There are a lot of unanswered questions in the CBC story about New Brunswick Court of King's Bench Justice Kathryn Gregory’s ruling in a landlord/tenant’s case, and in time I expect we’ll know more, but I can’t imagine why she didn’t recuse herself.  

For anyone who might not be aware, CBC has reported that Justice Gregory, who recently found in favour of a landlord and against tenants in a dispute over rent increases, is a landlord herself. The broadcaster has reported that she owns a five-unit apartment building in Fredericton. 

Here’s the quick background. After the Higgs government abolished its rent controls last year, it put in place legislation that says if a rent increase is beyond the rate of inflation, the tenant can complain to the Residential Tenancies Tribunal, and it will rule that the increase be phased in over two or three years, depending on the amount of the increase.  

The case landed in court after two tenants in Saint John asked for this relief when they were hit with rent increases of more than 20 per cent, and the landlord objected.  

That is the long and short of it.  

We all know that legislation can have loopholes, and given this is the first time this particular legislation has been tested in court, perhaps it’s not surprising that the ruling favoured the landlord.  

As far as I know, there is nothing legally wrong with Justice Gregory’s decision, and the legal ethics people the CBC referenced in their story say she was not necessarily in a conflict-of-interest. But that’s not the salient point. The important point is why she heard the case in the first place. Because the public, who wouldn’t necessarily be aware of the specific nuances of the legal arguments, could logiclly conclude that she was in a conflict.  

I’m no lawyer, nor do I play one of television, but I do know that a hallmark of our court system is not only that justice be done, but it also be seen to be done. In other words, it is of upmost importance that the public maintain the highest level of confidence that our system is fair. This speaks to the importance of impartiality and transparency.  

Given this, does it not follow that a judge who is also a landlord should not be the one trying a case that pits a landlord against tenants?  Isn’t the optics of this something that Justice Gregory should have considered and then recused herself?  And given that she didn’t, could this not erode public confidence that her pro-landlord ruling was tainted? Again, I’m not suggesting for a minute it was, but the appearance of impartiality is the issue, is it not? Am I missing something here? 

CBC, says they called Justice Gregory’s office for comment last week and were referred to Chief Justice Tracey Deware. The story doesn’t say when last week they reached out, only that they received confirmation that the Chief Justice was aware of their request for comment. But so far, crickets. From a communications point of view, I would hope the Chief Justice sees a response on this issue as a responsibility, consistent with the court’s commitment to transparency.

Sooner would be better than later.

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Cover Photo Credit: CBC