Monday, October 24, 2016

Did the JPRC's Deficient Record of Proceedings Prevent Meaningful Appellate Review ?

Excerpt of transcript of 
proceedings of October 8th, 2014:


My friend seems to be under the impression that means they're lost from the record and
that they don't form any part of the Panel's consideration or the record of the case, that's
obviously untrue.  All the factums, and motion records, notices of motion that have 
been filed in this proceeding are before you and will be preserved as part of the 
record of this proceeding and there's simply no need to mark them as exhibits.


Thank you, Mr. Guiste.  The Panel considered the issue of what is properly filed as an
exhibit and what is not required to be filed as an exhibit.  And generally the Panel is 
of the view that any materials filed, such as Mr. Gourlay referred to facta, books of 
authorities, responding facta, et cetera are not technically filed as exhibits, they are
part of the record.

They remain part of the record for any further applications which could follow our 
decision, but they are not evidence per se and therefore would not be filed.

So in our view, despite the fact that exhibits 3 through 8 were filed as exhibits, they
were in an unusual position in relation to the motion with respect to ban of publication,
and perhaps even filed as exhibits inappropriately, but they were and we can't change

So our view is that with respect to your request to have the material with respect to
disclosure and particulars, the motion that was before this court on which we
rendered reasons on June 12, 2014, it is not necessary that those documents be
filed as exhibits.

With respect to the affidavit of His Worship and the materials surrounding that,
His Worship was cross-examined on the affidavit, his testimony is evidence. In
our view all of the material surrounding that is not evidence per se, it is part of
the record but is not required to be filed as an exhibit.

The submissions, the disclosure request documents, which you referred to from
November of 2013, again they are not evidence. They are part of the record. They
will not be filed as exhibits.

With respect to the facta with respect to abuse of process, for which you have
argued it only makes sense for fairness and for the integrity of the process that
we be informed by having them, we have them.  They are part of the record.
They do not need to be filed as exhibits.

Registrar on Record of Proceedings:

"The record for a judicial review includes the transcripts of the proceedings, the
orders made by the Panel and a copy of the exhibits."

Missing from the JPRC Record of Proceedings:

1.   All motion records, facta, book of authorities;

2.   Exhibits 1-9

3.   5 Volumes of Complaints Committee Investigation Transcripts

4.   Reasons on Liability and Disposition of 2011 Hearing Panel

5.   Applicant's Written Submissions on Compensation, Presenting Counsel's
      written submissions on Compensation and Reply which was refused by
      the JPRC - including a Bill of Costs which delineated the costs of the
      proceedings in detail and a copy of the JPRC recently amended Procedures
      Document which was changed to make the Compensation portion of the
      hearing public.

Divisional Court Decision:

1.  Although I properly raised Hryciuk  v.  Ontario (ONCA) as a bar to the
proceedings as early as July, 2013 this aspect of the challenge to jurisdiction
and abuse of process is clearly not addressed in the Divisional Court decision.
While the JPRC Hearing Panel made reference to Hryciuk it is clear on
a proper reading of the record including the written submissions by the parties on
the point that the Hearing Panel clearly misunderstood the holding of the Court of
Appeal in Hryciuk. Hence, they clearly erred in law on a point which they were
required to be correct on.

   The Hearing Panel thought it was sufficient that the "new' allegations were dealt
with in a separate hearing and that they had the authority to determine if the proper
procedures were followed by the complaints committee and that if they determined
that it did that was the end of their duty on Hryciuk. (see Presenting Counsel
submissions on Jurisdiction dated March 13th, 2014 )  Indeed, this is precisely
how Presenting Counsel presented the law on Hryciuk to the Hearing Panel at
p. 10-12 of this document. I properly raised an objection to this instruction
on the motion I brought asserting a reasonable apprehension of bias - as well as
institutional bias which the Hearing Panel also dismissed and found was "entirely
baseless and was justifiably characterized as "frivolous" in the Panel's decision."
(see Compensation Decision at p.11)

2.  Although I properly included His Worship's Answer to the  complaints committee
investigation in his original motion record - wherein he clearly acknowledges that
some of the allegations are consistent with his prior manner of interaction and that
he will not interact that way in the future the Hearing Panel went on to unfairly
attack his credibility and fitness to sit as a judicial officer on account of his testimony.
A proper review of the totality of the record of proceedings - including the Answer to
the complaints committee makes it clear that the testimony which the Hearing Panel
found offensive was the Applicant's truthful testimony that he felt "well received" at
the material time.  The Hearing Panel appears to have erred in misapprehending the
Applicant's evidence on the allegation in the Notice of Hearing that his comments
were "well received" as speaking to his understanding of the inappropriateness of the
prior findings or sexual harassment generally.  Indeed, Justice Marrocco, A.C.J.
appeared to be labouring under a similar misapprehension when he suggested to the
Applicant's counsel in my presence that the Applicant's defence was no defence at all.

3.   In its Compensation Decision the JPRC Hearing Panel takes issue with
various motions properly initiated on behalf of the Applicant and the
propriety of these motions are not addressed - understandably because the
motion records, facta and book of authorities were not in the record. It
appears that the reviewing court did not even have the Bill of Costs and
Written Submissions of the parties on the compensation issue.


   The JPRC Hearing Panel has suggested that I brought inappropriate, baseless and
frivolous motions in representing my client. The Hearing Panel issued a public
Addendum containing their complaint against me to the Law Society of Upper
Canada.  It appears that the chair of the Hearing Panel retweeted a very critical
article by the Toronto Sun's Michele Mandel promoting her Compensation
Decision and my referral to the Law Society a day after the release of her

   The Divisional Court had the following to say even thought they did not
even have a copy of the Bill of Costs before them:

[55]   The legal expenses issue is not a fanciful one.  In this case, for example, the
applicant incurred legal fees in excess of $600,000.  In setting out that fact, I do not,
for a moment, mean to suggest that the level of legal fees was either appropriate or
justified for what took place in this case.  I merely use it as an example of the type
of financial consequence that may arise for a judicial officer(sic) holder, who finds
her/himself in the position of having to decide whether s/he can actually afford to
respond to a complaint.

   The fact is I acted in the best traditions of the Bar and represented my client fearlessly
and competently.  The cost of this litigation could have been significantly less if the
binding legal authority of Hryciuk  v.  Ontario (ONCA) was respected and applied at
the outset of the proceedings.  I was just doing my job !  My good Catholic upbringing
compels me to speak out against injustice.

NOTE:  This piece is written for the sole purpose drawing attention to issues of public
importance.  The recommendation for the removal of a judicial officer by an
administrative tribunal is an issue of public importance.  The denial of compensation
by the Attorney General for Ontario for a judicial officer who is compelled to defend
himself in judicial misconduct proceedings is also a matter of public importance.
The singling out of a lawyer for prosecution by the Law Society of Upper Canada
for a lawyer who is "simply doing his/her job" is also a matter of public importance.
If I have stated anything that it inaccurate or wrong in this publication kindly bring it
to my attention and I will no doubt correct it.  My purpose is remedial and not punitive.
Justice must be seen to be done.  Too many of our fellow Canadians gave up their lives
so that we can enjoy The Rule of Law and Judicial Independence for me to remain silent.


Wednesday, October 19, 2016

Massiah v. JPRC 2016 ONSC 6191: A Case Comment

   The Divisional Court recently upheld a decision of a Justices of the Peace Review Council Hearing Panel removing a justice of the  peace from office finding that its decision on liability and penalty were reasonable.  That Hearing Panel was formed based on the issuance of Notice of Hearing issued by the Justices the Peace Review Council on May 31st, 2013 and drafted by Presenting Counsel retained to litigate the case by the Justices of the Peace Review Council.(JPRC Procedures Document)

   The Divisional Court's ruling is a matter of public importance because the
Notice of Hearing and findings of liability clearly exceed what the Hearing Panel found
to be the complaint - The Hunt Report - since counts 1-6 and 7 was not screened by the
Complaints Committee and the Hearing Panel heard no evidence on the issues raised in those particulars in the Notice of Hearing - a point raised in the proceedings by the writer
on his joining the judicial officer's defence team in July, 2013. (Hryciuk  v. Ontario 1996
Canli 4013 (ONCA)

   The Hunt Report is a private and confidential report prepared by Presenting Counsel, Mr. Doug Hunt for his client.(Applicant's Factum @ Divisional Court)  Mr. Hunt is the lawyer who prosecuted Mr. Massiah's first proceeding which resulted in a 10 day suspension(2012). His report was generated as a result of him receiving calls from court staff following a Law Times article about the case which he was presenting at the time. Mr. Hunt interviewed five people and prepared will says which he sent to the Registrar and Counsel or the JPRC, Ms. Marilyn King. When Ms. King received his report she asked "is this a new complaint ?". Mr. Hunt replied that members of the public brought information to our attention and I am forwarding it for your consideration.

   A complaints committee was appointed to investigate what the JPRC interpreted to be a complaint and it interviewed 33 witnesses which produced five volumes of investigation transcripts.  The bulk of paragraphs 7-13 in the Notice of Hearing issued May 31st, 2013 by the JPRC stemmed not from the Hunt Report itself but from the investigation carried out into it. It is clear that paragraphs 1-6 and 14 were in fact not part of either the Hunt Report or the investigation and accordingly the subject judicial officer was never asked to provide an answer to it and he learned of those specific allegations for the first time following the issuance of the Notice of Hearing.  The JPRC decided that the Hunt Report constituted the complaint in writing in January, 2015. The allegations occurred between 2007 and 2010.

