Brinton v. Nova Scotia (Provincial Court)

Brinton v. Nova Scotia (Provincial Court) Court Supreme Court Date 2024-10-08 Citation 2024 NSSC 292 Docket No. 527144 Judge/Registrar/Adjudicator Boudreau, Denise M. (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: Brinton v. Nova Scotia (Provincial Court), 2024 NSSC 292 Date: 20241008 Docket: No. 527144 Registry: Halifax Between: Rickcola Brinton Plaintiff v. The Office of the Chief Judge of the Provincial Court, the Provincial Court of Nova Scotia, and The Honourable Pamela S. Williams, Judge of the Provincial Court of Nova Scotia Defendants Date: 20241008 Docket: No. 529236 Registry: Halifax And Between: Rickcola Brinton Plaintiff v. The Attorney General of Nova Scotia representing His Majesty the King in right of the Province of Nova Scotia Defendant Decisions – Defendants’ Motions Summary Judgment / Strike Pleadings (CPR 13.03) Judge: The Honourable Justice Denise Boudreau Heard: July 2, 2024, in Halifax, Nova Scotia Counsel: James Manson and Christopher Fleury, for the Plaintiff/Respondent on the Motions Marie Henein and Ewa Krajewska, for the Defendant/Moving Parties The Office of the Chief Judge of the Provincial Court, the Provincial Court of Nova Scotia, and The Honourable Pamela S. Williams, Judge of the Provincial Court of Nova Scotia Kevin Kindred and Caitlin E. Menczel-O’Neill, for the Defendant/Moving Party The Attorney General of Nova Scotia representing His Majesty the King in right of the Province of Nova Scotia By the Court: [1] All defendants in both of these matters have put forward motions seeking summary judgment “on pleadings”, and seek to strike the entirety of both of the plaintiff’s Statements of Claim, pursuant to Civil Procedure Rule 13.03. [2] These two files involve the same plaintiff and the same allegations of fact. The motion in Hfx No. 527144 is brought by defendants The Honourable Pamela S. Williams, Judge of the Provincial Court of Nova Scotia; The Office of the Chief Judge of the Provincial Court of Nova Scotia; and The Provincial Court of Nova Scotia (collectively referenced herein as the “Judicial Defendants”). The motion in Hfx No. 529236 is brought by defendant The Attorney General of Nova Scotia Representing His Majesty the King in right of the Province of Nova Scotia (referenced herein as the “Attorney General”). [3] I heard the two Rule 13.03 motions on the same date, one after the other. This decision will deal with both. I want to thank all counsel involved in this matter for their obvious hard work, extensive research, and excellent oral submissions. Their efforts made my job much easier. [4] I start with a few comments as to the meaning and effect of Civil Procedure Rule 13.03, which provides: (1) A judge must set aside a statement of claim, or statement of defence, that is deficient in any of the following ways: (a) it discloses no cause of action or basis for a defence or contest; (b) it makes a claim based on a cause of action in the exclusive jurisdiction of another court or tribunal; (c) it otherwise makes a claim, or sets up a defence or ground of contest, that is clearly unsustainable when the pleading is read on its own. [5] A number of cases provide helpful commentary as to the test to be applied where a Rule 13.03 motion is brought forward. I note at para. 26 of Murphy v. Murphy, 2009 NSSC 138: [26] The test in new CPR 13.03 (old CPR 14.25) - summary judgement on pleadings, is that the pleading discloses no cause of action [13.03(1)(a)], or the claim is clearly unsustainable when the pleading is read on its own [13.03(1)(c)]. In Hunt v. Carey Canada Inc. [1990] 2 SCR 959, the Supreme Court wrote that the question was: assuming the facts stated in the pleadings can be proved, is it plain and obvious that the statement of claim disclosed no reasonable cause of action? Only if the action is certain to fail because it contains a radical defect should it be struck. [6] Our Court of Appeal noted in Cape Breton (Regional Municipality) v. Nova Scotia (Attorney General), 2009 NSCA 44, at para. 17: [17] Rule 14.25 offers a drastic remedy. It provides for an action to be dismissed summarily, thus denying litigants their “day in court”. Understandably, therefore, any defendant seeking such relief bears a heavy burden. The Chambers judge would have to consider this claim at its highest, by assuming all allegations to be true without the need to call any evidence. Then even with this assumption, it must still remain “plain and obvious” that the pleadings disclose no reasonable cause of action. … [7] In Sherman v Giles, 1994 NSCA 226 (no paragraph numbers noted): … The power to strike out pleadings is one that must be sparingly used. (See Vladi Private Islands Ltd. v. Hasse et al. (1990), 96 N.S.R. (2d) 323 (C.A.) at page 325 and cases cited therein.) The tests used to determine an action’s viability in the face of an application under Rule 14.25 have been variously described as: “obviously unsustainable”, “devoid of all merit” (Rizetto v. New Waterford (1982), 54 N.S.R. (2d) 273); “where the court is satisfied that the case is beyond doubt” (Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735); “is certain to fail because it contains a radical defect”. (Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959) and “only in the clearest of cases” (Nelles v. Ontario (1989), 60 D.L.R. (4th) 609. [8] Also, in Howe v. Rees, 2024 NSCA 16: [46] The high threshold for dismissing claims under Rule 13.03 was recognized in Walsh v. Atlantic Lottery Corporation, 2015 NSCA 16 where MacDonald C.J.N.S. held: [7] Justice LeBlanc was well aware of the heavy burden faced by the Government. It would have to establish that, assuming every alleged fact to be correct, the claim still would have no chance of success. He observed: [16] Summary judgement on the pleadings should not be granted lightly. A party whose action is summarily dismissed under Rule 13.03 will be denied his or her day in court. The harsh nature of the remedy demands that the applicant meet a heavy burden. I must be satisfied, even after assuming that all allegations contained in the pleadings are true without the need to call evidence, that the claim “is certain to fail”, or is “absolutely unsustainable” or “discloses no reasonable cause of action”: Cape Breton (Regional Municipality) v. Nova Scotia (Attorney General), 2009 NSCA 44 at para. 17, Cragg v. Eisener, 2012 NSCA 101 at para. 9. [9] The Supreme Court of Canada in Knight v. Imperial Tobacco, 2011 SCC 42, noted that a court hearing a motion to strike must be careful when considering “novel” or “as yet unrecognized” claims, given that law is an evolving entity: [19] The power to strike out claims that have no reasonable prospect of success is a valuable housekeeping measure essential to effective and fair litigation. It unclutters the proceedings, weeding out the hopeless claims and ensuring that those that have some chance of success go on to trial. [20] This promotes two goods - efficiency in the conduct of the litigation and correct results. Striking out claims that have no reasonable prospect of success promotes litigation efficiency, reducing time and cost. The litigants can focus on serious claims, without devoting days and sometimes weeks of evidence and argument to claims that are in any event hopeless. The same applies to judges and juries, whose attention is focused where it should be - on claims that have a reasonable chance of success. The efficiency gained by weeding out unmeritorious claims in turn contributes to better justice. The more the evidence and arguments are trained on the real issues, the more likely it is that the trial process will successfully come to grips with the parties’ respective positions on those issues and the merits of the case. [21] Valuable as it is, the motion to strike is a tool that must be used with care. The law is not static and unchanging. Actions that yesterday were deemed hopeless may tomorrow succeed. Before McAlister (Donoghue) v. Stevenson, [1932] A.C. 562 (U.K.H.L.) introduced a general duty of care to one’s neighbour premised on foreseeability, few would have predicted that, absent a contractual relationship, a bottling company could be held liable for physical injury and emotional trauma resulting from a snail in a bottle of ginger beer. Before Hedley Byrne & Co. v. Heller & Partners Ltd., [1963] 2 All E.R. 575 (U.K.H.L.) a tort action for negligent misstatement would have been regarded as incapable of success. The history of our law reveals that often new developments in the law first surface on motions to strike or similar preliminary motions, like the one at issue in McAlister (Donoghue) v. Stevenson. Therefore, on a motion to strike, it is not determinative that the law has not yet recognized the particular claim. The court must rather ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed. The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial. [22] A motion to strike for failure to disclose a reasonable cause of action proceeds on the basis that the facts pleaded are true, unless they are manifestly incapable of being proven … [10] I keep in mind all of the principles that these courts have enunciated. [11] In assessing the present motions, I am to start by taking each pleading “at its highest” and assume all pleaded facts to be true. Having done that, I am to determine if it is “plain and obvious” that the claim(s) is (are) certain to fail. Claims in Hfx No. 527144 (Judicial Defendants) [12] The claim filed as Hfx No. 527144, involving the Judicial Defendants, was filed by the plaintiff on September 29, 2023. At that time, this claim also named the Attorney General as defendant; however, when it was pointed out that this defendant required formal notice, the claim against the Attorney General was discontinued and re-filed as a stand-alone claim (Hfx No. 529236). [13] The claim as against the Judicial Defendants begins with the following pleaded facts. The plaintiff is noted to be a Provincial Court judge for the Province of Nova Scotia, having been appointed as such on March 31, 2017. The defendant Pamela S. Williams is also a Provincial Court judge for Nova Scotia, having been so appointed on September 19, 2003. At all times relevant to this Action, Judge Williams was the Chief Judge for the Nova Scotia Provincial Court; her term as Chief having commenced in February 2013 and ended in August 2023. [14] Other material facts pleaded in the claim(s) are as follows: 9. On September 29, 2021, Williams e-mailed the puisne judges on the Provincial Court, advising that the Nova Scotia bar had inquired about their Covid-19 vaccination status. Williams asked the other members of the Court whether they would agree to share their vaccination statuses with each other and whether the Court should share that information with the bar in the form of a private statement. 10. Multiple judges responded saying that they were vaccinated and expressing support for disclosure of vaccination status. 11. Two judges expressed hesitation short of disagreement. For example, one judge noted that there may be privacy concerns for judges who cannot be vaccinated for a “legitimate medical reason” while adding that he had less sympathy for judges who were unvaccinated for other reasons. 12. Though fearing a possible backlash, Brinton responded to the group on October 1, 2021, stating: I realize I may be in the minority, but I echo some of what Peter said, as I have concerns with medical privacy. I also know that the vaccination mandates and passports may be disproportionately impacting racialized communities. And as an essential service, will we be creating a two-tiered society for those who already feel as though we are not free to serve them. 13. In response to Brinton’s comment, another judge replied, “Either we all voluntarily declare we are vaccinated, or the Chief should use her powers and order that all the [Provincial Court] judges be vaccinated”. 14. On October 6, 2021, the Government of Nova Scotia announced that it would require all employees of the Province to be vaccinated against the virus that causes Covid-19. The requirement would go into force on November 30, 2021. Any employees who were unvaccinated on that date would be placed on unpaid leave. Provincial Court judges were unaffected by the Government’s new policy. However, all court staff, including judicial assistants, were subject to the new requirement. 15. On October 7, 2021, Williams requested to meet with Brinton. When they spoke, Williams attempted to persuade Brinton to change her mind. Brinton explained that her position was a matter of conscience and a result of prayerful contemplation. Brinton told Williams that she felt compelled to speak up because she believed that the Covid-19 vaccine question was a political issue causing division and that the Court should remain neutral. 16. Trying to find a workable solution to the matter, Brinton then offered to self-test for Covid-19 as often as needed. Williams rejected Brinton’s offer because that option was not available to court staff. 17. Williams then advised Brinton that the only option (to which Williams in any event doubted that the other judges would agree) was to limit her work to presiding over arraignment court from home if the other judges agreed to take on the trials assigned to her. Brinton was willing to co-operate shared Williams’s doubt that the other judges would agree to such an arrangement. 18. Williams then advised Brinton that if the above possible solution was not accepted by the other judges, then Brinton would have to find another solution. 19. At this time, there was no requirement for Provincial Court judges to be fully vaccinated against Covid-19 for them to perform their duties. It is therefore unclear why Williams believed that Brinton’s only option was to work from home and preside over arraignment court. 20. In any event, Brinton shared her concern with Williams that it was difficult to speak openly about the issue. Williams agreed, and assured Brinton that she would not seek to suspend her or refer her to the Nova Scotia Judicial Council. At no time did Williams advise Brinton that she might do so in the future, or that Brinton had done (or had not done) anything that would warrant any form of discipline at all. At no time did Williams advise Brinton that she was considering implementing a Covid-19 vaccination policy. 21. Nonetheless, on November 1, 2021, Williams sent a follow-up e-mail to the puisne judges, advising: I can advise that only fully vaccinated judges will be assigned to sit in our courtrooms for the foreseeable future. I am not inclined to issue a public statement to this effect but each of you are at liberty to advise staff, lawyers and members of the public that Provincial Court judges sitting in courtrooms are fully vaccinated. 22. Williams did not explain how she believed she had the authority to make such a decision. 