The Tax Court of Canada did not live up to its undisclosed promise to keep cases involving Muslims from being adjudicated by a judge who was under investigation for bias related to the Israel-Palestine conflict, legal observers say.
Tax Court Chief Justice Eugene Rossiter made the promise in a letter to the Canadian Judicial Council last October. Explaining how the court would identify Muslim litigants or counsel, he said associate chief justice Lucie Lamarre (now retired) would make an assessment “in accordance to the information on the file.”
At the time, the council was investigating Justice David Spiro over allegations he attempted to interfere in a University of Toronto hiring process. Before it cleared him in May, Justice Spiro made a 91-page ruling in a case featuring two lawyers for the federal Justice Department whose names – Rana El-Khoury and Dina Elleithy – fit the category for which Chief Justice Rossiter had vowed his court would be on the lookout.
In the case, Paletta Estate v. the Queen, an entrepreneur’s estate was battling the Canadian government over a complicated tax-deferral strategy. A hearing of 18 days unfolded before the judicial council investigation began. But Justice Spiro made his ruling in February (an amended version appeared in March), according to the Canadian Legal Information Institute’s public database of court decisions. The judicial council was still investigating at that time.
The Tax Court promise became public when several of those who had complained to the judicial council about the judge asked the Federal Court to review the council’s decision to clear him. In the process of the review, Chief Justice Rossiter’s letter became part of a publicly accessible record.
Legal observers and Islamic scholars have called Chief Justice Rossiter’s promise “bizarre,” Islamophobic and antisemitic, and not in keeping with the justice system’s commitment to equality.
But they are also not impressed with the court violating the promise. They say it highlights the absurdity of trying to identify Muslim names in the first place.
“Both of these names are ‘Muslim’ or ‘Muslim-sounding’ names insofar as they are Arabic names,” said Mohammad Fadel, a law professor at the University of Toronto. “So it seems to be an ill-considered policy implemented incompetently.”
Anver Emon, the Canada Research Chair in Islamic Law and History at the University of Toronto, said the appearance of two Muslim-sounding names in a case adjudicated by Justice Spiro “emphasizes the illusory nature of Rossiter’s instruction, as well as the court’s cultural incompetence when it comes to fulfilling such a strange and bizarre order.”
The promise was unqualified, he said, but being secret “it could be acted upon or not.” He added: “This is why the entire measure seems like a shell game that ultimately preserves the status quo.”
The Justice Department told The Globe and Mail that the Tax Court had not advised it of any such policy. Ms. El-Khoury and Ms. Elleithy did not reply to a request made through the department for comment.
The Tax Court and the Canadian Judicial Council declined, through spokespersons, to comment.
Justice Spiro is a former board member of the Centre for Israel and Jewish Affairs (CIJA), an advocacy group, and a former fundraising adviser to the University of Toronto law school. The controversy around him dates from the summer of 2020. Pressed by a CIJA member about the law school’s possible hiring of scholar Valentina Azarova as director of its International Human Rights Program, he discussed the matter with a university fundraising official. The CIJA was highly critical of Dr. Azarova’s published work on the Israel-Palestine conflict.
When the law school rejected Dr. Azarova, several groups and individuals complained to the judicial council that the judge had interfered in the university hiring process, raising questions about his impartiality. (The law school said it rejected Dr. Azarova over immigration issues, and a review by former Supreme Court justice Thomas Cromwell cleared the school of being improperly influenced.)
The judicial council wrote to Chief Justice Rossiter as it embarked on its review and asked him for comment. He praised Justice Spiro’s fairness and collegiality. But for “perception purposes,” he said, the Associate Chief Justice would attempt to ensure that “no files upon which he will adjudicate will have, as parties, or agents or counsel, anyone who could be thought of as being of Muslim, or of the Islamic Faith.”
And Justice Spiro would recuse himself, Chief Justice Rossiter said, “from any file at any time,” if anyone involved appeared to be of the Muslim faith.
Justice Spiro himself seemed to find the idea nonsensical. In a letter to the judicial council in February, he did not refer directly to the promise, but commented on the pointlessness of trying to identify Palestinians before him.
“Even if I were interested in whether a taxpayer or counsel appearing before me were Palestinian (which I am not), and even if I had any animus toward Palestinian taxpayers or counsel (which I do not), I would have no way of knowing whether they were Palestinian unless I asked a series of questions designed to determine that fact and to elicit from them their political beliefs and their views with respect to Israel,” he said. “Such matters are obviously none of my concern and are entirely irrelevant to the proceedings before me.”
The judicial council found he made serious mistakes in speaking to the law school about the appointment, but not grave enough to warrant dismissal. It ruled that properly informed people could not conclude he is biased. Justice Spiro said he simply warned the school to do its due diligence because it would face controversy in the Jewish community.
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Sean Fine