Canadian Lawyer

10 A P R I L 2 0 1 7 w w w . C A N A D I A N L a w y e r m a g . c o m \ AT L A N T I C \ C E N T R A L \ W E S T REGIONAL WRAP-UP Gover, a partner at Stockwoods LLP in Toronto, says no date has been set yet for the hearing. Newbould continues to serve as team leader for the commercial court list in Toronto and notified the federal justice minister and judicial council on Feb. 10 of his intention to retire on June 1. Mohan Sharma, counsel in the office of Chief Justice Smith, says it is standard for the judicial council to request com- ment from a chief justice whenever a complaint has been made against a judge in her court. Complaints against Newbould were originally filed by seven people in the summer and fall of 2014, according to documents now made public by the judi- cial council. The complaints questioned the appropriateness of Newbould's public statements and written comments about a land claims dispute with the Saugeen First Nation over the Sauble Beach area on the eastern shore of Lake Huron. The dispute has been in litigation since 1994 and over the years it has been case managed by two Superior Court judges. Newbould sent at least four emails or letters to the South Bruce Peninsula council in August 2014 in response to a request for comment from the local mayor. One of the communications was a detailed eight-page letter. It contains advice on how to defend the claim. The judge, formerly a senior com- mercial litigator, wrote that he attempted to contact lawyers for the province and federal government, but they would not speak to him about the matter. In the letter, Newbould stated that he had contacted Warren Winkler to clarify the interpretation of an issue dating back to when Winkler was mediating the dis- pute and sitting as a Superior Court judge. Newbould also disclosed in the letter that he had been able to look at most of the evidence in the dispute and could assist in recommending an outside lawyer to act for the municipality. The application filed in Federal Court argues that Newbould acted in his "per- sonal capacity" as a local resident and not as a judge in expressing his views. The opinions and content of the letter were reported in the local media a few days after they were communicated to council. "Justice Newbould says town has strong defence to native land claim at Sauble Beach," states an Aug. 27, 2014 headline in an online story posted by Bayshore Broadcasting. The story goes on to detail "recom- mendations" made by the Superior Court judge to local council, including that it "should not shy away" from defending its position in court. Nova Scotia Chief Justice Michael MacDonald originally dismissed the complaints in early 2015. The judge, who chairs the judicial council's conduct committee, accepted a private apology from Newbould. The judicial council also sought com- ment from Smith at this time. "Chief Justice Smith indicated that she had nothing further to add to the com- prehensive and contrite response deliv- ered by Justice Newbould. "It was up to the Canadian Judicial Council, not the chief justice, to deter- mine whether Justice Newbould's apology was sufficient," Sharma explains. The basis for the complaints, the ini- tial decision and what happened over the next two years were not made public until after the release of the review panel deci- sion last month. Koren Lightning-Earle, president of the Indigenous Bar Association, asked in June 2015 for a reconsideration of the original decision to dismiss the com- plaints. Given that Newbould has indicated he is going to retire, it appears unlikely there will be a hearing, says Lightning-Earle. "Why has it taken so long," she asks. "This is a serious issue." Johanna Laporte, a spokeswoman for the judicial council, says there was a "voluminous record" in this proceed- ing and "complex issues" that had to be decided. There was also an unexpected delay after the recusal of the original lay mem- ber of the review panel. The land claim dispute remains unre- solved and is currently being case man- aged by Superior Court Justice Edward Belobaba. After a proposal aimed at reaching a settlement was not accepted, the South Bruce Peninsula council subsequently retained Jonathan Lisus, a partner at Lax O'Sullivan Lisus Gottlieb LLP in Toronto. He did not respond to requests for comment from Canadian Lawyer. — SHANNON KARI BRE-X STOCK SCANDAL STILL MAKING HEADLINES 20 YEARS LATER C anada's Bre-X stock scandal is still making headlines 20 years later. Hollywood has just made a movie based on the case, even though it has set the story in the United States. But if anything marks the Bre-X scandal as an especially Canadian story, it's the second thing that has put Bre-X back in the spotlight: The only person in any way linked to Bre-X who is still before the courts is Toronto securities lawyer Joe Groia. At the height of the scan- dal, he successfully defended Bre-X's chief geologist, John Felderhof, in a lengthy and often acrimonious series of hearings before the Ontario Securities Commis- sion on insider trading allegations and other securities matters. But now Groia is due to appear before the Supreme Court of Canada later this year essentially because, it is alleged by the Law Society of Upper Canada, that during the Felder- hof hearings he was rude. The story began in March 1996, when a prominent stockbroker told the Edmonton Journal that Bre-X is "the Cinderella stock of the century." And it was. Judicial Council and Ontario chief justice at odds over complaints process against judge Continued from page 9 W E S T

• Cover