NOTICE OF PUBLICATION BAN: The Hearing Panel has ordered that the names of AA, the complainant in the related criminal matter which resulted in no findings, and BB, the accused in that process, shall not be published, nor shall any information that might identify them be published. The initials AA can be used to describe the person who was the complainant in the criminal process and the initials BB can be published to describe the person who was the complainant in this judicial disciplinary process.
Pursuant to section 11(15) of the Justices of the Peace Act, R.S.O. 1990, C. J.4, the Justices of the Peace Review Council is holding a formal hearing into a complaint about the conduct of Justice of the Peace Tom Foulds of the Ontario Court of Justice.
On April 27, 2017, the Hearing Panel issued its Decision on Disposition and Compensation for Legal Costs Following a Finding of Judicial Misconduct. The Hearing Panel concluded that the only appropriate sanction that will restore public confidence in the judiciary is a recommendation to the Attorney General that His Worship, Justice of the Peace Foulds, be removed from office, on the basis that he has been incapacitated in his ability to perform the duties of his office by reason of conduct that is incompatible with the standard of conduct required to discharge the responsibilities of that office.
Justice of the Peace Foulds requested that the Hearing Panel make a recommendation for compensation of the legal costs incurred by him in the hearing. The Hearing Panel is recommending that His Worship be compensated for part of the legal costs incurred by him in the hearing. His Worship requested compensation in the amount of $49,813.01. The Panel is recommending compensation in the amount of $20,000.00.
The decision is posted on the Public Hearings Decision website.
The Hearing Panel heard evidence and considered whether the conduct of His Worship Foulds summarized below amounted to judicial misconduct:
His Worship abused his office and acted in bad faith or with an improper motive, or in a manner that could reasonably be perceived to be so, and compromised the independence, impartiality and integrity of the judicial office of the justice of the peace, when he signed an Information and a subpoena in relation to persons with whom he had personal history and when he intervened in the criminal process by having improper contact with the Toronto Police Services and Crown counsel.
On February 1, 2018, the Hearing Panel issued its Reasons for Decision on the evidence. The Panel concluded that His Worship engaged in judicial misconduct. The decision is posted on the Public Hearings Decisions webpage.
The Panel concluded that the evidence presented on the following allegations supported a finding of judicial misconduct:
- the signing of the Information and confirmation of process;
- the issuance of the subpoena;
- the involvement in attempting to direct service of the subpoena; and
- continuing contact with Crown counsel, the police and intervention in the adversary process.
The Hearing Panel found that the evidence also established that His Worship engaged in a pattern of misconduct that extended from May 21, 2014 to late April, 2015.
Presenting Counsel and Counsel for His Worship filed written submissions on disposition.
On March 16, 2018, His Worship Foulds filed a motion asking the Hearing Panel to reconsider its decision of February 1st or, in the alternative, that the Panel make an Order for a new hearing before a differently constituted Hearing Panel. On March 23, 2018, the Panel heard oral submissions by His Worship and Presenting Counsel on the motion. The Panel dismissed the motion, finding that there is no enabling rule in the legislation or in the Council’s Procedures that permit a reconsideration.
The Panel then heard oral submissions by counsel on disposition. Presenting Counsel pointed out several aggravating factors, based upon the Panel’s earlier findings of fact. Presenting Counsel also submitted that the Panel may find it troubling that a parallel exists between this case and the previous hearing in 2013 in which a Panel found that His Worship engaged in judicial misconduct when he interfered with the inspections by two health inspectors at his friend’s restaurant.
Mr. Sandler, on behalf of His Worship, referred to other JPRC cases that led to a recommendation for removal from office and argued that this one was qualitatively different. He submitted that while there are factors that show why the disposition should be at the high end of the range, the disposition should be short of a recommendation for removal, such as a 30 day suspension without pay, judicial education and an order of an apology to those in the justice system affected by his conduct.
Mr. Sandler made submissions in support of His Worship’s request for compensation for his legal costs incurred by the hearing. Presenting Counsel submitted that His Worship should receive partial compensation for his legal costs.
The decision to order a hearing was taken following the investigation of the complaints in accordance with the Review Council’s complaints process. A three-person complaints committee, consisting of a judge, a justice of the peace, and a community or lawyer member, investigated the complaints and ordered that a formal hearing be held.
Pursuant to section 11.1(1) of the Justices of the Peace Act, the Honourable Chief Justice Lise Maisonneuve, Chair of the Review Council, established a hearing panel, composed of a judge who shall chair the panel, a justice of the peace, and, a community member, to hear the matter.
Hearings of the Review Council are normally held in public and the dates and times of the hearings are posted on the Council’s website.
After concluding its hearing of the matter, pursuant to section 11.1 of the Justices of the Peace Act, the hearing panel may dismiss the complaint, with or without a finding that it is unfounded, or if it upholds the complaint, it may decide upon any one of the following sanctions singly or in combination:
- warn the justice of the peace;
- reprimand the justice of the peace;
- order the justice of the peace to apologize to the complainant or to any other person;
- order the justice of the peace to take specified measures such as receiving education or treatment, as a condition of continuing to sit as a justice of the peace;
- suspend the justice of the peace with pay, for any period; or,
- suspend the justice of the peace without pay, but with benefits, for a period up to thirty days.
The Council may also make a recommendation to the Attorney General that the justice of the peace be removed from office. This sanction stands alone and cannot be combined with any other sanction. Under section 11.2(1) of the Justices of the Peace Act, a justice of the peace may be removed from office only by order of the Lieutenant Governor in Council.
