complaint has a basis in fact that could result in a finding of judicial misconduct if the hearing panel were to believe those facts. Once that threshold has been met, the risk of harm to the judicial independence of the individual judge who is the subject of the complaint is outweighed by the need to preserve or restore public confidence in the judiciary in general. For this reason, once the Council has determined that a hearing is warranted, the hearing process is public and the “open courts” principle applies unless there are exceptional circumstances that require that all or part of the hearing be held in private.

If there are exceptional circumstances that justify holding all or part of a hearing in private, ordering a temporary publication ban, or protecting the identity of a complainant, the Hearing Panel may make such an order.

Making the discipline process public only at the hearing stage after a review panel has determined there is some evidence that could support a finding of judicial misconduct strikes the necessary balance between the competing values of transparency, accountability, judicial integrity, and the constitutional guarantee of judicial independence.

Once the Notice of Hearing has been filed and the complaints process has become public, information will be posted on the website about the hearing. In such circumstances, the policy objectives of the statutory framework of preserving confidence in the judiciary and in the administration of justice are best achieved by disclosing whether, pending the final disposition of the complaint, the judge has been suspended with pay or reassigned to a different location. At that stage, the fact that a judge has been suspended with pay or reassigned to a different location will be posted on the Council’s website.

10

2.DEFINITIONS

Procedural Rules

2.1 In these Rules of Procedure,

a) “accommodation subcommittee” means a subcommittee established to determine an application made under section 45(1) of the Courts of Justice Act and consisting of one judge and one community member of the Judicial Council;

b) “Act” means the Courts of Justice Act, R.S.O. 1990, c. C. 43, as amended;

c) “complaint subcommittee” means a subcommittee established to review a complaint pursuant to section 51.4(1) of the Courts of Justice Act and consisting of a provincial judge other than the Chief Justice and a person who is neither a judge nor a lawyer;

d) “Hearing Panel” means a panel established to conduct a hearing pursuant to subsection 49(16) of the Courts of Justice Act. Half of the members of a Hearing Panel are judges and half are not judges. The members on a panel include the Chief Justice of Ontario or another judge of the Court of Appeal designated by the Chief Justice, and at least one person who is neither a judge nor a lawyer;

e) “judge” means a judge of the Ontario Court of Justice unless otherwise indicated.

f) “Presenting Counsel” means counsel engaged on behalf of the Judicial Council to prepare and present the case against a judge who is the subject of a hearing into a complaint;

g) “provincial judge” means a judge appointed by the Lieutenant Governor in Council pursuant to section 42 of the Courts of Justice Act;

h) “review panel” means a panel established pursuant to section 49(14) of the Courts of Justice Act and consisting of two provincial judges other than the Chief Justice, a lawyer, and a person who is neither a judge nor a lawyer;

i) “subject judge” means the judge who is the subject of a particular complaint.

11

2.2 All other words in these Rules of Procedure shall, unless the context otherwise indicates, bear the meanings ascribed to them by the Courts of Justice Act, as amended.

3. INTERPRETATION

Procedural Rules

3.1 The Courts of Justice Act (Appendix A) sets out the statutory framework that governs the complaint process. Relevant statutory provisions are included at the start of each section of this document, followed by the rules that the Judicial Council has established under Section 51.1(1) of the Act. The Judicial Council’s rules are indicated by the heading “Procedural Rules”.

3.2 Where matters are not provided for in these Rules of Procedure, the practice shall be determined by analogy to them.

3.3 Where these Rules of Procedure refer to a section of a statute, the reference is to the corresponding provision in the Courts of Justice Act unless a different statute is specified.

3.4 Where these Rules of Procedure specify the number of days within which something is to be done, the passage of time shall be calculated as the number of calendar days.

3.5 These Rules of Procedure shall be interpreted in a manner consistent with the Judicial Council’s objective of preserving and restoring public confidence in the judiciary in general, rather than in any particular judge who may be the subject of a complaint.

3.6 These Rules of Procedure shall be interpreted in a manner that balances the need for judicial independence with the need for judicial accountability.

4.COMPLAINTS – GENERAL

Legislative Provisions

Any person may make a complaint to the Judicial Council alleging misconduct by a provincial judge.

s. 51.3(1)

12

Complaints against provincial judges may be made in English or French.

s. 51.2(2)

Once a complaint has been made to the Judicial Council, the Council has carriage of the matter.

s. 51.3(4)

If an allegation of misconduct against a provincial judge is made to a member of the Judicial Council, it shall be treated as a complaint made to the Judicial Council.

s. 51.3(2)

If an allegation of misconduct against a provincial judge is made to any other judge or to the Attorney General, the other judge, or the Attorney General, as the case may be, shall provide the person making the allegation with information about the Judicial Council’s role in the justice system and about how a complaint may be made, and shall refer the person to the Judicial Council.

s. 51.3(3)

Procedural Rules

4.1 Complaints to the Judicial Council shall be made in writing.

4.2 The Judicial Council does not have the authority under the Act to investigate anonymous complaints.

4.3 The Judicial Council has no jurisdiction to allow the withdrawal of a complaint.

4.4 The Judicial Council does not have the legal authority to change any decision of a judicial officer.

4.5 If a complaint raises allegations of conduct arising from a court proceeding over which the subject judge is presiding, the Registrar shall advise the complainant that the Judicial Council does not generally investigate such complaints until the court proceeding and any appeal thereof, or other related legal proceedings, have been completed. This approach prevents the Judicial Council’s investigation from interfering with, or from being perceived as interfering with, any ongoing proceedings.

13

4.6 The Judicial Council does not have jurisdiction over a judge who has ceased to hold office.

4.7 If the Judicial Council loses jurisdiction over a complaint, the Registrar shall inform the complainant that the subject of the complaint is no longer a judge and that the Judicial Council no longer has jurisdiction to continue with the complaint process.

4.8 If a complaint does not contain allegations about the conduct of a provincial judge, the Registrar shall inform the complainant in writing,

a) that the complaint does not appear to make allegations regarding the judge’s conduct;

b) that the Judicial Council’s jurisdiction is limited to the investigation and review of complaints about judicial conduct; and

c) that if the complainant disagrees with the judge’s interpretation or application of the law, the complainant should seek an appropriate remedy through the courts, for example, by way of an appeal.

4.9 If a complaint relates to a participant in the justice system other than a provincial judge, staff of the Office of the Judicial Council shall refer the complainant to the appropriate agency or office where the complainant’s concerns may be pursued.

4.10 Complaints about a judge’s interpretation or application of section 136 of the Courts of Justice Act, which sets out the prohibition against recording in the courtroom, or of the Protocol Regarding the Use of Electronic Communication Devices in Court Proceedings (Appendix C) are not, in and of themselves, complaints about conduct.

5. COMPLAINTS ABOUT THE CHIEF JUSTICE OR THE ASSOCIATE CHIEF JUSTICE OR THE REGIONAL SENIOR JUSTICE APPOINTED TO THE JUDICIAL COUNCIL


If the Chief Justice of the Ontario Court of Justice is the subject of a complaint,

a) the Chief Justice of Ontario shall appoint another judge of the Ontario Court of Justice to be a member of the Judicial Council instead of the Chief Justice of the Ontario Court of Justice, until the complaint is finally disposed of;

b) the Associate Chief Justice of the Ontario Court of Justice shall chair meetings and hearings of the Council instead of the Chief Justice of the Ontario Court of Justice,

14

and make appointments under subsection 49 (3) instead of the Chief Justice, until the complaint is finally disposed of; and

c) any reference of the complaint that would otherwise be made to the Chief Justice of the Ontario Court of Justice under clause 51.4 (13) (b) or 51.4 (18) (c), subclause 51.5 (8) (b) (ii) or clause 51.5 (10) (b) shall be made to the Chief Justice of the Superior Court of Justice instead of to the Chief Justice of the Ontario Court of Justice.

s. 50(1)

If the Associate Chief Justice of the Ontario Court of Justice or the regional senior judge appointed under clause 49 (2) (c) is the subject of a complaint, the Chief Justice of the Ontario Court of Justice shall appoint another judge of the Ontario Court of Justice to be a member of the Judicial Council instead of the Associate Chief Justice or regional senior judge, as the case may be, until the complaint is finally disposed of.

s. 50(3)

6.CONFIDENTIALITY OF THE COMPLAINT PROCESS


At any person’s request, the Judicial Council may confirm or deny that a particular complaint has been made to it.

s. 51.3(5)

Complaint Subcommittee Stage

The investigation shall be conducted in private.

s. 51.4(6)

The Statutory Powers Procedure Act does not apply to the subcommittee’s activities.

s. 51.4 (7)

The subcommittee shall report to the Judicial Council, without identifying the complainant or the judge who is the subject of the complaint, its disposition of any complaint that is dismissed or referred to the Chief Justice or to a mediator.

s. 51.4(16)

15

16

Review Panel Stage

The Judicial Council shall consider the report, in private, and may approve the subcommittee’s disposition or may require the subcommittee to refer the complaint to the Council.

s. 51.4(17)

The Statutory Powers Procedure Act does not apply to the Judicial Council’s activities under subsections (17) and (18).

s. 51.4(19)

Order of Confidentiality

The Judicial Council or a subcommittee may order that any information or documents relating to a mediation or a Council meeting or hearing that was not held in public are confidential and shall not be disclosed or made public.

s. 49(24)

Subsection (24) applies whether the information or documents are in the possession of the Judicial Council, the Attorney General or any other person.

s. 49(25)

Subsection (24) does not apply to information and documents,

a) that this Act requires the Judicial Council to disclose; or

b) that have not been treated as confidential and were not prepared exclusively for the purposes of the mediation or Council meeting or hearing.

s. 49(26)

Exemption from Freedom of Information and Protection of Privacy Act

This Act does not apply to a record of the Ontario Judicial Council, whether in the possession of the Judicial Council or of the Attorney General, if any of the following conditions apply:

1. The Judicial Council or its complaint subcommittee has ordered that the record or information in the record not be disclosed or made public.

17

2. The Judicial Council has otherwise determined that the record is confidential.

3. The record was prepared in connection with a meeting or hearing of the Judicial Council that was not open to the public.

Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, s. 65(5)

Procedural Rules re Confidentiality

6.1 The investigation stage and the consideration of the complaint by the review panel shall be conducted in private and are confidential. If a review panel has ordered a hearing, on the filing of the Notice of Hearing as an exhibit before a Hearing Panel, the hearing becomes public, unless there are exceptional circumstances and a Hearing Panel orders otherwise.

6.2 If any person, other than a judge asking about a complaint in relation to that judge’s own conduct, asks whether a particular complaint has been made, the Judicial Council shall neither confirm nor deny that a complaint has been made to it, notwithstanding the wording of s. 51.3(5). The Judicial Council has determined that in accordance with the statutory framework set out in the Courts of Justice Act, the complaint process is confidential. If it is determined that a hearing is warranted, the hearing process, by contrast, is public on the filing of the Notice of Hearing, unless a Hearing Panel has ordered that there are exceptional circumstances that require that all or part of the hearing be held in private.

6.3 If a provincial judge asks whether a complaint has been made in relation to that judge’s own conduct, the Registrar or his or her delegate shall confirm whether a complaint has been made about the judge and provide the judge with a copy of the Judicial Council’s procedures. However, in order to preserve the confidentiality of the investigation required by the Act and ensure the effectiveness of the investigation process, the judge shall not be provided with a copy of the complaint.

6.4 The Judicial Council has ordered that, subject to an order by the Council, a review panel or a Hearing Panel, any information or documents relating to a mediation or a Council meeting or hearing that was not held in public are confidential and shall not be disclosed or made public.5 The order applies whether the information or

5 For more information about the order of confidentiality, see In the Matter of the Application Brought by the Toronto Star and the Criminal Lawyers’ Association (OJC, 2014) posted on the OJC’s website under the link “Confidentiality”

18

documents are in the possession of the Judicial Council, the Attorney General, or any other person, but does not apply to information and/or documents,

a) that the Courts of Justice Act requires the Judicial Council to disclose; or

b) that have not been treated as confidential and were not prepared exclusively for the purposes of the mediation or Council meeting or hearing.

6.5 Documents reviewed by a complaint subcommittee, review panel, or the Judicial Council, as applicable, including complaint letters, complaint subcommittee reports, judges’ responses to complaints, and the Chief Justice’s reports to a review panel, are presumed to be confidential and may not be disclosed or made public at any stage of the complaint process prior to the filing of a Notice of Hearing before a Hearing Panel.

7.Exceptions to the General Requirement of Confidentiality of Documents and Information

Procedural Rules

7.1 The Judicial Council may release letters from a complainant, and/or a disposition letter, and/or any related voicemails,

a) to the local police and/or the Justice Sector Security Office, if the communication itself could constitute a criminal offence and those documents or audio recordings may be relevant to determining whether there is a need for action to prevent harm to a person; or

b) for use in any criminal trial that results from the actions or comments of a complainant that are related to the complaint or the disposition of the complaint.

7.2 If a complainant brings a civil action against the Judicial Council or its staff, the Judicial Council may release any letters from the complainant and/or any disposition letter to a lawyer retained on behalf of the Judicial Council to defend the Judicial Council in the action. So long as it is in accordance with the Judicial Council’s instructions, the lawyer retained by the Judicial Council may use the letters in whatever way the lawyer deems advisable in the course of litigation.

19

7.3 Nothing in these Rules of Procedure shall prevent a complainant from making his or her own complaint letter public. The Judicial Council recognizes a complainant’s right to make his or her own complaint public.

7.4 If,

a) a judge has been suspended with pay or reassigned to a different location under s. 51.4 pending final disposition of the complaint; and

b) the Notice of Hearing has been filed as an Exhibit in a hearing and the complaint process has become public,

the policy objectives of the statutory framework of preserving confidence in the judiciary and in the administration of justice are best achieved by disclosing that the judge has been suspended with pay or reassigned to a different location. Once the Notice of Hearing has been filed and the complaints process has become public, it shall be disclosed, subject to orders of the hearing panel, that the judge has been suspended with pay or reassigned to a different location as a result of an interim recommendation under s. 51.4(8), by placing that information on the Council’s website.

20

INVESTIGATIONS


8. Investigations by Complaint Subcommittees

A complaint received by the Judicial Council shall be reviewed by a subcommittee of the Council consisting of a provincial judge other than the Chief Justice and a person who is neither a judge nor a lawyer.

s. 51.4(1)

The eligible members of the Judicial Council shall all serve on the subcommittee on a rotating basis.

s. 51.4(2)

The subcommittee may engage persons, including counsel, to assist it in its investigation.

s. 51.4(5)

The subcommittee shall dismiss the complaint without further investigation if, in the subcommittee’s opinion, it falls outside the Judicial Council’s jurisdiction or is frivolous or an abuse of process.

s. 51.4(3)

If the complaint is not dismissed under subsection (3), the subcommittee shall conduct such investigation as it considers appropriate.

s. 51.4(4)

The Statutory Powers Procedure Act does not apply to the subcommittee’s activities.

s. 51.4(7)

21

Procedural Rules

8.1 The members of a complaint subcommittee shall review the file and materials, if any, and discuss same with each other prior to determining the substance of the complaint and prior to deciding what investigatory steps should be taken.

8.2 A complaint subcommittee may consult with a review panel to seek its input and guidance during the investigative stages of the complaint process.

8.3 If the Judicial Council receives a new complaint about a judge who is already the subject of an open complaint file, and the new complaint is similar in nature to an outstanding complaint about that judge, the Registrar may assign the new complaint to the same complaint subcommittee that is investigating the earlier outstanding complaint.

8.4 Every complaint subcommittee shall expeditiously investigate and dispose of the complaint files for which it is responsible.

8.5 Neither member of a complaint subcommittee may take any action in relation to their investigation of a complaint without having obtained the agreement of the other member after a discussion between them of the merits of the action proposed.

8.6 If the members of a complaint subcommittee cannot agree whether a particular action should be taken in relation to its investigation of a complaint, the complaint subcommittee shall refer the matter to a review panel. The review panel assumes carriage of the matter.

8.7 The complaint subcommittee will examine the complaint, as well as such materials as it considers appropriate, which may include transcripts, audio recordings, and documents from the court file. The Registrar or his or her delegate shall, on behalf of a complaint subcommittee obtain such information or materials as the subcommittee determines to be appropriate in the course of its investigation.

8.8 If a transcript is ordered, court reporters shall be instructed by the Registrar or his or her delegate not to submit the transcript to the subject judge for editing.

8.9 If a complaint subcommittee decides to retain independent counsel to provide legal advice and/or to assist in its investigation by interviewing witnesses or obtaining documents, the Registrar shall retain counsel on its behalf and communicate the subcommittee’s instructions to counsel.

22

8.10 The judicial discipline process is remedial. The Registrar shall bring to the attention of every complaint subcommittee any previous complaint and disposition history that the subject judge has had with the Judicial Council and make available to the complaint subcommittee any materials from previous complaint files that the complaint subcommittee may request.

23

9. Judge’s Response to a Complaint

Procedural Rules

9.1 When a complaint subcommittee chooses, as part of its investigation, to invite a response from the subject judge, the Registrar shall, in accordance with the instructions of the complaint subcommittee, communicate that invitation to the subject judge in writing along with any particular concerns that the complaint subcommittee wishes to express.

9.2 As part of any invitation to respond to a complaint, the Registrar shall provide to the judge a copy of the materials under consideration by the subcommittee, including a copy of the complaint and all relevant materials, including transcripts, from the complaint file.

9.3 The judge is provided with 30 days from the date of the letter to respond to the complaint. The judge is not obliged to provide a response. If he or she does provide a response, the subcommittee shall review and consider the response in the course of its investigation.

9.4 If a judge requires an extension of time to respond, he or she, or counsel, must make the request in writing through the Registrar, providing brief reasons. The complaint subcommittee may grant such extension as it considers appropriate for the judge’s response.

9.5 If the judge’s response is not received within 30 days or the extended deadline, if any, the Registrar or his or her delegate shall,

a) advise the complaint subcommittee that the judge has not responded; and

b) send a reminder letter to the judge by registered mail.

9.6 If the judge’s response is not received within 10 days of the date of the reminder letter, and the complaint subcommittee is satisfied that the judge is aware of the complaint and has received disclosure of the complaint, the complaint subcommittee shall proceed with determining its recommendation to the review panel of the appropriate disposition, notwithstanding that the judge has not responded.

9.7 If a judge provides a response to the complaint, the response shall be considered for any purpose in connection with,

24

a) the disposition of the complaint under section 51.4(13) by the complaint subcommittee;

b) the disposition of the complaint under section 51.4(18) by the Judicial Council or a review panel thereof; and

c) the disposition of the complaint under section 51.6 by the Judicial Council, following a hearing.

10. Interim Recommendation of Reassignment or Suspension with Pay


The subcommittee may recommend to a regional senior judge the suspension, with pay, of the judge who is the subject of the complaint, or the judge’s reassignment to a different location, until the complaint is finally disposed of.

s. 51.4(8)

The recommendation shall be made to the regional senior judge appointed for the region to which the judge is assigned, unless that regional senior judge is a member of the Judicial Council, in which case the recommendation shall be made to another regional senior judge.

s. 51.4(9)

The regional senior judge may suspend or reassign the judge as the subcommittee recommends.

s. 51.4(10)

The regional senior judge’s discretion to accept or reject the subcommittee’s recommendation is not subject to the direction and supervision of the Chief Justice.

s. 51.4(11)

If the complaint is against the Chief Justice of the Ontario Court of Justice, an associate chief justice of the Ontario Court of Justice or the regional senior judge who is a member of the Judicial Council, any recommendation under subsection (8) in connection with the complaint shall be made to the Chief Justice of the Superior Court of Justice, who may suspend or reassign the judge as the subcommittee recommends.

