Friday, January 12, 2018

SCC Asked to Clarify "Public Member" Requirement for Hearing Panel Quorum under Veterinarians Act

Filed January 3rd, 2018                                                                    Court File No.:  


IN THE SUPREME COURT OF CANADA
(Appealed from the Ontario Court of Appeal)


BETWEEN:

DR. KHAWAR HANIF
              Applicant
                                                                                                                                         (Appellant)
and



COLLEGE OF VETERINARIANS OF ONTARIO
Respondents
                                                                                                                               (Respondents)





NOTICE OF APPLICATION FOR LEAVE TO APPEAL






TAKE NOTICE that the Applicant Dr. Khawar Hanif  will apply for leave to this Court pursuant to section 40(1) of the Supreme Court Act, R.S.C. 1985, c-S-26, as amended, E.S. 1985 (3rd) Supp., c.34, for an order granting leave to appeal to the Supreme Court of Canada from the order of the Ontario Court of Appeal dated October 27th, 2017, File No. M47895 denying the Applicant leave to appeal the Divisional Court of Ontario’s upholding of one count of professional misconduct, dismissing the other and remitting the matter back to the very same deficient panel, the chair of the panel and “public member” having abandoned her role “to pursue another federal appointment” and the remainder of the panel coming to a split decision on liability and penalty with a strong dissent by the other member who found the entire proceedings to be tainted by bias, to assess penalty and costs.


            TAKE NOTICE that the said application for leave shall be made on the following grounds:

This case is of fundamental importance to all Canadians impacted by self-regulating professional bodies such as the College of Veterinarians of Ontario
in this case on the following five issues of national importance:


Public Interest:

            1.         Is the public member requirement for quorum on
                        self-regulating professional bodies such as that 
                        prescribed by s.28(3.2) of the Veterinarians Act,
                        R.S.O. 1990 c. V.3 mandatory ?

Disability of
a member

            2.         When is a panel member “unable to act” as that 
                         term is used in s.28(6) of the Veterinarians Act  
                         and other like legislation ?

S.P.P.A.         

            3.         What role, if any, does s.4.4(1) and (2) of the 
                        Statutory Powers Procedures Act, R.S.O. 1990, 
                        c. 2.22  and similar provincial legislation play in 
                        the face of a mandatory statutory quorum
                        calling for members of the public on the panel ?

Withdrawal of tribunal
members from duty

            4.         Can this court provide guidance on the issue of 
                        when and how persons appointed to tribunals 
                        ought to withdraw from their adjudicative 
                        duties ?

Bias and impartiality
of tribunal


            5.         Did the courts below err in disregarding or 
                        improperly applying binding legal authorities on 
                        the issues of bias and the importance of the 
                        appearance of impartiality before administrative 
                        tribunals ?                                    


                                                Dated at Toronto, Ontario this 24th  day of 
                                                December, 2017

            ________________________                                                                                        
            ERNEST J. GUISTE.                                                                

            E. J. GUISTE PROFESSIONAL CORPORATION                                               
            Trial & Appellate Advocacy                                                              
            2 County Court Blvd., Suite 494                                                   
            Brampton, Ontario                                                                                 
            L6W 3W8
                                                                              
            Ernest J. Guiste (LSO# 34979C)           
                   
(416) 364-8908
            (416) 364-0973 fax                                                                          
                                                            Counsel for the Applicant

TO:                  STEINECKE MACIURA LeBLANC
                        Barristers & Solicitors
                        401 Bay Street, Suite 2308
                        Toronto, Ontario
                        M5H 2Y4

                        Bernard C. LeBlanc
                        (416) 599-2200
                        (416) 593-7867

                        Solicitors for the Respondent



AND TO:        The Registrar of this Court



NOTICE TO THE RESPONDENT(S): A respondent may serve and file a memorandum in reply to this application for leave within 30 of the date a file number is assigned in this matter.  You will receive a copy of the letter to the applicant confirming the file number as soon as it is assigned.  If no response is filed within that time, the Registrar will submit this application for leave to appeal to the Court for consideration.



