Sunday, July 20, 2014

MASSIAH - Reply Submissions on Jurisdiction/Abuse of Process


                                                                                                            File No. 05-22-041/1PD2

JUSTICES OF THE PEACE REVIEW COUNCIL

IN THE MATTER OF COMPLAINT(S)
REGARDING HIS WORSHIP ERROL MASSIAH
Justice of the Peace in the
Central East Region

APPLICANTS REPLY TO
PRESENTING COUNSELS SUBMISSIONS
INVITED
BY THE HEARING PANEL
ON JUNE 18TH, 2014

EJ GUISTE
Professional Corporation
Trial & Appellate Advocacy
245 Yorkland Blvd., Suite 302
Toronto, Ontario
M2J 4W9


Ernest J. Guiste
(416) 364-8908
(416) 364-0973 fax

JEFFRY HOUSE
Barrister & Solicitor
31 Prince Arthur Avenue
Toronto, Ontario
M5R 1B2

(416) 707-6271
(416) 960-5456 fax

1.         These very brief submissions address Presenting Counsels written submissions
            to the Hearing Panel dated July 7th, 2014.

2.         Presenting Counsels submission to the effect that none of the grounds advanced by HW Massiah on his motion have any arguable merit fails to appreciate the nature of the inquiry which the Hearing Panel is called upon to adjudicate and is untenable and plainly wrong.


Nature of the Inquiry:

3.         The purpose of the hearing which the Hearing Panel is statutory engaged to adjudicate is governed by s.11.1(1) of the Justices of the Peace Act.  This   provision provides the following:

                                    After completing the hearing, the panel may dismiss the
                                    complaint, with or without a finding that it is unfounded or,
                                    if it upholds the complaint, it may,

                                    (a)  warn the justice of the peace;  etc.


Independent Counsels
Opinion:

4.         Paragraphs 1 through 2b, 3a and 6 have to do with the legality and appropriateness of the investigation undertaken by the Complaints Committee. These issues, whether or not they have substantive merit or evidentiary support, in our view fall within the Hearing Panels jurisdiction to determine whether an abuse of process has occurred, and/or whether this Hearing Panel has before it a lawful complaint to uphold or dismiss.” (at p.3 of Mr. Govers  opinion)

            We therefore conclude, based on this jurisprudence as well, that the Hearing Panel has jurisdiction to consider the specific issue of the sufficiency of the complaint within the meaning of s.10.2, both in assessing whether it has jurisdiction to convene the hearing, or as part of a broader consideration of whether an abuse of process has occurred. (at p.6 of Mr. Govers opinion)
                                         

5.         IT IS RESPECTFULLY SUBMITTED THAT the submission made by Presenting Counsel at paragraphs 2-11 are plainly wrong for the following reasons:

                        1.         Ms. Kashak expressly states in her letter that she is making a                                                                         complaint.  Former Presenting Counsel does not.

                        2.         Even assuming (The Hunt Report) to be the complaint in
                                    writing, 4 of the 5 were dismissed leaving just 1 complaint where                                                                 there were no witnesses.

                        3.         In terms of s.10.2(1) and (2) of the Act the Divisional Court only
                                    addressed the question of who can bring a complaint.

                        4.         On the issue of the investigation, the Divisional Court simply
                                     concluded that it was not a necessity for the complaints
                                    committee to hear from HW Massiah on their investigation.  This
                                    is clearly not in issue here.

                        5.         The issues raised regarding the investigation in this particular
                                    case were not an issue in the Divisional Court Case.  The
                                    Divisional Court ruling surely does not stand for the general
                                    proposition that anything goes in an investigation.

