Friday, January 6, 2017

Ethical Issues In Administrative Law: The Obligation to File the Tribunal's "Record of Proceedings"

 
   The practice of administrative law can pose a hot-bed of ethical issues for both in-house and outside counsel.  One of the areas in which ethical issues may arise is in the preparation and filing of the tribunal's record of proceedings once served with a Notice of Application for Judicial Review of its decision.  What constitutes the "record of proceedings" can have a direct impact on the eventual outcome of the application.  A litigant's case before a court on judicial review can be seriously undermined where a reviewing court is deprived of the proper or complete "record of proceedings."

   For example, in situations where the administrative regime calls for a two stage process where one body performs a pre-screening and investigatory role which may lead to a further oral hearing before a separate body then the record of the first body ought to properly to be part of the record of proceedings on judicial review if there is a challenge to the exercise of that statutory power of decision. Accordingly, the record of proceedings for first stage of the process should reasonably include the following documents:  1. A copy of the complaint required to initiate the process;
2.  a copy of any and all transcripts from the interviews; 3. a copy of any order made by
this body;  4. a copy of any reporting letter to a complainant mandated by the legislation and 5 a copy of Reasons if any.  Where the body is required to notify a complainant on the outcome of their "complaint" the document so notifying the complainant ought to be part of the "record of proceedings" too.  Indeed, the obligation to include these items in the tribunal's Record of Proceedings is heightened when  the tribunal's enabling legislation expressly excludes sections 4 and 28 of the Statutory Powers Procedure Act. These express exceptions call for strict compliance with procedural requirements. Courts have consistently ruled that when a statute grants jurisdiction to a tribunal and provides for a specific manner of procedure the failure to comply renders their decisions a nullity. This is what the Supreme Court of Canada said in Harris  v. Law Society of Alberta [1936] 1 D.L.R. 401 (S.C.C.):

"When a statute confers jurisdiction upon a tribunal of limited authority and statutory origin, the conditions and qualification annexed to the grant must be strictly complied with."

   Assuming the first body orders a hearing and the matters proceeds for an oral hearing before a hearing panel, yet another question arises as to what constitutes the "record of proceedings" before this distinct body.  Most administrative tribunals do not provide a verbatim record of their proceedings.  However, those who either by practice or statute record their proceedings should reasonably include such transcripts in their "record or proceedings". Clearly, all exhibits entered into evidence before the hearing panel should reasonably form part of the "record of proceedings too.

   The law on what constitutes the "record of proceedings" in the context of judicial review proceedings has seen a steady evolution towards expansion. Once upon a time the record was primarily restricted to the tribunal's reasons for decision. In Keepwrite Workers' Independent Union   v.  Keepwrite Products Ltd. (1980) 114 D.L.R. (3d) 162 (ONCA) the Court of Appeal recognized that supplementing the "record of proceedings" by affidavit evidence in order to establish breaches of natural justice and the like which may not otherwise be reflected in the record is permissible. In Siera Club   v.  Ontario, 2011 ONSC 4086 (Div Ct.) the court expanded the scope to include constitutional error.

   Understandably, the Keepwrite Affidavit method of supplementing the "record of proceedings" on judicial review is typically advanced by the moving party of the judicial review application.  It is not an automatic right. The moving party can obtain this relief by way of a motion seeking leave of the reviewing court to supplement the record.

Agreement on the Content
of the Record of Proceedings:

   Where the parties before an administrative tribunal expressly agree and identify documents that will form part of the "record of proceedings" for any subsequent proceeding that may flow from the tribunal's decision with the blessing of the hearing panel then those documents ought reasonably to be part of the "record of proceedings".

Who Prepares and Files
the Record with the Court ?

   Under s.10 of the Judicial Review Procedure Act, R.S.O. 1990 c.J.1 the person making the statutory power of decision "shall forthwith file in the court" the records of proceedings in which the decision was made.  Is this an obligation on the tribunal as distinct from counsel retained to represent the tribunal on judicial review ?

   The answer to this question is not clear but appears to raise a serious ethical issue. For example, the Interpretation Act, R.S.O. 1990 ch I.11 defines person to include "other legal representative". Arguably, this could include counsel acting on behalf of the tribunal.

    Assuming counsel retained to represent a tribunal on judicial review can indeed prepare and file the "record of proceedings" on behalf of its tribunal client does the tribunal risk tainting the objective appearance of fairness of the subject proceedings and possibly the tribunal itself in circumstances where an act or omission taken by the said counsel is the subject of the said judicial review - for example where counsel prepared an originating process or Notice of Hearing which is challenged both before the tribunal and on judicial review ?

   Like virtually all ethical issues in the practice of law the answer is rarely crystal clear.  Counsel so retained can have the most impeccable reputation and the most innocent of intentions. However, that is not the test and issue in these circumstances. The appearance of fairness and impartiality on the part of the tribunal is of fundamental importance. The appearance that counsel may be vigorously defending their actions as distinct from the legality of the tribunal's decision is one which ought to be avoided when ever possible. In cases where the Attorney General has elected to intervene care must be taken by them to carefully evaluate their support or non-support for the tribunal's position.

About the Author:  Ernest J. Guiste is trial and appellate lawyer in Toronto, Ontario. A significant portion of his work involves representing clients before both administrative tribunals and the courts on employment, human rights and professional/judicial discipline matters. He completed part of his Articles of Clerkship with the Ontario Labour Relations Board.  Prior to attending law school, Mr. Guiste worked as an Employment Standards Officer with Ontario's Ministry of Labour and as a Researcher with the Ontario Women's Directorate.  He has written for the McGill Daily, The Afro Canadian, Share and Pride News.  He holds a Bachelor of Arts Degree in Industrial Relations from McGill University and a Bachelor of Laws from the University of Windsor.

