Judgments

Decision Information

Landreville v. The Queen

Collection	Judgments
Date	1980-04-29
Report citation	[1981] 1 F.C. 15
File numbers	T-2204-72
Subjects	Jurisdiction

Decision Content

T-2204-72

Léo A. Landreville (Plaintiff)

The Queen (Defendant)

Trial Division, Collier J.—Ottawa, October 29, 30, 31, November 1, 1979 and April 29, 1980.

Jurisdiction — Plaintiff a former Superior Court Judge who resigned on grounds of permanent infirmity, applied for a declaration as to entitlement to a pension or annuity pursuant to s. 23 of the Judges Act — Whether the Governor in Council had the duty, in law, to carry out the necessary steps to grant or refuse the plaintiff a pension — Judges Act, R.S.C. 1952, c. 159, s. 23 as amended by S.C. 1960, c. 46, s. 3 — The British North America Act, 1867, 30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix II, No. 51, ss. 11, 13, 99(1), 100 — Interpreta tion Act, R.S.C. 1952, c. 158, s. 35(7),(8) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 41.

The plaintiff who was appointed a judge of the Supreme Court of Ontario effective October 10, 1956, resigned that office effective June 30, 1967, on the grounds of permanent infirmity, pursuant to paragraph 23(1)(c) of the Judges Act. In the present action, plaintiff seeks a declaration that he is entitled to a pension or annuity based on the provisions of section 23 of the Judges Act in effect at the time of his resignation; alternatively that the Governor in Council be directed by the Court to hear and determine his application for a pension made in June of 1967. The plaintiff submits that when acting under paragraph 23(1)(c), the Governor in Coun cil performs a judicial function; that in this case, there has never been a disposition by the Governor in Council of the plaintiffs request for a pension and that nothing indicates the request was ever brought before the Governor in Council or that any steps were taken to bring it there. The question is whether the Governor in Council was obliged, in law, to carry out the necessary steps to grant or refuse the plaintiff a pension.

Held, the plaintiff is entitled to a declaration directing the Governor in Council to consider and decide whether the plain tiff had on the effective date of his resignation a permanent disabling infirmity. The Governor in Council had the duty to act on the plaintiffs application. The Privy Councillors were required to give advice on the evidence submitted. If the decision or advice was "no", the Governor in Council should have acted, probably by order in council, refusing the applica tion. If the decision was "yes", then a pension was mandatory. The principle that enabling words are always compulsory where they are words to effectuate a legal right can be applied to the Governor in Council acting pursuant to section 23. In that section, the word "may" must be read as "shall"; otherwise, the accepted theory of the independence of the judiciary is trans gressed. If the true construction of section 23 is that the Governor in Council has a discretion, as plaintiff submits in his alternative argument, the conclusion would still, on the facts of this case, be the same. Parliament must have conferred such a

discretion with the intention that it should be used to promote the policy and objects of a statute: these must be determined by construing the statute as a whole and construction is always a matter of law for the court. Finally, plaintiffs submission that the Governor in Council should be directed to grant him a pension cannot be acceded to. To give effect to this submission would be to tell the Governor in Council how the question for determination must be decided.

Toronto Corp. v. York Corp. [1938] A.C. 415, considered. Labour Relations Board of Saskatchewan v. The Queen [1956] S.C.R. 82, applied. Drysdale v. The Dominion Coal Co. (1904) 34 S.C.R. 328, applied. Canadian Pacific Railway v. The Province of Alberta [1950] S.C.R. 25, applied. Padfield v. Minister of Agriculture, Fisheries and Food [1968] A.C. 997, applied. Re Multi-Malls Inc. v. Minister of Transportation and Communications (1977) 14 O.R. (2d) 49, applied. Re Doctors Hospital v. Minister of Health (1976) 12 O.R. (2d) 164, applied. Julius v. Lord Bishop of Oxford (1879-80) 5 App. Cas. 214, referred to.

ACTION for declaratory judgment. COUNSEL:

Gordon F. Henderson, Q.C. and Y. A. George Hynna for plaintiff.

J. A. Scollin, Q.C. and L. S. Holland for defendant.

SOLICITORS:

Gowling & Henderson, Ottawa, for plaintiff.

Deputy Attorney General of Canada for defendant.

The following are the reasons for judgment rendered in English by

COLLIER J.: This action is, in some ways, relat ed to an earlier suit by the plaintiff against the defendant. That suit was heard and determined by me. The earlier decision is reported at [1977] 2 F.C. 726. No appeal was taken by either side.

The plaintiff was appointed a judge of the Supreme Court of Ontario effective October 10, 1956. He resigned that office effective June 30, 1967. His length of service as a judge was just under eleven years. Counsel for the defendant made it very clear there was no criticism of the

plaintiff as to his competence, demeanour or industry in the carrying out of his judicial duties.

In the present suit, the plaintiff seeks a declara tion he is entitled to a pension or annuity based on the provisions of the Judges Act in effect at the time of his resignation. Alternative declarations are asked for. I shall later refer to the relief sought.

Section 23 of the Judges Act,' at the relevant time, was as follows:

23. (1) The Governor in Council may grant to

(a) a judge who has continued in judicial office for at least fifteen years and has attained the age of seventy years, if he resigns his office,

(b) a judge who has continued in judicial office for at least fifteen years, if he resigns his office and in the opinion of the Governor in Council the resignation is conducive to the better administration of justice or is in the national interest,

(c) a judge who has become afflicted with some permanent infirmity disabling him from the due execution of his office, if he resigns his office or by reason of such infirmity is removed from office, or

(d) a judge who ceases to hold office by reason of his having attained the age of seventy-five years, if he has held judicial office for at least ten years or if he held judicial office on the day this section came into force,

an annuity not exceeding two-thirds of the salary annexed to the office held by him at the time of his resignation, removal or ceasing to hold office, as the case may be.

(2) An annuity granted to a judge under this section shall commence on the day of his resignation, removal or ceasing to hold office and shall continue during his natural life.

(3) In this section "judicial office" means the office of a judge of a superior or county court, and includes the office of a judge of the Supreme Court of Newfoundland prior to the 1st day of April, 1949, and a District Judge in Admiralty of the Exchequer Court of Canada.

The plaintiff says he resigned his office because he had become afflicted with a permanent infirmi ty disabling him from the due execution of his office (paragraph 23(1)(c)). His case is that the Governor in Council ought to have granted him a

' R.S.C. 1952, c. 159, as amended by S.C. 1960, c. 46, s. 3. Subsection 23(1) above is substantially the same today. See R.S.C. 1970, c. J-1. Since 1970, certain amendments have been made to the age of retirement, and to the minimum resignation age.

pension, or alternatively, ought to be directed to consider his application for a pension.

In the plaintiff's earlier action there was no viva voce evidence, other than some very brief excerpts from examination for discovery. But there was an agreed statement of facts. That statement of facts set out a number of documents, all of which went in as exhibits. The facts set out in my earlier decision were obtained from those documents. At the present hearing, the agreed statement of facts, including the documents I have just referred to, became, by consent, evidence at this trial (Ex. 47).

At this stage, I make this statement. The facts as found by me in the earlier decision will become facts, found by me, in this case. I therefore append to these reasons, as Schedule A, the factual por tions of my earlier decision.

In this action the plaintiff himself testified. He called one other witness, Pierre Henri Bourque. In my recital of the facts in this action, I shall not therefore, in the interest of brevity, repeat all the facts set out in Schedule A. But for clarity it will be necessary to repeat some of them. I shall also, of necessity, incorporate additional and new facts put in evidence before me at the trial of this action.

The plaintiff is now almost seventy years old. He practises, as an employed lawyer, with a legal firm in Ottawa. He is paid a small salary and commission.

He was born in Ottawa. In 1933 he graduated with a B.A. from the University of Ottawa. He completed his legal education at Dalhousie Univer sity in 1937. He married in 1939. In 1937, he commenced his legal career in Sudbury, Ontario. He practised there until his appointment to the bench. As well as carrying on his substantial legal practice, he held a number of public offices in Sudbury. In 1955 he was elected mayor.

While he was mayor, the Sudbury Council approved a franchise to Northern Ontario Natural Gas Limited ("NONG") to distribute natural gas

to Sudbury by laterals and distributing pipe sys tems. The main system or trunk line was that of TransCanada PipeLine Company. One Ralph K. Farris was, at all relevant times, the president of NONG. The plaintiff became friendly with him. The plaintiff, and the mayors of three other com munities, were given an option to purchase 10,000 shares in NONG, at a price of $2.50 per share. The letter to the plaintiff setting out that option was dated July 20, 1956. On July 30, 1956 the plaintiff indicated he intended, eventually, to exer cise the option.

As earlier related, the plaintiff was appointed to the bench effective October 10, 1956. In February of 1957 he was allotted, or sent, 7,500 shares. At that time they were trading for approximately $10; 2,500 of the 10,000 shares had been sold at that price to pay for the total number.

The details of the matters relating to the acqui sition of the NONG shares are set out in Schedule A at pages 72-75 [pages 748-752 of the earlier reasons for judgment].

In 1958 the Ontario Securities Commission directed an investigation into the trading in shares of NONG over a certain period. Farris gave evi dence before the Securities Commission. In 1962, on the basis of certain information supplied by the Attorney General for British Columbia, another investigation, or perhaps a further investigation, was directed. At that time the plaintiff's acquisi tion of the 10,000 shares was inquired into. The plaintiff gave evidence before the Securities Com mission as to how he had acquired the shares.

In 1963 a perjury charge was laid against Farris. It arose out of some of the testimony, in respect of the shares acquired by the plaintiff and others, he had given the Securities Commission. Farris' preliminary hearing was in 1963. There was a grand jury hearing either in that year or the next year. Farris was tried before a Supreme Court Judge and jury in 1964. He was convicted.

The plaintiff was called as a witness, and gave evidence, at all those hearings.

From 1962 onward there had been recurring insinuations and allegations, in the Provincial

Legislature and in newspapers and magazines, in respect of bribery by NONG of municipal offi cials, including the plaintiff. On June 12, 1964, the plaintiff wrote the Honourable Guy Favreau, the Minister of Justice of Canada. He referred to the insinuations. He requested the appointment of a special commissioner, and an inquiry. The Minis ter indicated he would study the matter.

Before this request was further dealt with, the Attorney General for Ontario, in August 1964, laid charges against the plaintiff. In essence, the accusation was that while he was mayor of Sud- bury, he offered or agreed to accept stock in NONG in return for his influence in seeing that NONG obtained a franchise agreement in Sud- bury. There was also a charge of conspiracy, to the same effect, with Farris. Similar charges, in respect of granting of franchises, were laid against the mayors of Orillia, Gravenhurst and Brace- bridge.

The plaintiff's preliminary hearing was in Sep- tember or October of 1964, presided over by Magistrate Albert Marck. The magistrate dis charged the accused, expressing the view a proper ly charged jury could not find him guilty.

The Attorney General for Ontario, shortly after, issued a press release in which it was stated (Ex. 169 at the Rand Commission):

The Attorney General today announced that he will not prefer a Bill of Indictment before a Grand Jury in respect of Mr. Justice Landreville. In so far as the Department of the Attorney General is concerned, the matter of the prosecution of Mr. Justice Landreville is concluded.

The next event was a report by a special com mittee of The Law Society of Upper Canada. The Society, in January of 1965, had struck a special committee to consider and report on what action, if any, should be taken by it

... as a result of Mr. Justice Landreville's decision to continue to sit as a judge of the Supreme Court of Ontario.

The report of the special committee was made on March 17, 1965. It was adopted by Convocation, with one dissent, on April 23, 1965. The Benchers deplored

... the continuance of the Honourable Mr. Justice Landreville as one of Her Majesty's Judges of the Supreme Court of Ontario.

The essential elements of that report are set out in Schedule A at page 64 [page 734 of the earlier reasons for judgment].

The plaintiff knew absolutely nothing of this special committee and its activities. He was never invited to appear before them to answer the mat ters which the committee considered "unexplained, and upon which your committee can only speculate".

On April 30, 1965, the plaintiff wrote to the Minister of Justice in connection with this report. Some question had apparently been raised about it in the House of Commons. On May 7, 1965, he telegraphed the Minister of Justice withdrawing his previous request for an inquiry. He followed that up with a letter commenting on the Law Society's report. He went on, in part, as follows (Schedule A, pages 65-66 [pages 735-736 of the earlier reasons for judgment]):

Am I being attacked as a Judge? If so, of what unbecoming conduct?

What am I accused of specifically? I have no intention of dealing with the facts. As you are well aware, I have on more than one occasion and particularly immediately after my acquittal requested that a Public Enquiry be held to vindicate my name on all possible grounds. I attach a copy of your letter and a news item. I strongly feel I have done all possible including keeping dignified silence in the face of unfounded gossip.

I now withdraw from that position for the following reasons:

(a) The subject matter was deemed closed six months ago. I have returned to my functions. The Bar and the Public have shown usual courtesy and cooperation.

(b) An Enquiry would re-open, deal with and review facts which are strictly res judicata. The Attorney General has made such review and closed his files.

(d) Regardless of the most favourable decision, an Enquiry and proceedings with pertaining publicity, would be conclu sively detrimental and final to my reputation.

(e) I am advised by my counsel J. J. Robinette, Q.C. and others, that a judge does not come under the Enquiry Act, the Civil Servants Act or any other statute and an enquiry is illegal.

(f) I am advised that it is inimical to the interest of the Bench that I create the precedent of requesting and submit ting to an Enquiry because of the criticism of person or association.

Again, Sir, I submit the Report of the Society does not accuse me specifically of serious breach of Law or Ethics.

If so, it then becomes a question whether or not, in my sole discretion, I deem fit to invite further proceedings and publicity to vindicate my name to the mind of some people who prefer gossip to facts. To the sound person, unmoved by publicity- allergy, my past is pure and proven so to be.

Should you adhere to your previous decision and base it anew on the opinion of those who know the facts (Magistrate Marck, Mr. Justice D. Wells, the Attorney-General) the matter may be closed by your statement in the House after recital of facts.

Of course, if you are satisfied there are reasonable and prob able grounds to justify impeachment proceedings, it is your duty so to do. Those proceedings I must meet in both Houses. In the light of present events, I have no intention of resigning. During my entire career as a solicitor, a member of Boards, Commissions and Councils, as a Judge, I have conducted myself in strict conformity to the highest concept of Ethics. Of this, others may speak, others who know me.

Correspondence, telegrams, and meetings were then exchanged, or had, among the Minister of Justice, the plaintiff, and Mr. J. J. Robinette, the plaintiff's counsel. The subject was whether a formal inquiry, under the Inquiries Act, R.S.C. 1952, c. 154 (now R.S.C. 1970, c. I-13), should be held in respect of the allegations made against the plaintiff.

On January 19, 1966, the Governor in Council appointed the Honourable Ivan C. Rand, a retired judge of the Supreme Court of Canada, a Com missioner under Part I of the Inquiries Act. Let ters Patent were issued March 2, 1966. His terms of reference were: 2

(a) to inquire into the dealings of the Honourable Mr. Justice Leo A. Landreville with Northern Ontario Natural Gas Limited or any of its officers, employees or representa tives, or in the shares of the said Company; and,

(b) to advise whether, in the opinion of the Commissioner,

(i) anything done by Mr. Justice Landreville in the course of such dealings constituted misbehaviour in his official capacity as a Judge of the Supreme Court of Ontario, or

(ii) whether the Honourable Mr. Justice Landreville has by such dealings proved himself unfit for the proper exer cise of his judicial duties.

