On the recommendation of the justice minister, the federal government says it has accepted McMunagle’s resignation and approved a $200,500 annuity for the rest of his life.
McMunagle “has become afflicted with a permanent infirmity disabling him from the due execution of his office and has tendered his resignation,” says an order published on the Privy Council Office’s website at the end of January.
The governor general in council “accepts the resignation of the Honourable John A. McMunagle” and “pursuant to paragraph 42(1)(c) of the Judges Act, grants to the Honourable John A. McMunagle an annuity of $200,533.33, commencing as of the date of the making of this Order and continuing during his life,” the order reads.
McMunagle, who was appointed in 2010, has been on paid sick leave since July 2013. He will continue to get two-thirds of his judge’s salary through a disability retirement. What exactly his disability is remains a mystery, and the Judges Act does not define what is considered a permanent infirmity.
“I can’t speak to any individual case but we have some checks that are made within our office to ensure that qualified medical practitioners have spoken to the illness of a judge being permanent,” says Marc Giroux, the deputy commissioner at the Office of the Commissioner for Federal Judicial Affairs Canada.
“In those cases there is no discretion . . . the annuity has to be granted,” Giroux says, adding annuities are granted on the basis of a permanent illness “a few times a year.”
McMunagle was in the news last year after the Ontario Court of Appeal overturned his 2012 ruling for apprehension of bias. In Laver v. Swrjeski, which was a civil matter, the judge said he would have a hard time concluding that police officers lie.
“As it turned out, the application judge believed the respondent, a police officer, and accepted his explanation for disowning the document that on its face is an acknowledgement of debt to the appellant. He disbelieved the appellant, who is not a police officer,” said the appeal ruling in the case.
“Applying the test for reasonable apprehension of bias, in my view it is clear that a reasonable observer would conclude that it was more likely than not that, consciously or unconsciously, the application judge would not impartially decide whom to believe.”
Following the court of appeal’s findings, a complaint was filed to the Canadian Judicial Council against McMunagle. That complaint has since been dismissed.
The judicial council does not make public its reasons for dismissing complaints, says executive director Norman Sabourin. However, the person making the complaint is free to make public the correspondence it receives from the council, he notes.
A finding of a reasonable apprehension of bias “is not a judicial conduct matter,” Sabourin says. “These are issues to be raised in court.”
It is only when there is evidence of a “pattern” of bias that it may be considered bad faith or incompetence, that it may reach the level of misconduct, Sabourin explains. The focus of the complaint against McMunagle was not about bias, but the council determined it was “not founded.”
In 2012, the Ontario Divisional Court concluded there was a breach of natural justice in the way McMunagle presided over a family law proceeding. The judge spoke in a way that “crossed the boundary of appropriate judicial comment” and unfairly used his “mantle of authority” to pressure a self-represented party to agree to a support order, the Divisional Court ruled. l
The court also said the judge drew from his own opinions of Iran to make inappropriate references to the litigant’s culture, “belittled and criticized” him, and denied him procedural fairness.
In that case, the judge had told a litigant his Iranian marriage contract was “not worth the paper it’s written on” and refused to give any weight to the document.
With files from Shannon Kari