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Justices of the peace use retirement to dodge disciplinary hearings

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Less than a month before he was set to face a discipline hearing for allegedly making racist remarks about Indigenous people in court, Kenora Justice of the Peace Robert McNally retired.

As a result, the public hearing into his case scheduled for this month was scrapped, as the law does not allow for the disciplining of retired justices of the peace and provincial court judges.

Critics say it’s time for that to change, and to bring the system closer in line with other bodies that maintain jurisdiction for discipline over retired professionals, such as the College of Physicians and Surgeons of Ontario.

“There is a public interest in judicial oversight bodies retaining jurisdiction to investigate complaints and make appropriate findings against judicial officers even when they retire or resign,” said Michael Lacy, president of the Criminal Lawyers’ Association, one of the organizations that had complained about McNally to the Justices of the Peace Review Council.

“Although sanctions might be limited in such a case, there is value in allowing hearings to proceed. It would provide an opportunity for the judicial officer to answer the complaint and potentially clear his or her name in the face of a serious allegation,” Lacy said.

Judges and justices of the peace have also retired while their cases were being investigated by council complaints committees; in those circumstances, their names are kept secret and only a summary of the complaint against them is published in the councils’ annual reports.

Justices of the peace earn about $132,000 a year, and are appointed by the provincial government. Dressed in black robes and green sashes, they conduct bail hearings, sign off on search warrants and preside over trials in provincial offences court, which deals with non-criminal matters. Provincial court judges are also appointed by the Ontario government and earn about $290,000.

As first reported by the Star, McNally was alleged to have made racist remarks in bail court in August 2017 to lawyer Shannon McDunnough, who is Mi’kmaq. After making a joke about late British comedian Benny Hill, McNally wondered aloud if anyone even knew who Hill was. When McDunnough said she did, a court transcript says McNally responded, “Your ancestors probably scalped him or something.”

McNally, who was appointed in 1993, also faced allegations of judicial misconduct for allegedly acting in a manner that was “rude, dismissive, confrontational, condescending, impatient and sarcastic” in other cases, including allegedly making “inappropriate and gratuitous comments” to a female duty counsel.

Now that the hearing in his case has been cancelled, the allegations remain unproven and the complainants against him are left disillusioned.

“I can’t talk about the specifics of my client, but I can certainly point out that he was interested in fully defending himself when all of this arose almost two years ago,” McNally’s lawyer, Howard Rubel, told the Star. “Suffice it to say that he’s in his mid 70s and mandatory retirement is at 75.”

While recognizing that retirement may be appropriate in some cases, there are others — such as McNally’s — that should proceed for the sake of transparency and accountability, said Mary Bird, area director of Nishnawbe-Aski Legal Services, another organization that complained about McNally.

Cancelling public hearings due to retirement “does not increase the public’s confidence in the administration of justice,” Bird said. “People don’t get to walk simply by saying ‘Oh, I’m going to retire,’ but apparently justices of the peace do.”

The law on disciplining judicial officers in Ontario applies only to sitting judges and justices of the peace, said Marilyn King, who is the registrar of both the Justices of the Peace Review Council and the Ontario Judicial Council.

“Unlike some legislation governing other bodies, neither the Courts of Justice Act or the Justices of the Peace Act contain any provisions that authorize proceeding or imposing dispositions when a person is a former judge or former justice of the peace,” King said.

The law sets out a number of potential penalties for a judge or justice of the peace who has been found guilty of judicial misconduct, including a warning, reprimand, an order to take additional training, paid or unpaid suspension, or a recommendation to the attorney general that the person be removed from office.

Granting power to the two councils to discipline retired jurists would require a change in legislation, something the government is not interested in doing. “Once a judicial official has left office, taking further action would not be an effective use of justice system resources,” said Ministry of the Attorney General spokesman Brian Gray.

University of Toronto law professor Kent Roach disagrees.

“I think from the complainants’ perspective and the public’s perspective there may be an ongoing interest, and frankly from the perspective of other judges and justices of the peace so that they know what is appropriate and inappropriate behaviour,” he said.

Since January 2015, three other justices of the peace have retired before facing discipline hearings:

  • Alfred “Budd” Johnston retired in 2018 before a discipline hearing for alleged courtroom behaviour described as “condescending, sarcastic, bullying and mocking” toward a self-represented defendant. In 2014, Johnston was suspended without pay for seven days for dismissing 68 traffic cases because a prosecutor was 71 seconds late. At that time, his lawyer told the discipline panel that Johnston intended to retire in the summer of 2015.

Robert Whittaker retired in March 2015, just 10 days before a scheduled discipline hearing regarding allegations that he showed a lack of understanding to people with mental illnesses and had preconceived notions of Somalis. The review council recommended reimbursing Whittaker about $4,600 in public funds to cover part of his legal costs.

Santino Spadafora retired for a second and final time in January 2015 prior to facing a discipline hearing for allegations that he falsified more than 600 expense claims for meals, hotels, highway tolls and mileage for court dates in the Niagara region, totalling more than $16,000. Spadafora was originally supposed to face a hearing in November 2014, but retired, which led to the hearing being cancelled. Days later, he withdrew his offer to retire, which led to the hearing being rescheduled for January 2015, at which point he retired again. Then-attorney general Madeleine Meilleur accepted a review council recommendation to reimburse Spadafora $14,600 in legal costs.

