Strange, C.J.P.C. v. Mackin, P.C.J., (1996) 176 N.B.R.(2d) 321 (CA)

• Judge: Ryan, Turnbull and Bastarache, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: April 12, 1996
• Jurisdiction: New Brunswick
• Citations: (1996), 176 N.B.R.(2d) 321 (CA)

Strange, CJPC v. Mackin, PCJ (1996), 176 N.B.R.(2d) 321 (CA);

    176 R.N.-B.(2e) 321; 447 A.P.R. 321

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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The Honourable Judge Ian P. Mackin (appellant/respondent) v. The Honourable Chief Judge H. Hazen Strange (respondent/applicant)

(304/95/CA)

Indexed As: Strange, C.J.P.C. v. Mackin, P.C.J.

New Brunswick Court of Appeal

Ryan, Turnbull and Bastarache, JJ.A.

April 12, 1996.

Summary:

The Province of New Brunswick amended the Provincial Court Act to eliminate super­numerary status. Supernumerary judges could either elect to return to full-time positions or retire. Those who did not elect were deemed to have elected to return full-time. Mackin, P.C.J., did not elect and sought an injunction restraining the Chief Justice of the Provincial Court (Strange, C.J.P.C.) and the Provincial Minister of Justice from assigning him to judicial duties pending the commencing of his lawsuit against the Province.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision not reported in this series of reports, dismissed the application. Mackin, P.C.J., declared that it would be improper for him to sit, hear and decide cases until his dispute with the Prov­ince was resolved by a superior court. Strange, C.J.P.C., applied for an order in the nature of mandamus requiring Mackin, P.C.J., to carry out his assignments.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision not reported in this series of reports, allowed the applica­tion and directed Mackin, P.C.J., "to hold sittings at the places and on the days desig­nated by the Chief Judge of the Pro­vincial Court of New Brunswick and to hear and determine cases properly brought before him during such sittings." The court also ordered Mackin, P.C.J., to pay costs of $1,000. Mackin, P.C.J., appealed.

The New Brunswick Court of Appeal allowed the appeal in part and varied the order to direct Mackin, P.C.J., "to hold sittings at the places and on the days desig­nated by the Chief Judge of New Bruns­wick." The court struck out the order re­specting costs.

Administrative Law - Topic 3504

Judicial review - Mandamus - General - Conditions precedent - The New Bruns­wick Court of Appeal reviewed the re­quire­ments that must be satisfied before mandamus will issue - See paragraph 8.

Administrative Law - Topic 3510

Judicial review - Mandamus - General - Review of exercise of discretionary power - The New Brunswick Court of Appeal stated that "[t]he issuing of an order in the nature of mandamus is discretionary with the trial judge, and it should not be left to a higher tribunal to sift the evidence in order to determine which facts satisfy which principles of a precedent relied upon by the trial judge." - See paragraph 13.

Administrative Law - Topic 3551

Judicial review - Mandamus - Conditions precedent - General - [See Administra­tive Law - Topic 3504 and first Courts - Topic 583 ].

Administrative Law - Topic 3676

Judicial review - Mandamus - Mandamus to courts and judicial officers - General - [See first Courts - Topic 583 ].

Administrative Law - Topic 3683

Judicial review - Mandamus - Mandamus to courts and judicial officers - Judicial duties - Declension of jurisdiction - The Provincial Court Act was amended to eliminate supernumerary status - Supernu­merary judges could return to full-time positions or retire - Those who did not elect were deemed to have elected to return full-time - Mackin, P.C.J., did not elect and declared that it would be improper for him to hear and decide cases until his dispute with the province was resolved - Strange, C.J.P.C., obtained a mandamus order directing Mackin, P.C.J., to carry out his assignments - Mackin, P.C.J., appealed - The New Brunswick Court of Appeal concluded that Mackin, P.C.J., had jurisdiction to hear and deter­mine cases, the legislation was valid until determined otherwise following a trial of the issues and mandamus was an appropri­ate remedy.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - Upon the elimination of the status of supernumerary judges in New Brunswick, Mackin, P.C.J., was deemed to be in a full-time position - Mackin, P.C.J., re­fused to carry out judicial duties - Strange, C.J.P.C., sought mandamus to direct Mackin, P.C.J., to return to his duties - The motions judge allowed the application, stating that he was satisfied that all the requirements for the order were fulfilled, but did not relate the facts to the principles - Mackin, P.C.J., appealed - The New Brunswick Court of Appeal concluded that the motions judge ought to have related the facts to principles relied on, where all the principles did not apply - Given the importance of the matter and the parties right to know why the case was won or lost, the court related the evidence to the principles - See paragraphs 26, 27.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - [See Courts - Topic 585 ].

Courts - Topic 585

Judges - Duties - Duty to relate facts to legal principles - The Chief Justice of the New Brunswick Provincial Court, Strange, P.C.J., obtained a mandamus order direct­ing Mackin, P.C.J., to return to his duties - Mackin, P.C.J., appealed on the basis that the motions judge failed to give rea­sons for his decision - Strange, P.C.J., relied on R. v. Burns (S.C.C.) for the proposition that it was unnecessary to give reasons in every case - The New Bruns­wick Court of Appeal concluded that it was incumbent upon the motions judge to give adequate reasons - Instead of revers­ing the decision, the court undertook to provide reasons on the appeal - The court noted that R. v. Burns was a criminal case and inapplicable - Further, the motions judge's failure to relate the evidence to the principles relied on was not a failure to dis­cuss collateral aspects - See paragraphs 8 to 25.

