Sunday, March 26, 2017

J.P. Massiah's Submissions on Re-Hearing on Compensation



Justice of the Peace in the
Central East Region


Professional Corporation
Trial & Appellate Advocacy
2 County Court Blvd., Suite 494
Brampton, Ontario
L6W 3W8

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

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

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

Co-counsel for HW Massiah

1.                                 A hearing shall be commenced by a Notice of Hearing
                                    in accordance with this Part.

                                                            Procedures Document s. 6(1)

2.                                 Presenting counsel shall prepare the Notice of Hearing

                                    (1)        The Notice of Hearing shall contain,

                                    (a)        particulars of the allegations against the Respondent.

                                                            Procedures Document s.7

Hearing Issues Defined
by Notice of Hearing
and not the Respondent
or counsel:

3.         The legal issues which were the subject of the within hearing arise directly from the Notice of Hearing(NOH) prepared by Presenting Counsel.  On its face, the NOH raises the following legal issues:

                                    1.         Respondent violated the Ontario Human Rights Code (The Code);
                                    2.         Respondent created a “poisoned work environment”;
                                    3.         Respondents comments were “unwelcomed and vexatious”;
                                    4.         Respondent leered and oogled defendants who appeared
                                                before him in legal proceedings; and
                                    5.         Respondent has a prior record of misconduct and has displayed
                                                a pattern of conduct.

4.         The Hunt Report which the Hearing Panel has found constituted the “complaint in writing” makes no mention of the Code or items 1, 2, 3, and 5 above.

5.                                 The Investigators’ Report is the document submitted to the
                                    Complaints Committee by the investigators, Mr. Lindsay and
                                    Mr. Davis, who were retained on behalf of the Complaints
                                    Committee pursuant to section 8(15) of the Act to asssit in its
                                    investigation.  This Report contained new allegations which
                                    became known to the Complaints Committee as a result of
                                    the witness interviews conducted by the investigators in 2012
                                    during the Committee’s investigation of the Hunt Report
                                                            Decision of Jurisdiction and Abuse of Process
                                                            at para 11

6.         The evidentiary record before the Hearing Panel is crystal clear that the Hunt Report, Investigator’s Report, the Complaints Committee’s letter dated January 2nd, 2013 and the testimony of the 13 witnesses called by the Presenting Counsel did not assert any violation of the Human Rights Code by the Respondent.

                                                                   Hunt Report
                                                Investigators’ Report (five volumes)
                                                Transcripts July 15, 16, 17 and 18th, 2014

Presenting Counsel Improperly
Invoked Sexual Harassment
And Human Rights Code
As Misconduct Ground:

7.         The evidentiary record is crystal clear.  Presenting Counsel in hearing 1 submitted five will-says. None of them used the term sexual harassment, vexatious, unwelcome or poisoned work environment. The five volume investigation transcripts reveal that the terms vexatious, unwelcome, poisoned work environment and conduct in violation or inconsistent with the Human Rights Code is not raised by Mr. Hunt or any witness.

8.         Indeed, Presenting Counsel was crystal clear in their written submissions on Disposition that no evidence was called on paragraphs 1-6.  The Panel was provided no evidence on the very serious and highly prejudicial legal conclusions of vexatious, unwelcome sexual harassment which created a poisoned work environment - which improperly invoked allegations the Panel was invited by Presenting Counsel to make findings of judicial misconduct on.

NOH, Hunt Report and
Investigators’ Report
generated a bona fide
question on jurisdiction
and abuse of process:

9.         Accordingly, notwithstanding the Hearing Panel’s finding that the Hunt Report satisfied the in-writing requirement of the Act the fact that the Complaints Committee discovered new allegations during their investigation of it raised a serious enough legal question that AJPO took an interest in the issue and supported the Respondent and the Hearing Panel properly sought legal advice on the question.  Clearly, it can not reasonably be said that this was a run-of-the-mill case or that the Respondent was required to overlook this irregularity as a pre-condition to support his claim for indemnification from the Attorney General.  This is what PC’s position amounts to. 

Procedure for Adjudication
properly decided by Hearing
Panel and not Respondent:

10.       The hearing commenced on July 4th, 2013.  The Respondent properly served and filed a Motion Record, factum and Book of Authorities in support of his motion.  Presenting Counsel responded in like fashion.  The factums filed by both parties reveal that they were open to the idea of commencing the hearing and allowing for the consideration of the jurisdiction and abuse of the process to be adjudicated at the end of the evidence proper or for allowance to call further evidence in support of the motions.

11.       Presenting Counsel noted in their written submissions that the Hearing Panel could well have decided the two issues it noted in their decision on the motions as stand-alone legal issues in 2013.  Clearly, it was within the purview of the Hearing Panel to do that.

Panel permits expanded

12.       Indeed, after hearing submissions from the parties on the issue the Hearing Panel ordered a blended hearing in June, 2014 and specifically allowed grounds 1, 3, and 6(3) on the motions to be adjudicated on a full evidentiary record.  In addition, the Hearing Panel expanded the grounds at para 76 of their Reasons on the motions, including, among other grounds, (e) memories have faded due to delay.