 

 

   

Thursday, January 5, 2017

Nordheimer J.'s Dissent in Shaw v. Phipps the Cornerstone of the Divisional Court's Flawed Decision in Peel Law Association

   In Shaw   v.   Phipps 2010 ONSC 3884  a majority of the Divisional Court upheld a decision of the Human Rights Tribunal of Ontario (HRTO) finding that P.C. Michael Shaw had discriminated against Ronald Phipps on the basis of race contrary to s.1 and 9 of the Human Rights Code. This is the case in which Mr. Phipps - a man of African-Canadian background, while delivering mail in his full Canada Post letter carrier uniform was approached for questioning by P.C. Shaw.

  Nordheimer J. penned a strong and forceful dissent proclaiming;

"Where I part company with my colleagues is regarding their conclusion that the Liability Decision meets the standard of reasonableness as we have defined it.  For the following reasons, I have concluded that the Liability Decision does not meet the standard and must be set aside."

[139]   In order to establish a prima facie case of discrimination three elements must be shown. Those elements are:

(i)   that the complainant belongs to one of the groups that are protected by the Code;

(ii)   that the complainant has suffered adverse treatment, and ;

(iii)   that there is some evidence of a nexus between the prohibited ground and the adverse treatment.

[141].....We know that Mr. Phipps is a black man (element #1) and we know that Officer Shaw stopped and questioned him (element #2) but the facts that would form a nexus between those two elements are missing from the Tribunal's reasons.  With respect, they are similarly absent from my colleagues' reasons.

Peel Law Association   v.  Pieters 2012 ONSC 1048

Two years or so later Justice Nordheimer's dissent formed the cornerstone* of the Divisional Court's decision in Peel Law Association   v.  Pieters  2012 ONSC 1048.  In that case the Divisional Court overturned a decision of the Human Rights Tribunal of Ontario's finding that the Peel Law Association discriminated against high profile African-Canadian lawyer, Selwyn Pieters, on the basis of race for singling him out for questioning in their lawyer's lounge at the Peel Court House.  This is what the unanimous Divisional Court wrote in setting aside the decision of the HRTO:

[47]   In summary, the Tribunal erred in determining there was a prima facie case of discrimination.  No evidence was adduced that was capable of supporting the finding of a distinction or differential treatment or that any such treatment was motivated by race or colour.

[48]   Moreover, by failing to require the complainants to satisfy the nexus requirement the Tribunal improperly revered the burden of proof placing an impossible onus on the applicants to disprove discrimination.

Court of Appeal Speaks on "Causal Nexus":

Roughly a year later the Court of Appeal for Ontario corrected the Divisional Court's legal error in Peel Law Association   v.  Pieters  2013 ONCA 396.

[60]   I do not think it acceptable, however, to attach the modifier "causal" to "nexus".  Doing so seems to me to elevate the test beyond what the law requires.  The Divisional Court's requirement of a "causal nexus" or a "causal link" between the adverse treatment and a prohibited ground seems counter to the evolution of human rights jurisprudence, which focuses on the discriminatory effects of conduct, rather than on intention and direct cause.

[61]   I conclude that the Divisional Court erred in law by applying an incorrect and stricter test of discrimination in deciding this case.  This error necessarily affected the Divisional Court's analysis of whether the evidence could reasonably satisfy the test for discrimination.

Commentary and Analysis:

   The requirement of a "causal" "nexus" or a "causal link" as a prerequisite to establishing a prima facie case of discrimination under the Human Rights Code is a defence for those accused of violating the Code.   Justice Nordheimer makes this point clearly in the following passage of his dissent:

[178]   Reaching a conclusion that a person has acted in a racially discriminatory fashion is an extremely serious finding, especially so where the person holds a public office as police officers do. Suspicion about a person's motivations is an insufficient basis to reach such a conclusion. There must be a solid evidentiary foundation for such a finding and the evidence that forms that foundation must be set out with clarity....

[179]   In my view, it would be very difficult for Office Shaw to understand the base of knowledge or experience that was relied upon by the Tribunal to reject his explanations for his actions and even more difficult to understand the basis upon which the Tribunal concluded that his actions were the result of discrimination.  

*The panel does not quote or cite the dissent but the nexus requirement is clearly there. The Court of Appeal notes that it does not know from where the Divisional Court got this test. Readers should review paragraphs 139-142 in Justice Nordheimer's dissent in Shaw supra.










Tuesday, January 3, 2017

Re JPRC Referral of Counsel to LSUC: J.P. Massiah 2015 and Re Hryciuk J. - Deja Vu All Over Again

   Some years ago Justice Hryciuk, a judge of the Provincial Court of Ontario was removed from office following a public hearing into two complaints from two Assistant Crown Attorneys from the Ministry of the Attorney General for Ontario. On appeal this decision was set aside by the Ontario Court of Appeal. The Court of Appeal found that the Inquiry Judge Justice MacFarland exceeded her jurisdiction by entertaining allegations which were not first made to and investigated by the Judicial Council. (see Hryciuk  v.  Ontario (1996) 31 O.R. (3d) 1 (C.A.)

   Close to twenty years later a hearing panel of the Justices of the Peace Review Council (The JPRC Panel) summarily dismissed three preliminary motions(bias, jurisdiction and abuse of process) which I initiated on behalf of my client H.W. Massiah inviting them to quash a Notice of Hearing which relied upon allegations not first made to the JPRC and then investigated by a Complaints Committee contrary to Hryciuk supra.  The JPRC hearing panel went on to recommend removal of my client, non-recommendation for compensation for the cost of his defence and they referred me to the Society in a very public way. The thrust of the JPRC hearing panel's referral to the Society is that I brought "meritless motions" and raised concerns about the "appearance of unfairness" in the proceedings.  The Justices of the Peace Review Council failed to include any of the motion materials I filed on behalf of my client in the "record of proceedings" they were required to file with the Divisional Court once they were served with a notice of application of judicial review.

Duty to Raise Hryciuk: 

   As a lawyer I had a duty to raise Hryciuk and the litany of other binding authorities including Blencoe  v. B.C. Human Rights Commission [2000] 2 S.C.R. 307 and R  v. Skolnick [1982] 2 S.C.R. 47.  Each of these cases were binding legal authorities on the hearing panel.  Blencoe supra and Skolnick supra are not mentioned in any of the hearing panel's decisions.  The reference to Hryciuk supra focusses only on the requirement to hold a new hearing in the event that new allegations come to light during an existing proceeding but fails to consider whether the matters before them were "first made to" to the JPRC and then "investigated by" a complaints committee.