25

s. 51.4(12)

Procedural Rules

10.1 As the body designated by the Courts of Justice Act to investigate and determine the appropriate disposition of complaints about the conduct of provincial judges, pending the final disposition of a complaint, the Judicial Council has the primary responsibility for considering whether a judge who is the subject of a complaint should be suspended with pay or reassigned to a different location.

10.2 When deciding whether to recommend the temporary suspension or reassignment of a judge pending the final disposition of a complaint, a complaint subcommittee shall consider,

a) whether the complaint arises out of a working relationship between the complainant and the judge and if so, whether the complainant and the judge both work at the same court location;

b) whether allowing the judge to continue to preside would likely bring the administration of justice into disrepute;

c) whether the complaint is of sufficient seriousness that there are reasonable grounds for investigation by law enforcement agencies;

d) whether it is evident that the judge is suffering from a mental or physical impairment that cannot be remedied or reasonably accommodated.

10.3 If a complaint subcommittee proposes to recommend temporarily suspending or reassigning a judge, it may give the judge an opportunity to be heard on that issue in writing. If the subcommittee invites a response on the question of whether or not it should make an interim recommendation, the Registrar, on behalf of the subcommittee, shall inform the judge of the applicable criterion or criteria in Rule 10.2 on which the subcommittee intends to rely.

10.4 The complaint subcommittee shall deliver its invitation to respond to a proposed temporary suspension or reassignment by courier.

10.5 If a judge requires an extension of time to respond, he or she, or counsel, must make the request in writing through the Registrar, providing brief reasons. The complaint subcommittee may grant such extension as it considers appropriate for the judge’s response.

26

10.6 f the judge does not respond within 10 days from the date of mailing, or the extended deadline, if any, the complaint subcommittee may proceed with its recommendation for a temporary suspension or reassignment.

10.7 If a complaint subcommittee recommends a temporary suspension or reassignment pending the final disposition of the complaint, particulars of the applicable criteria in Rule 10.2 on which the complaint subcommittee's recommendation is based shall be provided contemporaneously to the regional senior judge and the subject judge to assist the regional senior judge in making his or her decision and to provide the subject judge with notice of the complaint subcommittee's recommendation and the reasons therefor.

11. Report of the Complaint Subcommittee


When its investigation is complete, the subcommittee shall,

a) dismiss the complaint;

b) refer the complaint to the Chief Justice;

c) refer the complaint to a mediator in accordance with section 51.5; or

d) refer the complaint to the Judicial Council, with or without recommending that it hold a hearing under section 51.6.

s. 51.4(13)

The subcommittee may dismiss the complaint or refer it to the Chief Justice or to a mediator only if both members agree; otherwise, the complaint shall be referred to the Judicial Council.

s. 51.4(14)

The subcommittee may, if the judge who is the subject of the complaint agrees, impose conditions on a decision to refer the complaint to the Chief Justice.

s. 51.4(15)

The subcommittee shall report to the Judicial Council, without identifying the complainant or the judge who is the subject of the complaint, its disposition of any complaint that is dismissed or referred to the Chief Justice or to a mediator.

s. 51.4(16) 27

If the Chief Justice of the Ontario Court of Justice is suspended under subsection 51.4 (12),

a) complaints that would otherwise be referred to the Chief Justice of the Ontario Court of Justice under clauses 51.4 (13) (b) and 51.4 (18) (c), subclause 51.5 (8) (b) (ii) and clause 51.5 (10) (b) shall be referred to the Associate Chief Justice of the Ontario Court of Justice, until the complaint is finally disposed of; and

b) annual approvals that would otherwise be granted or refused by the Chief Justice of the Ontario Court of Justice shall be granted or refused by the Associate Chief Justice of the Ontario Court of Justice, until the complaint is finally disposed of.

s. 50(2)

Procedural Rules

11.1 Although the Act confers on a complaint subcommittee the power to directly dismiss a complaint or refer the complaint to mediation or to the Chief Justice, it is the policy of the Judicial Council that a complaint subcommittee shall refer a complaint to a review panel whenever possible to ensure that every complaint is investigated and reviewed thoroughly.

11.2 If, after reviewing the complaint, the complaint subcommittee concludes that the complaint,

a) falls outside the Judicial Council's jurisdiction;

b) is frivolous; or

c) is an abuse of process,

the complaint subcommittee shall recommend dismissal of the complaint.

11.3 If, after investigating the complaint, the complaint subcommittee concludes that there is insufficient evidence to support a finding of judicial misconduct, the complaint subcommittee may recommend dismissal of the complaint.

11.4 If, after investigating the complaint, the complaint subcommittee concludes that,

a) referring the complaint to the Chief Justice of the Ontario Court of Justice is a suitable means of informing the judge that the judge’s conduct was not appropriate in the circumstances that led to the complaint;

28

b) the conduct complained of does not warrant another disposition; and

c) there is some merit to the complaint,

the complaint subcommittee shall recommend to the review panel that the complaint be referred to the Chief Justice of the Ontario Court of Justice.

11.5 If a complaint subcommittee decides to refer the complaint to the Chief Justice of the Ontario Court of Justice and the complaint subcommittee concludes that there is some course of action or remedial training of which the subject judge could take advantage, the complaint subcommittee shall recommend imposing such conditions on the referral, although the complaint subcommittee may not impose such conditions without the subject judge’s consent.

11.6 If, after investigating the complaint, a complaint subcommittee concludes that the complaint alleges judicial misconduct that,

a) has a basis in fact; and

b) could result in a finding of judicial misconduct if such facts are accepted by the Hearing Panel,

the complaint subcommittee shall recommend to a review panel that a hearing be held.

11.7 A complaint subcommittee must be unanimous in its decision to recommend dismissal of a complaint, referral of the complaint to the Chief Justice of the Ontario Court of Justice, referral of the complaint to a mediator, or referral of the complaint to a hearing. If the members of a complaint subcommittee cannot agree on the disposition of the complaint, the complaint subcommittee shall refer the matter to a review panel. The review panel assumes carriage of the matter.

11.8 If a complaint subcommittee refers a complaint to a review panel, the complaint subcommittee shall forward to the review panel all documents, transcripts, statements, and other evidence that it considered in reviewing the complaint, including the response of the subject judge, if the judge provided a response.

11.9 If a complaint subcommittee recommends holding a hearing into the complaint, the complaint subcommittee may also recommend that the hearing be held in private. If such recommendation is made, the criteria established by the Judicial Council in Rule 20.1 shall be used.

29

11.10 If a subcommittee refers a complaint to the review panel, the complainant and the subject judge may be identified to the review panel thereof, regardless of whether the complaint subcommittee recommends holding a hearing.

12. Review Panels


The Judicial Council may establish a panel for the purpose of dealing with a complaint under subsection 51.4 (17) or (18) or subsection 51.5 (8) or (10) and considering the question of compensation under section 51.7, and the panel has all the powers of the Judicial Council for that purpose.

s. 49(14)

The following rules apply to a panel established under subsection (14):

1. The panel shall consist of two provincial judges other than the Chief Justice, a lawyer and a person who is neither a judge nor a lawyer.

2. One of the judges, as designated by the Judicial Council, shall chair the panel.

3. Four members constitute a quorum.

s. 49(15)

The chair of a panel established under subsection (14) or (16) is entitled to vote, and may cast a second deciding vote if there is a tie.

s. 49(18)

The members of the subcommittee that investigated a complaint shall not,

a) deal with the complaint under subsection 51.4 (17) or (18) or subsection 51.5 (8) or (10); or

b) participate in a hearing of the complaint under section 51.6.

s. 49(19)

30

Procedural Rules

12.1 The Judicial Council shall form review panels at each of its regularly scheduled meetings, so long as the quorum required to address each complaint under the Act can be satisfied.

12.2 At least one member of a complaint subcommittee reporting on an investigation shall be present when that complaint subcommittee's report is presented to a review panel.

12.3 If necessary, a complaint subcommittee member may attend before the review panel by teleconference.

13. Review Panel’s Decision on the Appropriate Disposition


The Judicial Council shall consider the report, in private, and may approve the subcommittee’s disposition or may require the subcommittee to refer the complaint to the Council.

s. 51.4(17)

The Judicial Council shall consider, in private, every complaint referred to it by the subcommittee, and may,

a) hold a hearing under section 51.6;

b) dismiss the complaint;

c) refer the complaint to the Chief Justice, with or without imposing conditions as referred to in subsection (15); or

d) refer the complaint to a mediator in accordance with section 51.5.

s. 51.4(18)

The Statutory Powers Procedure Act does not apply to the Judicial Council’s activities under subsections (17) and (18).

s. 51.4(19)

31

Procedural Rules

13.1 The review panel shall examine,

a) the report of the complaint subcommittee;

b) the complaint letter;

c) materials from the investigation as recommended by the complaint subcommittee; any response from the subject judge; and

d) any other material it considers relevant,

with all identifying information removed therefrom, and ensure that the review panel is satisfied that the issues of concern have been identified and addressed by the complaint subcommittee in its investigation of the complaint and in its recommendation or recommendations to the review panel about the disposition of the complaint.

13.2 The review panel may refer the complaint back to the complaint subcommittee for further investigation or make any other direction or request of the complaint subcommittee that the review panel considers appropriate.

13.3 The judicial discipline process is remedial. The Registrar shall bring to the attention of the review panel any previous complaint and disposition history that the subject judge has had with the Judicial Council and make available to the review panel any materials from previous complaint files that the review panel may request.

13.4 The review panel may approve of the subcommittee’s recommended disposition or may impose a different disposition from that recommended by the subcommittee.

13.5 If the review panel does not approve of the complaint subcommittee's recommended disposition, it may require the complaint subcommittee to refer the complaint to the review panel.

13.6 If the majority of the members of the review panel are of the opinion that,

a) there has been an allegation of judicial misconduct that has a basis in fact; and

b) such allegations, if believed by a Hearing Panel, could result in a finding of judicial misconduct,

32

the review panel shall order that a hearing be held.

13.7 If the review panel orders that a hearing of the complaint be held, the review panel may also recommend that the hearing be held in private. If such recommendation is made, the criteria established by the Judicial Council in Rule 20.1 shall be used.

13.8 If the majority of the members of the review panel conclude that,

a) the complaint falls outside the Judicial Council's jurisdiction;

b) the complaint is frivolous;

c) the complaint is an abuse of process;

d) the complaint is unfounded; or

e) the evidence could not support a finding of judicial misconduct,

the review panel shall dismiss the complaint.

13.9 If the majority of the members of the review panel conclude that,

a) referring the complaint to the Chief Justice of the Ontario Court of Justice is a suitable means of informing the judge that the judge’s conduct was not appropriate in the circumstances that led to the complaint;

b) the conduct complained of does not warrant another disposition; and

c) there is some merit to the complaint,

the review panel shall refer the complaint to the Chief Justice of the Ontario Court of Justice.

13.10 If the review panel is considering a referral of the complaint to the Chief Justice, it will inform the subject judge that it is considering the referral. The judge will be asked whether he or she agrees to meet with the Chief Justice and whether he or she agrees to such conditions, if any, that the review panel has determined to be appropriate, such as education or treatment. The judge’s willingness to meet with the Chief Justice and to fulfill the proposed conditions are relevant to the review panel’s deliberations in considering the dispositions provided for under section 51.4(18), including holding a hearing. If the judge does not agree to meet with the Chief Justice or to the conditions of referring the complaint to the Chief Justice, the

33

complaint remains with the review panel for further consideration and the review panel may decide to hold a hearing in the matter.

13.11 If a complaint is referred to the Chief Justice of the Ontario Court of Justice, following the meeting with the judge, the Chief Justice shall provide a written report on the meeting and the course of training or recommended action, if any, to the review panel.

14. Notice of the Decision to the Complainant and to the Judge


After making its decision under subsection (17) or (18), the Judicial Council shall communicate it to the judge and the complainant, giving brief reasons in the case of a dismissal.

s. 51.4(20)

Procedural Rules

14.1 In accordance with the instructions of the review panel, the Registrar or his or her delegate shall draft a letter to the complainant advising the complainant of the disposition of the complaint. The review panel shall consider and approve the draft letter, which shall then be prepared in final form and sent to the complainant.

14.2 The Registrar or his or her delegate shall provide a copy of the disposition letter to the judge who was the subject of the complaint in circumstances where he or she was asked for a response to the complaint.

14.3 If the complaint is dismissed and a response was not sought from the subject judge, the Judicial Council shall provide a copy of the disposition letter to the judge unless the judge has given instructions to waive such notice.

34

HEARINGS


Statutory Powers Procedure Act

The Statutory Powers Procedure Act, except section 4 and subsection 9 (1), applies to the hearing.

s. 51.6(2)Contempt proceedings under the Statutory Powers Procedures Act

13. (1) Where any person without lawful excuse,

(a) on being duly summoned under section 12 as a witness at a hearing makes default in attending at the hearing; or

(b) being in attendance as a witness at an oral hearing or otherwise participating as a witness at an electronic hearing, refuses to take an oath or to make an affirmation legally required by the tribunal to be taken or made, or to produce any document or thing in his or her power or control legally required by the tribunal to be produced by him or her or to answer any question to which the tribunal may legally require an answer; or

(c) does any other thing that would, if the tribunal had been a court of law having power to commit for contempt, have been contempt of that court,

the tribunal may, of its own motion or on the motion of a party to the proceeding, state a case to the Divisional Court setting out the facts and that court may inquire into the matter and, after hearing any witnesses who may be produced against or on behalf of that person and after hearing any statement that may be offered in defence, punish or take steps for the punishment of that person in like manner as if he or she had been guilty of contempt of the court.

s.13(1)

Translation, Interpretation, and Bilingual Proceeding


A hearing under section 51.6 shall be conducted in English, but a complainant or witness who speaks French or a judge who is the subject of a complaint and who speaks French is entitled, on request, to be given, before the hearing, French translations of documents that

35

http://www.ontario.ca/fr/lois/loi/90s22#s13s1

are written in English and are to be considered at the hearing; to be provided with the assistance of an interpreter at the hearing; and to be provided with simultaneous interpretation into French of the English portions of the hearing.

s. 51.2(3)

Subsection (3) also applies to mediations conducted under section 51.5 and to the Judicial Council’s consideration of the question of compensation under section 51.7, if subsection 51.7 (2) applies.

s. 51.2(4)

The Judicial Council may direct that a hearing or mediation to which subsection (3) applies be conducted bilingually, if the Council is of the opinion that it can be properly conducted in that manner.

s. 51.2(5)

A directive under subsection (5) may apply to a part of the hearing or mediation, and in that case subsections (7) and (8) apply with necessary modifications.

s. 51.2(6)

In a bilingual hearing or mediation,

a) oral evidence and submissions may be given or made in English or French, and shall be recorded in the language in which they are given or made;

b) documents may be filed in either language;

c) in the case of a mediation, discussions may take place in either language;

d) the reasons for a decision or the mediator’s report, as the case may be, may be written in either language.

s. 51.2(7)

In a bilingual hearing or mediation, if the complainant or the judge who is the subject of the complaint does not speak both languages, he or she is entitled, on request, to have simultaneous interpretation of any evidence, submissions or discussions spoken in the other language and translation of any document filed or reasons or report written in the other language.

s. 51.2(8)

36

15. Hearing Panels


The Judicial Council may establish a panel for the purpose of holding a hearing under section 51.6 and considering the question of compensation under section 51.7, and the panel has all the powers of the Judicial Council for that purpose.

s. 49(16)

The Chief Justice of Ontario, or another judge of the Court of Appeal designated by the Chief Justice, shall chair the meetings and hearings of the Judicial Council that deal with complaints against particular judges and its meetings held for the purposes of section 45 and subsection 47 (5).

s. 49(8)

The following rules apply to a panel established under subsection (16):

1. Half the members of the panel, including the chair, must be judges, and half must be persons who are not judges.

2. At least one member must be a person who is neither a judge nor a lawyer.

3. The Chief Justice of Ontario, or another judge of the Court of Appeal designated by the Chief Justice, shall chair the panel.

4. Subject to paragraphs 1, 2 and 3, the Judicial Council may determine the size and composition of the panel.

5. All the members of the panel constitute a quorum.

s. 49(17)

The members of the subcommittee that investigated a complaint shall not,

a) deal with the complaint under subsection 51.4 (17) or (18) or subsection 51.5 (8) or (10); or

b) participate in a hearing of the complaint under section 51.6.

s. 49(19)

37

The members of the Judicial Council who dealt with a complaint under subsection 51.4 (17) or (18) or subsection 51.5 (8) or (10) shall not participate in a hearing of the complaint under section 51.6.

s. 49(20)

The chair of a panel established under subsection (14) or (16) is entitled to vote, and may cast a second deciding vote if there is a tie.

s. 49(18)

The members of the Judicial Council participating in the hearing shall not communicate directly or indirectly in relation to the subject-matter of the hearing with any person, unless all the parties and the persons representing the parties under the authority of the Law Society Act receive notice and have an opportunity to participate.

s. 51.6(4)

Subsection (4) does not preclude the Judicial Council from engaging counsel to assist it in accordance with subsection 49 (21), and in that case the nature of the advice given by counsel shall be communicated to the parties so that they may make submissions as to the law.

s. 51.6(5)

Procedural Rules

15.1 These Rules of Procedure shall be liberally construed so as to ensure the just determination of every hearing on its merits.

15.2 The Hearing Panel’s mandate is to inquire into the facts to determine whether there has been judicial misconduct, and, where judicial misconduct is found, determine the appropriate disposition or dispositions that will preserve or restore public confidence in the judiciary.

16. Independent Presenting Counsel


The Judicial Council may engage persons, including counsel, to assist it.

38

s. 49(21)

Procedural Rules

16.1 If the Judicial Council, or a review panel thereof, orders that a hearing of a complaint be held, the Registrar shall, on behalf of the Judicial Council, retain legal counsel to act as Presenting Counsel.

16.2 A lawyer or law firm that was retained to assist a subcommittee in its investigation of a complaint may not be retained as Presenting Counsel for any hearing of the same complaint.

16.3 Presenting Counsel shall operate independently, including independently of the Hearing Panel, and the Hearing Panel shall not give any instructions to Presenting Counsel.

16.4 All communications between Presenting Counsel and the Hearing Panel shall be made in the presence of counsel for the judge, where the judge has retained counsel, and in the case of written communications, such communications shall be copied to the judge.

16.5 The duty of Presenting Counsel is not to seek a particular disposition but is rather to ensure that the complaint against the judge is evaluated fairly and dispassionately so as to achieve a just result and preserve or restore confidence in the judiciary.

17. Legal Counsel for the Judge

Procedural Rules

17.1 The judge has the right to be represented by counsel, or to act on his or her own behalf, in any hearing under these Rules of Procedure.

18. Notice of Hearing

Procedural Rules

18.1 A hearing shall be commenced by a Notice of Hearing, which Presenting Counsel shall prepare for the approval of the review panel that referred the complaint for a hearing.

18.2 The Notice of Hearing shall contain,

39

a) the particulars of the allegations against the judge;

b) a reference to the statutory authority under which the hearing will be held;

c) the time and place of the commencement of the hearing;

d) a statement of the purpose of the hearing;

e) a statement that if the judge does not attend at the hearing, the Hearing Panel may proceed in the judge’s absence and the judge will not be entitled to any further notice of the proceeding.

