T-2205-72
Léo A. Landreville (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Collier J.—Ottawa, February 2, 3
and 4 and April 7, 1977.
Jurisdiction — Royal Commission inquiry into activities of
plaintiff a former superior court judge — Whether appoint
ment of Commissioner to investigate a judge is ultra vires the
Governor in Council — Whether Commissioner exceeded
jurisdiction — Whether plaintiff given opportunity to be heard
re allegations of misconduct — Inquiries Act, R.S.C. 1952, c.
154, ss. 2, 3, 13 — The British North America Act, 1867, ss.
92(14), 96, 99(1) — Judges Act, R.S.C. 1952, c. 159, ss. 31, 33;
R.S.C. 1970, c. J-1, ss. 31, 32, 32.2.
The plaintiff, a Judge of the Supreme Court of Ontario from
1956 to 1967, was the subject, in 1966, of a Royal Commission
inquiry into his relationship with Northern Ontario Natural
Gas Limited. In 1967 the Commissioner rendered an unfavour
able Report, and the plaintiff resigned. He brought an action
for a declaration (1) that the appointment of the Commissioner
was null and void, (2) that the Commissioner lost jurisdiction
by exceeding his terms of reference, and (3) that the plaintiff
was not given notice or an opportunity to be heard concerning
allegations of misconduct, as required by section 13 of the
Inquiries Act. With respect to the first issue the defendant
submitted that the Commission was validly constituted, that
the plaintiff had consented to it and could not now challenge it,
and that plaintiff did not challenge the appointment of the
Commissioner or his jurisdiction at the inquiry itself. With
respect to the third issue defendant maintained that the allega
tions or charges were set out in the Order in Council and
Letters Patent establishing the Royal Commission. In addition,
the defendant (4) put forth the equitable defence of laches, and
(5) challenged the jurisdiction of the Court to make a declara
tion on the ground that the matter is now academic.
Held, the plaintiff will have a declaration limited to the
section 13 issue, with costs.
(1) The procedure for removal of judges by joint address of
the House of Commons and the Senate, as set out in section 99
of The British North America Act, 1867, is not, as plaintiff
contends, a code of its own. The Governor in Council, as
distinguished from the Governor General or Parliament, can
authorize an inquiry into the conduct of a superior court judge.
The conduct of judges is a "... matter connected with the good
government of Canada ..." (section 2 of the Inquiries Act).
However, if there was no constitutional power in the Governor
in Council to initiate the inquiry, then the plaintiff's consent or
request for it, and the agreement not to object to it, could not
cure the defect.
(2) The terms of reference of the Commission were wide
enough to embrace the portions of the Report and the conclu
sions attacked by plaintiff. The plaintiffs credibility was in
issue, and the Commissioner's method of dealing with the
question did not amount to going beyond the terms of reference
and so losing jurisdiction.
(3) Section 13 of the Inquiries Act requires that a person
against whom a charge of misconduct is alleged be given
reasonable notice of, and an opportunity to reply to, such
allegation. The Commissioner found that the plaintiff had been
guilty of gross contempt before three other tribunals. This
matter was not within the terms of reference of the Commission
and the plaintiff was not given an opportunity to meet the
spedific charges. The Commissioner thus failed to comply with
the mandatory requirements of section 13. The Commission
should have been reconvened, and notice of the "charge" of
misconduct given; the plaintiff should then have been allowed
to call witnesses and answer the charges.
(4) There is no compelling or equitable reason to invoke the
defence of laches. The defendant has not been induced to alter
any position.
(5) Although the declaration will have no legal effect it may
serve some practical purpose in other pending litigation involv
ing the plaintiff, and in that it will be a matter of public record
that the plaintiff did not have a full opportunity to be heard.
Crabbe v. Minister of Transport [1972] F.C. 863, applied,
Landreville v. The Queen [1973] F.C. 1223 and Merricks
v. Nott-Bower [1964] 1 All E.R. 717, followed.
ACTION for declaratory judgment.
COUNSEL:
G. Henderson, Q.C., and Y. A. G. Hynna for
plaintiff.
G. Ainslie, Q.C., and L. Holland for
defendant.
SOLICITORS:
Gowling & Henderson, Ottawa, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
COLLIER J.: The plaintiff is a solicitor now
practising in Ottawa. In 1933 he went to Sudbury,
Ontario. He eventually established a substantial
law practice. Over a number of years he held,
while still carrying on his legal business, public
offices in the Sudbury area, "... such as School
Trustee, Alderman, Member and Chairman of the
Sudbury Hydro Commission." He became mayor
of Sudbury on January 1, 1955.
While he was mayor, the Sudbury council
approved a franchise to Northern Ontario Natural
Gas Limited ("NONG"), to distribute natural gas
to Sudbury by laterals and distributing pipe sys
tems. The main system or trunk line was that of
TransCanada PipeLine Company.
On September 13, 1956 he was appointed a
Judge of the Supreme Court of Ontario'. His
appointment was effective October 10, 1956. On
October 12, he was sworn in.
In February of 1957 the plaintiff was sent a
letter from a Vancouver brokerage company
enclosing shares of NONG. I shall later set out
more detail. I merely refer, at this point, to
NONG shares in order to make clear what the
plaintiff seeks in this action.
On January 19, 1966, the Governor in Council
appointed the Honourable Ivan C. Rand, a retired
Judge of the Supreme Court of Canada, a Com
missioner under Part I of the Inquiries Act 2 . His
terms of reference were:
(a) to inquire into the dealings of the Honourable Mr.
Justice Leo A. Landreville with Northern Ontario Natural
Gas Limited or any of its officers, employees or representa
tives, or in the shares of the said Company; and,
(b) to advise whether, in the opinion of the Commissioner,
(i) anything done by Mr. Justice Landreville in the course
of such dealings constituted misbehaviour in his official
capacity as a Judge of the Supreme Court of Ontario, or
(ii) whether the Honourable Mr. Justice Landreville has
by such dealings proved himself unfit for the proper exer
cise of his judicial duties.'
After 11 days of hearings at various Canadian
cities in March and April, 1966, the Commissioner
issued a report. It was dated August 11, 1966. It
' The appointment was by Order in Council passed pursuant
to section 96 of The British North America Act, 1867. The
plaintiff was appointed a member of the High Court of Justice
for Ontario, and ex officio a member of the Court of Appeal
for Ontario.
2 R.S.C. 1952, c. 154. The Letters Patent (Ex. 28) were
issued March 2, 1966.
3 I have quoted almost exactly the terms of reference but
have sub-numbered them for convenience and clarity.
was not made public until tabled in the House of
Commons on August 29 of that year.
A special Joint Committee of the Senate and
House of Commons was appointed in late 1966. Its
purpose was:
... to enquire into and report upon the expediency of present
ing an address to His Excellency praying for the removal of
Mr. Justice Leo Landreville from the Supreme Court of
Ontario, in view of the facts, considerations and conclusions
contained in the report of the Honourable Ivan C. Rand....
The Committee held 19 meetings in February
and March of 1967. The plaintiff appeared as a
witness. He testified at 11 of the meetings.
The material portions of the Joint Committee's
final report, dated April 13, 1967, were:
2. In accordance with its terms of reference, during the
course of nineteen (19) meetings, the Committee applied itself
to, and carefully examined the facts, considerations and conclu
sions contained in the said report.
3. The Committee invited Mr. Justice Landreville to appear
before it as a witness. He testified at eleven (11) meetings of
the Committee and answered questions from Members of and
Counsel to the Committee.
4. The report of the Honourable Ivan C. Rand states:
No question is raised of misbehaviour in the discharge of
judicial duty; the inquiry goes to conduct outside that
function.
5. The reflections of the Honourable Ivan C. Rand on Mr.
Justice Landreville's character were not considered pertinent
and thus played no part in the Committee's decision.
6. After hearing the testimony of Mr. Justice Landreville
and considering the report of the Honourable Ivan C. Rand, the
Committee finds that Mr. Justice Landreville has proven him
self unfit for the proper exercise of his judicial functions and,
with great regret, recommends the expediency of presenting an
address to His Excellency for the removal of Mr. Justice
Landreville from the Supreme Court of Ontario.
By letter dated June 7, 1967, (Ex. 35), the
plaintiff tendered, effective June 30, his resigna
tion as a Judge. It was accepted.
This suit is an attack against the validity of the
appointment " of the Commissioner to hold the
inquiry of 1966, the manner in which certain
aspects of the inquiry were carried out, and against
the report itself.