BACKGROUND FACTS:

Dr. Khawar Hanif, a veterinarian regulated by the College of Veterinarians under the Veterinarians Act, was the subject of two complaints of professional misconduct in and around 2006. One complaint pertained to a cat named Cleo. That complaint alleged that he was physically abusive to Cleo and verbally abusive to Cleo's owner.  Dr. Hanif denied these allegations.  The second complaint involved his treatment and diagnosis of a dog named Scully. That complaint alleged that Dr. Hanif misdiagnosed Scully.

The Discipline Committee of the College of Veterinarians of Ontario brought these complaints for adjudication before a Hearing Panel in 2007. That hearing started off with a three member panel which ultimately was reduced to two members on account of one member stepping down on account of concerns of conflict of interest.  By order dated March 2nd, 2010 the hearing pane acquitted Dr. Hanif of the two substantive complaints involving Cleo and Scully following eleven days of hearing.

The College of Veterinarians of Ontario appealed Dr. Hanif's exoneration by the hearing panel to the Divisional Court pursuant to the enabling legislation. By order dated February 28, 2011 the Divisional Court overturned the decisions exonerating Dr. Hanif and remitted the matter back for reconsideration before a new hearing panel.

On the court-ordered rehearing a panel composed of four members which included the chair of the Discipline Committee and the President of the College of Veterinarians heard the case again over the course of sixteen days between February 2012 and February 2013.  After hearing the majority of the case as chair of the hearing panel - the "public member" withdrew from the panel and resigned her public appointment with the College "to pursue a new Federal appointment."

The hearing proceeded with the remaining three panel members over objections by Dr. Hanif that the panel had lost jurisdiction on account of the resignation of the "public member" from the hearing panel.  Under s.28(3) of the Veterinarians Act the chair of the Discipline Committee may appoint members to hearing panels, one of whom is a person whom the Lieutenant Governor in Council has appointed. In this case the person who stepped down was this "public member". She was both the chair of the Discipline Committee and the hearing panel which was originally to adjudicate the case.


The reduced hearing panel released a split decision on liability and penalty.  The majority composed of the President of the College and a veterinarian now found Dr. Hanif liable on both complaints and ordered him to pay $73,000 in costs to the College.  The minority member, himself a veterinarian not only dismissed the complaints against Dr. Hanif but found that the entire proceedings against Dr. Hanif was tainted by bias and that the College was acting contrary to its public mandate in the manner in which they dealt with Dr. Hanif.

Dr. Hanif exercised his right to appeal to the Divisional Court.  The Divisional Court allowed his appeal on the Cleo complaint but upheld the complaint involving Scully the dog.  The Divisional Court then sent the issue of penalty and costs back to the same hearing panel for reconsideration.

Dr. Hanif sought leave to appeal from the Ontario Court of Appeal.  Leave to appeal was denied October 27, 2017.

Commentary and Analysis:

Self governing professions maintain that they act in the public interest.  Their mandate it is said is to protect the public.  When the Lieutenant Governor in Council appoints a public member to sit on a public body it stands to reason that the rationale behind this is to infuse some degree of public input into the discharge of that statutory body's mandate.

When persons so appointed "willy nilly" abandon their adjudicative duties "to take up a new federal appointment"it can not be that the public interest and justice is served by this.

If the appointment of "public members" to administrative tribunals like the College of Veterinarians is merely "window dressing" to appease the public and to make the statutory actors feel good about themselves the SCC ought to give all of us guidance on this important issue. If that is not an issue of public importance then perhaps to issue of when and in what circumstances person appointed to sit on administrative bodies may abandon their adjudicative duties is. Withdrawing from such an appointment during a hearing does little to enhance public confidence in such tribunals and negatively tarnishes the tribunal's appearance of fairness and transparency. 

About the author:

Ernest J. Guiste is Catholic lawyer of African-Canadian racial background based in the Toronto area.  He practice involves both civil and criminal litigation at all levels of courts and  administrative tribunals.  The article is published here solely to draw attention to an issue of public importance, namely, the role of government appointed "public members" to administrative tribunals and the circumstances in which such appointees and others so appointed may withdraw from their adjudicative duties and the consequences for so withdrawing.  If a judge seized with hearing a case can not abandon a case without consequence then why ought a person appointed by the Lieutenant Governor in Council be so entitled ?

