Indexed as:

Foreman v. Ontario (Police Commission)

Between

Sergeant James Foreman and Karen Marie Deslippe, applicants,

and

The Ontario Police Commission and Leon Paroian, Q.C.,

respondents

[1984] O.J. No. 611

Ontario Supreme Court - High Court of Justice

Toronto Motions Court

Anderson J.

Heard: December 18 and 19, 1984.

Oral judgment: December 19, 1994.

Released: December 24, 1984.

(5 pp.)

J.I. Laskin, for the applicants.

Linda H. Kolyn, for Ontario Police Commission.

R.G. Colautti, for Leon Paroian.

1 ANDERSON J. (Orally):-- This is an application for judicial review. The order sought is in the nature of prohibition restraining a barrister from acting as counsel in the investigation of the Amherstburg Police Force by the Ontario Police Commission and an order in the nature of prohibition restraining the Ontario Police Commission from proceeding with its inquiry pending the disposition of this application.

2 It was necessary to apply for an abridgement of time for the bringing of the motion. That application was not opposed and was granted. Some issue was raised as to the propriety of the hearing of the motion by a single judge, rather than by a full panel of the court. In my view the urgency of the situation makes it appropriate that it should be dealt with by a single judge and I have no hesitation in so doing.

3 The fundamental ground advanced for asking the interference of the court is that a barrister proposes to be engaged in the proceedings who, it is said, has been in receipt of confidential information from the applicants, which it is anticipated may be used to their disadvantage in the course of these proceedings. It is contended that such participation by the barrister is unfair and that by that unfairness the proceedings before the tribunal will be so tainted as to be in themselves unfair.

4 Notwithstanding the present popularity of motions of this kind what is sought is an extraordinary remedy. It is sought in anticipation of an unfair hearing. It involves, if the relief sought be granted, a measure extraordinary in itself, that is the removal of a barrister from his role in a proceeding.

5 The applicants say that confidential information was reposed in the barrister. The barrister denies this and it is obvious that at this time and on this proceeding that dispute cannot be resolved. I am bound to say that there is certainly a reasonable apprehension, or at least an appearance, that confidential information may have been disclosed. However, I am not prepared to forecast the course of the pending proceedings before the Commission. I am not prepared to forecast them in any respect, either as to the fact or the nature of the participation by the barrister in question, or the reaction of the tribunal in the event that such participation occurs and appears to be prejudicial.

6 A judge of a superior court, exercising the extraordinary power to control the proceedings of domestic tribunals, should intervene only in the face of a clear and pressing necessity to do so in order to preserve justice. I do not find myself satisfied on the material before me that it is necessary that I should do so in this case.

7 The applicants may well feel that this disposition is unsatisfactory and that if the anticipated unhappy course of events should occur, any intervention by the court then would be a locking of the door after the horse is stolen. I have not overlooked that and in response can only say that judicial remedies are seldom perfectly satisfactory, anymore than any other elements of life in this imperfect world.

8 Before leaving the matter I may say that I do not wish by the disposition which I make of the motion to imply that I necessarily approve the position taken by the barrister. He is an experienced and capable member of the bar and I have no doubt he proceeded in accordance with his instructions and in accordance with his view as to the facts of the matter. However, the conduct of a barrister must not only be proper, it must appear so, and any question of conduct must be resolved accordingly. Sometimes it is best to withdraw in the face of criticism, even though the criticism is deemed to be unreasonable.

9 It also seems to me, with the greatest deference, that the submissions that were made on his behalf in this matter might have been more seemly if made on behalf of the persons he proposes to represent, if his participation in the proceedings was them perceived to be of importance.

10 The motion will be dismissed.

ANDERSON J.

qp/s/mes