The remedies sought are as follows:
(a) A Declaration that the appointment of the said Commis
sioner was not authorized by the Inquiries Act and that conse
quently the said Report is null and void;
(b) A Declaration that, if the said Commissioner was validly
appointed to hold, an Inquiry and make a Report, which the
Plaintiff denies, the said Report made by the Commissioner on
August 11, 1966, should be removed into this Court to be
quashed by reason of the matters set out in paragraph 7 of this
Declaration;
(c) That a Writ of Certiorari be issued removing into this
Court the said Report and all records, proceedings, papers and
transcripts of evidence relating to the said Inquiry and to quash
the said Report;
Three questions of law were argued some time
before tria1. 4 The questions came on before Pratte
J. In respect of the relief claimed in paragraph (b)
of the declaration, he assumed [at page 1226]:
... that in subparagraph (b) the plaintiff claims a declaration
that the Commissioner, for the reasons set out in paragraph 7
of the Declaration, conducted his inquiry irregularly and that
his report should be quashed.
The questions of law submitted were:
1. Whether this Honourable. Court has jurisdiction to issue a
Writ of Certiorari against Her Majesty the Queen;
2. Whether this Honourable Court has jurisdiction to quash
the report of the Royal Commission appointed by letters patent
bearing date the 2nd day of March, 1966;
3. Whether this Honourable Court has jurisdiction to grant a
declaration in the circumstances alleged in the Statement of
Claim herein;
In respect of the first question, the formal ruling
was:
1. That it is not expedient to give an answer to the first
question since, even if the action were not brought against Her
Majesty, certiorari would not lie in this case.
The second question was answered "No" and the
third "Yes". Reasons were given. In dealing with
the third question, Pratte J. said [at page 1228]:
The plaintiff, according to my interpretation of his Declara
tion, seeks two declarations: first, that the appointment of the
Commissioner was ultra vires and, second, that the Commis
sioner did not conduct the inquiry as he should.
He went on [at page 12291:
These contradictory submissions can be briefly summarized.
Counsel for the defendant argued that the declarations sought
could not be made because they would not have any legal
effect. Counsel for the plaintiff contended that these declara-
4 [1973] F.C. 1223.
tions could be made because they would, from a purely practi
cal point of view, be beneficial to the plaintiff.
The question to be answered is therefore whether this Court
has jurisdiction to make a declaration on a legal issue in a case
where the declaration would be devoid of legal effects but
would likely have some practical effects....
He answered the question affirmatively, adopting
the reasoning of the English Court of Appeal in
Merricks v. Nott-Bowers, and holding [at page
1230]:
From this, I infer that the Court has the jurisdiction to make
a declaration which, though devoid of any legal effect, would,
from a practical point of view, serve some useful purpose.
At the trial, Mr. Henderson for the plaintiff, put
forward three main submissions:
1. The Commission was not validly constituted. The only
procedure to be followed is set out in s. 99 of the British North
America Act.
2. If the Commission was indeed validly constituted, the Com
missioner lost jurisdiction by exceeding the terms of reference.
3. Again, assuming the legality of the Commission, the Com
missioner did not comply with the requirements of s. 13 of the
Inquiries Act.
In order to deal with these contentions and the
submissions on behalf of the defendant, it is neces
sary to recount the background and facts leading
to the appointment of the Commissioner.
In 1958 the Ontario Securities Commission
directed an investigation into the trading in shares
of NONG from its incorporation to the date when
its units (one debenture and one common share)
were qualified for sale in Ontario, June 4, 1957. A
report was issued on August 18, 1958. At that
time certain information available in British
Columbia had not come to light. For that reason,
neither the plaintiff nor any involvement by him in
shares of NONG was investigated. In 1962, on the
basis of certain information supplied by the Attor
ney General for British Columbia another investi
gation, or perhaps a further investigation, was
directed.
It appeared that 14,000 shares of NONG had
been, on January 17, 1957, allotted to Convesto, a
nominee name used by Continental Investment
Corporation Limited (brokers) of Vancouver. An
5 [1964] 1 All E.R. 717.
investigation in British Columbia revealed that
4,000 of those shares had then been transmitted to
J. Stewart Smith, the former British Columbia
superintendent of brokers and 10,000 to the
plaintiff.
Ralph K. Farris was at all relevant times the
President of NONG. He gave evidence before the
Ontario Securities Commission both in 1958 and
1962. The plaintiff gave evidence in 1962 as to
how he had acquired the 10,000 shares in NONG.
A perjury charge was laid against Ralph K.
Farris. It arose out of the testimony, in respect of
the Convesto share transaction, he had given the
Securities Commission. His preliminary hearing
was in the latter part of 1963 and the early part of
1964. The plaintiff gave evidence.
Farris was committed for trial. The trial was
before a Supreme Court Judge and jury in 1964.
Once more, the plaintiff was called as a witness
and gave evidence in respect of the share transac
tions referred to. Farris was convicted.
On June 12, 1964 the plaintiff wrote the Hon
ourable Guy Favreau, the Minister of Justice for
Canada. He pointed out that since 1962 there had
been insinuations in the Ontario Legislature that
NONG and he ".. , have been guilty of corrupt
practices." He requested an inquiry should take
place at his own request; that a special commis
sioner be appointed; and:
The terms of reference would be broad but simple: whether or
not there has been any conflict of interest, bribery, undue
influence or any corrupt practices in the award of the Sudbury
Gas Franchise.
He added that the only alternative to his request
would be the Ontario Attorney General laying
some charge against him "... to provide me with
similar opportunity" [to prove his innocence].
The Minister of Justice indicated he would
study the matter.
Before his request was further dealt with, the
Attorney General for Ontario, in August, 1964,
laid charges against the plaintiff. In essence, the
accusation was that while he was mayor of Sud-
bury, he offered or agreed to accept stock in
NONG in return for his influence in seeing that
NONG obtained a franchise agreement in Sud-
bury. There was also a charge of conspiracy, to the
same effect, with Farris. Similar charges, in
respect of granting of franchises, were laid against
the mayors of Orillia, Gravenhurst and
Bracebridge.
The plaintiff's preliminary hearing was in Sep-
tember or October of 1964, presided over by
Magistrate Albert Marck. The Magistrate dis
charged the accused, expressing the view a proper
ly charged jury could not find him guilty. Two of
the other mayors were discharged on their prelim
inary hearings; the third was committed for trial,
but acquitted by a county court jury.
The Attorney General for Ontario, shortly after,
issued a press release in which it was stated 6 :
The Attorney General today announced that he will not
prefer a Bill of Indictment before a Grand Jury in respect of
Mr. Justice Landreville. In so far as the Department of the
Attorney General is concerned, the matter of the prosecution of
Mr. Justice Landreville is concluded.
The next event, in the evidence before me, was a
report by a special committee of The Law Society
of Upper Canada. The Society, in January of
1965, had struck a special committee to consider
and report on what action, if any, should be taken
by it "... as a result of Mr. Justice Landreville's
decision to continue to sit as a Judge of the
Supreme Court of Ontario". The report of the
special committee was made on March 17, 1965.
It was adopted by Convocation, with one dissent,
on April 23, 1965. The report contained what was
termed a "statement of facts" and certain "conclu-
sions" on those facts. One was "... there is no
doubt that the Magistrate was correct in dismiss
ing the charges against Landreville".
The report went on to set out certain "...
matters which are unexplained, and upon which
your committee can only speculate". Following
those speculations the committee stated, ".. . the
following inference ... can be drawn from the
foregoing questions which remain unanswered .. .
[the speculative matters] ":
6 Exhibit 169 at the Rand Commission.
YOUR COMMITTEE REPORTS THE FOLLOWING INFERENCE
THAT CAN BE DRAWN FROM THE FOREGOING QUESTIONS
WHICH REMAIN UNANSWERED:
The fact that Landreville was given an opportunity to
acquire shares at the same price as the original promoters of
the Company and that the option was given immediately
following the passing of the third reading of the by-law and for
no apparent consideration, and hat subsequently without any
exercise of such option by Landreville he received 7500 shares
free and clear, which he subsequently sold for $117,000, and
that when Farris was first questioned about the matter he
deliberately lied, support the inference that the acquisition of
shares by Landreville was tainted with impropriety.
The report :went on:
THE FOLLOWING ARE THE OPINIONS AND RECOMMENDA
TIONS OF YOUR COMMITTEE:
The above recited facts are matters of public knowledge and
are, in the opinion of your Committee, inconsistent with the
reputation for probity required of one of Her Majesty's Judges
for the due administration of justice in this Province.
As a consequence of these facts, the questions unanswered,
and the inference which your Committee has drawn and which
it believes the public has also drawn, YOUR COMMITTEE
RECOMMENDS
1. That the Benchers of The Law Society of Upper
Canada in Convocation deplore the continuance of the Hon
ourable Mr. Justice Landreville as one of Her Majesty's
Judges of the Supreme Court of Ontario.
On the evidence before me, the plaintiff knew
absolutely nothing of this special committee and
its activities. He was never invited to appear before
them to answer their unexplained matters or
speculations. A copy of the report was sent to the
Federal Minister of Justice,' and to the plaintiff.