The facts leading up to the appointment of the Commissioner are set out in some detail in

2 Schedule A, p. 61 [p. 728 of the earlier reasons for judgment].

Schedule A, pages 64-70 [pages 734-741 of the earlier reasons for judgment].

There were eleven days-of hearings by the Com missioner in various Canadian cities in March and April 1966. The plaintiff was represented by Mr. Robinette: The plaintiff attended the hearings, gave evidence on his own behalf, and was cross-examined.

The Commissioner issued a report dated August 11, 1966. It was not made public until tabled in the House of Commons on August 29 of that year. In the first 68 pages of the report the Commission er reviewed the history of pipe line development, the involvement of the city of Sudbury and the plaintiff, and the latter's dealings with NONG. In respect of those dealings and the receipt of the shares, he canvassed in detail the evidence the plaintiff had given before the Ontario Securities Commission, the Farris preliminary hearing and the Farris trial, as well as the evidence given by the plaintiff at the Commission.

The Commissioner characterized the NONG shares as a gift. He did not accept the contention that the plaintiff had been given an option, if not legally enforceable, perhaps morally enforceable. The Commissioner said, in respect of the criminal charge which had been laid against the plaintiff, the following: 3

Arising out of the distribution of the 14,000 shares, prosecu tions were launched against the mayors of four municipalities by which franchises had been granted: Sudbury, Orillia, Gra- venhurst and Bracebridge. The offences charged were the same: in substance that NONG stock received by the mayors had been corruptly bargained for and that each, for the promise of reward, had used his influence to assist NONG in obtaining a franchise from his municipality. In three of them the informa tion was dismissed on the ground of insufficient evidence to justify committing the accused to trial; in the fourth, that of Orillia, the accused was acquitted in a county court jury trial. Following these, a public statement was issued by the Attorney General that in the circumstances no Bill of Indictment would be preferred by him before a Grand Jury in any of the three cases of dismissal.

3 Schedule A, p. 75 [p. 752 of the earlier reasons for judgment].

becomes obviously a matter of primary provincial interest; and in the case of Justice Landreville, it was to vindicate that as well as the general interest in municipal government, and the enforcement of the criminal law, also provincial matters, that the prosecution was brought. This formal action of the provin cial authorities creates a situation where their judgment arrived at by a consideration of all the circumstances, must be accord ed a respectful recognition by this Commission. That means that an originally corrupt agreement between Fards and Jus tice Landreville to bargain shares for influence is not to be found to be established; the presumption arises that there was no such agreement. Such a matter is a question of a state of mind; the external facts are before us; what is hidden is the accompanying understanding; and it is proper for this Commis sion to assume that the facts disclosed do not satisfy the requirements of our criminal law that that understanding, beyond a reasonable doubt, was corrupt.

This leads us first to the consideration of a conclusion from these external facts which is consistent with that assumption; and secondly, whether what took place in relation to those facts has infringed any other law or has violated an essential require ment of that standard of conduct which is to be observed by a member of the Supreme Court of a province.

To these considerations personal relations become signifi cant.

The formal conclusions of the Commissioner were as follows: 4

Drawn from the foregoing facts and considerations, the follow ing conclusions have been reached:

I—The stock transaction between Justice Landreville and Ralph K. Farris, effecting the acquisition of 7,500 shares in Northern Ontario Natural Gas Company, Limited, for which no valid consideration was given, notwithstanding the result of the preliminary inquiry into charges laid against Justice Lan- dreville, justifiably gives rise to grave suspicion of impropriety. In that situation it is the opinion of the undersigned that it was obligatory on Justice Landreville to remove that suspicion and satisfactorily to establish his innocence, which he has not done.

I I—That in the subsequent investigation into the stock transac tion before the Securities Commission of Ontario in 1962, and the direct and incidental dealing with it in the proceedings brought against Ralph K. Farris for perjury in 1963 and 1964 in which Justice Landreville was a Crown witness, the conduct of Justice Landreville in giving evidence constituted a gross contempt of these tribunals and a serious violation of his personal duty as a Justice of the Supreme Court of Ontario, which has permanently impaired his usefulness as a Judge.

Ill—That a fortiori the conduct of Justice Landreville, from the effective dealing, in the spring of 1956, with the proposal of a franchise for supplying natural gas to the City of Sudbury to the completion of the share transaction in February 1957, including the proceedings in 1962, 1963 and 1964, mentioned, treated as a single body of action, the concluding portion of

4 Schedule A, p. 76 [pp. 753-754 of the earlier reasons for judgment].

which, trailing odours of scandal arising from its initiation and consummated while he was a Judge of the Supreme Court of Ontario, drawing upon himself the onus of establishing satisfac torily his innocence, which he has failed to do, was a dereliction of both his duty as a public official and his personal duty as a Judge, a breach of that standard of conduct obligatory upon him, which has permanently impaired his usefulness as a Judge.

In all three respects, Justice Landreville has proven himself unfit for the proper exercise of his judicial functions.

The next step, in this lengthy history, was the appointment, in late 1966, of a special Joint Com mittee of the Senate and House of Commons. Its

purpose was: 5

... to enquire into and report upon the expediency of present ing an address to His Excellency praying for the removal of Mr. Justice Leo Landreville from the Supreme Court of Ontario, in view of the facts, considerations and conclusions contained in the report of the Honourable Ivan C. Rand ....

The joint Chairmen of the Committee were Sena tor Daniel A. Lang and Mr. Ovide Laflamme, M.P. The Committee held nineteen meetings in February and March of 1967. The plaintiff appeared as a witness. He testified at eleven of the meetings. As I understood it, he attended all the public sessions.

The material portion of the Joint Committee's second report, dated March 17, 1967, was: 6

In accordance with its terms of reference, during the course of nineteen (19) meetings, the Committee applied itself to, and carefully examined the facts, considerations and conclusions contained in the said report.

The Committee invited Mr. Justice Landreville to appear before it as a witness. He testified at eleven (11) meetings of the Committee and answered questions from Members of and Counsel to the Committee.

The report of the Honourable Ivan C. Rand states:

No question is raised of misbehaviour in the discharge of judicial duty; the inquiry goes to conduct outside that function.

The reflections of the Honourable Ivan C. Rand on Mr. Justice Landreville's character were not considered pertinent and thus played no part in the Committee's decision.

After hearing the testimony of Mr. Justice Landreville and considering the report of the Honourable Ivan C. Rand, the Committee finds that Mr. Justice Landreville has proven him

5 Schedule A, p. 61 [p. 729 of the earlier reasons for judgment].

6 Exhibit 8 at this trial. The Joint Committee's final report (identical to its second) was dated April 13, 1967.

self unfit for the proper exercise of his judicial functions and, with great regret, recommends the expediency of presenting an address to His Excellency for the removal of Mr. Justice Landreville from the Supreme Court of Ontario.

The plaintiff, on March 22, 1967, wrote the Right Honourable L. B. Pearson, then Prime Min ister of Canada. He outlined some of the history of the earlier proceedings in which he had been involved. He criticized some of the aspects of the hearing before the Joint Committee of the Senate and the House. He asked that his right "to appear at the bar of justice in the House of Commons" be recognized. In the second paragraph of that letter he said this:

At the outset I do know that my public image has been soiled by my very appearance in seven proceedings and that I may be an embarrassment. My usefulness on the Bench may be con sidered most questionable. But I have decided five years ago that to resign is an admission of guilt. On the contrary, I re-affirm my innocence. I am not allowed to retire, which I would consider.

Following the filing of the report of the Joint Committee, the record of the debates in the House of Commons (Hansard) shows the government of the day was frequently questioned as to what action, if any, it proposed to take in respect of the plaintiff. (See Exhibit 11.) On May 31, 1967, the Right Honourable P. E. Trudeau, then Minister of Justice, stated that when the Senate re-convened on June 6, it was intended a resolution, in accord ance with section 99 of The British North Ameri- ca Act, 1867, [R.S.C. 1970, Appendix II, No. 5] be presented

... for the adoption of a joint address to His Excellency the Governor General requesting the removal of Mr. Justice Leo Landreville from the office of judge of the Supreme Court of Ontario. In the event that the address is adopted in that place it will then be brought before this house for its consideration.

As I earlier recorded, the plaintiff resigned effective June 30, 1967.

The plaintiff testified before me that, prior to his resignation, his physical and mental health had been deteriorating. He had now been through seven hearings of one kind or another. Both the Rand report and that of the Joint Committee had declared him to be unfit to sit as a judge. He said that by June he was taking sedatives. He was consuming more liquor than he normally did; his

nerves were "shot"; he was emotionally disturbed. His wife's health had been affected, as had the emotional health of his children. He felt his repu tation had been destroyed; he could no longer acceptably sit in public as a judge.

The witness Bourque had known the plaintiff for many years. Bourque met him at a hotel dining room one day in early May 1967. He described the plaintiff as tired and drawn; as if he did not know whether he was "coming or going". Some discus sion took place as to whether the plaintiff should resign.

A few days later Bourque met Ovide Laflamme. As a result, a meeting was arranged between Laflamme and the plaintiff. That meeting took place on May 23, 1967, in Ottawa.

I permitted the plaintiff to relate what had transpired between himself and Laflamme. That evidence was objected to, as hearsay, by the defendant. The same objection was made to other testimony tendered by the plaintiff as to what transpired between him and the two Senators in respect of his resignation and in respect of matters occurring after his resignation. Evidence was also given as to a meeting and discussion between the plaintiff and Mr. Trudeau, and between the plain tiff and Mr. D. S. Maxwell, then Deputy Attorney General of Canada. The defendant objected to the admission, as hearsay, of a good deal of that evidence as well.

I ruled all the impugned testimony admissible: not as proof of the facts alleged to have been stated to the plaintiff by others, but, because he believed what he was told, only to show why or how he said he reacted, or took the courses of action he testified to.

The plaintiff said Laflamme pointedly asked him, in view of the Joint Committee resolution and the proposed impeachment proceedings, for his resignation. Laflamme is alleged to have said he had spoken to Mr. Trudeau. Laflamme said he could give his (Laflamme's) word the plaintiff would, if he resigned, receive a pension. Certain things that had occurred before the Joint Commit tee were discussed. There was discussion about the plaintiff's health. Laflamme pointed out, accord-

ing to the plaintiff, the plaintiff's health was deteriorating.

The plaintiff said he would pass his decision on to Bourque. He then thought it over. Subsequently he told Bourque he would not give a letter of resignation. He felt he could not, in respect of a pension, accept the word of an ordinary Member of Parliament.

The plaintiff had an old disc injury to his lower back. This caused him pain from time to time. When sitting in court he had had to take a short recess approximately every hour. The back pain was, at this point, still persisting.

By June 6, 1967 his mental and physical condi tion, he said, had been pushed to the utmost. He decided to go to Ottawa. He drove from Toronto. He was arrested for driving at 90 m.p.h. through Perth.

On that same day, and the following day, he met with two Senators—Salter A. Hayden and John Connolly. Senator Connolly was a member of the Pearson Cabinet. The plaintiff's health and his possible resignation were discussed. The plaintiff said he told them his health was poor, his back hurt, he was demoralized, his nerves were bad and his reputation had been destroyed. He was no longer a viable judge; he would resign if he got a reasonable pension based on his number of years of service. He asked what that pension might be. Neither Senator knew. Connolly left the meeting. He came back with some figures. The plaintiff recorded them (Ex. 12). His salary at that time was $28,000 per year. If he were granted a pen sion, 2/3 of salary but based on his 10 2/3 years of service instead of a full 15 years, it would amount to $13,274.07 per year.

Senator Hayden indicated the plaintiff would require medical evidence in respect of any applica tion for a pension. Obviously the group had in mind paragraph 23(1)(c) of the Judges Act.

On June 6, the plaintiff had drafted a letter of resignation. The draft made his resignation condi-

tional on being granted a pension. He was advised by the Senators that would not be acceptable.

At these same meetings, Senator Connolly expressed the opinion (according to the plaintiff) the Senate would likely adopt the Joint Committee report. It was the plaintiffs view, from these dis cussions, that the removal or impeachment address would probably succeed. He said, "My feeling was, through political expediency, I was being liquidated out of my position".'

On June 7, another letter of resignation was typed. That was done in Senator Hayden's office. It was essentially the same as the earlier draft. But the condition regarding a pension was deleted. A reference to the Rand Commission was added. The letter is as follows (Ex. 2).

Ottawa, Ontario, June 7, 1967

The Honourable Pierre E. Trudeau,

Minister of Justice,

Parliament Buildings,

Ottawa, Ontario.

My dear Minister,

Be advised of my consent to retire and I hereby tender my resignation as judge of the Supreme Court of Ontario effective June 30, 1967.

After five difficult years and appearing in seven hearings, my health and wealth are impaired. I cannot continue. In any event my usefulness as a judge has been destroyed by the publicity and harassment arising out of such proceedings.

During my years as a Judge of the Supreme Court of Ontario, I have fully and faithfully discharged my judicial duties. There has been no criticism of my conduct in this area and my integrity as a judge was not made an issue before Mr. Justice Rand who, on this point, says in his report:

"No question is raised of misbehavior in the discharge of judicial duty; the inquiry goes to conduct outside that function".

In my personal life, as mayor, solicitor or citizen, I repeat emphatically and reaffirm my innocence of any wrong doing in law or ethics. But 1 cannot remove unfounded suspicions.

The words quoted come from my notes, not from a report er's transcript.

My gratitude goes to the people of Sudbury who have shown continued confidence and persistence in defending me.

Yours truly,

The Minister of Justice replied on June 9, 1967, stating the resignation had been accepted.

In cross-examination, it was suggested to the plaintiff the real reason for his resignation was a desire to avoid the debate in the House and the Senate, and appearing there. The plaintiff denied that suggestion.

After his trip to Ottawa on June 6 and 7, the plaintiff returned to Toronto.

On June 14 he saw a specialist in internal medicine, a Dr. Lenczner. The doctor's report is as follows:

—To Whom It May Concern.—

Re: Mr. Justice Leo Landreville

born 23d. February 1910

10 Benvenuto Place Toronto Ontario

The above patient was examined by me on June 14th. 1967. His main complaint was a gradually increasing pain in his back, radiating to both lower limbs, worse on sitting for any length of time and on change of position. The above symptoms increased in intensity over the last three months.

On examination: The patient was in visible distress. There was considerable muscle spasm in the paravertebral muscle. The knee jerks were absent. The right ankle jerk was weak, the left was absent. Straight leg raising was possible rt. side to 40° left leg to 35°. A diagnosis of Disc Disease L3/L4 and L5/S1 and ostheoarthritis was made.

Arrangements for X-Ray studies at the Toronto General Hos pital were made and reports of the same are attached. The physical and X-Ray findings explain the patient's complaints and the progressive nature of the same.

On June 21, 1967, he saw Dr. A. M. Doyle, a psychiatrist. I set out that report in full:

TO WHOM IT MAY CONCERN:

Re: Mr. Justice Leo Landreville—age 57 10 Benvenuto Place, Toronto, Ontario.

1 examined this man in psychiatric consultation on June 21st, 1967. 1 am well aware of the vicissitudes suffered by this man from the time that as a Mayor of Sudbury he accepted a purchase of NONG stock. He was prosecuted in 1964 along with three other Mayors by the Attorney General's Depart ment, with much publicity throughout Canada, and the Magis-

trate at that time said there was not a tittle of evidence of misdemeanour.

Also I am aware that the Law Society of Ontario deplored his continuance on the bench. The Law Society also sent a report to the Minister of Justice to this effect. Subsequently, he was in court with some seven hearings in the past five years, with his lawyer he had to attend hearings in Vancouver, Sudbury, Ottawa and Toronto where he feels that his character and reputation was demoralized by the Commission's statements.

