Saturday, June 16, 2018

Have You Been Constructively Dismissed ?

   The traditional firing where the employee is marched into a meeting with his or her supervisor and a human resources manager and then handed a letter informing them of the termination of their employment is not the only way that one can be terminated. Our law now firmly recognizes the legal concept of constructive dismissal.

   Constructive Dismissal is a dismissal which arises not by an affirmative act by the employer as described above but through acts and omissions on their part which may entitle an employee in law to consider their employment to have been terminated by those acts and to walk away from the employment relationship.

Unreasonable Demotion:

    Typical fact-scenarios for a constructive dismissal include the unreasonable demotion of an employee.  For example, the employee is employed as the Vice President, Marketing. He or she receives an annual salary of $250,000 plus a bonus based on company performance which historically has placed them in the range of $300,000 to $375,000 of annual monetary compensation.  One day management decides that this employee will now report to his subordinate, the Director of Local Marketing and will be denied the bonus portion of their compensation. Courts have consistently found this fact-scenario to constitute constructive dismissal.  As such, the employee is entitled in law to refuse the demotion and to commence legal action against their employer based on a theory of recovery of constructive dismissal.  The damages available to the employee are the same as if the employer conducted the traditional dismissal.

Changes in Compensation
and Benefits:

   Another change to the employment relationship which our court's have recognized as constituting constructive dismissal is where the employer makes significant and unreasonable changes to the employees compensation or benefits.  Typically speaking an employee whose contract of employment provided them with an annual salary of $150,000 a year would be entitled to consider his or her contract of employment at an end were the employer to unilaterally decide to decrease the employee's compensation.

Failure to Provide a Safe
Work Environment and to
Follow Published Policies:

   At common law an employer has a duty to provide its employees with a safe work environment.  Under our human rights statutes employers have a duty to provide workplaces free of discrimination and harassment.  The two sources of legal obligations are the rationale why many employers pass workplace polices and manuals delineating the employee's rights and how they are to be enforced and respected in their workplaces.  Many a job seeker places reliance on these published policies and manuals in their decision to both join the employer and to remain in their employment.  These policies provide employees who have traditionally been subject to employment discrimination and harassment with a significant form of security.

   An employee who is the victim of workplace bullying, harassment or other forms of  discrimination who complains, makes reasonable efforts to apply the employer's published policies in these areas and receives no protection from the employer will have a compelling case of constructive dismissal. The strength of that employee's case substantially increases where the bullying, harassment or discrimination adversely impacts the employee's health and well-being.

"Shoddy" Workplace

   The increased importance of the obligation to provide harassment free workplaces in today's workplaces has brought with it a corresponding duty on employers to treat employees accused of such infractions fairly.  Once again the employer's published polices on these issues often provide employees so accused with certain fundamental rights which are articulated in such policies. The right to a fair and impartial investigation is one which comes to mind.  An employee who is so accused and is denied the basic application of the employer's own stated policies with respect to how these matters will be investigated will also have a compelling case of constructive dismissal.  Again, the strength of that employee's case increases substantially where the "shoddy investigation" and the failure to follow the employer's own polices adversely impacts the employee's health and well-being.

Relocation of

   Relocation of the workplace is yet another change in the terms of employment which may entitle an employee to consider their employment to have been constructively terminated.  Of all of the grounds upon which an employee can ground a claim of constructive dismissal this one is easily the most challenging one upon which to base liability.  The court will evaluate the employee's claim to turn down the relocation on all of the facts and circumstances.

Seek legal advice:

   Claims of this nature are not cut and dry.  They involve the consideration and application of laws which are in a state of constant flux.  They also often involve questions of law which may go beyond the scope of employment law.

   Employees who find themselves in situations like any of the one's noted above would be well served to seek out a legal opinion.

About the author:

E.J. Guiste holds a degree in Industrial Relations from Montreal's McGill University.  He completed part of his Articles of Clerkship with the Ontario Labour Relations Board and was employed as an Employment Standards Officer with the Ontario Ministry of Labour.  Employment law and human rights represents a major part of his work as a lawyer. Tel. (416) 364-8908 - E mail:



Sunday, June 3, 2018

When Can Unionized Employees Sue Their Employers ?

   The general principle in employment and labour law is that unionized employees can not sue their employers for any claims which arise from the interpretation and application of the collective agreement between their bargaining agent and employer.  This point was made clear by the Supreme Court of Canada in Weber  v.  Ontario [1995] 2 S.C.R. 929.

Employer Terminates 
Based on Criminal Act:

   In Piko   v.  Hudsons Bay Company 41 O.R. (3d) 729 the Court of Appeal for
Ontario carved out a significant exception to the general principle prohibiting
unionized employees from suing their employers for civil claims connected to
their employment and dismissal.  In that case the employee was dismissed for
theft and was criminally prosecuted for such.  The employee asserted that the
employer initiated the criminal prosecution.  The charge of theft against the
unionized employee was resolved in her favour and she sued the Hudson's Bay
Company for malicious prosecution.

   Instinctively,  the employer raised the general prohibition asserting that employee could not sue them on account of the collective agreement.  They brought a motion to strike the claim and dismiss the action. The motions judge ruled that the court had no jurisdiction over the subject-matter of the claim as the the essential character of the dispute arose from the employee's employment relationship with the defendant which was covered by a collective agreement.