I think I ought to say, at this point, that I
characterize the action and report of the Society as
puzzling, and, in retrospect, probably unwarrant
ed.
Although the evidence before me is unclear, the
contents of the report were not made public at that
time. The Commissioner annexed it as "Appendix
7 The Law Society report concluded:
2. That the Secretary of the Society be authorized and
directed forthwith to forward a certified copy of this report
to the Honourable the Minister of Justice and Attorney
General of Canada, the Honourable the Chief Justice of
Ontario, the Honourable the Chief Justice of the High
Court, the Honourable Mr. Justice Landreville, and the
Attorney General for the Province of Ontario.
3. That the Treasurer of the Society be authorized to issue
copies of this report to the press at such time thereafter as he
may in his discretion deem fit.
A" to his report. 8
On April 30, 1965, the plaintiff wrote to the
Minister of Justice in connection with this report.
Some question had apparently been raised about it
in the House of Commons. He wrote also the
Secretary of the Law Society. He complained the
special committee had not seen fit to call on him to
answer any of the questions it had raised. He
pointed out he had, during the three previous
years, made repeated requests to provincial and
federal authorities "... to have the matter fully
aired".
I should digress at this stage to say that the
plaintiff had, when the criminal charges where laid
against him, retained a well known counsel, Mr.
John J. Robinette, Q.C. Mr. Robinette was a
bencher. He had taken no part in the investigation
and report of the Law Society. As I understand the
evidence, the plaintiff was still, at this stage,
receiving advice from Mr. Robinette.
On May 7, 1965, the plaintiff telegraphed the
Minister of Justice withdrawing his previous
request for an inquiry. He asked Mr. Favreau to
make no decision on a course of action until the
Minister had read his (the plaintiff's) report.
On May 13, 1965, he wrote the Minister. He
commented on the Law Society report. He went on
to say:
Am I being attacked as a Judge? If so, of what unbecoming
conduct?
What am I accused of specifically? I have no intention of
dealing with the facts. As you are well aware, I have on more
than one occasion and particularly immediately after my
acquittal requested that a Public Enquiry be held to vindicate
my name on all possible grounds. I attach a copy of your letter
and a news item. I strongly feel I have done all possible
8 The Commissioner stated on page 95:
It is perhaps unnecessary to say that the resolution of the
Benchers of the Law Society of Upper Canada submitted to
the Minister of Justice has played no part whatever in
arriving at the conclusions of fact set out in this report. Its
only relevance is that that governing body has seen fit to seek
an inquiry into matters for several years the subject of wide
public concern: no challenge to the propriety of such a
request from a body having such an interest in the adminis
tration of Justice has been or could be made. A copy of that
resolution is annexed as Appendix A of this report.
including keeping dignified silence in the face of unfounded
gossip.
I now withdraw from that position for the following reasons:
(a) The subject matter was deemed closed six months ago. I
have returned to my functions. The Bar and the Public have
shown usual courtesy and co-operation.
(b) An Enquiry would re-open, deal with and review facts
which are strictly res judicata. The Attorney General has
made such review and closed his files.
(c) The Report of the Law Society, making as it does
unfounded findings, prejudices me and is defamatory.
(d) Regardless of the most favourable decision, an Enquiry
and proceedings with pertaining publicity, would be conclu
sively detrimental and final to my reputation.
(e) I am advised by my counsel J. J. Robinette, Q.C. and
others, that a judge does not come under the Enquiry Act,
the Civil Servants Act or any other statute and an enquiry is
illegal.
(f) I am advised that it is inimical to the interest of the
Bench that I create the precedent of requesting and submit
ting to an Enquiry because of the criticism of person or
association.
Again, Sir, I submit the Report of the Society does not accuse
me specifically of serious breach of Law or Ethics.
If so, it then becomes a question whether or not, in my sole
discretion, I deem fit to invite further proceedings and publicity
to vindicate my name to the mind of some people who prefer
gossip to facts. To the sound person, unmoved by publicity-
allergy, my past is pure and proven so to be.
Should you adhere to your previous decision and base it anew
on the opinion of those who know the facts (Magistrate Marck,
Mr. Justice D. Wells, the Attorney-General) the matter may be
closed by your statement in the House after recital of facts.
Of course, if you are satisfied there are reasonable and prob
able grounds to justify impeachment proceedings, it is your
duty so to do. Those proceedings I must meet in both Houses.
In the light of present events, I have no intention of resigning.
During my entire career as a solicitor, a member of Boards,
Commissions and Councils, as a Judge, I have conducted
myself in strict conformity to the highest concept of Ethics. Of
this, others may speak, others who know me.
On June 12, 1965, Magistrate Marck wrote the
Law Society. He had been shown a copy of its
report. He characterized it as a grave injustice. He
said there was a total absence of any evidence the
plaintiff had been guilty of any corruption. He
suggested the Benchers might see fit to reconsider
their report. He indicated his willingness to appear
before them.
On June 18, 1965, Mr. Robinette wrote the
Minister of Justice referring to the Magistrate's
letter. He suggested that it provided the answer to
the speculations of the Law Society. He expressed
the hope, in those circumstances, the Minister
would not deem it necessary to institute any form
of judicial inquiry. Mr. Robinette pointed out he
had written to the Minister in February of 1965
expressing grave doubts as to the constitutional
power of the Governor in Council to direct a
judicial inquiry with reference to the conduct of a
superior court judge.
The Honourable Lucien Cardin became Minis
ter of Justice. On July 29, 1965, he sent a telegram
to the plaintiff. It stated in part: "I ... have
reached the conclusion that, in your own interests,
as well as in the interests of the administration of
justice, a formal inquiry ... would be desirable."
He invited comments from the plaintiff.
The plaintiff on August 4, replied:
It will be noted from your file that I have invited an inquiry on
several occasions. I include conversations with your two prede
cessors Honourable Chevrier and Honourable Favreau.
However, your predecessor, having reviewed his file and the
judgment of Magistrate Marck did decide in October 1964 that
a public inquiry was not warranted by the facts. His comments
to the press indicate this. There are no new facts.
Since that time, it has been pointed out to me by a number of
my colleagues that for a Superior Court Judge to submit or
consent to a public inquiry would establish a very dangerous
precedent, particularly when such acts antedate his appoint
ment and do not relate to the performance of his official duties.
Further, your file contains a letter from my solicitor, J. J.
Robinette, Q.C., to Honourable Favreau dated February 22,
1965. It expresses our view that a Superior Court Judge does
not come under the Civil Service Act, the Public Officers Act,
the Inquiries Act—nor any other applicable statute. Under the
law the Superior Court Judge is answerable only before both
Houses on proceedings of impeachment.
You do realize no one is more interested than I to vindicate
fully my name. The dilemma raises, therefore, a question of
jurisdiction.
You may deem the question to be of sufficient importance to be
submitted to the Supreme Court of Canada for determination.
I am prepared to submit only to whatever inquiry or process the
Supreme Court of Canada holds to be legal.
That question, however, does not and will not prevent you from
taking impeachment proceedings at any time if you deem facts
justify such action. It must be noted no one has accused me of
breach of Ethics in an act done nine years ago.
It appears now that the issue takes a legal aspect, and in view
also of my absence from the country until the end of this
month, I would beg you to address future correspondence to
Mr. J. J. Robinette, Q.C:, c/o McCarthy and McCarthy,
Solicitors, Canada Life Building, University Ave., Toronto.
Mr. Cardin, on August 18, answered:
I have very carefully considered your letter of August 4th, and
the points you make. Nevertheless, I feel that in the interests of
the administration of, justice I must recommend to my col
leagues that a Commissioner be appointed to conduct an inqui
ry and to make his report to the Government.
As I view the matter, the issue is not whether an offence was
committed. The question that has been raised is, as I indicated
in my telegram, quite a different one. The purpose of the
inquiry would not be to review the decision of the Magistrate,
but to ascertain whether it is in the interests of the administra
tion of justice that, having regard to all the circumstances, you
should continue to hold your present office. It is on this
question that I feel an opinion from an eminent outside and
independent authority ought to be obtained.
It is therefore my intention to proceed with the inquiry.
Mr. Cardin and the plaintiff then, on August 30,
met in Toronto. It seems the past history of the
whole affair was discussed. According to notes
made by the plaintiff (Exhibit 37), he told the
Minister that while a decision to hold an inquiry
was, of course, the Minister's, Mr. Robinette and
Mr. Sedgewick strongly opposed such an inquiry.
There was some mention by the plaintiff of not
answering any subpoenas that might be issued by a
Commissioner, and a motion then being launched
to have the inquiry declared illegal. The Minister
indicated his view that an inquiry into the conduct
of a judge was, under the Inquiries Act,
permissible.
The discussion was inconclusive. The Minister
indicated the whole matter would be left open; any
decision to launch an inquiry would, at the
moment, be held in abeyance.
