Confidentiality

1.0 Introduction

The Judicial Appointments Advisory Committee has developed two fundamental principles on the issue of confidentiality of committee information. These are:

(a) information about general committee process is open to any person,

(b) information about particular candidates is confidential unless released by candidates themselves.

2.0 Information on Process and Procedures

The Courts of Justice Act, by virtue of the amendments made in 1995, requires that the Committee have 13 members of which the majority shall be lay persons, i.e., neither judges nor lawyers.  The appointing bodies are required to recognize that the Committee should reflect the diversity of Ontario’s population and maintain linguistic duality, minority and gender balances.

The criteria for, and the manner of, selection of candidates are outlined in this Report.

Committee members individually speak to organizations and at legal conferences to publicize the process of appointments and believe that the process should be open and transparent.

3.0 Information on Persons who are applying for Appointment

By contrast to the preceding section, the Committee goes to great lengths to protect the privacy of the applicant. These measures include:

1. keeping sensitive information securely stored;
2. keeping applicants apart on interview days;
3. destroying or shredding applications and notes as soon as possible after appointment of a candidate;
4. advising references that all information received will be kept in confidence by the Committee;
5. advising lawyers, judges, court officials and community contacts approached for discreet inquiries that their names will not be associated with their confidential comments;
6. maintaining strict non-access to our files, except as provided for in the legislation, including government personnel not associated with the Committee;
7. holding all meetings and interviews in non-government locations.

Criteria for Appointment

It is important that eligible members of the Bar and the public be aware of the criteria used by the Committee in the selection of candidates for recommendation, and for convenience, those criteria are reiterated again in the Annual Report.

The current Summary Statement of the criteria is as follows:

1.0 Criteria for Evaluating Candidates

Professional Excellence

• Professional excellence is the paramount criterion in assessing judicial candidates.
• A high level of professional achievement in the area(s) of legal work in which the candidate has been engaged. Experience in the field of law relevant to the jurisdiction of the Ontario Court of Justice on which the applicant wishes to serve is highly desirable but not essential.
• Involvement in professional activities that keeps one up to date with changes in the law and in the administration of justice.
• A demonstrated commitment to continuing legal education.
• An interest in or some aptitude for the administrative aspects of a judge’s role.
• Good writing and communications skills.

Community Awareness

• A commitment to public service.
• Awareness of and an interest in knowing about the social problems that give rise to cases coming before the courts.
• Sensitivity to changes in social values relating to criminal and family matters.
• Interest in methods of dispute resolution alternatives to formal adjudication and interest in community resources available for participating in the disposition of cases.

Personal Characteristics

• An ability to listen.
• Respect for the essential dignity of all persons regardless of their circumstances.
• Politeness and consideration for others.
• Moral courage and high ethics.
• An ability to make decisions on a timely basis.
• Patience.
• Punctuality and good regular work habits.
• A reputation for integrity and fairness.
• Compassion and empathy.
• An absence of pomposity and authoritarian tendencies.

Demographics

• The Judiciary of the Ontario Court of Justice should be representative of the population it serves. The Committee is sensitive to the issue of under-representation in the judicial complement of women, Francophone, Indigenous, racial and ethnic minorities, 2SLGBTQI+ and persons with disabilities.

Judicial Appointment Process and Policies

Set out below is a step-by-step account of how the Committee arrives at its recommendations:

1.0 Overview of Process

1. Advertising the Vacancy

Vacancies are advertised on the Ontario Courts website at www.ontariocourts.ca/ocj/jaac/, subject to exceptions noted below under Subsequent Vacancies. Four weeks are allowed for applications to be received. Interested persons can register for vacancy notification, via email, through the website. In addition to advertising, the Committee contacts approximately 223 legal and interested non-legal associations with notice of the vacancy with a request that they bring the copy of the advertisement to the attention of their members.

2. French Language Proficiency Testing

Candidates who identify bilingual ability as indicated on the application form must undergo standardized French language testing to assess their proficiency at the application stage, prior to members receiving applications to review.  For bilingual imperative vacancies, candidates must achieve a Superior level of proficiency on the test to proceed further through the process. 

3. Review of Applications by Members

Each member is provided with a list of all candidates who respond to an advertisement plus copies of all Judicial Candidate Information Forms (with the exception of those candidates who do not achieve a Superior level of proficiency on the French language test for bilingual imperative vacancies). Members carefully review and assess the application forms and list candidates whom they feel should proceed to the second stage of reference checks and confidential inquiries. This list is submitted to the Committee Secretary, who compiles a master list of candidates who have been selected by four or more members, as well as all new candidates applying for the first time, for the purpose of making reference checks and confidential inquiries. If any member of the Committee ascertains that a possible suitable applicant for a judicial appointment has not been selected for reference checks and confidential inquiries, the member may request of the Committee that the applicant’s name be added to the list. 