   A stay of proceedings was sought for the myriad of procedural irregularities including the inordinate and prejudicial delay which adversely impacted hearing fairness and hence the ability to defend. This myriad of procedural irregularities prompted the hearing panel to retain high profile lawyer, Brian Gover, for an opinion on the jurisdiction and abuse of process motions raised on behalf of Massiah.  Mr. Gover provided his opinion but it appears that the hearing panel did not accept and apply the legal principles from Blencoe   v.  B.C. Human Rights Commission [2000] 2 S.C.R. 307. The hearing panel issued two decisions after hearing all of the evidence. One decision was on the two motions. The other was on the merits. The former decision was made by the hearing panel on the same day but did not involve its assessment of the evidence. This is what the hearing panel had to say:

[116]   We find there is no time limit for allegations of judicial misconduct to be filed as complaint with the Review Council.

[119]   The ability of each witness, including His Worship, to recall events and provide accurate testimony on events of years ago is an issue to be assessed when we consider and weigh the evidence on its merits.  In our opinion, a passage of time that may cause memory to fade does not, however, form a basis to conclude there has been an abuse of process. No legal basis, or actual prejudice on the facts of this case was presented which counters this view.

    In what is a first in Canada the Hearing Panel went on to refer one of two counsel who represented the judicial officer to the governing body for lawyers in Ontario, The Law Society of Upper Canada alleging that he committed professional misconduct in discharging his duties as a lawyer.  In addition, the Hearing Panel denied the judicial officer's claim for compensation to cover his cost of defending the allegation of judicial misconduct. The Divisional found the Hearing Panel's decision on compensation to be flawed and remitted it back to the JPRC. It is important to appreciate that the Hearing Panel denied compensation to the judicial officer in 2015 and counsel raised the Hryciuk error in the NOH in July, 2013.  Clearly, a careful evaluation of the entire record of the proceedings and the Bill of Costs submitted to the Hearing Panel would reveal that in fact the issues around the legality of the complaint and the items which constitute the Hryciuk Error complicated the proceedings and increased the jeopardy faced by the judicial officer and the cost of the defence.

Deficient Tribunal Record

   Regrettably, the JPRC Record appears to be missing copies of the motion records, facta and books of authorities filed by the parties with the Hearing Panel which both Presenting Counsel and the Chair of the Hearing Panel confirmed on October 8th, 2014 at pages 158-163 of the transcript would be part of the record "for any further applications which could follow our decision.(see JPRC Record of Proceedings - Vol.III - Tab 60)  Given the high standards of fairness of this tribunal in the discharge of its mandate I can only assume that this deficiency in the Record of Proceedings is inadvertent and that it will be corrected.

   Ironically, it would appear that the Divisional Court's finding that the JPRC 2013
decision was reasonable is inextricably tied to the hearing panel's finding that the judicial officer was not credible before them and hence incapable of carrying on judicial duties. This is precisely the concern raised on behalf of the judicial officer which the hearing panel took exception to in referring counsel to the Law Society of Upper Canada and indeed in denying the judicial officer compensation for defending the proceedings.  This is what the Hearing Panel cited to the LSUC in their referral:

(4)   On November 4, 2013, Mr. Guiste stated, "you have the Ministry of the Attorney
        General and you have the Justices of the Peace Review Council...there appears
        to be either intentionally or unintentionally, objective of seeking to, "if we can't
        get him out by legitimate means in accordance with law, then we will so taint his
        reputation so that he will be unfit."  He further explained his comments by stating:
        "Intentionally or unintentionally it appears to me that the Ministry of the
        Attorney General and the Attorney General for Ontario have decided in their
        wisdom that, "If we cannot get rid of Justice of the Peace Massiah within the
        bounds of the law - that is, with respect to legitimate complaints brought in
        accordance with the statute - then we will seek to remove him from office by
        virtue of the deliterious effects of the publications by virtue of the nature 
        of the allegations."

Here are the relevant portions of the Divisional Court's Reasons:

[40]   The 2012(sic) Panel had also made a finding regarding the manner in which the
applicant had given evidence before it that necessarily weighed heavily on their
conclusion as to the appropriate disposition.  It its reasons on the merits, the 2012(sic)
Panel had said:

"In all of these aspects, we find His Worship's evidence to be problematic.  His
testimony was replete with inconsistency, an air of insincerity, and efforts to
adjust his testimony to minimize the inappropriateness of his conduct.  We do
not accept that he is a credible witness or that his evidence was reliable. (para 174)

[41]   The 2012(sic) Panel referred back to this finding towards the end of its decision
on disposition.  I agree with counsel for the JPRC that it is difficult to see how, in light
of this finding, that is amply supported by the evidence, the 2012(sic) Panel could have
achieved the necessary goal of restoring and maintaining the integrity of the judiciary,
if it permitted the applicant to remain in his position as a justice of the peace. It is
tough to see how the applicant could be seen as being able to carry out his duties of
adjudicating matters affecting members of the public, in light of this devastating
attack on his own credibility.
Legal Error(s):

   In reviewing the legality of the removal of a judicial officer by an administrative tribunal the Divisional Court is exercising both statutory and constitutional jurisdiction.  In exercising its powers under the constitution with respect to judicial independence the Divisional Court ought not be limited by the acts or omissions of counsel or the parties otherwise those fundamental rights are capable of being rendered merely illusory rather than binding. It stands to reason that in the context of this type of litigation it is for the court to ensure that both the proceedings before the administrative tribunal and before it are in accordance with law.

   A court's duty to thoroughly review the administrative tribunal's record of proceedings is heightened since argument before the JPRC Hearing Panel included claims that they lacked jurisdiction by virtue of not having a complaint in writing pursuant to the enabling legislation, the complaints committee exceeded its jurisdiction in ordering a hearing, the Notice of Hearing was improper in that it contained as much as seven discrete particulars which were never pre-screened by the complaints committee as required by Hyricuk  v.  Ontario(ONCA), they disregarded established legal authorities from the Supreme Court of Canada such as R   v. Skolnick [1982] 2 S.C.R. 47, Blencoe  v. B.C. Human Rights Commission [2000] 2 S.C.R. 307 and that their penalty decision was a collateral attack on the 2011 Hearing Panel decision chaired by Justice Vaillencourt - the cumulative effect of which constituted an a abuse of process at common law for which a stay of proceedings ought to have been granted.

   In a nutshell, the Divisional Court's decision upholding the JPRC Hearing Panel's decisions on liability and penalty as being reasonable is fundamentally inconsistent with the level of judicial scrutiny called for in the review of the application of the fundamental principle of judicial independence.  The legal error or errors in the decision is best summed up by a quote from The Hon. Justice David Stratas in his very thoughtful and provocative paper entitled The Canadian Law of Judicial Review: A Plea for Doctrinal Coherence and Consistency:

"When we review the decisions of the  executive and its agencies, we must always:

-   act in a coherent and consistent way relying upon pre-determined, objective doctrine
    emanating from and reflecting the animating concept behind judicial review, namely
    the tension between Parliamentary supremacy and the reviewing courts' duty to
    enforce rule of law standards, and other legal concepts known to our law, including
    public policies emanating from legislation and relevant to the task at hand; and

-   avoid resorting to ad hoc subjective impressions, aspirations, personal
    preconceptions, ideological visions, or freestanding policy opinions - matters that
    can depend on the idiosyncrasies of an individual judge and can vary unpredictably
    - about what is just, appropriate and right.

The former is the stuff of legal contestation and the legitimate domain of the courts; the
 latter is the stuff of public debate and the politicians we elect." (at p.25)

Was Dunsmuir  v.  New Brunswick
Followed ?:

   A finding that an administrative tribunal's decision is reasonable is one which may suggest that the reviewing court is applying the Supreme Court of Canada's binding decision in Dunsmuir  v. New Brunswick 2008 S.C.R 9.   However, if the reviewing court's decision fails to cite that decision and objectively apply the legal principles flowing from that decision to its conclusion of reasonableness it is hard to see and understand just how the reviewing court came to this conclusion. That is a very serious problem in a case such as this. (R  v. Sheppard [2002] 1 S.C.R. 1 and LSUC  v. Neinstein (2010) 99 O.R. (3d) 1 (ONCA))

A Look at the 2013 JPRC Panel

[23]   As the allegations in the complaint relate to sexually-themed comments and
         conduct by His Worship, we have jurisdiction to look beyond the Justices of
         the Peace Act and to consider the law of sexual harassment and sexualization
         in the workplace as defined under the Human Rights Code to assist us in
         determining whether there was judicial misconduct...

[24]   The Ontario Human Rights Code R.S.O. 1990 c H.10 (the Code) defines
          harassment in section 10, as "engaging in a course of conduct of vexatious
          comments or conduct that is known or ought to be known to be unwelcome".
          A single instance of inappropriate conduct may be a violation of the Code
          if it creates a poisoned environment.

[26]   Sexual harassment is recognized by the Supreme Court of Canada as a form of
          discrimination on the basis of sex...

[27]   A"poisoned work environment" can exist when unwelcome comments or conduct
         inappropriately sexualized a workplace...