   J.A. Laskin writing for the majority in Piko held that by taking the dispute out of the collective bargaining forum and bringing it into the criminal law realm the employer effectively stepped outside of the collective agreement and therefore the dispute was no longer one focusing on the interpretation and application of the collective agreement.

   The Court of Appeal for Ontario made it clear that a claim that the employer maliciously prosecuted an employee lay outside the scope of the collective agreement. The Court said:

"And the Bay's actions in instigating criminal proceedings are not directly related to the
dispute over whether Piko was unjustly dismissed.  The Bay's actions are neither a
prerequisite to nor a necessary consequence of its dismissal of Piko.  In short, the
collective agreement does not regulate the Bay's conduct in invoking the criminal
process, which is the conduct at the heart of the present dispute.  The dispute, therefore,
does not arise under the collective agreement."

Seek Legal Advice:

   Civil claims involving high-handed dismissals, malicious prosecution or dismissals contrary to public policy such as the Human Rights Code are not your average wrongful dismissal action.  It is prudent to seek out the advice of a lawyer with knowledge and experience in this area before agreeing to any settlement.

About the author:

   E.J. Guiste handles high-handed wrongful dismissal, malicious prosecution and breach of public policy statutes such as the Human Rights Code.  He represents client  in all facets of the process from providing opinions, investigations, representation at mediation, trials and appeals at all levels of court.


When is a Wrongful Dismissal High-Handed ?

   For more than 20 years I have been involved in representing clients who are the victims of what I have come to describe as high-handed dismissals.  Most dismissals are not high-handed.  In fact, a significant number of dismissals are satisfactorily resolved by the parties without litigation.

   High-handed dismissals involve some act or omission on the part of the employer which make the plaintiff's claim against the employer more than a contractual dispute over reasonable notice and or severance pay.  Here are a few examples taken out of cases which I have personally litigated on behalf of clients:

1.   Employer terminates based on alleged criminal act by the employee at work and initiates the employee's criminal prosecution providing false information to support the charge;

2.   Employer, although having knowledge of a superior's abusive behaviour toward a subordinate which is contrary to their own published policies, condones and fails to stop the conduct which causes harm to the subordinate;

3.  Employer induces an employee to give up other employment to join them promising more pay, benefits and a promising career with them only to dismiss the employee falsely alleging poor performance and failing to follow their own policies - which policies were used to induce the employee to join them;

4.  Employer terminating employees contrary to public policy articulated in human rights codes etc.

   The facts and circumstances which will give rise to a high-handed dismissal are by no means closed.  I am by no means suggesting that the four scenarios I have described above are a complete list.  They are merely a break-down of the types of circumstances that I have dealt with as an employment lawyer.

   High-handed dismissals are outside the norm.  Employers ought to obtain sound legal advice before they embark on them.  Employees ought to obtain sound legal advice before they settle these types of claims.

About the author:

E.J.Guiste represents clients in employment and human rights law. 
His focus is primarilyon high-handed dismissals and those based on
the breach of public statutes like the Human Rights Code of Ontario
and other statutory laws.

Friday, June 1, 2018

Supreme Court Rules on Incivility as Professional Misconduct: Lawyer's State of Mind Matters

Relevant Excerpts from
The Majority's Reasons:

  [122]                              While I take no issue with the Appeal Panel’s approach, I am respectfully of the view that the Appeal Panel unreasonably found Mr. Groia guilty of professional misconduct. In assessing “what” Mr. Groia said, the Appeal Panel reiterated that misconduct allegations or other challenges to opposing counsel’s integrity cross the line into professional misconduct unless they are made in good faith and have a reasonable basis. The Appeal Panel accepted that Mr. Groia’s allegations of misconduct were made in good faith. It based its finding of professional misconduct primarily on the fact that his allegations lacked a reasonable basis. However, contrary to its own approach, the Appeal Panel used Mr. Groia’s sincerely held but erroneous legal beliefs to reach this conclusion — one which, as I have explained above at paras. 88-91, cannot be reasonable.

[123]                              Once the allegations of impropriety — what Mr. Groia said — are no longer in the mix, it becomes apparent that the other factors in this case cannot reasonably support a finding of professional misconduct against him. As I will explain, the frequency of Mr. Groia’s allegations was, to some extent, a product of the uncertainty surrounding the manner in which abuse of process allegations should be raised — a factor the Appeal Panel did not consider.

[124]                              Moreover, the trial judge took a largely hands off approach and did not direct Mr. Groia as to how he should be bringing his allegations. Eventually, the trial judge did intervene, albeit quite late in the day, and he instructed Mr. Groia not to keep repeating the same allegations over and over again, but to simply register his objection. In response, Mr. Groia complied, albeit with the odd slip. And when the reviewing courts admonished Mr. Groia for his behaviour during Phase One of the Felderhof trial, Phase Two proceeded entirely without incident. Again, the Appeal Panel did not factor the trial judge and reviewing courts’ response to Mr. Groia’s behaviour and how Mr. Groia modified his conduct thereafter into its analysis.

[125]                              Taking these factors into account, I am respectfully of the view that there is only one reasonable outcome in this matter: a finding that Mr. Groia did not engage in professional misconduct on account of incivility.