4. References and Confidential Inquiries

Each member is provided with a list of candidates who have been selected by four or more Committee members, as well as all new candidates. Reference checks and confidential inquiries are then completed, unless that process has already been conducted within the last two years in relation to another vacancy. These inquiries may include judiciary, court officials, lawyers, law associations, community and social service organizations, plus the named references provided by the candidate. Once the reference checks and confidential inquiries are completed, the Committee meets to discuss the information obtained and to select candidates to be interviewed.

This selection meeting usually takes place three to four weeks after the members have received the list of candidates to be considered. Interviews normally take place approximately three weeks after the selection meeting.

5. Interviews

The number of candidates to be interviewed for a judicial vacancy will normally be a maximum of 16 over a two-day period. Each interview lasts approximately 30 minutes.  Normally, the entire Committee sits for each interview.  For questioning purposes, the Committee members take alternate interview turns. Following each interview, the Committee discusses the merits of the candidate interviewed. After the last interview for that particular vacancy, the Committee considers the merits of the candidates interviewed, plus the merits of the candidates interviewed on a prior occasion within the year and who have applied to be considered for the current vacancy.

6. Recommendations to the Attorney General

Pursuant to the Courts of Justice Act, a ranked list composed of a minimum of six candidates for each vacancy is forwarded to the Attorney General, along with brief supporting reasons, subject to exceptions set out in the legislation.  In addition, the application form submitted by each ranked candidate is delivered to the Attorney General with the list.

The list of recommended candidates is provided to the Attorney General only after the clearances requested from the Law Society, LawPRO and CPIC checks have been received. These clearances are usually received approximately three weeks after the interviews have taken place.

It is at this point that the Committee’s work is complete. A candidate is not notified whether or not his or her name has been put forward in the short ranked list to the Attorney General as this recommendation is personal and confidential for the Attorney General.

7. Subsequent Vacancies

Occasionally, after a vacancy has been advertised and the selection process is in progress, subsequent vacancies occur in the same location, with the same specialty of law. In these circumstances, in the interest of time, the Committee may forego advertising the subsequent vacancies. The members will evaluate the candidates who have responded to the advertised position and decide which of those candidates will be selected for consideration and interview for all vacancies.

If, within 12 months after the Committee has provided a recommendation for a judicial vacancy, a subsequent vacancy arises in the same location and with the same requirements, the subsequent vacancy will not be advertised. Instead, as required by the legislation, the Committee will provide a recommendation based on the previous recruitment.

2.0 The Judicial Candidate Information Form

1. All candidates must complete a typed current Judicial Candidate Information Form which has been designed to elicit information that is not usually included in a standard curriculum vitae, such as the nature of the legal work and experience gained in various positions the candidates have held, including pre-law experience. Also, applicants are required to express their reasons for wanting to become a judge and provide an appraisal of their own qualifications for being a judge.

Candidates who send in their standard curriculum vitae and do not complete the Committee’s form are not considered.

2. Candidates are required to provide a signed electronic copy of the current Judicial Candidate Information Form together with a copy each of the signed Security Release Form, Release of Information Form and Authorization and Release Form.
3. Should a candidate wish to change any information in his or her Judicial Candidate Information Form after applying for a judicial vacancy, the candidate should contact the Committee Secretary for instructions.
4. A candidate must submit the current Judicial Candidate Information Form each time they apply for an advertised vacancy that is of interest. The Committee does not automatically consider applications on file.
5. The Judicial Candidate Information Form must be submitted in PDF format in order to ensure integrity of the application. No other format will be accepted. Additionally, the Committee will not consider applications that are not on the current Judicial Candidate Information Form or are received after the closing date in the vacancy advertisement.
6. All responses to an advertisement to be considered for a judicial vacancy are acknowledged. However, the Committee does not advise candidates that they have not been selected for an interview. Instead, the acknowledgement letter states: “If you are selected for an interview, you will be contacted by telephone during the week of …”.
7. Candidates who have been interviewed within the previous twelve-month period may not necessarily be re-interviewed but will be equally considered, based on the previous interview, by the Committee in determining its list of recommendations, provided that the candidate has applied to be considered for the vacancy advertised.
8. Candidates who are interviewed and/or candidates who have been interviewed on a previous occasion and who have requested to be considered for a particular advertised vacancy are not advised as to whether they have been included in the list submitted to the Attorney General. Also, the Committee does not advise applicants when its work has been completed for a particular judicial vacancy and a list of recommended candidates has been submitted to the Attorney General.

3.0 References

1. The Committee requests that a candidate does not send or have submitted letters of support.
2. The Committee requires a candidate to provide the names, complete residential/office and e-mail addresses, including postal codes, personal cell phone and business telephone numbers of his or her named references. Care should be taken to provide the correct information before submitting the form. Since the members who check the references frequently do so during evenings and weekends, it is essential that personal cell phone numbers be provided.
3. All named references receive a letter from the Committee advising them that a candidate has provided their names for reference purposes and that they may be contacted by a member of the Committee. They are advised that they do not have to write to the Committee. Attached to the letter is a list of current Committee members.
4. The Committee maintains strict confidentiality with respect to the information provided by named references and obtained by confidential inquiries.