Some telegrams were then exchanged in connec
tion with a press suggestion that the Law Society's
report was going to be released. Mr. Cardin's
telegram of November 23, 1965, to Mr. Robinette
said in part: "... I ... propose you consent to
appointment of Commission under Inquiries Act."
Mr. Robinette replied on November 29. He
quoted at length from his letter of February 22,
1965 to Mr. Cardin's predecessor. In that previous
letter he had expressed the view that section 2 of
the Inquiries Act did not authorize the Governor
in Council to set up an inquiry with reference to
the conduct of a superior court judge. He had, in
February, set out his position that:
... under our Constitution the only person who has any juris
diction whatsoever over the behaviour of a Superior Court
Judge is the Governor General and then only "on address of the
Senate and House of Commons" as stipulated in Section 99 of
The British North America Act.
On. pages. 3 and 4 of his November letter, he
said:
My view with respect to this matter I know is shared by others
and I think it would involve an interference with the indepen
dence of the judiciary if Mr. Justice Landreville were to
consent to the appointment of a Commissioner under The
Inquiries Act. In any event a Commissioner under The In
quiries Act either would or would not have jurisdiction and Mr.
Justice Landreville's consent could not give a Commissioner
jurisdiction which he does not have. I have discussed the matter
with Mr. Justice Landreville and what we suggest is that the
government should refer the matter to the Supreme Court of
Canada for an adjudication by it as to whether or not a
Superior Court Judge in a province can be the subject of an
inquiry under The Inquiries Act. Such a reference to the
Supreme Court of Canada should also ask for the opinion of
the Court as to what the words "during good behaviour" in
section 99 of The British North America Act encompass. We
made the suggestion to The Honourable Guy Favreau some
months ago that this question as to the power of the govern
ment to appoint a Commissioner under The Inquiries Act to
look into the status of a Judge of a Superior Court ought to be
referred to the Supreme Court of Canada.
In short for the reasons which I have stated Mr. Justice
Landreville is not prepared to consent to the appointment of a
Commissioner but we repeat our suggestion that the question of
the power of the government to appoint a Commissioner under
the Inquiries Act should be referred to the Supreme Court of
Canada along with a question the answer to which would define
the scope and meaning of the words "during good behaviour" in
section 99 of The British North America Act.
Mr. Justice Landreville would welcome an opportunity to state
his position before a forum having jurisdiction to deal with the
matter. Such a forum would be removed from any consider
ations of political expediency and would be in keeping with the
dignity of his office. The position which Mr. Justice Landreville
takes, not only in his own interests but in the interests of the
other members of the judiciary, is that under The British North
America Act the only person having jurisdiction with respect to
any possible removal is the Governor General of Canada acting
on joint address of the Senate and the House of Commons as
provided in section 99 of The British North America Act.
Mr. Cardin answered on December 28, 1965.
He disagreed with Mr. Robinette's contention as
to the limitations of the Inquiries Act in respect of
the conduct of superior court judges. He expressed
the view the plaintiff could give consent to a
commissioner's jurisdiction. On this point he
added: "A commissioner would have no jurisdic
tion to make any judgment or order; his sole
function would be to ascertain and report on the
facts." He did not agree that there should be a
reference, as suggested, ,to the Supreme Court of
Canada. On this point he said:
There is no doubt that Parliament itself has the right and the
power to make an inquiry into the conduct of a judge, and such
an inquiry could be instituted on the motion of any member of
the House, whether he is a member of the Government's side or
not. If Mr. Justice Landreville is not agreeable to having an
inquiry under the Inquiries Act, then I think he might expect
that there will be a parliamentary inquiry. Such an inquiry
would be founded on an allegation of impropriety and I should
have thought that the Judge would prefer an "open" inquiry
under the Inquiries Act that is not founded on an allegation of
impropriety and would be designed simply to ascertain the
facts.
As for your proposed question to the Supreme Court, may I
suggest that courts cannot be asked to interpret words in the
abstract. The most that could be done would be to refer a
statement of facts to the Court and ask whether on these facts
there has been a breach of the condition of judicial office.
However, the first thing to be done, in my judgment, is to
ascertain what the facts are. In any event, I would point out
that the question you suggest to be put to the Supreme Court is
not the principal issue in this matter.
The question is not so much whether the Judge has breached
the condition of his office, namely, that it be held during good
behaviour, but whether he has in the opinion of Parliament
conducted himself in such a way as to render himself unfit to
hold high judicial office. Under section 99 of The British North
America Act, a judge may indeed be removed for "misbehavi-
our", but the power to remove on address extends to any
ground and it is open to Parliament to make an address for the
removal of a judge on any ground it sees fit, whether it
constitutes misbehaviour in office or not.
I may say frankly that I would not wish to institute an inquiry
under the Inquiries Act if there is any prospect that Mr. Justice
Landreville would attempt to frustrate the inquiry by preroga
tive writ or otherwise. However, if an inquiry under the In
quiries Act is not agreeable to your client, then the result may
well be a motion in Parliament for an inquiry by a Parliamen
tary Committee. As I have pointed out, such a motion may be
made by any member of Parliament. I should have thought
that, from the Judge's point of view, an inquiry under the
Inquiries Act would be preferable. However, the choice rests
with him, and if he is unwilling to have an inquiry under the
Inquiries Act, I think it only fair to say that he may expect an
inquiry by Parliament itself.
Following that correspondence, it seems Mr.
Robinette went to Ottawa and discussed the affair
either with the Minister or officials in the Depart
ment of Justice. He was made aware "in general
terms" of the terms of reference for the proposed
Commission. 9
On January 17, 1966, Mr. Robinette sent a
telegram to Mr. Cardin as follows:
Justice Landreville has instructed me on his behalf to request
the Government to appoint a Commissioner under the Inquiries
Act to inquire into his dealings with Northern Ontario Natural
Gas Company or any of its officers or servants.
I here point out that the telegram has some
noticeable similarity to Commissioner Rand's first
term of reference. No reference is made to any
other terms. The telegram was acknowledged two
days later.
A statement was then made by the Minister in
the House. The plaintiff wrote him on January 24,
1966. That letter is in French. My free translation
of the first two paragraphs is as follows:
[TRANSLATION] I am indebted to you for the statement made
in the House last week. I had understood from Mr. Robinette
that you were to declare that this inquiry was to be held at my
request. Moreover, he must have told you that this procedure
has for its purpose to apprise you of the facts. The conclusions
or recommendations will not have the force of a final decision,
since we always contend that only Parliament and the Senate
have jurisdiction and they will decide, if the necessity arises.
The procedure is therefore under all reserve and without creat
ing a "precedent" because certain of my colleagues do not
accept the position that the "Inquiries Act" applies.
The Commissioner was then appointed and his
letters patent issued.
I shall, at this stage, deal with the first of the
main submissions put forward, on behalf of the
plaintiff, by Mr. Henderson, that the Commission
was not validly constituted; the procedure to be
followed is that set out in section 99 of The British
North America Act, 1867. Mr. Ainslie, for the
defendant, had three main points in reply: first, the
Commission was, in law, validly constituted;
second, the plaintiff had requested or consented to
it and he now cannot challenge it; third, neither
the plaintiff nor his counsel, at the inquiry itself,
attacked the appointment of the Commissioner or
his jurisdiction.
9 Q. 253-254 of the plaintiff's examination for discovery.
I set out sections 2 and 3 of the Inquiries Act'°:
2. The Governor in Council may, whenever he deems it
expedient, cause inquiry to be made into and concerning any
matter connected with the good •government of Canada or the
conduct of any part of the public business thereof.
3. In case such inquiry is not regulated by any special law,
the Governor in Council may, by a commission in the case,
appoint persons as commissioners by whom the inquiry shall be
conducted.
The first Inquiries Act following Confederation
appeared in 1868 (31 Vict. c. 38). The wording is
identical, as to what matters may be inquired into,
to the 1952 Revision:
... any matter connected with the good government of Canada,
or the conduct of any part of the Public business ....
But in the pre-Confederation legislation of the
Province of Canada, the words "administration of
justice" had also been listed as a matter of inquiry.
I assume those words were removed because sec
tion 92(14) of The British North America Act,
1867 assigned legislative power, in respect of the
administration of justice in the province, to the
provinces.
It is necessary to set out, as well, sections 96 and
99(1) of The British North America Act, 1867:
96. The Governor General shall appoint the Judges of the
Superior, District, and County Courts in each Province, except
those of the Courts of Probate in Nova Scotia and New
Brunswick.
99. (1) Subject to subsection (2) of this section, the judges
of the superior courts shall hold office during good behaviour,
but shall be removable by the Governor General on address of
the Senate and House of Commons.
