Province seeks advice from Appeal Court after judge's recusal

The New Brunswick government is asking the province's top court to weigh in on how to handle the recusal of a judge who says he was compromised over his proposed transfer from Saint John to Fredericton.

The Office of the Attorney General says it wants the New Brunswick Court of Appeal to recommend whether the case should go back to square one after Court of Queen's Bench Justice Thomas Christie removed himself from hearing it last week.

The case is a judicial review of a provincial accounting decision, but it has reopened a debate over the independence of the courts.

• Judge rules he can't hear lawsuit against province after minister vetoed his transfer
• Judge-moving bill aims to help Dominic LeBlanc, Tory MLA charges

Court of Queen's Bench Chief Justice David Smith planned to transfer Christie from Saint John, where he hears cases, to Fredericton, where he lives, effective Nov. 15.

But Justice Minister Denis Landry, using new powers passed into law in May, blocked the quick move, saying he wanted time to consult the federal government and local lawyers first.

That prompted Christie to remove himself from hearing the judicial review. He wrote in a Nov. 27 decision that he couldn't hear a legal case against the province while the province was involved in his transfer.

"I am in a position to influence certain interests of the province," Christie wrote. "At this same time, the minister now purports to be in a position to influence certain interests of mine.

"That intersection of interests cannot exist in a justice system which survives on confidence that the judiciary is, in perception and reality, truly independent."

The province isn't asking the appeal court to overturn Christie's recusal.

But it says the court may need to get involved in what should happen to the case the judge has dropped.

The province had already asked the court to hear an appeal of a preliminary decision Christie made in the legal dispute on Nov. 2, just days before Smith tried to transfer him.

Seeking direction from court

Government lawyer Rick Williams argues Christie made several legal errors in that preliminary ruling.

On Monday, the province filed a revised application for appeal with a new paragraph about Christie's recusal.

It says if the court upholds Christie's preliminary ruling, the province "will seek direction" from the court on whether the application "should be restarted from the beginning by a different Judge" if the case is sent back to the Court of Queen's Bench.

The Liberal government amended the Judicature Act in May to take away Smith's unilateral power to transfer Court of Queen's Bench judges.

The new sections give the justice minister the power to refuse a transfer. Smith says that threatens the independence of the courts, though the government says similar provisions exist in other provinces.

The case Christie was hearing is a challenge by the New Brunswick Association of Nursing Homes to the province's 2016 decision to include the assets and liabilities of nursing homes in the province's financial statements.

The office of the comptroller made the decision based on the reasoning that the province subsidizes nursing homes to the point it "controls the operations" and should treat the homes as government entities.

Province had a duty

Christie's ruling on Nov. 2 was meant to clear the air on procedural questions with the association's application, including whether the province's decision was even subject to a court review.

The association agrees the comptroller has the legal authority to include the nursing homes on the province's books but is disputing whether it's justified.

Christie ruled that the province had "a duty of procedural fairness" to consult the association first, but the province is arguing his decision conflicts with Court of Appeal rulings in 2015 and 2016 that said the courts should defer to the province on administrative decisions.