18.3 Presenting Counsel shall cause the Notice of Hearing to be served upon the judge by personal service, or upon motion to the Hearing Panel hearing the complaint, an alternative to personal service, and shall file proof of service with the Judicial Council.

18.4 If counsel for the judge agrees to accept service by email on behalf of the judge, Presenting Counsel may effect service by emailing an electronic copy of the Notice of Hearing to counsel for the judge.

19. Public Information about Hearing Proceedings


The Judicial Council’s hearings and meetings under sections 51.6 and 51.7 shall be open to the public, unless subsection 51.6 (7) applies; its other hearings and meetings may be conducted in private, unless this Act provides otherwise.

s. 49(11)

In exceptional circumstances and in accordance with the criteria established under subsection 51.1 (1), the Judicial Council may make an order prohibiting, pending the disposition of a complaint, the publication of information that might identify the judge who is the subject of the complaint.

s. 51.6(10)

In exceptional circumstances, if the Judicial Council determines, in accordance with the criteria established under subsection 51.1 (1), that the desirability of holding open hearings is outweighed by the desirability of maintaining confidentiality, it may hold all or part of the hearing in private.

40

s. 51.6(7)

If the hearing was held in private, the Judicial Council shall, unless it determines in accordance with the criteria established under subsection 51.1 (1) that there are exceptional circumstances, order that the judge’s name not be disclosed or made public.

s. 51.6(8)

If the complaint involves allegations of sexual misconduct or sexual harassment, the Judicial Council shall, at the request of a complainant or of another witness who testifies to having been the victim of similar conduct by the judge, prohibit the publication of information that might identify the complainant or witness, as the case may be.

s. 51.6(9)

Procedural Rules

19.1 Recognizing the role that the complaint process has in maintaining and restoring public confidence in the judiciary, and that the legislative requirements for maintaining privacy do not apply to formal hearings under section 51.6 of the Act, once Presenting Counsel files the Notice of Hearing as an exhibit in the initial set-date proceeding presided over by the Hearing Panel, the complaint process shall become public, subject to any orders by the Hearing Panel.

19.2 Once the complaint has become public, the Registrar shall cause notice of the hearing to be,

a) posted in the prescribed form on the Judicial Council’s website, subject to any orders by the Hearing Panel; and

b) published in a local newspaper not less than two weeks prior to the commencement of the hearing.

19.3 The public notice posted and published by the Registrar shall include a brief summary of the allegations of misconduct but shall not shall not identify any complainants or witnesses in order to allow for the possibility that a complainant or witness may ask for their identity to be protected by a publication ban. If the judge has been suspended with pay or reassigned to a different location under s. 51.4 pending the final disposition of the complaint, the Registrar shall include that information on the Council’s website.

41

19.4 The Hearing Panel may, on such grounds as it deems appropriate, abridge the time for publication of the notice by the Registrar.

19.5 The Hearing Panel may, on motion by any party and at any time during the hearing, order that certain information or documents remain confidential or be subject to a publication ban, including information contained in the allegations in the Notice of Hearing.

19.6 When a party files a motion requesting a publication ban, the Judicial Council shall provide public notice of any motion for a publication ban on its website.

19.7 The onus is on the party bringing a motion for a publication ban to give proper notice of the motion to major media outlets.

19.8 If a party believes that a publication ban ordered by the Hearing Panel may have been violated, the party may file a motion in writing requesting that the Hearing Panel state a case to the Divisional Court, pursuant to section 13 of the Statutory Powers Procedures Act, so that the Court may inquire into the facts to determine whether there has been a violation of the publication ban.

20. Exceptions to Fully Open Hearing — Criteria

Procedural Rules

20.1 When deciding whether there are exceptional circumstances that justify maintaining confidentiality and holding all or part of a hearing in private, the Hearing Panel shall consider,

a) whether matters involving public security may be disclosed at the hearing; and

b) whether intimate financial or personal matters or other matters may be disclosed at the hearing of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interests of any person affected or in the public interest outweighs the desirability of adhering to the principle that the hearing be open to the public.

42

21. Criteria for Disclosing Identity of the Judge when a Hearing is Private

Procedural Rules

21.1 After a hearing has been held in private and the Hearing Panel has determined the appropriate disposition of a complaint, the Hearing Panel shall consider the following criteria when deciding whether to order that the name of the judge, the disposition, or any other information be disclosed:

a) the reasons for holding a private hearing;

b) the disposition(s); and

c) whether avoiding disclosure is in the public interest and would preserve or maintain public confidence in the judiciary.

22. Pre-Hearing Procedures


The Judicial Council shall determine who are the parties to the hearing.

s. 51.6(6)

Procedural Rules

Judge’s Response to the Notice of Hearing

22.1 The judge may respond to the allegations in the Notice of Hearing, in which case the judge shall file the response with the Council and serve it on Presenting Counsel. The response may contain full particulars of the facts on which the judge relies.

22.2 The judge may, at any time before or during the hearing, prepare an amended response, which shall be served on Presenting Counsel and filed with the Judicial Council.

22.3 Failure to file a response shall not be deemed to be an admission of any allegations against the judge.

43

Disclosure

22.4 Presenting Counsel shall, before the hearing, forward to the judge or to counsel for the judge,

a) the names of all witnesses who will be called by Presenting Counsel to give evidence;

b) any statements taken from any witnesses that were not provided during the investigation phase; and

c) summaries of any interviews with such witnesses conducted before the hearing,

and the Hearing Panel may preclude Presenting Counsel from calling a witness at the hearing if Presenting Counsel has not provided such information.

22.5 Presenting Counsel shall confirm before the hearing that the subject judge or the judge’s counsel has received full disclosure of the non-privileged materials considered by the complaint subcommittee during the investigation stage. If such materials have not been received, Presenting Counsel shall provide the disclosure.

22.6 Presenting Counsel’s disclosure obligations under Rules 22.4 and 22.5 apply equally to any documents relevant to the allegations in the Notice of Hearing that come to the attention of Presenting Counsel after pre-hearing disclosure has been completed.

Pre-Hearing Conference

22.7 Upon request by Presenting Counsel or by the judge, the Hearing Panel may order that a pre-hearing conference take place before a judge for the purposes of narrowing or resolving the issues. Any discussions at the pre-hearing conference are confidential and without prejudice. Any judge who,

a) was a member of the complaint subcommittee that investigated the complaint;

b) was a member of the review panel that reviewed the complaint; or

c) is a member of the Hearing Panel that will hear the allegations against the judge,

shall not preside over the pre-hearing conference in respect of the same complaint.

44

Pre-Hearing Motions

22.8 Any party to the hearing may, by motion not later than 10 days before a set-date, bring any procedural or other matters to the Hearing Panel as are required to be determined prior to the hearing of the complaint, including, without limiting the generality of the foregoing, a motion for the purposes of,

a) objecting to the Judicial Council’s jurisdiction to hear the complaint;

b) resolving any issues with respect to any reasonable apprehension of bias or institutional bias on the part of the Hearing Panel;

c) objecting to the sufficiency of disclosure by Presenting Counsel;

d) determining any point of law for the purposes of expediting the hearing;

e) determining any claim of privilege in respect of the evidence to be presented at the hearing;

f) any matters relating to scheduling;

g) seeking a publication ban or an order that the hearing or part thereof be in the absence of the public, in which case the Judicial Council shall provide public notice of any motion for a publication ban on its website; or

h) determining any other procedural or other matters as required.

22.9 A motion seeking any of the relief enumerated in Rule 22.8 may not be brought during the hearing without leave of the Hearing Panel unless it is based upon the manner in which the hearing has been conducted.

22.10 The Hearing Panel may, on such grounds as it deems appropriate, abridge the time for bringing any motion provided for by the pre-hearing rules.

22.11 The Hearing Panel shall appoint a time and a place for the hearing of submissions by both sides on any motion brought pursuant to Rule 22.8 as soon as is reasonably possible and shall render a decision thereon as soon as is reasonably possible.

45

Agreed Statement of Facts

22.12 The parties may rely upon an Agreed Statement of Facts if the parties file the Agreed Statement of Facts with the Registrar not later than 10 days before the date set for commencement of the hearing. The Hearing Panel may review the Agreed Statement of Facts in advance of the hearing.

22.13 The Agreed Statement of Facts shall be set out in the template provided in Appendix D to these Rules of Procedure.

22.14 The Hearing Panel may abridge the time for filing the Agreed Statement of Facts on such grounds as it deems appropriate.

Procedural Rules

22.15 The Hearing Panel, on application at any time by Presenting Counsel or counsel for the judge or the judge, may require any person, including a party, by summons issued and signed by the Registrar, to give evidence on oath or affirmation at the hearing and to produce in evidence at the hearing any documents or things specified by the Hearing Panel which are relevant to the subject matter of the hearing and admissible at the hearing.

22.16 A summons issued by the Registrar shall be in the form prescribed by subsection 12(2) of the Statutory Powers Procedure Act.

22.17 The following guidelines apply to the conduct of the hearing, unless the Hearing Panel, on motion or on consent, requires otherwise:

a) All testimony shall be given under oath, affirmation, or promise.

b) Presenting Counsel shall commence the hearing by an opening statement, and shall proceed to present evidence in support of the allegations in the Notice of Hearing.

c) Counsel for the judge or the judge may make an opening statement, either immediately following Presenting Counsel’s opening statement, or immediately following the conclusion of the evidence presented on behalf of Presenting Counsel. After Presenting Counsel has called its evidence, and after counsel for the judge or the judge has made an opening statement, counsel for the judge or the judge may present evidence.

46

d) All witnesses may be cross-examined by the opposite party or counsel for the opposite party and re-examined as required.

e) The hearing shall be recorded verbatim and transcribed. Where counsel for the judge or the judge requests, he or she may be provided with a transcript of the hearing within a reasonable time and at no cost.

f) Both Presenting Counsel and counsel for the judge or the judge may submit proposed findings, conclusions, recommendations, or draft orders for the consideration of the Hearing Panel.

g) Presenting Counsel and counsel for the judge or the judge may, at the close of the evidence, make statements summarizing the evidence and any points of law arising out of the evidence. The Hearing Panel shall determine the order in which such statements shall be made.

22.18 If additional facts are disclosed during the course of a hearing that,

a) are outside the ambit of the complaint that is the subject of the hearing; and

b) would constitute an allegation of misconduct against a provincial judge if they were disclosed in a complaint to the Judicial Council,

the Registrar shall prepare a summary of the particulars of the additional facts and forward the summary to a complaint subcommittee to be processed as an original complaint. Members of the Hearing Panel before which the additional facts were disclosed may not serve on the complaint subcommittee assigned to investigate the new complaint.

23. Dispositions by the Hearing Panel


After completing the hearing, the Judicial Council may dismiss the complaint, with or without a finding that it is unfounded or, if it finds that there has been misconduct by the judge, may,

a) warn the judge;

b) reprimand the judge;

c) order the judge to apologize to the complainant or to any other person;

47

d) order that the judge take specified measures, such as receiving education or treatment, as a condition of continuing to sit as a judge;

e) suspend the judge with pay, for any period;

f) suspend the judge without pay, but with benefits, for a period up to thirty days; or

g) recommend to the Attorney General that the judge be removed from office in accordance with section 51.8.

s. 51.6(11)

The Judicial Council may adopt any combination of the dispositions set out in clauses (11) (a) to (f).

s. 51.6(12)

A provincial judge may be removed from office only if,

a) a complaint about the judge has been made to the Judicial Council; and

b) the Judicial Council, after a hearing under section 51.6, recommends to the Attorney General that the judge be removed on the ground that he or she has become incapacitated or disabled from the due execution of his or her office by reason of,

(i) inability, because of a disability, to perform the essential duties of his or her office (if an order to accommodate the judge’s needs would not remedy the inability, or could not be made because it would impose undue hardship on the person responsible for meeting those needs, or was made but did not remedy the inability),

(ii) conduct that is incompatible with the due execution of his or her office, or

(iii) failure to perform the duties of his or her office.

s. 51.8(1)

The Attorney General shall table the recommendation in the Assembly if it is in session or, if not, within fifteen days after the commencement of the next session.

s. 51.8(2)

48

An order removing a provincial judge from office under this section may be made by the Lieutenant Governor on the address of the Assembly.

s. 51.8(3)

This section applies to provincial judges who have not yet attained retirement age and to provincial judges whose continuation in office after attaining retirement age has been approved under subsection 47 (3), (4) or (5).

s. 51.8(4)

Procedural Rules

23.1 In determining the appropriate disposition of a complaint following a hearing, the Hearing Panel shall focus on what is required to restore public confidence in the judge and in the judiciary.

23.2 If the Hearing Panel determines that one of the dispositions enumerated in section 51.6(11) is required, the Hearing Panel should first consider the least serious disposition (a warning) and move sequentially to the most serious (recommendation for removal) and order only what is necessary to restore public confidence in the judge and in the administration of justice generally.

23.3 In assessing the appropriate sanction for judicial misconduct, the Hearing Panel shall consider,

a) whether the misconduct was an isolated incident or evidenced a pattern of misconduct;

b) the nature, extent, and frequency of the misconduct;

c) whether the misconduct occurred in or out of the courtroom;

d) whether the misconduct occurred in the judge’s official capacity or in the judge’s private life;

e) whether the judge has acknowledged or recognized that the acts occurred;

f) whether the judge has evidenced an effort to change or modify his or her conduct;

g) the judge’s length of service on the bench;

49

h) whether there have been prior findings of judicial misconduct against the judge;

i) the effect of the misconduct on the integrity of, and respect for, the judiciary;

j) the extent to which the judge exploited his or her position to satisfy his or her personal desires; and

k) any other factor that the Hearing Panel considers relevant.

50

COMPENSATION

24. Recommending Compensation for Judges’ Legal Costs



s. 49(14)

The Judicial Council may establish a panel for the purpose of holding a hearing under section 51.6 and considering the question of compensation under section 51.7, and the panel has all the powers of the Judicial Council for that purpose.

s. 49(16)

When the Judicial Council has dealt with a complaint against a provincial judge, it shall consider whether the judge should be compensated for his or her costs for legal services incurred in connection with all the steps taken under sections 51.4, 51.5 and 51.6 and this section in relation to the complaint.

s. 51.7(1)

If the Judicial Council holds a hearing into the complaint, its consideration of the question of compensation shall be combined with the hearing.

s. 51.7(2)

The Judicial Council’s consideration of the question of compensation shall take place in public if there was a public hearing into the complaint, and otherwise shall take place in private.

s. 51.7(3)

If the Judicial Council is of the opinion that the judge should be compensated, it shall make a recommendation to the Attorney General to that effect, indicating the amount of compensation.

51

s. 51.7(4)

If the complaint is dismissed after a hearing, the Judicial Council shall recommend to the Attorney General that the judge be compensated for his or her costs for legal services and shall indicate the amount.

s. 51.7(5)

The Judicial Council’s recommendation to the Attorney General shall name the judge, but the Attorney General shall not disclose the name unless there was a public hearing into the complaint or the Council has otherwise made the judge’s name public.

s. 51.7(6)

The amount of compensation recommended under subsection (4) or (5) may relate to all or part of the judge’s costs for legal services, and shall be based on a rate for legal services that does not exceed the maximum rate normally paid by the Government of Ontario for similar services.

s. 51.7(7)

The Attorney General shall pay compensation to the judge in accordance with the recommendation.

s. 51.7(8)

Procedural Rules

24.1 The decision to recommend or not recommend compensation for a judge's costs for legal services shall be made on a case-by-case basis.

24.2 The principal objective of the complaint process is to restore and maintain public confidence in the integrity of the judiciary, not to punish the judicial officer holder. When considering whether a judge should be compensated for legal costs, the Judicial Council shall be guided by the principle that it is generally in the best interest of the administration of justice for judges who are the subject of complaints to have the benefit of legal counsel to ensure a fair, full and complete process6.

24.3 Compensation for legal costs is not automatic where there is a finding of judicial misconduct. When there has been a finding of judicial misconduct, the decision about whether a judge should be compensated for part, none or all of his or her

6 Massiah v. Justices of the Peace Review Council, 2016 ONSC 619152

legal costs shall be based upon consideration of the circumstances of the case, viewed in the context of the objectives of the complaint process, including:

a) The nature and seriousness of the misconduct.

b) The connection of the misconduct to the judicial function. Chief among the circumstances will be the nature of the misconduct and its connection to the judicial function. For example, misconduct that is more directly related to the judicial function may be more deserving of a compensation order than conduct that is less directly related.

c) Whether the conduct was such that any person ought to have known it was inappropriate. Conduct that any person ought to have known was inappropriate will be less deserving of a compensation decision than would conduct that is only determined to be inappropriate as a result of the ultimate decision in a particular case.

d) Whether the misconduct consisted of a single instance or multiple instances. Where there are multiple instances, the judge may be less deserving of a compensation recommendation than if there was a single instance of misconduct.

e) Whether there had been prior findings of misconduct. Where there has been a previous finding of misconduct, the judge may be less deserving of a compensation recommendation.

f) The conduct of the hearing. Compensation should not include the costs associated with steps which the decision-maker views as unmeritorious or unnecessary.

53

ORDER OF ACCOMMODATION

25. Disability Renders Judge Unable to Perform Essential Duties of Office


If the Judicial Council finds that the judge is unable, because of a disability, to perform the essential duties of the office, but would be able to perform them if his or her needs were accommodated, the Council shall order that the judge’s needs be accommodated to the extent necessary to enable him or her to perform those duties.

s. 51.6(13)

Subsection (13) applies if,

a) the effect of the disability on the judge’s performance of the essential duties of the office was a factor in the complaint; and

b) the Judicial Council dismisses the complaint or makes a disposition under clauses (11) (a) to (f).

s. 51.6(14)

Subsection (13) does not apply if the Judicial Council is satisfied that making an order would impose undue hardship on the person responsible for accommodating the judge’s needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

s. 51.6(15)

The Judicial Council shall not make an order under subsection (13) against a person without ensuring that the person has had an opportunity to participate and make submissions.

s. 51.6(16)

An order made under subsection (13) binds the Crown.

s. 51.6(17)

54


s. 49(8)

26. Application for Accommodation of Needs Arising from a Disability


A provincial judge who believes that he or she is unable, because of a disability, to perform the essential duties of the office unless his or her needs are accommodated may apply to the Judicial Council for an order under subsection (2).

s. 45(1)

If the Judicial Council finds that the judge is unable, because of a disability, to perform the essential duties of the office unless his or her needs are accommodated, it shall order that the judge’s needs be accommodated to the extent necessary to enable him or her to perform those duties.

s. 45(2)

Subsection (2) does not apply if the Judicial Council is satisfied that making an order would impose undue hardship on the person responsible for accommodating the judge’s needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

s. 45(3)

The Judicial Council shall not make an order under subsection (2) against a person without ensuring that the person has had an opportunity to participate and make submissions.

s. 45(5)

The order binds the Crown.

55

s. 45(6)

Procedural Rules

26.1 A judge may not apply to the Judicial Council for an Order for accommodation of needs arising from a disability unless the applicant judge has first pursued the accommodation of needs process offered to judicial officers by the Ministry of the Attorney General.

26.2 A judge who applies to the Judicial Council for an Order for accommodation of needs arising from a disability shall provide to the Judicial Council a copy of all documents, medical evidence, and decisions resulting from the accommodation process offered to judicial officers by the Ministry of the Attorney General.

