Federal Court dismisses complaint for removal of Tax Court judge

Judge allegedly interfered with hiring process at University of Toronto Faculty of Law

Federal Court dismisses complaint for removal of Tax Court judge

The Federal Court has affirmed the dismissal of a complaint to remove a Tax Court judge after he allegedly interfered with the hiring process at the University of Toronto Faculty of Law.

In National Council of Canadian Muslims v. Canada (Attorney General), 2022 FC 1087, various individuals and organizations challenged the refusal of the Canadian Judicial Council (CJC) to establish an inquiry committee that would determine the propriety of removing from office Justice David Spiro of the Tax Court of Canada. The complaints alleged that Justice Spiro interfered in an appointment process at the University of Toronto (U of T) Faculty of Law regarding the possible appointment of Dr. Valentina Azarova as Director of the International Human Rights Program (IHRP) in 2020.

The Centre of Israel and Jewish Affairs (CIJA) received concerns regarding the appointment of Dr. Azarova, claiming that she was an “anti-Israel academic crusader” whose scholarship “is almost entirely focused on promoting Palestinian narrative, the Israel ‘apartheid’ theme, war crimes, etc.” The CIJA relayed the information to Justice Spiro, who was a former Director of the CIJA and alumnus of the U of T Faculty of Law. Justice Spiro, in turn, spoke by phone with an officer at U of T.

The Federal Court found that although the U of T’s process for the appointment of the Director was supposed to be confidential, it became known that Dr. Azarova was a candidate and it became known, particularly among some academics, that Dr. Azarova would not be appointed. Media reports followed, reporting allegations of judicial interference in the IHRP search process. Several groups and individuals filed complaints with the CJC.

CJC’s review procedure

In accordance with the CJC’s review procedure, the matter was referred to the Vice-Chair of the Judicial Conduct Committee who had “concerns significant enough to require the establishment of a Judicial Conduct Review Panel.” The Vice-Chair expressed the view that “Justice Spiro’s conduct puts at risk public confidence in the integrity, impartiality and independence of the judiciary.”

The matter was forwarded to the Review Panel in accordance with CJC’s by-laws. The Review Panel’s task was to determine whether an Inquiry Committee should be constituted to inquire into Justice Spiro’s conduct. Under the CJC’s by laws, the panel may do so “only if it determines that the matter might be serious enough to warrant the removal of the judge.”

The Review Panel concluded that further remedial action was not required. The matter was remitted back to the Vice-Chair who issued a formal expression of concern to Justice Spiro and the complaints were subsequently closed.

No manifest impartiality

The case was brought to the Federal Court, where the complainants primarily raised the issue of whether the CJC’s ultimate decision to close the complaints, without constituting an Inquiry Committee and with a formal expression of concern but no further remedial action, was reasonable.

The court referred to the established legal test for a recommendation that a judge be removed from office, which was whether the conduct for which the judge was blamed was so manifestly and totally contrary to the impartiality, integrity and independence of the judiciary that the confidence of individuals appearing before the judge, or of the public in its justice system, would be undermined, rendering the judge incapable of performing the duties of their office.

The court agreed with the Review Panel that while Justice Spiro made a serious mistake, he had not committed misconduct justifying the constitution of an Inquiry Committee. The court considered Justice Spiro’s acknowledgment of his conduct, early expression of remorse, and the letters of support attesting to his reputation and integrity over the course of his career.

Further, the court found that the Review Panel also addressed whether Justice Spiro’s conduct was, as alleged by the applicants, actively aiding a lobby group attempting to prevent the appointment of a person whose views were at odds with those of the lobby group. The Review Panel found that this aspect of the complaint was based on a misapprehension of the facts, which was supported by the information on the record before the panel. In the end, the federal court concluded that the CJC panel’s decision showed a rational chain of analysis leading to the reasonable conclusion that the establishment of an Inquiry Committee was not warranted by the circumstances of the case.

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