Kevin Wiener: Cut the conflict, root and stem
It's not just a fight about trees.
By: Kevin Wiener
Someone unfamiliar with Toronto might think our courts are preoccupied with all the people getting stabbed on the subway. Perhaps they ought to be.
Instead, the most explosive subway-related drama in the judicial system doesn’t involve people at all, but rather the fate of eleven trees. The short of it is that Doug Ford wants to build a badly-needed subway line that will connect downtown to the eastern end of the city. To do that, Metrolinx, Ontario’s transit agency, needs to cut down trees on the historic Osgoode Hall site so it can dig out a new subway station for the planned Ontario Line. A coalition of lawyers, judges, an Indigenous group, and the usual NIMBY suspects want to stop that from happening — and they are going to court to try to get their way. In doing so, they are putting the court’s own impartiality right in the crosshairs.
Unless the province’s highest court takes steps to ensure a fair hearing, it could seriously undermine public confidence in our justice system.
That’s a lot to risk over a handful of trees, a few of which have already been felled amid the court fight.
The latest development in this saga happens today, when Ontario’s Court of Appeal decides whether to extend a temporary injunction it granted on Saturday.
The Court of Appeal got involved shortly after a previous injunction preventing the tree-cutting in downtown Toronto expired. Justice Hackland of the Superior Court determined last week that neither the Law Society of Ontario nor Haudenosaunee Development Institute (HDI) had grounds to stop the tree-cutting for any longer. But on Saturday, the HDI got a reprieve from the Court of Appeal until the next hearing on Tuesday. At that point, the Court will have to decide whether to grant a longer injunction with the potential to seriously disrupt the project.
On its own, nothing is too unusual about this process. Many people appeal decisions to the Ontario Court of Appeal, and it’s not uncommon to get a quick freeze of the status quo until both sides can make arguments.
What makes this week’s hearing different is that Osgoode Hall is not just the home of Ontario’s legal regulator, but to the Court of Appeal itself. In other words, a judge will be deciding whether the Ontario government will be able to tear up her own workplace.
To make matters worse, the Court is already a participant in the fight over these trees. Last December, Ontario’s Associate Chief Justice, Michal Fairburn, sent a letter to Metrolinx asking them to hold off on their construction plans. Many of the arguments Fairburn made are the exact same arguments the Law Society subsequently used when it obtained its injunction.
A fight over trees may not be uncommon, but the courts don’t usually directly insert themselves as lobbyists into city infrastructure projects. An individual judge, such as Judge Fairburn, can certainly support or oppose a municipal project that directly affects them, as long as they don’t use their title. But according to an opinion from the Advisory Committee on Judicial Ethics, such a judge “must be disqualified from participating in any litigation arising from the matter.”
However, in this case it doesn’t matter that Justice Fairburn is unlikely to be on the panel that will ultimately decide the fate of the Osgoode Hall trees. She sent her letter not in her personal capacity, but in her official role on behalf of the Court. It is difficult to imagine that the 30-odd judges on the Court didn’t discuss whether to take a position before Fairburn’s letter was sent. Now one of those judges will have the power to kill a project the Court itself opposes.
Even if the judge who decides is unbiased, courts have a role, which includes maintaining public confidence in the rule of law and the administration of justice. Judges aren’t elected. They’re very difficult to remove. We trust them to decide important issues because we expect them to follow the law, rather than their own interests. When there is a reasonable apprehension that judges have a personal or institutional stake in the outcome of a case, that trust erodes. How can we be sure that the law was followed?
Fortunately, there is a solution to the ethical problem that the Court has entangled itself in. Under Ontario’s Courts of Justice Act, the Chief Justice can appoint a judge of the lower Superior Court to temporarily act as a judge of the Court of Appeal. Judges can be appointed from outside Toronto who will not be working at Osgoode Hall and who were not tied to the Court’s letter taking a position on the project.
There is precedent for doing something similar. In 2017, the Federal Court had to decide a judicial review application involving a misconduct hearing of a sitting judge of that court. To avoid an appearance of bias, a judge from the New Brunswick Court of Appeal was made a temporary deputy judge to decide the application.
The issues at stake in Tuesday’s hearing are important. But it’s just as important that the public have confidence in the process. By bringing in outside judges to decide, the Court of Appeal can help maintain that confidence.
Kevin Wiener is a lawyer who lives in Toronto.
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