Page: 68
Contrary to the Applicants’ submissions, I do not regard Taylor as establishing a
principle that complainants are entitled to disclosure of the information considered by the CJC or
that they are owed a higher level of procedural rights than set out in the By-laws and Review
Procedures or as supported by the application of the Baker factors. Taylor supports the view that
complainants should not be denied procedural fairness, which is not disputed. The issue is the
scope or level of the duty. As noted, complainants have some procedural rights, but not to the
same extent as the judge who is the subject of the complaint.
In Slansky, the Federal Court of Appeal considered whether the CJC should have
disclosed a report of an investigator retained by the CJC to the complainant. In addressing the
reasons for non-disclosure, Justice Mainville, in concurring reasons, explained the distinction
between the procedural rights of the judge and those of the complainant, at paras 164–65:
Confidentiality is somewhat limited vis-à-vis a judge who is the
subject of the inquiry and who is directly affected by its outcome.
The judge is entitled to notice of the subject-matter of the
investigation, and he must be provided sufficient information about
the material evidence gathered: Judges Act, s. 64 and Complaints
Procedures of the Council at section 7.2. In investigating a
complaint against a judge, the Council is in effect determining
whether the judge’s conduct could amount to an abuse that merits a
further inquiry to determine whether the judge should be removed
from office. Since the rights of the judge may be directly and
substantially affected by the ultimate outcome, the Council owes
the judge a high duty of procedural fairness throughout the process
so as to afford the judge an effective opportunity to respond.
However, since the complainant’s only legal right is to make a
complaint, the content of any duty of fairness that the Council may
owe to the complainant in dismissing the complaint is at the low
end of the spectrum: Taylor v. Canada (Attorney General), 2001
FCT 1247, [2002] 3 F.C. 91 at paras. 50 to 52; Hon. Lori Douglas
v. Canada (Attorney General), 2013 FC 451 at paras. 20 to 22; see
by analogy Jacko v. Ontario (Chief Coroner) 2008, 247 O.A.C.
318, 306 D.L.R. (4th) 126 at para. 18. The limited duty of
disclosure owed under the Council’s Complaints Procedures is