



COURT OF APPEAL FOR ONTARIO

CITATION:
Ontario
    Deputy Judges' Association v. Ontario (Attorney General), 2012
    ONCA 437

DATE: 20120625

DOCKET: C54796

OConnor A.C.J.O., Rosenberg and Simmons JJ.A.

BETWEEN

Ontario Deputy Judges Association

Applicant (Appellant in Appeal)

and

The Attorney General of Ontario

Respondent (Respondent in Appeal)

P. David McCutcheon and Kathleen Burke, for the
    applicant (appellant in appeal)

Robert E. Charney and Josh Hunter, for the respondent
    (respondent in appeal)

Heard:  June 18, 2012

On appeal from the order of Justice Kevin Whitaker of the
    Superior Court of Justice, dated November 25, 2011, with reasons reported at
    2011 ONSC 6956, 108 O.R. (3d) 429.

ENDORSEMENT

[1]

We agree with the application judge that the process for renewing the
    appointments of Deputy Judges of the Small Claims Court (Deputy Judges) does
    not infringe the principles of judicial independence.

[2]

Pursuant to s. 32(1) of the
Courts of Justice Act
, R.S.O. 1990, c. C-43, as amended (the 
CJA
)
, a Regional Senior Judge of the
    Superior Court may, with the approval of the Attorney General, appoint a lawyer
    to act as a Deputy Judge of the Small Claims Court for a period of three
    years.  Deputy Judges sit on a part-time basis.  Presently, there are
    approximately 400 Deputy Judges and they sit on average 19 days a year.

[3]

This appeal involves the reappointment process for Deputy Judges. 
    Pursuant to s. 32(4) of the
CJA
, subject to an age restriction, a
    Regional Senior Judge has the authority to renew the appointment of a Deputy
    Judge for a term of three years.  The Attorney General is not involved in the
    decision to renew or not to renew an appointment.

[4]

The appellant, the Ontario Deputy Judges Association, argues that the
    reappointment process violates the principles of judicial independence because
    the process does not comply with the principle of security of tenure.

[5]

The appellant does not argue that renewable fixedterm appointments are
    inconsistent with judicial independence, nor does it argue that the
    reappointment process has resulted in an actual loss of independence for Deputy
    Judges.  Rather, the appellant contends the reappointment process undermines
    the institutional independence of a Small Claims Court such that a reasonable
    person, fully informed of all the circumstances, would not consider the Small
    Claims Court to be independent.

[6]

We do not accept this argument.  In our view, the appellants argument
    is answered by the Supreme Court of Canadas decision in
R. v. Valente
,
[1985] 2 S.C.R. 673.  In that case, the
    post-retirement security of tenure of provincial judges was challenged.  At the
    time, Ontario provincial judges served until age 65 and then could be
    reappointed by the Executive to serve during pleasure.  The Supreme Court
    objected to the post-65 tenure of provincial judges because it was a tenure
at
    the pleasure of the Executive
.  However, the court spoke approvingly of
    proposed amendments to the
CJA
pursuant to which judges would be
    allowed to continue in office between the ages of 65 and 70 with the annual
    approval of the Chief Justice and thereafter until age 75 with the annual
    approval of the Ontario Judicial Council (essentially renewable 1-year
    fixed-term appointments).

[7]

Justice Ledain, writing for the court, held (at para. 39):

This change in the law, while creating a post-retirement status
    that is by no means ideal from the point of view of security of tenure, may be
    said to have removed the principal objection to the provision which applied
    when Sharpe J. declined jurisdiction since it replaces the discretion of the
    Executive by the judgment and approval of senior judicial officers who may be
    reasonably perceived as likely to act exclusively out of consideration for the
    interests of the Court and the administration of justice generally.

[8]

We note that the proposed amendments upon which the Supreme Court
    commented did not include criteria to guide the decision of the Chief Justice
    for approving the year-to-year renewal of appointments of judges between the
    ages of 65 and 70, nor did it set out the process by which such approvals would
    be considered.

[9]

We see no basis upon which to distinguish
Valente
.

[10]

We
    agree with the application judge that having regard to the nature of the
    jurisdiction of the Small Claims Court and the presumption that a Regional
    Senior Judge will act in the best interest of the administration of justice,
    that a reasonable and well informed observer would conclude that the Deputy
    Judges and the Ontario Small Claims Court are sufficiently independent so as to
    satisfy constitutional requirements.

[11]

We
    also endorse the application judges comment as follows (at para. 62):

Without doubt, the [Small Claims Court] plays an important and
    unique role in the justice system.  It is absolutely essential that the [Small
    Claims Court] institutionally and the [Deputy Judges] personally, be regarded
    as independent.

[12]

We are satisfied that the system for renewal of the appointments of
    Deputy Judges does not undermine this independence.

[13]

The appeal is dismissed.

D. OConnor A.C.J.O.

M. Rosenberg J.A.

J. Simmons J.A.