The Joint Committee of the House sat in February and he spent seven sittings with cross-examination by many members of the House and Senate. Finally in a state of depression and anxiety he resigned his position on June 9th, 1967. All the above I mention simply to indicate that I have some knowledge of the events that have distressed Mr. Justice Landreville over the past five years. More important of course, is his medical condition at this date.

He has become increasingly depressed for many reasons. He finds his reputation demoralized. He is unable to make fit judgments, even for family affairs. He feels quite inadequate to resume the practice of law because although he has lived thirty years in the practice of law, and twenty-five years in public life, and previously without his character being attacked, he now feels that wherever he would go he would feel unable to exercise the objectivity that he feels is necessary in the practice of law or on the bench. His family have suffered much. His wife is in a state of anxiety, and his son who is at University decided to give up his intentions of proceeding in law because his name would make it difficult for him to pursue this profession. Mr. Landreville himself is in a state of deep emo tional distress and depression. He has no idea about his future activity. He feels that he could not go near a courtroom. He feels that neither he nor his wife can appear in public without a feeling of degradation by the public opinion that has resulted from his many legal hearings, and press comments that have been derogatory to his character. His depression has really been quite severe, and he has contemplated self-destruction on many occasions. Recently he has been arrested for driving ninety miles an hour on Highway #7 near Peterboro. At this time he was driving, clutching the wheel, and even then contemplating self-destruction. I understand he has never had any previous violations for his driving, but it must be remembered that this happened when he was driving to Ottawa to give his resignation.

This man is suffering from severe depressive reaction with considerable anxiety, obviously precipitated by the events of the past five years, particularly his complete frustration resulting in his decision to resign his judgeship.

Until today I had never known Justice Landreville personally, except in 1946 when I examined an accused person whom he was defending, and subsequently a few years ago, the case I cannot remember, when he was the presiding judge at a Supreme Court hearing. My examination today represents a striking difference from the lawyer and judge composed with interest, understanding and continued judgment, compared to the depressed, emotionally disturbed patient that I see today.

He is indeed not fit to continue on the bench, even if this were considered at this time.

Yours sincerely,

Arthur M. Doyle, M.D. Associate Professor, Psychiatry and Medicine, University of Toronto.

The plaintiff had obtained a letter, as well, from his personal physician in Sudbury. That doctor had known him for over ten years and had treated him a few times. He had last seen the plaintiff, for removal of a benign tumor, on May 17, 1967. Again I set out, in full, that report:

TO WHOM IT MAY CONCERN

Re: Mr. Justice Leo Landreville

Dear Sir:

I have been acquainted with Mr. Justice Landreville for over

ten (10) years.

I have treated him on a few occasions; once I removed a benign Tumor on his left cheek, and on May 17 of this year I removed a benign Tumor, which was a Seborrheic Keratosis, on the left side of his back.

Mr. Justice Landreville reported that the incision became infected.

During the interview preceeding [sic] the surgical removal of the lesion I noticed that Mr. Justice Landreville had lost weight.

In questionning [sic] him I found him to be very nervous.

I was aware of the great strain he had been under during the past five (5) years, but I did not realize that his health was undermined to such an extent.

Mr. Justice Landreville stated he has grown more and more nervous lately, and I believe he is at present in a state of Anxiety Neurosis, impairing his judgement.

Mr. Justice Landreville stated that he is irritable, that he lacks sleep, and he is taking tranquilizers and occasionnal [sic] sleeping pills.

As a result of this, he became a chain smoker and as a direct consequence he is developping [sic] a bronchial condition, characterized by coughing and raising large amount of sputum, particularly in the morning.

If that goes on, he may develop bronchiectasis.

I believe Mr. Justice Landreville is on the verge of a nervous breakdown.

The condition of Anxiety Neurosis may continue for quite some time unless Mr. Justice Landreville has a very long and complete rest.

R. Hippolyte, M.D.

On June 23, 1967, the plaintiff wrote the Minis ter of Justice. He enclosed the reports of Dr. Lenczner and Dr. Doyle. He applied for a pension on the grounds of permanent infirmity. The letter is as follows:

The Hon. Pierre E. Trudeau Minister of Justice and

To the Governor in Council

Parliament Buildings, OTTAWA, Ont.

Sirs:

I beg leave to refer to my letter of resignation dated June 7th and your letter of June 9th, 1967.

Kindly consider this as my request and application for a pension on the grounds of permanent infirmity.

A few years ago, arising from a crash in a plane piloted by me, I suffered injury in the lombar [sic] area. It was diagnosed as disc damage. Over the years, the pain was recurrent but never so severe as to require hospitalization. As Court officials know, I regularly rose from the Bench every hour or so for a short recess to relieve the condition. Sitting for longer periods of time brought discomfort and pain. This condition has gradu ally become worse.

As a result of the continued back condition with increased intensity of the pain, I was obliged to consult Dr. M. Lenczner, well known internist and associate professor with the clinical department of the University of Toronto. His Report is hereto attached with that of Dr. D. E. Sanders, associate professor of radiology attached to the Toronto General Hospital.

Dr. Lenczner diagnoses my condition as disc damage and says "a diagnosis of disc disease L3/L4 & L5 and ostheoarthri- tis" is made.

The Report of Dr. Sanders interprets the X-rays taken at the request of Dr. Lenczner. You will note the findings of degenarative [sic] disc change which confirm the diagnosis of Dr. Lenczner. This infirmity, I am advised, is permanent and makes physically impossible the performance of my judicial duties.

The Report of Dr. A. M. Doyle, professor and practitioner of psychiatry and medicine is attached. I have been frank and thorough with Dr. Doyle. I would ask that from line 6 at page 2 and following for some lines be treated as confidential. The Report points to my state of deep emotional distress and depression arising out of the events and pressures of the last five (5) years and my inability at this time to be objective, which is so essential in the performance of my duties.

He stated I was arrested for speeding. I was given a speeding ticket, the first traffic infraction of my life.

My condition is understandable involving the destruction of my public image, honour and the end of a profession after thirty years in it and in public life.

There is a resolution of the Law Society against an ex-judge practising as a barrister. I take no issue but in any event I could never appear before a tribunal nor ever intend to practice as notary, solicitor or barrister.

Lastly, may I refer to my letter of resignation which in part is as follows:

"No question is raised of misbehaviour in the discharge of judicial duty".

I have served since October, 1956 without missing one Court assignment.

I may give conclusive evidence of the need of myself and family for such pension.

Submitted for your earliest consideration,

He did not include the letter from Dr. Hip- polyte. He said it was, in his opinion, unsatisfacto ry.

I digress slightly. Following the plaintiff's resig nation, the subject of a pension for the plaintiff was raised several times in the House of Commons by Opposition members. (See Ex. 11.) The views expressed, sometimes vehement, were that the gov ernment should not grant any pension.

The plaintiff did not receive an immediate acknowledgment or reply to his letter of June 23. On September 12, 1967 he wrote again to the Minister, asking that early consideration be given to his pension request. The Minister replied on September 14. My free translation from the French is as follows:

[TRANSLATION] I acknowledge receipt of your letter of September 12 and the enclosures and I regret that I apparently have not acknowledged receipt of your letter of June 23.

I wish to assure you that your request for a pension or annuity will be considered by the government. You will, how ever, appreciate that I am not in a position, at this moment, to tell you if your request has any chance of being granted.

I shall write to you again on this matter at the appropriate time.

After that reply, the plaintiff was in touch with Senators Connolly and Hayden. He was anxious for a decision. He was told the political climate was not the best. On November 21 he had an interview with the Minister of Justice, Mr. Tru- deau. He made notes of that meeting. (See Ex. 15.) On February 9, 1968 he met with Senator Connolly in Ottawa. The plaintiff was pressing for a decision and, of course, a favourable one.

On March 4, 1968 he wrote a lengthy letter to the Minister of Justice. I set it out in full:

The Honourable P. E. Trudeau,

Minister of Justice,

Parliament Buildings,

Ottawa, Ontario.

My Dear Minister:

Allow me to remind you of my application made in June 1967 for a pension. Medical reports and the certificate of the Radiologist of Toronto General Hospital were attached.

In September I inquired and you acknowledged receiving same. You assured me it would be studied and an answer be given at an opportune time. As of this date no answer has been received. Surely after eight months no one will accuse me of impatience. For the last three weeks I have been waiting in Ottawa hoping that my spokesmen would succeed in urging settlement of the question. May I beg you to place this matter before the Cabinet at the earliest expedient time in your opinion but before the House prorogues or adjourns. I know you will do so impartially and trust the Cabinet will use its discretion judicially.

I am told that by virtue of Section 23 of the Judges Act the authority to allow or refuse my request rests with the Cabinet. I am further aware of the pressures of your duties at this time which may lead to an oversight of this question of vital importance to me. For these reasons I take leave in sending a copy of this letter to all members of the Cabinet so that any member may bring the question before the Cabinet for immedi ate decision.

You will recall that my resignation was given on grounds of health and it was accepted without qualification.

It is a matter of record that I defended myself during five years of harassment, with the publicity of six hearings in which I testified, at some $30,000.00 in costs, and impairment of my health. Notwithstanding my ill health I was prepared to appear before the Senate, and even if vindicated, I would have then resigned and applied for my pension on that ground.

However, I was prevailed upon to resign for reasons of health before rather than after the Senate debate on the motion, and then to apply for my pension.

You have, Sir, answered in the House that there was "no deal" made with me on the giving of my resignation. That fact is true. There was no formal quid pro quo. It remained a question of discretion for the Cabinet.

However, there were representations clearly made to me, corroborated by facts, which should guide the Cabinet in the exercise of its discretion.

On May 23, 1967, I agreed to an interview with Mr. Ovide Laflamme, M.P. who had been Co-Chairman of the Joint Committee. In the presence of a mutual friend, and it was not in confidence, he proposed that I tender my resignation. It was reported to him that my health impaired me for future duties. No one had ever denied my many years of efficient service on the Bench, and the suspicion arose from an act done prior to my appointment. I would receive a pension proportionate to my years of service. This did not require Parliament approval. Many precedents existed in cases of other judges. He said he had spoken to you, Sir, and to the Prime Minister. That would be the solution.

But, he added, because of the wording of the statute—"if he resigns"—the application for pension could not be simultaneous or be included as a condition of my resignation. Otherwise, it was unacceptable to the Government as a deal could be inferred. Such was the legal opinion given to him. He added that he would personally attend to this matter and that I should put my trust and confidence in the Cabinet to exercise its discretion justly in granting the pension at a future date.

This, Sir, is significant in view of an opinion now heard that a resignation and application for pension must be made simul taneously. In addition to the representations made to me when requested to resign, it must be noted that my letter of resigna tion for reasons of health clearly implied that an application for pension would follow. In fact I applied for my pension while I was still a judge.

My negative answer was conveyed to Mr. Laflamme the next day. I believed him but I thought it unwise to resign without some assurance from a higher level. He was a single M. P.

On June 7, 1967, I was in the office of Senator S. Hayden. His firm had been my counsel and advisors from inception. May I assure you there was nothing said nor done by him that could be considered improper or in conflict of duties.

Senator Hayden may verify these facts given to me:

1) That the procedure would be for me to resign on grounds of health. There would follow an application and the produc tion of medical certificates.

2) Senator J. J. Connolly quoted the figures given to him by your Department. Prorating down from the standard pension of $18,666.00 to 10 2/3 years of service, it would be $13,274.07, and under section 27(I)(6) my widow would receive 1/3 of said amount. I took down the figures at that time.

3) I drafted a letter of resignation. With the assistance of Senator Hayden it was corrected, and it was typed in his office. It was then given to Senator Connolly to show it to the Prime Minister and to you as Minister of Justice. I was subsequently told that the letter was in satisfactory form but would not be accepted conditionally on the granting of a pension. For that question would likely arise in the House and the granting of a pension was a discretionary matter for the Cabinet. I had to place my confidence, faith and trust in

the Prime Minister and the Minister of Justice who were sympathetic and would see that justice be done.

1 am fifty-eight years of age. After thirty years in public office, federal and municipal, I find myself without an occupa tion, without a profession (resolution of the Law Society: a retired judge cannot be a barrister), in ill-health, and without a pension. As to my assets, your file contains conclusive informa tion as to my needs for a pension.

Therefore:

1) I urge you or any other Minister to present my case to the Cabinet for decision at an opportune time before the House prorogues or adjourns.

2) I will remain in Ottawa and be available at any time. I may be reached through my solicitor, David Dehler, of the legal firm Vincent, Choquette, Dehler & Dagenais, 110 York Street, Ottawa, telephone 236-7216.

I should greatly appreciate your acknowledgement of this letter on its receipt by return mail addressed to me in care of my solicitor.

Yours sincerely, Leo A. Landreville

On March 5, 1968 the Minister of Justice replied in writing. This is a key document in this suit. The parties put differing interpretations on it. They urge differing conclusions as to its effect on the outcome of this action. The letter is as follows:

Ottawa 4, March 5, 1968.

Mr. Leo A. Landreville,

c/o Messrs. Vincent, Choquette, Dehler & Dagenais,

Barristers and Solicitors,

110 York Street,

Ottawa, Ontario.

Dear Mr. Landreville:

I refer to my letter dated September 14 last and to your

letter dated March 4 pertaining to your application for a

pension. I was about to write to you concerning this matter

when your most recent letter was received.

My Cabinet colleagues and I have given very anxious con sideration to the merits of your request and it is with regret that I must inform you that the Government has decided, at this time, against taking the steps necessary to grant you a pension or annuity.

Yours sincerely,

P. E. Trudeau.

The plaintiff, as he noted in his letter, had sent a copy to all Members of the Cabinet. He received replies from, or on behalf of, six Cabinet Minis-

ters. One of them was from the Honourable Mitchell Sharp. It was dated March 6:

1 have for acknowledgement your letter of March 4, 1968, concerning your request to the Minister of Justice that you be granted a pension under the Judges Act on grounds of health.

You will appreciate that the primary responsibility in bring ing this matter up rests with the Minister of Justice so that I can only assure you that I shall bear your representations in mind when that time comes.

Yours sincerely,

The Honourable Paul Martin wrote the plain tiff. His letter is dated March 7. He said, in effect, he would discuss the matter with his colleagues when the occasion arose.

The Honourable Paul Hellyer, then Minister of Transport, wrote the plaintiff. His letter is dated March 25, 1968:

PERSONAL

Dear Leo:

Thank you for your letter of March 4th.

I will be glad to have a word with the Minister of Justice on

your behalf.

Yours sincerely,

The plaintiff points out these three letters are all dated after the so-called "Cabinet colleagues" decision referred to in the Minister of Justice's letter of March 5.

I go back a little bit in time. On March 13, 1968 the plaintiff wrote to the Minister of Justice as follows:

My dear Minister:

Thank you for your letter of March 5, 1968 indicating that you have placed this matter before the Cabinet and the Govern ment has exercised its discretion. However, presumably the Government deems it inopportune at this time to take the necessary steps to complete the matter.

May I be informed when the necessary steps will be taken by the present Government.

The eight months delay, the political situation, the resigna tion of three members of a Cabinet already informed, the probable federal election, among other reasons, invite urgent attention to my case to prevent further detriments.

Would you favour me with an early reply as I will wait in Ottawa until this matter is concluded.

Yours sincerely, Leo A. Landreville

P.S. Please excuse error in my letter of March 4 at paragraph 4 page 3—the year is 1967 not 1965.

The Minister replied on March 22, 1968. I set out the letter in full:

Dear Mr. Landreville:

1 acknowledge your letter dated March 13 which refers to my letter to you dated March 5 respecting your request for a judicial pension or annuity.