26.3 An application for an Order for accommodation of needs arising from a disability by a judge shall be in writing and shall include,

a) a description of the disability to be accommodated;

b) a description of the essential duties of the applicant judge's office for which accommodation is required;

c) a description of the item and/or service required to accommodate the applicant judge's disability;

d) a signed letter supporting the applicant judge’s application for accommodation from a qualified doctor, medical specialist, or other health professional.

26.4 Applications for an Order for accommodation and all supporting materials thereto are inadmissible in any investigation or hearing, other than the hearing to consider the question of accommodation, unless the applicant judge consents to their admission.

26.5 The Judicial Council shall not disclose to the public any application for accommodation, or the supporting materials thereto, without the consent of the applicant judge.

26.6 On receipt of an application, the Judicial Council shall convene an accommodation subcommittee composed of one judge and one lay member of the Judicial Council.

56

26.7 The accommodation subcommittee shall, at its earliest convenience, meet with the applicant judge and with any person against whom the accommodation subcommittee believes an Order to accommodate may be required.

26.8 The accommodation committee shall retain such experts and seek such advice as it may require to formulate an opinion on the application for accommodation.

26.9 The accommodation subcommittee shall report its opinion to the Judicial Council in relation to,

a) whether the judge has needs arising from a disability and whether those needs require accommodation;

b) what item and/or service is necessary to accommodate the judge’s needs;

c) the period of time that the item and/or service would be required to accommodate the judge's needs;

d) the approximate cost of the item and/or service required to accommodate the judge's needs, taking into account the estimated length of time that the item and/or service would be required,

and the report shall include all of the evidence that the accommodation subcommittee considered in determining the cost of the accommodation.

26.10 Once the accommodation subcommittee has delivered its report, the Judicial Council shall meet, at its earliest convenience, to consider the application and the report to determine whether or not the application for an Order for accommodation gives rise to an obligation under the statute to accommodate the applicant short of undue hardship.

26.11 When considering the application and the report, the Judicial Council shall be guided generally by human rights jurisprudence applicable to its jurisdiction as it relates to,

a) the definition of “disability”;

b) the content of the duty to accommodate; and

c) the procedures developed in the jurisprudence for the purposes of determining whether an order to accommodate is warranted.

57

26.12 The Judicial Council shall consider a condition to amount to a disability where it may interfere with a judge’s ability to perform the essential functions of the judge’s office.

26.13 If the Judicial Council,

a) is satisfied that the judge’s condition meets the threshold test for qualification as a disability; and

b) is considering making an order to accommodate the judge,

the Judicial Council shall, at its earliest convenience, provide a copy of the application for accommodation and the report of the accommodation subcommittee to the Attorney General.

26.14 The Judicial Council shall give notice to the Attorney General that the Attorney General may make written submissions regarding whether any Order to accommodate a judge's disability that the Judicial Council is considering would cause undue hardship to the Ministry of the Attorney General or any other person affected by the said order to accommodate.

26.15 The Judicial Council shall request that the Attorney General respond to the notice of application for accommodation within 30 days of the Attorney General receiving such notice.

26.16 The Judicial Council shall stipulate in its notice to the Attorney General that, in the event that the Attorney General does not acknowledge the notice or does not make written submissions, the Judicial Council will proceed with making an Order to accommodate the judge in accordance with the judge’s application and the Judicial Council’s initial determination of the matter.

26.17 The Attorney General shall, within the 30 days provided for in Rule 26.15, advise the Judicial Council whether or not the Attorney General intends to make written submissions regarding the application for accommodation.

26.18 If the Attorney General intends to make written submissions regarding the application for an Order to accommodate, such submissions shall be made within 60 days of the Attorney General advising the Judicial Council of an intention to respond as described in Rule 26.17.

26.19 Upon receipt of the Attorney General's written submissions, or upon the expiration of the 30-day time period specified in Rule 26.15, whichever comes first, the

58

Judicial Council shall, at its earliest convenience, meet to determine the Order it shall make to accommodate the applicant judge's disability.

26.20 The Attorney General, or any other person against whom an Order to accommodate may be made, as the case may be, bears the onus of showing that accommodating the applicant will cause undue hardship.

26.21 The Judicial Council shall, before making its determination, consider the judge's application, supporting material, and submissions, if any are made, regarding the question of undue hardship.

26.22 In considering whether accommodation of the applicant will cause undue hardship, the Judicial Council shall generally be guided by human rights jurisprudence relating to the question of whether undue hardship will be caused, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

26.23 The Judicial Council shall not make an Order on an application for accommodation under subsection 45(2) without ensuring that the applicant judge has had an opportunity to participate and make written submissions.

26.24 The Judicial Council may not Order that a judge should be accommodated by assigning the judge to only a portion of the judge’s essential duties.

26.25 While the Judicial Council cannot assume responsibility for the assignment of judicial duties, the Judicial Council can consider whether, despite a disability, a judge is able to perform the essential duties of the office if the judge’s needs are accommodated.

26.26 If the Judicial Council makes an Order to accommodate a judge’s disability, a copy of the order shall be provided to the judge and to any other person affected by the order within 10 days of the date on which the decision was made.

59

CONTINUATION IN OFFICE

27. Continuation in Office After Age 65


Retirement

47 (1) Every provincial judge shall retire upon attaining the age of sixty-five years.

Same

(2) Despite subsection (1), a judge appointed as a full-time magistrate, judge of a juvenile and family court or master before December 2, 1968 shall retire upon attaining the age of seventy years.

Continuation of judges in office

(3) A judge who has attained retirement age may, subject to the annual approval of the Chief Justice of the Ontario Court of Justice, continue in office as a full-time or part-time judge until he or she attains the age of seventy-five years.

Same, regional senior judges

(4) A regional senior judge of the Ontario Court of Justice who is in office at the time of attaining retirement age may, subject to the annual approval of the Chief Justice, continue in that office until his or her term (including any renewal under subsection 42 (9)) expires, or until he or she attains the age of seventy-five years, whichever comes first.

Same, Chief Justice and associate chief justices

(5) A Chief Justice or associate chief justice of the Ontario Court of Justice who is in office at the time of attaining retirement age may, subject to the annual approval of the Judicial Council, continue in that office until his or her term expires, or until he or she attains the age of seventy-five years, whichever comes first. 1994, c. 12, s. 16; 1996, c. 25, s. 9 (18, 20).

Same

(6) If the Judicial Council does not approve a Chief Justice’s or associate chief justice’s continuation in that office under subsection (5), his or her continuation in the office of provincial judge is subject to the approval of the Judicial Council and not as set out in subsection (3).

60

Criteria

(7) Decisions under subsections (3), (4), (5) and (6) shall be made in accordance with criteria developed by the Chief Justice and approved by the Judicial Council.

Appointment after reaching 65 years

(8) This section applies, with necessary modifications, to a person appointed as a provincial judge, or as a Chief Justice, associate chief justice or regional senior judge, after reaching 65 years of age.

s. 47


s. 49(8)

Procedural Rules

29.1 A judge who has attained retirement age may, subject to the annual approval of the Chief Justice, continue in office as a full-time or part-time judge until he or she attains the age of seventy-five years, unless the judge has become incapacitated or disabled from the due execution of his or her office by reason of:

inability, because of a disability, to perform the essential duties of his or her office (if an order to accommodate the judge's needs would not remedy the inability, or could not be made because it would impose undue hardship on the person responsible for meeting those needs, or was made but did not remedy the inability),

conduct that is incompatible with the due execution of his or her office, or

failure to perform the duties of his or her office.

29.2 Decisions by the Judicial Council on an application by a Chief Justice or Associate Chief Justice of the Ontario Court of Justice who has reached the age of 65 shall be made in accordance with criteria set out in Rule 29.1.

61

REPORTS TO THE ATTORNEY GENERAL

28. Reports to the Attorney General


Annual Report

After the end of each year, the Judicial Council shall make an annual report to the Attorney General on its affairs, in English and French, including, with respect to all complaints received or dealt with during the year, a summary of the complaint, the findings and a statement of the disposition, but the report shall not include information that might identify the judge or the complainant.

s. 51(6)

The Attorney General shall submit the annual report to the Lieutenant Governor in Council and shall then table the report in the Assembly.

s. 51(7)

Report after a Hearing

The Judicial Council may make a report to the Attorney General about the complaint, investigation, hearing and disposition, subject to any order made under subsection 49 (24), and the Attorney General may make the report public if of the opinion that this would be in the public interest.

s. 51.6(18)

The following persons shall not be identified in the report:

1. A complainant or witness at whose request an order was made under subsection (9).

2. The judge, if the hearing was conducted in private, unless the Judicial Council orders that the judge’s name be disclosed.

s. 51.6(19)

If an order was made under subsection (10) and the Judicial Council dismisses the complaint with a finding that it was unfounded, the judge shall not be identified in the report without his or her consent and the Council shall order that information that relates to the

62

complaint and might identify the judge shall never be made public without his or her consent.

s. 51.6(20)

MEETINGS

29. Meetings of the Judicial Council


The chair is entitled to vote, and may cast a second deciding vote if there is a tie.

s. 49(10)

The following quorum rules apply, subject to subsections (15) and (17):

3. Eight members, including the chair, constitute a quorum.

4. At least half the members present must be judges and at least four must be persons who are not judges.

s. 49(13)


s. 49(14)

The Judicial Council may engage persons, including counsel, to assist it.

s. 49(21)

Procedural Rules

Meetings of the Judicial Council, including review panels, may be held in person or through electronic means, including telephone conferencing and video conferencing.

63

APPENDICES

64

APPENDIX A - Courts of Justice Act (Excerpt)

R.S.O. 1990, CHAPTER C.43


Judicial Council

49 (1) The Ontario Judicial Council is continued under the name Ontario Judicial Council in English and Conseil de la magistrature de l’Ontario in French. 1994, c. 12, s. 16.

Composition

(2) The Judicial Council is composed of,

(a) the Chief Justice of Ontario, or another judge of the Court of Appeal designated by the Chief Justice;

(b) the Chief Justice of the Ontario Court of Justice, or another judge of that court designated by the Chief Justice, and the Associate Chief Justice of the Ontario Court of Justice;

(c) a regional senior judge of the Ontario Court of Justice, appointed by the Lieutenant Governor in Council on the Attorney General’s recommendation;

(d) two judges of the Ontario Court of Justice, appointed by the Chief Justice;

(e) the Treasurer of The Law Society of Upper Canada, or another bencher of the Law Society who is a lawyer, designated by the Treasurer;

(f) a lawyer who is not a bencher of The Law Society of Upper Canada, appointed by the Law Society;

(g) four persons who are neither judges nor lawyers, appointed by the Lieutenant Governor in Council on the Attorney General’s recommendation. 1994, c. 12, s. 16; 1996, c. 25, s. 9 (15, 18, 20).

65

Temporary members

(3) The Chief Justice of the Ontario Court of Justice may appoint a judge of that court to be a temporary member of the Judicial Council in the place of another provincial judge, for the purposes of dealing with a complaint, if the requirements of subsections (13), (15), (17), (19) and (20) cannot otherwise be met. 1994, c. 12, s. 16; 1996, c. 25, s. 9 (15, 18, 20).

Criteria

(4) In the appointment of members under clauses (2) (d), (f) and (g), the importance of reflecting, in the composition of the Judicial Council as a whole, Ontario’s linguistic duality and the diversity of its population and ensuring overall gender balance shall be recognized. 1994, c. 12, s. 16.

Term of office

(5) The regional senior judge who is appointed under clause (2) (c) remains a member of the Judicial Council until he or she ceases to hold office as a regional senior judge. 1994, c. 12, s. 16.

Same

(6) The members who are appointed under clauses (2) (d), (f) and (g) hold office for four-year terms and shall not be reappointed. 1994, c. 12, s. 16.

(7) REPEALED: 2017, c. 2, Sched. 2, s. 9 (1).

Chair

(8) The Chief Justice of Ontario, or another judge of the Court of Appeal designated by the Chief Justice, shall chair the meetings and hearings of the Judicial Council that deal with complaints against particular judges and its meetings held for the purposes of section 45 and subsection 47 (5). 1994, c. 12, s. 16.

66

Same

(9) The Chief Justice of the Ontario Court of Justice, or another judge of that court designated by the Chief Justice, shall chair all other meetings and hearings of the Judicial Council. 1994, c. 12, s. 16; 1996, c. 25, s. 9 (15, 18, 20).

Same

(10) The chair is entitled to vote, and may cast a second deciding vote if there is a tie. 1994, c. 12, s. 16.

Open and closed hearings and meetings

(11) The Judicial Council’s hearings and meetings under sections 51.6 and 51.7 shall be open to the public, unless subsection 51.6 (7) applies; its other hearings and meetings may be conducted in private, unless this Act provides otherwise. 1994, c. 12, s. 16.

Vacancies

(12) Where a vacancy occurs among the members appointed under clause (2) (d), (f) or (g), a new member similarly qualified may be appointed for the remainder of the term. 1994, c. 12, s. 16.

Quorum

(13) The following quorum rules apply, subject to subsections (15) and (17):

1. Eight members, including the chair, constitute a quorum.

2. At least half the members present must be judges and at least four must be persons who are not judges. 1994, c. 12, s. 16.

Review panels

(14) The Judicial Council may establish a panel for the purpose of dealing with a complaint under subsection 51.4 (17) or (18) or subsection 51.5 (8) or (10) and

67

considering the question of compensation under section 51.7, and the panel has all the powers of the Judicial Council for that purpose. 1994, c. 12, s. 16.

Same

(15) The following rules apply to a panel established under subsection (14):

1. The panel shall consist of two provincial judges other than the Chief Justice, a lawyer and a person who is neither a judge nor a lawyer.

2. One of the judges, as designated by the Judicial Council, shall chair the panel.

3. Four members constitute a quorum. 1994, c. 12, s. 16; 1996, c. 25, s. 9 (20).

Hearing panels

(16) The Judicial Council may establish a panel for the purpose of holding a hearing under section 51.6 and considering the question of compensation under section 51.7, and the panel has all the powers of the Judicial Council for that purpose. 1994, c. 12, s. 16.

Same

(17) The following rules apply to a panel established under subsection (16):

1. Half the members of the panel, including the chair, must be judges, and half must be persons who are not judges.

2. At least one member must be a person who is neither a judge nor a lawyer.

3. The Chief Justice of Ontario, or another judge of the Court of Appeal designated by the Chief Justice, shall chair the panel.

4. Subject to paragraphs 1, 2 and 3, the Judicial Council may determine the size and composition of the panel.

5. All the members of the panel constitute a quorum. 1994, c. 12, s. 16.

68

Chair

(18) The chair of a panel established under subsection (14) or (16) is entitled to vote, and may cast a second deciding vote if there is a tie. 1994, c. 12, s. 16.

Participation in stages of process

(19) The members of the subcommittee that investigated a complaint shall not,

(a) deal with the complaint under subsection 51.4 (17) or (18) or subsection 51.5 (8) or (10); or

(b) participate in a hearing of the complaint under section 51.6. 1994, c. 12, s. 16.

Same

(20) The members of the Judicial Council who dealt with a complaint under subsection 51.4 (17) or (18) or subsection 51.5 (8) or (10) shall not participate in a hearing of the complaint under section 51.6. 1994, c. 12, s. 16.

Expert assistance

(21) The Judicial Council may engage persons, including counsel, to assist it. 1994, c. 12, s. 16.

Support services

(22) The Judicial Council shall provide support services, including initial orientation and continuing education, to enable its members to participate effectively, devoting particular attention to the needs of the members who are neither judges nor lawyers and administering a part of its budget for support services separately for that purpose. 1994, c. 12, s. 16.

69

Same

(23) The Judicial Council shall administer a part of its budget for support services separately for the purpose of accommodating the needs of any members who have disabilities. 1994, c. 12, s. 16.

Confidential records

(24) The Judicial Council or a subcommittee may order that any information or documents relating to a mediation or a Council meeting or hearing that was not held in public are confidential and shall not be disclosed or made public. 1994, c. 12, s. 16.

Same

(25) Subsection (24) applies whether the information or documents are in the possession of the Judicial Council, the Attorney General or any other person. 1994, c. 12, s. 16.

Exceptions

(26) Subsection (24) does not apply to information and documents,

(a) that this Act requires the Judicial Council to disclose; or

(b) that have not been treated as confidential and were not prepared exclusively for the purposes of the mediation or Council meeting or hearing. 1994, c. 12, s. 16.

Personal liability

(27) No action or other proceeding for damages shall be instituted against the Judicial Council, any of its members or employees or any person acting under its authority for any act done in good faith in the execution or intended execution of any power or duty of the Council or person, or for any neglect or default in the exercise or performance in good faith of such power or duty. 1994, c. 12, s. 16; 2017, c. 2, Sched. 2, s. 9 (2).

70

Remuneration

(28) The members who are appointed under clause (2) (g) are entitled to receive the daily remuneration that is fixed by the Lieutenant Governor in Council. 1994, c. 12, s. 16.

Section Amendments with date in force (d/m/y)1994, c. 12, s. 16 - 28/02/1995; 1996, c. 25, s. 9 (15, 18, 20) - 19/04/19992017, c. 2, Sched. 2, s. 9 (1, 2) - 22/03/2017

Complaint against Chief Justice, Associate Chief Justice or regional senior judge of the Ontario Court of Justice

Complaint against Chief Justice

50 (1) If the Chief Justice of the Ontario Court of Justice is the subject of a complaint,

(a) the Chief Justice of Ontario shall appoint another judge of the Ontario Court of Justice to be a member of the Judicial Council instead of the Chief Justice of the Ontario Court of Justice, until the complaint is finally disposed of;

(b) the Associate Chief Justice of the Ontario Court of Justice shall chair meetings and hearings of the Council instead of the Chief Justice of the Ontario Court of Justice, and make appointments under subsection 49 (3) instead of the Chief Justice, until the complaint is finally disposed of; and

(c) any reference of the complaint that would otherwise be made to the Chief Justice of the Ontario Court of Justice under clause 51.4 (13) (b) or 51.4 (18) (c), subclause 51.5 (8) (b) (ii) or clause 51.5 (10) (b) shall be made to the Chief Justice of the Superior Court of Justice instead of to the Chief Justice of the Ontario Court of Justice.

71

http://www.ontario.ca/laws/statute/S17002#sched2s9s1

Suspension of Chief Justice

(2) If the Chief Justice of the Ontario Court of Justice is suspended under subsection 51.4 (12),

(a) complaints that would otherwise be referred to the Chief Justice of the Ontario Court of Justice under clauses 51.4 (13) (b) and 51.4 (18) (c), subclause 51.5 (8) (b) (ii) and clause 51.5 (10) (b) shall be referred to the Associate Chief Justice of the Ontario Court of Justice, until the complaint is finally disposed of; and

(b) annual approvals that would otherwise be granted or refused by the Chief Justice of the Ontario Court of Justice shall be granted or refused by the Associate Chief Justice of the Ontario Court of Justice, until the complaint is finally disposed of.

Complaint against Associate Chief Justice or regional senior judge

(3) If the Associate Chief Justice of the Ontario Court of Justice or the regional senior judge appointed under clause 49 (2) (c) is the subject of a complaint, the Chief Justice of the Ontario Court of Justice shall appoint another judge of the Ontario Court of Justice to be a member of the Judicial Council instead of the Associate Chief Justice or regional senior judge, as the case may be, until the complaint is finally disposed of. 1996, c. 25, s. 9 (6).