[29]   At a previous JPRC hearing, in addition to the one involving His Worship Massiah,
          an inappropriate sexualized comment to a female court staff was held to amount
          to a finding of judicial misconduct:  Re Kowarsky (JPRC 2011)
[64]   The allegations contained in paragraphs 1 though 6 of the Notice of Hearing,
          as referred to herein paragraph 32, describe general patterns of behaviour, rather
          than specific incidents.

[65]   For the sake of clarity, we will firstly address the specific acts alleged, in
          paragraphs 7 through 14 of the Notice of Hearing in the context of the
          evidence, and then we will relate the specific acts which we accept occurred, if
          any, back the general allegations.

[207]   ....However, we find that His Worship acted in a manner inconsistent with the
            Human Rights Code.  His actions constituted sexual harassment and he
            failed to treat others in the justice system with mutual respect and dignity.

Divisional Court's 
Pronouncement on 
Unwelcome Test for 
Sexual Harassment:

   In Thames Valley District School Board  v.  Elementary Teacher's Federation of
Ontario the Divisional Court 2011 ONSC 1021 stated the following:

[34]   In order to establish harassment under human rights legislation, it is not necessary
          to prove intention to harass. Rather, the test is an objective one (Stadnyk  v.
          Canada (Employment and Immigration Commission, [2000] F.C.J. No. 1225,
          257 N.R. 385 (C.A.) , at para 11)

Divisional Court's 
Pronouncement on 
Poisoned Work Environment:

   In Crepe it Up !   v. Hamilton 2014 ONSC 6721 the Divisional Court stated the

[18]   In General Motors of Canada Ltd.  v.  Johnson 2013 ONCA 502 Crong J. A
          discussed the concept of a poisoned work environment, albeit in the context
          of a wrongful dismissal action, at paras 66 and 27:

....There must be evidence that, to the objective reasonable bystander, would
support the conclusion that a poisoned workplace environment had been created...
Moreover, except for particularly egregious, stand-alone incidents, a poisoned
workplace is not created, as a matter of law, unless serious wrongful behaviour
sufficient to create a hostile or intolerable work environment is persistent or repeated.

Ontario Law on Unwelcome
Applied by HRTO:

[198]   The Legislature recognizes the fear of retaliation an employee may experience
            in informing someone in her or his workplace, especially one in authority, that
            his or her conduct is unwelcome.  On the other hand, the Legislature recognizes
            - as well as the Supreme Court of Canada in Blencoe - the inherent stigma,
            which attaches to a serious allegation of sexual harassment.  Thus, it has
            established a scheme, which acts as a sword or a shield for the complainant
            or the respondent, respectively. The complainant can inform the alleged
            perpetrator that her or his sexual advance or solicitation is unwelcome
            without fear or retort.  And, where there is reprisal, or threat, there is
            statutory redress.  Without that protection, a complainant may not be able
            to assert her or his right or prove that the conduct was unwelcome, for
            invariably, the defence will be that the victim did not communicate that
            the conduct was unwelcome.  (Farias   v.  Chung 2005 HRTO 22 Canli)

JPRC erred
in law on Human Rights Code
Interpretation and Application 
to the evidence:

[128]   We also find that any obligation an employee of the Region may have had to
            report any inappropriate behaviour by His Worship to his/her employer is
            irrelevant to our ability to conduct this hearing. This is a hearing regarding
            alleged judicial misconduct under the Act, not a right that may exist for an
            employee of the Region of Durham under the Collective Agreement or the
            Regional Municipality o Durham, Harassment and Discrimination Prevention
            Policy.  The authority under the Act to address judicial misconduct is not
            outsted by documents that are put in place to protect the rights of employees.

[129]    We accept that training was provided to His Worship Massiah regarding
             workplace conduct and the need for respect towards all stakeholders in
             the judicial system...Some notable excerpts from the power point presentation

Is Known or Ought Reasonably
be Known

-    The onus of recognizing harassment rests primarily with the harasser
-    The victim is not obliged to verbally say "stop".
-    Blushing, embarrassment, and moving away are all ways of indicating that
     the behaviour is unwelcome and should stop


-    The test is whether the behaviour is unwelcome to the victim, not the harasser....

[130]   Nothing in the HRC indicates that the victim must advise a harasser that his/
            her actions are unwelcome.  That is also made clear in the power point
            presentation above.

Panel Ignored Evidence that
conduct was "well received"
at the material time:

22.   KK one of the managers in the Court Services Area testified that HW Massiah had
in the past complimented her on looking good and losing weight and she took no offence
to his comments but saw them as a compliment.(see Applicant's Written Submissions -
Part II at p.9 para 22)

23.   GG, a witness called by Presenting Counsel gave insightful evidence into HW
Massiah's rapport with the court staff:  She said:

"I thought he was very nice.  I thought he was friendly, approachable, I thought he was
nice.  A lot of them, a lot of the justices, you feel nervous, you don't want to speak to
them. He was more workable and friendly.".....But people were happy to see him
rather than some of the other ones that come in. Again, I don't know if that's because
he would be considered a good-looking older man, or if its because he was friendly
and approachable, people liked him, as opposed to some of the other justices of the
peace who talk to you like they're I don't know ...just like they're much better than
you, which may be the case, but you know, certain ones treat you like you're on
the same level they are, which we do appreciate.".....It didn't bother me that much.
I wasn't really offended by it.  I'm surprised everybody else  was offended by it,
because they never seemed to have a problem with it at the time."(see same doct.)

27.   The following set of questions and answers of GG provides some insight into
the culture or standard of conduct of the work environment:

Q.   Was he considered attractive ?

A.   I'd say he was yes.

Q.   Was there talk to the effect amongst the staff ?

A.   Yes.

Q.   Can you describe that for us ?

A.   Um, well, um we would find out who the justice of the peace is, and you know,
       courtroom 105 that day, if was His Worship Massiah, we would say, um - -I
       don't remember exact terms its been a long time.

Q.   Sure.

A.   But people were happy to see him...(see same doct.)

Overlooked Evidence

   The only defendant called before the Hearing Panel testified that HW Massiah did not
act inappropriately in any manner with her and in fact increased her coincidence in the
administration of justice.

   The panel released a list of letter acronyms for witnesses who testified before them in
accordance with the publication ban.  Two witnesses called on behalf of HW Worship
are not only not on this list but there evidence is nowhere to be found in the Reasons
on Liability or Disposition.

Evidence of Improper 
Conduct Ignored by
JPRC Hearing Panel:

   HH, QQ and II testiied that they came forward in order to ensure that HW Massiah
did not get a " slap on the wrist."  Each of them admitted that they were essentially
dissatisfied with the penalty imposed by the Justice Vaillencourt Hearing Panel.(2011)
(see Applicant's Written Submissions  - Part II and Part III)

Application of Kowarsky
(JPRC 2011):

1.   HW Kowarsky said to a court clerk in open court while the recording equipment was
      on - "Madame clerk I am ready for my blow job now."

2.   HW Kowarsky received an order for a publication ban prohibiting his identification
      between March 25, 2011 ad the next date that counsel appear before the panel,
      including no publication of the Notice of Hearing on the JPRC website;

3.   HW Kowarsky received an order for a Pre-Hearing Conference pursuant to
      Paragraph 14 of the JPRC Procedural Code for Hearings

4.  HW Kowarsky received a reprimand for his judicial misconduct along with a transfer
     to another court.

5.  HW Massiah never propositioned anyone for sexual favours.

6.  HW Massiah was denied a publication ban and his request for one was determined by
     the Hearing Panel to be "relief that was factually and legally impossible to grant."

7.  HW Massiah was denied a Pre-Heairng Conference despite his request for one.

8.  HW Massiah was denied a transfer and was removed from office without any
     opportunity to carry-out the disposition of the Vaillencourt Panel(2011).

Below is a copy of the relevant portions of the factum filed on behalf of HW Massiah on the publication ban motion:


IN THE MATTER OF a complaint(s) respecting
Justice of the Peace in the
Central East Region



1.         This Applicant seeks an order to cure the irresponsible, sensational, scandalous 
            and defamatory publication of the allegations in this proceeding to date.  The 
            failure to cure these transgressions threatens to undermine the very integrity 
            and legitimacy of the adjudication process itself.

6.         On May 31st, 2013 the Registrar issued a 15 count Notice of Hearing (NOH) from 
            the JPRC.  This NOH included seven additional counts of misconduct not 
            raised in the Registrar’s letter dated January 2nd, 2013.

 As above – Notice of Hearing – Tab 6

Legality of “complaints”
in question:

8.         The question as to whether or not the allegations in the NOH were brought in 
             accordance with law and are “complaints” as that term is used in s.10.2 of the  
             Justice of the Peace Act is a live issue to be adjudicated by the panel.

The publications to date:

8.(sic)   Since the commencement of these proceedings three media outlets have 
              published stories on the case against the applicant.  All of them have 
              published the allegations against the Applicant as if they are fact without
             any disclaimer when in the panel has yet to rule on them.           

"Oshawa JP who sexually harassed staff faces new complaints"
"JP facing fresh sexual harassment complaints"
"Justices of the Pease appear before review council"


           12.   The Applicant requests an order prohibiting publication of the allegations 
                    in the NOH until the questions(sic) of their legality and the jurisdiction of 
m                 the panel to entertain them is conclusively determined in law.                                       
JPRC Panel also
committed Hryciuk

Presenting Counsel's
Written Submissions
on Liability(Sept.15/14):

[21]   The first six allegations are general in nature, encompassing patterns of
          behaviour rather than specific incidents.  We will therefore focus our 
          submissions on paragraphs 7-14, which relate to specific episodes on 
          which evidence was called.  Presenting Counsel respectfully submits that
          if some or all of the specific allegations in paragraphs 7-14 are found to
          have been proven, the general allegations in paragraphs 1-6 would easily
          be made out.