You now ask when the present Government will take the necessary steps to grant you a pension or annuity. My letter of March 5 informed you that the Government had decided against taking any steps in this regard. I am of course unable to say what may or may not be done in the future either by the present or any other Government.

I regret that I cannot be more helpful to you but your letter of March 13 raises a matter about which it is useless to speculate.

Previously, the Minister, on March 18, 1968, in answer to a question in the House from the Right Honourable John Diefenbaker, the Leader of the Opposition, replied as follows (Ex. 11):

Mr. Speaker, the government has decided at this time against taking the steps necessary to grant Mr. Landreville a pension or annuity.

It was the plaintiff's view no decision, or no final decision, had been made. He pursued the matter further in 1968 through Senator Connolly, Senator Hayden, former Prime Minister Pearson, and others. In 1969, he wrote, and had an interview with, the then Minister of Justice, the Honourable John Turner. That Minister's reply, dated July 23, 1969, was as follows:

Dear Mr. Landreville:

I refer to our meeting on Friday, July 1 I last during which you renewed your request for the grant of an annuity or pension.

At the conclusion of our meeting I indicated to you that I was not prepared to propose or sponsor legislation that would in my judgment be necessary to authorize the payment of a pension to you. You asked that I write to you to this effect and this letter is written in response to that request.

There are a few more facts necessary to round out this history.

The plaintiff said his health gradually improved in time. By December 1969 he made an arrange ment with the legal firm with which he is presently associated. He commenced work for them on January 1, 1970. He agreed with them he would not bring this, or any other action, for two years. When that period expired, he consulted counsel.

This action, and the earlier action I referred to, were commenced on August 4, 1972.

The first submission advanced on behalf of the plaintiff is as follows: the Governor in Council is, when acting under paragraph 23(1)(c) of the Judges Act, a judicial or quasi-judicial body. It performs, in respect of annuities to federally appointed judges, a judicial function. In this case there has never been a disposition, by the Governor in Council, of the plaintiff's request for a pension; there is nothing to indicate the request was ever brought before the Governor in Council, or that any steps were taken to bring it there. It is said, further, this Court ought to declare, on the evi dence adduced at this hearing, that the plaintiff is entitled to a pension; alternatively, that the Gover nor in Council be directed by the Court to hear and determine the application made in June of 1967.

For clarity I think it desirable to set out, once again, subsection 23(1) of the statute:

23. (1) The Governor in Council may grant to

(a) a judge who has continued in judicial office for at least fifteen years and has attained the age of seventy years, if he resigns his office,

an annuity not exceeding two-thirds of the salary annexed to the office held by him at the time of his resignation, removal or ceasing to hold office, as the case may be.

The British North America Act, 1867, refers to the Governor General in Council. I set out sections 11 and 13.

11. There shall be a Council to aid and advise in the Government of Canada, to be styled the Queen's Privy Council for Canada; and the Persons who are to be Members of that Council shall be from Time to Time chosen and summoned by the Governor General and sworn in as Privy Councillors, and Members thereof may be from Time to Time removed by the Governor General.

13. The Provisions of this Act referring to the Governor General in Council shall be construed as referring to the Governor General acting by and with the Advice of the Queen's Privy Council for Canada.

The definitions of "Governor" and "Governor in Council" in the Interpretation Act in force in June 1967 were: 8

35....

(7) "Governor," "Governor of Canada," or "Governor Gen eral" means the Governor General for the time being of Canada, or other chief executive officer or administrator for the time being carrying on the Government of Canada on behalf and in the name of the Sovereign, by whatever title he is designated;

(8) "Governor in Council," or "Governor General in Coun cil" means the Governor General in Canada, or person administering the Government of Canada for the time being, acting by and with the advice of, or by and with the advice and consent of, or in conjunction with the Queen's Privy Council for Canada;

I shall also set out, at this stage, subsection 99(1) and section 100 of The British North America Act, 1867.

99. (1) Subject to subsection (2) of this section, the judges of the superior courts shall hold office during good behaviour, but shall be removable by the Governor General on address of the Senate and House of Commons.

100. The Salaries, Allowances, and Pensions of the Judges of the Superior, District, and County Courts (except the Courts of Probate in Nova Scotia and New Brunswick), and of the Admiralty Courts in Cases where the Judges thereof are for the Time being paid by Salary, shall be fixed and provided by the Parliament of Canada.

In the first submission put forward on behalf of the -plaintiff it was argued the word "may", in subsection 23 (1) of the Judges Act, must be read

8 R.S.C. 1952, c. 158, s. 35. A new Interpretation Act came into force on September 1, 1967: S.C. 1967-68, c. 7. The definitions in the new statute were, for practical purposes, identical to the ones I have set out.

as "shall". The opening words would then be read as follows:

23. (1) The Governor in Council shall grant to ... a judge ...

This argument is based on the theory of the in dependence of the judiciary, the Act of Settlement in England of 1701, the further English legislation in 1760 (23 Geo. III), and section 100 of The B.N.A. Act. The Act of Settlement provided that salaries of judges should be "ascertained and established". The effect of the 1760 legislation was to state that the salaries so granted should be paid, so long as the patent or commission of the judge was in effect. In Canada, section 100 of The B.N.A. Act requires the salaries, allowances and pensions "... shall be fixed and provided by the Parliament of Canada" [my italics]. The Canadi- an constitution deals, not only with salaries and allowances, but with pensions.

The English and Canadian history, leading to the independence of the judiciary, is lucidly set out in an excellent essay by Professor W. R. Leder- man: The Independence of the Judiciary. 9 I refer also to Shetreet, Judges on Trial (A Study of the Appointment and Accountability of the English Judiciary). 10

Lord Atkin, speaking for the Privy Council in Toronto Corporation v. York Corporation," said:

The first question touches a matter of first importance to the people of Canada. While legislative power in relation to the constitution, maintenance and organization of Provincial Courts of Civil Jurisdiction, including procedure in civil mat ters, is confided to the Province, the independence of the judges is protected by provisions that the judges of the Superior, District, and County Courts shall be appointed by the Gover- nor-General (s. 96 of the British North America Act, 1867), that the judges of the Superior Courts shall hold office during good behaviour (s. 99), and that the salaries of the judges of the Superior, District, and County Courts shall be fixed and pro vided by the Parliament of Canada (s. 100). These are three principal pillars in the temple of justice, and they are not to be undermined. Is, then, the Municipal Board of Ontario a Supe rior Court, or a tribunal analogous thereto? If it is, inasmuch as the Act of 1932 which sets it up observes none of the provisions

9 (1956) 34 Can. Bar Rev. 769, continued at 1139.

10 Shetreet, Judges on Trial, 1976, North-Holland Publish ing Co., particularly pp. 2-15.

" [1938] A.C. 415 at pp. 425-426. See also O. Martineau and Sons, Ltd. v. City of Montreal [1932] A.C. 113 at pp. 120-121 (P.C.).

of the sections above referred to, it must be invalidly constituted.

I agree with counsel for the plaintiff that, in section 23 of the Judges Act, "may" must be read as "shall". Otherwise, the accepted theory of the independence of the judiciary is transgressed; the intention and effect of the applicable provisions of The B.N.A. Act is eroded, if not contradicted.

I take, as examples, paragraphs 23(1)(a) and (d). The requirements there are purely length of service and the attainment of a certain age; noth ing else. It is my view that when a judge brings himself within either of those paragraphs, the Gov ernor in Council has no discretion as to whether or not a pension should be granted. It must be done. If it were otherwise, one could envisage the situa tion, though unlikely, where the executive might tend to influence the decisions of a judge in certain areas, or in the carrying out of his duties: the executive, or a member of it, could, for example, indicate that on retirement the pensions set out in paragraphs 23(1)(a) or (d) might be withheld or varied.

The temptation by the executive to intervene, even with no improper motive, in the carrying out of judicial functions, is not unknown. A recent example is found in a report published by Seaton J.A. of the Court of Appeal of British Columbia, sitting as a Commissioner on an Inquiry. 1 2 The Commissioner investigated an allegation by a Brit- ish Columbia Provincial Court Judge that his in dependence as a judge had been interfered with. The Commissioner found that the conduct of a member of the executive (the Deputy Attorney General) had been inappropriate. The Commis sioner, in clear and persuasive language, reviews the history and importance of the independence of the judiciary, and of individual judges. His application of the constitutional theory to the sit uation he inquired into is a firm modern day

12 Report of the Honourable P. D. Seaton, Commissioner: A Commission of Inquiry Pursuant to Order in Council (B.C.) No. 1885. The report is dated October 23, 1979. It was not made public until some time after argument in this case.

illustration that more than mere lip service must be paid to those constitutional safeguards.

I turn to paragraphs 23(1)(b) and (c). I apply the same reasoning as I did with paragraphs (a) and (d). In respect of paragraph (b), if a judge resigns (presumably before reaching a minimum retirement age), and if the Governor in Council comes to the opinion the resignation is conducive to the better administration of justice or is in the national interest, then the pension must be grant ed. But the Governor in Council must consider the particular case and circumstances. An opinion, one way or another, as to whether the resignation is conducive to the matters set out, must be reached. The Governor in Council cannot, as I see it, post pone or refuse to come to an opinion.

Similarly with paragraph 23(1)(c): the Gover nor in Council must decide, in the case of a judge who resigns, where the judge cannot bring himself or herself within paragraphs (a) or (d), whether that judge "has become afflicted with some per manent infirmity disabling him from the due exe cution of his office". That decision is for the Governor in Council: the Governor General, acting by and with the advice of, or by and with the advice and consent of, or in conjunction with "the

. Privy Council". Again, the decision as to a permanent disabling infirmity cannot, to my mind, be postponed indefinitely. Nor, in my opinion, can the Governor in Council refuse to decide.

I return to the facts in this case.

The plaintiff, by letter dated June 7, 1967, resigned effective June 30. I repeat the second paragraph of his letter of resignation:

On June 23, he sent in "... my request and application for a pension on the grounds of perma nent infirmity."

In the examination for discovery of a person produced as an officer on behalf of the defendant,

it was stated there was never any order in council which had either granted or had denied a pension to the plaintiff. The usual procedure, in respect of the exercise of the powers under section 23 of the Judges Act, was set out as follows (Ex. 49):

Question No. 6:

Identify for me the steps that are taken in the ordinary course in relation to the exercise of the power under section 23 of the Judges Act by the Governor in Council.

Answer:

In the ordinary course, when a judge is due to retire, a submission is made by the Minister of Justice to the Governor in Council recommending whether an annuity should be grant ed to the judge under Section 23 of the Judges Act. The submission is considered either at a meeting of the Special Committee of Council (the committee of Cabinet that handles regulations and other proposed Orders in Council on a regular basis) or, in some circumstances, at a full Cabinet Meeting. The decision of Ministers is recorded in the form of an order which is brought to the Governor General for his signature and thereafter issued as an Order-in-Council.

Question No. 9:

Is there a difference between a Cabinet Committee, and the full Cabinet?

Answer:

Yes. The Cabinet Committee system has been in continuous use since the Second World War. The deliberations of a particular Committee are directed toward a defined area of the governmental process. Cabinet Committees may recommend courses of action to the full Cabinet. They may also reach decisions which are then referred to Cabinet for confirmation, with or without alteration, or for other disposition as Cabinet determines. No Cabinet Committee recommendation or deci sion has effect until it is confirmed, altered, or otherwise disposed of by the full Cabinet.

The defendant, at this trial, elected not to call evidence.

Exhibit 48 sets out a list of members of Cabinet at the time of the plaintiffs resignation. It lists those still alive, and those now dead. Twenty-four are still alive.

The only evidence before me, from which I am urged by the defendant to conclude the Governor in Council considered, and acted upon, the application for a pension, is Mr. Trudeau's letter of March 5, 1968. I think it worth while to set out, once more, the contents of that letter:

Ottawa 4, March 5, 1968.

Mr. Leo A. Landreville,

c/o Messrs. Vincent, Choquette, Dehler & Dagenais,

Barristers and Solicitors,

110 York Street,

Ottawa, Ontario.

Dear Mr. Landreville:

I refer to my letter dated September 14 last and to your letter dated March 4 pertaining to your application for a pension. I was about to write to you concerning this matter when your most recent letter was received.

Yours sincerely,

P. E. Trudeau.

In reply to a further letter by the plaintiff (Ex. 27), the Minister of Justice wrote, and I set it out once again (Ex. 28):

Dear Mr. Landreville:

I acknowledge your letter dated March 13 which refers to my letter to you dated March 5 respecting your request for a judicial pension or annuity.

I regret that I cannot be more helpful to you but your letter of March 13 raises a matter about which it is useless to speculate.

Immediately before and during the course of argument, there was a discussion among myself and counsel in respect of the paucity of evidence as to whether the Governor in Council had ever considered and finally decided the matter. Counsel for the defendant, at one stage, submitted I was entitled to accept, as evidence, an affidavit filed on an interlocutory motion in this action. The affida vit was that of the Honourable C. M. Drury, sworn May 27, 1976.

That affidavit arose in this way. Counsel for the plaintiff, on examination for discovery of a repre sentative of the defendant, had requested produc tion of minutes of Cabinet meetings where the application of the plaintiff for a pension was con sidered. He had requested, as well, production of memoranda of Cabinet and any internal memoran-

dum of the Privy Council Office relating to the pension application.

The Honourable C. M. Drury, a Minister in the Liberal administration in power from 1974 to 1979, set out, in his affidavit and an attached schedule, the following:

(1) The dates of Cabinet minutes relating gener ally to the consideration by Cabinet of granting a pension to the plaintiff.

(2) The dates of Cabinet minutes "relating specifically" to the plaintiff's request in his letter of June 23, 1967.

(3) The dates of memoranda to Cabinet relating generally to the question of granting a pension to the plaintiff.

(4) The date of an internal memorandum from Mr. P. M. Pitfield to Prime Minister Pearson relating to the granting of a pension to the plaintiff.

(5) The dates of records of Cabinet decisions.

It is significant that this last item does not specify that the decisions (set out by dates only) relate to the matter of granting a pension to the plaintiff. I shall, later, have more to say on that point.

In respect of those documents, Mr. Drury deposed that the production or discovery of the documents, or their contents, "would disclose a confidence of the Queen's Privy Council for Cana- da". By virtue of subsection 41(2) of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, discov ery and production, in those circumstances, must be refused. I set out the whole of section 41:

41. (1) Subject to the provisions of any other Act and to subsection (2), when a Minister of the Crown certifies to any court by affidavit that a document belongs to a class or contains information which on grounds of a public interest specified in the affidavit should be withheld from production and discovery, the court may examine the document and order its production and discovery to the parties, subject to such restrictions or conditions as it deems appropriate, if it concludes in the circumstances of the case that the public interest in the proper administration of justice outweighs in importance the public interest specified in the affidavit.

(2) When a Minister of the Crown certifies to any court by affidavit that the production or discovery of a document or its contents would be injurious to international relations, national defence or security, or to federal-provincial relations, or that it

would disclose a confidence of the Queen's Privy Council for Canada, discovery and production shall be refused without any examination of the document by the court.

It was contended this affidavit should be looked at, and be accepted as proof that, in fact, the Cabinet had considered the pension question on the dates specified, and made decisions on the dates specified.

I refused to accept the affidavit as evidence of those alleged facts. I did so on what I conceived to be obvious grounds. First, the plaintiff had no opportunity for examination for discovery, or cross-examination at trial. Second, the affidavit, merely because it is part of the Court's records, does not then become evidence at a trial. If the defendant seriously sought to get the alleged proof before the Court, the necessary documents, per haps with an appropriate witness or witnesses, should have been tendered. All that, of course, would have meant a waiver of the statutory claim for non-disclosure. It presumably would have given the plaintiff the right of inspection of documents and examination for discovery.