Section Amendments with date in force (d/m/y)1996, c. 25, s. 9 (6) - 19/04/1999

Other duties of Judicial Council

Provision of information to public

51 (1) The Judicial Council shall provide, in courthouses and elsewhere, information about itself and about the justice system, including information about how members of the public may obtain assistance in making complaints.

72

Same

(2) In providing information, the Judicial Council shall emphasize the elimination of cultural and linguistic barriers and the accommodation of the needs of persons with disabilities.

Assistance to public

(3) Where necessary, the Judicial Council shall arrange for the provision of assistance to members of the public in the preparation of documents for making complaints.

Telephone access

(4) The Judicial Council shall provide province-wide free telephone access, including telephone access for the deaf, to information about itself and its role in the justice system.

Persons with disabilities

(5) To enable persons with disabilities to participate effectively in the complaints process, the Judicial Council shall ensure that their needs are accommodated, at the Council’s expense, unless it would impose undue hardship on the Council to do so, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

Annual report

(6) After the end of each year, the Judicial Council shall make an annual report to the Attorney General on its affairs, in English and French, including, with respect to all complaints received or dealt with during the year, a summary of the complaint, the findings and a statement of the disposition, but the report shall not include information that might identify the judge or the complainant.

Tabling

(7) The Attorney General shall submit the annual report to the Lieutenant Governor in Council and shall then table the report in the Assembly. 1994, c. 12, s. 16.

73

Section Amendments with date in force (d/m/y)1994, c. 12, s. 16 - 28/02/1995

Rules

51.1 (1) The Judicial Council shall establish and make public rules governing its own procedures, including the following:

1. Guidelines and rules of procedure for the purpose of section 45.

2. Guidelines and rules of procedure for the purpose of subsection 51.4 (21).

3. Guidelines and rules of procedure for the purpose of subsection 51.4 (22).

4. If applicable, criteria for the purpose of subsection 51.5 (2).

5. If applicable, guidelines and rules of procedure for the purpose of subsection 51.5 (13).

6. Rules of procedure for the purpose of subsection 51.6 (3).

7. Criteria for the purpose of subsection 51.6 (7).

8. Criteria for the purpose of subsection 51.6 (8).

9. Criteria for the purpose of subsection 51.6 (10). 1994, c. 12, s. 16.

Legislation Act, 2006, Part III

(2) Part III (Regulations) of the Legislation Act, 2006 does not apply to rules, guidelines or criteria established by the Judicial Council. 1994, c. 12, s. 16; 2006, c. 21, Sched. F, s. 136 (1).

Sections 28, 29 and 33 of SPPA

(3) Sections 28, 29 and 33 of the Statutory Powers Procedure Act do not apply to the Judicial Council. 1994, c. 12, s. 16.

Section Amendments with date in force (d/m/y)

74

1994, c. 12, s. 16 - 28/02/1995 2006, c. 21, Sched. F, s. 136 (1) - 25/07/2007

Use of official languages of courts

51.2 (1) The information provided under subsections 51 (1), (3) and (4) and the matters made public under subsection 51.1 (1) shall be made available in English and French.

Same

(2) Complaints against provincial judges may be made in English or French.

Same

(3) A hearing under section 51.6 shall be conducted in English, but a complainant or witness who speaks French or a judge who is the subject of a complaint and who speaks French is entitled, on request,

(a) to be given, before the hearing, French translations of documents that are written in English and are to be considered at the hearing;

(b) to be provided with the assistance of an interpreter at the hearing; and

(c) to be provided with simultaneous interpretation into French of the English portions of the hearing.

Same

(4) Subsection (3) also applies to mediations conducted under section 51.5 and to the Judicial Council’s consideration of the question of compensation under section 51.7, if subsection 51.7 (2) applies.

75

http://www.ontario.ca/laws/statute/S06021#schedfs136s1

Bilingual hearing or mediation

(5) The Judicial Council may direct that a hearing or mediation to which subsection (3) applies be conducted bilingually, if the Council is of the opinion that it can be properly conducted in that manner.

Part of hearing or mediation

(6) A directive under subsection (5) may apply to a part of the hearing or mediation, and in that case subsections (7) and (8) apply with necessary modifications.

Same

(7) In a bilingual hearing or mediation,

(a) oral evidence and submissions may be given or made in English or French, and shall be recorded in the language in which they are given or made;

(b) documents may be filed in either language;

(c) in the case of a mediation, discussions may take place in either language;

(d) the reasons for a decision or the mediator’s report, as the case may be, may be written in either language.

Same

(8) In a bilingual hearing or mediation, if the complainant or the judge who is the subject of the complaint does not speak both languages, he or she is entitled, on request, to have simultaneous interpretation of any evidence, submissions or discussions spoken in the other language and translation of any document filed or reasons or report written in the other language. 1994, c. 12, s. 16.

76


Complaint re provincial judge

51.3 (1) Any person may make a complaint to the Judicial Council alleging misconduct by a provincial judge.

Same

(2) If an allegation of misconduct against a provincial judge is made to a member of the Judicial Council, it shall be treated as a complaint made to the Judicial Council.

Same

(3) If an allegation of misconduct against a provincial judge is made to any other judge or to the Attorney General, the other judge, or the Attorney General, as the case may be, shall provide the person making the allegation with information about the Judicial Council’s role in the justice system and about how a complaint may be made, and shall refer the person to the Judicial Council.

Carriage of matter

(4) Once a complaint has been made to the Judicial Council, the Council has carriage of the matter.

Information re complaint

(5) At any person’s request, the Judicial Council may confirm or deny that a particular complaint has been made to it. 1994, c. 12, s. 16.


77

Role of subcommittee

Review

51.4 (1) A complaint received by the Judicial Council shall be reviewed by a subcommittee of the Council consisting of a provincial judge other than the Chief Justice and a person who is neither a judge nor a lawyer. 1994, c. 12, s. 16; 1996, c. 25, s. 9 (20).

Rotation of members

(2) The eligible members of the Judicial Council shall all serve on the subcommittee on a rotating basis.

Dismissal

(3) The subcommittee shall dismiss the complaint without further investigation if, in the subcommittee’s opinion, it falls outside the Judicial Council’s jurisdiction or is frivolous or an abuse of process.

Investigation

(4) If the complaint is not dismissed under subsection (3), the subcommittee shall conduct such investigation as it considers appropriate.

Expert assistance

(5) The subcommittee may engage persons, including counsel, to assist it in its investigation.

Investigation private

(6) The investigation shall be conducted in private.

78

Non-application of SPPA

(7) The Statutory Powers Procedure Act does not apply to the subcommittee’s activities.

Interim recommendations

(8) The subcommittee may recommend to a regional senior judge the suspension, with pay, of the judge who is the subject of the complaint, or the judge’s reassignment to a different location, until the complaint is finally disposed of.

Same

(9) The recommendation shall be made to the regional senior judge appointed for the region to which the judge is assigned, unless that regional senior judge is a member of the Judicial Council, in which case the recommendation shall be made to another regional senior judge.

Power of regional senior judge

(10) The regional senior judge may suspend or reassign the judge as the subcommittee recommends. 1994, c. 12, s. 16.

Discretion

(11) The regional senior judge’s discretion to accept or reject the subcommittee’s recommendation is not subject to the direction and supervision of the Chief Justice. 1994, c. 12, s. 16; 1996, c. 25, s. 9 (20).

Exception: complaints against certain judges

(12) If the complaint is against the Chief Justice of the Ontario Court of Justice, an associate chief justice of the Ontario Court of Justice or the regional senior judge who is a member of the Judicial Council, any recommendation under subsection (8) in connection with the complaint shall be made to the Chief Justice of the Superior Court of Justice, who may suspend or reassign the judge as the subcommittee recommends. 1996, c. 25, s. 9 (7).

79

Subcommittee’s decision

(13) When its investigation is complete, the subcommittee shall,

(a) dismiss the complaint;

(b) refer the complaint to the Chief Justice;

(c) refer the complaint to a mediator in accordance with section 51.5; or

(d) refer the complaint to the Judicial Council, with or without recommending that it hold a hearing under section 51.6. 1994, c. 12, s. 16; 1996, c. 25, s. 9 (20).

Same

(14) The subcommittee may dismiss the complaint or refer it to the Chief Justice or to a mediator only if both members agree; otherwise, the complaint shall be referred to the Judicial Council. 1994, c. 12, s. 16; 1996, c. 25, s. 9 (20).

Conditions, reference to Chief Justice

(15) The subcommittee may, if the judge who is the subject of the complaint agrees, impose conditions on a decision to refer the complaint to the Chief Justice. 1994, c. 12, s. 16; 1996, c. 25, s. 9 (20).

Report

(16) The subcommittee shall report to the Judicial Council, without identifying the complainant or the judge who is the subject of the complaint, its disposition of any complaint that is dismissed or referred to the Chief Justice or to a mediator. 1994, c. 12, s. 16; 1996, c. 25, s. 9 (20).

Power of Judicial Council

(17) The Judicial Council shall consider the report, in private, and may approve the subcommittee’s disposition or may require the subcommittee to refer the complaint to the Council. 1994, c. 12, s. 16.

80

Same

(18) The Judicial Council shall consider, in private, every complaint referred to it by the subcommittee, and may,

(a) hold a hearing under section 51.6;

(b) dismiss the complaint;

(c) refer the complaint to the Chief Justice, with or without imposing conditions as referred to in subsection (15); or

(d) refer the complaint to a mediator in accordance with section 51.5. 1994, c. 12, s. 16; 1996, c. 25, s. 9 (20).


(19) The Statutory Powers Procedure Act does not apply to the Judicial Council’s activities under subsections (17) and (18).

Notice to judge and complainant

(20) After making its decision under subsection (17) or (18), the Judicial Council shall communicate it to the judge and the complainant, giving brief reasons in the case of a dismissal.

Guidelines and rules of procedure

(21) In conducting investigations, in making recommendations under subsection (8) and in making decisions under subsections (13) and (15), the subcommittee shall follow the Judicial Council’s guidelines and rules of procedure established under subsection 51.1 (1).

Same

(22) In considering reports and complaints and making decisions under subsections (17) and (18), the Judicial Council shall follow its guidelines and rules of procedure established under subsection 51.1 (1). 1994, c. 12, s. 16.

81

Section Amendments with date in force (d/m/y)1994, c. 12, s. 16 - 28/02/1995; 1996, c. 25, s. 9 (7, 20) - 19/04/1999

Mediation

51.5 (1) The Judicial Council may establish a mediation process for complainants and for judges who are the subject of complaints.

Criteria

(2) If the Judicial Council establishes a mediation process, it must also establish criteria to exclude from the process complaints that are inappropriate for mediation.

Same

(3) Without limiting the generality of subsection (2), the criteria must ensure that complaints are excluded from the mediation process in the following circumstances:

1. There is a significant power imbalance between the complainant and the judge, or there is such a significant disparity between the complainant’s and the judge’s accounts of the event with which the complaint is concerned that mediation would be unworkable.

2. The complaint involves an allegation of sexual misconduct or an allegation of discrimination or harassment because of a prohibited ground of discrimination or harassment referred to in any provision of the Human Rights Code.

3. The public interest requires a hearing of the complaint.

Legal advice

(4) A complaint may be referred to a mediator only if the complainant and the judge consent to the referral, are able to obtain independent legal advice and have had an opportunity to do so

.

82

Trained mediator

(5) The mediator shall be a person who has been trained in mediation and who is not a judge, and if the mediation is conducted by two or more persons acting together, at least one of them must meet those requirements.

Impartiality

(6) The mediator shall be impartial.

Exclusion

(7) No member of the subcommittee that investigated the complaint and no member of the Judicial Council who dealt with the complaint under subsection 51.4 (17) or (18) shall participate in the mediation. 1994, c. 12, s. 16.

Review by Council

(8) The mediator shall report the results of the mediation, without identifying the complainant or the judge who is the subject of the complaint, to the Judicial Council, which shall review the report, in private, and may,

(a) approve the disposition of the complaint; or

(b) if the mediation does not result in a disposition or if the Council is of the opinion that the disposition is not in the public interest,

(i) dismiss the complaint,

(ii) refer the complaint to the Chief Justice, with or without imposing conditions as referred to in subsection 51.4 (15), or

(i) hold a hearing under section 51.6. 1994, c. 12, s. 16; 1996, c. 25, s. 9 (20).

83

Report

(9) If the Judicial Council approves the disposition of the complaint, it may make the results of the mediation public, providing a summary of the complaint but not identifying the complainant or the judge. 1994, c. 12, s. 16.

Referral to Council

(10) At any time during or after the mediation, the complainant or the judge may refer the complaint to the Judicial Council, which shall consider the matter, in private, and may,

(a) dismiss the complaint;

(b) refer the complaint to the Chief Justice, with or without imposing conditions as referred to in subsection 51.4 (15); or

(c) hold a hearing under section 51.6. 1994, c. 12, s. 16; 1996, c. 25, s. 9 (20).


(11) The Statutory Powers Procedure Act does not apply to the Judicial Council’s activities under subsections (8) and (10).

Notice to judge and complainant

(12) After making its decision under subsection (8) or (10), the Judicial Council shall communicate it to the judge and the complainant, giving brief reasons in the case of a dismissal.

Guidelines and rules of procedure

(13) In reviewing reports, considering matters and making decisions under subsections (8) and (10), the Judicial Council shall follow its guidelines and rules of procedure established under subsection 51.1 (1). 1994, c. 12, s. 16.

84

Section Amendments with date in force (d/m/y)1994, c. 12, s. 16 - 28/02/1995; 1996, c. 25, s. 9 (20) - 19/04/1999

Adjudication by Council

51.6 (1) When the Judicial Council decides to hold a hearing, it shall do so in accordance with this section. 1994, c. 12, s. 16

.

Application of SPPA

(2) The Statutory Powers Procedure Act, except section 4 and subsection 9 (1), applies to the hearing. 1994, c. 12, s. 16.

Rules of procedure

(3) The Judicial Council’s rules of procedure established under subsection 51.1 (1) apply to the hearing. 1994, c. 12, s. 16.

Communication re subject-matter of hearing

(4) The members of the Judicial Council participating in the hearing shall not communicate directly or indirectly in relation to the subject-matter of the hearing with any person, unless all the parties and the persons representing the parties under the authority of the Law Society Act receive notice and have an opportunity to participate. 2006, c. 21, Sched. C, s. 105 (3).

Exception

(5) Subsection (4) does not preclude the Judicial Council from engaging counsel to assist it in accordance with subsection 49 (21), and in that case the nature of the advice given by counsel shall be communicated to the parties so that they may make submissions as to the law. 1994, c. 12, s. 16.

Parties

(6) The Judicial Council shall determine who are the parties to the hearing. 1994, c. 12, s. 16.

85

Exception, closed hearing

(7) In exceptional circumstances, if the Judicial Council determines, in accordance with the criteria established under subsection 51.1 (1), that the desirability of holding open hearings is outweighed by the desirability of maintaining confidentiality, it may hold all or part of the hearing in private. 1994, c. 12, s. 16.

Disclosure in exceptional circumstances

(8) If the hearing was held in private, the Judicial Council shall, unless it determines in accordance with the criteria established under subsection 51.1 (1) that there are exceptional circumstances, order that the judge’s name not be disclosed or made public. 1994, c. 12, s. 16.

Orders prohibiting publication

(9) If the complaint involves allegations of sexual misconduct or sexual harassment, the Judicial Council shall, at the request of a complainant or of another witness who testifies to having been the victim of similar conduct by the judge, prohibit the publication of information that might identify the complainant or witness, as the case may be. 1994, c. 12, s. 16.

Publication ban

(10) In exceptional circumstances and in accordance with the criteria established under subsection 51.1 (1), the Judicial Council may make an order prohibiting, pending the disposition of a complaint, the publication of information that might identify the judge who is the subject of the complaint. 1994, c. 12, s. 16.

Dispositions

(11) After completing the hearing, the Judicial Council may dismiss the complaint, with or without a finding that it is unfounded or, if it finds that there has been misconduct by the judge, may,

(a) warn the judge;

(b) reprimand the judge;

86

(c) order the judge to apologize to the complainant or to any other person;

(d) order that the judge take specified measures, such as receiving education or treatment, as a condition of continuing to sit as a judge;

(e) suspend the judge with pay, for any period;

(f) suspend the judge without pay, but with benefits, for a period up to thirty days; or

(g) recommend to the Attorney General that the judge be removed from office in accordance with section 51.8. 1994, c. 12, s. 16.

Same

(12) The Judicial Council may adopt any combination of the dispositions set out in clauses (11) (a) to (f). 1994, c. 12, s. 16.

Disability

(13) If the Judicial Council finds that the judge is unable, because of a disability, to perform the essential duties of the office, but would be able to perform them if his or her needs were accommodated, the Council shall order that the judge’s needs be accommodated to the extent necessary to enable him or her to perform those duties. 1994, c. 12, s. 16.

Application of subs. (13)

(14) Subsection (13) applies if,

(a) the effect of the disability on the judge’s performance of the essential duties of the office was a factor in the complaint; and

(b) the Judicial Council dismisses the complaint or makes a disposition under clauses (11) (a) to (f). 1994, c. 12, s. 16.

Undue hardship

(15) Subsection (13) does not apply if the Judicial Council is satisfied that making an order would impose undue hardship on the person responsible for accommodating the judge’s needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any. 1994, c. 12, s. 16.

87

Opportunity to participate

(16) The Judicial Council shall not make an order under subsection (13) against a person without ensuring that the person has had an opportunity to participate and make submissions. 1994, c. 12, s. 16.

Crown bound

(17) An order made under subsection (13) binds the Crown. 1994, c. 12, s. 16.

Report to Attorney General

(18) The Judicial Council may make a report to the Attorney General about the complaint, investigation, hearing and disposition, subject to any order made under subsection 49 (24), and the Attorney General may make the report public if of the opinion that this would be in the public interest. 1994, c. 12, s. 16.

Non-identification of persons

(19) The following persons shall not be identified in the report:

1. A complainant or witness at whose request an order was made under subsection (9).

2. The judge, if the hearing was conducted in private, unless the Judicial Council orders that the judge’s name be disclosed. 1994, c. 12, s. 16.

Continuing publication ban

(20) If an order was made under subsection (10) and the Judicial Council dismisses the complaint with a finding that it was unfounded, the judge shall not be identified in the report without his or her consent and the Council shall order that information that relates to the complaint and might identify the judge shall never be made public without his or her consent. 1994, c. 12, s. 16.

Section Amendments with date in force (d/m/y)1994, c. 12, s. 16 - 28/02/19952006, c. 21, Sched. C, s. 105 (3) - 01/05/2007

88

Compensation

51.7 (1) When the Judicial Council has dealt with a complaint against a provincial judge, it shall consider whether the judge should be compensated for his or her costs for legal services incurred in connection with all the steps taken under sections 51.4, 51.5 and 51.6 and this section in relation to the complaint.

Consideration of question combined with hearing

(2) If the Judicial Council holds a hearing into the complaint, its consideration of the question of compensation shall be combined with the hearing.

Public or private consideration of question

(3) The Judicial Council’s consideration of the question of compensation shall take place in public if there was a public hearing into the complaint, and otherwise shall take place in private.

Recommendation

(4) If the Judicial Council is of the opinion that the judge should be compensated, it shall make a recommendation to the Attorney General to that effect, indicating the amount of compensation.

Same

(5) If the complaint is dismissed after a hearing, the Judicial Council shall recommend to the Attorney General that the judge be compensated for his or her costs for legal services and shall indicate the amount.