                        6.         It must not be forgotten that the complaints committee is to
                                    investigate the complaint per s.11(1)

                        7.         The import of Presenting Counsels submission on this point is
                                    to lose sight of the fact that the Hearing Panel cannot make
                                    its determination on whether to uphold or dismiss the complaint
                                    without hearing evidence to enable it to determine the question
                                    of both the content of the complaint and the legislative                                                                                 requirements applicable to a complaint within in the meaning
                                    of the JPA, since ultimately it is a complaint which the Hearing
                                    Panel is adjudicating.  (see Mr. Govers opinion at p.5)
                       
Paragraph 3

6.         The argument inherent in this claim is simple and has not been abandoned. 

            If the attempt to bring what are supposed to be fresh complaints against HW Massiah for the purpose of calling into question his fitness as a judicial officer suffers from the serious procedural flaws exposed in his matter to date, the    failure of those supposedly fresh complaints to meet the statutory requirement of a complaint can itself amount to an abuse of process.  The following passage from Mr. Govers opinion to the Hearing Panel is instructive on this point:

                                    The broadest category of abuse of process (and that which                                                                          appears to be implicated by the motion before the HearingPanel)
                                     is that caught by the general principle and cannot be limited to
                                    specific sets of facts: an abuse of process exists where the                                                                           damage to the public interest in the fairness of the administrative
                                    Process should the proceeding go ahead would exceed the harm
                                    to the public interest in the enforcement of the legislation if the
                                    proceedings were halted.  Put another way, an abuse of process
                                    Requires the tribunal to conclude that the proceedings have                                                                           become unfair to the point that they are contrary to the interests
                                    of justice, a situation described as being extremely rare.  Given
                                    that it is fundamentally a flexible doctrine it is impossible to
                                    define with precision what circumstances or conduct within the
                                    course of administrative proceedings can be relevant to finding
                                    an abuse of process. (Mr. Govers opinion at p.3-4)     

            In his opinion to the Hearing Panel on this specific ground in support the abuse of process Mr. Gover wrote the following instructive words:

                                    Paragraph 3 raises a discrete issue with respect to
                                    whether there is any legal consequence to the fact that
                                    the complaints before the Hearing Panel pre-date a
                                    prior proceeding.  The Hearing Panel clearly has jurisdiction 
                                    to make this determination, whether under its jurisdiction to
                                    consider whether an abuse of process has occurred and in
                                    considering the legal sufficiency of the complaint.

            Surely, if none of the current allegations meet the complaint requirement under the Act, this could result in a finding of abuse of process particularly where HW was in the process of complying with the first disposition which he could not fully satisfy because of these proceedings and was on his way to resuming his judicial duties which has effectively been held in limbo for four years.


Paragraph 6(3)

7.         The complaints committees jurisdiction is more than simply to decide whether a matter should proceed to a hearing

            Pursuant to s.11(15) it has the jurisdiction to dismiss the complaint if it is frivolous, an abuse of process or outside the Jurisdiction of the complaints committee.

            The complaints committee has a number of very different remedial routes to consider.  It could not be that they could act arbitrarily in sending a matter to a hearing in all of the circumstances of this case.  It is entirely consistent with the Baker decision for them to have to provide reasons for such a decision.                   

8.         It is very important to note that s.11.1(1) of the Act makes no reference to a Notice of Hearing.  In fact, the Act itself does not refer to this term. IT IS RESPECTFULLY SUBMITTED therefore that question of what is relevant evidence in this hearing is dictated not by the Notice of Hearing but by the complaint.  Accordingly, while the Hearing Panel may hear from various persons on their observations, opinions and experiences those observations, opinions or experiences are not necessarily relevant evidence for the proper  adjudication that the Hearing Panel is called upon to adjudicate under s.11.1(1).

                        Ontario College of Pharmacists   v.  Katzman 2002 Canli 16887 (Ont.C.A.)
                        JPRC letter dated January 2nd, 2013 allegations M-X           
                        Mr. Hunts letter dated November 3, 2011 transmitting it…”             
                    

July 10th, 2014


  
All of which is respectfully submitted.

  
Ernest J. Guiste and Jeffry House, co-counsel for the Applicant, HW Massiah

NOTE:  This document was served and filed with the Justices of the Peace Review Council. It is reproduced here as it touches on issues of public importance, namely, a public inquiry alleging misconduct against a judicial officer. Readers are encouraged to read the Court of Appeal's case Ontario College of Pharmacists
v.  Katzman 2002 Canlii 16887 (Ont.C.A.)  Are the allegations in the Notice of Hearing issued by the Justices of the Peace Review Council properly "complaints" before the Hearing Panel ?