    The Supreme Court of Canada's decision to overturn the Law Society Tribunal Appeal Panel's decision is grounded in their finding that there must be subjective fault or intent on the part of the lawyer with respect to assertions of impropriety directed towards opposing counsel or the process. The court clearly recognized that the administration of justice and the public interest is better served by affording lawyers flexibility to make strong allegations where they believe them to be well founded. The same is true of advancing novel legal arguments.  Below is an excerpt of what the court said:

[88]                              That said, the reasonable basis requirement is not an exacting standard. I understand the Appeal Panel to have meant that allegations made without a reasonable basis are those that are speculative or entirely lacking a factual foundation. Crucially, as the Appeal Panel noted, allegations do not lack a reasonable basis simply because they are based on legal error: at para. 280. In other words, it is not professional misconduct to challenge opposing counsel’s integrity based on a sincerely held but incorrect legal position so long as the challenge has a sufficient factual foundation, such that if the legal position were correct, the challenge would be warranted.

[89]                              Nor is it professional misconduct to advance a novel legal argument that is ultimately rejected by the court. Many legal principles we now consider foundational were once controversial ideas that were fearlessly raised by lawyers. Such innovative advocacy ought to be encouraged — not stymied by the threat of being labelled, after the fact, as “unreasonable”.

[90]                              In my view, there are two reasons why law societies cannot use a lawyer’s legal errors to conclude that his or her allegations lack a reasonable basis. First, a finding of professional misconduct against a lawyer can itself be damaging to that lawyer’s reputation. Branding a lawyer as uncivil for nothing more than advancing good faith allegations of impropriety that stem from a sincerely held legal mistake is a highly excessive and unwarranted response.

[91]                              Second, inquiring into the legal merit of a lawyer’s position to conclude that his or her allegations lack a reasonable basis would discourage lawyers from raising well-founded allegations, impairing the lawyer’s duty of resolute advocacy. Prosecutorial abuse of process is extraordinarily serious. It impairs trial fairness and compromises the integrity of the justice system: Anderson, at paras. 49-50; R. v. O’Connor, [1995] 4 S.C.R. 411, at paras. 62-63. Defence lawyers play an integral role in preventing these dire consequences and holding other justice system participants accountable by raising reasonable allegations. Finding a lawyer guilty of professional misconduct on the basis of incivility for making an abuse of process argument that is based on a sincerely held but mistaken legal position discourages lawyers from raising these allegations, frustrating the duty of resolute advocacy and the client’s right to make full answer and defence

Commentary and Analysis:

   Regulatory bodies across Canada will need to reevaluate their approach on prosecuting lawyers for incivility in light of this ground-breaking decision from the Supreme Court of Canada.  Their prior approach to these prosecutions which appeared, at least to this observer, to view the fault requirement on these complaints along the lines of a strict liability offence must change.  

   Careful consideration will need to be taken to ascertain whether and to what extent they have evidence that the subject lawyer did not hold a good faith belief in their submissions or comments.  Perhaps even more significant - regulatory bodies will now need to take a more careful look at the source of the complaint against a lawyer.  Is the complaint coming from a party to the lis ?  Is the complaint coming from a source or party that may have an interest in undermining the subject lawyer's work ?  

   Complaints coming from administrative tribunals in the form of an addendum to their decisions which contain self-serving and illogical pronouncements such as "this conduct is not relevant to this decision" and which accuse the lawyer of bringing meritless motions and which are then widely published in the media and on social media by a member of the said tribunal ought to be carefully scrutinized so as not to adversely impact the legal rights of not only the subject of the complaint but the subject lawyer's client(s).(see for example - Justices of the Peace Hearing Panel in Re Massiah - Compensation Decision - On Twitter - see Deborah Livingstone@dresdengirrl - June 17, 2015)

   Similarly, complaints coming from a party to the lis such as the Crown in criminal matters should always be carefully scrutinized.   

   Above all, regulatory bodies will, now, more than ever, want to ensure that the proceedings which they do decide to bring to public hearings against lawyers for incivility have a strict adherence to fairness, transparency and public interest.  Persons associated with regulatory bodies which bring such proceedings against lawyers must be careful that they do not express strong and damning views in the media which can been seen by the public to be pre-judging or "rail-roading" the subject lawyer.
At the end of the day lawyer regulation must be seen to be done in the public interest.

About the author:

E.J. Guiste, like Mr. Joe Groia, believes that a lawyer's job is to fearlessly represent his client. This belief and the hostile reception he received from the JPRC Hearing Panel during his defence of H.W. Massiah led him to write A Catholic Lawyer's Prayer - a piece in which he shares with his readers the vulnerability of the advocate who stands up in strong defence of his client. Readers ought to read it.

Friday, May 18, 2018

U.S. Supreme Court Rules Lawyer's Disregard for Client's Claim of Innocence Violates 6th Amendment

  On May 14th, 2018 the U.S. Supreme Court released a ground-breaking decision in McCoy  v.  Louisiana (No. 16-8255) which has clearly and properly circumscribed the trial management rights of lawyers in criminal cases in the United States.  The court made it abundantly clear that not all decisions with respect to how a criminal trial is to be conducted is reserved for the expertise of trial counsel. The court confirmed that the following decisions are reserved for the client: whether to plead guilty, waive the right to a jury trial, testify in one's own behalf and forgo an appeal. 

   Of great significance to legal profession is the Court's clear pronouncement that the acts of the lawyer in this case were not governed by the established jurisprudence on ineffective assistance of counsel which required the client to show prejudice from the representation. The Court seems to be very clear in its position that there are certain acts and omissions committed by lawyers in the trial process which are so significant and fundamental as to bring the Court's focus and attention not on the lawyer's competence but in this case the client's autonomy.