In respect of the tenure of superior court judges
and their removal, the plaintiff contends that sec
tion 99(1) is a code in itself; in order to remove or
dismiss a judge, there must first be an address of
the Senate and House of Commons; the judge can
then be removed by the Governor General. The
plaintiff says any inquiry into the conduct of a
judge must be initiated or made only by the Senate
and the House of Commons. The plaintiff does not
say the initial procedure must be the address
10 R.S.C. 1952, c. 154.
referred to in section 99; he agrees the Senate and
the House may, of their own motion, authorize or
carry out investigative procedures before an actual
address.
One must begin, the plaintiff argues, with the
theory of separation of powers or functions: the
executive, the legislative, and the judicial. The
effect of section 99 of The British North America
Act, 1867 is, it is said, to ensure the independence
of the judges; independence is more than mere
tenure and salary; it is freedom from harassment
or inquisition. On those premises, the plaintiff
contends that any investigatory process into the
conduct or fitness of a superior court judge must
be initiated by the Senate and House of Commons;
those bodies alone must ascertain the facts on
which an address might be based; any preliminary
processes must be authorized or carried out by
them. Counsel for the plaintiff says that, in this
case, the "complaint of misconduct" came from an
outsider (The Law Society of Upper Canada),
prompting a decision, outside the two Houses, to
investigate or inquire; that decision was made, not
by the Senate or House, but by the Governor in
Council;" the consequent investigation was carried
out by a person not authorized by them to inquire
or report on their behalf and for their purposes
only. Finally, it is submitted the inquiry in ques
tion was not "... concerning any matter connected
with the good government of Canada ..."; the
judges are independent and apart from govern
ment; their conduct in office, and tenure, can only
be inquired into by means of section 99 of The
British North America Act, 1867; by that code,
the right to investigate or inquire, and the mode, is
given to the Senate and the House, and to no one
else.
The parties here disagreed as to whether, in
Canada, the only method of removal of judges is
through an address system in Parliament. The
defendant contended there were, in Canada, two
" The plaintiff pointed out that The British North America
Act, 1867 provides for the appointment and removal of superior
court judges by the Governor General, not the Governor in
Council (the cabinet). The Inquiries Act authorizes only the
Governor in Council to cause inquiries to be held.
other courses open: (1) a writ of scire facias to
repeal the letters patent appointing a judge; (2) a
criminal information at the suit of the Attorney
General. 12
Professor W. R. Lederman, in 1956, wrote a
lengthy and compelling essay "The Independence
of the Judiciary" 13 . He reviewed the possible
methods of removal of judges in England. 14 As to
the post-Confederation situation in Canada, he
said at page 1161:
Also, as in England, it is probable that the provision for
removal of superior-court judges by joint address in the federal
Parliament is additional to, and thus not exclusive of, the older
prerogative type of removal without reference to Parliament.
That statement, to me, suggests that in Professor
Lederman's view, section 99 of The British North
America Act, 1867 is not, as the plaintiff contends,
a code of its own. In any event, Professor Leder-
man does not appear to discuss specifically the
point whether or not initial investigative proce
dures must emanate from Parliament.
The defendant relies, however, on a statement in
Todd (footnote 12) that Parliament may originate
the action of removal in various ways. It is said:
... after a preliminary enquiry—by a royal commission (at
the instance of government, or at the request of either House of
Parliament) .... 15
The defendant relied on this statement for author
ity that the Executive in this case, as well as the
Senate and House, could initiate the proceedings
by means of a Royal Commission outside Parlia
ment. I agree with Mr. Henderson that the case
cited by Todd in support of the proposition, (Chief
Baron O'Grady's case) is readily distinguishable.
In the O'Grady case there was a standing or
continuing commission of inquiry in respect of the
Courts of Justice in Ireland. In their ninth and
eleventh reports, the Commissioners accused Chief
Baron O'Grady of unjustly and arbitrarily increas
ing his own fees. Two select committees of the
12 See Todd on Parliamentary Government in England
(1889) Vol. II, pp. 853-880, particularly at 858-859.
13 (1956) 34 Canadian Bar Review 769, continued at 1139.
14 34 Canadian Bar Review pp. 785-788.
13 Todd, p. 873.
House of Commons investigated the charge and
confirmed the accusation. The government com
municated their reports to the. Commissioners, who
again investigated the matter and reported back to
the government. The whole matter was ultimately
resolved, without Parliamentary address proceed
ings.
In the present case, there was, of course, no
standing commission. The Executive passed an
Order in Council setting up a special commission
to inquire into the conduct of one particular judge
in respect of certain transactions. I did not find the
statement in Todd to be either helpful or conclu
sive on this point.
The defendant further asserts that because the
Governor General, under section 96, appoints
judges, then he and his council must, as a step in
the process of their removal, have power to initiate
investigations or inquiries. Professor Lederman, at
page 1162 of his article, referred to sections 31
and 33 of the former Judges Act 16 . Where it was
felt a superior court judge had become incapacitat
ed or disabled by reason of age or infirmity, his
salary could be stopped. The Governor in Council
had first to issue a commission of inquiry to inves
tigate and report upon the facts. Professor Leder-
man expressed doubt that this was a constitution
ally permissible procedure. He said, (page 1163):
In my view section 31 of the Judges Act is inconsistent with
the meaning of tenure during good behaviour prescribed in
section 99 of the B.N.A. Act.
The opinions expressed in Todd and in Professor
Lederman's article do not bear squarely on the
precise point raised by Mr. Henderson and disput
ed by Mr. Ainslie. I have concluded, but with
doubt, that the Governor in Council, as distin-
16 R.S.C. 1952, c. 159. Sections 31 and 32 of the present
Judges Act go even further. The Canadian Judicial Council is
empowered to hold an inquiry as to whether a judge has
become incapacitated or disabled, not only by reason of age or
infirmity, but by reason of misconduct, etc. The Council can
recommend the judge be removed from office and his salary
stopped. If the Cabinet then finds the judge to have become
incapacitated or disabled, the judge's salary is stopped. In this
note, I have not overlooked section 32.2 of the present
legislation.
guished from the Governor General or Parliament,
can authorize an inquiry into the conduct of a
superior court judge. Section 99 of The British
North America Act, 1867 deals only with the
power of removal: by the Governor General, but
only after a Parliamentary address for removal. In
this country the appointment of the judges of the
superior, district and county courts of the prov
inces lies with the federal power. As I see it, the
conduct of those judges is a "... matter connected
with the good government of Canada ...." The
federal executive is empowered, under section 2 of
the Inquiries Act, to cause an inquiry to be made.
That was what occurred here. Section 99 of The
British North America Act, 1867 does not, to my
mind, preclude inquiries of the kind here ordered.
If, for example, the Commissioner's report had
been favourable to the plaintiff, an investigation
and address by the Senate and House, in accord
ance with section 99, would still have been open.
Technically, it is not now necessary for me to
deal with the defendant's other contentions on this
issue: that there was consent by the plaintiff to this
inquiry; that no "constitutional" objection was
raised at any time during it. I feel I should express
my opinion.
It is true that, as a matter of form, the inquiry
was ordered after a request by the plaintiff. But I
conclude, on the evidence before me, there was a
good deal of pressure exerted on him. One cannot
shut out the state of Canadian political history at
that time. It is permissible to take judicial notice
of the facts of history. In Calder v. Attorney
General of British Columbia, Hall J. delivering
the dissenting judgment of himself, Spence J. and
Laskin J. [as he then was], said:
Consideration of the issues involves the study of many his
torical documents and enactments received in evidence, particu
larly exs. 8 to 18 inclusive and exs. 25 and 35. The Court may
take judicial notice of the facts of history whether past or
contemporaneous: Monarch Steamship Co. Ltd. v. A/B Karl-
shamms Oljefabriker [[1949] A.C. 196], at p. 234, and the
Court is entitled to rely on its own historical knowledge and
17 [1973] S.C.R. 313 at 346.
researches: Read v. Lincoln [[1892] A.C. 644], Lord Halsbury
at pp. 652-4.
The judgment of Martland, Judson and Ritchie
JJ. was given by Judson J. No specific reference
was made to the power of a court to take notice of
historical facts. But it is obvious from the reasons
that those three judges also resorted to history.
Here, the plaintiff's name first came into promi
nence in 1962. In a general election in that year,
the Progressive Conservative government was
returned, with a minority. The next election in
1963 produced a Liberal minority government.
That minority situation persisted until 1968. The
history of that period records there were a number
of matters which caused concern and difficulty to
the minority government.' 8 The plaintiff had ear
lier indicated he was prepared to launch legal
attacks against any Royal Commission that might
be set up. I think that would have been, if it had
materialized, an embarrassing situation. The
minority government's other method, unchallenge-
able by the plaintiff, was to try and obtain a joint
address in Parliament. The plaintiffs choice, if it
can be described as that, was not a real or free one.