Tuesday, July 1, 2014

Independent Counsel's Legal Opinion on Panel's Question on Jurisdiction


     Last July I became involved in defending His Worship Massiah on a complaint of judicial misconduct which is currently before a Hearing Panel of the Justices of the Peace Review Council(JPRC).  My first order of business was to bring a motion challenging the panel's jurisdiction to entertain on grounds of jurisdiction and abuse of process.  Notwithstanding the fact that the JPRC's own procedures provide for the bringing of such motions the panel raised a preliminary question of law asking whether they had the jurisdiction to entertain the motion I brought.

     Independent counsel was retained to assist the Hearing Panel with this question of law.  The following is the legal opinion the Hearing Panel received.  Ms. Michele Mandel of the Toronto Sun suggested in an article she wrote on April 10th, 2013 that  I was bringing frivolous motions to delay the proceedings.  I think that even she will agree that the hearing could not get started until such time as the Hearing Panel's own question of law was resolved.  I suspect that Ms. Mandel was not aware of this salient fact when she wrote her story.
The legal opinion suggests that the motion I brought was within the jurisdiction of the Hearing Panel to entertain.


May 23, 2014

Sent via E-mail

Ms.Marilyn King
Registrar
Justice of the Peace Review Council
P.O. Box p14,
Adelaide Street Postal Station,
31 Adelaide Street East,
Toronto, Ontario
M5C 2K3

Dear Ms. King:

Re: Hearing Regarding Justice of the Peace Errol Massiah

Please convey this letter to the Panel hearing the above-noted matter (the "Hearing Panel").

As you know, the Hearing Panel has asked us for independent legal advice (in accordance with s. 8(15) of the Justices of the Peace Act) concerning two issues, which arise in the context of a motion brought by Mr.Gusite on behalf of the Justice of the Peace Massiah, and on which the parties have filled written submissions. The question in relation to which the Hearing Panel seeks independent advice on are as follows:
1.      What is the extent of the jurisdiction (if any) of this Hearing Panel of the Justice the Peace Review Council to review and/or grant relief concerning decisions or actions taken by the Complaints Committee?

2.      What is the extent of the jurisdiction (if any) of the Hearing Panel to consider whether there is a valid complaint under s. 10.2 of the Justices of the Peace Act[1] (“JPA” or “Act”), or is the Hearing Panel mandated only to proceed with a hearing once it has been ordered by the Complaints Committee under s. 11(15)(d) of the JPA?
Our advice and opinion may be summarized as follows:
  
1.      The Hearing Panel does not have jurisdiction to "sit in review" of, vary or overturn, decisions of the Complaints Committee, nor to give the Complaints Committee direction or refuse to comply with the Complaints Committee's decision to order a hearing under s. 11(15)(d) of the JPA. However, the Hearing Panel does have jurisdiction to determine questions of law and to grant relief within, and affecting, the current hearing. Such determinations may (and in this instance appear to) require the Panel to consider the steps taken by the Complaints Committee and draw legal conclusions from them, and empower the Panel to grant relief accordingly, including a remedy for abuse of process and Charter remedies under s. 24(1) of the Canadian Charter of Rights and Freedoms.

2.      Yes, the Hearing Panel may consider and determine the question of whether a valid “complaint” exist under s. 10.2 of the JPA as part of its jurisdiction to determine any question of fact or la arsing in the proceedings before it.

In short, the question of whether the Hearing Panel has jurisdiction really turns on the purpose for which it is considering the Complains Committee’s processes. The Hearing Panel cannot take action, which would effectively appropriate powers exclusively within the Complaints Committee’s jurisdiction, but it may be make orders and determinations within the present hearing which require it to consider the Complaints Committee’s processes and how they operated in the present case.

In view of the submissions made by Presenting Counsel (and replied to by Mr. Guiste), we also consider several of the specific grounds asserted in the Amended notice of Application dated February 23, 2014, from the perspective of the Hearing Panel’s jurisdiction.

What follows is an explanation of our opinion and the analysis underlying it, in addition to these specific comments which are set out at the conclusion.