Respondent's Written
Submission: (July 11, 2013)

[10]   The NOH dated May 31st, 2013 included seven additional counts of alleged
          misconduct not raised in the Registrar's letter (on behalf of the complaints
          committee) dated January 2nd, 2013.

JPRC Liability
Finding(January 12th 2015):

[210]   Based on the evidence we find to be cogent and compelling, we accept that the a
            allegations set out in paragraphs 1, 2, 3, 4, 5, 6, 7(a), 7(b), 7(c), 7(e), 8(a), 8(c),
            8(d), 9, 10, 11, 13 and 14 of the Notice of Hearing, have been made out on a
            balance of probabilities.

JPRC Disposition

[64]   When we consider the extent and duration of His Worship Massiah's misconduct,
          and his testimony, before us, which demonstrated a complete lack of insight into
          the gravity of his misconduct even after a previous public hearing, we conclude
          that the dispositions set out in paragraphs 11.1(10) (a) to (f) are not sufficient to
          restore public confidence in His Worship Massiah or in the judiciary in this case.

Hryciuk  v. Ontario (ONCA):


   "The language of the statutue is unambiguous, and leaves no discretion to a judge
conducting a s.50 inquiry to hear new complaints not previously screened by the
Judicial Council. The inquiry judge had a specific, narrow mandate under the
legislation; to conduct an inquiry, not into the general question of whether Judge H
should be removed, but into whether he should be removed because of those 
complaints referred to her by the Judicial Council, namely, the two
complaints referred to the in the order-in-council.  By hearing three 
additional complaints not so referred, she exceeded her jurisdiction."

   Law is not a science.  Intelligent minds may differ on many a legal issue.  Having read the Divisional Court's reasons I for one fail to understand how the reviewing court came to the conclusion that it did.  I am also concerned that the reviewing court mixed up the two panels which the moving party on the judicial review faced and consistently erroneously refers to the decisions under review before them as the 2012 Panel when it was the 2013 Panel's decisions which were before them for review.

   The fact is that the 2013 Panel overruled the 2012 Panel when it boldly stated in its Decision on Disposition - where it  increased a 10 day suspension with removal from office for substantially the same conduct which pre-dated or was concurrent to those of the 2012 Panel - an act which I argued constituted an abuse of process for which a remedy was necessary:

"The Previous Hearing Panel concluded, based on the information presented
at that time, the public nature of the hearing would have brought home to His
Worship any misunderstanding about his position of authority in relation to female
staff.  That belief was proved wrong by His Worship's testimony before us."


   The points of law discussed above and which were before the Divisional Court for
judicial review called for a standard of review of correctness.(see Barriolhet  v.  JPRC
2011  ONSC 3246 at para 24 (Div Ct.)  The JPRC Notice of Hearing and the Hearing
Panel used the Human Rights Code to ground the allegations of judicial misconduct
against HW Massiah. In doing so the panel surely can not disregard established legal
principles such as the legal concepts of "vexatious", "unwelcome" and "poisoned work
environment" and deny him the well recognized defence of consent and "being well
received".  The Code is quasi-constitutional legislation which can not have a different
application for judicial officers than it does for all other citizens of Ontario. Abuse of
process and the application of Blencoe is also a matter calling for correctness under
Dunsmuir   v.  New Brunswick (supra).  Hrycicuk (supra) is a binding legal authority
from the Court of Appeal for Ontario court calling for a standard of correctness.
In addition, based on the legal principle set down by the Supreme Court of Canada in
R  v. Stolnick(supra) HW Massiah did not re-offend.  Arguably, for the purposes of
Disposition he appeared before the Hearing Panel without a history of misconduct
since the allegations before them pre-dated the first Disposition.

Note:  This piece is written for the sole purpose of drawing attention to issues of public importance. The issues of public importance in this case include the removal of a judicial officer from office, the arbitrary decision by the Hearing Panel to order that one of the judicial officer's lawyers before them not act on the case before them and their publication of an Addendum wherein they referred the said lawyer - the writer - to the Law Society of Upper Canada with an allegation that he committed professional misconduct and lastly they declined to recommend that the Attorney General indemnify the judicial officer for the two year defence of the judicial misconduct allegations against him contrary to established legal principles - leaving the lawyer unpaid for two years hard labour in defending the judicial officer.

    The opinions expressed here are those of the writer based on his knowledge of the law. Law is not a science. Lawyers and judges often differ on legal questions. This is the nature of our system of law.  Full and robust discussion on issues of public importance is in the interest of all.  This opinion is shared with the community in this spirit. Anyone who disagrees with the opinion expressed here is invited to post their comment here or elsewhere.




Monday, October 17, 2016

JPRC's Referral of Ernest Guiste to the LSUC: My Defence in Brief - Part II

Did the Hearing Panel 
violate the Principles of  
Judicial Office, the Ontario Human 
Rights Code and Art.15 of the 
U.N. Basic Principles on the Role of Lawyers  
in their treatment of  me ?

1.   The Notice of Hearing issued against my client raised allegations
      that between 2007 and 2010 he made statements which were unwelcome,
      vexatious and which created a poisoned work environment. In addition,
      this Notice of Hearing asserted a pattern and history of conduct by virtue
      of the findings in a prior proceeding involving allegations which came 
      subsequent in time to those in the Notice of Hearing.  The allegations clearly
      invoke rights under the Human Rights Code. Paragraph 5 of Appendix A
      expressly stipulates that "the behaviour occurred in the workplace".

      According to the Supreme Court of Canada's decision in Weber  v. Ontario
      Hydro [1995] 2 S.C.R. 929 disputes regarding conduct which occurred in
      the workplace of employees covered by a collective agreement and
      anti-harassment policy are within the exclusive jurisdiction of the labour
      arbitrator appointed to hear grievances under their collective agreement.
      Both the collective agreement(Ex.29) and the anti-harassment policy(Ex.26)
      were made exhibits at the hearing on consent.  In addition, the parties agreed that
      the Region of Durham did not receive any grievances pertaining to my

      Furthermore, the assertion of a pattern and history of misconduct flowing
      from acts prior in time to the allegations in the Notice of Hearing raises
      an inference of an abuse of process if not an outright abuse of process on its
      face. Our law is clear that an offence that takes place prior in time
      to the imposition of a penalty can not be considered as a subsequent
      offence and an aggravating factor on penalty.(see R  v.  Skolnick [1982] 2 S.C.R. 47)

2.   Unless the law under the Human Rights Code has been amended
      to deprive Justices of the Peace of the defences recognized in the
      human rights jurisprudence, my client, like any other person in
      Ontario, is permitted in law to avail himself of any and all statutory
      defences provided under the Human Rights Code.   Accordingly, the 
      defence of consent and "being well received" was clearly available to
      him on the facts of the case against him and I had a duty to assert it.
      Not a single person ever complained to him or to management regarding 
      his conduct - even though all of the staff were covered by a collective 
      agreement and an anti-harassment policy which provided them protection 
      from reprisal for asserting their rights. Clearly, the fact that the
      Vaillencourt Hearing Panel made findings of misconduct in 2011/12
       involving other individuals does not relieve the workers at the
       Durham Court from establishing vexatious, unwelcome conduct on
       my client's part.  Asserting the lawful defence that his conduct was
       "wel received" and "welcomed" does not mean that he does not understand
       that vexatious and unwelcomed conduct is improper. Evidence that he
       understood and undertook to recognize and apply the gender-boundry
       sensitivity training ordered by the Chief Justice are found in abundance
       in his response to the Complaints Committee which somehow was missing
       in the Tribunal Record filed by the JPRC pursuant to the Judicial Review
       Procedures Act.  It would appear that the Hearing Panel overlooked this
       relevant evidence and that it also did not make it to the Divisional Court.

3.   The Hearing Panel expressly found in paragraph 207 of its liability decision
      that my client "acted in a manner inconsistent with the Human Rights 
      Codeand that his conduct "resulted in a poisoned work environment"
      at paragraph 205.

Hearing Panel Disregarded
Two Significant Cases on the Code:  

      In making these legal conclusions the Hearing Panel totally disregarded
      the Ontario Court of Appeal decision in Johnson  v. General Motors 2013 
      ONCA 502 - a binding authority on the nature and quality of evidence required for a
      finding of a poisoned work environment and CHRC  v.  Canadian Armed 
      Forces 1999 Canlii 18902 (FC) - perhaps the leading authority on the meaning
      of the term "unwelcome" - see also Sexual Harassment in the Workplace by Prof.
      A.P. Aggarwal)

Hearing Panel Disregarded Training
Points Provided by Justice Develin
to the JPs(Ex.24):

of our Court:

   The Ontario Court of Justice is legally responsible to ensure that our court 
    is free from discrimination and harassment.