Monday, January 1, 2018

Racism and Inequality in Ontario's Legal System Remains a Major Problem in 2018

   The following is a list of significant events in Ontario's history on the subject matter.

- March 29, 1961 Ontario Human Rights Commission(OHRC) established under Conservative government led by The Hon. Leslie M. Frost

- 1988-89 Chief Commissioner of the OHRC's, term of office comes to an end amidst allegations that African-Canadians unfairly being denied career opportunities at the OHRC

- 1993 - NDP government established Commission of Inquiry into Systemic Racism in Ontario's Criminal Justice System. 

- November 1995 - The Commission's 400 page plus report is easily the most comprehensive and authoritative report on the subject matter in the province's history and perhaps anywhere in the world. However, the recommendations and findings of this important report which clearly outlines the significant and troubling inequities faced by African-Canadian(Blacks) in Ontario's criminal justice system have been shelved by subsequent governments.

- 2003 - Court of Appeal renders decision in R  v. Brown 2003 Canli 52142 upholding the acquittal of an African-American motorist whose stop by police was fount to be tainted by a racial animus. The court went on to state: "A racial profiling claim could rarely be proven by direct evidence.  This would involve an admission by a police officer that he or she was influenced by racial stereotypes in the exercise of his or her discretion to stop an motorist.  Accordingly, if racial profiling is to be proven it must be done by inference drawn from circumstantial evidence".

- 2008 - Government of Ontario overhauls human rights complaint process in Ontario divesting the OHRC of its investigatory powers and prosecutorial carriage of complaints to a complainant driven system where the Human Rights Tribunal of Ontario mediates and adjudicates complaints.

- March, 2012 - Government of Ontario appoints high profile human rights lawyer, Mr. Andrew Pinto to review the performance of the new human rights adjudicative process in Ontario.

African-Canadians and other impacted communities did not hold back in voicing their concerns regarding the flaws in the new system as is evidenced in the piece by this writer quoted below.

Excerpts from "African Canadians - Call for Overhaul of "Broken" Human Rights Adjudicative Process (March 17th, 2012 - E.J. Guiste on Law and Justice)

"Margaret Parsons, Executive Director of the African Canadian Legal Clinic, pointed out that race and disability complaints represent the clear majority of complaints to to the Tribunal yet a significant number of these complaints are being summarily dismissed without a hearing on their merits.  Ms. Parson pointed to a number of reasons for this unfortunate reality which included the following;

1.  Inadequate training and expertise of staff at the HRTO Support Centre with race and disability complaints which lead to "knee jerk" conclusions that complaints have no merit thereby leaving many complainants without legal representation;

2.   The Government's decision to dispense with the investigative function formerly carried out by the Ontario Human Rights Commission has resulted in an inordinate number of complaints based on race lacking the evidentiary basis to establish a prima facie case; and

3.   The lack of coverage from Legal Aid Ontario for complainants even though many of the complainants can not afford legal representation.

- November 30th, 2017 OHRC launches public interest inquiry into racial profiling and racial discrimination by the Toronto Police Service".

Observations:

1.  From 1993 to 2017 the OHRC remained silent on racial profiling and the pervasive and troubling problem of Anti-Black racism plaguing all facets of Ontario's public sectors.

   The problem of anti-Black racism in Ontario is so evident and pervasive prompting this writer to write a piece on this blog entitled, "I Have Never Seen An African-Canadian Firefighter in Canada: Impediments to Equality in Recruitment" (March 11th, 2012) The point of the piece being that African-Canadians are shut out of employment and professional opportunities in Ontario on account of their race. The writer being one of two lawyers of African-Canadian descent in the whole history of Ontario to have represented a judicial officer in a judicial misconduct hearing.*  The writer being the only lawyer in the entire British Commonwealth and likely beyond to have been reported for discipline for advocating against bias and procedural irregularities in the complaint and adjudication process.(see JPRC - Re A Complaint Against H.W. Massiah 2015 and Decision on Compensation and Addendum - June, 2015)

2.  The OHRC inquiry comes 24 years after the ground-breaking comprehensive Report of the Commission of Inquiry into Systemic Racism in Ontario's Criminal Justice System and 14 years after the Court of Appeal for Ontario's ruling in R  v.  Brown Canli 52142 acknowledging racial profiling as a violation of a defendant's rights under section 9 of the Canadian Charter of Rights and Freedoms.