The similarities in Hryciuk supra and Re Massiah 2015 in terms of the jurisdictional objection I properly and dutifully raised on behalf of my client are striking.  Here they are:

The Complaint in Hryciuk:

   In Hryciuk the Inquiry Judge had two items of misconduct before her in the complaint.

The Liability Finding
in Hryciuk:

   Justice McFarland went on to find that Hryicuk J. committed some 5-7 acts of misconduct beyond those articulated in the complaint before her. Those 5-7 extrinsic matters were not "first made to" and investigated by" the Review Council and therefore were not properly before the Inquiry Judge.

Jusitce MacFarland's Reasoning
for going beyond the complaint:

   "It would be wrong to limit the inquiry to a consideration of only the two matters heard by the Judicial Council."

   "It seems to me that one of the purposes of the public inquiry is to open up to the public process, which to that point in time, has remained private. It must be expected that members of the public who may think they had information relevant to the issue before the Commission, would come forward.  It would not, I suggest, be a very satisfactory response, nor in the public interest, to tell such persons that they must first make their complaint to Judicial Council, and then to have, if that body considers it appropriate, a second inquiry. To say nothing of the perception that would be left with the public were such complaints ignored by this Commission and particularly so where one judge is in effect being asked to judge the conduct of a fellow judge.  This is a public inquiry and I feel duty bound to consider all evidence if is is relevant."

The Complaint in Massiah:

   In Massiah the Hearing Panel found the complaint to be a report prepared by high profile lawyer, Mr. Douglas C. Hunt, Q.C..  Ironically, Mr. Hunt was counsel for the complainants in Re Hryciuk. His report contained five will-says from five individuals(court staff ).  There was no suggestion by anyone in the will-says that any of these incidents were vexatious, unwelcome or that they constituted a poisoned work environment or were otherwise contrary to the Human Rights Code. Clearly, Mr. Hunt himself did not make any such allegation. In fact, when asked by the Registrar and Counsel for the JPRC Ms. Marilyn King whether this was a new complaint his answer was not that it was. His answer was that members of the public brought information to his attention and he was sending it in for their consideration.

The Liability Finding
in Massiah 2015:

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

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

The Problem with the Massiah
Finding of Liability per Hryciuk:

1.   H.W. Massiah received notice of the Hunt Report during his first proceeding. Remember, this was five will-says which did not assert any vexatious, unwelcome or poisoned work environment and never mentioned the term sexual harassment or the Human Rights Code;

2.    It is accurate that Massiah received notice of 7, b, c, d, e, f, 8a, b, c, d, 9, 10, 11, 12
and 13 of the Notice of Hearing prior to the hearing.  However, these allegations are contrary to Hryciuk because they were not "first made to" the Review Council but arose from the improper investigation carried out by the Complaints Committee as asserted in the preliminary motions on jurisdiction and abuse of process.

3.   Paragraphs 1-6 and 14 of the Notice of Hearing were never "made to" the Review Council in any form of complaint and "never investigated by" any Complaints Committee. Accordingly, JP Massiah did not receive any notice of these allegations. This is referred to as a breach of natural justice and fairness in administrative law. It is also arguably an abuse of process within the context of a judicial misconduct hearing.

4.   Paragraph 14 of the Notice of Hearing invites liability on propensity or bad character evidence clearly in breach of natural justice, fairness and R   v. Corbett (1988) 41 C.C.C.(3d) 385 (S.C.C.) This too is a breach of natural justice and fairness.  It reads:

"In light of the nature of the conduct set out above in paragraphs 1 to 13, the range of women who were recipients of your conduct, and your history of judicial misconduct of a similar nature at a different courthouse, your conduct demonstrates a pattern of inappropriate conduct toward women in the justice system."

The Hearing Panel's Reasoning for
Going Beyond the Complaint:

[73]   Therefore, the NOH with its particulars, dated July 4, 2013 and filed as Exhibits 1A and 1B, provides our jurisdiction over this hearing. (Decision on Jurisdiction and Alleged Abuses of Process - January 12th, 2015)

At p.50 of the April 9th, 2014 transcript the Chair stated:

"But, as I recall Mr. Gourlay's submissions, it was that once the complaints committee makes its disposition and a hearing is ordered, then our jurisdiction is to conduct a hearing. We don't go behind the order to have a hearing. We are the hearing. "Isn't that what the legislation says ?

Panel Member, Ms. Lenore Foster stated the following:

"But you have never kind of indicated the fairness to people on the other side.  If you deny a complaint being heard or if a complaint is being made by somebody or indicated to somebody else, and this is quashed, I would suggest to you that people would find the same indication of unfairness in a complaint not being heard as you have indicated against His Worship Massiah.---I would suggest to you that the same applies if complaints are disregarded for whatever reason, people would feel that they weren't being investigated properly.  So there would be a perception on the part of the public that there was an unfairness to those people who had perhaps reason to complain."


The Source of 
Complaints in Hryciuk:

   The two proper complaints against Hryciuk came from two Assistant Crown Attorney of the Ministry of the Attorney General for Ontario.  All of the other complaints came from court staff employed by the Ministry of the Attorney General for Ontario.

The Source 
Complaints in Massiah:

   The first Massiah proceedings chaired by the learned and respected Justice Vallencourt came from the Director of Court Operations of the Ministry of the Attorney General for Ontario.  Following that complaint, the Registrar and Counsel, Ms. Marilyn King, brought a complaint alleging that Massiah gave untruthful testimony before the Vallencourt hearing panel. A Complaints Committee dismissed that complaint.  Some two weeks or so following the penalty decision of the Justice Vallencourt hearing panel in April, 2012 the Review Council proceeded to prosecute a complaint said to be filed by Presenting Counsel before the Vallencourt hearing panel, Mr. Douglas Hunt.