Disclosure of name

(6) The Judicial Council’s recommendation to the Attorney General shall name the judge, but the Attorney General shall not disclose the name unless there was a public hearing into the complaint or the Council has otherwise made the judge’s name public.

89

Amount of compensation

(7) The amount of compensation recommended under subsection (4) or (5) may relate to all or part of the judge’s costs for legal services, and shall be based on a rate for legal services that does not exceed the maximum rate normally paid by the Government of Ontario for similar services.

Payment

(8) The Attorney General shall pay compensation to the judge in accordance with the recommendation. 1994, c. 12, s. 16.


Removal for cause

51.8 (1) A provincial judge may be removed from office only if,

(a) a complaint about the judge has been made to the Judicial Council; and

(b) the Judicial Council, after a hearing under section 51.6, recommends to the Attorney General that the judge be removed on the ground that he or she has become incapacitated or disabled from the due execution of his or her office by reason of,

(i) inability, because of a disability, to perform the essential duties of his or her office (if an order to accommodate the judge’s needs would not remedy the inability, or could not be made because it would impose undue hardship on the person responsible for meeting those needs, or was made but did not remedy the inability),

(ii) conduct that is incompatible with the due execution of his or her office, or

(ii) failure to perform the duties of his or her office. 1994, c. 12, s. 16.

Tabling of recommendation

(2) The Attorney General shall table the recommendation in the Assembly if it is in session or, if not, within fifteen days after the commencement of the next session. 1994, c. 12, s. 16.

90

Order for removal

(3) An order removing a provincial judge from office under this section may be made by the Lieutenant Governor on the address of the Assembly. 1994, c. 12, s. 16.

Application

(4) This section applies to provincial judges who have not yet attained retirement age and to provincial judges whose continuation in office after attaining retirement age has been approved under subsection 47 (3), (4) or (5). 1994, c. 12, s. 16.

(5) REPEALED: 2017, c. 2, Sched. 2, s. 10.

Section Amendments with date in force (d/m/y)1994, c. 12, s. 16 - 28/02/1995 2017, c. 2, Sched. 2, s. 10 - 22/03/2017

Standards of conduct

51.9 (1) The Chief Justice of the Ontario Court of Justice may establish standards of conduct for provincial judges, including a plan for bringing the standards into effect, and may implement the standards and plan when they have been reviewed and approved by the Judicial Council. 1994, c. 12, s. 16; 1996, c. 25, s. 9 (18, 20).

Duty of Chief Justice

(2) The Chief Justice shall ensure that any standards of conduct are made available to the public, in English and French, when they have been approved by the Judicial Council. 1994, c. 12, s. 16; 1996, c. 25, s. 9 (20); 2006, c. 21, Sched. A, s. 6.

Goals

(3) The following are among the goals that the Chief Justice may seek to achieve by implementing standards of conduct for judges:

1. Recognizing the independence of the judiciary.

91

2. Maintaining the high quality of the justice system and ensuring the efficient administration of justice.

3. Enhancing equality and a sense of inclusiveness in the justice system.

4. Ensuring that judges’ conduct is consistent with the respect accorded to them.

5. Emphasizing the need to ensure the professional and personal development of judges and the growth of their social awareness through continuing education. 1994, c. 12, s. 16; 1996, c. 25, s. 9 (20).

Section Amendments with date in force (d/m/y)1994, c. 12, s. 16 - 28/02/1995; 1996, c. 25, s. 9 (18, 20) - 19/04/19992006, c. 21, Sched. A, s. 6 - 19/10/2006

Continuing education

51.10 (1) The Chief Justice of the Ontario Court of Justice shall establish a plan for the continuing education of provincial judges, and shall implement the plan when it has been reviewed and approved by the Judicial Council. 1994, c. 12, s. 16; 1996, c. 25, s. 9 (18, 20).

Duty of Chief Justice

(2) The Chief Justice shall ensure that the plan for continuing education is made available to the public, in English and French, when it has been approved by the Judicial Council. 1994, c. 12, s. 16; 1996, c. 25, s. 9 (20).

Goals

(3) Continuing education of judges has the following goals:

1. Maintaining and developing professional competence.

2. Maintaining and developing social awareness.

3. Encouraging personal growth. 1994, c. 12, s. 16.

Section Amendments with date in force (d/m/y)1994, c. 12, s. 16 - 28/02/1995; 1996, c. 25, s. 9 (18, 20) - 19/04/1999

92

93

APPENDIX B - Statutory Powers Procedure Act

R.S.O. 1990, CHAPTER S.22

CONTENTS1. Interpretation

2. Liberal construction of Act and rules

3. Application of Act

4. Waiver

4.1 Disposition without hearing

4.2 Panels, certain matters

4.2.1 Panel of one, reduced panel

4.3 Expiry of term

4.4 Incapacity of member

4.5 Decision not to process commencement of proceeding

4.6 Dismissal of proceeding without hearing

4.7 Classifying proceedings

4.8 Alternative dispute resolution

4.9 Mediators, etc.: not compellable, notes not evidence

5. Parties

5.1 Written hearings

5.2 Electronic hearings

5.2.1 Different kinds of hearings in one proceeding

5.3 Pre-hearing conferences

5.4 Disclosure

6. Notice of hearing

7. Effect of non-attendance at hearing after due notice

94

8. Where character, etc., of a party is in issue

9. Hearings to be public; maintenance of order

9.1 Proceedings involving similar questions

10. Right to representation

10.1 Examination of witnesses

11. Rights of witnesses to representation

12. Summonses

13. Contempt proceedings

14. Protection for witnesses

15. Evidence

15.1 Use of previously admitted evidence

15.2 Witness panels

16. Notice of facts and opinions

16.1 Interim decisions and orders

16.2 Time frames

17. Decision; interest

17.1 Costs

18. Notice of decision

19. Enforcement of orders

20. Record of proceeding

21. Adjournments

21.1 Correction of errors

21.2 Power to review

22. Administration of oaths

95

23. Powers re control of proceedings

24. Notice, etc.

25. Appeal operates as stay, exception

25.0.1 Control of process

25.1 Rules

26. Regulations

27. Rules, etc., available to public

28. Substantial compliance

32. Conflict

Interpretation

1. (1) In this Act,

“electronic hearing” means a hearing held by conference telephone or some other form of electronic technology allowing persons to hear one another; (“audience électronique”)

“hearing” means a hearing in any proceeding; (“audience”)

“licence” includes any permit, certificate, approval, registration or similar form of permission required by law; (“autorisation”)

“municipality” has the same meaning as in the Municipal Affairs Act; (“municipalité”)

“oral hearing” means a hearing at which the parties or their representatives attend before the tribunal in person; (“audience orale”)

“proceeding” means a proceeding to which this Act applies; (“instance”)

96


“representative” means, in respect of a proceeding to which this Act applies, a person authorized under the Law Society Act to represent a person in that proceeding; (“représentant”)

“statutory power of decision” means a power or right, conferred by or under a statute, to make a decision deciding or prescribing,

(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or

(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person is legally entitled thereto or not; (“compétence légale de décision”)

“tribunal” means one or more persons, whether or not incorporated and however described, upon which a statutory power of decision is conferred by or under a statute; (“tribunal”)

“written hearing” means a hearing held by means of the exchange of documents, whether in written form or by electronic means. (“audience écrite”) R.S.O. 1990, c. S.22, s. 1 (1); 1994, c. 27, s. 56 (1-3); 2002, c. 17, Sched. F, Table; 2006, c. 21, Sched. C, s. 134 (1, 2).

Meaning of “person” extended(2) A municipality, an unincorporated association of employers, a trade union or

council of trade unions who may be a party to a proceeding in the exercise of a statutory power of decision under the statute conferring the power shall be deemed to be a person for the purpose of any provision of this Act or of any rule made under this Act that applies to parties. R.S.O. 1990, c. S.22, s. 1 (2).


1994, c. 27, s. 56 (1-3) - 1/04/1995 2002, c. 17, Sched. F, Table - 1/01/2003 2006, c. 21, Sched. C, s. 134 (1, 2) - 1/05/2007

97

http://www.ontario.ca/laws/statute/S06021#schedcs134s1




Liberal construction of Act and rules2. This Act, and any rule made by a tribunal under subsection 17.1 (4) or section

25.1, shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits. 1999, c. 12, Sched. B, s. 16 (1); 2006, c. 19, Sched. B, s. 21 (1).


1999, c. 12, Sched. B, s. 16 (1) - 14/02/2000

2006, c. 19, Sched. B, s. 21 (1) - 22/06/2006

Application of Act3. (1) Subject to subsection (2), this Act applies to a proceeding by a tribunal in the

exercise of a statutory power of decision conferred by or under an Act of the Legislature, where the tribunal is required by or under such Act or otherwise by law to hold or to afford to the parties to the proceeding an opportunity for a hearing before making a decision. R.S.O. 1990, c. S.22, s. 3 (1); 1994, c. 27, s. 56 (5).

Where Act does not apply(2) This Act does not apply to a proceeding,

(a) before the Assembly or any committee of the Assembly;

(b) in or before,

(i) the Court of Appeal,

(ii) the Superior Court of Justice,

(iii) the Ontario Court of Justice,

(iv) the Family Court of the Superior Court of Justice,

(v) the Small Claims Court, or

(vi) a justice of the peace;

(c) to which the Rules of Civil Procedure apply;

98



http://www.ontario.ca/laws/statute/S06019#schedbs21s1

http://www.ontario.ca/fr/lois/loi/90s22#s2

(d) before an arbitrator to which the Arbitrations Act or the Labour Relations Act applies;

(e) at a coroner’s inquest;

(f) of a commission appointed under the Public Inquiries Act, 2009;

(g) of one or more persons required to make an investigation and to make a report, with or without recommendations, where the report is for the information or advice of the person to whom it is made and does not in any way legally bind or limit that person in any decision he or she may have power to make; or

(h) of a tribunal empowered to make regulations, rules or by-laws in so far as its power to make regulations, rules or by-laws is concerned. R.S.O. 1990, c. S.22, s. 3 (2); 1994, c. 27, s. 56 (6); 2006, c. 19, Sched. C, s. 1 (1, 2, 4); 2009, c. 33, Sched. 6, s. 87.


1994, c. 27, s. 56 (5, 6) - 1/04/1995

2006, c. 19, Sched. C, s. 1 (1, 2, 4) - 22/06/2006

2009, c. 33, Sched. 6, s. 87 - 1/06/2011

Waiver

Waiver of procedural requirement4. (1) Any procedural requirement of this Act, or of another Act or a regulation that

applies to a proceeding, may be waived with the consent of the parties and the tribunal. 1997, c. 23, s. 13 (1).

Same, rules(2) Any provision of a tribunal’s rules made under section 25.1 may be waived in

accordance with the rules. 1994, c. 27, s. 56 (7).


1994, c. 27, s. 56 (7) - 1/04/1995; 1997, c. 23, s. 13 (1) - 28/11/1997

99



http://www.ontario.ca/laws/statute/S09033#sched6s87


Disposition without hearing4.1 If the parties consent, a proceeding may be disposed of by a decision of the

tribunal given without a hearing, unless another Act or a regulation that applies to the proceeding provides otherwise. 1997, c. 23, s. 13 (2).


1997, c. 23, s. 13 (2) - 28/11/1997

Panels, certain matters4.2 (1) A procedural or interlocutory matter in a proceeding may be heard and

determined by a panel consisting of one or more members of the tribunal, as assigned by the chair of the tribunal. 1994, c. 27, s. 56 (8).

Assignments(2) In assigning members of the tribunal to a panel, the chair shall take into

consideration any requirement imposed by another Act or a regulation that applies to the proceeding that the tribunal be representative of specific interests. 1997, c. 23, s. 13 (3).

Decision of panel(3) The decision of a majority of the members of a panel, or their unanimous decision

in the case of a two-member panel, is the tribunal’s decision. 1994, c. 27, s. 56 (8).


1994, c. 27, s. 56 (8) - 1/04/1995; 1997, c. 23, s. 13 (3) - 28/11/1997

Panel of one, reduced panelPanel of one

4.2.1 (1) The chair of a tribunal may decide that a proceeding be heard by a panel of one person and assign the person to hear the proceeding unless there is a statutory requirement in another Act that the proceeding be heard by a panel of more than one person.

100

http://www.ontario.ca/fr/lois/loi/90s22#s4p2p1s1

http://www.ontario.ca/fr/lois/loi/90s22#s4p2s3



http://www.ontario.ca/fr/lois/loi/90s22#s4p1

Reduction in number of panel members(2) Where there is a statutory requirement in another Act that a proceeding be heard

by a panel of a specified number of persons, the chair of the tribunal may assign to the panel one person or any lesser number of persons than the number specified in the other Act if all parties to the proceeding consent. 1999, c. 12, Sched. B, s. 16 (2).


1999, c. 12, Sched. B, s. 16 (2) - 14/02/2000

Expiry of term4.3 If the term of office of a member of a tribunal who has participated in a hearing

expires before a decision is given, the term shall be deemed to continue, but only for the purpose of participating in the decision and for no other purpose. 1997, c. 23, s. 13 (4).


1997, c. 23, s. 13 (4) - 28/11/1997

Incapacity of member4.4 (1) If a member of a tribunal who has participated in a hearing becomes unable,

for any reason, to complete the hearing or to participate in the decision, the remaining member or members may complete the hearing and give a decision. 1994, c. 27, s. 56 (9).

Other Acts and regulations(2) Subsection (1) does not apply if another Act or a regulation specifically deals with

the issue of what takes place in the circumstances described in subsection (1). 1997, c. 23, s. 13 (5).


1994, c. 27, s. 56 (9) - 1/04/1995; 1997, c. 23, s. 13 (5) - 28/11/1997

Decision not to process commencement of proceeding

101




http://www.ontario.ca/fr/lois/loi/90s22#s4p2p1s2

4.5 (1) Subject to subsection (3), upon receiving documents relating to the commencement of a proceeding, a tribunal or its administrative staff may decide not to process the documents relating to the commencement of the proceeding if,

(a) the documents are incomplete;

(b) the documents are received after the time required for commencing the proceeding has elapsed;

(c) the fee required for commencing the proceeding is not paid; or

(d) there is some other technical defect in the commencement of the proceeding.

Notice(2) A tribunal or its administrative staff shall give the party who commences a

proceeding notice of its decision under subsection (1) and shall set out in the notice the reasons for the decision and the requirements for resuming the processing of the documents.

Rules under s. 25.1(3) A tribunal or its administrative staff shall not make a decision under subsection (1)

unless the tribunal has made rules under section 25.1 respecting the making of such decisions and those rules shall set out,

(a) any of the grounds referred to in subsection (1) upon which the tribunal or its administrative staff may decide not to process the documents relating to the commencement of a proceeding; and

(b) the requirements for the processing of the documents to be resumed.

Continuance of provisions in other statutes(4) Despite section 32, nothing in this section shall prevent a tribunal or its

administrative staff from deciding not to process documents relating to the commencement of a proceeding on grounds that differ from those referred to in subsection (1) or without complying with subsection (2) or (3) if the tribunal or its staff does so in accordance with the provisions of an Act that are in force on the day this section comes into force. 1999, c. 12, Sched. B, s. 16 (3).


102





1999, c. 12, Sched. B, s. 16 (3) - 14/02/2000

Dismissal of proceeding without hearing4.6 (1) Subject to subsections (5) and (6), a tribunal may dismiss a proceeding

without a hearing if,

(a) the proceeding is frivolous, vexatious or is commenced in bad faith;

(b) the proceeding relates to matters that are outside the jurisdiction of the tribunal; or

(c) some aspect of the statutory requirements for bringing the proceeding has not been met.

Notice(2) Before dismissing a proceeding under this section, a tribunal shall give notice of

its intention to dismiss the proceeding to,

(a) all parties to the proceeding if the proceeding is being dismissed for reasons referred to in clause (1) (b); or

(b) the party who commences the proceeding if the proceeding is being dismissed for any other reason.

Same(3) The notice of intention to dismiss a proceeding shall set out the reasons for the

dismissal and inform the parties of their right to make written submissions to the tribunal with respect to the dismissal within the time specified in the notice.

Right to make submissions(4) A party who receives a notice under subsection (2) may make written submissions

to the tribunal with respect to the dismissal within the time specified in the notice.

Dismissal(5) A tribunal shall not dismiss a proceeding under this section until it has given notice

under subsection (2) and considered any submissions made under subsection (4).

Rules(6) A tribunal shall not dismiss a proceeding under this section unless it has made

rules under section 25.1 respecting the early dismissal of proceedings and those rules shall include,

103







(a) any of the grounds referred to in subsection (1) upon which a proceeding may be dismissed;

(b) the right of the parties who are entitled to receive notice under subsection (2) to make submissions with respect to the dismissal; and

(c) the time within which the submissions must be made.

Continuance of provisions in other statutes(7) Despite section 32, nothing in this section shall prevent a tribunal from dismissing

a proceeding on grounds other than those referred to in subsection (1) or without complying with subsections (2) to (6) if the tribunal dismisses the proceeding in accordance with the provisions of an Act that are in force on the day this section comes into force. 1999, c. 12, Sched. B, s. 16 (3).


1999, c. 12, Sched. B, s. 16 (3) - 14/02/2000

Classifying proceedings4.7 A tribunal may make rules under section 25.1 classifying the types of proceedings

that come before it and setting guidelines as to the procedural steps or processes (such as preliminary motions, pre-hearing conferences, alternative dispute resolution mechanisms, expedited hearings) that apply to each type of proceeding and the circumstances in which other procedures may apply. 1999, c. 12, Sched. B, s. 16 (3).


1999, c. 12, Sched. B, s. 16 (3) - 14/02/2000

Alternative dispute resolution4.8 (1) A tribunal may direct the parties to a proceeding to participate in an alternative

dispute resolution mechanism for the purposes of resolving the proceeding or an issue arising in the proceeding if,

(a) it has made rules under section 25.1 respecting the use of alternative dispute resolution mechanisms; and

(b) all parties consent to participating in the alternative dispute resolution mechanism.

104




Definition(2) In this section,

“alternative dispute resolution mechanism” includes mediation, conciliation, negotiation or any other means of facilitating the resolution of issues in dispute.

Rules(3) A rule under section 25.1 respecting the use of alternative dispute resolution

mechanisms shall include procedural guidelines to deal with the following:

1. The circumstances in which a settlement achieved by means of an alternative dispute resolution mechanism must be reviewed and approved by the tribunal.

2. Any requirement, statutory or otherwise, that there be an order by the tribunal.

Mandatory alternative dispute resolution(4) A rule under subsection (3) may provide that participation in an alternative dispute

resolution mechanism is mandatory or that it is mandatory in certain specified circumstances.

Person appointed to mediate, etc.(5) A rule under subsection (3) may provide that a person appointed to mediate,

conciliate, negotiate or help resolve a matter by means of an alternative dispute resolution mechanism be a member of the tribunal or a person independent of the tribunal. However, a member of the tribunal who is so appointed with respect to a matter in a proceeding shall not subsequently hear the matter if it comes before the tribunal unless the parties consent.

Continuance of provisions in other statutes(6) Despite section 32, nothing in this section shall prevent a tribunal from directing

parties to a proceeding to participate in an alternative dispute resolution mechanism even though the requirements of subsections (1) to (5) have not been met if the tribunal does so in accordance with the provisions of an Act that are in force on the day this section comes into force. 1999, c. 12, Sched. B, s. 16 (3).