Even if the affidavit were admissible in evi dence, it would not have been, in my view, satisfac tory proof that the Cabinet had considered and decided the plaintiff had not

... become afflicted with some permanent infirmity disabling him from the due execution of his office ....

The affidavit has a curious and relevant history. When the plaintiff first demanded production of the Cabinet minutes, memoranda and decisions, the Honourable C. M. Drury deposed to an earlier affidavit, November 26, 1975. It is very short. Mr. Drury first referred to the request for production of the minutes of Cabinet meetings in which the plaintiff's application for a pension was con sidered. He then swore that he had

... examined and read certain minutes of Cabinet dated Octo- ber 17, 1967, October 26, 1967, and March 7, 1968 ....

and that their production or discovery would dis close a confidence of the Queen's Privy Council of Canada.

That affidavit, and the refusal to produce the documents to the plaintiff, came, for scrutiny, before my colleague, Gibson J. He pointed out, in written reasons, dated December 19, 1975:

The affidavit however, does not state whether or not any of those minutes referred to have anything to do with the matter referred to in paragraph 1 to his affidavit, namely, "minutes of the Cabinet meetings where the application of the Plaintiff for pension was considered." The affidavit also does not disclose whether or not there is in existence any Cabinet minute or minutes where the application for a pension by the plaintiff generally, or specifically, pursuant to the provisions of section 23 of the Judges Act, was considered.

The Drury affidavit of May 27, 1976 followed.

I have already summarized that affidavit. It is a very carefully drawn document. The defects, point ed out by Gibson J., were cured. I have earlier listed the five classes of documents referred to in the new affidavit. In the case of the first four, either in the body of the affidavit or in the schedule, or both, the documents are said to relate, either generally or specifically, to the plaintiff's request for a pension. But item 5, the dates of Cabinet decisions, nowhere declares they relate to the plaintiff's pension application. That, as I look at the history on this point, was not accidental, nor an oversight. It cannot be inferred those Cabinet decisions necessarily relate to the pension. They may, perhaps, relate to the plaintiff.

Finally, on this point. The Minister of Justice's letter to the plaintiff is dated March 5, 1968. In item 5 of the schedule to the Drury affidavit, the closest "record" of a Cabinet decision is March 7, 1968.

I am, therefore, left with the correspondence, set out earlier in these over-long reasons, passing be tween the plaintiff and the Minister of Justice. The plaintiff relies, in addition, on certain other exhib its from which I am asked to infer the Governor in Council did not, on or before March 5, or at any time afterwards, consider and determine whether or not the plaintiff had, as of the effective date of

his resignation, become afflicted with some perma nent infirmity disabling him from the due execu tion of his office. Counsel for the plaintiff, as I have earlièr related, points out that Ex. 21 (the letter from the Honourable Mitchell Sharp), Ex. 24 (the letter from the Honourable Paul Martin) and Ex. 26 (the letter from the Honourable Paul T. Hellyer) all post-date the March 5 letter relied on, as the Governor in Council decision, by the defendant.

When one analyzes the letter of March 5, 1968, I think it fair to conclude all that had occurred was this. The then Minister of Justice and his Cabinet colleagues decided, as of that particular time, not to take the steps necessary to grant, or refuse, the plaintiff a pension. The necessary steps were, as I see it, to determine, on the evidence submitted, whether the plaintiff had become inflicted with a permanent infirmity disabling him from functioning properly as a judge; to give their advice to the Governor General; then some action by him, based on that advice, or some action in conjunction with the Cabinet, granting the pen sion, or refusing it on the ground the plaintiff had not brought himself within the operative words of paragraph 23(1)(c).

The question is whether the Governor in Council was obliged, in law, to carry out those necessary steps.

My answer is "yes". There was a duty to act on the pension application.

I find support for my view in certain principles found in a number of cases. In The Labour Rela tions Board of Saskatchewan v. The Queen, the Supreme Court of Canada said, in respect of the duties of a Labour Relations Board:"

The language of s. 5, in so far as it affects this aspect of the matter, reads:-

5. The board shall have power to make orders:—

(.) rescinding or amending any order or decision of the board.

13 [1956] S.C.R. 82 at pp. 86-87. See also Drysdale v. The Dominion Coal Co. (1904) 34 S.C.R. 328 at pp. 336-337.

While this language is permissive in form, it imposed, in my opinion, a duty upon the Board to exercise this power when called upon to do so by a party interested and having the right to make the application (Drysdale v. Dominion Coal Company ((1904) 34 Can. S.C.R. 328): Killam J.). Enabling words are always compulsory where they are words to effectuate a legal right (Julius v. Lord Bishop of Oxford ((1880) 5 A.C. 214 at 243): Lord Blackburn).

That principle can, in my opinion, be applied to the Governor in Council, acting pursuant to sec tion 23 of the Judges Act.

In C.P.R. v. The Province of Alberta 14 the Board of Transport Commissioners postponed determination of an increase in freight rates by reason of, in the opinion of the Supreme Court of Canada, certain irrelevant matters. It was held the Board's decision involved a declining of jurisdic tion. Kellock J., after referring to passages from the well-known decision in Julius v. Lord Bishop of Oxford, 15 said at page 33:

In our opinion to postpone passing upon a matter by reason of matters which are entirely irrelevant to the proper discharge of the duty placed upon the Board under the statute to decide these matters for itself amounts in effect to a refusal to function. It is no answer to say, as the respondents did, that it was always open to the railways to make a further application. In the face of the present judgment no one can doubt what would be the answer to such an application.

On the evidence before me, I conclude the Gov ernor in Council did not carry out the duty, that is, in law, required by paragraph 23(1)(c) of the Judges Act. There was a duty to act on the plaintiff's application. The Privy Councillors were required to give advice. That advice was as to whether or not the plaintiff had a permanent disabling infirmity. If the decision or advice was "no", the Governor in Council should have acted, probably by order in council, refusing the applica tion. If the decision or answer was "yes", then a pension was mandatory.

But the Governor in Council did not go through those steps. The then Minister of Justice merely said he and his Cabinet colleagues had considered the plaintiffs request, and "the Government" had decided, at that particular time, not to take the

14 [1950] S.C.R. 25.

15 (1879-80) 5 App. Cas. 214.

"necessary steps". There is nothing to indicate the question of "permanent infirmity" was considered or decided on, and appropriate advice given to the Governor General. There is nothing to indicate the matter ever got to the Governor General for action one way or the other.

The plaintiff is entitled, therefore, to a declara tion that the Governor in Council must consider and decide whether the plaintiff had, as of June 30, 1967 (the effective date of his resignation), become afflicted with some permanent infirmity disabling him from the due execution of his office.

Counsel for the plaintiff put forward an alterna tive argument. It was on the basis that "may" in subsection 23 (1) should be construed as permissive only; that the Governor in Council had a discre tion, in every case, as to whether a pension should be granted. The Governor in Council, in consider ing the plaintiffs application, was performing, it was said, a quasi-judicial or judicial function; there was a statutory duty to decide; there was a declining of that jurisdiction.

I have already expressed my view that the Gov ernor in Council did not, in the circumstances here and as is required by section 23, consider and decide the question to be determined. That view was based on "shall" as opposed to "may". If the true construction of section 23 is that the Governor in Council has a discretion, my conclusion would still, on the facts here, be the same as previously set out.

The principles to be applied are set out in Padfield v. Minister of Agriculture, Fisheries and Food. 16 That case was reviewed and applied by the Ontario Court of Appeal in Re Multi-Malls Inc. v. Minister of Transportation and Communica tions." I quote from the reasons of Lacourcière J.A. at pages 58-60:

In the Padfield case, the Minister of Agriculture, Fisheries and Food had refused to refer a complaint of unequal treatment under a milk marketing scheme to a committee of investigation, which was charged with the duty of considering such com plaints "if the Minister in any case so directs". The House of

16 [1968] A.C. 997.

I 4 17 (1977) O.R. (2d) 49.

Lords, in a majority judgment allowing an appeal from the Court of Appeal, made an order directing the Minister to consider the complaint according to law. It is clear from the majority speeches that, in the absence of clear words, the discretion granted to the Minister could only be used to pro mote the policy and objects of the Act, to be determined according to the ordinary canons of construction, and thus was one reviewable by the Courts as a matter of law. Lord Reid sums up the majority view in these words, at p. 1030:

It is implicit in the argument for the Minister that there are only two possible interpretations of this provision — either he must refer every complaint or he has an unfettered discretion to refuse to refer in any case. I do not think that is right. Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act: the policy and objects of the Act must be determined by construing the Act as a whole and construc tion is always a matter of law for the court. In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court. So it is necessary first to construe the Act.

And at pp. 1032-3:

It was argued that the Minister is not bound to give any reasons for refusing to refer a complaint to the committee, that if he gives no reasons his decision cannot be questioned, and that it would be very unfortunate if giving reasons were to put him in a worse position. But I do not agree that a decision cannot be questioned if no reasons are given. If it is the Minister's duty not to act so as to frustrate the policy and objects of the Act, and if it were to appear from all the circumstances of the case that that has been the effect of the Minister's refusal, then it appears to me that the court must be entitled to act.

In Congreve v. Home Office, [1976] 2 W.L.R. 291, Lord Denning, Master of the Rolls, speaking for a unanimous Court of Appeal, granted a declaration that the purported revocation by the Home Office of a colour television broadcast receiving licence was unlawful, invalid and of no effect, and a misuse of power. He stated, at p. 305:

Undoubtedly those statutory provisions give the Minister a discretion as to the issue and revocation of licences. But it is a discretion which must be exercised in accordance with the law, taking all relevant considerations into account, omitting irrelevant ones, and not being influenced by any ulterior motives. One thing which the Minister must bear in mind is that the owner of a television set has a right of property in it; and, as incident to it, has a right to use it for viewing pictures in his own home, save in so far as that right is prohibited or limited by law. Her Majesty's subjects are not to be delayed

or hindered in the exercise of that right except under the authority of Parliament. The statute has conferred a licens ing power on the Minister: but it is a very special kind of power. It invades a man in the privacy of his home, and it does so solely for financial reasons so as to enable the Minister to collect money for the revenue.

In Re Doctors Hospital v. Minister of Health, 18 the Divisional Court of the Ontario High Court of Justice was asked to review certain decisions made by the Minister of Health and the Lieutenant- Governor in Council to revoke the approval of certain hospitals as public hospitals. The Division al Court applied the Padfield and Multi-Malls cases. The Court held there was, in the particular circumstances, no distinction between the review of a discretion in the Lieutenant-Governor in Council and a discretion in a Minister. At page 174, this was said:

Would it make any difference if in the Multi-Malls case, instead of the words "Minister may" the words were the "Lieutenant-Governor in Council may" or if, in our case, instead of the words "Lieutenant-Governor in Council may" the words were "Minister may". We think not. The issue to be determined is whether the Minister or Lieutenant-Governor in Council is exercising a royal prerogative which is not, per se, subject to Court review, or whether the act or acts are done pursuant to the exercise of a statutory power and thus subject to Court review. In Border Cities Press Club v. A.-G. Ont., [1955] O.R. 14 at p. 19, [1955] I D.L.R. 404 at p. 412, Chief Justice Pickup said:

In exercising the power referred to, the Lieutenant-Governor in council is not, in my opinion, exercising a prerogative of the Crown, but a power conferred by statute, and such a statutory power can be validly exercised only by complying with statutory provisions which are, by law, conditions prece dent to the exercise of such power.

It has been held that even if made in good faith and with the best of intentions, a departure by a decision-making body from the objects and purposes of the statute pursuant to which it acts is objectionable and subject to review by the Courts.

Counsel for the plaintiff made a further submis sion: if the letter of March 5, 1968 can be said to be a decision in respect of the plaintiff's request pursuant to paragraph 23(1)(c), then the Governor in Council

(a) considered extraneous matters, or

18 (1976) 12 O.R. (2d) 164.

(b) failed to decide the request on the evidence before the Governor in Council, or

I am of the view there is insufficient evidence to permit any findings to that effect.

The plaintiff, in support of (a), points to the references in Hansard (Ex. 11), where certain Members of the House had expressed strong views that no pension should be granted to the plaintiff. Reliance was placed, as well, on Ex. 43, a letter from the Chairman of the government caucus, dated June 16, 1967, to the Minister of Justice. That letter read as follows:

Dear Pierre:

I hope no decision will be made to grant a pension to the former Mr. Justice Landreville. In my opinion, such a move could not be justified, morally, politically, or on any grounds of common sense.

With best wishes.

Sincerely,

Russell C. Honey, M.P.

Durham

Counsel for the plaintiff urged the "decision" was made in a politically charged atmosphere; the Governor in Council was bedevilled by political considerations.

There is not, in my view, sufficient evidence to warrant a conclusion the Governor in Council was affected, or improperly influenced, by the opinions of others. Nor is there any evidence that the Governor in Council considered other extraneous matters.

In respect of the duty of fairness, the case of Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police 19 was relied on, as well as Inuit Tapirisat of Canada v. Léger. 20 It was said that if there were other materials or evidence before the Governor in Council, which in any way countered the medical and other evidence submitted by the plaintiff, then the plaintiff was

19 [l979] 1 S.C.R. 311.

20 [1 979] 1 F.C. 710 (F.C.A.). Judgment, on the appeal to the Supreme Court of Canada, is still pending. [Appeal allowed and judgment of Trial Division restored, October 7, 1980.]

entitled to be apprised of that other material, and given an opportunity to reply to it. There is no evidence to suggest such a situation. I would not be warranted in concluding the Governor in Council considered facts other than the materials submit ted by the plaintiff.

The plaintiff's submission as to (b): the only evidence before the Governor in Council was the plaintiff's letters of June 7, 1967 and June 23, 1967, the reports of the physicians and the plain tiff's follow-up letters; on that evidence, plaintiff's counsel said, the Governor in Council could clearly come to only one conclusion: that the plaintiff had become afflicted with a permanent infirmity which had disabled him; "permanent infirmity" must not be given a restricted meaning; the Court should, therefore, direct the Governor in Council to grant a pension.

I agree the key words in paragraph 23(1)(c) must be given a reasonably wide interpretation. The affliction is not confined to a purely physical infirmity. It can embrace emotional and mental infirmity as well. It seems to me, in this modern day, a judge because of adverse publicity, criticism and comment, whether deserved or undeserved, proved or unproved, might, combined with other non-disabling physical and emotional problems, be afflicted with a permanent infirmity preventing him from reasonably functioning. A judge, could, on that view, in the eyes of the public, lawyers and litigants, be effectively disabled from performing a plausible judicial role.

Nor do I think the expression "permanent infirmity" must be interpreted to mean an infirmi ty probably lasting forever. There is always the possibility, in cases of affliction, of dramatic remission, or new cures.

All that having been said, I return to this final submission, that the Governor in Council should be directed to grant a pension to the plaintiff. I cannot accede to it. I have earlier concluded, on the evidence, the Governor in Council did not, as required by law, consider and determine the key issue—permanent disability—in respect of the

plaintiffs request. To give effect to counsel for the plaintiffs final submission would be to tell the Governor in Council how the question for determi nation must be decided.

There will be a declaration as previously outlined.

I have had some hesitation in arriving at that conclusion.

I referred earlier to the paucity of evidence as to what, if anything, had been considered and advised upon by the Cabinet. Before and during argument I indicated to counsel I was troubled by this. I felt the whole story was, perhaps, not there.

