Sunday, June 18, 2017

Defending an Allegation of Professional Misconduct ?

   Next to the defence of one's liberty, the defence of one's professional status and reputation is easily the most serious legal proceeding that one could be involved in.  Aside from the obvious potential loss of one's livelihood, professional misconduct proceedings have the added ability to significantly destroy one's years of developing and establishing one's professional reputation and financial security as well as potentially permanently impacting one's physical and mental health.

   Here are a couple important tips you may wish to consider should you be placed in a position where you require counsel to defend against a complaint of professional misconduct from your profession's governing body in Ontario.


1.  Research your lawyer carefully:

   Individual's facing professional misconduct frequently retain their lawyers through word of mouth from others in their profession without any independent research on the lawyer.  In doing so, they may unwittingly deprive themselves of the benefit of counsel on the unique factual circumstances of their situation.

Jurisdictional Irregularities:

   For example, the case may involve irregularities in the complaint or adjudicative process which may deprive the adjudicative body of jurisdiction to adjudicate the complaint.  The failure to raise such an irregularity before the adjudicative body at the outset will typically deprive the professional of the right to raise this fundamental issue on appeal or judicial review. The investigative or adjudicative body may be improperly constituted.  There may be an issue surrounding the sufficiency of the  "complaint" filed with the regulatory body.

Bias and Conflict of Interest:

   Another fundamental issue in the defence of a professional misconduct complaint is bias and conflict of interest involving either the adjudicators or the lawyers with carriage of prosecuting the complaint before the adjudicative body.  In our system of law bias denudes an administrative tribunal or court of jurisdiction.  This means that any decision made by a biased tribunal or court is a nullity. Our law is clear that bias must be raised promptly otherwise the ability to raise it on appeal or judicial review may be lost.

2.   Get a Second and Even
      A Third Opinion:

   If your situation involves either of the two issues noted above, you will want to seek out lawyers who have experience with these types of legal issues.  There is nothing wrong with getting a second opinion.  In fact, getting a second and even a third opinion is not only sensible but it may save you your profession and not to mention a lot of money in the long rune.  If one has a toothache one does not consult a gynecologist.


3.   Be mindful of costs.

   The defence of professional misconduct proceedings in Ontario is very expensive and can easily bankrupt most professionals.  This is because the professional must not only pay for his or her counsel but they must also pay for the governing body's costs associated with prosecuting them should they be found liable.  Just a few weeks ago the College of Physicians and Surgeons of Ontario revoked the liscense of a doctor and ordered him to pay some $300,000 in costs. It is safe to say that the costs of his own lawyer would be slightly lower than that of the governing body.

   It is not uncommon for clients to be forced to defend allegations without counsel once their financial resources run out.  Legal Aid Ontario does not fund these proceedings.  It is vitally important to get a good sense of the ultimate costs associated with the proceedings as early as possible and to negotiate a retainer agreement which will assist in seeing you through the proceedings.

Thursday, June 8, 2017

Problems with gender, racial or sexual harassment at your police service ?

   The right to be free from discrimination and harassment based on the prohibited grounds under the Ontario Human Rights Code provides strong and effective remedies when properly litigated with the help of an experienced human rights lawyer.  The fact that you are a probationary officer is not an impediment.  I secured reinstatement for a dismissed probationary officer under the Code seven years after his dismissal and as a second class constable.

   Employees experiencing these problems often do not receive the full support of their bargaining agents.  If you have questions or concerns in this area, feel free to call me for a consultation.

E.J. Guiste - 416 - 364-8908

Tuesday, June 6, 2017

Another Judge Opts to Retire Following A Judicial Misconduct Complaint

   The Canadian Judicial Council announced yesterday that the Inquiry Committee established to inquire into the conduct of the Honourable F. Newbould permanently stayed its proceedings as a result of the judge's retirement effective June 1st, 2017.  Now retired Justice Newbould was facing a complaint which alleged that he acted improperly by making oral submissions at a public hearing and writing two letters to the City Council with respect to a property dispute which touched cottage lands which his family had owned for over a hundred years.