            Analysis

The jurisdiction of the Hearing Panel to “review and/or grant relief concerning decisions or actions taken by the Complains Committee” requires careful consideration of the separate functions of each of the two bodies as established under the JPA. The Complaints Committee, as established in s. 11, performs an investigative function which can (as it has in this case) lead to an order that a formal hearing be held into a complaint made under s. 10.2. Its members are prohibited, by s. 11(4), from then participating in such a hearing. Its investigates are held in private (s. 11(8)). Its core power is to determine, at the conclusion of the investigation, whether to dismiss a complain, invite the justice of the peace to  attend to receive advice, order a formal hearing by a Hearing Panel, or refer the complaint to the Chief Justice, arises under s. 11(15).

The Hearing Panel, by a contrast, is established only a consequence of a Complaints Committee’s decision that a hearing is necessary under s. 11(15)(c). The resulting hearing is an oral, adjudicative hearing governed by the Statutory Powers Procedure Act[2] (“SPPA”)[3], at the conclusion of which the Hearing Panel is entitles to reach the dispositions listed in s. 11.1(10) of the Act. Unsurprisingly, the Panel has no express authority to override, review, or reconsider any of the determinations made by the Complaints Committee nor to exercise any of its powers.

In our view, the structure of the JPA makes it clear that the Hearing Panel cannot “review” a decision or action of the Complaints Committee in the sense of altering or varying that decision. To do so would be to puport to exercise powers granted to the Complaints Committee in s. 11 of the Act, which are clearly separate from the powers granted to the Hearing Panel under s. 11. However, it may in a sense “grant relief concerning” such decisions or actions where those decisions or actions are significant to the exercise of a power of the Panel concerning its won mandate.

In other words, the Panel may not purport to vary, overturn or otherwise modify a decision or action already taken by a Complaints Committee. But it can make orders its own proceedings that include an analysis of a Complaints Committee’s actions or decision, including potentially reaching the conclusion that a Complaints Committee made a decision, or took an action in error. The Hearing Panel’s powers in that regard include the power to consider and decide the specific item you have raised under Question 2: the validity of a “complaint” made under s. 10.2 of the JPA.

We find support for our views from several sources, but the two of greatest significance are: (a)     the statutory author and the jurisprudence governing administrative tribunal remedies for abuses of process; and (b) the jurisprudence surrounding tribunal jurisdiction to determine questions of law.

            Abuse of Process

Section 23 of the S.P.P.A. explicitly grants the Hearing Panel the power to make orders to control abuses of its process. The term “abuse of process” is a wide one with more than one discrete meaning. It can include attempts to improperly re-litigate already-decided issues (e.g., Toronto (City) v. C.U.P.E. Local 79, 2003 SCC 63) but also encompasses a wide variety of “fairness” issues arising in the course of administrative processes. The Supreme Court confirmed the availability of administrative law remedies for abuse of process most definitely focused on the issue of when an inordinate or undue relay in the proceedings becomes unacceptable to the point of becoming an “abuse of process”, emphasizing that such delays must involve significant prejudice to the ability of the individual to receive fair hearing.[4]

The broadest category of abuse of process (and that which appears to be implicated by the motion before the Hearing Panel) is that caught by the general principle and cannot be limited to specific sets of facts: an abuse of process exists where “the damage of the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted” (Blencoe, para. 120, citing Brown & Evans, Judicial Review of Administrative Action, p. 9-68). Put another way, an abuse of process requires the tribunal to conclude that the proceedings have become “unfair to the point that they are contrary to the intersects of justice”, a situation described as being “extremely rare” (Blencoe, para. 120 , citing R. v. Power, [1994] 1 S.C.R. 601). Given that it is fundamentally a “flexible doctrine” (C.U.U.P.E. at para. 37), it is impossible to define with precision what circumstances or conduct within the course of administrative proceedings can be relevant to finding an abuse of process.

The Hearing Panel has explicitly asked us not to express any view on the substance of the motions, which we understand are still being argued, and none of these comments should be taken as an assessment of the substance or the merits of the arguments made or the relevant evidence underlying those arguments. It is open to the Hearing Panel to find that these arguments are well – or poorly-funded, and to conclude that they are legally relevant or irrelevant to the current proceeding. We simply conclude that the nature and character of the issues raised[5] are such that the Hearing Panel has jurisdiction to hear and consider these issues, and evidence and argument to support them, in so far as they relate to the conduct of the Complaints Committee, under its broad authority to consider whether these proceedings against Justice of the Peace Massiah meet the definition of an “abuse of process”.