23. On November 25, 2021, contrary to her earlier advice to Brinton and the other puisne judges, and without Brinton’s prior knowledge, Williams issued a public statement announcing that: …all Provincial Court judges presiding in courtrooms, both now and in the future, are fully vaccinated. While some members of our Bench may not be sitting due to medical leave at present, any judge returning to sit in the Provincial Court will be fully vaccinated. 24. Meanwhile, at the end of October 2021, Brinton’s husband tested positive for Covid-19. Brinton and the rest of their family soon tested positive as well. Starting on October 25, 2021, Brinton maintained a 10-day quarantine as required. 25. Upon recovering and completing her quarantine, Brinton found herself suffering from overwhelming exhaustion and anxiety arising from Williams’s actions. Brinton visited her doctor, Dr. Babatolu, and informed him that the greatest source of her anxiety was work e-mails. She explained that the anxiety was so severe that her body would shut down. Dr. Babatolu advised Brinton to go off work for four weeks during which time he instructed her to avoid reading emails. 26. Thus, on or about November 15, 2021, Brinton submitted a “Proof of Illness” form, signed and dated by Dr. Babatolu, to Williams, thereby satisfying the requirements set out at section 9(1) of Part 2 of the Supplementary Report on Income Protection prepared by the Nova Scotia Tribunal on Provincial Court Judges’ Salaries and Benefits, which requires a judge to provide “evidence of a disability” to the “satisfaction of the Chief Judge”. The “Proof of Illness” form did not request or require Brinton to provide medical records of any kind to satisfy the “evidentiary” requirements of section 9(1). 27. During her short-term disability leave, Brinton appropriately did share (and continued to share) the details of her medical diagnosis and treatment plan with Sarah Giavroutas, Disability Case Manager with Lifeworks, the group insurance benefits administrator at that time for government employees and Provincial Court judges. 28. On December 15, 2021, while Brinton was still on short-term disability leave, Williams sent an e-mail to Brinton advising that the other judges were unwilling to take on her scheduled trials. Williams added: “…they are of the view that a judge must perform all aspects of the work, including trials. I agree with them.” As she was avoiding work e-mails pursuant to her doctor’s orders, Brinton did not see the e-mail at this time. 29. On December 17, 2021, Brinton informed Williams that she had been told to take another 4-6 weeks off of work by her doctor. Brinton submitted a second Proof of Illness to that effect. 30. On February 22, 2022, Williams wrote a letter to Brinton stating that she would not approve Brinton’s request for short-term disability benefits unless she provided “evidence of a disability.” Williams also stated that the “Proof of Illness” form previously provided was insufficient in her eyes because it lacked “information on the nature of [the] illness.” This was the first time that Williams did anything to indicate that Brinton’s “Proof of Illness” form was not enough to satisfy the “evidentiary” requirement of section 8(1). 31. In any event, Williams went on to again raise the issue of Brinton’s vaccination status in the February 22 Letter. She wrote: In the event you are medically cleared to return to work, there is still the issue of your vaccination status. As of November 5, 2021, you were still unwilling to divulge your private vaccination status. In my December 15, 2021, e-mail to you, I reiterated the need for you to be fully vaccinated upon your return, in keeping with the Provincial Court policy; see enclosed. If you continue to choose not to disclose your vaccination status, you will be considered non-vaccinated and unable to preside over in-person trial and sentencings in the Court Room, which is a large part of the daily functions of a Provincial Court judge. Regrettably, I will have no recourse other than to suspend you and refer the matter to the Judicial Council. 32. This was the first time that Brinton heard that she was to be suspended, that she would be deemed to be unvaccinated, or that she would be permanently unable to preside in court, all because of declining to divulge her vaccination status, which Williams acknowledged in the February 22 Letter as “private”. It was also the first time that Brinton heard that she would be referred to the Judicial Council. 33. Brinton replied in writing indicating that she would apply for long-term disability. 34. On March 21, 2022, Dr. Babatolu provided a note confirming that Brinton would be off work due to medical reasons from December 17, 2021 until at least May 16, 2022. 35. In April 2022, Brinton was approved for long-term disability by Manulife. 36. Before then, however, on March 28, 2022, without any warning or further attempt to contact Brinton, and without Brinton’s consent, Williams wrote to Dr. Babatolu to request that he supply her with details of Brinton’s medical issues. Williams advised: I am writing to request a medical report for the timeframe October 25, 2021, to March 21, 2022, outlining the treatment plan, anticipated date of resolution, and/or restrictions and limitations to determine if Judge Brinton could have operationally performed her job with or without modifications to duties/hours. As Chief Judge, I am tasked with authorizing short-term illness claims for Judges of the Provincial Court. Without this information, regrettably I am not able to authorize the 100 days of short-term illness taken. 37. Brinton received a copy of the letter but did not realize it had been addressed to her doctor until she received a call from Dr. Babatolu informing her of the letter he had received. Brinton became concerned that Williams’s statement that she was “not able to authorize the 100 days of short-term illness taken” (which had already been incurred by this point) meant that Williams would seek or was seeking to recover the benefits that had already been paid to Brinton. During the call, Brinton declined to consent to the release of her records. 38. Thereafter, Williams’s office called Dr. Babatolu, following up on the request in Williams’s earlier letter. Dr. Babatolu’s office called Brinton a second time to ask if she had given consent for the release of her medical information. Brinton repeated that she had not. 39. Ultimately, Dr. Babatolu did not provide Williams with the requested records. By this time, Brinton had already provided the necessary information to her long-term disability benefits provider, Manulife. 40. In April 2022, Brinton was approved for long-term disability by Manulife. 41. Brinton has received no updates or further communication from Williams since April 2022. Given that Brinton was unable to comply with the condition imposed by Williams in the February 22 Letter, the clear terms of that letter indicate that Brinton was suspended and that the matter would be referred to the Judicial Council. [15] The plaintiff goes on to allege that the actions of then-Chief Judge Williams represent a violation of her (the plaintiff’s) judicial independence and judicial impartiality. The plaintiff pleads that these actions (as described) have caused her mental and emotional distress, as well as a significant loss of income and reputation. [16] Also in her pleadings, the plaintiff has suggested a number of alternative bases entitling her to damages from the Judicial Defendants. She first suggests that i) her appointment amounted to a “sui generis” contract between herself, the provincial Crown, and the Provincial Court, and that this contract contained implied terms of “respect of judicial impartiality and judicial independence” as well as “good faith treatment” by the Chief Judge. [17] In the alternative, she pleads that her appointment represented either ii) a contract for services, or iii) an employment contract, which in either case (in her view) has also been breached. [18] In the further alternative, the plaintiff argues that then-Chief Judge Williams was a public officer, and that her conduct amounts to “misfeasance in public office”. [19] In the yet-further alternative, that then-Chief Judge Willams’ conduct amounted to a breach of the Charter (in particular, ss. 7, 8, and 11(d)), as it represented a breach of the plaintiff’s “constitutional rights of medical privacy and judicial independence and impartiality”, thereby entitling the plaintiff to Charter damages. [20] The plaintiff further pleads that the conduct of then-Chief Judge Williams was malicious and oppressive, entitling the plaintiff to punitive damages. [21] The plaintiff pleads that the Office of the Chief Judge and the Provincial Court are responsible and liable for the actions of then-Chief Judge Williams, as a result of the Provincial Court Act, RSNS 1989 c. 238, as well as the doctrine of vicarious liability/agency. [22] In terms of remedy, the plaintiff seeks: Charter declarations, finding that her independence, impartiality, and medical privacy were violated; Charter damages as deemed appropriate; monetary damages of $5 million dollars for either i) breach of appointment; ii) “constructive removal”; or iii) Williams’ misfeasance in public office; and punitive damages. Motion of the Judicial Defendants / Hfx No. 527144 [23] The Judicial Defendants seek summary judgment on the pleadings and seek that the plaintiff’s Statement of Claim in Hfx No. 527144 be struck in its entirety. They submit, in essence, that all of the plaintiff’s claims against them are “clearly unsustainable” due to the principle of judicial immunity, which constitutes a complete bar to the claim. In addition (or in the alternative), they submit that the claim represents an abuse of the court’s process and should be struck as such pursuant to Civil Procedure Rule 88. [24] The plaintiff, in response, acknowledges that judicial immunity is a principle that bars civil actions against judges for acts performed “in their judicial capacity” or in their “adjudicative function”. However, she points out that immunity does not lie for any and all actions performed by judges, but only for those actions related to a judge’s “adjudicative” function (i.e., the function of deciding cases or resolving disputes brought before him/her). The plaintiff submits that in order for an action to be within a judge’s “judicial function”, or “adjudicative”, it has to be related to a specific and particular case which is before that judge. The plaintiff argues that in the case at bar, then-Chief Judge Williams’ actions were not related to any specific dispute or case before her, but were related to purely administrative issues. In the plaintiff’s submission, then-Chief Judge Williams should not enjoy immunity from claim as to those actions. [25] The plaintiff acknowledges that the claim she has put forward is a novel one. In fact, despite both sides presenting me with extensive case law (and I would assume having done extensive research), no one has been able to provide me with a case containing similar facts to the case at bar. There is no reported Canadian case, to my knowledge, of a judge suing the Chief of their court (with the notable exception of Norheim v. Chief Judge of the Provincial Court of Alberta, 2021 ABQB 465, where the claim was dismissed for other reasons). [26] Having said that, the plaintiff submits that just because her claim is novel does not make it “doomed to fail”; that the striking of a claim at the pleadings stage is a drastic remedy; and that in keeping with the commentary of the Knight/Imperial Tobacco case, I should err on the side of caution and allow this claim to proceed, at least at this stage. [27] The Judicial Defendants disagree. In particular, they respond that the very fact that we can find no case where such a claim proceeded is evidence that such a claim is doomed to fail. In their submission, the reason there are no cases with this fact scenario is that judicial immunity is accepted, understood, and acknowledged by all to constitute an absolute bar to such claims. Judicial Immunity / Role of Chief Judge of Provincial Court of Nova Scotia [28] The Provincial Court Act (supra) provides as follows: Immunity 4A A judge has the same immunity from liability as a judge of the Supreme Court. 1992, c. 16, s. 23. … Responsibility of Chief Judge 15 (1) The Chief Judge is responsible for the administration of the judicial functions of the court, including, without limiting the generality of the foregoing, the scheduling of the sittings of the court and the assignment of judicial duties. (2) The Chief Judge may suspend a judge upon such terms and conditions as the Chief Judge may determine where the Chief Judge believes immediate action is necessary. (3) Within ten days of suspending a judge, the Chief Judge shall request the Judicial Council to investigate the circumstances giving rise to the suspension and to take appropriate action. R.S., c. 238, s. 15; 1992, c. 16, s. 27. [29] There are numerous cases which describe and expand upon the immunity afforded to judges. In Morier and Boily v. Rivard, [1985] 2 SCR 716, the Court noted: Immunity of Superior Court Judges 85. The immunity of superior court judges in Canada, including judges of the Quebec Superior Court, is inherited from English law. 86. In Floyd and Barker (1607), 12 Co. Rep. 23, the principle of judicial immunity was recognized on the following ground: “for this would tend to the scandal and subversion of all justice. And those who are the most sincere, would not be free from continual calumniations…” (at p. 25). 87. In Garnett v. Ferrand (1827), 6 B. & C. 611, there is the following passage at pp. 625-26: This freedom from action and question at the suit of an individual is given by the law to the Judges, not so much for their own sake as for the sake of the public, and for the advancement of justice, that being free from actions they may be free in thought and independent in judgment, as all who are to administer justice ought to be. 88. In Fray v. Blackburn (1863), 3 B. & S. 576, it states at p, 578: It is a principle of our law that no action will lie against a Judge of one of the superior Courts for a judicial act, though it be alleged to have been done maliciously and corruptly; … The public are deeply interested in this rule, which, indeed, exists for their benefit, and was established in order to secure the independence of the Judges, and prevent their being harassed by vexatious actions. 89. In Royal Aquarium and Summer and Winter Garden Society v. Parkinson [1892] 1 Q.B. 431, Lord Esher, M.R., wrote at p. 442: It is true that, in respect of statements made in the course of proceedings before a Court of justice, whether by judge, or counsel, or witnesses, there is an absolute immunity from liability to an action. 