Best Workplace Practices

Workplaces should ensure that:
- there is a policy in place together with a complaint process
- everyone is aware of the policy
- training occurs regularly
- if problems arise, they are resolved promptly


Harassment and discrimination may lead to:

- An informal complaint to the Local Administrative Justice of the Peace (LAJ) or Regional Senior Justice of the Peace (RSJP)

- A formal complaint to the Justices of the Peace Review Council


Penalties can include: A warning – Suspension of duties with or without pay 
– Removal from office

Responding to Problems

If there is a problem:  speak to the harasser

- Discuss the problem with the LAJP, the RSJP, Senior Advisory Justice of 
   the Peace Andrew Clark, or Associate Chief Justice Payne
- Report the problem to the Justices of the Peace Review Council

Disregarded Mitigating 
Factor on Penalty:

   My co-counsel and I dutifully pointed out to the Hearing Panel in our written
   submissions that none of Justice Develin's four points for Best Work Place
   Practices were present in our client's workplace and this constituted a 
   mitigating factor on penalty.   
Collateral Attack on Panel
Chaired by Justice Vaillancourt's

     Indeed, it must be kept in mind that the allegations in these proceedings
     pre-dated the disposition of the first Hearing Panel chaired by the learned
     and respected Justice Vaillancourt where he made the following findings:

     1.   [24]   However, Justice Massiah did not appreciate that his conduct
                     was inappropriate and unacceptable.  A question for this panel
                      is whether he does in fact fully understand now.

           [25]   Any misunderstanding that he may have had about his position
                     of authority vis-a-vis the court staff surely has been brought home
                     to him through this public hearing.

           [26]   The Panel recognizes that the public nature of this hearing in and
                     of itself will act as a reminder that a repetition of the conduct of this
                     nature toward court staff will not be tolerated.

           [28]   We are confident that His Worship Massiah will not engage in this
                      type of conduct in the future.

           [33]   The Panel finds that Justice of the Peace Massiah has demonstrated
                     his willingness to address the aforementioned concerns and is capable
                     of rehabilitation.

          [34]   We accept Justice of the Peace Massiah's efforts as the beginning of an
                    ongoing process and not the ending.

Second Hearing Panel
Effectively Overrules First
Hearing Panel:

   "The previous Hearing Panel concluded, based on the information presented at that
   time, the public nature of the hearing would have brought home to His Worship any
   misunderstandings about his position of authority in relation to female staff.  That
   belief was proven wrong by His Worship's testimony before us." (para 25 Reasons
   for Disposition)  It must  be understood that the JPRC did not seek review of the
   Vaillencourt Panel's disposition but this is exactly what they got and what a number
   of the witnesses boldly acknowledged they wanted. Is this is an abuse of
   process and a denial of natural justice and fairness under our law ?

Management's Investigation
Found No Evidence of Improper
Interaction with staff:

      A management witness(JJ) whom I personally located well into the hearing
      testified that when she heard of the first hearing it prompted her to do her
      own investigation and that investigation turned up nothing against my client.
      She went further - she testified that the staff enjoyed his comraderie.

Manager Not Aware of
My Client Creating A 
Poisoned Work Environment:

       Another management witness(LL )whom I personally located quite late in the
      process testified that to her knowledge my client did not create a poisoned work
      environment in the workplace which she managed.

Compliments/Acts Well
received by Three Witnesses:

      At least two persons testified to accepting his comments to them as compliments
      which were well received.(GG and KK)  The Hearing Panel totally ignored or
       overlooked the third witness discussed below.

Overlooked Evidence: 

      The Hearing Panel overlooked the evidence of the only defendant called to testify
      at the hearing.  This witness was called by the Respondent and not Presenting
      Counsel.  She testified that my client did not act inappropriately in any manner
      with her and in fact increased her confidence in the administration of justice.

     Curiously, this witness came to light as a result of information submitted by QQ
     to the Presenting Counsel in the prior proceeding.  QQ  - who is described as
     the Manager of Prosecution Office at the Whitby Court by the Hearing Panel
     in its Reasons for Decision stated that he saw my client provide what he believed
     to be his business card to a woman who had appeared before him. This person
     told the investigators that he would prefer not to be called as a witness. He also
     acknowledged that it would have been helpful to his claim that my client acted
     inappropriately in court had he made contemporaneous notes of his observations and
     ordered the court transcripts of those occasions.(see Testimony of QQ - July 18, 2014

QQ Demonstrates the Unreliability
of His Evidence:

     Q.   Because you said a couple of times over the course of years, impressions get
            weaker and less clear and less reliable, you agree with that ?

     A.   I do.

     Q.   And in this particular case, I think you said that over all the time, your
            recollections in general, have degraded somewhat ?

     A.   That's fair to say.  You know what I really wish ?  The the occurrence with the
            business card, I wish I did not - - I wish I would have taken notes.  Because we
            can go to the horse's mouth, if you will, I'm sorry for the phrase. But if I would
            have known that person's date, and the tier, we could - - well, someone could have
            perhaps followed up, tracked that person down and interviewed her, which would
            have been lovely.

     Q.   I'm going to suggest to you that was done ?

      A.   Oh.

      Q.   And as a result, Justice Massiah was advised that he didn't have to respond to this
             allegation ?

       A.   Oh, is that right ?

       Q.   Yes.  So, another thing you could have done is, you could have said to your
               prosecutors, "you know what ?  At any time that he looks someone up and down
               in an inappropriate way, I want you to document that" ?

        A.   I could have done that, yes.

        Q.   And you did not do that ?

         A.  I have not.

Two More Witnesses Saw
No Evidence of Inappropriate

      The Notice of Hearing alleged that my client commented on how DD looked.  DD was
      very clear in her testimony that it did not happen. The Hearing Panel found that she
      did not recall the incident.  DD, who worked with my client in court testified that she
      did not at any time observe any inappropriate conduct on his  part to anyone. The
      other witness is not referred to by the Hearing Panel.

Overlooked Evidence:

      Yet another witness called on behalf of my client was either overlooked or ignored
       by the Hearing Panel.  A witness called by the Respondent who worked in the
       courthouse as an Administrative Clerk testified that she did not observe any
       inappropriate conduct.

Delay Adversely Impacted
Reliability of the Evidence:

      A prosecutor(HH) could not remember a comment supposedly made to her which
      was in the Notice of Hearing. It was a third party NN who claimed to remember the
      incident.  NN herself was very clear in her testimony before the Hearing Panel that
      in fact there was no intention to proceed with any complaint against my client at the
      time of the incidents.  She did not feel that there was enough cogency for a complaint
      of that nature.  Curiously, II testified that it was NN who called her and told her to
      come forward and speak to Presenting Counsel.  NN denied doing this.

"Not a Big Deal"

      HH said she did not complain about a comment made to her in the Notice of Hearing
      because in the grand scheme of things it was not a big deal.

3 Witnesses Came Forward
to Increase Penalty from 
First Hearing:

     HH, QQ and II testified that they came forward in order to ensure that my client did
     not get "a slap on the wrist."  Each of them were essentially dissatisfied with the
     penalty imposed by the Justice Vallencourt Hearing Panel.  HH testified that it was her
     understanding that the purpose of her interview/evidence to Mr. Hunt was to give
     testimony in the first hearing to rebut my client's evidence which she read about in a
     Law Times article. This admission regarding and increased penalty my co-counsel and
     I argued contributed to the unreliability of the evidence.  The Hearing Panel did not
     consider this evidence and makes no mention of it anywhere.

Unavailability of Witnesses
with Relevant Evidence:

      Another witness(AA) who testified in support of an allegation in the Notice of
      Hearing that my client looked her up and down when she was introduced to him
      by a third party could not remember the third party that introduced her.
      Interestingly, the incident involving AA was not at the Provincial Offences Court
      but at the court which was the subject of the first proceeding.

     A witness(BB) who testified twice during the investigation stage to not having any
     recollection regarding a touching incident and even went so far as to complain to
     management about being pushed to complain suddenly remembered the incident on
     taking the stand. At paragraph 128 of its Reasons for Decision on Liability the Hearing
     Panel makes reference to one OO who was present at the incident involving BB.
     Presenting Council did not call OO.  OO testified during the investigation that 
     "I don't recall seeing anything."  Although I insisted and Presenting Counsel
     and the Panel agreed on the investigation transcripts forming part of the record
     of the proceedings before the Hearing Panel they were not part of the tribunal
     record before the Divisional Court.  The Hearing Panel makes no reference to
     her investigation evidence although relevant.

     Yet another witness(CC) who had agreed to provide character evidence for my client at
     his first hearing could not remember whether she informed my client's previous
     lawyer about an inappropriate incident which she testified to. This witness
     acknowledged that the passage of time adversely impacted her recollection. In
     addition, she testified that her interpretation of my client's words and actions changed
     after she heard about the result of the first hearing. This witness had exchanged e mails
     with my client's former lawyer and in fact authored an e mail which gave a glowing
     character reference which is totally inconsistent with her testimony at the hearing.

Staff complained 
about client's cologne:

      Management witnesses which my co-counsel and I called to testify at the
      hearing confirmed that indeed they received a complaint regarding our
      client's cologne and they quickly resolved it.  

3.   My first task on taking up my retainer was to challenge the Hearing Panel's 
      jurisdiction to entertain the "complaint" as that term is used in the Justices 
      of the Peace Act and the common law jurisprudence on this point in accordance 
      with my duty as a lawyer - especially one defending a judicial officer where I
      understand the law to provide for strict compliance with statutory 
      requirements in order to preserve and respect the constitutional 
      principle of judicial independence.