            Administrative Law Remedies

Another important thread of jurisprudence to consider – particularly with respect to the Panel’s second question concerning its authority to determine the validity of a “complaint” under s. 10.2   of the JPA – emerges from a series of Supreme Court of Canada cases leading with jurisdiction, these decisions shed some light on the more general power of a tribunal to decide “questions of law” arising in proceedings before them. In Martin v. Nova Scotia (Workers Compensation Board), 2003 SCC 54, the Court explained how this power could be located either in explicit statutory language, or implicitly provided for in the governing legislation. As there is no express provision granting the Panel the power to decide all questions of law arising in proceedings before, it, the Court’s guidance on implicit conferral of such power is of greatest significance:

Absent an explicit grant, it becomes necessary to consider whether the legislator intended to confer upon the tribunal implied jurisdiction to decide questions of law arising under the challenged provision. Implied    jurisdiction must be discerned by looking at the statue as a whole. Relevant factors will include the statutory mandate of the tribunal in issue and whether deciding questions of law is necessary to fulfilling this mandate effectively ; the interaction of the tribunal in question with other elements of the administrative system; whether the tribunal is adjudicative in nature; and practical considerations, including the tribunal’s capacity to consider questions of law. Practical considerations, however, cannot override a clear implication from the statue itself, particularly when depriving the tribunal of the power to decide questions of law would impair its capacity to fulfill its intended mandate. As is the case for explicit jurisdiction, if the tribunal is found to have implied jurisdiction to decide questions of law arising under a legislative provision, this power will be presumed to include jurisdiction to determine the constitutional validity of that provision.

Martin, supra para. 41

Here there is no direct challenge to the constitutional validity of any provision of the JPA. Nonetheless, the Court’s explanation of the power to determine questions of law (including statutory interpretation) is significant to considering the Hearing Panel’s jurisdiction here. In our view, the Hearing Panel clearly has the power to determine questions of law provided they arise in the course of the hearing before them, for several of the reasons mention in Martin:

·         The mandate of the tribunal cannot be effectively fulfilled without the power to determine questions of law. The broad subject matter of judicial misconduct implies the probability that questions of law will be raised in the course of considering whether a complaint against a Justice of the Peace ought to be upheld in any given case.
·         This conclusion is bolstered by provisions in the JPA which clearly contemplate the likelihood that the Hearing Panel will make legal determinations,, including the authorization to retain “counsel” to assist it in s. 8(15), and the power to determine the parties to the heating under s. 11.1(8).
·         The Rules of Procedure referred to in s. 11.1(5) specifically contemplate (e.g., at s 18(3)) the determination of questions of law arsing in motions.
·         The Hearing Panel is fundamentally adjudicative in nature, as reflected by the application of the S.P.P.A.
·         As it is composed of a judge, a justice of the peace, and a third person who may (though she need not) be a judge or a lawyer, the Hearing Panel is clearly has the institutional competence to determine questions of law.

It also appears clear to us that there is jurisdiction in the Hearing Panel to consider questions of law specifically arising under s. 10.2 of the JPA not only because of these general factors, but because the hearing Panel’s own governing provision (s. 11.1) repeatedly refers to the subject matter of the hearing as being the “complaint”. This is seen, for example, at ss. 11 11.1(9), (10) and (19). Particularly with respect to s. 11.1(10), the triggering event for the hearing Panel’s jurisdiction to impose specific dispositions is the Hearing Panels view as to whether to uphold the “complaint”. It is therefore necessarily the case that the Hearing Panel must have the power to consider both the content of, and the legislative requirements applicable to, a “complaint” within the meaning of the JPA, since ultimately it is a “complaint” which the Hearing Panel is adjudicating.

We therefore conclude, based on this jurisprudence as well, that the Hearing Panel has jurisdiction to consider the specific issue of the sufficiency of the “complaint” within the meaning of s. 10.2 both in assessing whether it has jurisdiction to convene the hearing, or as part of a broader consideration of whether an “abuse of process1” has occurred.


