Angevine v. Ontario: Judicial Appointment Promise Unenforceable

Back in November of 1992, a Crown Attorney named Donald Angevine applied for an appointment to the Ontario Provincial Court. In the weeks that followed, he was interviewed first by the Judicial Appointment Advisory Committee (JAAC)—designed specifically to limit the appearance of political influence—and subsequently by the Judicial Council. According to Angevine, the Judicial Council interviewers assured him that there were “no impediments to his appointment.”

A day or two before Christmas of that same year, Angevine received a phone call from then Attorney General of Ontario, Mr. Howard Hampton. Angevine alleges that Hampton congratulated him on being “chosen to be appointed to the Provincial Court,” and assured him that the appointment was imminent. Hampton remembers the call somewhat differently, claiming that the “congratulations” he offered was solely in response to the JAAC having recommended Angevine as a candidate for appointment. While Hampton was planning to recommend Angevine to Cabinet, he had not yet had the opportunity to do so.

One month later, before any new judicial vacancies arose, Howard was shuffled from his post as Attorney General. Evidently, Howard did pass on a list of candidates that he had planned to recommend, and the plaintiff was included in that list. As the very existence of this case implies, however, the new Attorney General did not adhere to Howard’s recommendations.

The motion being considered here is one brought by the Crown seeking a summary judgment dismissing the plaintiff’s breach of contract claim. The motion presents three issues for consideration, each of which, if satisfied, would provide sufficient grounds for dismissal. (1) Can a judicial appointment be the subject of a contract? (2) If a contract could exist, does one exist in this case? (3) Is the claim statute-barred?

(1) Can a judicial appointment be the subject of a contract? Justice Parayeski, for the Ontario Superior Court of Justice, wastes no time in determining that it cannot, as “judicial appointment is a discretionary, executive function of Cabinet, and of no one else.” Justice Parayeski is essentially making two points. First and foremost, he is pointing to the fundamental value of judicial independence, as confirmed by the Supreme Court of Canada in the Provincial Judges Reference. An independent judiciary, free from political interference, is “a necessary precondition to public confidence in our judicial system.” Indeed, the perception of independence may be as important as independence itself—hence, the creation of the JAAC. It pretty much goes without saying that allowing a politician’s personal promise to constitute an enforceable contract—requiring the exchange of valuable consideration—would undermine public trust. Ultimately, Justice Parayeski grounds his decision in the illustrative words of Osgoode’s own John McCamus: “Agreements that tend to undermine the proper functioning of public institutions are considered void as against public policy.”

Justice Parayeski’s second, and slightly more technical point is that the appointment scheme literally makes it impossible for judicial appointments to be the subject of a binding promise. This is because the Courts of Justice Act sets out three distinct levels of discretion: the JAAC, the Attorney General and Cabinet. Once candidates have been endorsed by both the JAAC and the Attorney General, it is Cabinet that makes the ultimate decision, as per s. 42(1) of the Act. As such, the Attorney General alone does not have sufficient legislative authority to make an enforceable promise with respect to judicial appointments.

(2) If a contract could exist, does one exist in this case? Having found that it is impossible for a contract to exist, it is entirely unnecessary for Justice Parayeski to address this issue. Nonetheless, he opts to answer the question in brief. In refuting the formation of a valid contract, he points first to the fact that Angevine knew—or at least should have known—that Hampton had no power to bind Cabinet. Justice Parayeski then points to the lack of evidence demonstrating mutual assent. Even if Hampton had said exactly what Angevine alleges, there are numerous possible interpretations of his statements.  As such, there is clearly no evidence to indicate the requisite meeting of minds.

(3) Is the claim statute-barred? Justice Parayeski explains that there are three statutory limitation periods that could potentially be applied to this claim. Before 2004, the Public Authorities Protection Act imposed a 6-month limit and the Limitations Act imposed a 6-year limit. Since 2004, Ontario’s Limitations Act has imposed a strict 2-year limitation period. Without fully exploring which limitation period is most appropriately applied—6 months, 2 years or 6 years—Justice Parayeski reiterates the rule that time starts running when the plaintiff has a subjective awareness of the facts underlying his claim. In this case, evidence clearly showed that Angevine began writing his statement of claim in 2000. The action, however, was not filed until 2007. Regardless of which limitation period is most appropriate, the claim was clearly too late.

Ultimately, Angevine’s attempt to establish breach of contract wasn’t even close. After reading Justice Parayeski’s decision, it is hard to imagine how any Crown Attorney could have possibly thought that such a claim would fly, let alone a Crown Attorney who thought that he possessed the makings of a judge. In hindsight, Ontario’s justice system may have dodged a bullet on this one.