90. In Halsbury’s Laws of England, 4th ed., vol 1, 1973, at pp. 197 et seq., it is stated at Nos. 206 and 210: 206. Persons protected. Persons exercising judicial functions in a court are exempt from all civil liability whatsoever for anything done or said by them in their judicial capacity, nor can any action be brought against the Crown in respect of acts or omissions of persons discharging responsibilities of a judicial nature or in connection with the execution of judicial process. 210. Extent of protection. Wherever protection of the exercise of judicial powers applies, it is so absolute that no allegation that the acts or words complained of were done or spoken mala fide, maliciously, corruptly, or without reasonable or probable cause suffices to found an action. The protection does not, however, extend to acts purely extra-judicial or alien to the judicial duty of the defendant; and, therefore, if the words complained of are not uttered in the course of judicial proceedings, the defendant is not protected. The protection extends to all judges, juries, advocates, parties and witnesses, for words spoken or written in the course of a judicial inquiry and having any reference thereto, however remote. 91. H. Brun and G. Tremblay, Droit constitutionnel (1982), write at p. 514: [TRANSLATION] Immunity of judges unit The primary aspect of the independence of the courts is negative: the judges will incur no civil liability when they act in their capacity as judges. This absolute immunity is a rule of the common law applicable to superior court judges even where bad faith has been alleged: See Anderson v. Gorrie, [1895] 1 Q.B. 668; Bengle v. Weir, (1929) 67 C.S. 289; Lemieux v. Barbeau, [1972] R.P. 357; and Gabriel v. Langlois, [1973] C.S. 659. In the case of these judges, it can be said that they are immunized for any act performed in the course of and in connection with their duties. On the other hand, it is clear that superior court judges are civilly liable for their purely personal acts, which have no connection with their legal responsibilities. [30] In G(S) v. Larochelle, 2004 ABQB 123: 8 The principle of judicial immunity is a complete defence to the plaintiff’s statement of claim. The law in Canada has followed the English tradition of judicial immunity, as judges ought to be free to perform their duties without fear of civil litigation. In Morier et al v. Rivard, [1985] 2 S.C.R. 716, the Supreme Court of Canada adopted the judgment of Denning, M.R. in Sirros v. Moore, [1975] Q.B. 118 (C.A.), at p. 136: In this new age I would take my stand on this: as a matter of principle the judges of superior courts have no greater claim to immunity than the judges of the lower courts. Every judge of the courts of this land - from the highest to the lowest - should be protected to the same degree, and liable to the same degree. If the reason underlying this immunity is to ensure “that they may be free in thought and independent in judgement,” it applies to every judge, whatever his rank. Each should be protected from liability to damages when he is acting judicially. Each should be able to do his work in complete independence and free from fear. He should not have to turn the pages of his books with trembling fingers, asking himself: “If I do this, shall I be liable in damages?” So long as he does his work in the honest belief that it is within his jurisdiction, then he is not liable to an action. He may be mistaken in fact. He may be ignorant in law. What he does may be outside his jurisdiction - in fact or in law - but so long as he honestly believes it to be within his jurisdiction, he should not be liable. Once he honestly entertains this belief, nothing else will make him liable. He is not to be plagued with allegations of malice or ill-will or bias or anything of the kind. Actions based on such allegation have been struck out and will continue to be struck out. Nothing will make him liable except it be shown that he was not acting judicially, knowing that he had no jurisdiction to do it. [31] In Baryluk (Wyrd Sisters) v. Campbell, 2008 CanLII 55134 (ON SC), the Court noted: [23] The doctrine of judicial immunity is expressly made applicable to case management masters by virtue of s. 82 of the Courts of Justice Act, R.S.O. 1990, c. C-43. [24] The immunity granted to individuals fulfilling judicial duties is an essential component of judicial independence. It is a well-established fundamental constitutional principle guaranteed by ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms and recognized as an unwritten constitutional principle. The Supreme Court of Canada has described judicial independence in R. v. Valente, 1985 CanLII 25 (SCC), [1985] 2 S.C.R. 673 at paragraph 15, as follows: The word “independent” in s. 11(d) reflects or embodies the traditional constitutional value of judicial independence. As such, it connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly to the executive branch of government that rests on objective conditions or guarantees. [25] The principle of judicial immunity ensures that judges are at liberty to exercise their functions with independence and without fear of consequences: “free in thought and independent in judgement”. In this regard, the Quebec Court of Appeal in Royer v. Mignault, [1988] A.Q. No. 47 stated at 5-6: The purpose of the principle [immunity of judges] is not, of course, to protect the personal interests of judges, but rather to protect the public interest in an independent and impartial justice system. To this end, judges, in performing their judicial functions, must be able to do so without fear of a personal liability for what they say or do in their judicial capacities. Any errors they make may be corrected on appeal, (or judicial review, as the case may be), but they should not have to fear that they may be threatened by dissatisfied litigants, or others, with civil actions charging them with malice, bias, or excess of jurisdiction. A judge should not be subject to the influence of personal concerns, conscious or unconscious, when performing his judicial functions. [emphasis added] [26] The cases have consistently held that actions against judges are to be struck out as disclosing no cause of action pursuant to the principle of judicial immunity: See L.M.K. v. Ontario (Minister of Community and Social Services), [1996] O.J. No. 812 (Gen. Div.), Kopyto v. Ontario Court of Justice (Provincial Division), [1995] O.J. No. 601 (Gen. Div.) at paragraphs 32-46 and 90-91, Unterreiner v. Wilson, (1982), 1982 CanLII 1814 (ON SC), 40 O.R. (2d) 197 (C.A.) at paragraphs 25 and 26, Dyce v. Ontario, [2007] O.J. No. 2142 (Sup. Ct.) at paragraph 23 and Crowe v. Canada (Supreme Court, Judge) [2007] F.C.J. No. 1570. … [28] A similar case to the present is Tsai v. Klug, 2005 CanLII 19788 (ON SC), [2005] O.J. No. 2889 in which a self represented plaintiff made allegations of conspiracy and case fixing against two judges of the Small Claims Court. He argued that the principle of judicial immunity did not extend to conduct that was deliberate, malicious or carried out in bad faith. Karakatsanis J. rejected this argument and held that while immunity does not extend to a judge’s purely personal acts, there is an absolute immunity for acts done in the course of or in connection with their judicial duties. … [32] In Valente v. The Queen, [1985] 2 S.C.R. 673, the Court dealt with the question of the judiciary’s independence in relation to the administration of the courts. The Supreme Court noted at page 708: The third essential condition of judicial independence for purposes of s. 11(d) is in my opinion the institutional independence of the tribunal with respect to matters of administration bearing directly on the exercise of its judicial function. The degree to which the judiciary should ideally have control over the administration of the courts is a major issue with respect to judicial independence today. Howland C.J.O. drew a distinction, for purposes of the issues in the appeal, between adjudicative independence and administrative independence, which is reflected in the following passages from his reasons for judgement at pp. 432-33: When considering the independence of the judiciary, it is necessary to draw a careful distinction between independent adjudication and independent administration. It is independent adjudication about which the Court is concerned in this appeal. The position of the judiciary under the English and Canadian Constitutions is quite different from that under the American Constitution. In the United States the federal judiciary is a separate branch which includes judicial administration. While the report of Chief Justice Jules Deschênes, “Masters in their Own House”, September, 1981, recommended the independent judicial administration of the courts, the Canadian Judicial Council, in September, 1982, only approved of the first two stages of consultation and decision sharing between the Executive and the Judiciary and was not prepared to approve at that time of the third stage of independent judicial administration. In Ontario, the primary role of the judiciary is adjudication. The Executive on the other hand is responsible for providing the court rooms and the court staff. The assignment of judges, the sittings of the court, and the court lists are all matters for the judiciary. The Executive must not interfere with, or attempt to influence the adjudicative function of the judiciary. However, there must necessarily be reasonable management constraints. At times there may be a fine line between interference with adjudication and proper management controls. The heads of the judiciary have to work closely with the representatives of the Executive unless the judiciary is given full responsibility for judicial administration. In his conclusions Howland C.J.O. observed at p. 443: On the hearing of this appeal, no submission was made that the Attorney General in his role as prosecutor interfered in any way with the sittings of the court, its lists, or the process of adjudication. Judicial control over the matters referred to by Howland C.J.O. – assignment of judges, sittings of the court, and court lists – as well as the related matters of allocation of court rooms and direction of the administrative staff engaged in carrying out these functions, has generally been considered the essential or minimum requirement for institutional or “collective” independence. See Lederman, “The Independence of the Judiciary” in The Canadian Judiciary (1976, ed. A.M. Linden), pp. 9-10; Deschênes, Masters in their own house, pp. 81 and 124. As the reasons of Howland C.J.O. indicate, however, the claim for greater administrative autonomy or independence for the courts goes considerably beyond these matters. The insistence is chiefly on a stronger or more independent role in the financial aspects of court administration – budgetary preparation and presentation and allocation of expenditure – and in the personnel aspects of administration – the recruitment, classification, pro motion, remuneration, and supervision of the necessary support staff. … [33] And later at pp. 711-712: Although the increased measure of administrative autonomy or independence that is being recommended for the courts, or some degree of it, may well be highly desirable, it cannot in my opinion be regarded as essential for the purposes of s, 11(d) of the Charter. The essentials of institutional independence which may be reasonably perceived as sufficient for purposes of s. 11(d) must, I think, be those referred to by Howland C.J.O. They may be summed up as judicial control over the administrative decisions that bear directly and immediately on the exercise of the judicial function. [34] The Valente case makes it clear that the judiciary retains absolute and independent control over administrative matters related to the running of their court(s); e.g., “… the assignment of judges, the sittings of the court, and court lists … [the] allocation of court rooms and direction of the administrative staff engaged in carrying out these functions …” and matters of that nature. The principle of judicial immunity protects these decisions. [35] In MacKeigan v. Hickman, [1989] 2 S.C.R. 796, the question arose as to whether a chief justice could be questioned about how or why a particular judge was assigned to a particular case. The Court noted at page 826: In Beauregard v. Canada, supra, the present Chief Justice (Estey and Lamer JJ. concurring; Beetz and McIntyre JJ. dissenting in part) quotes LeDain J. in Valente v. The Queen, as above, and explains at p. 70 why the principle of judicial independence is so important in the liberal democratic society that is Canada: The rationale for this two-pronged modern understanding of judicial independence is recognition that the courts are not charged solely with the adjudication of individual cases. That is of course, one role. It is also the context for a second, different and equally important role, namely as protector of the Constitution and the fundamental values embodied in it – rule of law, fundamental justice, equality, preservation of the democratic process, to name perhaps the most important. In other words, judicial independence is essential for fair and just dispute-resolution in individual cases. It is also the lifeblood of constitutionalism in democratic societies. [36] And later in that same case at page 832: This question goes to the administrative or institutional aspect of judicial independence: Valente v. The Queen, supra; Beauregard v. Canada, supra. In Valente v. The Queen and Beauregard v. Canada this Court affirmed in the strongest terms the necessity that the courts control administrative matters related to adjudication without interference from the Legislature or executive. In Valente v. The Queen the importance of the courts’ having exclusive control over the assignment of judges was considered central to the institutional independence of the judiciary. In Beauregard v. Canada, the Chief Justice stated in this respect, at p. 73, that the very role of the courts “as resolver of disputes, interpreter of the law and defender of the Constitution requires that they be completely separate in authority and function from all other participants in the justice system” (his emphasis). I do not say that the power in the courts to control their own administration is absolute, if by absolute what is meant is that in no circumstances can the Legislature or Parliament enact laws relating to the functioning of the courts or enquire into the conduct of particular judges. As noted earlier, Parliament and the Legislatures have long enacted legislation establishing courts and setting general guidelines as to how they function. Nor is there any doubt that Parliament may impeach a federally appointed judge for dereliction of duty. To this extent the fundamental principle of judicial independence must leave scope for another doctrine – the principle of Parliamentary supremacy. But at the same time, it is clear that Parliament and the Legislatures