            Prematurity Jurisprudence under the Regulated Health Professional Act

We would also not the weight of authority of the Divisional Court cases which considered analogous arguments concerning alleged improprieties in the complaints process of the various health colleges established under the Regulated Health Professional Act (“RHPA”), which are referred to in Presenting Counsel’s written submissions as to jurisdiction at paragraphs 10-19. While the RHPA is a different statutory regime, there are similarities in that a similar “complaints committee”[6] exits to oversee an investigation, and a “discipline committee” exists to conduct SPPA -governed oral discipline hearings.

We would agree that the weight of authority is that allegation of impropriety in the complaints process, which might create an abuse of process or similar basis for granting relief, ought to be raised at the hearing stage, in this case before this Hearing Panel, and that any attempt to take such issues directly to the Divisional Court after the Complaints Committee referral to hearing would likely to be regarded as premature and therefore quashed by the Court in the absence of extraordinary circumstances. The reason employed by the Court in the cases referred to by Present Counsel is that such issues ought to be litigated at the administrative level. The implication of these decision for purposes of the Hearing Panel’s questions is simple to confirm the analysis above: the hearing Panel must have jurisdiction to entertain these issues, since it would be premature to advance them before the Divisional Court until the Hearing Panel has dealt with them, as well as with the hearing on the merits.

            Specific Comments on the Grounds Asserted in the Amended Notice of Application

The Amended Notice of Application dated February 23, 2014, asserts eleven grounds for the present motion. Our views flow from the above propositions with respect to the Hearing Panel’s jurisdiction, but it is helpful to comment at least briefly on these specific grounds and we do so in light of Presenting Counsel’s submissions that at least Grounds #4 and #5 are outside the Hearing Panel’s jurisdiction. We note again that these comments should not be taken to express a view as to whether the issues are meritorious or whether, assuming the grounds were all made out, they would or could amount to an abuse of process, but are prepared to assist the Hearing Panel with advice or analysis on that issue should it later deem that assistance appropriate.

Paragraphs 1 through 2b, 3a and 6 have to do with the legality and appropriateness of the investigation undertaken by the Complaints Committee. These issues, whether or not they have substantive merit or evidentiary support, in our view fall within the hearing Panel’s jurisdiction to determine whether an abuse of process has occurred, and/or whether this Hearing Panel has before it a lawful “compliant” to uphold or dismiss.

Paragraph 3 raises a discreet issue with respect to whether there is any legal consequence to the fact that the complaints before the hearing Panel pre-date a prior proceeding. The Hearing Panel clearly has jurisdiction t o make this determination, whether under its jurisdiction to consider whether an abuse of process has occurred and in considering the legal sufficiency of the “compliant”.

Paragraph 4 attacks both the “tone and manner” of t e investigation, and the allegation that the investigation was initiated by the Council’s Registrar for an improper or unlawful purpose. Presenting Counsel submit, at paragraph 7 of their Factum, that this issue is res judicata, moot and not included in the allegations in the Notice of Hearing because this complaint was never referred for hearing. While we believe this impossible view to take, we believe that the more reasonable view of the Hearing Panel’s jurisdiction is that it does have jurisdiction to consider the issues raised by paragraph 4 under its “abuses of process” jurisdiction, and the arguments made by Presenting Counsel are really arguments to be made on the merits. That is, Presenting Counsel’s arguments go to (A) the factual merits of paragraph 4, and (b) the legal impact of these facts, and not to the hearing Panel’s jurisdiction to consider the issue.

Paragraph 5 asserts that the applicant was removed from its judicial duties improperly. Presenting Counsel submit at paragraph 8 of their Factum that this lies outside the Hearing Panel’s jurisdiction because this was a decision made by the Regional Senior Judge that lies outside the realm of the Review Council’s powers and processes. In our Vies, the More reasonable view (from our understanding of any abuse of process argument and it viability or legal force, that they are towards the Hearing Panel’s jurisdiction to entertain the issues as part of its consideration of the motion.

            Conclusion

We hope the above analysis has been helpful and suitably responsive to the Haring Panel’s request. We would be pleased to provide further advice at the Hearing Panel’s request on any aspect of this matter.

