Judge rules he can't hear lawsuit against province after minister vetoed his transfer

A Court of Queen's Bench justice has recused himself from a lawsuit against the provincial government because the minister of justice recently vetoed the judge's transfer from Saint John to Fredericton.

Justice Thomas Christie says the transfer, requested by Chief Justice David Smith, was blocked by Justice Minister Denis Landry using controversial new sections of the provincial Judicature Act.

In a crisp seven-page ruling, Christie writes that Landry's veto makes it impossible for him to be impartial in the lawsuit against the same government that stopped his relocation.

"The minister's current involvement in my reassignment places me in an actual conflict of interest position as he is purporting to exercise control over a decision that affects me at the same time I am seized with the present matter," he writes.

"As the judge seized of this case, I am in a position to influence certain interests of the province. At this same time, the minister now purports to be in a position to influence certain interests of mine.

"That intersection of interests cannot exist in a justice system which survives on confidence that the judiciary is, in perception and reality, truly independent."

'Procedural chaos'

It's not clear what Christie's decision means for the lawsuit, which was filed by the New Brunswick Association of Nursing Homes against the provincial government.

The case is an accounting dispute over how the province calculates the assets and liabilities of the nursing homes in its financial statements.

Christie had already made two preliminary rulings in the case.

"Now you have to put a different judge in to hear that issue," said University of New Brunswick law professor Nicole O'Byrne.

"It causes quite a bit of procedural chaos."

Association unsure of suit's future

Jodi Hall, the executive director of the nursing home association, said she doesn't know what will happen next in the case, but "I'm not anticipating going back to square one."

Hall said the association has confidence in the justice system and the situation was beyond its control.

A spokesperson for Landry said in an email statement that the minister "has not blocked anything."

"Chief Justice Smith has requested approval to transfer Justice Christie to Fredericton, and Minister Landry has had an excellent meeting with the Chief Justice and has undertaken to answer expeditiously," the statement said.

"The Minister will make a decision in the weeks ahead. We have no comment on Justice Christie's decision."

Christie says in his recusal decision that Landry told Smith he wanted time to consult the federal government and local lawyers before approving the transfer.

But Christie writes that even if Landry eventually says yes, the minister's involvement still creates a problem.

"More precisely, it is not just about being seen as beyond any potential source of influence from a litigant — it must be real," he says.

Attorney General Serge Rousselle refused to comment because the case is still before the courts, including the possibility of appealing Christie's decision to recuse himself.

New power for minister

The new sections of the Judicature Act, passed in May, give the minister of justice the power to reject any transfer of a Court of Queen's Bench justice by the chief justice.

Before the changes, the chief justice made transfers unilaterally.

Chief Justice David Smith warned at the time the changes could be unconstitutional because they would compromise the independence of the courts.

Christie echoes that in his recusal ruling, calling the situation "an example of the consequences that flow from the blurring of lines and responsibilities between constitutionally separate branches of government — the executive and the judiciary.

"The history and rationale for that division runs deep and is essential in upholding the proper governance of our democracy."

The province argued during debate on the bill that the changes were needed because judges were often appointed to smaller communities in the province then soon transferred to larger cities.

At the time, the Liberals would not provide an example of a transfer they would veto.

Premier Brian Gallant said in December 2016 the changes were "a pretty mundane and small thing" and the government "may never use the power" it was giving itself.

The Opposition Progressive Conservatives accused the Liberals of wanting to block Smith from moving judges into vacancies where they wanted to appoint judges with ties to their party.

'It's regrettable and it's disgraceful'

Progressive Conservative MLA Ted Flemming said Thursday he was "shocked but not surprised" by Christie's decision and blamed the Liberal legislation.

"The administration of justice is being delayed and compromised because of petty politics," he said. "It's regrettable and it's disgraceful."

He said the government should "instantly" introduce a bill to repeal the changes.

O'Byrne said the courts "will absolutely see more recusals like this" in cases in which the province is a party. She agreed the government should reverse the changes.

Christie was appointed a judge by the federal Conservative government in 2013. He said he has never met Landry and resumes "no malice or ill will" in his decision.

A vacancy opened Nov. 6, and Smith wrote to Landry to say he would transfer Christie effective Nov. 15.

The judge, who still lives in Fredericton, said that when he took the appointment to Saint John, he asked Smith to transfer him to Fredericton when a position in the city opened.

"He was in agreement with my request," Christie writes.

But on Nov. 14, Christie said, Smith told him Landry "would not at that time consent to the assignment" and "would be undertaking consultations with the federal government and the local bar on the issue of my return to Fredericton."

In his ruling, Christie questioned whether Landry even has the power to block the move. He said he was not formally designated as living in Saint John when he was appointed in 2013.