Basic Facts From 
the Case Headnote:

   The appellant was charged with murdering his estranged wife's mother, step-father and son. He pleaded not guilty insisting that he was out of State at the time of the killings and that corrupt police killed the victims when a drug deal went bad.  Although he vociferously insisted on his innocence and adamantly objected to any admission of guilt, the trial court permitted his counsel, Larry English, to tell the jury, during the trial's guilt phase, McCoy "committed the three murders"

   English's strategy was to concede that McCoy committed the murders, but argue that McCoy's mental state prevented him from forming the specific intent necessary for a first-degree murder conviction.  Over McCoy's repeated objection, English told the jury McCoy was the killer and that English "took the burden off of the prosecutor on that issue.  McCoy testified in his own defence, maintaining his innocence and pressing an alibi difficult to fathom. The jury found him guilty of all three first-degree murder counts.  At the penalty phase, English again conceded McCoy's guilt, but urged mercy in view of McCoy's mental and emotional issues.  The jury returned three death verdicts.

   Represented by new counsel, McCoy unsuccessfully sought a new trial.  The Louisiana Supreme Court affirmed the trial court's ruling that English had authority to concede guilt, despite McCoy's opposition.

Held:  The Sixth Amendment guarantees a defendant the right to chose the objective of his defense and to insist that his counsel refrain from admitting guilt, even when counsel's experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty.

   (a)The Sixth Amendment guarantees to each criminal defendant "the Assistance of Counsel for his defence".  The defendant does not surrender control entirely to counsel, for the Sixth Amendment, in "granting to the accused personally the right to make his defense," "speaks of the "assistance" of counsel, and an assistant, however expert, is still an assistant."  Faretta  v. California 422 U.S. 806, 819-820

   (b)  The court distinguished Florida  v. Nixon, 543 U.S. 175.  Nixon's attorney did not negate Nixon's autonomy by overriding Nixon's desired defence objective, for Nixon was generally unresponsive during discussions of trial strategy and never verbally approved or protested counsel's proposed approach.  He complained about counsel's admission of his guilt only after trial.  McCoy, in contrast, opposed English's assertion of his guilt at every opportunity, before and during trial, both in conference with his lawyer and in open court. Citing Nix   v.  Whiteside 475 U.S. 157, the Louisiana Supreme Court concluded that English's refusal to maintain McCoy's innocence was necessitated by a Louisiana Rule of Professional Conduct that prohibits counsel from suborning perjury.  But in Nix, the defendant told his lawyer that he intended to commit perjury.  Here, there was no avowed perjury. English harbored no doubt that McCoy believed what he was saying; English simply disbelieved that account in view of the prosecution evidence.  Louisiana's ethical rules might have stopped English from presenting McCoy's alibi evidence if English knew perjury was involved, but Louisiana has identified no ethical rule requiring English to admit McCoy's guilt over McCoy's objection.

   (c)  The Court's ineffective-assistance-of-counsel jurisprudence, see Strickland  v.  Washington, 466 U.S. 668, does not apply here, where the client's autonomy, not counsel's competence, is in issue.  To gain redress from attorney error, a defendant ordinarily must show prejudice.  See id, at 692.  But here, the violation of McCoy's protected autonomy right was complete when the court allowed counsel to usurp control of an issue within McCoy's sole prerogative.  Violation of a defendant's Sixth Amendment-secured autonomy has been ranked "structural error"; when present, such an error is not subject to harmless-error review.

   An error is structural if its is not designed to protect defendants from erroneous conviction, but instead protects some other interest, such as "the fundamental legal principle that a defendant must be allowed to make his own choices about the proper way to protect his own liberty."  Counsel's admission of a client's guilt over the client's express objection is error structural in kind, for it blocks the defendant's right to make a fundamental choice about his own defence. McCoy must therefore be accorded a new trial without any need to show prejudice.

Ginsburg, J, delivered the opinion of the Court in which Roberts C.J., and Kennedy, Breyer, Sotomayor, and Kagan JJ, joined. Alito, J. filed a dissenting opinion, in which Thomas and Gorsuch, JJ.., joined.

Sixth Amendment:

   In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature of the cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Commentary and Analysis:

   Perhaps the most significant point in this very significant decision is the Court's decision that jurisprudence on ineffective assistance of counsel does not apply in the special circumstances of this case.  The court's characterization of Mr. English's trial strategy of usurping the client's decision on how to proceed in terms of guilt or innocence as structural error is not only practical and sensible but strongly rooted in the recognition that liberty is a fundamental personal right which must be controlled by the individual.  Once this right is taken from the individual their liberty is compromised or violated.

About the author:

E.J. Guiste is a trial and appeal lawyer based in the Toronto area in Ontario, Canada.  He handles both trial and appeal work on criminal and civil matters.

Thursday, May 3, 2018

Costs, Access to Justice and the Administration of Justice:Quotes from the Bench

[13]  It is, I think, of the utmost importance to the administration of justice that the cost of litigation not go beyond the resources of persons of average means, which encompasses most of us.  There are few individuals in Canada who could afford to pay the sums sought in this case for costs.  This wrongful dismissal case ballooned into a wide-ranging exercise which cost for more than the reasonable expectations of parties commencing or defending such an action.

[14]  If costs awards, to be paid by the losing party, reach the level. as they have done in Ontario, that they can bankrupt an ordinary person, never mind an impecunious one, there is a danger that confidence in the justice system will be undermined and it will increasingly be seen, and not without good reason, as a system for business and the wealthy, but not for the mass of people whose tax dollars fund the system.  The loser-pay costs system can act as a serous barrier to justice, deterring deserving as well as frivolous cases.  Many jurisdictions get along quite well without a "loser pay" system.  Perhaps we should become one of them and deter frivolous cases and improper conduct in other ways.

