Quebec Judicial Council and provincial government still at odds

The Quebec Judicial Council and the Quebec Justice Minister still do not see eye-to-eye.

A month ago Justice Minister Simon Jolin-Barrette and Henri Richard, the new Chief Judge of the Court of Quebec reached an agreement over bilingualism requirements for new judicial appointments that seemingly put an end to an appeal for judicial review before Quebec Superior Court. The review seeks to declare unconstitutional and invalid certain legislative and regulatory provisions adopted in 2022 over selection criteria for candidates for the position of judge of the Court of Québec or of a municipal court.

The December 6, 2023 agreement reiterates that the government is responsible for appointing judges while the Chief Justice of the Court of Québec is responsible for assigning judges, in keeping with the principle of judicial independence.

The agreement also stipulates that a proportion of bilingual judges will be required in certain regions and judicial districts of the province. In Montreal, for example, 90 per cent of judges will have to be fluent in English for the criminal and penal divisions as well as in the youth and civil divisions. But there will be no bilingualism requirement for regions such as the Saguenay-Lac-Saint-Jean, Québec-Chaudière-Appalaches and Mauricie-Bois-Francs-Centre-du-Québec regions.

“The parties agree that this Agreement constitutes a transaction within the meaning of Article 2631 of the Civil Code of Quebec and puts an end to the litigation that opposed them before the Superior Court,” according to the agreement. “Consequently, the parties undertake, before December 11, 2023, to file a notice of settlement out of court and to take the necessary steps to formally terminate the proceedings before the Superior Court, which have become theoretical.”

There is one problem.

The Quebec Judicial Council, one of the parties to the judicial review,  decided it was in the best interest to continue with the judicial review appeal, taking the position that the constitutional issues raised by it were still relevant and should be decided by the courts.

The Quebec Attorney General countered by filing an application to dismiss the appeal. It also sought a declaration that disqualifies the law firm Fasken from representing the Judicial Council because there was a divergence of interest between Chief Judge Richard, who wished to put an end to the litigation, and the Judicial Council which wanted the appeal to go forward. The Attorney General claimed that the Fasken law firm may have benefited from confidential information provided by the Chief Judge, and using such information to counter the Chief Judge’s desire to settle the case would place it in a conflict of interest and bring the administration of justice into disrepute. It also argued that by continuing to act for the Judicial Council in the current circumstances, Fasken would be obliged to choose between the interests of the Judicial Council and those of the Chief Judge Richard.

But Quebec Superior Court Justice Serge Gaudet rejected the Attorney General’s application to dismiss the appeal and its efforts to disqualify Fasken.

Justice Gaudet pointed out that in the case at bar, Fasken’s application for disqualification does not come from Chief Judge Richard, Associate Chief Judge Hughes or Associate Chief Judge Bélanger — who are the former clients of Fasken with respect to the action — but rather from the opposing party in this litigation.

The courts are more circumspect when an application for disqualification comes not from a client or former client to whom a lawyer owes a duty of confidentiality or loyalty, but from a third party to whom the lawyer owes no such duty, and a fortiori when that third party is the adversary in a dispute, noted Justice Gaudet.

“There is then an increased risk that such an application for disqualification will serve strategic purposes that have little to do with maintaining the consideration and integrity of the judicial system,” said Justice Gaudet in Conseil de la magistrature du Québec c. Procureur général du Québec, 2024 QCCS 14.

Moreover, added Justice Gaudet, the conflict of interest rules must not be interpreted “too absolutely,” without taking into account the specific context of each case. Justice Gaudet also held that fundamentally Fasken was not awarded a new mandate that Fasken against its former clients, but rather the same mandate that is continuing without them.

“There is only one mandate here that was given to Fasken by the (Judicial) Council and the Chief Judges, and the fact that the Chief Judges settled the dispute out of court with the Minister, while the Council wishes to continue the appeal, in no way means that a new mandate is being undertaken against the Chief Justices by their former lawyer,” held Justice Gaudet.

“In other words, Fasken, by continuing to act for the Council in the pursuit of what was previously a joint mandate, is in no way acting against its former clients. It is not acting against a former client to pursue litigation that is no longer of interest to that client.”