A Toronto judge who provided advice on defending against a First Nations land claim, in an area where his family owns a cottage, is now facing a public discipline hearing.
However, because Superior Court Justice Frank Newbould had previously signalled he will retire June 1 for personal reasons, it’s unlikely his case will ever be heard.
The Canadian Judicial Council, which handles complaints about federally-appointed judges, announced this week that a five-member review panel found the allegations surrounding Newbould’s “intervention . . . in the context of a court case” so serious that if proven, “they may warrant the judge’s removal from office.”
Newbould’s lawyer, Brian Gover, said the complaints against his client had been dismissed by the council in 2015, and it was Newbould’s position that the council does not have the jurisdiction to reconsider a closed complaint.
The panel found it does have the power to reconsider, and said an inquiry committee should be struck in the case, including one or more members appointed by the minister of justice. But because the minister has 60 days to do so, with the possibility of an extension, it’s doubtful the committee would be up and running before Newbould retires.
“I suppose had the judge decided not to retire, then these issues could have been explored, and perhaps he would have had an opportunity to respond through the inquiry committee process,” said council spokeswoman Johanna Laporte. “But the judge has chosen to retire.”
She said the council was following protocol by making a public announcement of the review panel’s decision.
Newbould, 73, is still presiding over cases as team leader of the Commercial List, which handles complex litigation relating to matters such as corporations and bankruptcy. Gover confirmed the judge still plans to retire June 1.
“The situation raised an issue involving perception,” said a statement issued by Gover. “It is one for which Justice Newbould apologized in 2014 due to the perception caused by the fact he is a judge. Throughout the entirety of his distinguished judicial career, Justice Newbould has carried out his duties effectively and without bias.”
Appointed to the bench in 2006, he is perhaps best known in legal circles for presiding over the cross-border Nortel case, which Canadian Lawyer magazine called “the largest insolvency restructuring proceeding in Canadian history.”
The issue before the judicial council relates to a proposed land claim settlement involving the Saugeen First Nation that was discussed at a public meeting called by the mayor of Sauble Beach in 2014.
Gover’s statement says Newbould’s family has owned a cottage in the area for about 100 years, and he spoke briefly at the meeting. He then wrote a letter to council, which had requested feedback, “in his personal capacity.”
In an eight-page 2014 letter addressed to the mayor and town council, which is posted on the website of a local radio station, Newbould indicates he’s reviewed a great deal of evidence regarding the land claim and also that the lawyers for the federal and provincial governments have declined to discuss the case with him.
(Gover said the letter was part of the material before the judicial council when it first dismissed the complaints.)
“In my view, there are strong defences to the claim of the Saugeen First Nation,” Newbould wrote, going on to say: “It is difficult to understand how the town could agree to the proposed settlement with all its weaknesses.”
He recommends, among other things, that there should be representation on any negotiating committee from Sauble Beach residents, and getting a legal opinion from another lawyer.
“If a satisfactory settlement cannot be made . . . the town should not shy away from defending the claim along with the Province of Ontario,” he wrote.
Newbould was notified of seven complaints filed against him at the judicial council. “The complainants questioned whether a judge who owns property that may be affected is entitled to comment on such issues,” said Gover’s statement.
The statement says all the complaints against Newbould were dismissed in January 2015, but that the Indigenous Bar Association pushed for the matter to be reconsidered. Laporte, the judicial council spokeswoman, said the review panel received new information.
The Indigenous Bar Association’s president, Koren Lightning-Earle, said it would be disappointing if Newbould retires before a hearing can take place.
“When Canada talks about this reconciliation, are they actually going to put those things together and actually walk the talk?” she told the Star. “If he just retires, then the action has ended, there is no reconciliation, there is nothing.”
A trial date for the land claim case has yet to be set.
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