A Former Adjudicator Contemplates the Ontario Court of Appeal’s Mix-Up

When I first heard about the confusion around the Ontario Court of Appeal’s decision in Hilson v. 1336365 Alberta Ltd. (“the withdrawal decision”), I, like many others (I assume), thought, “how could this have happened?” I sat for a while as a vice-chair of the Ontario Labour Relations Board and as alternate chair of the Ontario Pay Equity Tribunal, very often on a panel of three adjudicators. I decided to track the making of a decision, as I know it, at least, to see where the mistake may have occurred.

A bit of background before going through that process.

First, on May 27, 2019, the Court of Appeal released the (original) decision in Hilson (for which a citation is no longer available), an appeal from a somewhat complex trial decision. Hilson had sued two principals of two corporate investment companies in a condo project. Hilson had provided financing through second mortgages for which the two individuals had signed stand-alone guarantee agreements and she sued when the mortgages went into default. According to one commentary on the case, Osler’s, the judgement was unanimous. Then on August 13th, the court issued the decision withdrawing the original decision. It turns out that the decision had been signed by a judge who had not heard the case! and not only that, but apparently, according to the court itself, a judge who did hear the case had never seen a draft of the putative “decision” and did not see the final decision.

Second, reading the trial decision makes it clear that this is not an uncomplicated set of facts. The case involved defaulting second mortgages, individual guarantors who signed stand-alone guarantee agreements but argued they were not personally liable, the appropriate limitation period, the proper calculation of damages, raised in a mix of appeals and cross-appeals. It also appears that someone on the appellate court, presumably Feldman J.A. who wrote the May 27th decision, worked through those facts, as evidenced by the summary of the original appeal decision available on Blaney Appeals, which lists Hoy A.C.J.O., Feldman and Paciocco JJ.A. as the members of the panel.

At some point it became clear that a judge who hadn’t heard the case signed the decision and a judge who did hear the case hadn’t signed the decision. What triggered this realization? Did Justice Huscroft see the decision and raise the alarm? Did the parties? Did one of the other members of the panel suddently realize that there was a problem? Did one of the law clerks who may have worked on the case notice? We’re not told. We do know that the original decision was released on May 27th, that there was a summary of it, listing Paciocco J.A. as a panel member on Blaney’s Appeals blog on June 1st and (as far as I know) we hear about the case again on August 13th with the withdrawal decision.

In any event, the court of appeal released its “withdrawal” decision, under the names of the actual panel who heard the appeal, Hoy A.C.J.O., Feldman and Huscroft JJ.A. The original decision was “disappeared”, no longer having the status of a judgement of the court: the withdrawal decision declared, “It is of no force or effect and has been withdrawn.”

After asking the parties what to do and rejecting the respondent’s suggestion “that Justice Huscroft now review and either assent to or dissent from a judgment that he had no role in making”, the court held that the case must be heard again by a differently constituted panel.

So, back to my original question: how could this have happened? I really have no idea, but I can imagine where, at different points in a (hypothetical, but not unrealistic) decision-making process something could go off the rails. Although at the OLRB, we sometimes heard argument separately from the rest of the hearing or the hearing would be based on an agreed statement of facts, usually we would have heard witnesses, as well as other material, and so in that sense, our context was somewhat different from an appeal process, which has only the trial judgement, facta, books of authorities and other relevant documents plus the lawyers arguing the appeal involved. For my purposes, the difference really doesn’t matter.

I begin my consideration of the process of reaching and releasing a decision immediately at the end of the hearing. At that point, we might have a brief discussion about what we thought of the case. Presumably, the panel in Hilson had some discussion, even if brief, and if right after hearing the appeal, we can assume that Huscroft J.A. took part in it. In fact, while the withdrawal decision tells us Huscroft J.A. did not see a draft or the final decision, it doesn’t tell us that he didn’t take part in one or more discussions about the case, although it does state broadly, that “Justice Huscroft did not participate in the preparation of the panel’s judgment”.