Mr. Robinette had, before his telegram of Janu-
ary 17, 1966 (Exhibit 23), expressed his opinion on
the constitutional issue. It was also his view a
consent by the plaintiff could not validate some
thing constitutionally invalid. The plaintiff in his
letter of January 24, 1966 to Mr. Cardin (Exhibit
25) pointed out the procedure was under "all
reserve".
No challenge was made, at the opening of the
inquiry or at any other stage, based on the consti
tutional issue. Counsel for the defendant relied on
that fact. The explanation is, I think, found at
pages 1254 and 1255 of the transcript of proceed
ings. The plaintiff's testimony had then been com
pleted. Mr. Robinette wished to tender evidence
indicating the plaintiff had, long before, made
efforts to have his position aired before a public
inquiry. A ruling was requested. The Commission
18 The Munsinger affair, the Spencer affair, the Dorion
Inquiry—to name a few.
er expressed the view it would be of little material-
ity (page 1233), but he heard it. At page 1254 the
Commissioner fortuitously asked: "Was there ever
any objection to the Commissioner under the In
quiries Act made?" [sic]. Mr. Robinette explained
the legal position he had taken with Mr. Favreau.
At pages 1254 and 1255 he continued:
I still have grave doubts whether the Dominion has the author
ity to empower a Commissioner to investigate, but that is really
a matter of the constitution, organization and maintenance of
the courts from a provincial standpoint, and therefore within
the jurisdiction of the province, but I must add this, sir, that
when this Commission was set up, on the instructions of Mr.
Landreville I agreed with the present Minister of Justice that I
would not raise any constitutional argument before you, sir,
and I do not raise that question.
In my view, if there was no constitutional power
in the Governor in Council to initiate this inquiry,
then the plaintiffs consent or request for it, and
the agreement not to object to it, cannot cure the
defect.
I turn now to the second main submission by the
plaintiff. It is first necessary to set out in more
detail the facts surrounding the share transaction
between NONG and the plaintiff. For that pur
pose I shall rely almost exclusively on the evidence
referred to in the Commissioner's report.
In 1954 and 1955 the route of the TransCanada
Pipeline Company and the distribution from the
line to various communities in Northern Ontario
became a matter of concern and interest. It
appeared that only one company, or agency, rather
than several, would handle that distribution.
NONG had been incorporated with that purpose
in mind. It was very much in the running. It put
forward considerable effort endeavouring to obtain
franchises from various communities including
Sudbury.
As recounted, the plaintiff was, in 1955 and
1956, the mayor. NONG, chiefly through Farris,
presented submissions for the Sudbury franchise.
Over the course of those dealings, the plaintiff and
Farris had, after perhaps an initial coolness, come
to like each other. By the spring of 1956, most of
the other franchises had been granted. Sudbury
began to take action. A by-law, approving the
franchise, had to be passed by Council. On May
22, 1956, first and second reading of the by-law
were given. There remained third reading, the
approval of the terms of the franchise, and a
certificate of convenience and necessity by the
Ontario Fuel Board. The latter was a foregone
conclusion.
On July 17, 1956, Council gave, by a vote of 7
to 3, third reading to the by-law. The plaintiff, as
was the general practice, did not vote. The agree
ment conferring the franchise was signed by the
City the next day. It was returned on July 20
executed by NONG. The Fuel Board, at a later
date, issued the necessary certificate. The plaintiff
felt that the Board had in substance approved the
franchise on June 21.
The plaintiff testified, at the Commission, that
in a friendly talk with Farris, he pointed out his
term as mayor would end in 1956. He indicated
interest in doing NONG's legal work after that.
He said he also indicated a desire to purchase
some shares in NONG". A key issue at the Com
mission hearing was the date of this discussion
with Farris. Before Commissioner Rand the plain
tiff felt it likely occurred on July 17, 1956, in the
evening, after the Council meeting. That was the
meeting where the by-law passed third reading. In
testimony by the plaintiff in the previous proceed
ings referred to (the Ontario Securities Commis
sion, the Farris preliminary and the Farris trial),
he had thought the conversation had occurred
sometime in the first two weeks of July. That
earlier evidence, vague, if not inconsistent, was put
to the plaintiff at the Commission.
In any event, a letter, dated July 20, 1956, was
sent by NONG to the plaintiff. Among other
things, it referred to the plaintiff's interest in
assisting the company in some capacity in the
future. It referred to his desire to purchase stock.
It went on to say there had been a change in the
capital of the company. Shares had been split five
for one; existing shareholders had been given the
right to subscribe for a limited number of shares at
$2.50 per share.
19 I have generally summarized this evidence. The Commis
sioner went into detail.
At the same time it was resolved to offer you 10,000 shares at
the same price of $2.50 per share. This offer is firm until July
18th, 1957. Should you wish to purchase portions of these
shares at different times, that will be in order.
On July 30, 1956, the plaintiff wrote in reply.
He said in part:
I fully appreciate the advantages of the offer you outline to me
and I fully intend to exercise this option before July 18th, 1957.
On September 19, 1956, the plaintiff wrote
Farris as follows:
Mr. Ralph K. Farris, President,
Northern Ontario Natural Gas Co. Ltd.,
44 King Street, W., Suite 2308,
TORONTO, Ontario.
My dear Ralph:
On the early morning of Tuesday following our meeting in
North Bay, I was in conversation with the Minister of Justice
and some other high official. I made my decision—I accepted.
After the dilemma of whether to have my appendix out or
not, the dilemma of remaining a bachelor and happy or get
married—this was the biggest dilemma! I feel that given three
or four years and with my ambition, I would have squeezed you
out of the Presidency of your Company—now I have chosen to
be put on the shelf of this all-inspiring, [sic] unapproachable,
staid class of people called Judges—what a decision! However,
right or wrong, I will stick to it and do the best I can.
I want to assure you that my interest in your Company,
outwardly aloof, will, nevertheless, remain active. I am keepin g
your letter of July 20th carefully in my file. 20
Sincerely,
LAL:Img Leo
There was a discussion between Farris and the
plaintiff later in the fall of 1956, some time after
the plaintiffs swearing in as a judge. Farris asked
the plaintiff whether he still wanted the shares.
The plaintiff replied that he did.
The plaintiff himself did nothing further until
some time in 1957. He said he received a phone
call from someone about the shares. The substance
of it was that the shares were then trading for
approximately $10.00; 2500 of the shares were to
be sold to pay off the total number of 10,000. This
meant, of course, the plaintiff never actually paid
money. The Commissioner dealt at considerable
length with the evidence as to the identity of the
person who telephoned the plaintiff. The latter had
always been adamant in the prior proceedings, and
again at the Commission, that the caller was not
20 The underlining was added by Commissioner Rand.
Farris. The Commissioner decided that it was
Farris.
On February 12, 1957, Continental Investment
Corporation Ltd., a broker, wrote the plaintiff as
follows:
Vancouver, B.C.
February 12, 1957
Mr. Justice L. A. Landreville,
Osgoode Hall,
Toronto, Ontario.
Dear Sir:
Some time ago, we were instructed by Mr. R. K. Farris to
purchase for your account, 10,000 shares of Northern Ontario
Natural Gas Company Limited at $2.50 per share. We have as
of this date sold 2,500 shares for your account at $10.00 per
share which clears off the debit balance in your account.
You will find enclosed 7,500 shares of Northern Ontario
Natural Gas Company Limited with stock receipt attached,
which we ask you to sign and return to this office at your
convenience.
Yours truly,
Continental Investment
Corporation Ltd.
JM:AH John McGraw
The plaintiff replied on February 16, 1957:
Osgoode Hall
Toronto 1.
Feb. 16th, 1957
Continental Investment Corporation,
Vancouver, B.C.
Dear Sirs:
Re: Northern Ontario Natural Gas Co.
I have received yours of the 12th with Stock Certificates
enclosed for which I thank you. I am enclosing receipt for
same.
Should I be of any assistance to your firm for the promotion
and betterment of this company in Ontario, please do not
hesitate to contact me.
Sincerely,
L. A. Landreville
The 7,500 shares were later sold, in blocks of
various sizes. The plaintiff realized a profit of
$117,000.
I go now to the Commissioner's report.
In the first 68 pages the Commissioner reviewed
the history of pipe line development, the involve
ment of the City of Sudbury and the plaintiff, and
the latter's dealings with NONG. In respect of
those dealings and the receipt of the shares, he
canvassed in detail the evidence the plaintiff had
given in the three previous proceedings, and the
evidence he gave at the Commission.
