Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m M A R C H 2 0 1 6 9 R etired Ontario Superior Court judges who want to return to court as counsel will now always have to get permission from a Law Society of Upper Canada tribunal. The move is a bid to ensure the per- ception of fairness in the courtroom. The LSUC's Convocation made the policy amendments during its meeting Jan. 28, including tweaks to the wording and judicial categories in the Rules of Professional Conduct. Previously, former Superior Court judges could appear before the court as counsel after a three- year "cooling-off " period. Malcolm Mercer, chairman of the LSUC's professional regulation commit- tee, said Associate Chief Justice Frank Marrocco first broached concerns of public perception and access to jus- tice on behalf of the Superior Court's senior executive. He said former judges appearing as lawyers before their one- time peers of the bench has led to situations where the sitting judge will recuse himself or herself from a matter, slowing the wheels of justice. "There is a concern about newer judges who hear submissions made to them by judges who sat before they were on the bench themselves, and that has given rise to certain discomfort," said Mercer. "The fact that there have been and are likely to be more recusals is likely to cause acute inconvenience and delay in the administration of justice." Mercer explained there are two cat- egories that apply to retired judges who want to return to practice. The first cov- ers former judges of the Supreme Court of Canada and the Ontario and federal appeal courts. There is no cooling-off period for these judges. They will always have to get approval from the panel before appearing as counsel. The second category covers for- mer judges who sat in Federal Court, Tax Court of Canada, and Ontario's provincial and superior courts. In this category, there is a three-year cooling- off period. During the cooling-off period, permission from the tribunal is required to appear as counsel. After the cooling-off period is finished, permis- sion isn't required. The new rules place former Superior Court judges in the first category. Although supporting the changes, LSUC Bencher Rocco Galati says the policy amendments don't quite go far enough. "For my liking, I think we should remove the right to apply [for reinstatement] as well," he says. Civil litigator and former Ontario Bar Association president Lee Akazaki takes a different view. He says there is a high level of expertise that will be denied those who might choose to hire a former judge to represent them. He says judges should not recuse them- selves only because a former judge is due to appear before them, because it lacks a principled reason. "There's this belief that counsel appearing against a retired judge would feel intimidated or reluctant; as far as I'm concerned, you have to treat any opposing counsel with the same due respect as you would a Superior Court judge and you should treat opposing counsel with the same amount of objectivity," he says. Akazaki says a better way to deal with the emerging concerns would be to create a clear set of rules to establish if there is a conflict of interest for the for- mer judge to appear on any given case as a lawyer. "The gut reaction is not always the correct one; these people lived and worked and breathed law all their lives and it's very difficult to say to them 'you can't have anything to do with the law anymore apart from coming to the cock- tail parties,'" he says. "They have a lot to contribute, they have the expertise in the law, they are not going to be more of a risk to clients, and they're not going to be a risk to the public." Ian Binnie, who served 14 years as a Supreme Court justice and is now counsel at Lenczner Slaght, says there are few, if any, circumstances where a former judge should appear as a lawyer in a Canadian court. He said he was pleased to see the LSUC policy change for the Superior Court to remove the three-year cooling-off period and hopes other jurisdictions follow suit. "You always have to consider in these cases the position of the losing party; are they going to go away from court thinking they got a raw deal because the other side had a former judge? Even if that's not the reality, that will be the percep- tion and I don't think the courts want to give that impression." He said the Tax Court is of particular concern. "If a former tax court judge showed up to argue on behalf of the tax- payer against the government, it simply would look as if the process was skewed. Binnie says for boards and tribunals it's a bit different because appointments tend to be short-term and sometimes are not renewable and should not have further hindrances on returning to practice. Mercer said the professional regula- tion committee will be making inquiries of the Ontario Court of Justice and Fed- eral Court for commentary if they also wish to see similar policy changes. — NEIL ETIENNE neil.etienne@tr.com \ AT L A N T I C \ C E N T R A L \ W E S T REGIONAL WRAP-UP How long is a long-enough cooling-off period?

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