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The British Columbia Court of Appeal dismissed an application for pre-appeal disclosure. The court held the requested materials were too speculative or barred by deliberative secrecy.
The narrow potential probative value of the ELO's outward-facing evidence (primarily her account of one March 15, 2024 telephone call) does not justify the real risk of exposing matters protected by judicial administrative immunity and privilege; accordingly the request for a will-say and cross-examination of the ELO is dismissed, and counsel are prohibited from communicating with the retired trial judge because individual judges cannot waive judicial immunity and inquiries would necessarily engage protected matters.
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The court held that, given the sensitivity of the issues implicating judicial independence and multiple forms of privilege, the appropriate and proportionate course was to permit the panel alone to review the unredacted ELO communications (including privileged material), the proposed index and summary in sealed envelopes in order to obtain necessary context to determine whether disclosure beyond outward-facing materials is required in the interests of justice under s.683(1). Three sealed copies are to be delivered to the court's ELO and opened only by the presiding judges.
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Leave to intervene was granted to the Office of the Chief Justice of the Superior Court of Justice and the Ontario Superior Court Judges' Association with specified terms because both would make useful, specialized contributions on privilege and institutional interests; the Crown's sealing application was dismissed because r.27(10) protects only completed records compiled in support of a fresh evidence motion and does not apply to materials filed on ss. 682 and 683 applications, so mandatory sealing was not available.
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The Federal Court of Appeal upheld the Federal Court's exclusion of the challenged materials as hearsay or inadmissible lay opinion and concluded the appellants failed to adduce admissible evidence that the judicial appointment process undermines institutional judicial independence or violated ss.7, 11(d) or 24 of the Charter or s.96 of the Constitution Act, 1867; speculative submissions about what could occur in the appointment process are insufficient to establish a breach.
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The Court of Appeal dismissed an in-chambers application to bar the Registrar and judges from acting in the appeal, holding it had no jurisdiction to disqualify them.
The Federal Court dismissed a constitutional challenge to Canada’s federal judicial appointments and elevations processes, while granting public interest standing and striking parts of the evidence.
La Cour fédérale a jugé raisonnable la décision du CJC de clore les plaintes visant le juge Spiro avec une expression de préoccupation formelle, et a rejeté la demande de contrôle judiciaire.
The Governor in Council's reasons for departing from the Tribunal's salary recommendation failed the Bodner rationality test: the OIC largely restated the government's prior fiscal-position submissions, lacked a reasonable factual foundation, and was infected by political considerations (communications plan and government-wide implications); viewed globally the Tribunal process was not respected and its depoliticizing purpose was not achieved; therefore OIC 2017-24 as to salary was quashed and the matter remitted to the Governor in Council for reconsideration.
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The Supreme Court of Canada held that only the government-wide implications and communications plan portions of a cabinet report had to be produced for Bodner review.
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