The Common Error:

   In both cases the Inquiry Judge and the Hearing Panel expressed concern that there would be a public perception that complaints against a judge or justice of the peace were being ignored and that it was in the public interest to hear everything brought to their attention. In Re Massiah 2015 Panel Member Lenore Foster, seems to express the identical concerns expressed by Justice MacFarland in Re Hryciuk - "a perception on the part of the public that there was an unfairness to those people who had perhaps reason to complain."

   Judge Hryciuk was removed from office not because he demonstrated bias in the execution of his judicial functions but because prosecutors, court staff and others employed in the administration of justice initiated complaints against him contrary to the statutory process established to entertain and adjudicate such complaints determined the Court of Appeal for Ontario led by Justice of Appeal Rosalie Abella.

   JP Massisah was removed from office not because he demonstrated bias in the execution of his judicial functions.  Presenting Counsel, Mr. Douglas Hunt, Q.C. brought a complaint against him and Presenting Counsel in his subsequent hearing unfairly and without notice to him substantially augmented that complaint asserting in a Notice of Hearing, among other things, that his conduct was vexatious, unwelcome, created a poisoned work environment and demonstrated a pattern of conduct.

   The JPRC Panel dismissed JP Massiah's jurisdiction and abuse of process motions which raised among other defects the fact that the Notice of Hearing exceeded the complaint filed against him to the extent that paragraphs 1-6 and 14 on the Notice of Hearing were not "first made to" to the JPRC and then "investigated by" their Complaints Committee as required by the Court of Appeal for Ontario in Hryciuk supra.(see Respondent's Factum July, 2013 - Respondent's Factum on Bias Motion - May, 2014 - neither of which were part of the JPRC "record of proceedings" before the Divisional Court despite both the parties and the panel's direction that they would be)

The Erroneous Hryciuk Instruction
by Presenting Counsel:


   **Presenting Counsel remained silent on the legal point raised on behalf of JP Massiah that paragraphs 1-6 and 14 of their Notice of Hearing exceeded the complaint contrary to Hryciuk. Instead, Presenting Counsel provided what is at a minimum an inadequate instruction to the Hearing Panel on the interpretation and application of Hryciuk supra and at its highest level simply an erroneous interpretation of a binding legal authority in Ontario. No mention is made by Presenting Counsel of the two prerequisites mandated by Hryciuk supra, namely, the allegations must be first "made to" the Review Council and "investigated by" a complaints committee of the Review Council before a judge can be made to answer at a hearing and removed from office. 

   "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 as a result of its investigation that there were allegations of judicial misconduct; the particulars of the allegations against the respondent which would be the subject of the hearing were set out in a Notice of Hearing; and the Complaints Committee had jurisdiction to order those allegations to hearing - then the Hearing Panel can be satisfied that it has jurisdiction to proceed to hear the evidence in relation to those allegations.

**Roughly 98% of the legal submissions and argument before the Hearing Panel were conducted in writing.  A review of those written submissions supports this point and can demonstrate that a common response to virtually every legal argument was that it lacked merit and was merely a delay tactic. Indeed, a careful review of the submissions and the Hearing Panel decisions will reveal that to a substantial degree the decisions mirror Presenting Counsel's submissions with no independent analysis. It must not be forgotten that the jurisdiction and abuse of process motion was initiated in June, 2013 in writing. The Hearing Panel then responded with its own motion raising the question of whether it had jurisdiction to entertain it. The Hearing Panel then retained independent counsel, Mr. Brian Gover and received an opinion from him in May, 2014. The Hearing Panel then invited submissions on that opinion.  The Hearing Panel then awaited the Divisional Court decision on JP Massiah's application there which was released around June 6th, 2014. Once again, the Hearing Panel invited written submissions on the implication of that decision for them. The Hearing Panel did not resolve its issues of jurisdiction until roughly the start of July, 2014. Evidence was heard between July 15 - 30th, 2014.  Again, written submissions were made on the motions, liability, disposition and compensation. None of the motion records, facta and written submissions filed with the Hearing Panel on behalf of JP Massiah were in the "record of proceedings" before the Divisional Court. The only written submissions in the "record of proceedings" were Presenting Counsel's Reply submissions on liability and the written submissions of the Association of Justices of the Peace of Ontario on the jurisdiction and abuse of process motion.

NOTE:  This piece is written for the sole purpose of drawing attention to the issues of public importance raised by the actions of the JPRC hearing panel in publicly referring counsel for a judicial officer to the body responsible for regulating the legal profession in Ontario and declining to recommend compensation of that judicial officer's costs of defending the proceedings before them. When law works for some but not for all that is not only problematic but a matter of public importance which law-makers must address and resolve.


 

 





Monday, January 2, 2017

Re JPRC Referral of Counsel - Applicant's Factum on Bias Motion - Is Counsel Being Censored, Punished ?



Readers will be aware that the Justices of the Peace Review Council Hearing Panel which decided to recommend removal of a judicial officer from office and denied a recommendation for compensation for the cost of defending the allegations against him proceeded to make a very public referral of this writer to the regulating body of lawyers in Ontario.(see Fired JP Loses Bid to Have Taxpayers Pay Legal Fees - Lawyer's Conduct to Be Reviewed by Michel Mandel, Toronto Sun, June 17th, 2015 see also on Twitter, Deborah Livingstone@dresdengirrl - Retweet of "JP Fired Over Lecherous Behaviour Loses Bid to Have Taxpayers Pay $600,000 in Legal Fees - June 17, 2015 @ 6:02 p.m)   

The Hearing Panel stated clearly in its referral addendum and decision that the conduct which concerned them was not relevant and did not impact their decisions including the Compensation Decision - in which they refused to recommend that the Attorney General for Ontario compensate the subject judicial officer for the cost of his defence of the proceedings contrary to the constitutional tradition in Ontario and indeed in Canada generally for so doing. (Toronto Star - "Public Pays Millions for Legal Fees of Federal Judges Under Investigation - Jan.3rd,2015)

Did the Hearing Panel wish to insulate their refusal to recommend compensation for legal costs and the referral to the governing body from judicial scrutiny ?