At the OLRB the vice-chair would then write a draft decision. This wouldn’t preclude further panel discussion if necessary, but likely consideration of the draft would be the next time the other members of the panel would be involved. Here Justice Feldman apparently wrote the original decision (according to the National Post story). At the OLRB, the draft would probably look like the final decision in form, meaning that it would have the name of the case and the names of the panel members. Here, if that were the process, the Hilson v. 1336365 Alberta Ltd. would be evident, as should the names of panel members Hoy A.C.J.O., Feldman and Huscroft JJ.A.

Here is the second point at which the mistake could occur. Is this when Justice Paciocco’s name mistakenly appeared as a member of the panel hearing the case? Who put it there? At this point, was it a clerical/typographical error that snowballed? The draft prepared by Feldman J.A. should have then gone to the panel members, including, obviously, Huscroft J.A. But the withdrawal decision tells us he didn’t see it. So let’s assume he wasn’t sent it because Paciocco J.A.’s name appeared on it . In that case, Paciocco J.A.would have been sent it for consideration. It would be very surprising if Paciocco J.A. didn’t immediately realize that he hadn’t sat on this case, given the nature of the case. We have to ask, then, whether the draft was sent to anyone or, if it was, whether those who received it actually read it.

Although it is possible at the OLRB that once members saw the draft, they would agree with it, it is also highly possible that they might not. Given that the other members of the OLRB panel would represent employers on the one hand and employees on the other, it was often the case that one member would disagree with the draft. Even a member who more or less agreed with the draft would raise possible changes to it. Sometimes an in-person discussion would result in a decision everyone could agree with, sometimes one member would write a dissent. But there would have to be some discussion about it, most likely in person.

At the OLRB, the vice-chair would frequently revise a draft in response to the other panel members’ comments, which would require further communication with the other panel members. Here, according to the withdrawal decision, there was only one draft. And so there would have been only one opportunity at this point to find out that the wrong judge had been given the draft and, necessarily for the final decision to be reached, had signalled his agreement with it.

Of course, the appeal court panel is composed differently from those at the OLRB. It does not have representative members. It may be that in-person discussions to discuss a draft are less frequent. If one did occur in Hilson, presumably Hoy A.C.J.O. and Feldman J.A. would express surprise if their colleague and stranger to the panel David Paciocco showed up instead of their colleague and fellow panel member Grant Huscroft. Although if anyone should have been surprised, you’d expect it to be Paciocco J.A. as soon as he started to look at the draft (the case name should have been a hint, but if the draft didn’t contain the case name, the first sentence or so should have told him).

What can we conclude from this? It would have been tempting to conclude that Feldman J.A. didn’t distribute a draft, except the withdrawal decision tells us that there was one. Otherwise, we have to conclude that Paciocco J.A. did not read it, but … what? nevertheless advised Feldman J.A. that she finalize the decision, either orally or through some other means? Again, wouldn’t Feldman J.A. have twigged that something was amiss had she received some kind of notification from Justice Paciocco?

And we have to assume that Huscroft J.A. hadn’t noticed that the Hilson case wasn’t proceeding apace; had he wondered where it was, whatever was going on would come to light. Any expression of concern by him or his clerk about whether Feldman J.A. was nearing completion of the draft would have provided a third opportunity to remedy the error, even if the decision had been finalized.

Whatever happened — or didn’t happen — at this stage, Feldman J.A. went ahead and finalized the decision and sent it for the signatures of the other two panel members before it was released. Here is the fourth point at which the mistake could have been noticed and avoided. Once again, though, Paciocco J.A. appears to have received the final decision. It is hard to know whether it is better that he read it and didn’t realize he hadn’t sat on the case or that he didn’t read it at all and simply signed it, indicating his agreement. Or — and I hope not — maybe the habit at the court is merely to send the last page for signatures (even so, there would be some information on the last page that would give the game away once someone glanced at it). I’m assuming, by the way, that this was Justice Paciocco’s real, “live” signature, and not an electronic version inserted by someone else that he didn’t see.

I haven’t forgotten that the associate chief justice would also have seen a draft and the final decision. Whether the panel’s names appeared on the draft, they probably would have appeared on the final decision, on the title page and on the last page. Unless, of course, like lawyers receiving a decision, the judges hasten to the last page and sign this one of a pile of judgements. A fifth opportunity lost.