History of the Proceedings
On September 28, 2016, the Hearing Panel dismissed an oral application for interim non-publication of the Notice of Hearing and ruled that the Notice of Hearing should be received as a public exhibit. The decision, Supplementary Reasons for Interim Ruling, is posted under the link Public Hearings Decisions, 2016.
On January 20, 2017, the Panel heard submissions from counsel on two motions brought by His Worship: a motion for an adjournment of the hearing pending a decision on his application for a motion for judicial review; and, a motion for further disclosure. The Panel reserved on its decisions until February 14th. The decision on the Motion for Disclosure and Motion for a Temporary Stay / Adjournment of the Disciplinary Hearing is posted under the link Public Hearings Decisions, 2017.
On June 20, 2017, the Panel convened for an update as to His Worship’s continuing efforts to retain legal counsel and the status of his application for Divisional Court review. His Worship filed and argued four motions. The Panel was of the view that no information was filed to assess the relevance of the requests; it was not, therefore, in a position to consider the motions. Rather than make a determination on the incomplete materials, the three motions were adjourned sine die. The Panel confirmed that it is prepared to consider the motions in writing when they are provided with an evidentiary record for each motion.
The Panel gave procedural directions that could lead to a speedy resolution of the concerns identified by His Worship, and avoid costs, as well as logistical scheduling challenges during the summer. The Panel noted that this is particularly important given that public funds are being expended in this judicial disciplinary process. Updates on any motions will be posted on the Council’s website. Motion materials are to be filed in hard copy and provided in an electronic version that can be provided to any person who may request a copy.
His Worship’s request for the Panel to reconsider his earlier motion for a temporary stay/adjournment of the hearing was dismissed. The Panel reiterated to His Worship Foulds its earlier decision that the scheduled hearings dates will proceed in October, subject to any decision of the Divisional Court to the contrary in the interim.
The Panel’s decision, Directions on Motion for an Order of Disclosure of Otherwise Confidential Documents, Motion for Direction on how to Obtain a Summons, Notice of Intention to Bring a Motion Regarding Legal Costs and Motion for Reconsideration of Motion Previously Brought for a Temporary Stay/Adjournment of the Disciplinary Hearing, on the four motions is posted on the Public Hearings Decisions webpage.
On October 10, 2017, the Panel granted, on consent, an application by Presenting Counsel to vacate the October 26 and 27 hearing dates.
On October 10th, the Panel granted a motion by Presenting Counsel and ordered that the names of AA, the complainant in the related criminal matter which resulted in no findings, and BB, the accused in that process, shall not be published, nor shall any information that might identify them be published.
On that date, the Panel made an Order abridging the time for His Worship to bring a motion seeking particularity in relation to the allegations contained in the Notice of Hearing. The Panel heard submissions from both parties and dismissed the motion by His Worship, noting that the Notice of Hearing references in significant detail the specific instances of conduct alleged. The Panel was satisfied that His Worship knows the case that he has to meet.
On October 11, 2017, the Panel heard a motion on short notice brought by His Worship for additional disclosure. The Panel was satisfied that all relevant information that would be relied upon at the hearing by Presenting Counsel had been disclosed to His Worship. The motion was dismissed.
Presenting Counsel completed calling his evidence and on October 17, 2017, His Worship brought a motion for a non-suit. The Hearing Panel heard submissions and dismissed the motion.
On October 19, 2017, His Worship decided that he would call no evidence, except for a medical report. The Hearing Panel convened on October 31st to receive the medical report or on update on its completion. His Worship required more time to obtain the medical report. On November 7th, the Panel reconvened for His Worship to tender the medical evidence. A medical report was filed in camera by Mr. Sandler, who was retained by His Worship to make submissions on the evidence in the hearing. On November 30th, after notice on the Council’s website, Mr. Sandler brought a motion requesting that the medical report be received in camera and that a publication ban be imposed in relation to any references to the contents of the medical report. The motion was granted on the consent of Presenting Counsel.
Submissions on the evidence took place on Thursday, November 30, 2017. Presenting Counsel, Mr. Fenton, argued that the evidence established that His Worship Foulds engaged in judicial misconduct. Mr. Sandler submitted that the Panel should find that His Worship’s actions did not amount to judicial misconduct. The Hearing Panel reserved on its decision until February 1, 2018.
Presenting Counsel is Mr. Scott Fenton of Fenton, Smith Barristers, Telephone: 416.955.4551
General Contact: Ms. Marilyn E. King, Registrar, Telephone: 416-327-5672.
Notice of Application for Judicial Review:
On September 20, 2016, His Worship Tom Foulds filed an application to the Divisional Court for judicial review. He seeks to quash the decision of the complaints committee to order a hearing, and Order to quash the Notice of Hearing, and Order of Prohibition to prohibit the Hearing Panel from proceeding until the judicial review has been completed, and order of Mandamus compelling a different complaints committee to reconsider its decision and costs.
On September 28, 2017 at 10:00 a.m., the Divisional Court in Toronto heard a motion brought by His Worship Foulds. His Worship requested a temporary stay / adjournment of the public hearing, pending determination of His Worship’s application for judicial review. The Divisional Court dismissed the motion and granted a motion by counsel for the JPRC seeking to quash His Worship’s application for judicial review on the basis of prematurity.