4.0 Law Society and Other Outstanding Complaints and Claims

1. Membership: To qualify for consideration, candidates must have been a member of the Bar of one of the provinces or territories of Canada for at least 10 years, or, for an aggregate of at least 10 years, been a member of such a Bar and after becoming a member of such a Bar, exercised powers and performed duties of a judicial nature on a full-time basis in respect to a position held under a law of Canada or of one of its provinces or territories, and currently be a member in good standing.
2. Complaints as to Practice: Candidates are generally not considered for an interview if they have any outstanding complaints registered with a Law Society. The candidate is responsible for ensuring the removal of such complaints; however, if the Committee receives sufficient information as to the complaint being frivolous or lacking in foundation, then such a complaint will not be a bar to the candidate being considered and interviewed, but the candidate would not be recommended until it has been removed.
3. If the candidate has been sanctioned by The Law Society of Ontario or any other Law Society, the Committee considers the circumstances. The Committee then decides whether the candidate should be considered for a judicial appointment.
4. Errors and Omissions Claims: Candidates are generally not considered for an interview if they have any outstanding Errors and Omissions claims registered with the Lawyers’ Professional Indemnity Company. The candidate is responsible for ensuring the removal or resolution of such claims; however, if the Committee receives sufficient information that the claim is not substantiated, then such a claim will not be a bar to the candidate being considered and interviewed, but the candidate would not be recommended until it has been removed.
5. Civil Claims or Judgments: Members of the Committee may consider the application of a candidate who is involved in a civil claim or proceeding if, after receiving details of the proceeding, the members are of the opinion that the nature of the claim is such that it should not prevent the candidate from being considered for a judicial appointment.
6. Other Financial Matters: The Committee must be informed of any outstanding civil judgments, arrears in family support payments, any past or present proposals to creditors or assignments in bankruptcy, or serious financial difficulties of each candidate.
7. The Committee must also be informed by the candidate if the candidate is the subject of any current court order.

5.0 Criminal Record

Generally, the Committee does not consider a candidate who has been convicted of a criminal offence for which the candidate has not received a record suspension.

6.0 Conflict of Interest Guidelines

1. The Committee will not consider an application for judicial appointment from a member of the Legislative Assembly if he/she is a member of the political party of the current government. Former members of the Legislative Assembly of the same political party as the current government may apply two years after the date of resignation or retirement from office.
2. In accordance with the Courts of Justice Act, members of the Committee cannot apply to be considered for an appointment to the Ontario Court of Justice for a period of three years from the date they cease to serve as a member of the Committee.
3. No current member of the Committee can act as a reference for a candidate seeking an appointment to the Ontario Court of Justice.
4. Members of the Committee who have a conflict or a perceived conflict in the nature of a potential bias or prejudice in regard to a candidate must declare such conflict and refrain from taking part in the assessment, questioning and evaluation of that candidate.

7.0 Re-Interviewing Candidates

The Committee does maintain a pool of candidates who have previously been recommended but not appointed, or interviewed but not recommended.

The Committee may not consider it essential to re-interview a candidate who has been interviewed in the previous 12 months. That candidate will be compared and ranked along with all other persons interviewed for that vacancy so long as the candidate has submitted a new application to be considered for that advertised vacancy. Nevertheless, the Committee may, in its discretion, re-interview a previously interviewed candidate, and, in fact, does in circumstances where it deems it appropriate.

8.0 Notice of Vacancies and Transfer after Appointment

When a vacancy in the complement of the Ontario Court of Justice occurs, the Chief Justice of the Ontario Court of Justice, after considering the judicial resources required throughout Ontario, determines the location of the vacancy to be filled and advises the Attorney General accordingly. The Attorney General then requests the Committee to commence its process to identify candidates suitable for judicial appointment in order to make recommendations.

Because of the many requests for transfer, the Chief Justice has advised the Committee that while the Chief Justice retains the discretion to assign judges according to the needs of the Court at any time, it is the general policy of the Ontario Court of Justice that no personal request for permanent re-assignment will be considered for a period of at least five years following a judge’s appointment. The determination of a judicial vacancy involves a review and assessment of the needs of the Court and a long-term commitment to the community in which the vacancy is declared. It is a commitment that is made both by the Court and by the judge who is appointed to that position. Generally speaking, where a judge is appointed to sit at a base court location and the judge does not live within that community or near to it, the Court will expect the judge to move either to the community or to within a reasonable distance of it within four months after the judge’s appointment. The Court has a policy that outlines relocation expenses that are eligible for reimbursement. Once a judge has been on the bench for a period of five years, the judge may request a re assignment to another base court location. If a vacancy subsequently arises, that request will be considered along with requests received from other judges who wish to move to the same location. Other factors will also be taken into account, including the needs of the locations involved, the views of the regional senior judges and of the judges at the affected locations.