   Ontario Court of Justice Judge Deborah Livingstone similarly opted to "fully retire" after the writer filed a complaint with the Ontario Judicial Council alleging, among other things, a lack of impartiality in the Re Massiah 2015 proceedings. An article published in The London Free Press on May 31, 2011 entitled "From Justice Deb....to just Deb proclaimed that she was retiring after 21 years as a criminal court judge.  Less than two years prior to her first retirement Justice Livingstone chaired a Hearing Panel of the Justices of the Peace Review Council which recommended the removal from office of His Worship Barroilhet on October 15th, 2009. Following her recommendation for the removal from office of His Worship Massiah in April 2015 and this writer's complaint of judicial misconduct against her, Justice Livingstone opted to "fully retire".

   Complaints of judicial misconduct, like pleadings in an action, are mere allegations until they are proven in a legal proceeding. In the case of both of these judges the fact of their retirement can not equate with findings of misconduct against them.

About the author:

Ernest J. Guiste is a Catholic lawyer who devotes his practice to representing persons
wronged by governmental actors, employers and defending criminal allegations.
His recent defence of H.W. Massiah inspired him to write, A Catholic Lawyer's Prayer,
a plea to the Almighty to protect him from those who may wish to harm him as a result
of his ethical and proper representation of his client.

Wednesday, May 31, 2017

Problems with Gender and Racial Discrimination in Higher Education ?

   The right to be free from discrimination and harassment under the Ontario Human Rights Code applies to colleges and universities in their delivery of services to students. Over the past twenty some years I have successfully acted for students studying law, nursing and graduate students who have found themselves either expelled directly or constructively expelled as a result of gender or racial discrimination at the hands of professors and or school administrators.

   Give me a call and allow me to put my extensive experience to work for you.

E.J. Guiste - Tel. (416) 364-8908 or E mail me - ejguiste@yahoo.com

Albert Einstein: The Negro Question

  The great physicist Albert Einstein wrote and published the following essay in Pageant Magazine in 1946.  His words are as relevant in current day Ontario, Canada as they were in the United States in 1946 when he wrote them. I am taking the liberty to reproduce the entire paper on account of its historical and educational value.

The Negro Question
by
Albert Einstein


I am writing as one who has lived among you in America only a little more than ten years, and I am writing seriously and warningly.  Many readers may ask: "What right has he to speak about things which concern us alone, and which no newcomer should touch ?

I do not think such a standpoint is justified.  One who has grown up in an environment takes much for granted.  On the other hand, one who has come to this country as a mature person may have a keen eye for everything peculiar and characteristic.  I believe he should speak out freely on what he sees and feels, for by so doing he may perhaps prove himself useful.

What soon makes the new arrival devoted to this country is the democratic trait among the people.  I am not thinking here so much of the democratic political constitution of this country, however highly it must be praised.  I am thinking of the relationship between individual people and of the attitude they maintain toward one another.

In the United States everyone feels assured of his worth as an individual.  No none humbles himself another person or class.  Even the great difference in wealth, the superior power of a few, cannot undermine this healthy-self-confidence and natural respect for the dignity of ones's fellow man.

There is, however, a somber point in the social outlook of Americans.  Their sense of equality and human dignity is mainly limited to men of white skins.  Even among these there are prejudices of which I as a Jew am clearly conscious; but they are unimportant in comparison with the attitude of the "Whites" toward their fellow-citizens of darker complexion, particularly toward Negros.  The more I feel an American, the more this situation pains me.  I can escape the feeling of complicity in it only by speaking out.  Many a sincere person will answer: "Our attitude towards Negros is the result of unfavorable experiences which we have had by living side by side with Negros in this country. They are not our equals in intelligence, sense of responsibility, reliability."

I am firmly convinced that whoever believes this suffers from a fatal misconception.  Your ancestors dragged these black people from their homes by force; and in the white man's quest for wealth and an easy life they have been ruthlessly suppressed and exploited, degraded into slavery.  The modern prejudice against Negroes is the result of the desire to maintain this unworthy condition.

