Retired Ontario judge puts inquiry behind him
Joins Toronto insolvency firm, dispute centre
• Retired Ontario Superior Court Justice Frank Newbould, previously the subject of a Canadian Judicial Council inquiry arising from his public statements about a proposed land claim settlement with the Saugeen First Nation, has joined insolvency and restructuring boutique Thornton Grout Finnigan LLP as counsel and dispute resolution centre Arbitration Place as a mediator.
“I’m really looking forward to what I’ve decided to do,” Newbould said. “What happened at the CJC has had no effect on my plans going forward.”
It took less than two weeks from Newbould’s retirement on June 1 for the former judge to find new
D. J. Miller, a partner at Toronto- based Thornton Grout, said that the CJC proceedings were “irrelevant” in recruiting Newbould.
“Of course, we respect the process, but is has had no impact whatsoever on the view of counsel or anyone who dealt with him while he was on the bench, and it will have zero impact on anyone who deals with him, or with us or with Arbitration Place,” she said.
“The CJC matter was a very personal one and unrelated to Frank’s judicial role. His track record, including his reputation for integrity, speak for themselves.”
Miller said Newbould’s reputation as “bold, innovative and creative” makes him a “perfect fit” with Thornton Grout. “He is a tremendous strategic and tactical resource from various perspectives, including his influence as a mentor to the younger lawyers in our firm.”
Kimberley Stewart, CEO of Arbitration Place, said that “counsel and parties considering arbitration will benefit from decades of experience resolving disputes fairly and efficiently.”
The CJC inquiry, authorized in mid- February, was rendered moot by Newbould’s retirement on June 1 because the CJC’s mandate is limited to considering whether or not a judge should be removed from the bench.
But Newbould announced his decision to retire at age 73 in January, more than a month before the CJC authorized the inquiry. “I decided two or three years ago that I wouldn’t stay on until mandatory retirement kicked in at 75,” he said. “I certainly didn’t do it because I had to.”
“I got so much support from the profession and the judiciary at all levels, including trial judges, Court of Appeal judges, and judges from the Supreme Court of Canada,” Newbould said. “So I don’t think what transpired is going to hurt me at all going forward. In fact, some people have suggested that it may help because so many lawyers want to express their support.”
Indeed, Justice Susan Himel, president of the Association of Superior Court Judges, who opposed suggestions that Newbould’s hearing be expedited, called him “one of Ontario’s most outstanding jurists” who “has been a giant in the area of commercial law” and should be “allowed to retire with dignity.”
There’s little doubt that Newbould didn’t expect the disruption toward the end of his career, which most famously included presiding over the landmark cross-border trial over the disposition of Nortel’s assets.
“I thought the controversy was all behind me when the CJC dismissed the original seven complaints in 2014,” Newbould said. “But when the complainant came back and asked for reconsideration, the whole thing took on legs of its own.”
The CJC inquiry resulted from Newbould’s personal opposition to a proposed land claims settlement involving Saugeen First Nation. Newbould’s family has owned a cottage at Sauble Beach on Lake Huron not far from the land at issue. In August, 2014, former SCC Justice Ian Binnie (now also an arbitrator at Arbitration Place) engineered a settlement.
Newbould opposed the settlement at a public meeting and later wrote a sevenpage “personal” letter that urged the municipality to reject the deal. He later apologized for his “error” in sending the letter and participating in the public meeting, despite the CJC’s original dismissal of the complaints.
Lawyers say it’s not at all clear whether Newbould’s legitimate private interest in the land claim justified his intervention, or at least mitigated his blameworthiness, if any.
The Indigenous Bar Association complained to the CJC. Nova Scotia Chief Justice Michael MacDonald, chair of the CJC’s Judicial Conduct Committee, effectively rejected the complaint by closing the file. But MacDonald also advised Newbould of his concerns about his conduct.
Six months later, the IBA requested reconsideration of MacDonald’s decision to take no further action. MacDonald deferred the reconsideration to the next most senior judge on the JCC, Quebec Superior Court Senior Associate Chief Justice Robert Pidgeon, who forwarded the matter to a Review Panel to determine whether an inquiry should proceed.
The panel found that the allegations surrounding Newbould’s i ntervention were serious enough that if proven, “they may warrant the judge’s removal from office.” The panel ordered an inquiry, despite Newbould’s argument that there was no jurisdiction for the CJC to consider a closed matter.
Newbould’s lawyer, Brian Gover of Stockwoods LLP, applied for judicial review of the Review Panel’s decision and subsequently sought a stay of the inquiry until his application for judicial review was decided.
Both the Federal Court and the Federal Court of Appeal refused to stay the inquiry. But as it turns out, the inquiry is not proceeding, and Newbould’s reputation appears intact. But that doesn’t mean the controversy hasn’t left its mark.
“Sure, it lingers there, but the thing that bothered me most was the effect it had on my wife and children,” he said.