The Commissioner characterized the shares as a
gift. He did not accept the contention that the
correspondence of July 20, and July 30, 1956
amounted to an option, if not legally enforceable,
perhaps morally enforceable. I quote from pages
68-69:
Arising out of the distribution of the 14,000 shares, prosecu
tions were launched against the mayors of four municipalities
by which franchises had been granted: Sudbury, Orillia, Gra-
venhurst and Bracebridge. The offences charged were the same:
in substance that NONG stock received by the mayors had
been corruptly bargained for and that each, for the promise of
reward, had used his influence to assist NONG in obtaining a
franchise from his municipality. In three of them the informa
tion was dismissed on the ground of insufficient evidence to
justify committing the accused to trial; in the fourth, that of
Orillia, the accused was acquitted in a county court jury trial.
Following these, a public statement was issued by the Attorney
General that in the circumstances no Bill of Indictment would
be preferred by him before a Grand Jury in any of the three
cases of dismissal.
To the Province there has been committed by Section 92 of
the British North America Act exclusive jurisdiction over the
administration of justice. The courts here concerned are provin
cial courts although judges of the Supreme and County Courts
are appointed by the Dominion Government. Such a charge
levelled against a Judge of the Supreme Court of Ontario
becomes obviously a matter of primary provincial interest; and
in the case of Justice Landreville, it was to vindicate that as
well as the general interest in municipal government, and the
enforcement of the criminal law, also provincial matters, that
the prosecution was brought. This formal action of the provin
cial authorities creates a situation where their judgment arrived
at by a consideration of all the circumstances, must be accord
ed a respectful recognition by this Commission. That means
that an originally corrupt agreement between Farris and Jus
tice Landreville to bargain shares for influence is not to be
found to be established; the presumption arises that there was
no such agreement. Such a matter is a question of a state of
mind; the external facts are before us; what is hidden is the
accompanying understanding; and it is proper for this Commis
sion to assume that the facts disclosed do not satisfy the
requirements of our criminal law that that understanding,
beyond a reasonable doubt, was corrupt.
This leads us first to the consideration of a conclusion from
these external facts which is consistent with that assumption;
and secondly, whether what took place in relation to those facts
has infringed any other law or has violated an essential require
ment of that standard of conduct which is to be observed by a
member of the Supreme Court of a province.
To these considerations personal relations become sig
nificant.
The Commissioner, for the next several pages,
then set out the plaintiff's personal history prior to
his first association with Farris. I think it fair to
comment that it does not appear to have been
recorded in a completely objective way. Purely as
one example, I quote these two sentences:
His emotions are active and he can be highly expansive; he is
fascinated by the glitter of success and material well-being. His
outlook is indicated by a residence in Mexico, as well as a lodge
some miles from Sudbury.
The remainder of the report to page 98, is, as I
read it, the basis for the Commissioner's second
and third conclusions.
Counsel for the plaintiff contends the Commis
sioner, in inquiring into, and expressing findings
and opinions on, the matters set out from pages 69
to 98, exceeded his terms of reference; he therefore
exceeded or lost jurisdiction; the plaintiff is en
titled to a declaration accordingly.
It is necessary at this stage, in order to fully
appreciate the contention on behalf of the plaintiff,
to set out the formal conclusions of the Commis
sioner. These appear on pages 107 to 108:
Drawn from the foregoing facts and considerations, the follow
ing conclusions have been reached:
I—The stock transaction between Justice Landreville and
Ralph K. Farris, effecting the acquisition of 7,500 shares in
Northern Ontario Natural Gas Company, Limited, for which no
valid consideration was given, notwithstanding the result of the
preliminary inquiry into charges laid against Justice Landre-
ville, justifiably gives rise to grave suspicion of impropriety. In
that situation it is the opinion of the undersigned that it was
obligatory on Justice Landreville to remove that suspicion and
satisfactorily to establish his innocence, which he has not done.
II—That in the subsequent investigation into the stock transac
tion before the Securities Commission of Ontario in 1962, and
the direct and incidental dealing with it in the proceedings
brought against Ralph K. Farris for perjury in 1963 and 1964
in which Justice Landreville was a Crown witness, the conduct
of Justice Landreville in giving evidence constituted a gross
contempt of these tribunals and a serious violation of his
personal duty as a Justice of the Supreme Court of Ontario,
which has permanently impaired his usefulness as a Judge.
III—That a fortiori the conduct of Justice Landreville, from
the effective dealing, in the spring of 1956, with the proposal of
a franchise for supplying natural gas to the City of Sudbury to
the completion of the share transaction in February 1957,
including the proceedings in 1962, 1963 and 1964, mentioned,
treated as a single body of action, the concluding portion of
which, trailing odours of scandal arising from its initiation and
consummated while he was a Judge of the Supreme Court of
Ontario, drawing upon himself the onus of establishing satisfac
torily his innocence, which he has failed to do, was a dereliction
of both his duty as a public official and his personal duty as a
Judge, a breach of that standard of conduct obligatory upon
him, which has permanently impaired his usefulness as a Judge.
In all three respects, Justice Landreville has proven himself
unfit for the proper exercise of his judicial functions.
I do not think anything is to be gained by
reviewing or setting out the impugned matters
found at pages 69 to 98, or the Commissioner's
comments and opinions. It is not for me to decide
whether the evidence or materials referred to by
the Commissioner on this aspect of the matter
were relevant, cogent or trustworthy. Nor is it for
me to decide whether the comments of the Com
missioner, on what amounted to the personality
and credibility of the plaintiff, were justified or
valid. Opinions may well differ. I am only con
cerned with deciding whether the kind of findings
set out in conclusions II and III were reasonably
within the terms of reference set out in the Letters
Patent.
In my opinion, what I have set out as (b)(ii) of
the terms of reference are wide enough to embrace
the portions of the Report and the conclusions
attacked by the plaintiff. That portion of the term
of reference is:
(b) to advise whether, in the opinion of the Commissioner:
(ii) whether the Honourable Mr. Justice Landreville has by
such dealings [with NONG or its officers or in its shares]
proved himself unfit for the proper exercise of his judicial
duties.
As I see it, the credibility of the plaintiff was an
issue. In conclusion II the Commissioner chose to
find that the plaintiff's conduct in giving evidence
before the Securities Commission and in the pro
ceedings against Farris, constituted a gross con
tempt of those tribunals. It is true the Commis
sioner had before him only the transcript of the
evidence given by the plaintiff in those proceed
ings. He did not have before him the testimony
given by other witnesses. Nevertheless, it is my
view the question of credibility was within the
terms of reference. The quarrel is really with how
the Commissioner dealt with the issue, and the
facts or matters he chose to rely on. I do not think
his method of dealing with the question, though
others might have done differently, amounted to
going beyond the terms of the reference, and so
losing jurisdiction.
I now turn to the final main submission on
behalf of the plaintiff.
Section 13 of the Inquiries Act is as follows:
13. No report shall be made against any person until reason
able notice has been given to him of the charge of misconduct
alleged against him and he has been allowed full opportunity to
be heard in person or by counsel.
The plaintiff argues the Commissioner did not
comply with this section. It is said there is nothing
in the terms of reference, nor was there any indica
tion at the hearing, that any allegation would be
made against the plaintiff, in respect of previous
testimony; that it would be alleged his conduct
before those tribunals in giving evidence
... constituted a gross contempt ... and a serious violation of
his personal duty as a Justice ..., which has permanently
impaired his usefulness as a Judge.
It is further said the matters referred to in
conclusion III, incorporating as it does the asser
tions in conclusion II, do not reasonably appear in
the terms of reference; no notice was given to the
plaintiff either before or during the hearing there
would be those allegations of misconduct.
I digress somewhat to set out the procedure at
the Commission hearings. 21 It was agreed that any
witnesses called, including any requested on behalf
of the plaintiff, and including the plaintiff, would
be examined in chief by Commission counsel. The
plaintiffs counsel, Mr. Robinette, would have the
right to cross-examine last. Mr. Robinette would
be permitted to present argument at the
conclusion.
On the last day of the hearings, Commission
counsel made his submissions. Mr. Robinette fol
lowed with his. Commission counsel then said
(pages 1329-30):
Mr. Chairman, we have now reached a point where we can
adjourn.
After some formal remarks by Commission
counsel thanking various persons for their help, he
said:
21 The Agenda was put in as Exhibit 29.
With that, sir, I suggest that we adjourn sine die.
The Commissioner, shortly after, said:
The Hearing is adjourned sine die.
Counsel for the plaintiff submits that in the
circumstances here the provisions of section 13
became mandatory and ought to have been fol
lowed. The contention runs this way. When the
Commissioner reached his decision (as he obvious
ly at some stage did before actually signing his
written report) to assert or allege that the plain
tiffs conduct in giving his evidence before other
tribunals amounted to misconduct or misbehaviour
in office, the Commission should then have been
reconvened, and notice of the "charge" of miscon
duct given; the plaintiff should then have been
allowed to call witnesses, if he wished, to answer
the so-called charges and to make his defence,
either personally or by counsel, to them; instead,
the first notice the plaintiff had was the publica
tion of the Commissioner's report.