The ancient Greeks also had slaves.  They were not Negroes but white men who had been taken captive in war.  There could be no talk of racial differences.  And yet Artistotle, one of the great Greek philosophers, declared slaves inferior beings who were justly subdued and deprived of their liberty.  It is clear that he was enmeshed in a traditional prejudice from which, despite his extraordinary intellect, he could not free himself.  A large part of our attitude toward things is conditioned by opinions and emotions which we unconsciously absorb as children from our environment.  In other words, it is tradition - besides inherited aptitudes and qualities - which makes us what we are.  We but rarely reflect how relatively small as compared with the powerful influence of tradition is the influence of our conscious thought upon our conduct and convictions.  It would be foolish to despise tradition.  But with our growing self-consciousness and increasing intelligence we must begin to control tradition and assume a critical attitude toward it, if human relations are ever to change for the better.  We must try to recognize what in our accepted tradition is damaging to our ate and dignity - and shape our lives accordingly.

I believe that whoever tries to think things through honestly will soon recognize how unworthy and even fatal is the traditional bias against Negroes.

What, however, can the man of good will do to combat this deeply rooted prejudice ?  He must have the courage to set an example by word and deed, and must watch his children become influenced by this racial bias.

I do not believe there is a way in which deeply entrenched evil can be quickly healed.  But until this goal is reached there is no greater satisfaction for a just and well-meaning person than the knowledge that he has devoted his best energies to the service of the good cause. 

Monday, May 29, 2017

The JP's Sworn Evidence on Compensation Re-Hearing Unchallenged and Uncontradicted


Excerpts From
JP's Affidavit Sworn
March 19th, 2017:


2.         I swear this affidavit for three reasons. 

3.         Firstly, the hearing panel on the court ordered rehearing of my claim for compensation has elected to depart from the public hearing format provided by the Procedures Document for the adjudication of claims for compensation and has provided no answer to my requests for guidance on how evidence will be received by them on the rehearing since it was my intention to give viva voce evidence. 

4.         Secondly, both the Divisional Court panel and the 2012 Panel, as the Divisional Court has identified it in its Reasons have made conclusionary and incorrect findings against me on the issue of my compensation claim which I must correct at this time.

5.         Thirdly, as an evidentiary foundation for the motions which the JPRC has publicly acknowledged receipt of.

2012 Panel Did Not
Adjudicate Issue The
JPA Authorized them to:


6.         Although my lawyers and Independent Counsel retained to advise the Hearing Panel 
advised them that it was a “complaint” which they were to adjudicate under the Act they went 
on to adjudicate the particulars in Presenting Counsel’s Notice of Hearing instead contrary to the opinion they received from Independent Counsel in Exhibit 17.

Human Rights Code
Relied upon by
Presenting Counsel:

7.         Because Presenting Counsel’s Notice of Hearing raised issues involving the Human Rights Code I felt compelled to retain additional counsel who was not only versed in Human Rights Law but had skill in the areas of Administrative and Constitutional law.  I therefore retained Mr. Ernest J. Guiste.

8.         Mr. Guiste’s challenged the propriety of the Notice of Hearing drafted by Presenting Counsel and the jurisdiction of the Hearing Panel to hear the matter for want of a “complaint” pursuant to the legislation in a motion brought pursuant to the Procedures Document and which motion was entertained by the Hearing Panel and Presenting Counsel.

9.         The Hearing Panel raised its own jurisdiction question i.e. whether they had the jurisdiction to entertain the motion brought on my behalf.  The Hearing Panel had my counsel provide work for its benefit on its motion.  The Hearing Panel’s own jurisdictional question was not resolved until around July 7th, 2014 causing me to incur significant legal costs not typically incurred in these proceedings.

10.       To compound matters, the Hearing Panel did not adjudicate the question of whether the Hunt Report was a complaint until January 12th, 2015.  Once again, causing me to incur significant legal fees to defend my office.  I am not aware of a similar case in which a judicial officer was required to defend judicial misconduct allegations which were made public before a determination was made as to their legality.

