Dismissal of small claim against judge upheld

Justice Terrence Morrison ruled adjudicator’s finding of judicial immunity against lawsuits for actions from bench was proper, sinking pandemic protesters' appeal

An adjudicator’s ruling that two pandemic-restriction opponents' small-claim lawsuit against a sitting judge was barred by statute was on point legally, an appeal judge ruled last week.

Mitchell Albert, 25, of Dieppe, and Sean Patrick Kenney, 27, formerly of New Maryland, appeared as defendants in Fredericton provincial court in 2021 and 2022 stemming from their opposition to pandemic precautions imposed by the provincial government.

That led to them appearing before Judge Kenneth Oliver, one of the judges assigned to the Fredericton district.

Mitchell Albert, left, and Sean Kenney. (Photos: Don MacPherson/The Fredericton Independent)

Both defendants butted heads with Oliver during their cases, notably for their refusal to wear facemasks in the courtroom, which Oliver required for a time even after the emergency order was lifted.

Kenney and Albert filed a small-claim action against Oliver in the spring of 2022, seeking $3,000 in damages and orders barring him from presiding over their cases and those of others involved in the movement opposing COVID-19 restrictions.

Counsel for Oliver filed a motion for dismissal, noting the Provincial Court Act grants judges immunity from such lawsuits for actions taken on the bench, and then-adjudicator Matthew Cripps granted the motion, finding the small claim was, in fact, barred by the statute.

Albert and Kenney filed an appeal and argued their case last month before Court of King’s Bench Justice Morrison.

‘No error of law’

In a decision issued May 30, the King’s Bench judge upheld Cripps’ ruling.

"In my view, the adjudicator's decision with respect to the question of judicial immunity is sound and in accordance with well-founded and long-standing legal principles," Morrison wrote.

"I find no error of law in the adjudicator's decision."

The judge acknowledged Kenney and Albert argued judges need to be held accountable for unlawful actions and contended it's unfair that wasn't happening in their case.

"However, as pointed out… [in] the adjudicator's decision, there is a process available for judges to be accountable for their actions: a complaint to the appropriate judicial oversight body," Morrison wrote.

"In this case, that would be a complaint to the New Brunswick Judicial Council."

In dismissing their appeal, the judge ordered Albert and Kenney to pay Oliver $1,500 in costs.

When reached for comment on the weekend, Albert said he plans to pursue further appeals in the case.

“I'll fight it all the way to the Supreme Court [of Canada] if I have to,” he wrote in a communication on Facebook Messenger.

“Nobody is above the law and the Supreme Court has already said that.”

Albert said he plans to pursue Morrison through the courts as well for his ruling.

“The lower courts are all corrupt,” he wrote. 

“Justice Morrison will be looking at fraud and criminal breach of trust charges himself now as well.”

Kenney didn’t respond to requests for comment.

Judge on suspension

Morrison’s reference to the judicial complaint process is of particular relevance because Oliver has been subject to suspension from the bench with pay since last fall, but that flows from a different case.

Provincial court Chief Judge Marco Cloutier suspended Oliver on Oct. 3 as a result of misconduct that the impugned judge acknowledged from the bench.

It came to light in September that ahead of an evidentiary ruling in a drug-trafficking prosecution last summer, Oliver had contacted two police witnesses outside of court, after they’d testified in a hearing on admissibility of key evidence.

As a result of that improper contact of witnesses, the defence in the case applied for the charges to be stayed, but Oliver instead declared a mistrial, essentially starting the case over from square one.

In that decision, Oliver admitted on the court record he had spoken with the police witnesses outside of court - one on the phone, and another in his office in the Justice Building.

He remains on paid suspension pending the outcome of the complaint process.

Don MacPherson can be contacted at ftonindependent@gmail.com.