3.   Although racial profiling is not restricted to Toronto and the Toronto Police Service the OHRC has elected to restrict its inquiry to the Toronto Police Service.

Commentary:

   Ontario can and must do much better.  Enough said - action is required now.

*If anyone has information to refute this please bring it to my attention and I will correct this statement.

Thursday, December 21, 2017

Flashback: Free Speech and Cause for Dismissal: 2009 Leave to Appeal to the SCC

                                                            Court File No.:   33399


IN THE SUPREME COURT OF CANADA
(Appealed from the Ontario Court of Appeal)


BETWEEN:

JENNIFER JEREMIAH
              Applicant
                                                                                                                                         (Appellant)
and



TORONTO POLICE SERVICES BOARD and  P.C. EVRET ELLIOTT
Respondents
                                                                                                                               (Respondents)



NOTICE OF APPLICATION FOR LEAVE TO APPEAL
(R.40(1) of the Supreme Court Act)


 TAKE NOTICE that the Applicant Ms. Jennifer Jeremiah will apply for leave to this Court pursuant to section 40(1) of the Supreme Court Act, R.S.C. 1985, c-S-26, as amended, E.S. 1985 (3rd) Supp., c.34, for an order granting leave to appeal to the Supreme Court of Canada from the order of the Ontario Court of Appeal dated August 25th, 2009, File No. C44442 dismissing the Applicant’s appeal against the dismissal of an action seeking , amongst other relief, damages under section 24 of the Canadian Charter of Rights and Freedoms before Mr. Justice Riopelle of the Ontario Superior Court
 of Justice at the City of Toronto, in the Province of Ontario.


  TAKE NOTICE that the said application for leave shall be made on the following grounds:

This case is of fundamental importance to all Canadians in that it touches on four issues of paramount importance in our system of justice, namely, freedom of speech, fault-based criminal liability(and s.264.1(1) of the Criminal Code) availability of legal redress against the state for the violation of fundamental rights and access to justice.

In this case – the Applicant – a 47 year of old woman with roughly 17 years of service with her employer was summarily dismissed and charged with one count of uttering a threat to cause serious bodily harm under the Criminal Code of Canada during a meeting with supervisors in which she was resisting management’s efforts to unilaterally change her schedule.  She is alleged to have said, “I have a family and I have told them all about you and if anything should happen to me they will be waiting for you.”

The Respondent police officer who was called to take a report the day following the incident took statements from the immediate supervisor – who is the alleged target of the threat and another manager who was present at the meeting.  He recorded the alleged words noted above in his memo book.  As part of his investigation, he asked the complainant – “what do you think she meant by those words ?”  The complainant replied that – they may wait for me after work and beat me up or come and burn my house down.”  The complainant also wrote a contemporaneous recording of the alleged words spoken along with a statement prepared for her employer’s human resources department.  The Respondent officer did not inquire into and did not receive these versions as part of his investigation. Each version of the complainant’s three statements had a different version of the alleged words spoken.

While conducting pre-trial screening procedures a Crown Attorney wrote the following to the Officer in Charge:

            “Al, this could mean anything. e.g they’re driving
            her to illness & her family might be there to sue the Bay
            & supervisors – So is this a threat to sue them ? In context,
            , wouldn’t a judge have a doubt – How do you know that it
            is a threat to cause bodily harm ? Should this be peace 
            bonded ? ( at most ?)                 

