Writing in the court’s endorsement of Superior Court Justice Kevin Whitaker’s November 2011 order, Court of Appeal Associate Chief Justice Dennis O’Connor determined the current reappointment process for Ontario’s more than 400 deputy judges does not violate the principles of judicial independence and complies with the principle of security of tenure.
“We agree with the application judge that having regard to the nature of the jurisdiction of the Small Claims Court and the presumption that a regional senior judge will act in the best interest of the administration of justice, that a reasonable and well-informed observer would conclude that the deputy judges and the Ontario Small Claims Court are sufficiently independent so as to satisfy constitutional requirements,” wrote O’Connor in the court’s endorsement.
The Ontario Court of Appeal heard oral arguments from the association and the attorney general in Toronto on June 18. O’Connor and justices Marc Rosenberg and Janet Simmons presided.
The Ontario Deputy Judges’ Association had argued the reappointment process undermined the institutional independence of the Small Claims Court in a way that a reasonable person, fully informed, would not consider it to be independent.The attorney general argued that the courts had consistently ruled its judicial members could be trusted and independence was not an issue.
As of last year, there were more than 400 deputy judges across 90 locations in Ontario. More than 80 per cent of sitting deputy judges have served more than one term and have been reappointed.
The regional senior judge, having the approval of the attorney general, appoints each deputy judge initially. However, the regional senior judges control the reappointment process thereafter and don’t have to provide reasons as to why they reappoint a deputy judge.