Counsel for the plaintiff asserts there is nothing
in the terms of reference, nor was there anything
throughout the hearing, that indicated allegations
of misconduct as set out in conclusions II and III
would be levelled or considered. It is further
asserted that if the plaintiff and his legal repre
sentative had known these allegations were going
to be made by someone or by the Commissioner,
they could well have sought evidence to answer the
"charges". It is not, as I see it, unreasonable to
surmise the plaintiff and his advisers might have
considered, in respect of allegations of gross con
tempt, calling as witnesses the officials of the
Securities Commission, and perhaps those presid
ing over the Farris cases to canvass their opinions
as to whether the conduct of the plaintiff in those
proceedings was gross contempt.
I agree with the plaintiff that the assertion of
gross contempt was a very serious one. The Com
missioner said at pages 94 and 95:
The unpleasantness of the matter investigated cannot be
allowed to minimize its derogatory character. There was con
scious contempt before all three tribunals; it may or may not
have passed the borders of criminality; but to confuse, to raise
doubts by the juxtaposition of contrived and emphatic assertion
and nullifying qualifications and reservations, is not to be
distinguished in effect from deliberate falsity.
I translate that as a finding of perjury.
Counsel for the defendant maintains the allega
tions or charges are set out in the Order in Council
and Letters Patent; they are the notice of the
charges of misconduct alleged; the impugned con
clusions obviously and reasonably arose out of
charges set out in the terms of reference.
I do not agree that the matter of gross contempt
of the other tribunals can be said to be included,
by implication or necessary intendment, in the
terms of reference.
This was a somewhat unusual Royal Commis
sion. The majority of Royal Commissions seem to
be constituted to investigate a particular subject,
thing or state of affairs. Rarely do they relate to
one person. This Commission was, however, direct
ed to the investigation of one particular person and
his dealings with a certain company, its officers, or
its shares. The Commissioner was requested to
inquire into those dealings and to express an opin
ion whether, in the course of them, there had been
misbehaviour by the plaintiff as a judge, or wheth
er the plaintiff, by the dealings, had proved him
self unfit. I am unable to see how those general
terms indicated to the plaintiff there would, or
might be, an allegation of gross contempt of cer
tain tribunals, amounting to misconduct.
No authority was cited to me, in respect of the
application of section 13, which was closely in
point. Reference was made to Crabbe v. Minister
of Transport 22 . I agree the facts of that case are
readily distinguishable; so too, the relevant statu
tory provisions and rules. There is, nevertheless,
some similarity. In my opinion the case is helpful.
There, a court of investigation was appointed,
pursuant to the Canada Shipping Act, to investi
gate a collision between two large vessels. The
22 [1972] F.C. 863.
statute and the Shipping Casualties Rules gov
erned the procedure at the investigation.
All of the parties concerned, including some of
the officers and the pilots of the two vessels, were
served, prior to the commencement of the investi
gation, with a "statement of the case". That docu
ment contained 15 questions. The first fourteen
covered somewhat formal and technical matters.
The last question read [at page 865]:
Was the collision caused or contributed to by the wrongful act
or default by any person or persons and if so what were those
wrongful acts or defaults and by whom were they committed.
The Department of Transport had conduct of the
proceedings. The Shipping Casualties Rules (Rule
17) provided that when the examination of wit
nesses, called on behalf of the Department of
Transport, had been concluded, and after cross-
examination of those witnesses by interested par
ties, the Department should then state
... in open Court the questions concerning the casualty, and
the conduct of the certificated officers ... upon which the
opinion of the Court is desired.
In the Crabbe- case, the Department of Trans
port contended that the statement of the case,
containing as it did, the question earlier set out,
complied with the provisions of Rule 17; that
nothing beyond the reading of the questions was
required. Counsel for Captain Crabbe submitted
that merely reading the questions was insufficient;
the particular things alleged against Captain
Crabbe or other officers (the charges) should then
be set out; the particular officer or officers against
whom allegations were made would then have the
opportunity to call evidence and make submissions.
The Federal Court of Appeal upheld the conten
tion of counsel for Captain Crabbe.
In my opinion, similar reasoning applies in this
case. I agree with the plaintiff's position that in the
circumstances here, the Commission should have
been reconvened. The substance of the proposed
allegations of misconduct set out in conclusions II
and III should have been made known to the
plaintiff in accordance with section 13. The plain
tiff should then have been given the opportunity to
meet those specific charges.
I therefore hold, with diffidence, that the Com
missioner failed to comply with the mandatory
requirements of section 13 of the Inquiries Act.
I have come slowly to that conclusion. The
Commissioner was an eminent and renowned
judge of the Supreme Court of Canada.
Ivan Cleveland Rand was appointed to the Supreme Court of
Canada on April 22nd, 1943 in his fifty-ninth year. It would be
more accurate to say that he was drafted into the court. His
reputation as a man of principle, an independent thinker, and
an outstanding lawyer, had preceded him to Ottawa. Rand's
appointment to the court, like the universal respect which he
enjoyed, had commanded itself.
The Honourable, J. R. Cartwright, eloquently summarized
Rand's judicial career in observing that "his record offered a
fair promise which, in the sixteen years that he occupied the
Bench, was gloriously fulfilled". Rand established himself
securely in the minds of many as the greatest judge who ever
graced that bench, although others would concede that position
to the former Chief Justice, Sir Lyman Duff. Without doubt,
they are the two most eminent judges Canada has yet
produced. 23
As a mere trial bench judge, I feel some reluc
tance in concluding that this distinguished Com
missioner omitted to comply with one of the terms
of the statute governing his inquiry; that this was
error in law. But my function cannot be affected
by diffidence or reluctance. I am required to apply
the law, as I conceive it to be, to the issues between
the parties to this suit.
There remain two final matters of defence.
The first is laches. The plaintiff, it is said, has
slept too long on his rights. The report issued on
August 11, 1966; he ought then to have attacked
the inquiry, even before the Joint Committee of
the Senate and House was appointed; the present
litigation was not commenced until August 4,
1972; the delay or lapse of time is substantial.
Snell's Principles of Equity has this to say on
laches 24o
Laches essentially consists of a substantial lapse of time
coupled with the existence of circumstances which make it
inequitable to enforce the claim. Delay will accordingly be fatal
to a claim for equitable relief if it is evidence of an agreement
by the plaintiff to abandon or release his right, or if it has
23 "Mr. Justice Rand—A Triumph of Principle", by E. Mar-
shall Pollock (1975) 53 Canadian Bar Review 519, and 522.
24 27th ed. (1973) p. 35.
resulted in the destruction or loss of evidence by which the
claim might have been rebutted, or if the claim is to a business
(for the plaintiff should not be allowed to wait and see if it
prospers), or if the plaintiff has so acted as- to induce the
defendant to alter his position on the reasonable faith that the
claim has been released or abandoned. But apart from such
circumstances delay will be immaterial.
On the facts before me, I see nothing which makes
it inequitable that the plaintiffs claim be enforced.
None of the "fatal" circumstances described in
Snell are present here. The defendant (for practi
cal purposes, the plaintiffs fellow-citizens) has not
been induced to alter any position. I see no com
pelling or equitable reason to invoke the defence of
laches.
The defendant says, finally, the Court should
not, in the exercise of its discretion make any
declaration of any kind in favour of the plaintiff.
All the surrounding circumstances are pointed to:
the affair is now old; the plaintiff has long since
resigned from the bench; the matter is, in a practi
cal sense, academic; there has been long delay. I
agree the Court has, in the circumstances, a dis
cretion to grant or not grant a declaration. I do not
see any equitable, legal, or moral reason to exer
cise my discretion against the plaintiff. As Pratte
J. said:
... the Court has the jurisdiction to make a declaration which,
though devoid of any legal effect, would, from a practical point
of view, serve some useful purpose.
One useful purpose, to my mind, and assuming
my decision in respect of section 13 of the In
quiries Act to be correct, is that it will be a matter
of public record that the plaintiff did not, at the
commission hearing, have full opportunity to
refute the allegation or finding he had committed,
as a judge, gross contempt in his testimony before
certain tribunals.
It is a matter of record that the plaintiff is
pursuing, in this Court, another action against the
defendant. It was commenced on the same date as
this suit. In that litigation the plaintiff seeks,
among alternative relief claims, a declaration that
he is entitled to a pension from June 30, 1967, the
date of his resignation as a judge. The amount of
pension sought is based on the relevant provisions
of the Judges Act. It may be that the declaration I
find he is here entitled to will serve some useful
purpose in the prosecution of that other suit.
The plaintiff will have a declaration limited to
the section 13 issue. He will also recover the costs
of this action.
I request counsel for the plaintiff to draw a draft
judgment giving effect to these reasons, and to
submit it to counsel for the defendant. If counsel
cannot agree on the terms, I shall hear
submissions.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.