Panel's Findings on Bills
of Costs and My Representation
In the Case Not Capable of 
Appellate Review:

The Hearing Panel made what I believe to be unfounded allegations that several motions which I initiated on behalf of the subject judicial officer were "without merit" and that my involvement was "limited to handling the preliminary motions" even though the transcripts of all twenty-three attendances in the case show that I was present.  Presenting Counsel had two and sometimes three lawyers present on hearing dates and JP Massiah had two.  

Although the Hearing Panel expressly stated on October 8th, 2014 that all motion materials and facta filed with them would be made part of the "record of proceedings" in the event that there are "any further proceedings involving our decisions" the motion records, facta and the extensive written submissions made by the parties including the Bills of Costs of both Mr. House and myself were not part of the "record of proceedings" before the Divisional Court.

"Cut and Paste" of
Presenting Counsel's
Written Submissions*: 

A reviewing court is therefore unable to judicially review the litany of conclusionary findings made by the hearing panel on the Compensation Decision even if it wanted to. (see R  v. Sheppard [2002] 1 S.C.R. 869   - Neinstein  v. LSUC  2010 ONCA 193 (Canlii)  A reviewing court could and should properly find on the basis of Sheppard (supra) and Neinstein (supra) that the reasons do not lend themselves to appellate review and quash the decision.  There is a real danger that it could also restate and rely upon what ever errors the lower court or tribunal made. That would be an error of law. 

What the hearing panel did in its compensation decision is merely "cut and paste" holus bolus Presenting Counsel's Reply Submissions on Disposition at paragraph 2 and their written submissions on Compensation at paragraph 2.  The following paragraph from their Compensation Decision is the introduction to this "cut and paste":

[24]   We reject Mr. Massiah's assertion that, in relation to numerous pre-hearing motions, his defence was "clearly well-grounded on recognized and viable procedural grounds."  We agree with and reiterate below examples included in Presenting Counsel's submissions which highlight a number of the frivoulous motions brought by Mr. Guiste on behalf of his client. 

(see Cojocaru  v. B.C. Women's Hospital [2013] 2 S.C.R. 357 where the court ruled that "If the incorporaation of the material of others is evidence that would lead a reasonable person to conclude, taking into account all relevant circumstances, that the decision-making process was fundamentally unfair, in the sense that the judge did not put his or her mind to the facts, the argument and the issues, and decide them impartially and independently, the judgment an be set aside."  

Curiously, the Hearing Panel went on to find in its Compensation Decision that everything done by my co-counsel, Mr. Jeff House, who so happens to be a Caucasian man was fine. This was so even though Mr. House was involved in every motion initiated on behalf of the judicial officer except for the publication ban and bias motions. Mr. House was my co-counsel for 13 of the 23 months while the case proceeded.(May, 2014 to June, 2015)  From June 2013 to November 2013 I was co-counsel with another lawyer, Mr. Eugene Bhattacharya, who was not subject to a referral to the governing body of lawyers in Ontario. This lawyer was my co-counsel during the initiation of the jurisdiction and abuse of process motion and the publication ban motion.  Mr. Bhattacharya and his co-counsel, now Justice T. Carey, of the Superior Court of Justice were both paid for their work in defending the same judicial officer notwithstanding a finding of judicial misconduct against him. 

Overlap with Motion 
for Abuse of Process:

The Hearing Panel proceeded to summarily dismiss the Bias Motion proclaiming that it was their view that it is "completely without merit." In dismissing the motion the Hearing Panel clearly declined to consider the question put to them on the obvious fact that the allegations in the Notice of Hearing drafted by Presenting Counsel exceeded anything which could be found by them to constitute the complaint in writing.  This is what they wrote in their own words:

[56]   The Applicant has filed another motion that there was no valid complaint and that there has been an abuse of process ("Motion for Abuse of Process"). The Applicant has inserted some of the grounds raised in that motion in his factum on this motion. A decision from the Panel is pending on its jurisdiction to consider grounds raised in the Motion for Abuse of Process.  It would, therefore, be in appropriate for the Panel to proceed to adjudicate upon grounds raised in the Motion for Abuse of  Process as if that decision were not pending.

[57]   In conclusion, having considered the submissions of counsel, the Panel can find no basis, on any of the grounds asserted by the Applicant, to quash the Notice of Hearing or to recuse itself.

Here is a copy of the factum I filed with the JPRC on the bias motion in May, 2014.  This factum was not before the Divisional Court.  There is no doubt that it raises questions about the fairness of the process which my client was subjected to, including the fact that there was a "lack of commonality"* between the Notice of Hearing and anything that could be found by them to be the complaint in writing and the lack of independence and impartiality in the current office of Presenting Counsel provided for by the JPRC Procedures.  This I understand to be the job of the lawyer and manifestly in the public interest.

* The vast majority of the submissions in this case were made in writing.  None of the written submissions filed on behalf of the judicial officer are in the "record of proceedings". The only written submissions of the parties proper in the "record of proceedings" is Presenting Counsel's Reply Submission on Liability.
                                          
                                             
                                                           
JUSTICE OF THE PEACE REVIEW COUNCIL

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

APPLICANT’S FACTUM

PART- I
ARGUMENT IN BRIEF
1.         The Applicant respectfully requests the Hearing Panel to rule on the following
points of law:

                          (i)         Does the current process of complaint-intake, investigation and
                                       adjudication of judicial misconduct complaints under
                                       the Justices of the Peace Act give rise to a reasonable
                                       apprehension of bias – generally – such that it violates the
                                       constitutional doctrine of judicial independence ?

                          (ii)        If not – Do the particular facts with respect to the
                                       intake, investigation and adjudication of this matter
                                       give rise to a reasonable apprehension of bias ?                     

                          (iii)       Did the Chair of the Review Council have jurisdiction
                                       to replace Ms. Blight from the Hearing Panel and  if
                                       so – does this remedy concerns of reasonable apprehension
                                       of bias ?

                           (iv)       Do the matters raised in the Notice of Motion and supporting
                                        affidavit establish a reasonable apprehension of bias by
                                        the Hearing Panel ?    

                           (v)        Did the Hearing Panel exceed its jurisdiction by
                                        retaining Independent Counsel ?