Hearing Panel sought
Direction on the law
from counsel for the 

4.   The Hearing Panel's response was to initiate their own motion and invite the 
       counsel for the parties to assist them in determining whether they had the
       jurisdiction to entertain my motion and to provide the relief I sought.

5.   In asserting their motion the Hearing Panel made it abundantly clear that
      the hearing and consideration of the other aspect of the motion I raised, 
      namely, abuse of process could not be adjudicated until the issue of their
      jurisdiction was resolved.

Panel Disregarded Opinion 
Sought from Independent Counsel:

A.  Later in the proceedings the Hearing Panel retained prominent lawyer,
      Brian Gover to advise them on the issues raised in my motion client's and their
      own.  The Hearing Panel appears to have disregarded Mr. Gover's opinion
      on the complaint in writing issue.  The Hearing Panel clearly disregarded
      Mr. Gover's opinion on abuse of process where he cited Blencoe   v.
      B.C. Human Rights Commision to them as a basis of abuse of process.
      Neither the Hearing Panel or Presenting Counsel make any reference to
      Blencoe  v.  B.C. Human Rights Commission although the legal principle
      from that case was the cornerstone of the abuse of process argument
      myself and my co-counsel, Mr. House advanced in defence.(This breach
      of natural justice and fairness would not be evident to a reviewing 
      court who did not have access to the written submissions and 
      authorities which were before the Hearing Panel.) 

Prejudice/Damage to Client's Reputation:

6.   While the proceedings were going on between July and November, 2013
      my client's reputation was taking a vicious and unjustified tarnishing in the
      local print media. 

Motion for Interim 
Publication Ban:

      In accordance with my duty I initiated a motion seeking 
      an interim publication ban until the question of the legality of the "complaint"
      was resolved. That motion was heard by a Hearing Panel composed
      of Justice Livingstone, His Worship Cuthbertson and Ms. Blight in 
      November, 2013 and decided by a Hearing Panel composed of Justice 
      Livingstone, His Worship Cuthbertson and Ms. Foster in April, 2014.

Raised Reasonable Apprehension
of Bias pursuant to my duty as
as lawyer:

7.   As the proceedings went on it became clearer and clearer to me that there
      were legitimate issues pointing to a reasonable apprehension of bias displayed
      by the Hearing Panel and indeed aspects of institutional bias in the complaint
      process itself.  The Hearing Panel made it clear to me that these issues 
      would not be considered in their deliberations unless I raised them 
      squarely in a motion.

8.   I brought a motion on behalf of my client asserting a reasonable apprehension
      of bias and institutional bias in the complaint process being very careful to avoid
      asserting any actual bias on the part of the Hearing Panel or other participants in the

9.   The Hearing Panel displayed a strong displeasure to this motion and appeared to 
       receive it as an allegation of actual bias against them.  The following is an
       excerpt of the Justice of the Peace Member's comments on the record directed to me 
       during the adjudication of this motion:

       Transcript of May 28th 2014

       Justice of the Peace Member of Panel:

       First of all, thank you for that time to compose myself. Just on that point,
       I am mindful of the phrase of crossing the rubicon and all of its
       implications.  And I suggest to everyone in this hearing room that they
       too should be mindful of the penalties of crossing the rubicon.  Of course, 
       I refer to Roman history where a general who is thinking of committing
       a coup d d'etat when he crossed the rubicon with his army, there was no
       mistake as to his intentions.  That's my understanding of history, and I 
       just put that comment out for consideration by those who need to do so.
       I am, however, going to move on.  

Crossing the Rubicon
(From Wikipedia)

       The idiom "Crossing the Rubicon" means to pass a point of no return, 
       and refers to Julius Caesar's army's crossing of the Rubicon River
       (in the north of Italy) in 49 BC, which was considered an act of
       insurection and treason.  Julius Caesar uttered the famous phrase
       "alea iacta est" - the die is cast - as his army marched through the
       shallow river."

What I said on May 27, 2014
about the focus of the motion:

      MR. GUISTE:  In the interest of ---so we don't get carried away and we
                                don't get into irrelevant considerations, it's our position
                                on the motion that we're not asserting that any member
                                the Panel has an actual malice or impropriety against 
                                His Worship. We are simply stating and asserting that
                                the appearance of fairness, justice must be seen to be
                                done.  That in light of all the transgressions that are 
                                indicated - - you're all good people, but that those
                                transgressions raise in the minds of reasonable people
                                a reasonable apprehension of bias. So it's not actual.

     MR. GUISTE:   My role in this case is as an advocate representing the
                                Justice of the Peace.  I have a duty to raise each and
                                every argument and right that he has. At times as an
                                advocate we're  put in the unenviable role of asserting
                                things like bias, making objections strenuously, 
                                repetitively, but in my respectful submission, that goes
                                with the territory. When the advocate raises an issue of
                                bias, it is not that he doesn't respect the Tribunal, it is
                                because he has a duty in law to advance his client's 
                                interests and to ensure that His Worship Massiah's
                                constitutional right to a fair hearing before an impartial
                                Tribunal is respected. There has been a lot of discussion
                                about conduct, and at the end of the day the advocate must
                                stand strong, stand firm in the representation of his or her

A Catholic Lawyer's Prayer

      The JP Member of the Panel's words had a profound and lasting impression on me.
      It brought home to me how vulnerable lawyers who forcefully and 
      dutifully assert their clients' rights are.  I was so impacted by his words that it
      motivated me to write a prayer - first titled The Lawyer's Prayer and later A Catholic
      Lawyer's Prayer some three days later.  The following two paragraphs from
      this prayer are instructive:

     "Almighty God the discharge of my duty as a lawyer may give rise to observers
      and their supporters who wish to silence and harm me.  Almighty God protect
      me from that cause."

      Almighty God I understand as a student of history that there is always a price
      which accompanies the fearless pursuit of justice and The Rule of Law. 
       Almighty God protect me from that agenda. 

April 9th, 2014 Dismissal
of my child-care obligation

   On April 9th, 2014 the Chair of the Hearing Panel expressly invited the comments 
   on her suggestion that we commence the proceedings at 9:30 on the next date. I 
   told the Hearing Panel that my child care obligations prevented me from making
   it prior to 10 .a.m. The Hearing Panel summarily dismissed my concerns on that
   day.  Days later, the Hearing Panel decided to retain Independent Counsel and the 
   Registrar sent out a letter that on account of that we would start the following day
   at 10 a.m.

"Thanks for the speech
Mr. Guiste. I have heard
the speech":

     On April 9th, 2014 the Hearing Panel invited counsel to make further oral 
     submissions on the issue of their jurisdiction to entertain the preliminary 
     motion asserting lack of jurisdiction and abuse of process.  While Presenting
     was making submissions I sought to make an objection.  The Hearing Panel
      took some time in attending to my objection.  When they finally allowed
      me to articulate my objection the Chair of the Hearing Panel stated to me
      in a matter of factly manner, "Thanks for the speech Mr. Guiste. I have
      heard the speech." (see April 9th, 2014 transcripts)

     MR. GUISTE:  Reasonable observers looking at this and the totality of
                               the proceedings would see the sarcasm and disrespect.
                               "Thanks for that speech" to a man of African-Canadian
                                descent, it strikes at the - what is the word ? A
                                stereotype of the black man on a soap box giving
                                speeches on the street corner.

CHAIR OF THE PANEL:  With great respect, Mr. Guiste, that I take is your
                                               position, but if you say the word speech at all
                                               reflects any racism by this panel, we are offended.

MR. GUISTE:   I am suggesting to you that the context in which that was said,
                           Thank you Mr. Guiste for that speech", I'm a man of African-
                           Canadian descent and I'm very familiar with my history, and      
                            and that when individuals of European descent in power want
                            to exert their power, it is not uncommon to resort to that type
                            of stereotyping.  Whether you did it or not, I don't know. I'm
                            saying to you that I, as lawyer representing an African-
                            Canadian man who is the subject of judicial misconduct
                            proceedings and I'm trying to discharge my duty, that this
                            is a possible interpretation of that.  Whether you intended it
                            Madam Justice, I don't know and I take your word that you
                            didn't intend it that way, but that's not the test.  The test is,
                            what is the reasonable person fully informed going to come
                            to a conclusion on.  

      Later on in the proceedings at p.158 the Chair again referred to my
      submissions as a speech saying, "At the outset of my response to your
      speech, Mr. Guiste, I said the Panel knows what it's here to do and
      that's to deal with the issue of jurisdiction."

      The Chair went on to ask me - "Was there something unclear with that ?

       I responded:  Ms. Henein stood up and now it's been clarified, so I think
       we're good now.


      I'm happy you feel that way. Thank you.
Toronto Sun and 
Michele Mandel - lawyer
"must be reigned in":

     On April 10th, 2014 Michele Mandel of the Toronto Sun wrote an article entitled
     "Judge Can't Take Judgment" in which she starts of with the following lead 
     sentence: "The irony seems apparent to everyone but Justice of the Peace
     Masiah and his zealous counsel."  Later on in her article she indicates that 
     Presenting Counsel "warned the panel that "extensive public expenses are being
     incurred and Massiah's lawyer must be reigned in or "this will turn into a never-
     ending inquiry."