105







1999, c. 12, Sched. B, s. 16 (3) - 14/02/2000

Mediators, etc.: not compellable, notes not evidenceMediators, etc., not compellable

4.9 (1) No person employed as a mediator, conciliator or negotiator or otherwise appointed to facilitate the resolution of a matter before a tribunal by means of an alternative dispute resolution mechanism shall be compelled to give testimony or produce documents in a proceeding before the tribunal or in a civil proceeding with respect to matters that come to his or her knowledge in the course of exercising his or her duties under this or any other Act.

Evidence in civil proceedings(2) No notes or records kept by a mediator, conciliator or negotiator or by any other

person appointed to facilitate the resolution of a matter before a tribunal by means of an alternative dispute resolution mechanism under this or any other Act are admissible in a civil proceeding. 1999, c. 12, Sched. B, s. 16 (3).


1999, c. 12, Sched. B, s. 16 (3) - 14/02/2000

Parties5. The parties to a proceeding shall be the persons specified as parties by or under

the statute under which the proceeding arises or, if not so specified, persons entitled by law to be parties to the proceeding. R.S.O. 1990, c. S.22, s. 5.

Written hearings5.1 (1) A tribunal whose rules made under section 25.1 deal with written hearings

may hold a written hearing in a proceeding. 1997, c. 23, s. 13 (6).

Exception(2) The tribunal shall not hold a written hearing if a party satisfies the tribunal that

there is good reason for not doing so.

Same

106






(2.1) Subsection (2) does not apply if the only purpose of the hearing is to deal with procedural matters. 1999, c. 12, Sched. B, s. 16 (4).

107

http://www.ontario.ca/fr/lois/loi/90s22#s5p1s2p1

Documents(3) In a written hearing, all the parties are entitled to receive every document that the

tribunal receives in the proceeding. 1994, c. 27, s. 56 (10).


1994, c. 27, s. 56 (10) - 1/04/1995; 1997, c. 23, s. 13 (6) - 28/11/1997; 1999, c. 12, Sched. B, s. 16 (4) - 14/02/2000

Electronic hearings5.2 (1) A tribunal whose rules made under section 25.1 deal with electronic hearings

may hold an electronic hearing in a proceeding. 1997, c. 23, s. 13 (7).

Exception(2) The tribunal shall not hold an electronic hearing if a party satisfies the tribunal that

holding an electronic rather than an oral hearing is likely to cause the party significant prejudice.

Same(3) Subsection (2) does not apply if the only purpose of the hearing is to deal with

procedural matters.

Participants to be able to hear one another(4) In an electronic hearing, all the parties and the members of the tribunal

participating in the hearing must be able to hear one another and any witnesses throughout the hearing. 1994, c. 27, s. 56 (10).


1994, c. 27, s. 56 (10) - 1/04/1995; 1997, c. 23, s. 13 (7) - 28/11/1997

Different kinds of hearings in one proceeding5.2.1 A tribunal may, in a proceeding, hold any combination of written, electronic and

oral hearings. 1997, c. 23, s. 13 (8).

108

http://www.ontario.ca/fr/lois/loi/90s22#s5p2p1







1997, c. 23, s. 13 (8) - 28/11/1997

Pre-hearing conferences5.3 (1) If the tribunal’s rules made under section 25.1 deal with pre-hearing

conferences, the tribunal may direct the parties to participate in a pre-hearing conference to consider,

(a) the settlement of any or all of the issues;

(b) the simplification of the issues;

(c) facts or evidence that may be agreed upon;

(d) the dates by which any steps in the proceeding are to be taken or begun;

(e) the estimated duration of the hearing; and

(f) any other matter that may assist in the just and most expeditious disposition of the proceeding. 1994, c. 27, s. 56 (11); 1997, c. 23, s. 13 (9).

Other Acts and regulations(1.1) The tribunal’s power to direct the parties to participate in a pre-hearing

conference is subject to any other Act or regulation that applies to the proceeding. 1997, c. 23, s. 13 (10).

Who presides(2) The chair of the tribunal may designate a member of the tribunal or any other

person to preside at the pre-hearing conference.

Orders(3) A member who presides at a pre-hearing conference may make such orders as he

or she considers necessary or advisable with respect to the conduct of the proceeding, including adding parties.

Disqualification

109





(4) A member who presides at a pre-hearing conference at which the parties attempt to settle issues shall not preside at the hearing of the proceeding unless the parties consent. 1994, c. 27, s. 56 (11).

Application of s. 5.2(5) Section 5.2 applies to a pre-hearing conference, with necessary modifications.

1997, c. 23, s. 13 (10).


1994, c. 27, s. 56 (11) - 1/04/1995; 1997, c. 23, s. 13 (9, 10) - 28/11/1997

Disclosure5.4 (1) If the tribunal’s rules made under section 25.1 deal with disclosure, the

tribunal may, at any stage of the proceeding before all hearings are complete, make orders for,

(a) the exchange of documents;

(b) the oral or written examination of a party;

(c) the exchange of witness statements and reports of expert witnesses;

(d) the provision of particulars;

(e) any other form of disclosure. 1994, c. 27, s. 56 (12); 1997, c. 23, s. 13 (11).

Other Acts and regulations(1.1) The tribunal’s power to make orders for disclosure is subject to any other Act or

regulation that applies to the proceeding. 1997, c. 23, s. 13 (12).

Exception, privileged information(2) Subsection (1) does not authorize the making of an order requiring disclosure of

privileged information. 1994, c. 27, s. 56 (12).


110






1994, c. 27, s. 56 (12) - 1/04/1995; 1997, c. 23, s. 13 (11, 12) - 28/11/1997

Notice of hearing6. (1) The parties to a proceeding shall be given reasonable notice of the hearing by

the tribunal. R.S.O. 1990, c. S.22, s. 6 (1).

Statutory authority(2) A notice of a hearing shall include a reference to the statutory authority under

which the hearing will be held.

Oral hearing(3) A notice of an oral hearing shall include,

(a) a statement of the time, place and purpose of the hearing; and

(b) a statement that if the party notified does not attend at the hearing, the tribunal may proceed in the party’s absence and the party will not be entitled to any further notice in the proceeding. 1994, c. 27, s. 56 (13).

Written hearing(4) A notice of a written hearing shall include,

(a) a statement of the date and purpose of the hearing, and details about the manner in which the hearing will be held;

(b) a statement that the hearing shall not be held as a written hearing if the party satisfies the tribunal that there is good reason for not holding a written hearing (in which case the tribunal is required to hold it as an electronic or oral hearing) and an indication of the procedure to be followed for that purpose;

(c) a statement that if the party notified neither acts under clause (b) nor participates in the hearing in accordance with the notice, the tribunal may proceed without the party’s participation and the party will not be entitled to any further notice in the proceeding. 1994, c. 27, s. 56 (13); 1997, c. 23, s. 13 (13); 1999, c. 12, Sched. B, s. 16 (5).

Electronic hearing(5) A notice of an electronic hearing shall include,

111






(a) a statement of the time and purpose of the hearing, and details about the manner in which the hearing will be held;

(b) a statement that the only purpose of the hearing is to deal with procedural matters, if that is the case;

(c) if clause (b) does not apply, a statement that the party notified may, by satisfying the tribunal that holding the hearing as an electronic hearing is likely to cause the party significant prejudice, require the tribunal to hold the hearing as an oral hearing, and an indication of the procedure to be followed for that purpose; and

(d) a statement that if the party notified neither acts under clause (c), if applicable, nor participates in the hearing in accordance with the notice, the tribunal may proceed without the party’s participation and the party will not be entitled to any further notice in the proceeding. 1994, c. 27, s. 56 (13).


1994, c. 27, s. 56 (13) - 1/04/1995; 1997, c. 23, s. 13 (13) - 28/11/1997; 1999, c. 12, Sched. B, s. 16 (5) - 14/02/2000

Effect of non-attendance at hearing after due notice7. (1) Where notice of an oral hearing has been given to a party to a proceeding in

accordance with this Act and the party does not attend at the hearing, the tribunal may proceed in the absence of the party and the party is not entitled to any further notice in the proceeding. R.S.O. 1990, c. S.22, s. 7; 1994, c. 27, s. 56 (14).

Same, written hearings(2) Where notice of a written hearing has been given to a party to a proceeding in

accordance with this Act and the party neither acts under clause 6 (4) (b) nor participates in the hearing in accordance with the notice, the tribunal may proceed without the party’s participation and the party is not entitled to any further notice in the proceeding.

Same, electronic hearings(3) Where notice of an electronic hearing has been given to a party to a proceeding in

accordance with this Act and the party neither acts under clause 6 (5) (c), if applicable, nor participates in the hearing in accordance with the notice, the tribunal may proceed without the party’s participation and the party is not entitled to any further notice in the proceeding. 1994, c. 27, s. 56 (15).

112





1994, c. 27, s. 56 (14, 15) - 1/04/1995

Where character, etc., of a party is in issue8. Where the good character, propriety of conduct or competence of a party is an

issue in a proceeding, the party is entitled to be furnished prior to the hearing with reasonable information of any allegations with respect thereto. R.S.O. 1990, c. S.22, s. 8.

Hearings to be public; maintenance of orderHearings to be public, exceptions

9. (1) An oral hearing shall be open to the public except where the tribunal is of the opinion that,

(a) matters involving public security may be disclosed; or

(b) intimate financial or personal matters or other matters may be disclosed at the hearing of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interests of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public,

in which case the tribunal may hold the hearing in the absence of the public. R.S.O. 1990, c. S.22, s. 9 (1); 1994, c. 27, s. 56 (16).

Written hearings(1.1) In a written hearing, members of the public are entitled to reasonable access to

the documents submitted, unless the tribunal is of the opinion that clause (1) (a) or (b) applies. 1994, c. 27, s. 56 (17).

Electronic hearings(1.2) An electronic hearing shall be open to the public unless the tribunal is of the

opinion that,

(a) it is not practical to hold the hearing in a manner that is open to the public; or

113

http://www.ontario.ca/fr/lois/loi/90s22#s9s1p2




(b) clause (1) (a) or (b) applies. 1997, c. 23, s. 13 (14).

Maintenance of order at hearings(2) A tribunal may make such orders or give such directions at an oral or electronic

hearing as it considers necessary for the maintenance of order at the hearing, and, if any person disobeys or fails to comply with any such order or direction, the tribunal or a member thereof may call for the assistance of any peace officer to enforce the order or direction, and every peace officer so called upon shall take such action as is necessary to enforce the order or direction and may use such force as is reasonably required for that purpose. R.S.O. 1990, c. S.22, s. 9 (2); 1994, c. 27, s. 56 (18).


1994, c. 27, s. 56 (16-18) - 1/04/1995; 1997, c. 23, s. 13 (14) - 28/11/1997

Proceedings involving similar questions9.1 (1) If two or more proceedings before a tribunal involve the same or similar

questions of fact, law or policy, the tribunal may,

(a) combine the proceedings or any part of them, with the consent of the parties;

(b) hear the proceedings at the same time, with the consent of the parties;

(c) hear the proceedings one immediately after the other; or

(d) stay one or more of the proceedings until after the determination of another one of them.

Exception(2) Subsection (1) does not apply to proceedings to which the Consolidated Hearings

Act applies. 1994, c. 27, s. 56 (19).

Same(3) Clauses (1) (a) and (b) do not apply to a proceeding if,

(a) any other Act or regulation that applies to the proceeding requires that it be heard in private;

114





(b) the tribunal is of the opinion that clause 9 (1) (a) or (b) applies to the proceeding. 1994, c. 27, s. 56 (19); 1997, c. 23, s. 13 (15).

115

Conflict, consent requirements(4) The consent requirements of clauses (1) (a) and (b) do not apply if another Act or

a regulation that applies to the proceedings allows the tribunal to combine them or hear them at the same time without the consent of the parties. 1997, c. 23, s. 13 (16).

Use of same evidence(5) If the parties to the second-named proceeding consent, the tribunal may treat

evidence that is admitted in a proceeding as if it were also admitted in another proceeding that is heard at the same time under clause (1) (b). 1994, c. 27, s. 56 (19).


1994, c. 27, s. 56 (19) - 1/04/1995; 1997, c. 23, s. 13 (15, 16) - 28/11/1997

Right to representation10. A party to a proceeding may be represented by a representative. 2006, c. 21,

Sched. C, s. 134 (3).


1994, c. 27, s. 56 (20) - 1/04/1995

2006, c. 21, Sched. C, s. 134 (3) - 1/05/2007

Examination of witnesses 10.1 A party to a proceeding may, at an oral or electronic hearing,

(a) call and examine witnesses and present evidence and submissions; and

(b) conduct cross-examinations of witnesses at the hearing reasonably required for a full and fair disclosure of all matters relevant to the issues in the proceeding. 1994, c. 27, s. 56 (20).


1994, c. 27, s. 56 (20) - 1/04/1995

116






Rights of witnesses to representation11. (1) A witness at an oral or electronic hearing is entitled to be advised by a

representative as to his or her rights, but such representative may take no other part in the hearing without leave of the tribunal. 2006, c. 21, Sched. C, s. 134 (4).

Idem(2) Where an oral hearing is closed to the public, the witness’s representative is not

entitled to be present except when that witness is giving evidence. R.S.O. 1990, c. S.22, s. 11 (2); 1994, c. 27, s. 56 (22); 2006, c. 21, Sched. C, s. 134 (5).


1994, c. 27, s. 56 (21, 22) - 1/04/1995

2006, c. 21, Sched. C, s. 134 (4, 5) - 1/05/2007

117




Summonses12. (1) A tribunal may require any person, including a party, by summons,

(a) to give evidence on oath or affirmation at an oral or electronic hearing; and

(b) to produce in evidence at an oral or electronic hearing documents and things specified by the tribunal,

relevant to the subject-matter of the proceeding and admissible at a hearing. R.S.O. 1990, c. S.22, s. 12 (1); 1994, c. 27, s. 56 (23).

Form and service of summons(2) A summons issued under subsection (1) shall be in the prescribed form (in

English or French) and,

(a) where the tribunal consists of one person, shall be signed by him or her;

(b) where the tribunal consists of more than one person, shall be signed by the chair of the tribunal or in such other manner as documents on behalf of the tribunal may be signed under the statute constituting the tribunal. 1994, c. 27, s. 56 (24).

Same(3) The summons shall be served personally on the person summoned. 1994, c. 27,

s. 56 (24).

Fees and allowances(3.1) The person summoned is entitled to receive the same fees or allowances for

attending at or otherwise participating in the hearing as are paid to a person summoned to attend before the Superior Court of Justice. 1994, c. 27, s. 56 (24); 2006, c. 19, Sched. C, s. 1 (1).

Bench warrant(4) A judge of the Superior Court of Justice may issue a warrant against a person if

the judge is satisfied that,

(a) a summons was served on the person under this section;

(b) the person has failed to attend or to remain in attendance at the hearing (in the case of an oral hearing) or has failed otherwise to participate in the hearing (in the case of an electronic hearing) in accordance with the summons; and

118






(c) the person’s attendance or participation is material to the ends of justice. 1994, c. 27, s. 56 (25); 2006, c. 19, Sched. C, s. 1 (1).

Same(4.1) The warrant shall be in the prescribed form (in English or French), directed to

any police officer, and shall require the person to be apprehended anywhere within Ontario, brought before the tribunal forthwith and,

(a) detained in custody as the judge may order until the person’s presence as a witness is no longer required; or

(b) in the judge’s discretion, released on a recognizance, with or without sureties, conditioned for attendance or participation to give evidence. 1994, c. 27, s. 56 (25).

Proof of service(5) Service of a summons may be proved by affidavit in an application to have a

warrant issued under subsection (4). 1994, c. 27, s. 56 (26).

Certificate of facts(6) Where an application to have a warrant issued is made on behalf of a tribunal, the

person constituting the tribunal or, if the tribunal consists of more than one person, the chair of the tribunal may certify to the judge the facts relied on to establish that the attendance or other participation of the person summoned is material to the ends of justice, and the judge may accept the certificate as proof of the facts. 1994, c. 27, s. 56 (26).

Same(7) Where the application is made by a party to the proceeding, the facts relied on to

establish that the attendance or other participation of the person is material to the ends of justice may be proved by the party’s affidavit. 1994, c. 27, s. 56 (26).


1994, c. 27, s. 56 (23-26) - 1/04/1995

2006, c. 19, Sched. C, s. 1 (1) - 22/06/2006

119






Contempt proceedings13. (1) Where any person without lawful excuse,

(a) on being duly summoned under section 12 as a witness at a hearing makes default in attending at the hearing; or

(b) being in attendance as a witness at an oral hearing or otherwise participating as a witness at an electronic hearing, refuses to take an oath or to make an affirmation legally required by the tribunal to be taken or made, or to produce any document or thing in his or her power or control legally required by the tribunal to be produced by him or her or to answer any question to which the tribunal may legally require an answer; or

(c) does any other thing that would, if the tribunal had been a court of law having power to commit for contempt, have been contempt of that court,

the tribunal may, of its own motion or on the motion of a party to the proceeding, state a case to the Divisional Court setting out the facts and that court may inquire into the matter and, after hearing any witnesses who may be produced against or on behalf of that person and after hearing any statement that may be offered in defence, punish or take steps for the punishment of that person in like manner as if he or she had been guilty of contempt of the court. R.S.O. 1990, c. S.22, s. 13; 1994, c. 27, s. 56 (27).

Same(2) Subsection (1) also applies to a person who,

(a) having objected under clause 6 (4) (b) to a hearing being held as a written hearing, fails without lawful excuse to participate in the oral or electronic hearing of the matter; or

(b) being a party, fails without lawful excuse to attend a pre-hearing conference when so directed by the tribunal. 1997, c. 23, s. 13 (17).


1994, c. 27, s. 56 (27) - 1/04/1995; 1997, c. 23, s. 13 (17) - 28/11/1997

Protection for witnesses14. (1) A witness at an oral or electronic hearing shall be deemed to have objected to

answer any question asked him or her upon the ground that the answer may tend to criminate him or her or may tend to establish his or her liability to civil proceedings at the instance of the Crown, or of any person, and no answer given by a witness at a hearing shall be used or be receivable in evidence against the witness in any trial or

120




other proceeding against him or her thereafter taking place, other than a prosecution for perjury in giving such evidence. R.S.O. 1990, c. S.22, s. 14 (1); 1994, c. 27, s. 56 (28).

(2) REPEALED: 1994, c. 27, s. 56 (29).


1994, c. 27, s. 56 (28, 29) - 1/04/1995

Evidence

What is admissible in evidence at a hearing15. (1) Subject to subsections (2) and (3), a tribunal may admit as evidence at a

hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court,

(a) any oral testimony; and

(b) any document or other thing,

relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious.

What is inadmissible in evidence at a hearing(2) Nothing is admissible in evidence at a hearing,

(a) that would be inadmissible in a court by reason of any privilege under the law of evidence; or

(b) that is inadmissible by the statute under which the proceeding arises or any other statute.

Conflicts(3) Nothing in subsection (1) overrides the provisions of any Act expressly limiting the

extent to or purposes for which any oral testimony, documents or things may be admitted or used in evidence in any proceeding.

Copies

121





(4) Where a tribunal is satisfied as to its authenticity, a copy of a document or other thing may be admitted as evidence at a hearing.

Photocopies(5) Where a document has been filed in evidence at a hearing, the tribunal may, or

the person producing it or entitled to it may with the leave of the tribunal, cause the document to be photocopied and the tribunal may authorize the photocopy to be filed in evidence in the place of the document filed and release the document filed, or may furnish to the person producing it or the person entitled to it a photocopy of the document filed certified by a member of the tribunal.