cannot act so as to trammel what Dickson C.J. in Beauregard v. Canada refers to as the authority and function of the courts. As LeDain J. puts it in Valente v. The Queen, at p. 709, the third essential condition for judicial independence, the collective independence of tribunals, extends to matters directly affecting adjudication – “assignment of judges, sittings of the court, and court lists – as well as the related matters of allocation of court rooms and direction of the administrative staff engaged in carrying out these functions.” It thus appears clear beyond doubt that the assignment of judges is a matter exclusively within the purview of the court. It would be unthinkable for the Minister of Justice or Attorney General to instruct the Chief Justice as to who should or should not sit on a particular case; that prerogative belongs exclusively to the Chief Justice as the head of the Court. To allow the executive a role in selecting what judges hear what cases would constitute an unacceptable interference with the independence of the judiciary. Inquiries after the fact must be similarly barred, in my view. A Chief Justice who knows that he or she may be examined and cross-examined by the executive or its emanation on why he or she assigned a particular judge to a particular case may feel, consciously or unconsciously, pressure to select someone pleasing to the executive. Even if the Chief Justice did not permit himself or herself to be influenced by such a prospect, the public perception that he or she might have been influenced could harm the esteem in which our system of justice is held. In short, the principle of judicial independence which underlies judicial impartiality and the proper functioning of the courts would be threatened by the possibility of public inquiries as to the reason for the assignment of particular judges to particular cases. [37] It is not always easy to identify a bright line between a judge’s “adjudicative” and “non-adjudicative” functions. The case of Nova Scotia Barristers’ Society v. Howe, 2016 NSBS 4 is a case in point. [38] Mr. Howe was a lawyer facing disciplinary proceedings before the Nova Scotia Barristers’ Society. It was alleged, inter alia, that Mr. Howe was habitually discourteous to the Court by chronic lateness, or by being “double booked”, causing delays and inconvenience to all involved. At the hearing, Mr. Howe sought to subpoena various provincial court judges to give evidence as to: their general/typical practice in their courtrooms in relation to lawyers’ double booking and/or lateness; their expectations in relation to courtesy from counsel; and other general and related matters. The identified judges brought motions to quash the subpoenas, arguing that they were immune from testifying. Mr. Howe responded that his questions were unrelated to the judges’ “decision-making” function, but rather were related only to their “observations” and “general practices”. He argued that judges were not immune from such questions. [39] At pp. 10–11 the tribunal noted: Does the proposed evidence fall under Judicial immunity? : The Panel acknowledges this evidence is relevant, and would normally form the type of evidence we would receive as being necessary for a full consideration of the charge. However, the principle of Judicial Immunity must be considered. As Mr. Howe correctly observed: “The challenge is to delineate the scope of judicial function.” Mr. Howe argued that the position taken on behalf of the Honourable Judges expanded the availability of immunity so much that it granted a blanket immunity for them, even for what he suggested was tenuously connected behaviour. The Society and the Honourable Judges argued that the evidence anticipated from the judges, while perhaps not part of a judicial decision, was still connected to the judicial function. Both positions bring one to the same place: it must be determined whether the evidence sought from the judges is the type that is covered by immunity, or whether it is, as stated in the Hahn case, supra, evidence that is “… about collateral matters which have nothing to do with their role as a judge because there is no nexus between the judicial role and the collateral matter.” An example of evidence that is clearly caught by the immunity, is anything a judge says related to a judicial decision. This would include not only a final decision in a case, but decisions related to admissibility of evidence, on objections made during trial, and even general decisions related to the timing of witnesses and the general conduct of the trial. On the other hand, an example of evidence not caught by the immunity might be, if completely separate from a proceeding, an assault that occurred in the back of the courtroom, which was witnessed by a judge. In this case, Mr. Howe suggests that the type of evidence he is interested in falls toward the latter example. He wants the judges to relate what they observed of the behaviour of lawyers before the court, as they interact with the court and each other. In total, he wants them to discuss issues of double booking, courtesy regarding lateness and double booking, styles of practice and preparation before the courts, and the standards of conduct for counsel. Mr. Howe suggests this can be done by the Judges simply telling the Panel about their observations. While this argument gave the Panel pause, in the end we must conclude that this is caught by the principle of judicial immunity. The goal of immunity is to ensure that no judge is required to give evidence about anything that relates to their exercise of the judicial function. When considered carefully, evidence on these topics is inherently tied up with how each judge controls the processes of their respective court. Each judge has their own practices, and those practices impact their view of the particular behaviours, and how counsel would conduct themselves before that court. Those views clearly impact what standards the judges expect in their courtrooms. It must be remembered that judicial immunity applies not only to judicial decisions, but also administrative matters related to the judicial functioning of the court (See MacKeigan and Hahn, supra). How a judge controls the case flow before the court, how counsel is expected to conduct themselves, and the standards applicable to a lawyer’s standard of practice, are all matters related to the judicial function: the control of the courtroom. [40] Although I acknowledge that Howe (supra) is not a Court decision, I do find their conclusions logical and persuasive. [41] In Edwards v. Canada (Attorney General), [1999] O.J. No. 4679, a party sought to compel testimony from a judge about events that had occurred in his chambers. Their argument was that since the events had occurred outside the courtroom, they were not “judicial functions”. The Court responded: [26] In Clendenning, the court held that Judge Clendenning be compelled to testify about his observations of the behaviour of the police officer in the body of the courtroom. The court characterized this as a collateral matter. However, as this officer’s behaviour was inextricably entwined with the behaviour of the testifying officer, any questioning of the judge would, at least implicitly, be an inquiry into the judge’s views on the testifying officer’s evidence. The principle of judicial immunity extended to protect testimony on the collateral matter about which a judge could otherwise be compelled to testify. [27] On one reading of Clendenning, it establishes a very high test for a collateral matter. It suggests that for an incident to be “collateral”, it should have “no bearing whatsoever upon the trial” (at p. 102). At another point in the decision, the court describes collateral matters as those that are “not part of the trial” (at p. 102). [28] As to the court’s first description, I cannot characterize a chambers conference with a witness who is testifying before the court and two lawyers who are involved in the proceedings, as having “no bearing whatsoever on the trial”. As to the second description, it is at least arguable that the chambers discussion was “not part of the trial” in the sense that it was not part of the decision-making process in the underlying Reference. However, if I accept the lower threshold for collateral matters, I must still consider this chambers discussion in its context. As I earlier stated, a chambers meeting may at times involve judicial functions and at other times, may not. [29] In my view, chambers meetings are normally incompatible with the court’s role as a place of public record. This motion highlights the problems that can arise with them. Nevertheless, the chambers of a judge can fairly be regarded as an extension of the courtroom. Judges do their work in chambers as well as in the court room. This is normally the place where a judge deliberates, confers with colleagues and prepares the decisions that affect the lives of the litigants who appear in the courtroom. It can also be a place, and, in some circumstances, the best place, for a judge to deal with a matter that arises in the courtroom. Holding a conference in chambers does not, by itself, remove a judge from his or her judicial role. Ultimately, the use of chambers for a variety of purposes is a matter for judicial discretion. If chambers meetings are used to facilitate or resolve a matter before the court, I do not see how they can be regarded as collateral to the judicial function. [30] In the courtroom, Chief Justice Lamer was faced with an apprehensive and reluctant witness who had important evidence to offer on a matter that was profoundly serious -- the conviction of a person who may have been innocent of a crime. Chief Justice Lamer was responsible for conducting the Milgaard Reference on behalf of the court, and for ensuring that the court heard all relevant evidence. He was confronted with the problem of Ms. Edwards’ reticence to testify and was required to address it. It was his decision to invite her and the two lawyers into his chambers, with the consent of all counsel. Clearly, his intention was to provide a more comfortable and less threatening environment that the courtroom in which to understand her reluctance to testify and to reassure her. [31] Ms. Fraser concedes that if Chief Justice Lamer had ordered Ms. Edwards to testify, there could be no inquiry into this. Such an inquiry would clearly penetrate the deliberative process behind the order. As the record demonstrates, Chief Justice Lamer came very close to ordering her to answer the question she was asked. The Chief Justice attempted to achieve the same result with a more compassionate approach that ultimately furthered the conduct of the Reference and the administration of justice. Viewed in this manner, Ms. Edwards’ testimony was very much “part of the trial” and was in no way collateral to it. Along the spectrum of judicial functions proposed by Ms. Fraser, Chief Justice Lamer was much more than an observer to an event. As President of the Milgaard panel, he was facilitating the evidence of Ms. Edwards in the matter that was before the court. I conclude that the collateral matters exception to the principle of judicial immunity does not apply to the circumstances. [32] Clendenning does not advance the respondents’ argument for another reason. It not only carves out a narrow exception to the principle of judicial immunity, but also widens the scope of the immunity in circumstances where the testimony of a judge on a collateral matter is linked to testimony that is part of the trial. The decision to hold the conference in chambers, the discussion that occurred there, the court’s recommendation that Ms. Edwards receive protection, and the court’s instruction to her that she was compellable to answer the question asked, were all part of the same process -- eliciting the evidence of Ms. Edwards before the court. Any attempt to inquire into the chambers meeting would, in effect, amount to an inquiry about the deliberative process underlying the entire course of events. They are inextricably intertwined. On the authority of Clendenning, Chief Justice Lamer cannot be compelled to testify about this. [33] Judges do not enjoy absolute testimonial immunity in all circumstances, but they must be free to perform their judicial duties without concern that decisions made in “the bona fide exercise of [their] office” are subject to subsequent scrutiny or elaboration: Friedland, supra, at p. 34. An independent judiciary is central to a free and democratic society, and judicial immunity is one of its safeguards. … [42] In R. v. Hahn, 2013 SKQB 295: [26] That said, it is clear from MacKeigan that judicial immunity from testifying is not absolute. An exception to testimonial immunity is “collateral matters”. In Re Clendenning and Board of Police Commissioners for City of Belleville (1976), 75 D.L.R. (3d) 33 (Ont. Div. Ct.), the Court held that a judge may be compelled to testify about collateral incidents that may occur during the course of a trial. Collateral matters were described as having “no bearing whatsoever upon the trial” (Clendenning at para. 16). [27] In Edwards v. Canada (Attorney General) (1999), 46 O.R. (3d) 447 (Ont. S.C.J.), Lax J. interpreted “collateral incidents” to mean events that are unrelated to the matter before the Court but happen to be witnessed by the judge. However, she qualified this later with respect to collateral matters linked to testimony that is part of the trial: … [28] She observes that judicial acts are on a spectrum: 17 In his submissions, Mr. Scott suggested that I view the problem as a “slippery slope” on which I should be cautious to venture for fear of sliding down and endangering the core values that protect the independence of the judiciary. I prefer Ms. Fraser’s more level analogy of a spectrum, along which judges move in both their judicial and non-judicial roles. At the one end is a judge who may, for example, be a witness to a motor vehicle accident. Can there be any question that in this example, he or she is compellable to testify about this? The judge qua citizen enjoys no immunity because there is no nexus between her role as judge and her role as observer to an event. 