Mr. Jeffry House Joins Defence Team:

     On or about June 9th, 2014 Mr. Jeffry House joined the defence team as my co-
     counsel. I recommended to my client that Mr. House join me in defending him.  
     Mr.  House has expertise in the area of disclosure in the administrative law 
     context having decided a significant human rights case involving disclosure
     issues prior to me becoming a lawyer, namely, Christian  v. Northwestern
     General Hospital (1983) 20 CHRR D/492 upheld 20 CHRR D/498 (Div Crt).
     His first order of business was to assist me in bringing a motion for disclosure and
     particulars.  The Hearing Panel made a decision on that motion on or about June
     12th, 2014 and it shows his name as co-counsel.

     However, in its Compensation Decision the Hearing Panel attributes the Disclosure
     and Particulars motion solely to me and simply cuts and pastes what Presenting 
     Counsel had to say about it in their written submissions without any independent

     Excerpts from the Reply Submission
     Which the Hearing Panel Refused
     for Filing:


     27.   The witness statement summaries contemplated were follow-up interview 
              material and this was a proper request to make.  Other relief was sought and 
              the Hearing Panel denied the relief.  This in and of itself does not make the 
              bringing of such a motion frivolous and vexatious.  Disclosure motions are 
              lost every day by very able counsel. 

            The record is clear.  PC made an undertaking to Mr. Bhattacharya to provide 
             him with a list of witnesses by June 14 2013. (Respondent’s Disclosure 
             Request Documents – Nov.13, 2013 letter to PC)  A witness list was provided   
             in April, 2014.  Contact information for two witnesses called by the 
             Respondent was provided until after the hearing commenced.

Post-Hearing Motion seeking 
Leave to Address Latent Revelation
of Inconsistencies and Ambiguities in
the Evidence:

      By Notice of Motion dated November 7, 2014 Mr. House and I initiated a 
      motion seeking leave of the Hearing Panel to among, other things, address 
      a latent revelation of an inconsistency in the hearing transcript of what a 
      witness testified to before them, before the Complaints Committee and in 
      the Notice of Hearing.

     Once again, without any independent analysis the Hearing Panel simply cut 
     and paste Presenting Counsel's submissions and attributed the bringing of this 
     motion solely to me.

Post-Hearing Motion seeking 
Leave to Address two questions
on jurisdiction which were 
inadvertently not addressed

     By Notice of Motion dated November 17th, 2014 Mr. House and I initiated a motion
     seeking leave of the Hearing Panel to entertain the following two questions of law
     which were inadvertently not raised earlier:  1.  Does the Review Council have
     jurisdiction to order a hearing under s.11(15) (c) of the Justices of the Peace Act ?
     and 2.  Is the Supreme Court of Canada's pronouncement in Weber  v. Ontario 
     Hydro binding on the Hearing Panel to the extent that some or all of the allegations
     involve claims capable of being resolved under the collective agreement or  the
     Durham Region harassment policy and therefore the Hearing Panel lacks jurisdiction
     to entertain them ?

     Once again, the Hearing Panel simply cut and paste Presenting Counsel's 
     submissions without any independent analysis of its own, dismissed the 
     motion and no only singled me out for the bringing of this motion - they 
     went further.  They issued an order dated November 18, 2014 

November 18th, 2014
Contempt Finding ?:

33.   In accordance with section 23(1), in order to control and prevent any further
        abuse of this process, we order that there is no further opportunity for His 
        Worship Massiah and his counsel Mr. Guiste to make recommendations or
        re-examine any witness in relation to this Hearing.  We direct that Mr. Guiste
        is to cease sending e mails, or correspondence or any further motions about
        the evidence or the law to the Panel.  The Hearing Panel has reserved its 
        decisions and we rely on counsel to respect the process and await our 
        determinations in due course.    

Order Prohibiting me from 
Discharging Function as 
Lawyer Contrary to Law:

     No court or administrative authority before whom the right to counsel is
     recognized shall refuse to recognize the right of a lawyer to appear before it
     for his or her client unless that lawyer has been disqualified in accordance
     with national law and practice and in conformity with these principles.

                                           Art. 15 Basic Principles on the Role of Lawyers
                                            (United Nations)      

Hearing Panel Endorsement
of Mr. House Another Cut
and Paste:

23.   Once the hearing of evidence commenced, the hearing was conducted
        appropriately and effectively by Mr. Massiah's co-counsel, Mr. House.

                                       Compensation Decision

42.   To be clear, Presenting Counsel recognizes that the hearing proper, as
        opposed to the pre-hearing motions, was conducted appropriately by Mr. House.

                                        Presenting Counsel Submissions dated
                                        May 25, 2015
Compensation Decision and
Addendum released June 16, 2015

     "Panel directs the Registrar to provide a copy of this Addendum to the Law Society
     Upper Canada for its consideration."

Tor-Sun and Michele Mandel
"Fired JP loses bid to have taxpayers
pay legal fees - Lawyer's conduct to
be reviewed: (June 17, 2015 )

      "While the council had no issues with House, they complained Guiste 
       repeatedly delayed the proceedings, made "frivolous and meritless" 
       motions as well as "egregious, inflammatory comments" in which he 
       accused the panel of impropriety and racism."

Deborah Livingstone@dresdengirrl

      Deborah Livingstone @ dresdengirrl Retweeted - JP fired over lecherous behaviour 
      loses bid to have taxpayers pay $600,000 in legal fees. - 6:02 PM - 17 Jun 2015 

My Pyrrhic Victory

     On June 18, 2014, after hearing submissions from counsel on how to adjudicate the
     abuse of process motion I initiated. The Chair of the Hearing Panel agreed with me
     that this motion ought to be held in abeyance after all of the evidence was in. She
     said to me, " So, it's a Pyrrhic victory to some extent, Mr. Guiste. I agree with you
     that we can adjourn the abuse of process motion argument itself from today."

Pyrrhic Victory
(Wikipedia, the free encyclopedia)

     A Pyrrhic victory is a victory with such devastating cost that it is tantamount to
     defeat.  Someone who wins a Pyrrhic victory has been victorious in some way; 
     however, the heavy toll negates any sense of achievement or profit. 
     (another term for this would be "hallow victory".

July 15th, 2014:

     CHAIR OF PANEL:  Sorry, Mr. Guiste, you're hot, you want to take your
     jacket off ?

     Mr. GUISTE;  Yes, please.

     CHAIR OF PANEL:  I'm sorry.  We're all in the same room, we're all hot,
     I don't think it's appropriate.  I'm old-fashioned, Mr. Guiste, I've told you 
     that for a year.

     Principles of Judicial Office
     (Ontario Court of Justice)

      1.1   Judges must be impartial and objective in the discharge of their judicial duties.


       Judges should not be influenced by partisan interests, public pressure or fear or
       criticism.  Judges should maintain their objectivity and shall not, by words or
       conduct, manifest favour, bias or prejudice towards any party or interest.

      3.  The Judge in the Community

      3.1   Judges should maintain their personal conduct at a level which will ensure
              the public's trust and confidence.

      3.2   Judges must avoid any conflict of interest, or the appearance of any conflict
              of interest, in the performance of their judicial duties.


     Judges must not participate in any partisan political activity.

     3.3   Judges must not abuse the power of their judicial office or use it inappropriately.

Law Society Act. 

- s.12(2) - Attorney General for Ontario is a Bencher by virtue of his/her office.

- s. 13(1) - Attorney General guardian of the public interest

Courts of Justice Act

- s.44(2) stipulates that "part-time" judges require the consent of the Attorney General to sit.

An overview of Michele Mandel's 
Involvement and Coverage of the Case:

July 24, 2013 - Justices of the Peace Appear before Review Council

   "It was almost dizzying, a revolving door of Justices of the Peace accused of behaving badly."

Alleged History and Pattern
of Conduct:

   "In light of the nature of the conduct set out above, alleges the notice of hearing,
   "the range of women who were recipients of your conduct and your history of 
    judicial misconduct of a similar nature at a different courthouse, your conduct 
   demonstrates a pattern of inappropriate conduct toward women in the justice system."

   "His lawyer, Ernest Guiste, has filed a motion to have these latest allegations tossed
    because they weren't made in writing and they predate those of Massiah's last public 
    inquiry that has already resulted in his being penalized, making it "devoid of natural 
    justice and fairness."

Five New Complainants:

   "In her response, presenting counsel Marie Henein said the five new complainants
   in Whitby came forward in the fall of 2011 after reading abut Massiah's ongoing 
   case in the Law Times and there's no statute of limitations on complaints."

Push for Removal:

   "Massiah's motion to have the hearing dismissed won't be argued until November.
   If it goes ahead and these new allegations upheld, this Your Worship should face
   the ultimate penalty: a recommendation that he be removed from his lofty bench."

April 10, 2014 - Oshawa JP's Sexual Harassment Hearing Lags

   "The irony seem apparent to everyone but Justice of the Peace Errol Massiah and
   his zealous counsel."

   "The Durham region JP - accused once again of sexually harassing female court staff
   -- is not only collecting his $122,635 annual salary, despite not working since 2010, 
   but his lawyer Ernest Guiste is tying up his second complaint hearing with motions, 
   challenges and endless accusations that the judge and her panel are biased."

   "Yet, Massiah claims he's the victim of an abuse of process ?  Pot meet kettle."

Alleged History and Pattern of

   "In light of the nature of the conduct set out above", alleges the May, 2013
   notice of hearing, "the range of women who were recipients of your conduct
   and your history of judicial misconduct of a similar nature at a different court
   house, your conduct demonstrates a pattern of inappropriate conduct toward
   women in the justice system."