Yours truly,





For: Brian Giver
BG/sjb

NOTE:  This piece is written for the sole purpose of bringing to the public's attention an issue of public importance.  The current proceedings involving His Worship Massiah are an issue of public importance because it involves questions touching on fairness, natural justice and most importantly the constitutional doctrine of judicial independence and the Rule of Law.  A free and democratic society works best when the people are aware of all of the facts.





[1] R.S.O. 1990, C J.4
[2] R.S.O. 1990, c. S.22
[3] Other than ss. 4 and 28 thereof, as provided for in s. 11.1(4) of the JPA.

[4] For example, because witnesses have become unavailable, memories have faded, key documents are no longer accessible, or significant psychological harm or stigma has attached to the individual such that the administrative process would be brought into disrepute.
[5] Listed, for example, in paragraph 2 of the Applicant’s Reply Factum Re Jurisdiction.
[6] Referred to in the RHPA as the Inquiries, Complaints and Reports Committee.

Saturday, May 31, 2014

Re His Worship Massiah - Excerpts from April 9th, 2014 Proceedings and Excerpt from Panel's Bias Decison

Mr. Guiste:
(p.148-153 - April 9th, 2014)

     Thank you very much, Justice Livingstone.  I want first to say that I don't take the issue of raising objections lightly.  I've been around the block.  I've represented people not before this particular tribunal, but I have a very sound sense of how to proceed and when to make an objection and when not make an objection.

     And the rationale behind raising some objections, because I do both trials and appellate advocacy, and I know all too well that if you sit in a proceeding and there are irregularities that are going on, and you sit silent, you can be said to acquiesce in those and therefore maybe unable to assert his rights at a later date.  Another lawyer may pick up the file and be representing him and say well, Mr. Guiste didn't raise that issue and they could say he was ineffective.

     So I have a duty and with the greatest of respect, I understand your role, I respect all of you, and I do not want you to have the impression that somehow I am disrespectful of you or that I am discourteous to you.

     I recognize that in order for a legal system to work, there has to be effective communication between the parties, between the presenting counsel and the panel, and the defendant and the panel, and we all play different roles.

     And the impression that I am left with after my friend Mr. Gourlay made his submissions and I tried to interject was that it didn't matter what I had to say, that somehow it was more  important to you hear his full story without hearing my objection.

     That to me demonstrates a sort of -- and I don't want to allege that the panel is at this stage displaying an apprehension of bias, but what I'm concerned about is the channels of communication, the fairness of the process has to be apparent to third parties looking at this, and I can tell you that my feeling is, having sat and listened to him and you received what he had to say, although I tried to make objections that were quashed, leaves me with a sense that I am not getting a fair hearing ?  And we can leave that for another day.

     But I wish to now point out why I was objecting to what he was doing.  You will recall -- in my notes this is what I wrote, improper, my friend is arguing the motion.  The issue was a preliminary issue.  Adequacy of reasons of CC he said, not the role.  Justice of the Peace Massiah knows why a hearing was ordered.  Globally can be explored at a hearing, he told you.  Should go to a hearing.  One second.

     So Mr. Gourlay, it is my submission, wend beyond the ambit of the issue we are dealing with.  Does the panel have jurisdiction to deal with the motion before His Worship ?  That was the question that Justice of the Peace Cuthbertson raised, and we came prepared, I had a written submission and so did my friend, on that issue.

     But my friend clearly went beyond that with the tribunal, the panel encouraging him, notwithstanding my efforts to circumscribe him.

     For example, he said a complaint was received from Mr. Hunt, an investigation was conducted, a decision was made for hearing, His Worship knows why he is here, you should dismiss the motion and proceed to a hearing.   No authority cited for natural justice, fairness, et cetera.  The motion will be supported by evidence, is what I've been trying to tell you.

     This is a preliminary stage on the question do have jurisdiction to entertain it, yes or no, and you might give your reasons.  Should you say yes, evidence is going to be called in support of the motion.  My friend can cross-examine on that evidence and we can have a fair hearing on that issue.

     But what my friend did was he exceeded that.  You allowed him to essentially argue the motion. The he brought up the very inflammatory point about that you have to be mindful of the significant public costs of these proceedings.  That's an irrelevant consideration.