18 At the other end of the spectrum are those situations in which it is clear that the judge is performing a judicial role. Hickman is authority for the proposition that the thought processes of a judge may not be penetrated, nor may her administrative acts later be questioned. For the reasons given there, these judicial acts enjoy complete immunity whether they occur in court, in chambers, or at home. The judicial function is inseparable from the person qua judge. … … [33] From the foregoing jurisprudence, a number of principles emerge: 1. Judges are immune from testifying in relation to actions undertaken in their adjudicative capacity; 2. This immunity from testifying extends to their administrative functions; 3. Immunity from testimonial compulsion is integral to an impartial and independent judicial system; 4. Judges may be compellable to testify about collateral matters which have nothing to do with their role as a judge because there is no nexus between the judicial role and the collateral matter; and 5. Judges are immune from testifying in court proceedings arising out of matters where such judges presided. [43] It is entirely clear, in my reading of the cases, that a judge is immune from civil action in relation to both substantive and administrative actions, taken in relation to judicial proceedings. [44] In Hokhold v. Canada (Attorney General), 2021 BCCA 475, the plaintiff had been involved in family proceedings and was (one could assume) discontented with the results. He thereafter started multiple actions against multiple judges involved in his matter. All of these actions were very easily dealt with, as those judges were very obviously immune from such claims. [45] However, for our purposes, it is notable that Mr. Hokhold had also commenced an action against the Chief Justice of the British Columbia Supreme Court. His claim was based on the fact that, during the time of some of these proceedings, the Chief Justice had contacted the RCMP about Mr. Hokhold due to serious safety concerns the Chief had in respect of a specific judge who was hearing Mr. Hokhold’s case. Mr. Hokhold sued the Chief Justice for having done this. [46] The Chief Justice filed a motion to strike the claim, which was granted by the motions judge. On appeal at the British Columbia Court of Appeal, the Court noted: ii) Claims against Chief Justice Hinkson [37] In MacKeigan, the court explained that the principle of judicial independence that prohibits a judge from being called on in a court to testify extends to administrative matters related to adjudication, again allowing for appropriate exercise of Parliamentary supremacy. [38] The Chief Justice of the British Columbia Supreme Court has responsibility for the administration of the judges of the court: Supreme Court Act, R.S.B.C. 1996, c. 443, s. 2.1. This encompasses, in my view, steps engaged by the Chief Justice in respect of legal proceedings that have come before a judge. Judicial immunity applies, in my view, not just to performance of judicial functions by a judge in the course of a legal proceeding, but also to those administrative steps taken by the Chief Justice. [39] In his pleading, Dr. Hokhold claims against Chief Justice Hinkson for steps taken by him “acting in connection with the duties of his office”. He alleges that Chief Justice Hinkson “knowingly acted with the intention to use his public office for a purpose …”, and pleads that Chief Justice Hinkson committed “abuse of his office and/or other corrupt acts behind the shield of his judicial office”. [40] I conclude that Justice Betton was entirely correct in describing the claim against Chief Justice Hinkson as relating to the Chief Justice’s administrative functions exercised on behalf of the court, and correct that absolute immunity applies to the claim. It follows than any complaint as to his conduct in the matter may not be the subject of a suit. [47] According to the plaintiff in the case at bar, however, the answers provided in these cases do not end the matter. It is her contention that, while she acknowledges that a judge’s administrative actions can attract judicial immunity, it would only be those actions directly related to a specific case before the court that would fall within such a category. In her submission, it is only such a function that could be deemed “adjudicative” (in the context of judicial immunity); and only such a function could justify blanket judicial immunity. As the plaintiff (quite rightly) notes, immunity is for the benefit of the public, not the judge. [48] Despite her counsel’s able argument on this point, the plaintiff has provided me no authority in support of it. [49] It must be acknowledged that a chief judge or justice of a court occupies a unique role within the administration of justice. Such a person is tasked with the administration of their bench as a whole. Their work encompasses both the administration of specific cases that come before their court, but also the administration and/or the establishment of general rules for all cases and litigants that come before their court. Perhaps there are decisions to be made which would straddle both individual and multiple cases and/or areas of court work. [50] It also must be acknowledged that the entirety of a chief judge or justice’s work as a chief, whether in individual cases or in the workings of the court as a whole, would be directed toward the proper functioning of their court. The fact that individuals (either members of the public or, even, members of the court) might disagree with decisions made by a chief, or might even have legitimate complaints about those decisions, changes nothing about the essential nature of that authority. It is the same authority given to all judges to decide and administer cases, except on a greater or more global scale. It is an authority necessary for the proper functioning of the courts. [51] I have carefully considered the arguments of the plaintiff. In the final analysis, I fail to see why some of a Chief Judge/Justice’s decisions in the running of her court should attract immunity, and others not. Some of those decisions would involve individual cases, some would involve multiple cases, some would involve the Court and its functions as a whole. Where those decisions are made within that Chief’s function, they are all ostensibly for the benefit of the court (and, by extension, the public). In my view, it would be entirely artificial to use these distinctions as a line for determining immunity. [52] I will use the following example, in a disciplinary context. Let us suppose a Chief Judge/Justice became aware that a judge was presiding over a case while under the influence of some intoxicating substance. That Chief might suspend that judge and (in the Provincial Court context) refer the matter to the Judicial Council. [53] Now let us imagine a Chief Judge/Justice who becomes aware that a judge is routinely attending to their work (hearing cases, issuing decisions, and so on) while under the influence of some intoxicating substance. That Chief might also suspend that judge, without reference to any specific case, and refer the matter to the Council. [54] By the logic of the plaintiff, the first Chief would be immune from civil claim, while the second Chief would not. That simply does not stand up to scrutiny. [55] The case law makes it clear that what matters for the purpose of immunity is whether the judge was acting in their “judicial function”, a term which includes administrative acts. [56] I also note that in relation to the Chief of the Provincial Court of Nova Scotia, the Provincial Court Act (supra) makes it clear that the Chief is responsible for the “administration of the judicial functions of the court, including, without limiting the generality of the foregoing, the scheduling of the sittings of the court and the assignment of judicial duties”. Those actions are obviously related to the administration of the court “as a whole”, and the legislation makes it clear that they fall squarely within the judicial duties of the Chief. [57] It is only where a judge (or a Chief Judge) is clearly acting outside their judicial function, would that judge not be immune from civil suit. [58] The facts in the case at bar show a Chief Judge acting within her authority as Chief, making decisions to ensure the proper functioning of her court (as she saw fit). Her decisions in relation to the scheduling of judges during the Covid-19 pandemic fell squarely within her judicial function, as described in the Provincial Court Act (“the scheduling of the sittings of the court and the assignment of judicial duties”). Perhaps one could disagree with the decisions she made, but they were hers to make. [59] In my view, the actions of then-Chief Judge Williams contained in the Statement of Claim fall entirely within those actions for which she is immune from civil claim, by virtue of her position as Chief Judge of the Provincial Court. I find the plaintiff’s claim as against all of the Judicial Defendants must fail for that reason. The claim in its entirety is clearly unsustainable and must be struck. Abuse of Process [60] It is the further/alternative contention of the Judicial Defendants that the claim in the present case represents an abuse of process and should also be struck for that reason. They make this argument on two grounds: a) that to bring a civil action against a judge is barred by judicial immunity and therefore, by its very nature, such represents an abuse of process, and b) that the same actions complained about in this claim were the subject of a formal complaint (the “Complaint”) by the plaintiff to the Judicial Council. [61] The plaintiff has responded that a) her civil action is not barred by judicial immunity, therefore there is no abuse of process, and b) the civil action and the Complaint seek different remedies, and therefore it does not represent an abuse of process to pursue both avenues. [62] I have already discussed, at length, the issue of judicial immunity, and I will not repeat it here. It is true that the filing of a lawsuit as against a sitting judge, where immunity applied, has been held to constitute an abuse of process. The Judicial Defendants note McPherson v. Campbell, 2019 NSCA 23, where the Court of Appeal upheld the decision of the Chambers judge, finding that a civil action against a sitting judge for actions performed within his duties, constitutes an abuse of process. They also note Taha v. Clements, 2021 PECA 5: [12] … The claim contains entirely unfounded and unwarranted inappropriate and scandalous allegations and aspersions regarding the person of the defendant judge. There is nothing on the face of the proceeding […] to support [the plaintiff]’s various bare allegations of bad faith made outside the defendant judge’s jurisdiction. Hence the matter is vexatious. In these circumstances, it was appropriate for the motions judge to find, as he did, that the proceeding was frivolous, vexatious, and an abuse of process. [63] It should be noted that in both of these cases, the plaintiff was a litigant who was aggrieved by a decision (or decisions) made by the defendant judge. Rather than filing an appeal or a complaint, the litigant in those cases chose to file a lawsuit against that judge. Such an act, in these circumstances, is clearly barred by judicial immunity and could only be described as vexatious and frivolous. [64] The present case is somewhat different. The plaintiff here is not a litigant who is displeased with a judge’s decision; she is a Provincial Court judge who is displeased with her Chief’s decisions and/or actions. That strikes me as significantly different. I would not be prepared to find that the present claim constitutes an abuse of process simply by virtue of it being filed against a judge. [65] The issue of the Complaint, however, is a different matter. The Judicial Defendants have argued that the civil action represents an abuse of process as it purports to relitigate the same issues that were decided by the Judicial Council. [66] The plaintiff filed her Complaint to the Nova Scotia Judicial Council about Chief Judge Williams on June 7, 2023. The Complaint was lengthy and detailed, comprising 26 pages and 86 paragraphs. [67] The Complaint began by outlining the same facts as were outlined in the civil action (and detailed hereinabove). The Complaint then went on to provide that, in the view of the complainant, the actions of then-Chief Judge Williams represented an affront to the complainant’s judicial independence and judicial impartiality, in particular by the following actions: (a) by pressuring the complainant to reveal her Covid-19 vaccination status; (b) by meeting with the complainant to try and persuade her to reveal her vaccination status; (c) by advising the complainant that the only way to proceed was for her to work from home while her colleagues took over her in-person trials; and if her colleagues were unwilling to do so, the complainant was to find another solution; (d) by unilaterally creating a policy whereby only fully vaccinated judges would be permitted to sit in courtrooms and hear cases; (e) by unilaterally suspending the complainant (or threatening to do so), as indicated in the February 22 letter; (f) by writing to the complainant’s doctor to ask for medical information in relation to the complainant; (g) by not providing the complainant with a meaningful opportunity to be heard and, in particular, following the February 22 letter. [68] The Complaint was submitted to Chief Justice Wood pursuant to s. 17A of the Provincial Court Act. [69] By letter dated October 10, 2023, Chief Justice Wood provided his decision. He first noted the test to be applied (at p. 2): The review committee appointed to investigate complaints against The Honourable Judge Gregory Lenehan conducted an extensive review of judicial misconduct jurisprudence and in their report described the test to be applied in reviewing complaints against Provincial Court Judges as follows (para 45): Whether the impugned conduct, if proven or admitted, could support a finding of judicial misconduct. That is, from the point of view of a reasonable, dispassionate, and informed public could it be found to be so seriously contrary to the impartiality, integrity and independence of the judiciary that it has undermined the public’s confidence in the ability of the judge to perform the duties of office, or in the administration of justice generally, and that it warrants a disposition other than dismissal of the complaints in order to restore the confidence? I have concluded that I should apply the same test … [70] After going through the Complaint in detail, Chief Justice Wood concludes as follows (p. 5): Section 17B(1) contemplates that I could refer the matter to a review committee for further investigation. That path would lead to dismissal, resolution, or referral of the complaint to the Judicial Council for a hearing. On the information provided to me, I do not see any requirement for further investigation since the factual underpinning for the allegations is well documented and set out in detail in Judge Brinton’s complaint. I am in as good a position as a review committee to apply the Lenehan test to the circumstances described by Judge Brinton. Having considered all of the material provided to me as well as the applicable principles, I conclude that the actions of Chief Judge Williams could not support a finding of judicial misconduct as defined in Lenehan. Her decisions concerning how to assign judicial work and what medical information was required to support Judge Brinton’s medical leave fall within her authority as Chief Judge. The reasons for these decisions and the methods of implementation would not warrant any of the sanctions found in s. 17K of the Act. By virtue of the authority in s. 17B(1)(a) of the Act the complaint of Judge Brinton is dismissed. [71] This decision, I am advised, has been the subject of an application in judicial review by the plaintiff. I am advised that that application has been heard by our Court and is under reserve. [72] In Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, the Supreme Court of Canada set down the test for a finding of abuse of process on the basis of re-litigation of the same issues: 38 … The policy grounds supporting abuse of process by relitigation are the same as the essential policy grounds supporting issue estoppel (Lange [Lange, Donald J., The Doctrine of Res Judicata in Canada, Markham, Ont.: Butterworths, 2000], at pp. 347-48): The two policy grounds, namely, that there be an end to litigation and that no one should be twice vexed by the same cause, have been cited as policies in the application of abuse of process by relitigation. Other policy grounds have also been cited, namely, to preserve the courts’ and the litigants’ resources, to uphold the integrity of the legal system in order to avoid inconsistent results, and to protect the principle of finality so crucial to the proper administration of justice. … 43 …In all of its applications, the primary focus of the doctrine of abuse of process is the integrity of the adjudicative functions of courts. Whether it serves to disentitle the Crown from proceeding because of undue delays (see Blencoe, supra), or whether it prevents a civil party from using the courts for an improper purpose (Hunter, supra, and Demeter, supra) the focus is less on the interest of parties and more on the integrity of judicial decision making as a branch of the administration of justice. In a case such as the present one, it is that concern that compels a bar against relitigation, more than any sense of unfairness to a party being called twice to put its case forward, for example. When that is understood, the parameters of the doctrine become easier to define, and the exercise of discretion is better anchored in principle. 