The difficulty was caused by the invoking, by the government in power in 1975 and 1976, of the absolute non-disclosure provisions of section 41 of the Federal Court Act. From a technical evidenti- ary point of view there was almost nothing, other than the letter of March 5, 1968, to indicate Cabinet had considered, and decided on advice to be given. From a layman's practical point of view, it seems Cabinet considered the question. But sec tion 41 was invoked. That, for legal purposes in this Court, imposed an initial curtain of silence. The ringing down of that curtain of silence did two things. It affected the plaintiffs normal rights as a citizen and a litigant: the right to know what happened. Was his application treated according to law? It affected equally the rights of the citizens of this country. Had the Governor in Council, in fact, carried out the duty I say was imposed? Was there consideration given, and a decision made, on the plaintiffs letters and medical reports, that he had not, indeed, become afflicted with a perma nent disabling infirmity?

I am unable to see, on the materials before me, why, in respect of those questions and those rights, it was thought necessary, in this case, to resort to the statutory non-disclosure provision. Because of the effect of the course chosen by the defendant's advisers, in respect of section 41 of the Federal Court Act, I may be doing, in effect, an injustice to the citizens of this country. I may be giving the plaintiff relief to which, if all the facts were known, he is not entitled.

Equally, if I had decided to dismiss this action, I may have done him an injustice.

But I must act on the facts before me, as I find them to be. I must also act on the law as I interpret it to be.

When this case came on for hearing and argu ment, the previous government had been replaced by a new one. Counsel for the defendant, when I voiced my misgivings, laudably said he would try and obtain further instructions as to whether the non-disclosure position would be altered.

Counsel said his instructions were:

MR. SCOLLIN: MY LORD, there is in existence, a convention or arrangement between the present and the former, immedi ately preceeding [sic] Prime Minister which is a convention followed in Canada as in other countries having a parliamen tary system of Government.

The new Ministry does not have access to the record of the preceeding [sic] Ministers. In these circumstances after proper consultation, I am instructed to advise the Court that the Attorney General of Canada and present Minister of Justice, not having such access, is not in a position to make any admissions as to what was or what was not done by the previous Ministers.

I later stated I was not satisfied with that posi tion. Here, the then government sought cover behind an unwritten convention. But, the respec tive rights of the plaintiff and the citizens of Canada, as I have earlier described, were still affected and uncatered to. I do not propose in these reasons to repeat what I said in response to Mr. Scollin's instructions. The court reporter has transcribed those remarks for the record. I re- endorse them.

I note, also, the new administration had, at that time, a Freedom of Information Bill before Parlia ment. The Bill would have repealed section 41 of the Federal Court Act. It would have given the right to obtain a ruling as to whether the informa tion, memoranda and decisions sought by the plaintiff should be disclosed. But the sponsors of the new Bill chose to rely on an unwritten political convention.

Between the hearing and the date of these rea sons, another new government has come into office. In response to a memo of mine, defendant's

counsel advised me there would not be production of further documents.

The present government has, as I see it, adopted the same attitude as that taken by the administra tion in office in 1975 and 1976.

The plaintiff is entitled to his costs.

SCHEDULE "A"

T-2205-72

Léo A. Landreville (Plaintiff)

The Queen (Defendant)

Trial Division, Collier J.—Ottawa, February 2, 3 and 4 and April 7, 1977.

Jurisdiction — Royal Commission inquiry into activities of plaintiff a former superior court judge — Whether appoint ment of Commissioner to investigate a judge is ultra vires the Governor in Council — Whether Commissioner exceeded jurisdiction — Whether plaintiff given opportunity to be heard re allegations of misconduct — Inquiries Act, R.S.C. 1952, c. 154, ss. 2, 3, 13 — The British North America Act, 1867, ss. 92(14), 96, 99(1) — Judges Act, R.S.C. 1952, c. 159, ss. 31, 33; R.S.C. 1970, c. J-1, ss. 31, 32, 32.2.

The plaintiff, a Judge of the Supreme Court of Ontario from 1956 to 1967, was the subject, in 1966, of a Royal Commission inquiry into his relationship with Northern Ontario Natural Gas Limited. In 1967 the Commissioner rendered an unfavour able Report, and the plaintiff resigned. He brought an action for a declaration (1) that the appointment of the Commissioner was null and void, (2) that the Commissioner lost jurisdiction by exceeding his terms of reference, and (3) that the plaintiff was not given notice or an opportunity to be heard concerning allegations of misconduct, as required by section 13 of the Inquiries Act. With respect to the first issue the defendant submitted that the Commission was validly constituted, that the plaintiff had consented to it and could not now challenge it, and that plaintiff did not challenge the appointment of the Commissioner or his jurisdiction at the inquiry itself. With respect to the third issue defendant maintained that the allega tions or charges were set out in the Order in Council and Letters Patent establishing the Royal Commission. In addition, the defendant (4) put forth the equitable defence of laches, and (5) challenged the jurisdiction of the Court to make a declara tion on the ground that the matter is now academic.

Held, the plaintiff will have a declaration limited to the section 13 issue, with costs.

(1) The procedure for removal of judges by joint address of the House of Commons and the Senate, as set out in section 99 of The British North America Act, /867, is not, as plaintiff contends, a code of its own. The Governor in Council, as distinguished from the Governor General or Parliament, can

authorize an inquiry into the conduct of a superior court judge. The conduct of judges is a "... matter connected with the good government of Canada ..." (section 2 of the Inquiries Act). However, if there was no constitutional power in the Governor in Council to initiate the inquiry, then the plaintiffs consent or request for it, and the agreement not to object to it, could not cure the defect.

(2) The terms of reference of the Commission were wide enough to embrace the portions of the Report and the conclu sions attacked by plaintiff. The plaintiffs credibility was in issue, and the Commissioner's method of dealing with the question did not amount to going beyond the terms of reference and so losing jurisdiction.

(3) Section 13 of the Inquiries Act requires that a person against whom a charge of misconduct is alleged be given reasonable notice of, and an opportunity to reply to, such allegation. The Commissioner found that the plaintiff had been guilty of gross contempt before three other tribunals. This matter was not within the terms of reference of the Commission and the plaintiff was not given an opportunity to meet the specific charges. The Commissioner thus failed to comply with the mandatory requirements of section 13. The Commission should have been reconvened, and notice of the "charge" of misconduct given; the plaintiff should then have been allowed to call witnesses and answer the charges.

(4) There is no compelling or equitable reason to invoke the defence of laches. The defendant has not been induced to alter any position.

(5) Although the declaration will have no legal effect it may serve some practical purpose in other pending litigation involv ing the plaintiff, and in that it will be a matter of public record that the plaintiff did not have a full opportunity to be heard.

Crabbe v. Minister of Transport [1972] F.C. 863, applied. Landreville v. The Queen [1973] F.C. 1223 and Merricks v. Nott-Bower [1964] 1 All E.R. 717, followed.

ACTION for declaratory judgment. COUNSEL:

G. Henderson, Q.C., and Y. A. C. Hynna for plaintiff. G. Ainslie, Q.C., and L. Holland for defendant.

SOLICITORS:

Cowling & Henderson, Ottawa, for plaintiff. Deputy Attorney General of Canada for defendant.

The following are the reasons for judgment rendered in English by

COLLIER J.: The plaintiff is a solicitor now practising in Ottawa. In 1933 he went to Sudbury, Ontario. He eventually established a substantial law practice. Over a number of years he held, while still carrying on his legal business, public offices in the Sudbury area, "... such as School Trustee, Alderman, Member and Chairman of the Sudbury Hydro Commission." He became mayor of Sudbury on January 1, 1955.

While he was mayor, the Sudbury council approved a fran chise to Northern Ontario Natural Gas Limited ("NONG"), to distribute natural gas to Sudbury by laterals and distributing pipe systems. The main system or trunk line was that of TransCanada PipeLine Company.

On September 13, 1956 he was appointed a Judge of the Supreme Court of Ontario'. His appointment was effective October 10, 1956. On October 12, he was sworn in.

In February of 1957 the plaintiff was sent a letter from a Vancouver brokerage company enclosing shares of NONG. I shall later set out more detail. I merely refer, at this point, to NONG shares in order to make clear what the plaintiff seeks in this action.

On January 19, 1966, the Governor in Council appointed the Honourable Ivan C. Rand, a retired Judge of the Supreme Court of Canada, a Commissioner under Part I of the Inquiries Act e . His terms of reference were:

(a) to inquire into the dealings of the Honourable Mr. Justice Leo A. Landreville with Northern Ontario Natural Gas Limited or any of its officers, employees or repre sentatives, or in the shares of the said Company; and,

(b) to advise whether, in the opinion of the Commissioner,

(i) anything done by Mr. Justice Landreville in the course of such dealings constituted misbehaviour in his official capacity as a Judge of the Supreme Court of Ontario, or

(ii) whether the Honourable Mr. Justice Landreville has by such dealings proved himself unfit for the proper exercise of his judicial duties. 3

After 11 days of hearings at various Canadian cities in March and April, 1966, the Commissioner issued a report. It was dated August 11, 1966. It was not made public until tabled in the House of Commons on August 29 of that year.

A special Joint Committee of the Senate and House of Commons was appointed in late 1966. Its purpose was:

... to enquire into and report upon the expediency of pre senting an address to His Excellency praying for the removal of Mr. Justice Leo Landreville from the Supreme Court of Ontario, in view of the facts, considerations and conclusions contained in the report of the Honourable Ivan C. Rand ....

The Committee held 19 meetings in February and March of 1967. The plaintiff appeared as a witness. He testified at 11 of the meetings.

The material portions of the Joint Committee's final report, dated April 13, 1967, were:

' The appointment was by Order in Council passed pursuant to section 96 of The British North America Act, 1867. The plaintiff was appointed a member of the High Court of Justice for Ontario, and ex officio a member of the Court of Appeal for Ontario.

2 R.S.C. 1952, c. 154. The Letters Patent (Ex. 28) were issued March 2, 1966.

3 I have quoted almost exactly the terms of reference but have sub-numbered them for convenience and clarity.

2. In accordance with its terms of reference, during the course of nineteen (19) meetings, the Committee applied itself to, and carefully examined the facts, considerations and conclusions contained in the said report.

3. The Committee invited Mr. Justice Landreville to appear before it as a witness. He testified at eleven (11) meetings of the Committee and answered questions from Members of and Counsel to the Committee.

4. The report of the Honourable Ivan C. Rand states: No question is raised of misbehaviour in the discharge of judicial duty; the inquiry goes to conduct outside that function.

5. The reflections of the Honourable Ivan C. Rand on Mr. Justice Landreville's character were not considered pertinent and thus played no part in the Committee's decision.

6. After hearing the testimony of Mr. Justice Landreville and considering the report of the Honourable Ivan C. Rand, the Committee finds that Mr. Justice Landreville has proven himself unfit for the proper exercise of his judicial functions and, with great regret, recommends the expediency of pre senting an address to His Excellency for the removal of Mr. Justice Landreville from the Supreme Court of Ontario.

By letter dated June 7, 1967, (Ex. 35), the plaintiff tendered, effective June 30, his resignation as a Judge. It was accepted.

In order to deal with these contentions and the submissions on behalf of the defendant, it is necessary to recount the background and facts leading to the appointment of the Commissioner.

In 1958 the Ontario Securities Commission directed an investigation into the trading in shares of NONG from its incorporation to the date when its units (one debenture and one common share) were qualified for sale in Ontario, June 4, 1957. A report was issued on August 18, 1958. At that time certain information available in British Columbia had not come to light. For that reason, neither the plaintiff nor any involve ment by him in shares of NONG was investigated. In 1962, on the basis of certain information supplied by the Attorney General for British Columbia another investigation, or perhaps a further investigation, was directed.

It appeared that 14,000 shares of NONG had been, on January 17, 1957, allotted to Convesto, a nominee name used by Continental Investment Corporation Limited (brokers) of Vancouver. An investigation in British Columbia revealed that 4,000 of those shares had then been transmitted to J. Stewart Smith, the former British Columbia superintendent of brokers and 10,000 to the plaintiff.

Ralph K. Farris was at all relevant times the President of NONG. He gave evidence before the Ontario Securities Com mission both in 1958 and 1962. The plaintiff gave evidence in 1962 as to how he had acquired the 10,000 shares in NONG.

A perjury charge was laid against Ralph K. Farris. It arose out of the testimony, in respect of the Convesto share transac tion, he had given the Securities Commission. His preliminary

hearing was in the latter part of 1963 and the early part of 1964. The plaintiff gave evidence.

Farris was committed for trial. The trial was before a Supreme Court Judge and jury in 1964. Once more, the plaintiff was called as a witness and gave evidence in respect of the share transactions referred to. Farris was convicted.

On June 12, 1964 the plaintiff wrote the Honourable Guy Favreau, the Minister of Justice for Canada. He pointed out that since 1962 there had been insinuations in the Ontario Legislature that NONG and he "... have been guilty of corrupt practices." He requested an inquiry should take place at his own request; that a special commissioner be appointed; and:

The terms of reference would be broad but simple: whether or not there has been any conflict of interest, bribery, undue influence or any corrupt practices in the award of the Sudbury Gas Franchise.

He added that the only alternative to his request would be the Ontario Attorney General laying some charge against him ".. . to provide me with similar opportunity" [to prove his innocence].

The Minister of Justice indicated he would study the matter.

Before his request was further dealt with, the Attorney General for Ontario, in August, 1964, laid charges against the plaintiff. In essence, the accusation was that while he was mayor of Sudbury, he offered or agreed to accept stock in NONG in return for his influence in seeing that NONG obtained a franchise agreement in Sudbury. There was also a charge of conspiracy, to the same effect, with Farris. Similar charges, in respect of granting of franchises, were laid against the mayors of Orillia, Gravenhurst and Bracebridge.

The plaintiff's preliminary hearing was in September or October of 1964, presided over by Magistrate Albert Marck. The Magistrate discharged the accused, expressing the view a properly charged jury could not find him guilty. Two of the other mayors were discharged on their preliminary hearings; the third was committed for trial, but acquitted by a county court jury.

The Attorney General for Ontario, shortly after, issued a press release in which it was stated 6 :

The next event, in the evidence before me, was a report by a special committee of The Law Society of Upper Canada. The Society, in January of 1965, had struck a special committee to consider and report on what action, if any, should be taken by it

.. as a result of Mr. Justice Landreville's decision to continue to sit as a Judge of the Supreme Court of Ontario". The report of the special committee was made on March 17, 1965. It was adopted by Convocation, with one dissent, on April 23, 1965. The report contained what was termed a "statement of facts" and certain "conclusions" on those facts. One was "... there is

6 Exhibit 169 at the Rand Commission.

no doubt that the Magistrate was correct in dismissing the charges against Landreville".

The report went on to set out certain "... matters which are unexplained, and upon which your committee can only specu late". Following those speculations the committee stated, ".. . the following inference ... can be drawn from the foregoing questions which remain unanswered ... [the speculative matters]":

YOUR COMMITTEE REPORTS THE FOLLOWING INFERENCE THAT CAN BE DRAWN FROM THE FOREGOING QUESTIONS WHICH REMAIN UNANSWERED:

The fact that Landreville was given an opportunity to acquire shares at the same price as the original promoters of the Company and that the option was given immediately following the passing of the third reading of the by-law and for no apparent consideration, and that subsequently without any exercise of such option by Landreville he received 7500 shares free and clear, which he subsequently sold for $117,- 000, and that when Farris was first questioned about the matter he deliberately lied, support the inference that the acquisition of shares by Landreville was tainted with impropriety.