   "When Massiah's lawyer wasn't complaining about bias, he was trying to revisit
   the first investigation and hearing, though he was reminded again and again that
   he was straying off topic."

Guiste must be reigned in ?

   "They've already had five hearing dates to deal with this case --with 20 more on the
   calendar.  After a day spent just arguing jurisdictional issues, lawyer Matthew 
   Gourlay--who along with well-known solicitor Marie Henein is "presenting counsel",
   akin to a trial's prosecutors - warned the panel that "extensive public expenses are
   being incurred" and Massiah's lawyer must be reigned in or "this will turn into a
   never-ending inquiry."

   "Guiste was outraged.  "The question is whether he is getting a fair hearing,
   he complained, again.  "You want this rammed though. Guilty. Done. That's
   not why we're here."

January 13, 2015 - Time to Give JP the Boot

Push for Removal

   "The JPRC can issue a reprimand, suspend a JP for up to 30 days without pay or
   recommend to the Attorney General that he be removed from office. That hearing
   is scheduled for March."

   "The penalty seems pretty obvious....Massiah has had his suspension; it's time for 
   the heave-ho." 

April 28, 2015 - Give JP the Boot for Sexual Harassment, Panel Recommends

April 28, 2015 - JP Wants Legal Costs Covered in Sexual Harassment Case

   "The hopefully soon to be ex-justice of the peace Errol Masiah has an 
   incredible amount of nerve - the Durham jurist has already banked $500,000
   in taxpayers' money and now wants even more of our hard earned cash."

   "It seems likely Massiah will be given the boot by Queen's Park - but not
   before he tries to drain still more from the public purse. House told the 
   JPRC that his client will be asking for reimbursement of his legal costs
   as they were three years ago....Just add it to his running tab."

   "In May 2013, he was served notice that he'd have to appear before a second
   disciplinary hearing. Endless motions by his lawyer Ernest Guiste about abuse
   of process and lack of jurisdiction delayed the start for a year, all while Massiah
   kept banking those paycheques.  Witnesses finally began their testimony last 
   summer and submissions were completed by the fall.  But after the disciplinary
   panel began to deliberate, they accused Massiah's lawyer of trying to further 
   delay the process by inundating them with 40 e  mails attempting to reopen the

The Tribunal Record:

   The Judicial Review Procedures Act requires a tribunal whose decision is the 
   subject of an application for judicial review to file a copy of the tribunal record
   with the Divisional Court.  I fought valiantly to ensure that a proper record was
   kept of the proceedings because I sensed that judicial review would be necessary
   to ensure that the proceedings were conducted in accordance with law. It has always
   been my position that there were serious irregularities in both the investigation and
   hearing process in this case which any lawyer representing a client is duty-bound
   to argue. Below are excerpts from the first instance proceedings in which both
   Presenting Counsel and the Chair of the Hearing Panel regarding the scope of the
   tribunal record:

Presenting Counsel

   At p.161 line 5 - "My friend seems to be under the impression that that 
  means they're lost from the record and they don't form any part of the 
  Panel's consideration or the case, that's obviously untrue.  All of the
  factums, and motions records, and notices of motion that have been filed in
  this proceeding are before you and will be preserved as part of the record 
  of this proceeding and there's simply no need to mark them as exhibits."

Chair of Panel

   At p. 162 ln 1 - "Thank you, Mr. Guiste. The Panel considered the issue of what is
   properly filed as an exhibit and what is not required to be filed as an exhibit.
   And generally the Panel is of the view that any materials filed, such as Mr. Gourlay
   referred to, facta, books of authorities, responding facta et cetera, are not technically
   filed as exhibits, they are part of of the record....They remain part of the 
   record for any further applications which could follow our decision,
   but they are not evidence per se and therefore would not be filed.....
   At p. 163 ln 13 - "With respect to the facta with respect to abuse of process, 
   for which you have argued it only makes sense for fairness and for the 
   integrity of the process that we be informed by having them, we have 
   them.  They are part of the record.  They do not need to be filed as exhibits."

The Tribunal Record Filed with 
the Divisional Court:

   The Tribunal Record filed with the Divisional Court in this case did not have the
    following portions of the record:

    1.  Respondent's Written Submissions on liability - Part I - Jurisdiction  - Part II -
         Abuse of Process and Part III - The Merits;
  1A. Respondent's Appendix A to Part I of Written Submissions on liability;

    2.  Presenting Counsel's Written Submissions on Liability along with Reply;
    3.  Respondent's Written Submissions on Penalty - including Asserted Facts
         from Decision of First Hearing Panel, investigation and hearing;
    4.  Presenting Counsel's Reply on Penalty;
    5.  Respondent's Written Submissions on Indemnification;
    6.  Presenting Counsel's Written Submissions on Compensation
    7.  Respondent's Motion re leave to consider transfer;
    8.  Presenting Counsel's Response re leave to consider transfer
    9.  Respondent's Answer to the Complaints Committee - where he acknowledged
         the need to respect boundaries in accordance with the training ordered by
         the Chief Justice moving forward and that some of the allegations mirrored his
         manner of communication and was consistent with his prior manner of interaction;
  10.  5 volume of transcripts from Complaints Committee investigation; (This was
         to demonstrate that the Notice of Hearing drafted by Presenting Counsel
         clearly went beyond the "complaint" in asserting vexatious, unwelcome
         and conduct constituting a "poisoned work environment" - items which
         were not pre-screened by the Complaints Committee per Hryciuk
         v. Ontario (ONCA)  ;
  11.  All motion records - facta - books of authorities;
  12.  Reply Submissions on Compensation which was refused for filing. (to support
         breach of natural justice and fairness in the Compensation Decision since the
         panel effectively adopted Presenting Counsel's submissions hollus bolus without
         independent analysis or answer from me.)

Dunsmuir   v.  New Brunswick
[2008] 1 S.C.R. 190:

   "A court conducting a review for reasonableness inquires into the qualities that make
   a decision reasonable.  Reasonableness is concerned mostly with the existence of
   justification, transparency and intelligibility within the decision-making process and
   with whether the decision falls within a range of possible, acceptable outcomes which
   are defensible in respect of the facts and the law."

"Record of Proceedings"
s.10 Judicial Review
Procedure Act:

   "When notice of an application for judicial review of a decision made in exercise or
   purported exercise of a statutory power of decision has been served on the person making
   the decision, such person shall forthwith file in the court or use on the application the
   record of the proceedings in which the decision was made."

JPRC Participation in
JR Proceedings:

[65]   It is well established that a tribunal whose decision is challenged in judicial review
          proceedings should not appear to defend the merits of its decision.  As stated by
          the Supreme Court of Canada in Northwestern Utilities Ltd.  v. Edmonton (City)
          [1979] 1 S.C.R. at p. 709:

   "Such active and even aggressive participating can have no other effect than to
   discredit the impartiality of an administrative tribunal either in the case where
   the matter is referred back to it, or in the future proceedings involving similar
   interests and issues or the same parties. The Board is given a clear opportunity
   to make its point in its reasons for its decision, and it abuses one's notion of
   propriety to countenance its participation as a full-fledged litigant in this court,
   in complete adversarial confrontation with one of the principles in the contest
   before the Board itself in the first instance."

[61]   Finally, I think it important if an administrative tribunal seeks to make
          submissions on a judicial review of its decision, it pay careful attention
          to the tone with which it does so.  Although this is not a discrete basis
          upon which its standing might be limited, there is no doubt that the
          tone of the proposed submissions provides the background for the
          determination of that issue.  A tribunal that seeks to resist a judicial
          review application will be of assistance to the court to the degree its
          submissions are characterized by the helpful elucidation of the issues,
          informed by its specialized position, rather than by the aggressive
          partisanship of an adversary.

Goudge J.A. in Ontario (Children's Lawyer)  v.  Ontario (Information and
Privacy Commissioner) 75 O.R. (3d) 309 (ONCA)

   A proper review of the record in this case will show that I lived up to my
   duty as a lawyer in accordance with law and established legal principles.
   As a Catholic lawyer it is my duty to follow my faith and act accordingly
   in the discharge of my duties as a lawyer.  As a man of African-Canadian
   background who so happens to be a lawyer I have the inalienable right to
   correct anyone who calls into question my work as an advocate by referring
   to my submissions in a racially insensitive and stereotypical manner.
   If that is a sin I will answer to God Almighty when that time comes.

Part III of my defence forthcoming.

  NOTE:  This piece is written for the sole purpose of drawing attention to an issue of
public importance. An issue of public importance arose in the matter of the referral of 
Ernest Guiste to the LSUC when the Hearing Panel decided to make a public referral 
asserting professional misconduct against one of two lawyers representing a judicial 
officer - one of African-Canadian racial background and the other of European-
Canadian racial background - in circumstances where the conduct they cite in 
referring only the African-Canadian lawyer was in fact not exclusive to the 
African-Canadian lawyer thereby appearing to base their decision to report on 
irrelevant considerations inconsistent with current public policy in current day Ontario. 
It is not lost on me that a disproportionate number of the justices of the peace who have
been denied the right to full indemnification are three African-Canadian men, and one
Aboriginal woman.  some may say that this is simply a coincidence. I say it is
something which requires careful review and study by the authorities.  History
shows us that where there is no struggle there is no progress.