                        After P.C. Elliot took the statement he caused an Occurrence 
                        to be opened on the Police service computer system  P.C.  
                        Herman was ordered to investigate the matter.  He determined 
                        that no offence was committed and he closed the Occurrence.  
                        He called the complainant and advised her of this fact.  
                        P.C. Elliott, who, initiated the Occurrence – had went on leave 
                        following its submission. On his return he proceeded 
                        to arrest and charge the Applicant without checking the police 
                        computer system to see that the matter was closed.
                       
The criminal charge against the Applicant was withdrawn.  However, she lost her employment on account of a release condition prohibiting her from attending at the place of work or communicating with her supervisors. 

Her civil action seeking redress against the police respondents was dismissed on account of the serious and fundamental errors of law made by the trial judge and which errors were hollos bolus accepted by the Court of Appeal for Ontario.

Adding to the gravity of these errors the Court of Appeal for Ontario went on to overturn the trial judges decision not to order costs against the Applicant on account of her impecueunosity and ordered her to pay $40,000 to the police respondents for the trial and $7,500 for the appeal.

                                               
1.         Is an Applicant bringing a Constitutional Question alleging the violation of her right to the equal protection and benefit of the law and free speech foreclosed from a remedy by virtue of the fact that the challenge is not to the legislation per se ?   What guidance can this court provide to the trial courts in adjudicating such applications?

2.         Did the charge of uttering a threat to cause bodily harm under section 264.1(1) under the Criminal Code of Canada violate either the Applicant’s right to free speech or her rights under section 15 of the Charter ?

2a.       With respect to the subject offence under the Code, how does an innocent meaning to alleged words spoken impact on a police officer’s formulation of reasonable and probable grounds ?

2b.       With respect to the subject offence under the Code, how does the absence of any reference to bodily harm impact on a police officer formulation of reasonable and probable grounds ?

3.         In the context of a civil action seeking redress for malicious prosecution, negligent investigation and breach of Charter rights flowing from a charge of uttering a threat to cause bodily harm under the Code – where as here – what was actually said is in dispute not only by the Applicant but on account of other statements or recordings made by the complainant – is it correct law for the trial judge to limit the jury to what the police officer wrote in his memo book ?

4.         Is our current system of costs to the successful party unsuitable for litigation involving claims by citizens against state actors who allegedly violate their fundamental rights ?

4b.       What role ought evidence of impecuniosity play in the adjudication of such costs ?
                      
                                                Dated at Toronto, Ontario this 25th  day of October, 2009
                                                                                                     
            ERNEST J. GUISTE.                                                                

            ERNEST J. GUISTE                                                  
            Trial & Appeal Lawyer                                                                      
            700 Bay Street, Suite 606 (Box 130)                                              
            Toronto, Ontario                                                                                    
            M5G 1Z6                                                                          
            Ernest J. Guiste          
                   
(416) 364-8908
            (416) 364-0973 fax                                                                          
                                                            Counsel for the Applicant

TO:                  BORDEN LADNER GERVAIL LLP
                        Barristers & Solicitors
                        40 King Street West
                        Toronto, Ontario
                        M5H 3Y4

                        Doug Smith and Rebecca Bush
                        (416) 367-6015
                        (416) 361-2725

                        Solicitors for the Police Respondents

  
AND TO:        The Registrar of this Court
  

NOTICE TO THE RESPONDENT(S): A respondent may serve and file a memorandum in reply to this application for leave within 20 clear days after service of the application.  If no reply is filed in that time, the Registrar will submit this application for leave to the Court for consideration pursuant to section 43 of the Supreme Court Act.


*Ernest J. Guiste frequently litigates employment cases where alleged criminal conduct forms the basis for the dismissal.

Wednesday, December 20, 2017

The Investigation Transcripts and Hryciuk Error Not Before the Divisional Court


Excerpt from JP's Appellate 
Counsel's Factum:

3.   While that proceeding was underway, staff in the Whitby courthouse called Presenting Counsel and alleged that similar incidents had occurred, prior to and in the same time frame, while the Applicant was sitting in their court.  Presenting Counsel sent those allegations to the JPRC, and this letter was treated by the JPRC as a new "written complaint".  That "complaint" was investigated by a Complaints Committee, resulting in five volumes of investigation transcripts, which the Panel treated as an "investigators' report."