Certified copy admissible in evidence(6) A document purporting to be a copy of a document filed in evidence at a hearing,

certified to be a copy thereof by a member of the tribunal, is admissible in evidence in proceedings in which the document is admissible as evidence of the document. R.S.O. 1990, c. S.22, s. 15.

Use of previously admitted evidence15.1 (1) The tribunal may treat previously admitted evidence as if it had been

admitted in a proceeding before the tribunal, if the parties to the proceeding consent. 1994, c. 27, s. 56 (30).

Definition(2) In subsection (1),

“previously admitted evidence” means evidence that was admitted, before the hearing of the proceeding referred to in that subsection, in any other proceeding before a court or tribunal, whether in or outside Ontario.

Additional power(3) This power conferred by this section is in addition to the tribunal’s power to admit

evidence under section 15. 1997, c. 23, s. 13 (18).


1994, c. 27, s. 56 (30) - 1/04/1995; 1997, c. 23, s. 13 (18) - 28/11/1997

122







Witness panels15.2 A tribunal may receive evidence from panels of witnesses composed of two or

more persons, if the parties have first had an opportunity to make submissions in that regard. 1994, c. 27, s. 56 (31).


1994, c. 27, s. 56 (31) - 1/04/1995

Notice of facts and opinions16. A tribunal may, in making its decision in any proceeding,

(a) take notice of facts that may be judicially noticed; and

(b) take notice of any generally recognized scientific or technical facts, information or opinions within its scientific or specialized knowledge. R.S.O. 1990, c. S.22, s. 16.

Interim decisions and orders16.1 (1) A tribunal may make interim decisions and orders.

Conditions(2) A tribunal may impose conditions on an interim decision or order.

Reasons(3) An interim decision or order need not be accompanied by reasons. 1994, c. 27,

s. 56 (32).


1994, c. 27, s. 56 (32) - 1/04/1995

Time frames

123






16.2 A tribunal shall establish guidelines setting out the usual time frame for completing proceedings that come before the tribunal and for completing the procedural steps within those proceedings. 1999, c. 12, Sched. B, s. 16 (6).


1999, c. 12, Sched. B, s. 16 (6) - 14/02/2000

Decision; interestDecision

17. (1) A tribunal shall give its final decision and order, if any, in any proceeding in writing and shall give reasons in writing therefor if requested by a party. R.S.O. 1990, c. S.22, s. 17; 1993, c. 27, Sched.

Interest(2) A tribunal that makes an order for the payment of money shall set out in the order

the principal sum, and if interest is payable, the rate of interest and the date from which it is to be calculated. 1994, c. 27, s. 56 (33).


1993, c. 27, Sched. - 31/12/1991; 1994, c. 27, s. 56 (33) - 1/04/1995

Costs17.1 (1) Subject to subsection (2), a tribunal may, in the circumstances set out in

rules made under subsection (4), order a party to pay all or part of another party’s costs in a proceeding. 2006, c. 19, Sched. B, s. 21 (2).

Exception(2) A tribunal shall not make an order to pay costs under this section unless,

(a) the conduct or course of conduct of a party has been unreasonable, frivolous or vexatious or a party has acted in bad faith; and

(b) the tribunal has made rules under subsection (4). 2006, c. 19, Sched. B, s. 21 (2).

124






Amount of costs(3) The amount of the costs ordered under this section shall be determined in

accordance with the rules made under subsection (4). 2006, c. 19, Sched. B, s. 21 (2).

Rules(4) A tribunal may make rules with respect to,

(a) the ordering of costs;

(b) the circumstances in which costs may be ordered; and

(c) the amount of costs or the manner in which the amount of costs is to be determined. 2006, c. 19, Sched. B, s. 21 (2).

Same(5) Subsections 25.1 (3), (4), (5) and (6) apply with respect to rules made under

subsection (4). 2006, c. 19, Sched. B, s. 21 (2).

Continuance of provisions in other statutes(6) Despite section 32, nothing in this section shall prevent a tribunal from ordering a

party to pay all or part of another party’s costs in a proceeding in circumstances other than those set out in, and without complying with, subsections (1) to (3) if the tribunal makes the order in accordance with the provisions of an Act that are in force on February 14, 2000. 2006, c. 19, Sched. B, s. 21 (2).

Submissions must be in writing(7) Despite sections 5.1, 5.2 and 5.2.1, submissions for a costs order, whether under

subsection (1) or under an authority referred to in subsection (6), shall be made by way of written or electronic documents, unless a party satisfies the tribunal that to do so is likely to cause the party significant prejudice. 2015, c. 23, s. 5.

(8), (9) REPEALED: 2015, c. 23, s. 5.


1999, c. 12, Sched. B, s. 16 (7) - 14/02/2000

2006, c. 19, Sched. B, s. 21 (2) - 22/06/2006

2015, c. 23, s. 5 - 03/11/2015

125

http://www.ontario.ca/laws/statute/S15023#s5

http://www.ontario.ca/laws/statute/S06019#schedbs21s2







Notice of decision18. (1) The tribunal shall send each party who participated in the proceeding, or the

party’s representative, a copy of its final decision or order, including the reasons if any have been given,

(a) by regular lettermail;

(b) by electronic transmission;

(c) by telephone transmission of a facsimile; or

(d) by some other method that allows proof of receipt, if the tribunal’s rules made under section 25.1 deal with the matter. 1994, c. 27, s. 56 (34); 1997, c. 23, s. 13 (19); 2006, c. 21, Sched. C, s. 134 (6).

Use of mail(2) If the copy is sent by regular lettermail, it shall be sent to the most recent

addresses known to the tribunal and shall be deemed to be received by the party on the fifth day after the day it is mailed. 1994, c. 27, s. 56 (34).

Use of electronic or telephone transmission(3) If the copy is sent by electronic transmission or by telephone transmission of a

facsimile, it shall be deemed to be received on the day after it was sent, unless that day is a holiday, in which case the copy shall be deemed to be received on the next day that is not a holiday. 1994, c. 27, s. 56 (34).

Use of other method(4) If the copy is sent by a method referred to in clause (1) (d), the tribunal’s rules

made under section 25.1 govern its deemed day of receipt. 1994, c. 27, s. 56 (34).

Failure to receive copy(5) If a party that acts in good faith does not, through absence, accident, illness or

other cause beyond the party’s control, receive the copy until a later date than the deemed day of receipt, subsection (2), (3) or (4), as the case may be, does not apply. 1994, c. 27, s. 56 (34).


1994, c. 27, s. 56 (34) - 1/04/1995; 1997, c. 23, s. 13 (19) - 28/11/1997

2006, c. 21, Sched. C, s. 134 (6) - 1/05/2007

126







Enforcement of orders19. (1) A certified copy of a tribunal’s decision or order in a proceeding may be filed

in the Superior Court of Justice by the tribunal or by a party and on filing shall be deemed to be an order of that court and is enforceable as such. 1994, c. 27, s. 56 (35); 2006, c. 19, Sched. C, s. 1 (1).

Notice of filing(2) A party who files an order under subsection (1) shall notify the tribunal within 10

days after the filing. 1994, c. 27, s. 56 (35).

Order for payment of money(3) On receiving a certified copy of a tribunal’s order for the payment of money, the

sheriff shall enforce the order as if it were an execution issued by the Superior Court of Justice. 1994, c. 27, s. 56 (35); 2006, c. 19, Sched. C, s. 1 (1).


1994, c. 27, s. 56 (35) - 1/04/1995

2006, c. 19, Sched. C, s. 1 (1) - 22/06/2006

Record of proceeding20. A tribunal shall compile a record of any proceeding in which a hearing has been

held which shall include,

(a) any application, complaint, reference or other document, if any, by which the proceeding was commenced;

(b) the notice of any hearing;

(c) any interlocutory orders made by the tribunal;

(d) all documentary evidence filed with the tribunal, subject to any limitation expressly imposed by any other Act on the extent to or the purposes for which any such documents may be used in evidence in any proceeding;

(e) the transcript, if any, of the oral evidence given at the hearing; and

(f) the decision of the tribunal and the reasons therefor, where reasons have been given. R.S.O. 1990, c. S.22, s. 20.

127






Adjournments21. A hearing may be adjourned from time to time by a tribunal of its own motion or

where it is shown to the satisfaction of the tribunal that the adjournment is required to permit an adequate hearing to be held. R.S.O. 1990, c. S.22, s. 21.

Correction of errors21.1 A tribunal may at any time correct a typographical error, error of calculation or

similar error made in its decision or order. 1994, c. 27, s. 56 (36).


1994, c. 27, s. 56 (36) - 1/04/1995

Power to review21.2 (1) A tribunal may, if it considers it advisable and if its rules made under section

25.1 deal with the matter, review all or part of its own decision or order, and may confirm, vary, suspend or cancel the decision or order. 1997, c. 23, s. 13 (20).

Time for review (2) The review shall take place within a reasonable time after the decision or order is

made.

Conflict(3) In the event of a conflict between this section and any other Act, the other Act

prevails. 1994, c. 27, s. 56 (36).


1994, c. 27, s. 56 (36) - 1/04/1995; 1997, c. 23, s. 13 (20) - 28/11/1997

Administration of oaths22. A member of a tribunal has power to administer oaths and affirmations for the

purpose of any of its proceedings and the tribunal may require evidence before it to be given under oath or affirmation. R.S.O. 1990, c. S.22, s. 22.

Powers re control of proceedingsAbuse of processes

128







23. (1) A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes. R.S.O. 1990, c. S.22, s. 23 (1).

Limitation on examination(2) A tribunal may reasonably limit further examination or cross-examination of a

witness where it is satisfied that the examination or cross-examination has been sufficient to disclose fully and fairly all matters relevant to the issues in the proceeding. 1994, c. 27, s. 56 (37).

Exclusion of representatives(3) A tribunal may exclude from a hearing anyone, other than a person licensed under

the Law Society Act, appearing on behalf of a party or as an adviser to a witness if it finds that such person is not competent properly to represent or to advise the party or witness, or does not understand and comply at the hearing with the duties and responsibilities of an advocate or adviser. 2006, c. 21, Sched. C, s. 134 (7).


1994, c. 27, s. 56 (37) - 1/04/1995

2006, c. 21, Sched. C, s. 134 (7) - 1/05/2007

Notice, etc.24. (1) Where a tribunal is of the opinion that because the parties to any proceeding

before it are so numerous or for any other reason, it is impracticable,

(a) to give notice of the hearing; or

(b) to send its decision and the material mentioned in section 18,

to all or any of the parties individually, the tribunal may, instead of doing so, cause reasonable notice of the hearing or of its decision to be given to such parties by public advertisement or otherwise as the tribunal may direct.

Contents of notice(2) A notice of a decision given by a tribunal under clause (1) (b) shall inform the

parties of the place where copies of the decision and the reasons therefor, if reasons were given, may be obtained. R.S.O. 1990, c. S.22, s. 24.

Appeal operates as stay, exception

129







25. (1) An appeal from a decision of a tribunal to a court or other appellate body operates as a stay in the matter unless,

(a) another Act or a regulation that applies to the proceeding expressly provides to the contrary; or

(b) the tribunal or the court or other appellate body orders otherwise. 1997, c. 23, s. 13 (21).

Idem(2) An application for judicial review under the Judicial Review Procedure Act, or the

bringing of proceedings specified in subsection 2 (1) of that Act is not an appeal within the meaning of subsection (1). R.S.O. 1990, c. S.22, s. 25 (2).


1997, c. 23, s. 13 (21) - 28/11/1997

Control of process25.0.1 A tribunal has the power to determine its own procedures and practices and

may for that purpose,

(a) make orders with respect to the procedures and practices that apply in any particular proceeding; and

(b) establish rules under section 25.1. 1999, c. 12, Sched. B, s. 16 (8).


1999, c. 12, Sched. B, s. 16 (8) - 14/02/2000

Rules25.1 (1) A tribunal may make rules governing the practice and procedure before it.

1994, c. 27, s. 56 (38).

Application(2) The rules may be of general or particular application. 1994, c. 27, s. 56 (38).

Consistency with Acts

130



http://www.ontario.ca/fr/lois/loi/90s22#s25p0p1



(3) The rules shall be consistent with this Act and with the other Acts to which they relate. 1994, c. 27, s. 56 (38).

Public access(4) The tribunal shall make the rules available to the public in English and in French.

1994, c. 27, s. 56 (38).

Legislation Act, 2006, Part III(5) Rules adopted under this section are not regulations as defined in Part III

(Regulations) of the Legislation Act, 2006. 1994, c. 27, s. 56 (38); 2006, c. 21, Sched. F, s. 136 (1).

Additional power(6) The power conferred by this section is in addition to any power to adopt rules that

the tribunal may have under another Act. 1994, c. 27, s. 56 (38).


1994, c. 27, s. 56 (38) - 1/04/1995

2006, c. 21, Sched. F, s. 136 (1) - 25/07/2007

Regulations26. The Lieutenant Governor in Council may make regulations prescribing forms for

the purpose of section 12. 1994, c. 27, s. 56 (41).


1994, c. 27, s. 56 (39, 41) - 1/04/1995

Rules, etc., available to public27. A tribunal shall make any rules or guidelines established under this or any other

Act available for examination by the public. 1999, c. 12, Sched. B, s. 16 (9).

131









1999, c. 12, Sched. B, s. 16 (9) - 14/02/2000

Substantial compliance28. Substantial compliance with requirements respecting the content of forms, notices

or documents under this Act or any rule made under this or any other Act is sufficient. 1999, c. 12, Sched. B, s. 16 (9).


1999, c. 12, Sched. B, s. 16 (9) - 14/02/2000

29.-31. REPEALED: 1994, c. 27, s. 56 (40).


1994, c. 27, s. 56 (40) - 1/04/1995

Conflict32. Unless it is expressly provided in any other Act that its provisions and regulations,

rules or by-laws made under it apply despite anything in this Act, the provisions of this Act prevail over the provisions of such other Act and over regulations, rules or by-laws made under such other Act which conflict therewith. R.S.O. 1990, c. S.22, s. 32; 1994, c. 27, s. 56 (42).


1994, c. 27, s. 56 (42) - 1/04/1995

33., 34. REPEALED: 1994, c. 27, s. 56 (43).


132





1994, c. 27, s. 56 (43) - 1/04/1995

FORMS 1, 2 REPEALED: 1994, c. 27, s. 56 (44).


1994, c. 27, s. 56 (44) - 1/04/1995

133

APPENDIX C - Protocol Regarding the Use of Electronic Communication Devices in the OJC Hearing Proceedings7

This Protocol is founded on the “open courts” principle, which requires transparency and accountability in the judicial system to foster public confidence in the administration of justice.

(1) Application

This Protocol applies to all persons attending or participating in a location where public proceedings are being held before a Hearing Panel of the Ontario Judicial Council (OJC) regarding the conduct of a judge of the Ontario Court of Justice. Use of electronic communication devices should never interfere with the hearing proceedings or the ability to have a fair hearing.

(2) Definitions“Electronic communication devices” include all computers, personal electronic and digital devices, and mobile, cellular and smart phones.

“Hearing Panel” means the four-person panel consisting of a judge of the Court of Appeal of Ontario, a judge of the Ontario Court of Justice, a lawyer and a community member.

(3) Use of Electronic Communication Devices in Hearings

The use of electronic communication devices in silent or vibrate mode is permitted, except as follows:

(i) The presiding Hearing Panel orders otherwise.

(ii) Legislation (e.g. the Courts of Justice Act or the Statutory Powers Procedures Act) or the Hearing Panel restricts public attendance.

(iii) No photos or videos may be taken unless there is a Hearing Panel order otherwise.

(iv) Audio recording of proceedings is permitted by counsel, members of the media, and litigants for note-taking purposes only but the Hearing Panel must be advised before the recording is commenced. These audio recordings cannot be transmitted.

7 The Ontario Judicial Council is a body independent of the Ontario Court of Justice with jurisdiction to investigate and dispose of complaints about the conduct of judges of that Court. The Hearing Panel presiding over the hearing notes that the Ontario Court of Justice has established a Protocol Regarding the Use of Electronic Communication Devices in Court Proceedings and has decided to adopt the rules of that Protocol as set out above for its hearings.

134

(v) Talking on electronic communication devices is not permitted while the hearing is in session.

(4) Publication Bans and Other Restrictions

Anyone using an electronic communication device to transmit information has the responsibility to identify and comply with any publication bans, sealing orders, or other restrictions imposed by statute or by order of the Hearing Panel.

(5) Hearing Panel Orders

The presiding Hearing Panel retains overriding responsibility to maintain hearing room decorum and to ensure that proceedings are conducted in a manner consistent with the proper administration of justice. In deciding whether to restrict the use of electronic communication devices, the Hearing Panel may consider whether there is evidence regarding factors such as:

(i) whether the use of electronic communication devices would disrupt the proceedings or interfere with the proper functioning of the electronic equipment being used to make a proper record of the hearing; or

(ii) whether the use of electronic communication devices would interfere with witness testimony, or unreasonably infringe anyone’s privacy or security.

135

APPENDIX D – Agreed Statement of Facts


In the Matter of a Hearing Under Section 51.6 of the Courts of Justice Act aboutthe Conduct of the Honourable Justice [name of judge]

of the Ontario Court of Justice

The Honourable Justice [name of the judge], and Counsel for His/Her Honour, [name of the lawyer], and Presenting Counsel, [name of Presenting Counsel], agree as provided herein:

A. General Principles

1. The Principles of Judicial Office for the Judges of the Ontario Court of Justice state that the judges of the Ontario Court of Justice recognize their duty to establish, maintain, encourage and uphold high standards of personal conduct and professionalism so as to preserve the independence and integrity of their judicial office and to preserve the faith and trust that society places in the individuals who have agreed to accept the responsibilities of judicial office.

2. Public confidence in and respect for the judiciary are essential to an effective judicial system and, ultimately, to democracy founded on the rule of law. One factor which is capable of undermining public respect and confidence is the conduct of judges, in and out of court, that demonstrates a lack of integrity, independence or impartiality.

3. The public expects that judges must be and must give the appearance of being an example of impartiality, independence and integrity.

B. Background

4. Justice [name of the judge], the subject of the complaint, is now and was at all times referred to in this document, a judge of the Ontario Court of Justice assigned to preside in the [region]. Justice [name] has served in that capacity since [date].

5. The Ontario Judicial Council received a written complaint from ….

136

6. The allegations were investigated by a complaint subcommittee of the Council. On [date], His/Her Honour was provided with the opportunity to respond to the complaints. The complaint subcommittee completed its investigation and reported to a review panel of the Council.

7. After reviewing the information obtained through the investigation including the response of His/Her Honour Justice [name], the review panel ordered a hearing into the allegations set out in the Notice of Hearing pursuant to section 51.6 of the Courts of Justice Act.

C. FACTS

8. Etc.

9. Etc.

D. ADMISSIONS (APPLICABLE IF JUDICIAL CONDUCT IS ADMITTED)

x. His/Her Honour Justice [name] admits that his/her actions negatively impacted the confidence of members of the public in him/her as a judge, in the judiciary in general and in the administration of justice.

x. His/Her Honour Justice [name] admits that his/her conduct on [date] constitutes judicial misconduct that warrants a disposition under section 51.6(11) of the Courts of Justice Act.

___________________________________ _____________The Honourable Justice [name] Date

__________________________________ _____________Counsel for His/Her Honour Date

__________________________________ _____________Presenting Counsel Date

137