Court of Appeal Rejects Challenge to JDR

On April 11, 2005, the Alberta Court of Appeal rebuffed an attack “on the entire JDR process,” and upheld an order enforcing the decision of a Court of Queen’s Bench judge in a court-managed binding JDR hearing. The appellants in J.W. Abernethy Management & Consulting Ltd. v. 705589 Alberta Ltd. claimed that binding JDRs were actually arbitrations, and that by participating in a binding JDR the judge had violated s. 56(1) of the Judges Act, R.S.C. 1985, cJ 1, which provides that “No judge shall act as commissioner, arbitrator, adjudicator, referee, conciliator or mediator on any commission or on any inquiry or other proceeding” without express parliamentary or legislative authority.

Justice Adelle Fruman dismissed the appeal, ruling that s. 56(1) and companion sections of the Judges Act were merely anti “moonlighting” provisions restricting judges from undertaking dispute-resolution activities that required them to “be away from court duties.” The narrow exception, she noted, permitted governments to relieve judges from their normal judicial responsibilities to undertake proceedings such as the Gomery and Milgaard inquiries.

As the Court noted, the scope of appeal challenged the legality not only of binding JDR proceedings, but of the Court of Queen’s Bench’s entire JDR program, which like those of many other provinces has become an “immensely popular” component of Alberta’s civil justice system.

Blair Yorke-Slader of Bennett Jones LLP acted for the respondents, J.W. Abernethy Management & Consulting et al, and the appellant was represented by Graham Price, Q.C.