TORONTO — A retired Appeal Court justice has won rare permission to appear in court as a lawyer after he was able to show exceptional circumstances were in play.
In allowing Harry LaForme to act in lawsuits pressed by two Indigenous groups, a panel of the Law Society of Ontario did bar him from making any references to his former judicial role during the proceedings, despite his objections to the condition.
"The licensee should be granted permission to appear as counsel in the two class proceedings," the panel ruled. "Public confidence in the judiciary and the administration of justice may be enhanced as a result of the important need for Indigenous communities to advocate for their rights, and the licensee is uniquely placed to do so."
LaForme, 73, of the Eagle Clan of the Mississaugas of the Credit First Nation, retired from the Ontario Court of Appeal in Oct 2018 after a decades-long career on the bench. Before that, his law practice focused on Indigenous law.
The former justice applied for permission to appear in Federal Court in British Columbia and the Manitoba Court of Queen's Bench in two cases against the federal government related to clean drinking water on three First Nation reserves.
Normally, Ontario's professional conduct rules bar former judges from appearing in court as lawyers. Reasons include putting a sitting judge in the awkward position of having to face a former colleague, and concerns about impartiality.
"The public’s confidence in the justice system could be undermined by the perceived advantage that a former judge may have as an advocate in their former court," the panel noted.
In addition, former judges acting as lawyers might also have to argue a position contrary to one they ruled on from the bench.
As a result, gaining approval is difficult, requiring an applicant to prove the existence of exceptional circumstances. This is the first time in Ontario a former justice has asked for an exemption, the panel said.
In its analysis, the Hearing Division of the Law Society Tribunal noted the Indigenous plaintiffs wanted LaForme as counsel given his unique experience of living on a reserve and extensive legal work on First Nations cases.
The hearing panel also noted that neither Federal Court nor the Manitoba Court of Queen’s Bench are under the appellate jurisdiction of the Ontario Court of Appeal.
"He will be appearing in courts with which there is no previous relationship," the panel said.
The panel did bar LaForme from using his "The Honourable" title or making any reference to his status as a retired judge in any appearances or filings related to the two class action proceedings.
Concerns over bias, conflict of interest, and confidence in the judicial system would be exacerbated if a former judge was permitted to use his title or refer to his previous status, the panel said.
This report by The Canadian Press was first published Oct. 15, 2020.
Colin Perkel, The Canadian Press