44 The adjudicative process, and the importance of preserving its integrity, were well described by Doherty J.A. He said, at para. 74: The adjudicative process in its various manifestations strives to do justice. By the adjudicative process, I mean the various courts and tribunals to which individuals must resort to settle legal disputes. Where the same issues arise in various forums, the quality of justice delivered by the adjudicative process is measured not by reference to the isolated result in each forum, but by the end result produced by the various processes that address the issue. By justice, I refer to procedural fairness, the achieving of the correct result in individual cases and the broader perception that the process as a whole achieves results which are consistent, fair and accurate. 45 When asked to decide whether a criminal conviction, prima facie admissible in a proceeding under s. 22.1 of the Ontario Evidence Act, ought to be rebutted or taken as conclusive, courts will turn to the doctrine of abuse of process to ascertain whether relitigation would be detrimental to the adjudicative process as defined above. When the focus is thus properly on the integrity of the adjudicative process, the motive of the party who seeks to relitigate, or whether he or she wishes to do so as a defendant rather than as a plaintiff, cannot be decisive factors in the application of the bar against relitigation. 46 Thus, in the case at bar, it matters little whether Oliver’s motive for relitigation was primarily to secure re-employment, rather than to challenge his criminal conviction in an attempt to undermine its validity. Reliance on Hunter, supra, and on Demeter, (H.C.), supra, for the purpose of enhancing the importance of motive is misplaced. It is true that in both cases the parties wishing to relitigate had made it clear that they were seeking to impeach their earlier convictions. But this is of little significance in the application of the doctrine of abuse of process. A desire to attack a judicial finding is not in itself an improper purpose. The law permits that objective to be pursued through various reviewing mechanisms such as appeals or judicial review. Indeed reviewability is an important aspect of finality. A decision is final and binding on the parties only when all available reviews have been exhausted or abandoned. What is improper is to attempt to impeach a judicial finding by the impermissible route of relitigation in a different forum. Therefore, motive is of little or no import. [73] The Court in Toronto (City) v. C.U.P.E., Local 79, supra, went on to give examples where, in their view, the circumstances would not give rise to a finding of abuse of process: 52 … There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context. … 53 The discretionary factors that apply to prevent the doctrine of issue estoppel from operating in an unjust or unfair way are equally available to prevent the doctrine of abuse of process from achieving a similar undesirable result. There are many circumstances in which the bar against relitigation, either through the doctrine of res judicata or that of abuse of process, would create unfairness. If, for instance, the stakes in the original proceeding were too minor to generate a full and robust response, while the subsequent stakes were considerable, fairness would dictate that the administration of justice would be better served by permitting the second proceeding to go forward than by insisting that finality should prevail. An inadequate incentive to defend, the discovery of new evidence in appropriate circumstances, or a tainted original process may all overcome the interest in maintaining the finality of the original decision. [74] In Ocean v. Economical Mutual Insurance Company, 2013 NSSC 14, our Court noted the following in respect of Rule 88 / Abuse of Process: [37] Rule 88 is designed to deal with misuse of the court’s procedure in a way that would bring the administration of justice into disrepute. In Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, the Supreme Court of Canada discuss the doctrine of abuse of process stating at ¶ 35: Judges have an inherent and residual discretion to prevent an abuse of the court’s process. This concept of abuse of process was described at common law as proceedings ‘unfair to the point that they are contrary to the interest of justice’ (R. v. Power, [1994] 1 S.C.R. 601, at p. 616), and as ‘oppressive treatment’ (R. v. Conway, [1989] 1 S.C.R. 1659, at p. 1667). McLaughlin J. (as she then was) expressed it this way in R. v. Scott, [1990] 3 S.C.R. 979, at p. 1007: … abuse of process may be established where: (1) the proceedings are oppressive or vexatious; and, (2) violate the fundamental principles of justice underlying the community’s sense of fair play and decency. The concepts of oppressiveness and vexatiousness underlie the interest of the accused in a fair trial. But the doctrine evokes as well the public interest in a fair and just trial process and the proper administration of justice. [38] Further, at ¶ 37 the court stated: In the context that interests us here, the doctrine of abuse of process engages ‘the inherent power of the court to prevent the misuse of its procedure, in a way that would … bring the administration of justice into disrepute.’ (Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481 (C.A.) at para, 55, per Goudge J.A., dissenting (approved [2002] 3 S.C.R. 307, 2002 SCC 63)). Goudge J.A. expanded on that concept in the following terms at paras. 55-56: The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure in a way, that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute… [39] Dismissing a proceeding for abuse of process is an extreme remedy reserved for cases where the abuse is found to be of a contemptuous and deliberate nature. It is a remedy that is rarely granted unless necessary to maintain the integrity of the judicial system. [75] In Norheim v. Chief Judge of the Provincial Court of Alberta, supra, the plaintiff was an Alberta Provincial Court judge who had made a complaint about the Chief of the Alberta Provincial Court to the provincial judicial council. The complaint was dismissed. The plaintiff (for reasons unknown) did not seek any review of the Council’s decision. Rather, he then commenced an action in the Alberta Superior Court against the Chief Judge. [76] The defendant Chief sought to quash the actions as an abuse of process, arguing that the decision of the Council stood and that the matter should not be re-litigated. The Alberta Queen’s Bench noted: [43] … Putting aside the complaints of constitutional infirmity, Judge Norheim’s pleadings before this Court assert the same alleged deficiencies on the part of the Chief Judge as he had complained about to the Judicial Council. The Judicial Council found there to be no basis to Judge Norheim’s complaint and upheld the Chief Judge. But by arguing those same complaints about the Chief Judge in this Court, it is clear and obvious that Judge Norheim does not agree with the Chief Judge’s decision and, by extension, does not agree with the Judicial Council’s decision. No other rational explanation is possible. [44] In the result, regardless of the reason why judicial review was not sought by Judge Norheim, the decision of the Judicial Council is final and stands unimpaired. … [47] One category of abuse of process germane to this case pertains to the attempted relitigation of settled issues, regardless of the litigant’s motive. [48] In Toronto (City) v. CUPE 2003 SCC 63 [Toronto], the Court said the following concerning re-litigating and motive at paragraph 46: A desire to attack a judicial finding is not in itself an improper purpose. The law permits that objective to be pursued through various reviewing mechanisms such as appeals or judicial review. Indeed reviewability is an important aspect of finality. A decision is final and binding on the parties only when all available reviews have been exhausted or abandoned. What is improper is to attempt to impeach a judicial finding by the impermissible route of relitigation in a different forum. Therefore, motive is of little or no import. [49] The doctrine of abuse of process concentrates on the integrity of the adjudicative process. There can be no assumption that relitigation will produce a more accurate result. If it produces the same result, then relitigation was a waste of time, money and resources. If it produces a different result, “the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality”: Toronto para. 51. [50] These are precisely the reasons why the Chief Judge and the Attorney General move to strike. Judge Norheim clearly seeks to relitigate the same issues which were decided by the Judicial Council against Judge Norheim. He wants the Chief Judge’s decision quashed ab initio and have this Court impose a contrary decision - his reappointment. Such a result clearly would contradict the decision of the Judicial Council to uphold the Chief Judge’s decision. It is an abuse of process to relitigate that matter. [77] In Tapics v. Dalhousie University, 2015 NSCA 72, the plaintiff was a student at the defendant university who had complaints about her treatment at that institution. She filed internal complaints which were dismissed. She unsuccessfully appealed to the internal appeal committee, and to an appeal panel of the Senate. When all of these were exhausted, the plaintiff chose to file a civil action against the university, making the same allegations and now seeking damages for those. The defendant university moved to strike the claims, arguing that they represented an abuse of process. [78] The motions judge agreed and dismissed the claim as a relitigation of the matters that had already been brought before the university’s internal committees. The Court of Appeal, when the matter was brought to them, noted: [56] Justice Pickup reviewed Ms. Tapics’ pleading and (para. 35) said he was “satisfied that the majority of the allegations contained in the notice of application have been dealt with by the FGS and/or SAC”. … … [58] Much of Ms. Tapics’ civil claim in the Supreme Court is founded on the same facts that underscored her internal appeals: … [59] I agree with Justice Pickup that those aspects of Ms. Tapics’ claim would relitigate matters that were squarely before the University’s internal appeal tribunals. Ms. Tapics’ course, to challenge those rulings, was an application for judicial review. As in Aba-Alkhail, a civil claim in court for the same matter would abuse the court’s process under the principles set out in Toronto v. C.U.P.E., Figliola and Behn. I would dismiss this aspect of Ms. Tapics’ appeal. [79] It should be noted that the Nova Scotia Court of Appeal did find that there was one aspect of the plaintiff’s civil claim that had not been put to the university’s internal appeals tribunals. The Court allowed that aspect of her claim to proceed, noting that this aspect of the claim had not yet been the subject of any decision. [80] In the case at bar, having reviewed both the plaintiff’s Statement of Claim, and her Complaint, it is quite obvious that they are essentially identical; in the sense that the behaviour complained of (the actions of then-Chief Judge Williams) is the same in both documents. I can see no behaviour alleged in the Complaint that is left out of the Statement of Claim, and vice versa. [81] Further, as noted above, in dismissing the Complaint Chief Justice Wood came to following conclusion: Her [then-Chief Judge Williams] decisions concerning how to assign judicial work and what medical information was required to support Judge Brinton’s medical leave fall within her authority as Chief Judge. [82] That is, in essence, the same question that would need to be decided if the civil action against the Judicial Defendants were to proceed. In other words, this question has already been the subject of adjudication. [83] The one difference in the two processes is the relief sought: the Complaint seeks a disciplinary sanction, while the civil action seeks monetary damages. However, in my view, the Tapics case makes it clear that the difference in relief sought by the complainant/plaintiff is immaterial in the context of this analysis. [84] The authority of the Tapics case, as well as the other cases I have cited, lead me to the conclusion that the action filed in Hfx No 527144 must be deemed an abuse of the Court’s process. This is, to repeat, because the same impugned behaviour has already been the subject of adjudication/decision by the Judicial Council. The plaintiff’s claim should be struck by the authority of Civil Procedure Rule 88.02. Claim against the Attorney General of Nova Scotia / Hfx No. 529236 [85] The