Excerpt from the 
Hearing Panel's  Decision
on Jurisdiction Motion:

66.   .....The transcripts from the witness interviews conducted in 2012 during the investigation were filed as part of the Record by His Worship.

67.   We further conclude that the Complaints Committee had the authority to consider the new allegations in those transcripts within its mandate under s.11(7) of the Act and pursuant to the ruling in Sazant, (supra), as an extension of the complaint filed by Mr. Hunt.

88.   The law on the process which is to be followed when new allegations arise during a hearing on judicial misconduct is well settled.  The Ontario Court of Appeal determined the law in 1996 in a case involving Judge Hryciuk of the provincial criminal court.

89.   Section 11 of the Act mirrors the legal framework of the Courts of Justice Act which was determined to be mandatory in Hryciuk.  It is this section which governed the actions of Mr. Hunt and the Justices of the Peace Review Council when it received the Hunt Report in November 2011.  As determined above, it received those allegations as a new complaint and established a Complaints Committee to consider them.  His Worship was informed of the new allegations during his first hearing.

91.   When the Complaints Committee completed its investigations and consideration, it invited Justice of the Peace Massiah to respond.  Having been given an opportunity to respond, Justice of the Peace Massiah did so.

Excerpt from JP's Bias Factum:
Erroneous Instruction on 
Hryciuk by Presenting Counsel

23.       At paragraph 24 of their March 13th, 2014 submissions Presenting Counsel 
made the following erroneous legal submission to the Hearing Panel regarding the 
legal holding in Hryciuk  v.  Ontario 31 O.R. (3d) 1 (C.A.):

The case demonstrates the propriety of the Hearing Panel 
(or in that case the inquiry judge)  considering whether the 
Screening process contemplated in the legislative framework
 has been satisfied.  If the statutory scheme was complied with 
- i.e. a person made a written  complaint to the Council; the 
complaint was investigated by a complaints committee; the
complaints committee determined that as a result of its 
investigation that there were allegations of judicial misconduct 
which had a basis in fact which, if believed, could result 
in a finding of judicial misconduct; the particulars of the 
allegations against the respondent which be be the subject of 
the hearing were sout out in a Notice of Hearing; and the complaints
committee had jurisdiction to order those allegations to a hearing – 
then the Hearing Panel can be satisfied that it has the jurisdiction 
to proceed to hearing the evidence in relation to those allegations.  
If His Worship seeks to argue that the complaints process should be 
different (eg his response should be shown to witnesses; or a complaints 
committee should not order a public hearing in circumstances where the 
allegations have a basis in fact, which, if believed, could result in a 
finding of judicial misconduct), then he can pursue his remedy if and when 
he chooses to apply for judicial review of any disposition made by the Hearing Panel.”

JP's Appellate Counsel at ONCA:

"The Divisional Court Decision is inconsistent with decisions of this Court and the CJC
in upholding findings of misconduct and the moving party's removal that were based
on allegations dismissed by the Complaints Committee and at least seven general 
allegations that were never considered or pre-screened by the 
Complaints Committee."

62.   The Divisional Court's ruling undermines this Court's decision 
in Hryciuk and the governing statute by permitting judicial discipline 
bodies to employ broadly drafted Notices of Hearing containing 
particulars that have never been considered by the Complaints Committee.

13.   Paragraphs 17, 61 and 62 of the moving party's factum cite at lease seven
broad allegations that were introduced by Presenting Counsel in the notice of
hearing for the first time after the investigation by the Complaints, and on 
which the 2012 Panel made findings of judicial misconduct.

Commentary and Analysis:

   It is unquestionable that the investigation transcripts are relevant evidence 
in support of some of the JP's strongest legal arguments in support of his 
contention that he was wrongly removed from office.  