[25]    .....The courts exist to hear the complaints of the people.  It is not in the public interest to deter the people from using their own courts for fear of the costs consequences if they lose the case.

Lane J. in Walsh  v.  Regenscheit et al 2007 Canlii 27588

Access to Justice:

[54]   Fourthly, there is a serious risk that, if we hold to a presumption that a judicial officer holder will not be compensated for their legal expenses, where a finding of misconduct is made, those persons will then face the judicial equivalent of the Gordian Knot.  On the one hand, the person can choose to defend themselves but with the knowledge that, if the adjudicator decides against them, they will not only lose their position but may effectively bankrupt themselves and their family in the process.  That result arises from the reality that the legal expenses associated with responding to a complaint, and participating in such a hearing, are likely to be significant.  Few judicial office holders would be able to self-fund those expenses.  On the one hand, that same person, in order to avoid those dire financial consequences, may simply decided that is is easier, and financially safer, to simply resign their office.  In doing so, though, they leave the allegations unanswered and consequently, in most persons' minds, admitted to.  If that is the knot that a judicial officer holder faces it means that the mere fact of a complaint becomes, in and of itself, a threat to judicial independence, because it may lead to one of two undesirable results.  Either the judicial office holder, for reasons other than the merits of a particular complaint, acquiesces in their removal from office or they may choose to avoid decisions that will subject them to criticism.

Nordheimer J. in Massiah   v.  Justices of the Peace Review Counsel and A.G. Ontario
2016 ONSC 6191

Monday, April 30, 2018

Does a Client Have the Right to the Undivided Loyalty of his Lawyer in a JR of Removal from Office Case ?

                                                                  Court of Appeal File No.M49113
                                                                  Divisional Court File No. 316/15


Applicant/Moving Party



- and –




          THE MOVING PARTY, Errol Massiah, will make a motion to the Court of Appeal for Ontario for leave to appeal the decision of the Divisional Court dated April 9th, 2018.

                   PROPOSED METHOD OF HEARING is in writing 36 days after service of the moving party’s motion record, factum and transcripts, if any, or on the filing of the moving party’s reply factum, if any, whichever is earlier, at Osgoode Hall, 130 Queen Street West, Toronto, Ontario, M5H 2N5, pursuant to rule 61.03.1(1) of the Rules of Civil Procedure.

                   The Motion is for:

1.      An order granting the moving party leave to appeal to the Court of Appeal for Ontario from the decision of the Divisional Court dated April 9th, 2018;

2.      His costs; and

3.      Such further and other relief as counsel may advise and this Honourable Court permit.


(1) The Original Decisions:

1.      By Order dated October 4th, 2016, the Divisional Court dismissed an application for judicial review brought by the Applicant seeking to quash the decision, penalty, compensation decision, Order-in-Council and all interlocutory decisions of a Hearing Panel of the Justices of the Peace Review Council which recommended the Applicant’s removal as a Justice of the Peace.  Leave to appeal that decision was sought at the Ontario Court of Appeal and that motion was denied.

2.      Throughout those proceedings (judicial review and leave to appeal motion) the Applicant was represented by the Intervenors.

3.      Following the dismissal of the proceedings, the Applicant sought the advice of other counsel regarding what he considered a most unjust result in the circumstances.  At that time it was discovered that the intervenors had been quite ineffective on a number of fundamental points of law and indeed had a conflict of interest in their representation of the Applicant which deprived him of natural justice and to a fair and impartial adjudication of his right to have the Divisional Court supervise the Justices of the Peace Review Council Hearing Panel’s exercise of their statutory power of decision under the Judicial Review Procedures Act.

4.      Following the dismissal of the proceedings, the Applicant learned that Presenting Counsel’s spouse in the proceedings before the Justices of the Peace Review Council Hearing Panel was a law partner of the complainant, Mr. Doug Hunt, in the hearing she acted as Presenting Counsel in which resulted in his removal.   Standing alone this may not raise concerns of fairness.  However, Presenting Counsel was expressly asked in writing who the complainant was in the case and she advised in writing that it was the witnesses who she  would call the hearing.  Relying on this representation the Applicant asked every witness whether they had any intention to complain about him and they all answered in the negative with the Hearing Panel making a finding that this point was not relevant because Mr. Hunt was the complainant.

5.      Remarkably, the hearing proceeded to a finding of liability without the Applicant knowing who the complainant was.  In addition, although seeking the advice of Independent Counsel who specifically advised them in his opinion that it was a “complaint” which the Justices of the Peace Act authorized them to adjudicate they proceeded to adjudicate the counts on Presenting Counsel’s Notice of Hearing.

6.      A motion and Notice of Constitutional Question was brought before a three member panel of the Divisional Court seeking to set aside the decision of the Divisional Court as a miscarriage of justice citing the following sources of jurisdiction: s.6(1) and 10 of the Judicial Review Procedures Act and s.20(d) of the Statutory Power Procedures Act, s.51(1) of the Constitution Act, 1982 and Rule 59.06(1) and 59.06(2)(a)(b) of the Rules of Civil Procedure.