plaintiff’s claim against the Attorney General of Nova Scotia was filed on December 15, 2023. It references the very same pleaded facts as were put forward in the claim against the Judicial Defendants, quoted hereinabove. [86] In this claim, however, the plaintiff further pleads that the Attorney General is liable for the actions of then-Chief Judge Williams, as a result of the Proceedings against the Crown Act, and/or the doctrines of vicarious liability/agency. [87] The Attorney General also seeks summary judgment on pleadings, and asks that this claim be struck pursuant to Rule 13.03. [88] The plaintiff confirmed during submissions that her claim against the Attorney General was “entirely derivative” of the civil action against the Judicial Defendants, i.e., it was based entirely on the province’s “vicarious liability” for the then-Chief Judge’s actions. In other words, there were no stand-alone allegations against the Attorney General that were independent of the actions of the then-Chief Judge. [89] As a result, given my decision(s) as to the claim against the Judicial Defendants, clearly the action against the Attorney General must also fail, and also must be struck. However, and despite that reality, I feel it prudent to say more, and to address the Attorney General’s motion on its merits. [90] I start by repeating all of the commentary/case law I have noted as to the law relating to summary judgment on pleadings. [91] The civil action against the Attorney General pleads the same facts as were pled against the Judicial Defendants, but also includes the following paragraph indicating how, in the plaintiff’s view, the Attorney General bears liability in the circumstances: 57. Brinton pleads that in the unique circumstances of this case, the Nova Scotia Crown is liable for Williams’s actions. Brinton pleads and relies on sections 4 and 5 of the Proceedings Against the Crown Act, RSNS 1989, c. 360 in this regard. Further, Brinton pleads and relies on the doctrines of vicarious liability, agency and such further and other doctrines as will be advised prior to trial. [92] Also, I note that the damages sought from the Attorney General are the same as those sought from the Judicial Defendants. [93] The Proceedings against the Crown Act, RSNS 1989, c. 360 (the “PACA”), at sections 4 and 5 reads: Right to enforce claim against Crown 4 Subject to this Act, a person who has a claim against the Crown may enforce it as of right by proceedings against the Crown in accordance with this act in all cases in which (a) the land, goods or money of the subject are in the possession of the Crown; (b) the claim arises out of a contract entered into by or on behalf of the Crown; or (c) the claim is based upon liability of the Crown in tort to which it is subject by this Act. R.S., c. 360, s. 4. Tort liability of Crown 5(1) Subject to this Act, the Crown is subject to all liabilities in tort to which, if it were a person of full age and capacity, it would be subject (a) in respect of a tort committed by any of its officers or agents; (b) in respect of any breach of the duties that a person owes to his servants or agents by reason of being their employer; (c) in respect of any breach of the duties attaching to ownership, occupation, possession or control of property; (d) under any statute, or under any regulation or by-law made or passed under the authority of any statute. Act of officer or agent (2) No proceedings lie against the Crown under clause (a) of subsection (1) in respect of an act or omission of an officer or agent of the Crown unless the act or omission would, apart from this Act, have given rise to a cause of action in tort against that officer or agent or his personal representative. Tort of officer in performing legal duty (3) Where a function is conferred or imposed upon an officer of the Crown as such by common law or by statute, and that officer commits a tort in the course of performing or purporting to perform that function, the liability of the Crown in respect of the tort is the same as if that function had been conferred or imposed solely by virtue of instructions lawfully given by the Crown. Limitation of liability (4) An enactment that negatives or limits the amount of the liability of an officer of the Crown in respect of any tort committed by that officer, in a case of proceedings against the Crown under this Act in respect of a tort committed by that officer, applies in relation to the Crown as it would have applied in relation to that officer if the proceedings against the Crown had been proceedings against that officer. Where property has vested in Crown (5) Where property vests in the Crown by virtue of any rule of law that operates independently of the acts or the intentions of the Crown, the Crown is not, by virtue of this Act, subject to liability in tort by reason only of the property being so vested, but this subsection is without prejudice to the liability of the Crown under this Act in respect of any period after the Crown, or any person acting for the Crown, has in fact taken possession or control of the property or entered into occupation thereof. Judicial Act (6) No proceedings lie against the Crown under this Act in respect of anything done or omitted to be done by any person while discharging or purporting to discharge responsibilities of a judicial nature vested in him, or responsibilities that he has in connection with the execution of judicial process. Officer for whom Crown may be liable (7) No proceedings lie against the Crown under this Act in respect of any act, neglect or default of any officer of the Crown, unless that officer has been directly or indirectly appointed by the Crown and was at the material time paid in respect of his duties as an officer of the Crown wholly out of the Consolidated Fund. R.S., c. 360, s. 5. [94] Section 5(2) of the PACA clearly notes that section 5 is not meant to create new avenues of liability in relation to the Crown. Further, section 5(6) would appear to address the issue of “judicial acts” and confirms that the Crown is independent of such acts. [95] At this point, I would repeat all of the commentary and case law I included hereinabove as to the independence and immunity of the judiciary. All of it is relevant in the context of this discussion as well. [96] One of the fundamental aspects of our Constitution is the separation of powers doctrine: the principle that the three branches of power (executive, legislative, and judicial) are separate (New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319; Provincial Court Judges Assn. (Manitoba) v. Manitoba (Minister of Justice), [1997] 3 S.C.R. 3). [97] That framework, in combination with the recognized independence of the judiciary, highlights the unassailably independent nature of the judicial branch. Looked at another way, these concepts mean that the judicial branch does not answer to either of the other branches of government; and neither the executive nor the legislative branch can in any way dictate, or direct, the judicial branch. [98] In Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854: 16. The link between the protection of constitutional rights and an independent judiciary has been recognized by a number of commentators. Professor Thomas Kuttner, in “Courts, Labour Tribunals and the Charter” (1990), 39 U.N.B. L.J. 85, has written at p. 95 that “the logic of entrenched rights and freedoms” requires an independent judiciary. Similarly, Professor Hogg has described the importance of an independent judiciary to the protection of individual freedoms in these terms (Peter W. Hogg, Constitutional Law of Canada (3rd ed. 1992), at p. 168): The independence of the judge from the other branches of government is especially significant, because it provides an assurance that the state will be subjected to the rule of law. If the state could count on the courts to ratify all legislative and executive actions, even if unauthorized by law, the individual would have no protection against tyranny [Emphasis added]. Dickson C. J. arrived at the same conclusion in Beauregard, when he discussed the intimate relationship between judicial independence and the Charter. Although, as I noted above, he located one of the constitutional foundations of judicial independence in the preamble of the Constitution Act, 1867, he also said at p. 71 that judicial independence “is derived from many sources”. One of these sources is the Charter (at p. 72): … the enactment of the Canadian Charter of Rights and Freedoms … conferred on the courts another truly crucial role: the defence of basic individual liberties and human rights against intrusions by all levels and branches of government. Once again, in order to play this deeply constitutional role, judicial independence is essential. [99] Also, in Provincial Court Judges Assn. (Manitoba) v. Manitoba (Minister of Justice), [1997] 3 S.C.R. 3, the Supreme Court confirmed their decision in Valente (No. 2), [1985] 2 S.C.R. 673, where they held that there were three “core characteristics” to judicial independence: security of tenure, financial security, and administrative independence (para. 115). The Court noted with approval the definition of administrative independence that had been laid down in Valente (No. 2): 117 Finally, the Court defined the administrative independence of the provincial court, as control by the courts “over the administrative decisions that bear directly and immediately on the exercise of the judicial function” (p. 712). These were defined (at p. 709) in narrow terms as assignment of judges, sittings of the court, and court lists – as well as the related matters of allocation of court-rooms and direction of the administrative staff engaged in carrying out these functions. [100] It is within this imperative constitutional framework that I assess the plaintiff’s claims as against the Crown (the Attorney General) here. [101] In her pleading, the plaintiff put forward a number of options as possible avenues for liability on the part of the Attorney General: a. The “sui generis” contract, or in the alternative, other forms of contract; b. Sections 4 and 5 of the Proceedings against the Crown Act / vicarious liability; and/or c. “such further and other doctrines as will be advised prior to trial" [102] I will address each of those in turn. Sui Generis Contract [103] The Statement of Claim filed against the Attorney General in Hfx No. 529236 pleads the following: 45. Brinton pleads that the Appointment amounted to a sui generis contract between, at minimum, Brinton, the Nova Scotia Crown and the Provincial Court. … Williams breached the express or implied terms of the Appointment that (a) Brinton’s judicial independence and impartiality would be respected at all times; and (b) Brinton would be treated and dealt with by Williams at all times in good faith. … 46. Alternatively, Brinton pleads that the Appointment amounted to a contract for services between, at minimum, Brinton, the Nova Scotia Crown and the Provincial Court. … 47. In the further alternative, Brinton pleads that the Appointment amounted to an employment contract between, at minimum, Brinton, the Nova Scotia Crown and the Provincial Court … [104] I acknowledge that in assessing a motion for summary judgment on pleadings, the pleaded facts must be assessed at their highest, i.e., assumed to be true. However, the paragraphs I have just noted are not pleaded facts; they are argument. They represent alternative conclusions that the plaintiff hopes the Court will come to once the evidence is heard. [105] It is not enough, in a pleading, to simply call something a “contract”. There are no pleaded facts here which would suggest the existence of any “contract” between any of (a) the plaintiff, (b) the Provincial Court, (c) Chief Judge Williams, and/or (d) the Attorney General (or the provincial Crown more globally). Also, while the pleading references “express or implied terms” that the plaintiff argues would be included in that “contract”, again I see no pleaded facts in support. [106] Civil Procedure Rule 38.03(2) notes: (2) The following additional rules of pleading applied to all pleadings in an action: … (c) a pleading that refers to a material document, such as a contract, written communication, or deed must identify the document and concisely describe its effect without quoting the text, unless the exact words of the text are themselves material; … [107] In using the expression “amounted to” in the pleading (i.e., “[her] Appointment (to the provincial bench) amounted to a sui generis contract …”), the plaintiff appears to be referencing a possible “implied” contract. Regardless, a pleading should at the very least identify the facts that would support the existence of a contract, who the parties to that contract are, and what its terms were. [108] The only pleaded facts as to this issue, in this Statement of Claim, are (a) the plaintiff was appointed to the Provincial Court; (b) she accepted that appointment. In my view those are not sufficient. [109] The Provincial Court Act, RSNS, c. 238 provides as follows as to the appointment of provincial court judges: Appointment of judges 3 (1) The Governor in Council may appoint, on the recommendation of the Attorney General, such judges as he deems necessary. [110] That same Act further provides the following as to the powers of a Provincial Court judge, once appointed: Jurisdiction, powers and duties 7 Each judge shall (a) have jurisdiction throughout the Province; (b) have and exercise all the powers and perform all the duties conferred or imposed upon a judge by or under any Act of the Legislature or of the Parliament of Canada; (c) have and exercise the jurisdiction conferred upon a magistrate by Part XIX of the Criminal Code (Canada); (d) have and exercise all the power, jurisdiction and authority (i) that immediately before the first day of April, 1976, was vested by or under any Act of the Legislature in a magistrate or stipendiary magistrate, and (ii) of one or two or more justices of the peace; (e) have and exercise all the powers and perform all the duties conferred or imposed upon a magistrate, stipendiary magistrate or by one or more justices of the peace under any Act of the Parliament of Canada; (f) be ex officio a justice of the peace and a commissioner for taking affidavits. R.S., c. 238, s. 7. [111] In my view, this Statement of Claim does not sufficiently put forward material facts to identify any express or implied contract, nor to identify the parties to any such contract, nor to identify any terms to any such contract. Rather, the Claim contains the conclusions that the plaintiff is hoping for. That is insufficient. Sections 4 and 5 of the Proceedings against the Crown Act / Vicarious liability [112] In my view, the purpose of ss. 4 and 5 of the PACA is to define the parameters of Crown liability; they do not establish avenues of liability in and of themselves. A cause of action