   They include the following:  1.  Presenting Counsel's Notice 
of Hearing contained allegations which were not part of any complaint and were 
never investigated by the complaints committee contrary to Hryciuk  v.  Ontario 
and the constitutional principle of judicial independence and in particular the 
security of tenure.  Appellate counsel's submissions on Hryciuk at ONCA appear 
to have been wrongly placed and should have been made before the Divisional Court 
for them to have any value to the JP.   JPRC counsel raised no objection to 
what would clearly have been a new ground of appeal not advanced at Divisional
Court.  

   Some may argue that the JP was dealt with fairly in spite of this and other 
serious irregularities in the proceedings before the Divisional Court.  Clearly, 
such arguments overlook the very serious role that the very appearance of 
fairness, impartiality and integrity play in our administration of justice.  
Yet others may argue for punishment, banishment and censorship of counsel 
for doing that which counsel in our system is sworn to do - defend.  

NOTE:  This piece is published here to draw attention to an issue of public
importance.  The removal of a judicial officer and the various issues raised
in this case are issues of public importance. If anything stated here is 
incorrect please bring it to my attention. 

Sunday, December 17, 2017

JP's Rule 59 Motion and Constitutional Question: An Example of When Finality Not In Public Interest

   By way of order dated October 4th, 2016 the Divisional Court upheld the removal from judicial office of His Worship Massiah finding that the liability and penalty decisions rendered by a Hearing Panel of the Justices of the Peace Review Council were reasonable.

   On or about September 20th, 2017 the former judicial officer filed a motion under Rule 59.06(1) and 59.06(2)(a) in the Divisional Court seeking to "amend", "set aside", "vary" or "suspend" the Divisional Court's order of October 4th,, 2016 upholding the findings of judicial misconduct and the recommendation to the Attorney General for his removal from judicial office and Order in Council 546/2015 dated April 29, 2015.

On December 4, 2017 the former judicial officer filed a Notice of Constitutional Question in the Divisional Court challenging the constitutionality of various sections of the Justices of the Peace Act and their Procedures Document.

   In his Notice of Motion the judicial officer cites the following statutory enactments as sources of jurisdiction for his motion: .6(1) and 10 of the Judicial Review Procedures Act and s.20(d) of the Statutory Power Procedures Act and s.52(1) of the Constitution Act, 1982, including the Constitutional Principle of Judicial Independence.


A Departure From Finality

   Rule 59 of the Rules of Civil Procedures is a clear statutory enactment which provides a litigant with the ability to re-open a case notwithstanding an appeal to an appellate court based on criteria stipulated in the rule and the jurisprudence under both the Rule and otherwise.

   In Mehedi  v.  2057161 Ontario Inc 2014 ONCA 604(Canli) Juriansz J.A. made it clear
that Rule 59 is available to a litigant even though an appeal was determined.  He wrote:

[20]   The rationale of rule 59.06(2)(a) continues to apply even though an appeal has been determined.  An appeal merely concludes there is no reversible error at trial.  The rule allows an order to be set aside or varied, not because of any mistake in the proceedings, but because it has become apparent that the decision was wrong due to fraud or other facts discovered after it was made.

Rule 59

Amending

59.06(1)   An order that contains an error arising from an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate may be amended on a motion in the proceeding.

Setting Aside or Varying

59.06(2)  A party who seeks to,

(a)   have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made;

(b)  suspend the operation of the order...

may make a motion in the proceeding for the relief claimed.


The JP's Argument in Brief:

1.   He has a constitutional right to a fair and impartial hearing of his removal from judicial office which continued when the Divisional Court adjudicated his judicial review application and he was denied this right for the following reasons:

(a)   The Divisional Court's order was based on an admittedly deficient record of proceedings which prevented the court from inquiring into "the qualities that make the decisions reasonable and to inquire into the "existence of justification, transparency and intelligibility within the decision-making process and whether the decisions fall within a range of possible, acceptable outcomes which are defensible in law" as mandated by established and binding legal principles;

(b)   Presenting Counsel exceeded the jurisdiction granted by the JPRC Procedures Document in the execution of her public duty and deprived the Applicant a fair and impartial hearing of the complaint initiated by prior Appointed Presenting Counsel and continued to defend the acts and omissions in this court.

