Tuesday, November 27, 2012

The Douglas Inquiry: Playing musical chairs with taxpayer dollars!

Good Day Readers:

Below is a very good description of the legal quagmire into which the Douglas Inquiry continues to descend. Cristin Schmitz is Ottawa Bureau Chief for The Lawyers Weekly who was one of two journalists allowed to attend the October 30, 2012 meeting involving 16 - Yes count them 16 lawyers! and Federal Court of Canada Prothonotary Judge Mireille Tabib. The other was Christie Blatchford (Postmedia News) Ms Blatchford's account of the aforementioned conference call was carried in the National Post and Ottawa Citizen.

Clare L. Pieuk, a Media Citizen Journalist/Blog Master, CyberSmokeBlog has sent an e-mail to Andrew Baumberg, Executive Legal Officer to the Chief Justice, Federal Court of Canada and Norman Sabourin, Executive Director/Senior Legal Counsel Canadian Judicial Council that a an audio link be set up in Winnipeg at the Federal Court of Canada for the November 30 meeting later this week so that CSB is afforded the same rights and privileges as other mainstream journalists.At time of writing no reply has been received.

Can an argue be made Mr. Chapman should also have access to such an audio feed given his lawyer Rocco Galati will be representing and arguing on his behalf?
Certainly sounds like Judge Tabib will have her hands full this Friday.

Clare L. Pieuk
The Douglas Inquiry: It gets curiouser and curiouser
By Cristin Schmitz
November 30, 2012 Issue
What began as a judicial sex scandal two years ago has morphed into a legal spectacle of Byzantine complexity and burgeoning expense for taxpayers.

At last count, 15 lawyers were involved with the stalled Canadian Judicial Council inquiry into Manitoba Queen’s Bench (Family Division) Associate Chief Justice Lori Douglas, which this month entered an interesting phase of procedural skirmishing.

Most of the counsel are on the public dime — ​including top-flight civil litigators Sheila Block of Torys and Paul Cavalluzzo of Cavalluzzo, Shilton in Toronto, Vancouver’s John Hunter of Hunter Litigation Chambers, and Guy Pratte of Ottawa’s Borden Ladner Gervais (before he quit as the inquiry’s independent counsel last August).

Even at the steeply discounted rates Ottawa pays (about $200 an hour for senior counsel), the inquiry’s final cost could be several million dollars — ​assuming it eventually gets to decide the merits of Alexander Chapman’s 2010 complaint that he was sexually harassed by Justice Douglas before she joined the bench. She denies the allegation.

According to Public Accounts of Canada, Pratte and his co-counsel were paid $211,459 as the independent counsel, and Block and her co-counsel $191,691 for defending the judge, from April 1, 2011 to March 31, 2012.

At present, the inquiry is on hold as Justice Douglas, Chapman, the Attorney General of Canada (AGC) and other potential combatants, such as the Canadian Judicial Council (CJC), slug out two separate judicial review applications in Federal Court that attack the inquiry committee’s conduct during hearings last summer as well as a third judicial review application that challenges Pratte’s subsequent abrupt, and mysterious, resignation.

The saga continues this month in Federal Court in Toronto, where two preliminary motions that are the equivalent to legal musical chairs — ​to sort out who will be the respondents on the judicial review applications — ​are slated to be argued November 30.

In a strange turn of events, the AGC (who is normally the respondent on judicial reviews) is trying to distance himself from the sensitive case by asking to be removed as respondent from all three judicial reviews. He suggests the court could appoint the CJC to take over his role, as respondent, to defend the committee’s impugned conduct and decisions — ​an unwelcome invitation for the council of chief justices, which insists it only wants to be an intervener.

Meanwhile, as the AGC tries to get off the record by effectively trying to push the CJC on the record (or alternatively Pratte’s successor, inquiry independent counsel Suzanne Côté), Chapman’s counsel Rocco Galati will argue his client should be a respondent. Chapman’s bid for respondent status is hotly opposed by Block, who contends the AGC should stay on as respondent, or at least hire an independent counsel to discharge that role.

Waiting in the wings to see who the final judicial review parties will be is would-be intervener, the Canadian Superior Courts Judges Association, and other possible interveners, such as Cavalluzzo’s client, the CJC, and Hunter’s client, the inquiry committee itself.

Chris Paliare of Toronto’s Paliare Roland, who represents the judges’ association, said his client wants to intervene “to ensure that the process that deals with the disciplining of its members is fair, appropriate, and consistent with the Judges Act, and the CJC’s bylaws and policies.”

The group is expected to support Justice Douglas’s judicial review, which asks the Federal Court to shut down the committee for allegedly appearing to be biased. Block argues the committee crossed the line when, among other things, it instructed and permitted its counsel, George Macintosh, to aggressively cross-examine witnesses supportive of the judge’s defence.

The committee “can only be inquisitorial to a point,” Paliare said.

Pratte’s unexplained resignation as independent counsel is expected to feature prominently in two of the three judicial reviews, and possibly in the two preliminary motions to be argued November 30.

Block has been questioning whether the CJC impinged on Pratte’s independence, prompting him to resign Aug. 26 — ​six days after the then-independent counsel launched an unprecedented judicial review application seeking to rein in the inquiry committee’s power to examine witnesses. Pratte and the committee had clashed previously over their respective roles.

Citing solicitor-client privilege, the CJC refused Block’s request to release “all communications” between the CJC and Pratte in relation to his resignation.

In a September 17 letter to Block filed in Federal Court, CJC general counsel Norman Sabourin insists that Pratte was not terminated and resigned for reasons that he has shared with his client, Alberta Queen’s Bench Chief Justice Neil Wittman, the vice-chair of the CJC’s judicial conduct panel. 

Block informed the CJC by letter that she could demand disclosure under the Federal Courts’ rules, but Sabourin replied that they did not apply to the requested documents. 

Block warned presiding Federal Court Prothonotary Mireille Tabib during an organizational hearing October 30, that “the solicitor-client issue may be a lot larger than perhaps you’re anticipating it will be…I expect that’s where the rubber will hit the road in this case.”


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