must be identified in pleadings against the Crown, the same as with any pleading against any other defendant. [113] Section 5(1) of the PACA notes that the Crown is vicariously liable for the actions of any of its “officers or agents”. The Statement of Claim here alleges that then-Chief Judge Williams was “at all times a public officer” as Chief Judge. Again, other than stating this “hoped-for” conclusion in the pleadings, there are no material facts pleaded in support of that conclusion. [114] The plaintiff seems to suggest that, merely by alleging in her pleadings that Chief Judge Williams was an “officer” of the Nova Scotia Crown, that statement must be accepted as a fact for the purposes of a Rule 13.03 motion. [115] I entirely disagree. The Rules are clear that material facts must be pleaded which would support the conclusions that are sought by the litigant. It is not enough to simply make conclusory statements in pleadings, and then when faced with a Rule 13.03 motion to strike, suggest that the motions judge must accept “everything put forward” in the pleadings as true, even those conclusions suggested by the plaintiff. [116] In the context of a Rule 13.03 motion, it is only the pleaded facts which must be accepted by the Court as true. For example, I accept as true that, at all material times, the plaintiff was a duly appointed judge of the Nova Scotia Provincial Court. I accept as true that, at all material times, the defendant Williams was the duly appointed Chief of that same court. I further accept as true, for the purpose of this motion, that the events happened as described in the pleadings. [117] However, this pleading also contains conclusions that the plaintiff puts forward in support of her claim; for example, a) that the Crown is vicariously liable for the actions of Chief Judge Williams, or b) that Chief Judge Williams was an “officer” or “agent” of the Crown. These are not “allegations of material fact” which I must accept in the context of a Rule 13.03 motion. They are legal issues raised by the pleadings. They are, to be more precise, conclusions or findings that the plaintiff would be seeking from the Court, should this matter proceed to trial. [118] This distinction is important. If the argument of the plaintiff were accepted here, such would mean that in assessing the present motion I would have to accept not only the pleaded facts, but literally everything put forward by the plaintiff in her Statement of Claim. If that were a correct interpretation of Rule 13.03, such would entirely defeat its purpose and intent. [119] My role is to accept the pleaded facts and determine whether the claim put forward is “hopeless” or “certain to fail”. More specifically, in the context of this motion, is it certain that the plaintiff’s claim that vicarious liability could attach to the Attorney General on these facts would fail. [120] Vicarious liability was described in K.L.B. v. British Columbia, 2003 SCC 51 as follows: 19. To make out a successful claim for vicarious liability, plaintiffs must demonstrate at least two things. First, they must show that the relationship between the tortfeasor and the person against whom liability is sought is sufficiently close as to make a claim for vicarious liability appropriate. … Second, plaintiffs must demonstrate that the tort is sufficiently connected to the tortfeasor’s assigned tasks that the tort could be regarded as a materialization of the risks created by the enterprise. … These two issues are of course related. A tort will only be sufficiently connected to an enterprise to constitute a materialization of the risks introduced by it if the tortfeasor is sufficiently closely related to the employer. [121] In the K.L.B. case, the question was whether the province was vicariously liable for the actions of foster parents while engaging in the care of children placed with them by that province. The Supreme Court concluded that it was not: 29 I conclude that the case for extending vicarious liability to the relationship between governments and foster parents has not been established. It is inherent in the nature of family-based care for children that foster parents are in important respects independent, and that the government cannot exercise sufficient control over their activities for them to be seen as acting “on account” of the government. Foster parents do not hold themselves out as government agents in their daily activities with their children; nor are they reasonably perceived as such. [122] In the case at bar, we are dealing with the Chief Judge of the Provincial Court, vis-à-vis the Attorney General of the province. It cannot be denied that the Chief Judge is entirely independent of government, in respect of both her judicial decisions as well as her administrative decisions involving the Provincial Court, e.g., the assignment of judges, the assignment of court rooms, the allocation of human resources, and so on. In saying this, I am referencing all the case law and legislation previously mentioned in this decision relating to judicial independence, which I will not repeat. [123] That reality, in light of the test for vicarious liability set out in K.L.B., makes it clear that an argument suggesting vicarious liability on the part of the Crown, in the circumstances before me, would be certain to fail. There is simply no path to liability for the plaintiff as against the provincial Crown on these facts. To use some of the wording of the test noted in K.L.B., judges (including the Chief Judge) are entirely independent of government; the government has no control over the activities or decisions of judges; judges do not act “on account of” the government; judges do not hold themselves out as government agents, nor are they perceived as such. [124] As noted hereinabove, the PACA provides that the Crown may be liable for acts committed by its “officers” or “agents” (s. 5(1)(a)). The two words are given the following definitions: 2 In this Act, (a) “agent”, when used in relation to the Crown, includes an independent contractor employed by the Crown; … (c) “officer”, in relation to the Crown, includes a minister of the Crown and any servant of the Crown; [125] I acknowledge that both sections use the word “includes”, which means that the list is not exhaustive. But the descriptions are instructive, and helpful, and provide a sense of what is meant by the word(s). In my view, the Chief Judge of the Provincial Court could not, on any interpretation of these sections, fall within either category. [126] In Rebello v. Canada (Justice), 2023 FCA 67, the Federal Court of Appeal noted: [20] I would add, as this Court has recently held, that provincial public officials as well as federally appointed provincial judges are not servants or agents of the Federal Crown within the meaning of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 (the CLPA). Therefore, they cannot engage, by their conduct, the liability of the Federal Crown (Feeney v. Canada, 2022 FCA 190 at paras. 10-19 (Feeney)). The allegation that somehow the liability of the respondents is engaged simply because the various provincial Crown actors that are referred to in the appellant’s Statement of Claim run their operations presumably using federal funds has very little, if any, traction in Federal Crown liability law. … [21] The terms “servants” or “agents” of the Federal Crown within the meaning of the CLPA refer to someone working under the control or direction of the Crown (Feeney at para. 14, referring to Northern Pipeline Agency v. Perehinec, 1983 CanLII 167 (SCC), [1983] 2 S.C.R. 513 at 519-521; R. v. Eldorado Nuclear Ltd.; R. v. Uranium Canada Ltd., 1983 CanLII 34 (SCC), [1983] 2 S.C.R. 551 at 573-574). This simply can not be in the case of the Ontario Crown actors (…) and the members of the Ontario judiciary named in the Statement of Claim. Moreover, there are no allegations in the appellant’s Statement of Claim that the respondents exert any control over these actors, and, if so, how and to what degree. [127] I acknowledge that the Rebello case has some distinctive features from the case at bar; for example, it involved legislation that referenced the words “servants and agents”, but not the word “officers”. It also involved federal legislation, and federal judges. [128] However, despite those differences, in my view, the Rebello case remains instructive. I see this case as standing for the greater principle, that of the “bright line” between the judiciary and other branches of government. The Rebello Court concluded that the Ontario legislation required “someone working under the control or direction of the Crown” in order for liability to attach to the Crown; in my view, the PACA says essentially the same thing (although it uses slightly different words). The Rebello court is also confirming that members of the (Ontario) judiciary do not work “under the control or direction of the Crown”. Clearly, the members of the Nova Scotia judiciary do not work under that control or direction either. [129] The plaintiff has raised the case of Ontario (Attorney General) v. Canada (Attorney General), (1910) 43 S.C.R. 536 (“Ontario v. Canada”) in support of her argument. This case was a reference to the Supreme Court on three questions relating to the British North America Act. Within this decision, the Court noted: 11 At the same time we must not forget that judges are officers of the Crown, and I adopt without any reserve the opinion expressed by Dorion C.J., a man of wide political and judicial experience, when, speaking for the full Court of Queen’s Bench in Quebec, he said in Bruneau et al v. Massue: The judges of the Superior Court as citizens are bound to perform all the duties which are imposed upon them by either the Dominion or the local legislature. If these duties were either incompatible or too onerous to be properly performed, provided neither legislature had exceeded the limits of its legislative power, it would become the duty of the local and Dominion Governments to suggest a remedy by some practical solution of the difficulty, but it does not devolve upon courts of justice to assume the authority of declaring unconstitutional a law on account of the real or supposed inconveniences which may result in carrying out its provisions. 12 These words were subsequently quoted with approval by Chief Justice Sir W. Meredith in Langlois v. Valin, at page 16, and they are specially applicable in the present circumstance. This court was established by the Parliament of Canada as a general court of appeal for Canada, and as an additional court for the better administration of the laws of Canada. under the authority of section 101 of the “British North America Act”. That section is as follows: The Parliament of Canada may, notwithstanding anything in this Act, from time to time, provide for the constitution, maintenance and organization of a general court of appeal for Canada and for the establishment of any additional courts for the better administration of the laws of Canada. (emphasis is mine) [130] It is the plaintiff’s contention that this passage demonstrates that judges have been recognized as “officers” of the Crown. [131] Once again, what matters is the context and meaning given to a given word in any given circumstance. In the Ontario v Canada decision, it is obvious to me that by using the word “officers”, the Court was not purporting to suggest that judges were not independent of government in their work. In my interpretation of the decision, their use of the word related to the (undeniable) fact that governments are “responsible” for the establishment of courts; for example, judges are chosen by government. [132] Having said that, nothing in this decision alters the solid and indisputable principle that judges, in their work, are entirely independent of government. I interpret the Court’s use of the word “officer” in Ontario v. Canada as a colloquialism. In no way do I see its use of that word as representing the same concept as is found in the PACA (to ground vicarious liability). [133] To repeat, I can see no path to liability in this case for the Attorney General to be found vicariously liable for the actions of the Chief Judge of the Provincial Court as described in this Statement of Claim. “such further and other doctrines as will be advised prior to trial" [134] This is the third assertion by the plaintiff in her pleadings as against the Attorney General. It is quite literally impossible to assess this vague assertion. [135] In the final analysis, in my view, it is simply impossible for the Attorney General to be liable, either vicariously or otherwise, for the actions of then-Chief Judge Williams (as described in the Statement of Claim). I find the claim in Hfx No. 529236 is unsustainable and doomed to fail. [136] Therefore, and in accordance with Rule 13.03, the claim as against the Attorney General of Nova Scotia is struck. Application to Vary (Rule 13. 03(4)) [137] Rule 13.03(4) provides: (4) A judge who hears a motion for summary judgment on pleadings may adjourn the motion until after the judge hears a motion for an amendment to the pleadings. [138] This provision permits the Court, in appropriate circumstances, to give a litigant time to amend his pleadings and fix whatever is deficient, rather than have the pleading be struck. The provision is permissive (“may”), not mandatory, and is in the discretion of the motions judge. Obviously where a pleading is deficient in discrete identifiable ways, and where amendments can render the pleading compliant with the Civil Procedure Rules, such can often be appropriate and fair. [139] Here, however, I see nothing to be gained by granting such an opportunity. The plaintiff’s pleadings could not be cured with amendments, since it is the claims themselves that are fundamentally flawed. This is not a situation where, for example, more pleaded facts, or new alleged causes of action, would cure the deficiency. The circumstances are such that there is simply no actionable claim against any of these defendants for the events that occurred, no matter how the pleading is constructed or worded. I will not grant an adjournment of these motions to allow for the filing of amendments. Conclusion [140] For all the reasons I have noted herein, I grant both motions before me. I grant summary judgment on pleadings to all defendants in both Hfx No. 527144 and Hfx No. 529236. I find that both Statements of Claim are unsustainable on their face and are doomed to fail. By application of Civil Procedure Rule 13.03(c), therefore, both Statements of Claim on both matters must be struck, and I so order. [141] I ask that counsel make best efforts to resolve the issue of costs. My usual practice is to give counsel 30 days from the date of this decision to make those efforts. If the issue cannot be resolved between counsel, I will accept written submissions on that issue within 60 days of this decision. Boudreau, J.