And we have to ask what role the law clerks played in this process and what it might say about their relationships with the judges. Each of the clerks works for one or two judges for half the year and one or two other judges for the other half; each of the judges would have had access to research and editing by their clerk and conceivably the exchanges of the draft would have occurred with the assistance of the clerks. We can speculate that given the involvement of four judges in this appeal, there were roughly four to six law clerks, maybe more, who saw the draft, and some of them at least likely had some discussion with the judges in person. How did none of the clerks involved not realize that Justice Paciocco in human form or as represented by his signature was an interloper or, by engaging in discussion with him, lead him to the sudden realization that he hadn’t sat on this case? A possible sixth opportunity to get things back on track missed.

The court had the integrity not to blame the appearance of Paciocco J.A.’s name on the final decision on a clerical error, but perhaps that wasn’t an option. Hilson had requested that the decision of the associate chief justice and Feldman J.A. stand and that Justice Huscroft could agree or dissent, but the court rather wisely and appropriately rejected that proposal. It may also be that Justice Huscroft wasn’t content to go along with that suggestion. As the withdrawal decision by Hoy A.C.J.O., Feldman and Huscroft JJ.A.stated, Huscroft J.A. “did not participate in the preparation of the panel’s judgment”. The original decision has no effect. The parties will have to argue the case again before a different panel, unless they can reach an agreement.

The parties will have to bear the cost of arguing the case again. According to the National Post, the court’s senior legal officer expressed regret about this: the court “regret[s] the inconvenience and additional costs caused by this unusual occurrence to the parties”. This must be rather aggravating. It is true that sometimes a case must be reheard because a panel member has become incapacitated or, indeed, has been “promoted” to a higher court and the parties must bear the brunt of that. This situation is not those situations, though. At least theoretically, there are several points at which this error could have been avoided, from early in the case to “the eleventh hour”. Even assuming the draft didn’t include the panel’s names, or there was no in-person discussion of the draft, by the time the final decision was distributed for signature, several red flags had been raised that everyone missed.

John Polyzogopoulos commented on this situation on the Blaney’s Appeals blog three days after the release of the withdrawal decision. After describing what happened and the court’s response, he wrote,

I am sure that the judges and staff involved feel terribly that this could have ever happened, and I understand that the Court has already instituted several procedures to ensure that something like this does not happen again. No one is perfect, not even our venerable Court!

The Ontario Court of Appeal is highly respected and mistakes do happen. There may well be a simple explanation for how a judge who did not hear a case ended up signing the final decision, and how a judge who did hear it never saw a draft of or the final decision. Perhaps there is one of those quirky, one in a hundred years type explanations, a sequence of events that could never happen again. Was it a human error or a computer generated one? (I turn pink whenever I happen to think about the snafu in the name of former court of appeal Justice John Arnup in one of my decisions when it appeared in the Ontario Labour Board Reports, even though it happened many years ago.)

However, it is not unfair to at least ask whether this was a one-off event despite the court’s processes or whether it is the realisation of a risk inherent in the court’s processes (at least, if there have been changes, until now). So often we hear someone say, “oh, don’t worry, we can take the easy or quicker way, no one will find out or care” — and it’s true no one does — until someone does. There is a reason procedures are in place (a good one might be, say, “read any decision you put your name to”). Since it is not difficult to infer rather careless or irresponsible conduct on the part of more than one member of the court from what we do know about the circumstances, one is tempted to muse about whether there is a question of judicial ethics at play — whether judges are performing their job appropriately.

Quite possibly, all my hypothetical possible stages at which the mistake occurred are quite off the mark. We just don’t know. The withdrawal decision tells us enough to know that something went wrong and it released the original judgement “in error” — and good for the court to have gone that far — but it doesn’t go far enough to let us know the explanation for the circumstances that forced it to do so. In fact, it wasn’t the release of the judgement that should be described as “in error”, but rather the process that led to the name of a judge who did not sit on the panel hearing Hilson appearing on the original decision.