                            (vi)       If not – did the Hearing Panel display a reasonable
                                         apprehension of bias by virtue of their stated
                                         reason for doing so ?

Facts: Complaint Processing:

2.         The Applicant places reliance on the facts deposed to in his supporting affidavit 
on his jurisdiction and abuse of process motion as well as the facts in his initial motion 
record on that motion and the responding motion record of presenting counsel.

3.         The Justices of the Peace Review Council(Review Council) consists of 13 
individuals and the Chair is the Chief Justice of the Ontario Court of Justice, 
Annemarie E. Bonkalo. Two judges of the Ontario Court of Justice and the Chief 
Justice sit on the Review Counsel making for a total of three judges.

4.         Complaints of judicial misconduct against a justice of the peace go to the 
Review Council.

5.         Upon receipt of a complaint, the Review Council selects 3 members from 
among its members to comprise a complaints committee whose job it is to investigate 
the complaint. The committee must consist of a judge – who shall chair; a justice of 
the peace and a member who is neither a judge or a justice of the  peace.

6.         When its investigation is complete, the complaints committee is authorized 
to make any of the following decisions:
                                                1.         dismiss the complaint if it is frivolous, an abuse of 
                                                            process or outside the jurisdiction of the complaints 
                                                            committee;
                                                2.         invite the justice of the peace to attend before the 
                                                            complaints committee to receive advice concerning 
                                                            the issues in the complaint or sent the justice of the 
                                                            peace a letter of advice concerning the issues raised 
                                                            in the complaint, or both;
                                                3.         order that a formal hearing into the complaint be held by
                                                            a hearing panel; or
                                                4.         refer the complaint to the Chief Justice of the Ontario
                                                            Court of Justice.

7.         The complaints committee must report to the Review Council on its decision 
pursuant to s.11(18)

8.         S.11(19) expands on the complaints committee’s discretion to dismiss a complaint 
at anytime if it is of the opinion that the complaint is frivolous, an abuse of process or
outside the jurisdiction of the complaints committee.

9.         While the complaints committee requested a written response to the allegations 
from the Applicant, this response was not put to any of the witnesses, the Applicant was
not interviewed and the Applicant made no submissions to the complaints committee
on the question of whether the allegations were frivolous, an abuse of process or
outside the jurisdiction of the complaints committee.

10.       Although the Chief Justice had the Applicant attend gender based sensitivity 
training with Ms. Freedman and she prepared a report for the Chief Justice that report 
was not before the complaints committee for their consideration.

11.       The complains committee provided no reasons for its s.11(15) decision ordering
a hearing.                                

12.       The Applicant has been subjected to three separate sets of complaints.  
Accordingly, this would mean that 3 sets of complaints committee and 2 sets of 
Hearing Panels would have dealt with the Applicant to date.  Assuming that there is 
no overlap, this would involve 15 individuals but the Review Council has only 
13 members.  In light of the three sets of complaints committee and two hearing panels 
which the Applicant has experienced, there necessarily must have been some overlap 
among the judges.

13.       Although the Applicant has made reasonable requests for the identify of the
persons who sat on the three sets of complaints committees involving him that 
information has yet to be provided by the Review Council or Presenting Counsel.       

14.       It is known that the following non-judicial officer members have sat on either 
a Hearing Panel or a complaints committee involving the Applicant: Dr. M. Phillips, 
Ms. Margot Blight and Ms. Leonore Foster.

“Presenting Counsel”   

15.       “Presenting Counsel” is the name given to the lawyer retained by the Review
Council to prosecute the case before the Hearing Panel.  According to Presenting 
Counsel’s e mail dated May 15th, 2014:  “The Registrar, in her capacity as the 
Registrar and counsel, has the responsibility of retaining Presenting 
Counsel on behalf of the Review Council as a body.”

16.       It is Presenting Counsel who prepares the Notice of Hearing.

17.       It is clear on the face of the Notice of Hearing that the 14 counts alleged
go beyond the proper ambit of any complaint which could be said to have 
been received  by the Review Council.

Arbitrariness/Bias:

18.       In a letter dated  January 14th, 2014 Presenting Counsel clearly and unequivocally
stated that the “complainants” in this case are the witnesses who are 
expected to testify about the alleged misconduct by His Worship’s 
conduct” in  response to a specific question as to who was the complainant in 
this matter.

19.       On April 9th, 2014 Presenting Counsel made the following submissions to the 
Hearing Panel on the writing requirement and who was the complainant:

                         “So our position in respect of s.10.2 is very simple. There was a
                          complaint, it was by a person and it was in writing, and a
                          complainant is the person who puts the complaint in writing
                          to the Justices of the Peace Review Council, in that case,
                          in this case that was Mr. Hunt.  The people who were late
                          interviewed are the witnesses”

20.       In their factum dated July 19th, 2013 Presenting Counsel made the following
submission to The Hearing Panel on the issue of non-compliance by the complaints 
committee with the requirements of s.10.2(3):

                                                “In any event, even if the Review Council finds that the there
                                                was not technical compliance with the  in-writing requirement
                                                or the direction contemplated under s.10.2(3), Presenting
                                                Counsel submits that any non-compliance is minor and should
                                                not cause result in the loss of jurisdiction.”

21.       In  written submissions to the Hearing Panel dated March 13th, 2014 Presenting
Counsel appears to take a different position:

                                                “While the Hearing Panel takes its jurisdiction from the
                                                Notice of Hearing and does not sit in judgement of the
                                                complaints committee, His Worship’s grievance appears
                                                to amount to an allegation that there was no complaint
                                                in writing received by the Council that meets the
                                                requirements of section 10.2 or the complaint was
                                                prohibited by that section; and that there was an
                                                abuse of process that has undermined the fairness
                                                of the proceedings before the Panel. This is something
                                                that the Hearing Panel has jurisdiction to determine.”