Jacques Gallant is a Toronto-based reporter covering legal affairs. Follow him on Twitter: @JacquesGallant

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Anglais

‘Business as usual’ for Dorel Industries after terminating go-private deal

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MONTREAL — Dorel Industries Inc. says it will continue to pursue its business strategy going forward after terminating an agreement to go private after discussions with shareholders.

« Moving ahead. Business as usual, » a spokesman for the company said in an email on Monday.

A group led by Cerberus Capital Management had previously agreed to buy outstanding shares of Dorel for $16 apiece, except for shares owned by the family that controls the company’s multiple-voting shares.

But Dorel chief executive Martin Schwartz said the Montreal-based maker of car seats, strollers, bicycles and home furniture pulled the plug on a deal on the eve of Tuesday’s special meeting after reviewing votes from shareholders.

“Independent shareholders have clearly expressed their confidence in Dorel’s future and the greater potential for Dorel as a public entity, » he said in a news release.

Dorel’s board of directors, with Martin Schwartz, Alan Schwartz, Jeffrey Schwartz and Jeff Segel recused, unanimously approved the deal’s termination upon the recommendation of a special committee.

The transaction required approval by two-thirds of the votes cast, and more than 50 per cent of the votes cast by non-family shareholders.

Schwartz said enhancing shareholder value remains a top priority while it stays focused on growing its brands, which include Schwinn and Mongoose bikes, Safety 1st-brand car seats and DHP Furniture.

Dorel said the move to end the go-private deal was mutual, despite the funds’ increased purchase price offer earlier this year.

It said there is no break fee applicable in this case.

Montreal-based investment firm Letko, Brosseau & Associates Inc. and San Diego’s Brandes Investment Partners LP, which together control more than 19 per cent of Dorel’s outstanding class B subordinate shares voiced their opposition to the amended offer, which was increased from the initial Nov. 2 offer of $14.50 per share.

« We believe that several minority shareholders shared our opinion, » said Letko vice-president Stephane Lebrun, during a phone interview.

« We are confident of the long-term potential of the company and we have confidence in the managers in place.”

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Anglais

Pandemic funds helping Montreal businesses build for a better tomorrow

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Many entrepreneurs have had to tap into government loans during the pandemic, at first just to survive, but now some are using the money to better prepare their businesses for the post-COVID future.

One of those businesses is Del Friscos, a popular family restaurant in Dollard-des-Ormeaux that, like many Montreal-area restaurants, has had to adapt from a sit-down establishment to one that takes orders online for takeout or delivery.

“It was hard going from totally in-house seating,” said Del Friscos co-owner Terry Konstas. “We didn’t have an in-house delivery system, which we quickly added. There were so many of our employees that were laid off that wanted to work so we adapted to a delivery system and added platforms like Uber and DoorDash.”

Helping them through the transition were emergency grants and low-interest loans from the federal and provincial governments, some of which are directly administered by PME MTL, a non-profit business-development organization established to assist the island’s small and medium-sized businesses.

Konstas said he had never even heard of PME MTL until a customer told him about them and when he got in touch, he discovered there were many government programs available to help his business get through the downturn and build for the future. “They’ve been very helpful right from day one,” said Konstas.

“We used some of the funds to catch up on our suppliers and our rents, the part that wasn’t covered from the federal side, and we used some of it for our new virtual concepts,” he said, referring to a virtual kitchen model which the restaurant has since adopted.

The virtual kitchen lets them create completely different menu items from the casual American Italian dishes that Del Friscos is known for and market them under different restaurant brand names. Under the Prasinó Soup & Salad banner, they sell healthy Greek options and their Stallone’s Sub Shop brand offers hearty sandwiches, yet the food from both is created in the same Del Friscos kitchen.

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Anglais

Downtown Montreal office, retail vacancies continue to rise

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Some of downtown Montreal’s key economic indicators are heading in the wrong direction.

Office and retail vacancies in the city’s central core continued to climb in the fourth quarter of 2020, according to a quarterly report released Thursday by the Urban Development Institute of Quebec and the Montréal Centre-Ville merchants association. The report, whose first edition was published in October, aims to paint a socio-economic picture of the downtown area.

The survey also found office space available for sublet had increased during the fourth quarter, which may foreshadow even more vacancies when leases expire. On the residential front, condo sales fell as new listings soared — a sign that the downtown area may be losing some of its appeal to homeowners.

“It’s impossible not to be preoccupied by the rapid increase in office vacancies,” Jean-Marc Fournier, the former Quebec politician who now heads the UDI, said Thursday in an interview.

Still, with COVID-19 vaccinations set to accelerate in the coming months, “the economic picture is bound to improve,” he said. “People will start returning downtown. It’s much too early to say the office market is going to disappear.”

Public health measures implemented since the start of the pandemic almost a year ago — such as caps on office capacity — have deprived downtown Montreal of more than 500,000 workers and students. A mere 4,163 university and CEGEP students attended in-person classes in the second quarter, the most recent period for which figures are available. Border closures and travel restrictions have also brought tourism to a standstill, hurting hotels and thousands of local businesses.

Seventy per cent of downtown workers carried out their professional activities at home more than three days a week during the fourth quarter, the report said, citing an online survey of 1,000 Montreal-area residents conducted last month.

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