April 9th, 2018
Divisional Court

7.      On April 9th, 2018 a panel of the Divisional Court dismissed the Applicant’s Notice of Constitutional Question seeking a declaration of unconstitutionality arising from a conflict between the in-writing complaint provision mandated by s.10.2(2) of the Justices of the Peace Act and the Notice of Hearing provisions of the Procedures Document which allow an unfettered discretion to Presenting Counsel retained by the Justices of the Peace Review Council to present the case to also draft a Notice of Hearing having no relation to the complaint and even to assert liability for matters in a prior hearing which were clearly res judicata;

 8.      In addition, the Divisional Court Panel dismissed and or failed to consider the Applicant’s claim that the Hearing Panel which recommended his removal was chaired by a part-time judge who required the consent of the Attorney General to sit as a judge and was composed of two “temporary members” of the Review Council contrary to the Justices of the Peace and Procedures Document.

9.      Further, the panel of the Divisional Court dismissed the Applicant’s Notice of Constitutional Question seeking a declaration that the compensation-for-legal-costs portion of the Justices of the Peace Act is unconstitutional since the legislation has no statutory language requiring the Attorney General of Ontario to pay compensation on any recommendation for compensation involving a justice of the peace – while s.51.7(8) of the Courts of Justice Act contains mandatory language directing the Attorney General to pay compensation to Judges of the Ontario Court of Justice pursuant to any recommendation made by a Hearing Panel.

10.    By order dated April 9th, 2018 a panel of the Divisional Court dismissed the Applicant’s motion seeking to set aside, vary or amend a decision of another panel of the Divisional Court dated October 4th, 2016 expressly finding the decisions of liability and penalty of a Hearing Panel of the Justices of the Peace Review Council reasonable based on the record of proceedings before it, as a miscarriage of justice.

11.    Further, the said panel of the Divisional Court also dismissed the Applicant’s prayer for the following relief:

                   i.        An order declaring his appellate counsel on
                             the October 4th, 2016 order to have been in
                             a personal conflict of interest;

                   ii.       An order declaring his appellate counsel to 
                             have provided him ineffective assistance of 
                             counsel thereby depriving him of his 
                             constitutional right to a fair and impartial 
                             hearing of the review by a Superior Court
                             of his removal from judicial office;

                   iii.      An order declaring that Presenting Counsel 
                             exceeded the statutory ambit of her duties as 
                             Presenting Counsel under the Justices of the 
                             Peace Review Council’s Procedures Document 
                             and in so doing deprived the Hearing Panel 
                             with effective assistance of counsel and or
                             improperly interfered with the Applicant’s right 
                             to counsel and his right to defend his judicial 
                             office as is his constitutional right so to do;

                   iv.      An order declaring Henein Hutchison LLP to 
                             be in a conflict of interest and consequently 
                             disqualified from defending the decisions of 
                             The Justices of the Peace Review Council 
                             Hearing Panel’s decisions in this matter
                             since the challenged acts and omissions 
                             flow from their discharge of the function 
                             of Presenting Counsel before the Hearing 
                             Panel and the filling of the tribunal’s record 
                             of proceedings and it is for the Attorney 
                             General of Ontario to exercise his common 
                             law, constitutional and statutory Jurisdiction 
                             under the Ministry of the Attorney General
                             Act in the public interest.       

Cogent Reason to
Doubt Correctness
Of order:

Admittedly Deficient

12.    The Applicant’s motion while invoking Rule 59 with respect to various discrete items of fresh evidence raised a more fundamental point which  recognizes the fundamental role of the Superior Court in the adjudication of an application for judicial review which is to supervise the statutory exercise of power and to ensure that it was lawful. In this case, the Divisional Court upheld the Hearing Panel’s decisions of liability and penalty finding them not to be correct but to be reasonable based on the record before it;

13.    The April 9th, 2018 decision was made notwithstanding the following facts before the court:

                   i.        Breach of agreement by the parties before 
                             the Hearing Panel on the scope of the 
                             record of proceedings which is clearly 
                             reflected in the October 8th, 2014
                             transcript of the JPRC hearing;

                   ii.       A March 15th, 2017 written confirmation 
                             from the Registrar and Counsel of the Justices 
                             of the Peace Review confirming that they have 
                             in their possession the five volume investigation 
                             transcripts, exhibits 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 
                             12, 13A, 13B, 13C, 13D, 14A, 14B, 14C, 14D, 
                             14E, 14F, 14G, 15, 16, 17, 18, 19, 20, 21, 22, 23, 
                             24, 25, 26, 27, 28, 29, 30A, 30B, 30C and copies 
                             of all motion records, facta and boa;  and

                   iii.      A sworn affidavit from co-counsel for the JPRC 
                             that he and the Applicant’s appellate counsel on 
                             the judicial review hearing before the Divisional 
                             Court agreed after the parties had all filed their 
                             facta with the court that the five volume 
                             investigation transcripts would not be filed with 
                             the court but “would be made available to be 
                             passed up to the court if necessary”

Conflict with Jurisprudence
From this court:

14.    In Payne  v. Ontario Human Rights Commissions 2000 Canli 5731 (ONCA) the court stated:

                   [161]   An Applicant for judicial review has the right 
                               to have a full and accurate record of what went 
                               on before the tribunal put before the court. 
                               This is an aspect of the superior court’s inherent 
                               powers of judicial review... A statutory body 
                               subject to judicial review cannot immunize itself 
                               or its process by arriving at decisions
                               on considerations that are not revealed by the 
                               record it files with the court.