11.       I am in possession of an affidavit sworn by the Registrar and Counsel to the JPRC, Ms. Marilyn King on August 19th, 2016 containing a letter which she deposed she wrote to Mr. Hunt to satisfy the mandatory reporting requirement called for by the Justices of the Peace Act.  Attached to this affidavit and marked as Exhibit A is a true copy of Marilyn King’s sworn affidavit and letter.

12.       Mr. Guiste expressly raised the non-reporting point before the Panel on November 19th, 2013,  again in his Reply submissions on the Hearing Panel’s question on jurisdiction at p.5 and then both Mr. House and Mr. Guiste raised it again in their written submissions on Jurisdiction and this letter was never placed before the Panel. 

13.       I instructed Mr. Guiste to seek a publication ban once I saw the beating that my 
reputation was taking in the local press and the question of the legality of the “complaint” 
against me was unresolved at the time.  I am not aware of any other judicial officer being 
punished for brining(sic) a motion seeking in interim publication ban in the circumstances 
in which I found myself.

14.       I instructed Mr. Guiste to bring a motion asserting a reasonable apprehension of bias for, among other reasons, the fact that the Notice of Hearing issued by Presenting Counsel contained allegations which were not first made to the Review Council and investigated by a Complaints Committee as mandated by the Court of Appeal in Hryciuk  v. Ontario.

15.       I instructed Mr. Guiste to bring a motion seeking particulars and disclosure in advance of the hearing.  My best recollection is that by the time this motion was brought Mr. House was part of my defence team. There was still important outstanding disclosure when the hearing commenced in that Presenting Counsel failed to provide me with contact information for two of the management witnesses I called.  Mr. Guiste somehow tracked them down.

16.       I did not claim legal costs relating to the preliminary motions in the amount of $500,000 and $116,000 for the hearing proper as suggested by Presenting Counsel and determined by the Divisional Court at paragraph 14 of their Decision.   Mr. Guiste was and continues to be my lead counsel.  Although he allowed Mr. House to examine the witnesses, he continued to do all of the fact-gathering, legal research and the bulk of the written submissions.  It is noteworthy that the Bill of Costs was not part of the “record of proceedings” filed by the JPRC at Divisional Court.
           
17.       Following the hearing of evidence and prior to a decision being rendered I instructed my defence team to bring a motion seeking the Hearing Panel’s leave to address inconsistencies in the testimony given by material witnesses before the Hearing Panel and during their investigation interviews and to address two further jurisdiction issues  - 1. The Notice of Hearing states that the Review Council ordered my hearing when it had no such jurisdiction and a copy of an order was never produced and 2. The applicability of Weber  v. Ontario since the staff were unionized and covered by a collective agreement which addressed their concerns.

18.       I incurred further costs of roughly $130,000 to appellate counsel, Raj Anand of Weir & Foulds LLP in pursuing judicial review and leave to appeal of the Panel’s decisions.

19.       I have been without income now for close to two years.

20.       I would not have been able to defend my office but for Mr. Guiste and Mr. House agreeing to defer their fees and disbursements until I am indemnified by the Attorney General in accordance with the practice I came to understand and expect from past practice.

21.       Had it been made clear to me that in accepting the appointment to become a Justice of the Peace that I would be subject to complaints not only from the public but from within the statutory regime established to deal with such complaints itself and that I would have to defend my office at my own cost I would not have accepted the appointment.

Excerpt from Presenting 
Counsel's Submissions
of May 1st, 2017:

16.   In this respect, Presenting Counsel reiterates the submissions made at the initial compensation hearing in respect of Mr. Massiah's litigation conduct.  That conduct includes the episodes enumerated at para 5 of the Addendum.

31.   In an affidavit dated March 19, 2017, Mr Massiah appears to state that he has not acutualy paid his counsel to date.  Rather, his counsel agreed to "defer their fees and disbursements until I am indemnified by the Attorney General in accordance with the practice I came to understand and expect from past practice."