The report went on:

THE FOLLOWING ARE THE OPINIONS AND RECOMMENDA TIONS OF YOUR COMMITTEE:

The above recited facts are matters of public knowledge and are, in the opinion of your Committee, inconsistent with the reputation for probity required of one of Her Majesty's Judges for the due administration of justice in this Province.

As a consequence of these facts, the questions unanswered, and the inference which your Committee has drawn and which it believes the public has also drawn, YOUR COMMIT TEE RECOMMENDS

]. That the Benchers of The Law Society of Upper Canada in Convocation deplore the continuance of the Honourable Mr. Justice Landreville as one of Her Majes- ty's Judges of the Supreme Court of Ontario.

On the evidence before me, the plaintiff knew absolutely nothing of this special committee and its activities. He was never invited to appear before them to answer their unexplained matters or speculations. A copy of the report was sent to the Federal Minister of Justice, 7 and to the plaintiff.

7 The Law Society report concluded:

2. That the Secretary of the Society be authorized and directed forthwith to forward a certified copy of this report to the Honourable the Minister of Justice and Attorney General of Canada, the Honourable the Chief Justice of Ontario, the Honourable the Chief Justice of the High Court, the Honourable Mr. Justice Landreville, and the Attorney General for the Province of Ontario.

3. That the Treasurer of the Society be authorized to issue copies of this report to the press at such time thereafter as he may in his discretion deem fit.

Although the evidence before me is unclear, the contents of the report were not made public at that time. The Commission er annexed it as "Appendix A" to his report. 8

On April 30, 1965, the plaintiff wrote to the Minister of Justice in connection with this report. Some question had apparently been raised about it in the House of Commons. He wrote also the Secretary of the Law Society. He complained the special committee had not seen fit to call on him to answer any of the questions it had raised. He pointed out he had, during the three previous years, made repeated requests to provincial and federal authorities "... to have the matter fully aired".

I should digress at this stage to say that the plaintiff had, when the criminal charges where laid against him, retained a well known counsel, Mr. John J. Robinette, Q.C. Mr. Robinette was a bencher. He had taken no part in the investigation and report of the Law Society. As I understand the evidence, the plaintiff was still, at this stage, receiving advice from Mr. Robinette.

On May 7, 1965, the plaintiff telegraphed the Minister of Justice withdrawing his previous request for an inquiry. He asked Mr. Favreau to make no decision on a course of action until the Minister had read his (the plaintiffs) report.

On May 13, 1965, he wrote the Minister. He commented on the Law Society report. He went on to say:

Am I being attacked as a Judge? If so, of what unbecoming conduct?

I now withdraw from that position for the following reasons:

(a) The subject matter was deemed closed six months ago. I have returned to my functions. The Bar and the Public have shown usual courtesy and co-operation.

(b) An Enquiry would re-open, deal with and review facts which are strictly res judicata. The Attorney General has made such review and closed his files.

8 The Commissioner stated on page 95:

It is perhaps unnecessary to say that the resolution of the Benchers of the Law Society of Upper Canada submitted to the Minister of Justice has played no part whatever in arriving at the conclusions of fact set out in this report. Its only relevance is that that governing body has seen fit to seek an inquiry into matters for several years the subject of wide public concern: no challenge to the propriety of such a request from a body having such an interest in the administration of Justice has been or could be made. A copy of that resolution is annexed as Appen dix A of this report.

(d) Regardless of the most favourable decision, an Enquiry and proceedings with pertaining publicity, would be con clusively detrimental and final to my reputation.

(e) 1 am advised by my counsel J. J. Robinette, Q.C. and others, that a judge does not come under the Enquiry Act, the Civil Servants Act or any other statute and an enquiry is illegal.

(f) I am advised that it is inimical to the interest of the Bench that I create the precedent of requesting and sub mitting to an Enquiry because of the criticism of person or association.

Again, Sir, I submit the Report of the Society does not accuse me specifically of serious breach of Law or Ethics.

If so, it then becomes a question whether or not, in my sole discretion, I deem fit to invite further proceedings and pub licity to vindicate my name to the mind of some people who prefer gossip to facts. To the sound person, unmoved by publicity-allergy, my past is pure and proven so to be.

Of course, if you are satisfied there are reasonable and probable grounds to justify impeachment proceedings, it is your duty so to do. Those proceedings I must meet in both Houses. In the light of present events, I have no intention of resigning. During my entire career as a solicitor, a member of Boards, Commissions and Councils, as a Judge, I have conducted myself in strict conformity to the highest concept of Ethics. Of this, others may speak, others who know me.

On June 12, 1965, Magistrate Marck wrote the Law Society. He had been shown a copy of its report. He characterized it as a grave injustice. He said there was a total absence of any evidence the plaintiff had been guilty of any corruption. He suggested the Benchers might see fit to reconsider their report. He indicated his willingness to appear before them.

On June 18, 1965, Mr. Robinette wrote the Minister of Justice referring to the Magistrate's letter. He suggested that it provided the answer to the speculations of the Law Society. He expressed the hope, in those circumstances, the Minister would not deem it necessary to institute any form of judicial inquiry. Mr. Robinette pointed out he had written to the Minister in February of 1965 expressing grave doubts as to the constitu tional power of the Governor in Council to direct a judicial inquiry with reference to the conduct of a superior court judge.

The Honourable Lucien Cardin became Minister of Justice. On July 29, 1965, he sent a telegram to the plaintiff. It stated in part: "I ... have reached the conclusion that, in your own interests, as well as in the interests of the administration of justice, a formal inquiry ... would be desirable." He invited comments from the plaintiff.

The plaintiff on August 4, replied:

It will be noted from your file that I have invited an inquiry on several occasions. I include conversations with your two predecessors Honourable Chevrier and Honourable Favreau.

However, your predecessor, having reviewed his file and the judgment of Magistrate Marck did decide in October 1964 that a public inquiry was not warranted by the facts. His comments to the press indicate this. There are no new facts.

Since that time, it has been pointed out to me by a number of my colleagues that for a Superior Court Judge to submit or consent to a public inquiry would establish a very dangerous precedent, particularly when such acts antedate his appoint ment and do not relate to the performance of his official duties. Further, your file contains a letter from my solicitor, J. J. Robinette, Q.C., to Honourable Favreau dated February 22, 1965. It expresses our view that a Superior Court Judge does not come under the Civil Service Act, the Public Officers Act, the Inquiries Act—nor any other applicable statute. Under the law the Superior Court Judge is answer able only before both Houses on proceedings of impeach ment.

You do realize no one is more interested than I to vindicate fully my name. The dilemma raises, therefore, a question of jurisdiction.

You may deem the question to be of sufficient importance to be submitted to the Supreme Court of Canada for determi nation. I am prepared to submit only to whatever inquiry or process the Supreme Court of Canada holds to be legal.

That question, however, does not and will not prevent you from taking impeachment proceedings at any time if you deem facts justify such action. It must be noted no one has accused me of breach of Ethics in an act done nine years ago.

It appears now that the issue takes a legal aspect, and in view also of my absence from the country until the end of this month, I would beg you to address future correspondence to Mr. J. J. Robinette, Q.C., c/o McCarthy and McCarthy, Solicitors, Canada Life Building, University Ave., Toronto. Mr. Cardin, on August 18, answered:

I have very carefully considered your letter of August 4th, and the points you make. Nevertheless, I feel that in the interests of the administration of justice I must recommend to my colleagues that a Commissioner be appointed to con duct an inquiry and to make his report to the Government.

As I view the matter, the issue is not whether an offence was committed. The question that has been raised is, as I indicat ed in my telegram, quite a different one. The purpose of the inquiry would not be to review the decision of the Magis trate, but to ascertain whether it is in the interests of the administration of justice that, having regard to all the cir cumstances, you should continue to hold your present office. It is on this question that I feel an opinion from an eminent outside and independent authority ought to be obtained.

It is therefore my intention to proceed with the inquiry.

Mr. Cardin and the plaintiff then, on August 30, met in Toronto. It seems the past history of the whole affair was discussed. According to notes made by the plaintiff (Exhibit

37), he told the Minister that while a decision to hold an inquiry was, of course, the Minister's, Mr. Robinette and Mr. Sedgewick strongly opposed such an inquiry. There was some mention by the plaintiff of not answering any subpoenas that might be issued by a Commissioner, and a motion then being launched to have the inquiry declared illegal. The Minister indicated his view that an inquiry into the conduct of a judge was, under the Inquiries Act, permissible.

The discussion was inconclusive. The Minister indicated the whole matter would be left open; any decision to launch an inquiry would, at the moment, be held in abeyance.

Some telegrams were then exchanged in connection with a press suggestion that the Law Society's report was going to be released. Mr. Cardin's telegram of November 23, 1965, to Mr. Robinette said in part: "... I ... propose you consent to appointment of Commission under Inquiries Act."

Mr. Robinette replied on November 29. He quoted at length from his letter of February 22, 1965 to Mr. Cardin's predeces sor. In that previous letter he had expressed the view that section 2 of the Inquiries Act did not authorize the Governor in Council to set up an inquiry with reference to the conduct of a superior court judge. He had, in February, set out his position that:

... under our Constitution the only person who has any jurisdiction whatsoever over the behaviour of a Superior Court Judge is the Governor General and then only "on address of the Senate and House of Commons" as stipulated in Section 99 of The British North America Act.

On pages 3 and 4 of his November letter, he said:

My view with respect to this matter I know is shared by others and I think it would involve an interference with the independence of the judiciary if Mr. Justice Landreville were to consent to the appointment of a Commissioner under The Inquiries Act. In any event a Commissioner under The Inquiries Act either would or would not have jurisdiction and Mr. Justice Landreville's consent could not give a Commis sioner jurisdiction which he does not have. I have discussed the matter with Mr. Justice Landreville and what we suggest is that the government should refer the matter to the Supreme Court of Canada for an adjudication by it as to whether or not a Superior Court Judge in a province can be the subject of an inquiry under The Inquiries Act. Such a reference to the Supreme Court of Canada should also ask for the opinion of the Court as to what the words "during good behaviour" in section 99 of The British North America Act encompass. We made the suggestion to The Honourable Guy Favreau some months ago that this question as to the power of the government to appoint a Commissioner under The Inquiries Act to look into the status of a Judge of a Superior Court ought to be referred to the Supreme Court of Canada.

In short for the reasons which I have stated Mr. Justice Landreville is not prepared to consent to the appointment of a Commissioner but we repeat our suggestion that the ques tion of the power of the government to appoint a Commis sioner under the Inquiries Act should be referred to the Supreme Court of Canada along with a question the answer

to which would define the scope and meaning of the words "during good behaviour" in section 99 of The British North America Act.

Mr. Justice Landreville would welcome an opportunity to state his position before a forum having jurisdiction to deal with the matter. Such a forum would be removed from any considerations of political expediency and would be in keep ing with the dignity of his office. The position which Mr. Justice Landreville takes, not only in his own interests but in the interests of the other members of the judiciary, is that under The British North America Act the only person having jurisdiction with respect to any possible removal is the Gov ernor General of Canada acting on joint address of the Senate and the House of Commons as provided in section 99 of The British North America Act.

Mr. Cardin answered on December 28, 1965. He disagreed with Mr. Robinette's contention as to the limitations of the Inquiries Act in respect of the conduct of superior court judges. He expressed the view the plaintiff could give consent to a commissioner's jurisdiction. On this point he added: "A com missioner would have no jurisdiction to make any judgment or order; his sole function would be to ascertain and report on the facts." He did not agree that there should be a reference, as suggested, to the Supreme Court of Canada. On this point he said:

There is no doubt that Parliament itself has the right and the power to make an inquiry into the conduct of a judge, and such an inquiry could be instituted on the motion of any member of the House, whether he is a member of the Government's side or not. If Mr. Justice Landreville is not agreeable to having an inquiry under the Inquiries Act, then I think he might expect that there will be a parliamentary inquiry. Such an inquiry would be founded on an allegation of impropriety and I should have thought that the Judge would prefer an "open" inquiry under the Inquiries Act that is not founded on an allegation of impropriety and would be designed simply to ascertain the facts.

As for your proposed question to the Supreme Court, may I suggest that courts cannot be asked to interpret words in the abstract. The most that could be done would be to refer a statement of facts to the Court and ask whether on these facts there has been a breach of the condition of judicial office. However, the first thing to be done, in my judgment, is to ascertain what the facts are. In any event, I would point out that the question you suggest to be put to the Supreme Court is not the principal issue in this matter.

The question is not so much whether the Judge has breached the condition of his office, namely, that it be held during good behaviour, but whether he has in the opinion of Parlia ment conducted himself in such a way as to render himself unfit to hold high judicial office. Under section 99 of The British North America Act, a judge may indeed be removed for "misbehaviour", but the power to remove on address extends to any ground and it is open to Parliament to make an address for the removal of a judge on any ground it sees fit, whether it constitutes misbehaviour in office or not.

I may say frankly that I would not wish to institute an inquiry under the Inquiries Act if there is any prospect that Mr. Justice Landreville would attempt to frustrate the inqui-

ry by prerogative writ or otherwise. However, if an inquiry under the Inquiries Act is not agreeable to your client, then the result may well be a motion in Parliament for an inquiry by a Parliamentary Committee. As I have pointed out, such a motion may be made by any member of Parliament. I should have thought that, from the Judge's point of view, an inquiry under the Inquiries Act would be preferable. However, the choice rests with him, and if he is unwilling to have an inquiry under the Inquiries Act, I think it only fair to say that he may expect an inquiry by Parliament itself.

Following that correspondence, it seems Mr. Robinette went to Ottawa and discussed the affair either with the Minister or officials in the Department of Justice. He was made aware "in general terms" of the terms of reference for the proposed Commission. 9

On January 17, 1966, Mr. Robinette sent a telegram to Mr. Cardin as follows:

Justice Landreville has instructed me on his behalf to request the Government to appoint a Commissioner under the In quiries Act to inquire into his dealings with Northern Ontario Natural Gas Company or any of its officers or servants.

I here point out that the telegram has some noticeable similarity to Commissioner Rand's first term of reference. No reference is made to any other terms. The telegram was acknowledged two days later.

A statement was then made by the Minister in the House. The plaintiff wrote him on January 24, 1966. That letter is in French. My free translation of the first two paragraphs is as follows:

[TRANSLATION] I am indebted to you for the statement made in the House last week. I had understood from Mr. Robinette that you were to declare that this inquiry was to be held at my request. Moreover, he must have told you that this procedure has for its purpose to apprise you of the facts. The conclusions or recommendations will not have the force of a final decision, since we always contend that only Parlia ment and the Senate have jurisdiction and they will decide, if the necessity arises.

The procedure is therefore under all reserve and without creating a "precedent" because certain of my colleagues do not accept the position that the "Inquiries Act" applies.

The Commissioner was then appointed and his letters patent issued.

Technically, it is not now necessary for me to deal with the defendant's other contentions on this issue: that there was consent by the plaintiff to this inquiry; that no "constitutional" objection was raised at any time during it. I feel I should express my opinion.

It is true that, as a matter of form, the inquiry was ordered after a request by the plaintiff. But I conclude, on the evidence before me, there was a good deal of pressure exerted on him. One cannot shut out the state of Canadian political history at that time. It is permissible to take judicial notice of the facts of history. In Calder v. Attorney General of British Columbia,

9 Q. 253-254 of the plaintiffs examination for discovery.

Hall J. delivering the dissenting judgment of himself, Spence J. and Laskin J. [as he then was], said":

Consideration of the issues involves the study of many historical documents and enactments received in evidence, particularly exs. 8 to 18 inclusive and exs. 25 and 35. The Court may take judicial notice of the facts of history whether past or contemporaneous: Monarch Steamship Co. Ltd. v. A/B Karlshamms Oljefabriker [[1949] A.C. 196], at p. 234, and the Court is entitled to rely on its own historical knowl edge and researches: Read v. Lincoln [[1892] A.C. 644], Lord Halsbury at pp. 652-4.