22.       At paragraph 21 of their March 13th,, 2014 submissions to the Hearing Panel
Presenting Counsel made the following submission:

                                                “A true jurisdictional defect in the chain of proceedings
                                                resulting in the hearing would arguable entitle the Panel
                                                to decline to conduct a hearing on the merits....So too
                                                in this case, the Hearing Panel, would arguable be
                                                entitled to find that a jurisdictional defect in the process
                                                leading to the hearing deprived it of jurisdiction or
                                                amounted to an abuse of process.  Section 23 of the
                                                Statutory Powers Procedures Act, which is made applicable
                                                to this hearing by virtue of s.111(4) of the Justices of the
                                                Peace Act, provides:

                                                            23(1)    A tribunal may make such orders or give
                                                            Such directions in proceedings before it as it considers
                                                            proper to prevent abuse of its processes.”
Error in legal submission
to Hearing Panel 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  (sic)be be the subject 
                                                of the hearing were set 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 aruge 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.”

24.       On April 9th, 2014 Presenting Counsel made the following submission of law to
the Hearing Panel on s.11.1(1):

                                                “So this is a mandatory provision.  The hearing is mandatory
                                                when a complaints committee makes that disposition, which
                                                it did in this case.  It does not contemplate any review of how
                                                the complaints committee came to that disposition or whether
                                                it was reasonable and fair in doing so.  It does not give the
                                                Hearing Panel any ability to second-guess the disposition
                                                that was made by the complaints committee.”

25.       Presenting Counsel went on to state the following on April 9th, 2014:

                                                “Now I want to say very clearly that in our view
                                                there is no merit to any of those allegations. There’s
                                                been no evidentiary basis put forward before you
                                                to substantiate any of them, and that the claim of
                                                unfairness and impropriety that have been made so
                                                far entirely are without any foundation.”

            Later at p.43 of the April 9th, 2014 transcript:

                                                “your jurisdiction is part and parcel of the issue you
                                                are being asked to adjudicate because you do not have
                                                jurisdiction to sit in appeal of the complaints committee’s
                                                decision.”       

26.       Then at p. 45:
                                                “So to the extent that my friend is saying that something
                                                that happened here is making it impossible for His Worship
                                                to obtain a fair hearing, we have neither evidence of that,
                                                submissions on how that is possible, and we certainly
                                                have no proof in the form of an actual proceeding ongoing
                                                because we haven’t heard any of the witnesses yet.  Those
                                                are my submissions.”

27.       Then at p.131:

                                                “Let me make a more general comment about my friend’s
                                                submissions.  You have had a glimse of what is to come if
                                                this motion is not construed and adjudicated in a manner
                                                consistent with the limited jurisdiction of this panel...This
                                                will turn into a never-ending inquiry into the investigation
                                                in this matter, into the prior hearing, which is no part of
                                                your mandate, and into the investigation preceding the
                                                prior hearing, if appropriate constraints are not imposed.

Objection not headed:
28.                                           “Well no.  It is your determination but its proper for me to
                                                object and what I’m doing is raising an objection that what
                                                he’s telling you is a scare tactic and has nothing to do with
                                                Proper reply, that somehow you have to do as he suggests,
                                                otherwise all hell is going to break loose, is what I understand
                                                from his submission, and I think that is improper reply.  The
                                                purpose of reply is address specific points that I may have
                                                raised and to bring that up.”

            Justice Livingstone:    Thank you very much.

            Mr. Gourlay:               “...I want to make it very clear to the panel our concern, that
                                                extensive public expenses are being incurred in this hearing,
                                                that presenting counsel is under an obligation to be mindful
                                                Of that and to do our best to limit the hearing to its proper
                                                scope.

Presenting Counsel point
published in Toronto Sun:

29.       Presenting Counsel’s submission about “extensive public expenses are being
incurred” and Massiah’s lawyer must be reigned in or “this will turn into a never-ending 
inquiry.” was captured by Toronto Sun reporter Michele Mandel and published 
on April 10th, 2014.
                
Impact on Panel:

30.       At p. 50 the Chair of the Hearing Panel states:

                                                “But, as I recall Mr. Gourlay’s submissions, it was that once
                                                the complaints committee makes its disposition and a hearing
                                                is ordered, then our jurisdiction simply is to conduct a hearing.
                                                We don go behind the order to have a hearing.  We are the
                                                hearing.

                                                “Isn’t that what the legislation says ?

31.       At p.73:

                                                “Can you show me where in the statute it gives this
                                                Hearing Panel the power to go where you’re asking
                                                us to go ?”

32.       At p. 74:                     

                                                “The problem is what I understand you are asking us to
                                                do is go to what the complaints committee did and
                                                investigate them basically, and as a result of that make
                                                a ruling.”

33.       At p.111:

                                                “So I am struggling with your argument, sir, that it was
                                                inherently incorrect that the complainants in these matters
                                                the witnesses that your are alluding to, may or may not
                                                have been the ones who actually initiated the complaint.
                                                I don’t see the requirement that they had to sir. Could
                                                you assist me please.”  

            At p.117:
                                                “But my point is you were arguing a narrow issue that
                                                none of the complainant submitted the complaints, they
                                                came from another person.  A fairly clear reading, a plain
                                                reading of 10.2 suggests they didn’t have to.”

                                                ....”Any person may make a complaint to the Review Council
                                                about the conduct of a justice of the peace.  Any person, sir,
                                                not the complainant.”

                                                ....”Well, sir, you are disgressing.  Would you address the issue
                                                I have asked, please.  Is there a section in the Act specifically
                                                says the complaint has to come from the complainant ?  You
                                                suggested to me there is other than 10.2 sub(1), which you and I
                                                may have different interpretation of that.”    

34.       Chair of the Hearing Panel orders a 9:30 a.m. start on next attendance
disregarding counsel for His Worship’s reasonable request for accommodation 
on account of his childcare obligations.

Post-Hearing
Decisions:

35.       Following the April 9th, 2014 the Hearing Panel decided to retain independent
counsel, Mr. Gover, and to change the start time to 10 a.m. from 9:30 a.m. in the 
absence of the Applicant and in fact without his knowledge.
                                                                       
36.       In written correspondence dated May 15th, 2014 to His Worship’s counsel
Presenting Counsel delineated the relationship between her office and the Review 
Council in the following words:

                                                “The Registrar, in her capacity as the Registrar and
                                                counsel, has the responsibility of retaining Presenting
                                                Counsel on behalf of the Review Council as a body.”