2012 Panel's Position on
Counsel's Conduct on 
November, 19, 2013 a p.49:

MR. GUISTE:  But it's related to the main issue, and I would ask for leave that we address 
it now, get it out of the way and deal with the other issue.  Because when it involves my 
conduct then it calls into question my ability to act fearlessly in the representation of my 
client.  So I think it's important to clarify that.

JUSTICE LIVINGSTONE:   Your conduct isn't an issue with this Panel, Mr. Guiste.  
What is at issue with this Panel, right  now, is what has been raised about Ms. Blight's 
involvement in the subcommittee in relation to a previous different complaint.

2012 Panel Compensation
Decision - Counsel's Conduct:

30.   The conduct of Mr. Massiah's lawyer, Mr. Guiste, is not relevant to this decision.

Presenting Counsel and 
complainant, Mr. Hunt's
Public Statement on the
issue of indemnification:

"Lawyer Doug Hunt, who presented the case against Massiah in his first hearing, said that compensation of legal fees for JP's was "an important issue that obviously needs to be looked at.
The government does not pay the legal costs of citizens who are acquitted, let alone someone who is found guilty", he said.

But, Hunt said it is important JPs have access to resources to defend themselves against allegations brought forward by the government. (see TorStar - Taxpayers billed for guilty justices' legal fees - 
Nov.20, 2014)

NOTE:  This piece is published here because the removal of a judicial officer in the free world and in Ontario is an issue of pubic importance.  The ability of a judicial officer to defend himself or herself against complaints of judicial misconduct is a part of our fundamental justice in Ontario. The right of counsel to defend their client's fearlessly and without threat of censorship and punishment without due process of law is perhaps as fundamental in our law as the right of freedom of expression. It is published in the spirit that Justice Must be Seen to Be Done.












Tuesday, May 23, 2017

Ontario's Two-Tier Justice System Failing Many and Needs Reform

  That Ontario's justice system is facing serious challenges which brings untold daily
suffering  to many in our communities is a reality that demands a head-on non-political
response from our law and policy-makers. From its inception,  Ontario's justice system
has evolved from and remains a two-tier system - one for the powerful and one for the
powerless.  Compelling evidence of this two-tier system is reflected in the recent and
lamentable history in the legal profession to admit women and African-Canadians.
In both cases, our law and policy-makers had to take bold and affirmative legislative
action in order for women and African-Canadians to enjoy the right to practice law in
Ontario.

   It has been more than twenty years since our government received the Report of the
Commission on Systemic Racism in the Ontario Criminal Justice System and the
serious and pervasive inequality suffered by African-Canadians in Ontario's
criminal justice system has increased rather than abated.  What is wrong ?

   Reform of Ontario's human rights adjudication system promised to decrease delay
and bring about a fairer and more efficient system.  In the Ontario's government's
most recent round of consultations with "stake-holders" in the process the African-
Canadian Legal Clinic and others have been consistent in their lament that the
current system continues to fail the needs of complainants - African-Canadian or
otherwise.  What is wrong ?

   The job of fixing Ontario's two-tier justice system may be a challenging one but
it is not impossible.  It starts with political will and compassion.  The late great
former Chief Justice of the Supreme Court of Canada, Mr. Justice Bora Laskin,
once said that "law without compassion is void."  I understand the late
Chief Justice to mean that the essence of law is that we must do onto others as
we would have them do onto us. It means that our application of law ought to
uplift the dignity of all of us rather than score political points while we trample
on the human dignity of our fellow brothers and sisters.

About the writer:

Ernest J. Guiste is a Catholic, African-Canadian rights litigation lawyer whose
practice of law and vision is influenced by the likes of the late Justice Thurgood
Marshall and civil rights lawyer, Charles Houston. Mr. Guiste represents clients
of limited means and others in criminal, human rights, administrative law and
high-handed wrongful dismissals and removal from statutory or public office.