Courts - Topic 5884

Provincial courts - New Brunswick - Provincial Court - Jurisdiction - General - [See Administrative Law - Topic 3683 ].

Practice - Topic 6252

Judgments and orders - Setting aside orders - Grounds for - Upon the elimi­nation of the status of supernumerary judges in New Brunswick, Mackin, P.C.J., was deemed to have returned to a full-time position - Mackin, P.C.J., refused to carry out his judicial duties - Strange, C.J.P.C., obtained an order in the nature of mandamus directing Mackin, P.C.J., "to hold sittings at the places and on the days designated by the Chief Judge of the Pro­vincial Court of New Brunswick and to hear and determine cases properly brought before him during such sittings" - Mackin, P.C.J., appealed, asserting that the order was vague and indeterminate - The New Brunswick Court of Appeal con­cluded that the second part of the order relating to hearing and deter­mining cases properly was redundant as being subsumed in the first part of the order and should be struck out - In any event, such was part of Mackin, P.C.J.'s duty once assigned a case - See para­graphs 28, 29.

Practice - Topic 7029.8

Costs - Party and party costs - Entitle­ment to - Successful party - Exceptions - Situation of unsuccessful party - Upon the elimination of the status of supernumerary judges in New Brunswick, Mackin, P.C.J., was deemed to have returned to a full-time position - Strange, C.J.P.C., obtained an order in the nature of mandamus re­quiring Mackin, P.C.J., to perform his duties and pay $1,000 in costs - The New Brunswick Court of Appeal concluded that costs should not have been awarded - Mackin, P.C.J.'s decision, albeit mistaken, was made conscientiously and in fur­therance of what he believed to be the best interest of the justice system - See para­graph 34.

Practice - Topic 8983

Appeals - When appeal available - From reasons for judgment - [See first Courts - Topic 583 ].

Practice - Topic 9428

Appeals - Grounds of appeal - Objection to reasons for decision - [See first Courts - Topic 583 ].

Cases Noticed:

American Cyanamid Co. v. Ethicon Ltd., [1975] 1 All E.R. 504; [1975] A.C. 396 (H.L.), refd to. [para. 5].

Met­ropolitan Stores (MTS) Ltd. v. Man­itoba Food and Commercial Workers, Local 832 and Labour Board (Man.), [1987] 1 S.C.R. 110; 73 N.R. 341; 46 Man.R.(2d) 241; 18 C.P.C.(2d) 273; 38 D.L.R.(4th) 321; 25 Admin. L.R. 20, refd to. [para. 5].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241; 111 D.L.R.(4th) 385; 54 C.P.R.(3d) 114, refd to. [para. 5].

Apotex Inc. v. Merck & Co. and Merck Frosst Canada Inc., [1994] 1 F.C. 742; 162 N.R. 177 (F.C.A.), affd. (1994), 176 N.R. 1 (S.C.C.), appld. [para. 7].

Karavos v. Toronto (City), [1948] 3 D.L.R. 294 (Ont. C.A.), consd. [para. 9].

Commission des relations du travail (Qué.) v. Association unie des compagnons et apprentis de l'industrie de la plomberie et de la tuyauterie des Etats-Unis et du Canada, [1969] S.C.R. 466, refd to. [para. 19].

Harper, Re; R. v. McGann and Charters (1986), 70 N.B.R.(2d) 361; 179 A.P.R. 361 (T.D.), refd to. [para. 20].

R. v. McGann and Charters - see Harper, Re; R. v. McGann and Charters.

Harelkin v. University of Regina, [1979] 2 S.C.R. 561; 26 N.R. 364; [1979] 3 W.W.R. 676; 96 D.L.R.(3d) 14, refd to. [para. 22].

Maple Lodge Farms Ltd. v. Canada et al., [1980] 2 F.C. 458 (T.D.), affd. [1981] 1 F.C. 500; 42 N.R. 312 (F.C.A.), affd. [1982] 2 S.C.R. 2; 44 N.R. 354, refd to. [para. 22].

Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1985] 1 F.C. 719 (T.D.), revd. [1987] 1 F.C. 406; 73 N.R. 241 (F.C.A.), affd. [1989] 2 S.C.R. 49; 97 N.R. 241, refd to. [para. 22].

Friends of the Oldman River Society v. Canada (Minister of Transport and Min­ister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 32 N.R. 321; [1992] 2 W.W.R. 193, refd to. [para. 23].

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161; 89 C.C.C.(3d) 193; 29 C.R.(4th) 113, dist. [para. 26].

R. v. Smith (D.A.), [1990] 1 S.C.R. 991; 111 N.R. 144; 109 A.R. 160, refd to. [para. 26].

R. v. MacDonald, [1977] 2 S.C.R. 665; 9 N.R. 271; 29 C.C.C.(2d) 257, refd to. [para. 26].

Willick v. Willick, [1994] 3 S.C.R. 670; 173 N.R. 321; 125 Sask.R. 81; 81 W.A.C. 81; 119 D.L.R.(4th) 405; 6 R.F.L.(4th) 161, refd to. [para. 26].

Statutes Noticed:

Rules of Court (N.B.), rule 69 [para. 2].

Authors and Works Noticed:

Blackstone's Commentaries on the Laws of England (1765), vol. 3, para. 110 [para. 3].

Counsel:

J. Brent Melanson, for the appellant;

R. Bruce Eddy and Paula Barnsley, for the respondent.

This appeal was heard on March 20, 1996, before Ryan, Turnbull and Bastarache, JJ.A., of the New Brunswick Court of Appeal.

On April 12, 1996, Ryan, J.A., delivered the following judgment for the Court of Appeal.