15.    In the April 9th, 2018 the Divisional Court Panel ruled that “Rule 59.06 does not apply to any of these matters. The Applicant knew of all of these issues and complaints before the entry of the October 2016 Order.”
16.    In Aird & Berlis LLP  v. Oravital Inc. 2018 ONCA 164 this Honourable Court set aside a motions judge’s finding that the appellants’ were sophisticated business people who were aware of the value of the damages and risks of litigation stating that it reflects a misapprehension of a lawyer’s duty of care to advise the clients about the legal basis for the damages and the risks of litigation. In addition, although the parties took the position that the issues for litigation could be resolved on a motion for summary judgement the court held that they were mistaken on that point and ordered a trial of the matters.

17.    Under s.10 of Judicial Review Procedure Act the duty to file the tribunal’s record is on “the person making the decision” as distinct from that person’s counsel or as in this case the law firm retained to perform the statutory function of Presenting Counsel pursuant to the JPRC Procedures Document.

Standing and Boot-Strapping:

18.    In Ontario  v. Ontario Power Generation [2015] 3 S.C.R. 147 the Supreme Court of Canada provided guidelines on the issues of tribunal standing to defend their own decision on judicial review and on boot-strapping, supplementing their decision with new arguments on appeal.

19.    The JPRC Procedures expressly provide that the role of Presenting Counsel, Henein Hutchision LLP is “to see that complaint against the justice of the peace is evaluated fairly and dispassionately to the end of achieving a just result”, a function which is long spent.

Conflict of Interest
Of Applicant’s Counsel
On Judicial Review:

20.    The April 9th, 2018 decision overlooked the following salient facts which placed the Applicant’s counsel on the judicial review in a conflict of interest or position of divided loyalty:

                             1.      He was an integral part of the Applicant’s
                                      legal team at the JPRC Hearing;

                             2.      Prior to the JPRC Hearing Panel making 
                                      its referral of the Applicant’s lead counsel 
                                      to the Law Society of Upper Canada 
                                      alleging, among other things, that he brought 
                                      meritless motions, that lawyer referred the 
                                      judicial review to him;

                             3.      He and his firm have historically been the
                                      counsel of choice for the subject lawyer,
                                      including on a reported case touching on
                                      that lawyer’s conduct;

                             4.      His initial draft of the Notice of Application 
                                      for Judicial Review and indeed the issued 
                                      document show a clear intention to challenge 
                                      the JPRC Hearing Panel’s errors in the 
                                      adjudication of the preliminary motions 
                                      attributed to the said lawyer;

                             5.      On June 22nd, 2015 the JPRC issued a
                                      Compensation Decision and Addendum
                                      alleging professional misconduct on the
                                      part of the Applicant’s lead counsel touching
                                      on the merits of legal arguments raised at
                                      the hearing;
                             6.      The Applicant was clear in his 
                                       instructions to counsel prosecuting 
                                       the Judicial review application that 
                                       the Hearing Panel’s adjudication of 
                                       the preliminary motions
                                      was in error and was evidence of the 
                                      Hearing Panel’s exhibition of a 
                                      reasonable apprehension of bias based 
                                      on his and his lead counsel’s race;

                             7.      At no time did the Applicant’s counsel on the
                                      Judicial review advise him that the Hearing
                                      Panel’s referral of his lead counsel to The
                                      Law Society of Upper Canada, where he sits
                                      as both a Bencher and Adjudicator on the 
                                      Law Society Tribunal placed him in a conflict 
                                      or position of divided loyalty which resulted 
                                      in the following acts of ineffective assistance 
                                      of counsel on their part:

    1.     Abandoning the argument that 
            the complaint, the Investigators
            Report and the Notice of Hearing
            did not match;

    2.      Abandoning the argument that 
             The Decision, Penalty and 
             Compensation Decision, and all 
             related interlocutory orders 
             should be quashed;

    3.      Abandoning the argument that 
             the Order in Council is predicated 
             on the decisions in the interlocutory 
             motions, the Decision and the Penalty 
             and should accordingly be quashed 
             as a result of the errors by the 
             Hearing Panel;

    4.      Abandoning the argument that 
            the allegations of vexatious, 
            unwelcome and poisoned work 
            environment called for an 
             objective test in order to 
             ground liability – a position he 
             supported when mentoring the 
             Applicant’s lead counsel before 
             the JPRC Hearing Panel;

  5.      Failing/refusing to raise at the 
           Divisional Court that a significant 
           part of the Notice of Hearing was 
           barred by the principle of law in 
           Hryciuk  v. Ontario only to raise
           it on the leave motion in this Court;

6.      Failing/refusing to raise the tainted 
         well doctrine of bias with respect to 
         the recusal of The Law Society of 
         Upper Canada’s nominee from the 
         Hearing Panel – erroneously asserting 
         in his Affidavit of January 3rd, 2018 
         that he did not raise it on judicial review 
         because it was not raised below;

7.      Failing/refusing to raise the 
         argument that the JPRC 
         Hearing Panel was  
         improperly constituted – 
         again erroneously asserting in 
         Exhibit II of his affidavit Of 
         January 3rd, 2108 that he did not 
         raise it because it was not raised 
         below when in fact it could not 
         have been raised below because 
         the disclosure was first made to him 
         after the tribunal’s decisions and the 
  8.      Failing to ensure that the Divisional 
           Court had a complete record of 
           proceedings and attempting to place 
           blame on the Applicant’s counsel who 
           was the subject of the JPRC referral to 
           the LSUC for this in his affidavit of 
           January 3rd, 2018;

 9.      Engaging in extensive conversation 
          with the investigator from the LSUC 
          on the JPRC referral between preparing 
          the memo on Presenting Counsel’s 
          conduct and serving and filing his 
          factum and Application Record in 
          January, 2016.