Erroneous Instruction
on Hryciuk by Presenting
Counsel:

(c)   Presenting Counsel provided an incorrect instruction to the Hearing Panel on the interpretation and application of the Human Rights Code, Hryciuk  v.  Ontario and the source of their jurisdiction being her Notice of Hearing as distinct from the complaint under s.11.1(10) of the Justices of the Peace Act - instructions which the Hearing Panel followed and improperly applied in finding that the Applicant committed judicial misconduct and that this misconduct required a recommendation for his removal from office.

Ineffective Assistance
and Divided Loyalty
of Appellate Counsel:

(d)   He was denied his constitutional right to a fair and impartial hearing of the review of the Justices of the Peace Review Council Hearing Panel's decisions on account of the divided loyalty and ineffective assistance of his appellate counsel on the judicial review on, among other grounds, his failure to raise bias, non-compliance with Hryciuk  v. Ontario, erroneous interpretation of the Human Rights Code only to raise Hryciuk  v. Ontario on a leave to appeal in the Ontario Court of Appeal when he failed to raise it at first instance and he failed to raise Presenting Counsel's erroneous instruction to the Hearing Panel on this point.


Commentary and Analysis:

   The proper functioning of the administration of justice requires that litigants must be able to have undivided loyalty from their lawyers.  Where a litigant's loyalty from his or her lawyer is anything but uncompromising it is difficult to argue that this litigant has had a fair and impartial hearing of any legal proceeding - especially one involving the removal of a judicial officer from office.

   In the Notice of Application for Judicial Review filed with the Divisional Court in this matter the judicial officer's appellate counsel clearly and indeed properly asserted that "The Decision, Penalty and Compensation Decision, and all Related Interlocutory Orders should be Quashed". He went further stating, The Order in Council Should be Quashed (bb) the Order in Council is predicated on the decisions in the interlocutory motions, the Decision and the Penalty and should accordingly be quashed as result of the errors of the Hearing Panel". In addition, appellate counsel asserted in the Notice of Application for Judicial Review the following evidence will be used at the hearing of the Application:  (a)  the record of proceedings before the Hearing Panel; (c)  The Investigation Transcripts dated June 2, 2012 to November 1, 2012."

   However, after the JPRC Hearing Panel referred the judicial officer's lead counsel and appellate counsel's referring lawyer to the Law Society of Upper Canada,  appellate counsel abandoned the Hearing Panel's errors on the interlocutory motions and at least according to an affidavit sworn by counsel for the JPRC on August 14th, 2017 entered into an agreement with them  not to file the Investigation Transcripts as part of the record of proceedings in the Divisional Court.  Appellate counsel and all of the parties before the Divisional Court proceeded to file their facta before the issue of the record of proceedings was ever properly resolved contrary to Divisional Court jurisprudence mandating the resolution of the record of proceedings  prior to the filing of facta. (see Sierra Club Canada   v.  Ontario 2011 ONSC 4086 (Div Crt))

   A former member of the original JPRC Hearing Panel who recused herself on account of the JP's concerns of bias used the JPRC Hearing Panel's decision removing him from office as a authority in support of her decision disbarring a lawyer while sitting on a panel of the The Law Society Tribunal where she and appellate counsel for the JP both sit. This was done while the JP's judicial review matter was pending adjudication by the Divisional Court.(see LSUC  v. John Kenneth Venn 2016 ONSLSTH 72 (Canli))  She failed to note in her decision that the judicial officer was seeking review of that decision in Divisional Court.

 NOTE:  This piece is written for the sole purpose of drawing attention to what the writer believes to be an issue of public importance, namely, the removal of a judicial officer from office combined with this issue of the duty of loyalty lawyer's owe their clients in these and indeed all legal proceedings. The writer is counsel to the JP on the Rule 59 motion because he believe him to be the victim of a miscarriage of justice and his duty as a lawyer requires him to vigorously defend his client's cause.

This post deals with a portion of the JP's motion.  The JP's full Notice of Motion and record can be found at the Divisional Court.  The other parties vigorously contest the JP's motion and Notice of Constitutional Question.