     So because the Ministry of the Attorney General and the Government of Ontario is paying presenting counsel's salary, because they want this to be rammed through and dealt with, done, guilty.  That's not why we're here.

     He said that you have to be mindful of the signficant public costs and insinuated that somehow because I am providing Justice Massiah with a defence fit for a justice and raising each and every issue that I can legitimately raise in his defense, somehow I am not doing my role as a lawyer, somehow I am being incivil.
There has been reference to me being incivil, wasting time, not complying with the rules.

     You will see that the issue that my friend raised about the late filing of the Justice's affidavit, the panel had said the 10th and I indicated in one of my submissions to you that it was difficult because we were doing the judicial review in and around the same time, February 12th, I was in court.

     So, at the end of the day I just wanted to be perfectly clear that Justice Massiah has a right to forcefully advance his position.  I as an advocate, I am the vehicle towards that.  I am fairly mindful of my role to be courteous to the panel and I believe I have been courteous to the panel.

     I apologize if the panel feels or presenting counsel feels that I am bringing too many legal issues, but I see that as my duty and I don't think I have to apologize, but if you feel that I'm giving you too much work, I apologize for that.

     But I think I have a legitimate duty in rising and making objections of this nature.  He clearly went beyond the ambit that we had agreed.  We're talking about rules, that I am not complying with rules.  Well, the reason we were here was on the small issue of does the panel have jurisdiction.  You allowed him to say a complaint was received from Mr. Hunt, an investigation was conducted, a decision was made, His Worship knows why he is here, you should dismiss the motion and proceed to a hearing.

     So, when he does that, he is foreclosing my ability to respond on very important points.  These points, I would submit, had to be calculated to put in his reply rather than in his opening so then I can't say anything.  That's unfair.  That's what I was trying to tell you, Madam Justice.

JUSTICE LIVINGSTONE:

     Thank you, Mr. Guiste, for that speech.  I have heard the speech.  I accept your apology for your comments that have been disrespectful and inappropriate.  In my view there have been some both today and on previous dates.  I object to your position that this panel does not want to hear law and that you're concerned that you are giving us too much law.

Panel's Decision on this issue:

[21]     "The most egregious allegation of apprehension of bias was asserted by the Applicant's counsel against the Chair of the Hearing Panel in the oral submissions on May 28th, 2014.  He referred to the transcript of April 9, 2014.  On that day, in the course of submissions by Mr. Guiste on the issue of the Hearing Pane's jurisdiction, he suggested an apprehension of bias of the panel.  He is invited to briefly explain his concerns (Transcript April 9, 2014, p.147)  He provides a lengthy, broad-ranging explanation (Transcript, April 9, 2014, pp. 148 - 153), which includes the following statement: "I apologize if the panel feels or presenting counsel feels that I am bringing too may legal issues, but I see that as my duty and I don't think I have to apologize, but if you feel that I'm giving you too much work, I apologize for that. (Transcript April 9, 2014, p.152)

[22]     At the conclusion of Mr. Guiste's explanation, the Chair of the Hearing Panel states: "Thank you Mr. Guiste for that speech." (Transcript April 9th, 2014, p.153)

[23]     Mr. Guiste now alleges that the use of the word "speech" by way of a sarcastic comment to him, would cause a reasonable observer to believe that the Chair of the the Hearing Panel was biased - demonstrating disrespect to both His Worship and his counsel and their racial heritage, stereotyping Mr. Guiste as a black man on a soap box.  The Hearing Panel finds such an assertion completely offensive.

NOTE:  This piece is written for the sole purpose of drawing public attention to two issues of public importance.  Firstly, the manner of the initiation and adjudication of complaints of judicial misconduct against justices of the peace in Ontario.  The public must always be concerned about the fairness of this process and the mainstream media does a poor job of bringing these vital issues to the populace.  Secondly, the role of the lawyer in the proper execution of his duty.  Interested persons are invited to obtain a full transcript of the proceedings to date and to follow this very important case. Read the panel's ruling on bias along with the transcripts and the transcript of May 27, 28 and 29th, 2014 when the motion was argued. Readers are
also encouraged to read Michele Mandel's April 10th, 2014 piece in the Toronto Sun entitled Judge Can't Take Judgment.