 10.    Refusing to raise numerous 
          serious excesses of Presenting 
          Counsel in the presentation of the 
          case against the Applicant detailed 
          in a November 8th2015 memo 
          which he admitted under cross
          -examination on February 8th
          2018 adversely impacted the 
          Applicant’s fair hearing rights.

 11.    Filing his facta and Application 
          Record before resolving the scope 
          of the record of proceedings contrary 
          to the Divisional Courts jurisprudence 
          where he has handled many such 

 12.    Failing to discharge their duty of candour
          to the Applicant and to ensure that they
          properly advised him so that he could
          give an informed consent to their advice
          to him.                
 Presenting Counsel’s
Personal Conflict:

21.    Evidence before the Divisional Court panel on the Applicant’s motion indicated that he discovered in April 2017 that Presenting Counsel’s spouse was a law partner of the complainant former Presenting Counsel Doug Hunt.  Presenting Counsel did not call Mr. Hunt to give evidence and in fact when asked who the complainant was she advised that it was the witnesses she would call at the hearing. The Applicant relied on Presenting Counsel’s representation and questioned the witnesses on their intention to complain only for the Hearing Panel to rule that their intention was irrelevant as Mr. Hunt was determined to be the complainant only after the Hearing Panel’s liability decision was issued on January 12th, 2015.           
22.    The Divisional Court ruled that neither the above or the other items of the fresh evidence adduced by the Applicant met the test for admission of fresh evidence on the motion.

 Fundamental Questions of
Law and Ethics Transcending
the parties:

23.   The Divisional Court Decision raises discrete issues about the role of the court, counsel and the Attorney General of Ontario on a judicial review application which merit consideration and clarification by this Honourable Court:

 1.      Did the Divisional Court construe the 
          Applicant’s Motion and Notice of 
          Constitutional Question asserting a
          miscarriage of justice before it too 
          narrowly ? 

 2.      Given the evidence before the Court 
          pointing to ineffective assistance of 
          counsel and conflict of interest which 
          deprived the Applicant of a fair hearing 
          before the Divisional Court and on his
          leave to appeal motion before this 
          Honourable Court did the Divisional 
          Court err in refusing to entertain this 
          evidence in  support of the Applicant’s 
          claim of a miscarriage of justice in
           the loss of judicial office ?

3.      Is there any principled reason why 
         ineffective assistance of  counsel in 
         the context of a judicial review application 
         pertaining to removal from judicial office 
         does not constitute facts arising or 
         discovered after an order is made 
         and constitutes an abuse of process merely 
         because the client relies on the same 
         lawyer on a leave to appeal motion ?

 4.     The Divisional Court’s decision is 
         inconsistent with jurisprudence from 
         the Supreme Court of Canada on tribunal 
         standing to defend its decisions and 
         boot-strapping, this court with respect 
         to the duty on a tribunal to file a complete 
         record on judicial review, the Federal 
        Court of Appeal and other courts with
        respect to the availability of ineffective 
        assistance of counsel as a basis for 
        establishing a breach of natural justice 
        and hence an unfair hearing in civil cases.

The following documentary evidence will be relied upon:

1.  Divisional Court Reasons dated April 9th, 2018;

2.  Motion Record originally filed with the Divisional Court will be

3.   Such further evidence or documents which this Honourable Court may permit.

April 24th, 2018                                                                   

Professional Corporation
Trial & Appellate Advocacy
2 County Court Blvd., Suite 494
Brampton, Ontario
L6W 3W8
E.J. Guiste (LSUC # 34970C)
(416) 364-8908
(416) 364-0973 FAX
Counsel for the Applicant

Henein Hutchison LLP
235 King Street East, 3rd Floor
Toronto, Ontario
M5A 1J9

Tel.(416) 368-500 – Fax (416) 368-6640

Mr. S. Hutchison and Mr. M. Gourlay
Presenting Counsel and Counsel for the JPRC
In the Court Proceedings to Date


Ministry of the Attorney General for Ontario
Crown Law Office – Civil Law
720 Bay Street, 8th Floor
Toronto, Ontario
M7A 2S9

Tel. (416) 326-4155 – Fax (416) 326-4181
Ms. Sara Blake,  
Counsel for the Lieutenant Governor
In Council and the Attorney General


102-366 Adelaide Street West
Toronto, Ontario
M5V 1R9

Tel.(416) 971-8000
Fax (416) 971-8001

Tim Gleason
Counsel for the Intervenor

The Attorney General of Canada (as required by s.109 of the Courts of Justice Act)
Suite 3400, Exchange Tower
Box 36, First Canadian Place
Toronto, Ontario
M5X 1K6

Fax (416) 952-0298

NOTE:  This Notice of Motion seeking leave to appeal was filed in the Court of Appeal for Ontario on April 24th, 2018.  It is published here because it raises issues of public importance. Is there any principled reason why a judicial officer removed from office is not entitled to effective assistance of counsel on a judicial review pursuant to the Judicial Review Procedures Act ?  Can a client give consent to circumstances giving rise to a conflict of interest and or divided loyalty on the part of his or her lawyer which impair his or her fair hearing rights ?