The chief justice of New Brunswick's Court of Queen's Bench has decided to transfer one of his judges without waiting for the approval of the province's justice minister.
David Smith said in a letter that Justice Thomas Christie "is assigned immediately" to Fredericton.
It's a direct challenge to new sections of the Judicature Act passed in May, which say the chief justice must get the "consent" of the minister before making a transfer.
Smith told Justice Minister Denis Landry of the move in a letter dated Thursday. The letter was obtained by CBC News.
The chief justice told Landry on Nov. 6 that he wanted to move Christie effective Nov. 15, but Landry refused to approve the move quickly, saying he wanted time to consult the federal government and local lawyers.
That prompted Christie to recuse himself from a legal dispute between the New Brunswick Association of Nursing Homes and the province.
Christie said in a written decision he could not hear a case involving the government while the government was involved in a decision about where he would sit as a judge.
The province's lawyers are now asking the New Brunswick Court of Appeal for advice on whether the legal dispute should start over with a new judge.
In his Thursday letter to Landry, Smith wrote that he still had not received an answer from the minister.
"As you are aware this delay is causing difficulties which are disruptive to the functioning of the court," Smith said.
"Given that 30 days has passed since my request, I therefore advise you that Justice Christie is assigned immediately to the Family Division in the Judicial District of Fredericton."
The letter closes by thanking Landry "for your co-operation in this matter."
Christie was appointed a judge in 2013 and has been hearing cases in Saint John. He said in his recusal decision that Smith had assured him at the time that he would be transferred to Fredericton, where he still lives, when a vacancy opened up.
But earlier this year, the Liberal government passed changes to the Judicature Act taking away Smith's power to make transfers on his own.
Stop 'revolving door'
The Liberals say the changes are in line with similar laws in other provinces and were needed to stop the "revolving door" of judges who were appointed to smaller towns and then transferred to larger centres by Smith.
But Smith said during the debate over the bill that it was "a deliberate infringement of judicial independence" and he had not been consulted on it.
He hired a lawyer who filed right-to-information requests about the amendments, and he asked the Canadian Superior Court Judges Association to mount a legal challenge to the bill. The association said it wasn't its role to do that.
Smith justifies his transfer of Christie by pointing out that 30 days have passed since he told Landry about the relocation.
But there's no provision in the new sections of the act that say a minister has 30 days to approve or reject a transfer.
There was no immediate comment from the Department of Justice and Public Safety on how Landry will respond to the letter.
In Christie's recusal decision, he questioned whether Landry even had the power to block his transfer.
The law says the minister has to consent to Smith designating "a new place of residence" for a judge. But Christie says his residence was not designated as Saint John when he was appointed, so there's no change for Landry to approve.
Christie also wrote that whether Landry eventually approved the move was irrelevant to his recusal from the legal dispute involving the province. The fact that the minister was involved in the decision at all was enough to compromise his independence, he argued.