37.       The Applicant has request a copy of Presenting Counsel’s retainer agreement
with the Review Council but that has yet to be produced.

38.       At the April 9th, 2014 hearing either Presenting Counsel or the Registrar provided
counsel for His Worship with a copy of a document entitled “Justices of the Peace 
Review Council Procedures Document” – Revised January 24th, 2014.  This document 
contains a new Provision which reads:  “The Justices of the Peace Review 
Council has no jurisdiction to allow the withdrawal of a complaint.”

                                               
                                                            PART II - THE LAW:
Reasonable Apprehension
of Bias Test:

38.                                           “In the words of the Court of Appeal, that test is
                                                “what would an informed person, viewing the
                                                matter realistically and practically – and having
                                                thought the matter through – conclude. Would he
                                                think it more likely than not that Mr. Crowe, 
                                                whether consciously or unconsciously, would not 
                                                decide fairly.”

               Comm.For Justice   v.  Nat Energy Board [1978] 1 S.C.R. 370

39.       The duty of fairness applies to all administrative bodies.  
Administrative bodies that are primarily adjudicative in their functions will be 
expected to comply with the standard applicable to courts; there must be no 
reasonable apprehension of bias with regard to their decision. 

               Nfld. Telephone   v.  Nfld Public Utilities [1992] 1 S.C.R. 626

40.       A denial of a right to a fair hearing cannot be cured by the tribunal’s 
subsequent decision.  A decision of a tribunal which denied the parties of a fair 
hearing cannot be simply voidable and rendered valid as a result of the 
subsequent decision of the tribunal.  The damage created by the apprehension 
of bias can not be remedied.  The hearing, and any subsequent order resulting 
from it, must be void.

                                                As above

41.       The law pertaining to apprehension of bias in the context of a hearing 
panel where one member of the panel has been found or acknowledged 
to raise an issue of bias was addressed by the Divisional Court in Roberts  
v.  College of Nurses of Ontario 1999 Canlii 18725.  Mullan’s Administrative 
Law is quoted in the following words:

                            “A reasonable apprehension of bias in one member of a tribunal
                            is sufficient to disqualify the whole tribunal, even thought that
                            member merely sat at the hearing without taking an active
                            role in either it or subsequent deliberations.  Mere presence
                            is generally enough.”
                                   
Right to Retain
Independent Counsel:

42.       A clear reading of s.8(15) stipulates that only the Review Council can 
retain counsel for its complaints committees and hearing panels.

43.       Under the “Procedures Document” the role of legal counsel engaged 
under this Part shall not be to seek a particular order against a respondent, 
but to see that the complaint against the Justice of the peace is evaluated fairly 
and dispassionately to the end of achieving a just result.

                                                            JPRC PROCEDURES..

44.       It is a principle of fundamental justice and fairness that no one will judge his own cause.

                                                MacBain   v.  CHRC [1985] F.C.J. No. 907

45.       The enabling legislation and procedures raises a reasonable 
apprehension of bias by virtue of the following:

                       1.         Review Council receives complaints
                       2.         Review Council passes them off to its subset complaints 
                                   committee
                       3.         Complaints committee is supposed to investigate but 
                                   here it delegated to a hired third party
                       4.         Chief Justice had the applicant take a 9 hour
                                   Gender Sensitivity & Professional Boundaries
                                   course but did not disclose this to the complains
                                   committee;
                       5.         Ms. Blight stepped down on account of concerns
                                    with a reasonable apprehension of bias;
                       6.         Chief Justice replaced her;
                       7.         Review Council retained Presenting Counsel;
                       8.         Review Council appears to amend its Procedures to
                                   suit itself and without fair notice;

46.       Alternatively, the multitude of issues raised in the NOA and the 
transcripts support a finding of a reasonable apprehension of bias in 
accordance with the established legal principles.                                  
                       
PART IV - ORDER REQUESTED

           47.        The Applicant requesting an order quashing the Notice of Hearing on 
account of a loss of jurisdiction or reasonable apprehension of bias or in the 
alternative an order that the entire panel recuse itself.
                                                                                 

                                                                        ALL OF WHICH IS RESPECTFULLY SUBMITTED.
May 16th, 2014



                                                                        E. J. Guiste, Co-counsel for the Applicant

NOTE: This piece is published to draw attention to an issue of public importance. A motion asserting a reasonable apprehension of bias in any legal proceeding is a very important and fundamental right in our system of law. This is especially the case in a judicial misconduct proceeding where at the outset a pattern and history of misconduct is improperly alleged in a Notice of Hearing. When a hearing panel takes the unusual step to make a public referral of misconduct against one of two of the subject judicial officers lawyers contrary to the referral policy of the governing body for lawyers in the province - the one of African-Canadian racial background and the one who initiated a motion raising a reasonable apprehension of bias - then questions of public importance arise.  Those issues are compounded when, as here, the "record of proceedings" filed on behalf of the tribunal with the reviewing court is deficient for what ever reason - even if inadvertent.

This JPRC referral raises discrete and serious questions opublic importance.  

Is Ernest J. Guiste being censored and punished for merely doing his job as a lawyer ?

Assume for the purpose of argument that I was involved in defending a man of murder.
The trial judge disregarded 16 legal authorities or more which I brought to his or her attention - including 3 from the Supreme Court of Canada and 2 from the Court of Appeal, denied my client of a right to reply to a significant point calling for a reply and stated to me after agreeing to entertain a motion I was bringing that it was a "pyrhic victory", ruled me in contempt for seeking leave to bring a motion for directions on behalf of my client, and then publicly referred me to the Society, could my treatment by the trial judge be reasonably divorced from my client's conviction by the trial judge in all of the circumstances ? I raise these questions not to suggest that I have the answer to them but simply to highlight the highly significant interests which are involved in issues of this nature. 

Regrettably, history show us that miscarriages of justice and wrongful convictions do not happen by accident.