The judgment of Martland, Judson and Ritchie JJ. was given by Judson J. No specific reference was made to the power of a court to take notice of historical facts. But it is obvious from the reasons that those three judges also resorted to history.

Here, the plaintiffs name first came into prominence in 1962. In a general election in that year, the Progressive Con servative government was returned, with a minority. The next election in 1963 produced a Liberal minority government. That minority situation persisted until 1968. The history of that period records there were a number of matters which caused concern and difficulty to the minority government.'s The plain tiff had earlier indicated he was prepared to launch legal attacks against any Royal Commission that might be set up. I think that would have been, if it had materialized, an embar rassing situation. The minority government's other method, unchallengeable by the plaintiff, was to try and obtain a joint address in Parliament. The plaintiffs choice, if it can be described as that, was not a real or free one.

Mr. Robinette had, before his telegram of January 17, 1966 (Exhibit 23), expressed his opinion on the constitutional issue. It was also his view a consent by the plaintiff could not validate something constitutionally invalid. The plaintiff in his letter of January 24, 1966 to Mr. Cardin (Exhibit 25) pointed out the procedure was under "all reserve".

No challenge was made, at the opening of the inquiry or at any other stage, based on the constitutional issue. Counsel for the defendant relied on that fact. The explanation is, I think, found at pages 1254 and 1255 of the transcript of proceedings. The plaintiffs testimony had then been completed. Mr. Robi- nette wished to tender evidence indicating the plaintiff had, long before, made efforts to have his position aired before a public inquiry. A ruling was requested. The Commissioner expressed the view it would be of little materiality (page 1233), but he heard it. At page 1254 the Commissioner fortuitously asked: "Was there ever any objection to the Commissioner under the Inquiries Act made?" [sic]. Mr. Robinette explained the legal position he had taken with Mr. Favreau. At pages 1254 and 1255 he continued:

17 [1973] S.C.R. 313 at 346.

Is The Munsinger affair, the Spencer affair, the Dorion

Inquiry—to name a few.

I still have grave doubts whether the Dominion has the authority to empower a Commissioner to investigate, but that is really a matter of the constitution, organization and maintenance of the courts from a provincial standpoint, and therefore within the jurisdiction of the province, but I must add this, sir, that when this Commission was set up, on the instructions of Mr. Landreville I agreed with the present Minister of Justice that I would not raise any constitutional argument before you, sir, and I do not raise that question.

In my view, if there was no constitutional power in the Governor in Council to initiate this inquiry, then the plaintiff's consent or request for it, and the agreement not to object to it, cannot cure the defect.

I turn now to the second main submission by the plaintiff. It is first necessary to set out in more detail the facts surrounding the share transaction between NONG and the plaintiff. For that purpose I shall rely almost exclusively on the evidence referred to in the Commissioner's report.

In 1954 and 1955 the route of the TransCanada PipeLine Company and the distribution from the line to various com munities in Northern Ontario became a matter of concern and interest. It appeared that only one company, or agency, rather than several, would handle that distribution. NONG had been incorporated with that purpose in mind. It was very much in the running. It put forward considerable effort endeavouring to obtain franchises from various communities including Sudbury.

As recounted, the plaintiff was, in 1955 and 1956, the mayor. NONG, chiefly through Farris, presented submissions for the Sudbury franchise. Over the course of those dealings, the plaintiff and Farris had, after perhaps an initial coolness, come to like each other. By the spring of 1956, most of the other franchises had been granted. Sudbury began to take action. A by-law, approving the franchise, had to be passed by Council. On May 22, 1956, first and second reading of the by-law were given. There remained third reading, the approval of the terms of the franchise, and a certificate of convenience and necessity by the Ontario Fuel Board. The latter was a foregone conclusion.

On July 17, 1956, Council gave, by a vote of 7 to 3, third reading to the by-law. The plaintiff, as was the general prac tice, did not vote. The agreement conferring the franchise was signed by the City the next day. It was returned on July 20 executed by NONG. The Fuel Board, at a later date, issued the necessary certificate. The plaintiff felt that the Board had in substance approved the franchise on June 21.

The plaintiff testified, at the Commission, that in a friendly talk with Farris, he pointed out his term as mayor would end in 1956. He indicated interest in doing NONG's legal work after that. He said he also indicated a desire to purchase some shares in NONG 19 . A key issue at the Commission hearing was the date of this discussion with Farris. Before Commissioner Rand the plaintiff felt it likely occurred on July 17, 1956, in the

19 I have generally summarized this evidence. The Commis sioner went into detail.

evening, after the Council meeting. That was the meeting where the by-law passed third reading. In testimony by the plaintiff in the previous proceedings referred to (the Ontario Securities Commission, the Farris preliminary and the Farris trial), he had thought the conversation had occurred sometime in the first two weeks of July. That earlier evidence, vague, if not inconsistent, was put to the plaintiff at the Commission.

In any event, a letter, dated July 20, 1956, was sent by NONG to the plaintiff. Among other things, it referred to the plaintiff's interest in assisting the company in some capacity in the future. It referred to his desire to purchase stock. It went on to say there had been a change in the capital of the company. Shares had been split five for one; existing shareholders had been given the right to subscribe for a limited number of shares at $2.50 per share.

At the same time it was resolved to offer you 10,000 shares at the same price of $2.50 per share. This offer is firm until July 18th, 1957. Should you wish to purchase portions of these shares at different times, that will be in order.

On July 30, 1956, the plaintiff wrote in reply. He said in part:

I fully appreciate the advantages of the offer you outline to me and I fully intend to exercise this option before July 18th, 1957.

On September 19, 1956, the plaintiff wrote Farris as follows:

Mr. Ralph K. Farris, President, Northern Ontario Natural Gas Co. Ltd.,

44 King Street, W., Suite 2308, TORONTO, Ontario.

My dear Ralph:

On the early morning of Tuesday following our meeting in North Bay, I was in conversation with the Minister of Justice and some other high official. I made my decision-1 accepted.

After the dilemma of whether to have my appendix out or not, the dilemma of remaining a bachelor and happy or get married—this was the biggest dilemma! I feel that given three or four years and with my ambition, I would have squeezed you out of the Presidency of your Company—now I have chosen to be put on the shelf of this all-inspiring, [sic] unapproachable, staid class of people called Judges—what a decision! However, right or wrong, I will stick to it and do the best 1 can.

I want to assure you that my interest in your Company, outwardly aloof, will, nevertheless, remain active. 1 am keep ing your letter of July 20th carefully in my file. 20

Sincerely,

LAL:lmg Leo

There was a discussion between Farris and the plaintiff later in the fall of 1956, some time after the plaintiff's swearing in as a judge. Farris asked the plaintiff whether he still wanted the shares. The plaintiff replied that he did.

The plaintiff himself did nothing further until some time in 1957. He said he received a phone call from someone about the

20 The underlining was added by Commissioner Rand.

shares. The substance of it was that the shares were then trading for approximately $10.00; 2500 of the shares were to be sold to pay off the total number of 10,000. This meant, of course, the plaintiff never actually paid money. The Commis sioner dealt at considerable length with the evidence as to the identity of the person who telephoned the plaintiff. The latter had always been adamant in the prior proceedings, and again at the Commission, that the caller was not Farris. The Commis sioner decided that it was Farris.

On February 12, 1957, Continental Investment Corporation Ltd., a broker, wrote the plaintiff as follows:

Vancouver, B.C. February 12, 1957

Mr. Justice L. A. Landreville,

Osgoode Hall,

Toronto, Ontario.

Dear Sir:

Some time ago, we were instructed by Mr. R. K. Farris to purchase for your account, 10,000 shares of Northern Ontario Natural Gas Company Limited at $2.50 per share. We have as of this date sold 2,500 shares for your account at $10.00 per share which clears off the debit balance in your account.

You will find enclosed 7,500 shares of Northern Ontario Natural Gas Company Limited with stock receipt attached, which we ask you to sign and return to this office at your convenience.

Yours truly,

Continental Investment Corporation Ltd.

JM:AH John McGraw The plaintiff replied on February 16, 1957:

Osgoode Hall Toronto 1,

Feb. 16th, 1957

Continental Investment Corporation,

Vancouver, B.C.

Dear Sirs:

Re: Northern Ontario Natural Gas Co.

I have received yours of the 12th with Stock Certificates enclosed for which I thank you. 1 am enclosing receipt for same.

Should I be of any assistance to your firm for the promo tion and betterment of this company in Ontario, please do not hesitate to contact me.

Sincerely,

L. A. Landreville

The 7,500 shares were later sold, in blocks of various sizes.

The plaintiff realized a profit of $117,000.

I go now to the Commissioner's report.

In the first 68 pages the Commissioner reviewed the history of pipe line development, the involvement of the City of Sud- bury and the plaintiff, and the latter's dealings with NONG. In respect of those dealings and the receipt of the shares, he canvassed in detail the evidence the plaintiff had given in the

three previous proceedings, and the evidence he gave at the Commission.

The Commissioner characterized the shares as a gift. He did not accept the contention that the correspondence of July 20, and July 30, 1956 amounted to an option, if not legally enforceable, perhaps morally enforceable. I quote from pages 68-69:

Arising out of the distribution of the 14,000 shares, pros ecutions were launched against the mayors of four munici palities by which franchises had been granted: Sudbury, Orillia, Gravenhurst and Bracebridge. The offences charged were the same: in substance that NONG stock received by the mayors had been corruptly bargained for and that each, for the promise of reward, had used his influence to assist NONG in obtaining a franchise from his municipality. In three of them the information was dismissed on the ground of insufficient evidence to justify committing the accused to trial; in the fourth, that of Orillia, the accused was acquitted in a county court jury trial. Following these, a public state ment was issued by the Attorney General that in the circum stances no Bill of Indictment would be preferred by him before a Grand Jury in any of the three cases of dismissal.

To the Province there has been committed by Section 92 of the British North America Act exclusive jurisdiction over the administration of justice. The courts here concerned are provincial courts although judges of the Supreme and County Courts are appointed by the Dominion Government. Such a charge levelled against a Judge of the Supreme Court of Ontario becomes obviously a matter of primary provincial interest; and in the case of Justice Landreville, it was to vindicate that as well as the general interest in municipal government, and the enforcement of the criminal law, also provincial matters, that the prosecution was brought. This formal action of the provincial authorities creates a situation where their judgment arrived at by a consideration of all the circumstances, must be accorded a respectful recognition by this Commission. That means that an originally corrupt agreement between Farris and Justice Landreville to bargain shares for influence is not to be found to be established; the presumption arises that there was no such agreement. Such a matter is a question of state of mind; the external facts are before us; what is hidden is the accompanying understanding; and it is proper for this Commission to assume that the facts disclosed do not satisfy the requirements of our criminal law that that understanding, beyond a reasonable doubt, was corrupt.

This leads us first to the consideration of a conclusion from these external facts which is consistent with that assumption; and secondly, whether what took place in relation to those facts has infringed any other law or has violated an essential requirement of that standard of conduct which is to be observed by a member of the Supreme Court of a province.

To these considerations personal relations become signifi cant.

The Commissioner, for the next several pages, then set out the plaintiff's personal history prior to his first association with Farris. I think it fair to comment that it does not appear to

have been recorded in a completely objective way. Purely as one example, I quote these two sentences:

His emotions are active and he can be highly expansive; he is fascinated by the glitter of success and material well-being. His outlook is indicated by a residence in Mexico, as well as a lodge some miles from Sudbury.

The remainder of the report to page 98, is, as I read it, the basis for the Commissioner's second and third conclusions.

Counsel for the plaintiff contends the Commissioner, in inquiring into, and expressing findings and opinions on, the matters set out from pages 69 to 98, exceeded his terms of reference; he therefore exceeded or lost jurisdiction; the plain tiff is entitled to a declaration accordingly.

It is necessary at this stage, in order to fully appreciate the contention on behalf of the plaintiff, to set out the formal conclusions of the Commissioner. These appear on pages 107 to 108:

Drawn from the foregoing facts and considerations, the following conclusions have been reached:

1—The stock transaction between Justice Landreville and Ralph K. Farris, effecting the acquisition of 7,500 shares in Northern Ontario Natural Gas Company, Limited, for which no valid consideration was given, notwithstanding the result of the preliminary inquiry into charges laid against Justice Landreville, justifiably gives rise to grave suspicion of impro priety. In that situation it is the opinion of the undersigned that it was obligatory on Justice Landreville to remove that suspicion and satisfactorily to establish his innocence, which he has not done.

II—That in the subsequent investigation into the stock trans action before the Securities Commission of Ontario in 1962, and the direct and incidental dealing with it in the proceed ings brought against Ralph K. Farris for perjury in 1963 and 1964 in which Justice Landreville was a Crown witness, the conduct of Justice Landreville in giving evidence constituted a gross contempt of these tribunals and a serious violation of his personal duty as a Justice of the Supreme Court of Ontario, which has permanently impaired his usefulness as a Judge.

III—That a fortiori the conduct of Justice Landreville, from the effective dealing, in the spring of 1956, with the proposal of a franchise for supplying natural gas to the City of Sudbury to the completion of the share transaction in Febru- ary 1957, including the proceedings in 1962, 1963 and 1964, mentioned, treated as a single body of action, the concluding portion of which, trailing odours of scandal arising from its initiation and consummated while he was a Judge of the Supreme Court of Ontario, drawing upon himself the onus of establishing satisfactorily his innocence, which he has failed to do, was a dereliction of both his duty as a public official and his personal duty as a Judge, a breach of that standard of conduct obligatory upon him, which has permanently impaired his usefulness as a Judge.

In all three respects, Justice Landreville has proven himself unfit for the proper exercise of his judicial functions.

I do not think anything is to be gained by reviewing or setting out the impugned matters found at pages 69 to 98, or the Commissioner's comments and opinions. It is not for me to

decide whether the evidence or materials referred to by the Commissioner on this aspect of the matter were relevant, cogent or trustworthy. Nor is it for me to decide whether the comments of the Commissioner, on what amounted to the personality and credibility of the plaintiff, were justified or valid. Opinions may well differ. I am only concerned with deciding whether the kind of findings set out in conclusions II and III were reasonably within the terms of reference set out in the Letters Patent.

In my opinion, what I have set out as (b)(ii) of the terms of reference are wide enough to embrace the portions of the Report and the conclusions attacked by the plaintiff. That portion of the term of reference is:

(b) to advise whether, in the opinion of the Commissioner: (ii) whether the Honourable Mr. Justice Landreville has by such dealings [with NONG or its officers or in its shares] proved himself unfit for the proper exercise of his judicial duties.

As I see it, the credibility of the plaintiff was an issue. In conclusion II the Commissioner chose to find that the plaintiffs conduct in giving evidence before the Securities Commission and in the proceedings against Farris, constituted a gross contempt of those tribunals. It is true the Commissioner had before him only the transcript of the evidence given by the plaintiff in those proceedings. He did not have before him the testimony given by other witnesses. Nevertheless, it is my view the question of credibility was within the terms of reference. The quarrel is really with how the Commissioner dealt with the issue, and the facts or matters he chose to rely on. I do not think his method of dealing with the question, though others might have done differently, amounted to going beyond the terms of the reference, and so losing jurisdiction.

I now turn to the final main submission on behalf of the plaintiff.'

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