Foulds Overruled:

13.       The Divisional Court was crystal clear that the initial compensation decision which relied on Re Foulds 2013 was based on a false premise.  As such, the Panel can take great confidence in relying on the following line of cases from the JPRC – all of which endorse the fundamental principle articulated by Justice Otter in Re Romain 2002 that “Costs in the proceeding are not contingent on success.”

                                                Re Blackburn 1994 (Hogan J.)
                                                Re Romain 2002 (Otter J.)
                                                Re Obakata 2003 (Mocha J.)
                                                Re Sinai 2008 (Carr J.)
                                                Re Quon 2012 (Di Filipis J.)
                                                Re Kowarsky 2012 ( Hawke J.)
                                                Re Massiah 2012 (Vailencourt J.)      

14.       If anything legally relevant can be gleaned from Foulds on the issue of compensation it is their citing of one legal authority, namely, Reilly   v.  Alberta, 1999 ABQB 252.  The following is a proper and relevant point of law for the Hearing Panel’s consideration:

"Where the conduct in question related to the judicial function...the state 
should defray the legal fees required for the judge to defend himself or 
herself in order to preserve the independence of the judiciary".

Oogling and leering count
related to judicial function:
15.       Contrary to PC’s submission, based on the authority of Reilly supra this is precisely the type of case in which compensation is proper.  This is an allegation which by its very nature has grave potential to interfere with judicial independence and invites a strong defence. 

            The Hearing Panel must recall the evidence of NN* who said that it was so suttle that members of the public would not notice it and that at the time there was no intention by anyone to move forward with a complaint and in fact she would never bring such a complaint because, “The only time I would consider coming forward to complain about a judicial officer that I’m regularly in front of, is if I can demonstrate objectively by transcripts or something, a pattern of conduct.  An isolated incident, I would never do quite frankly.”
(at p.141 – July 18, 2014)

Quebec Court of Appeal
and Superior Court have
addressed the issue squarely:

16.       Two sound decisions from the Quebec Court of Appeal and the Quebec Superior Court address the issue of indemnification of judicial officers by the Attorney General 

for the cost of defending themselves in judicial misconduct proceedings – as we have here.
17.       [34]      In Hamann, relying, inter alia, on the Supreme Court of Canada decision in Valente   v. The Queen et al [1985] 2 S.C.R. 673, the Quebec Court of Appeal ruled as follows at paragraphs 12-15 of its reasons:

[TRANSLATION] The appellant argues that the Minister of Justice’s refusal to bear the respondent’s counsel fees does not infringe the principle of judicial independence since it does not affect the three essential components of that concept, security of tenure and financial security of the judges and institutional and administrative autonomy.  The Court, like the trial judge, is of the contrary opinion.  The Supreme Court, in Valente  v.  The Queen, clearly states that the rule of security of tenure means:

            “that the judge be removable only for cause, and that cause be subject to
            independent review and determination by a process at which the judge
            affected is afforded a full opportunity to be heard.”

The court is of the opinion that the right to be heard necessarily includes the right to be assisted by counsel.  In the case at bar, it is obvious that dismissal is a possible ultimate punishment for the actions charged against the respondent who, moreover, like any other person, had the benefit of innocence at the time the complaints were laid. The principle of security of tenure is therefore directly at issue in this case, as is the concept of the respondent’s financial security, in his capacity as a judge, since the out-of-court fees he may incur would in all likelihood exceed his income as a part-time municipal judge, a situation that is peculiar to this case.

Incidentally, in this case the Court is also of the opinion that it woud be unreasonable, pursuant to these concepts, that a judge could be obligated to defend himself at his own expense against an unscreened complaint in the nature of the one made by the Club juridique.

[35]      In Fortin, Lemelin J of the Superior Court of Quebec, at paragraph 31-33 of his reasons, expressed full agreement with the Court of Appeal in Hamann:

[TRANSLATION]  Viewed from this standpoint, the once that should be adopted, in the Court’s opinion, the Court sees no valid reason to suppress or reduce the objective constitutional gurantees of Judge Fortin.  He continues to have the right to defend his office without having his judicial independence compromised.  If he had to bear the costs of his defence, there is a risk that he could not do so for financial reasons or that he would choose to resign.  His independence would then have been compromised by the Minister’s refusal to pay the fees of his counsel.

No one should be able easily or conveniently to obtain the dismissal or sanction of a judge.  That is the very essence of the security of tenure of the judge’s position.  For that reason, the judicial system must provide Judge Fortin with reasonable resources to defend his position, not so much in his own interest but in order to avoid infringement of the security of tenure of the position.

                                                Bourbonnais    v.  A.G. Canada 2006 FCA 62
                                                  (Fortin and Hamann as quoted from)

18.       The legal principles articulated by both the Quebec Court of Appeal and the Quebec Superior Court are supported by the Federal Court of Appeal in Bourbonnais in the following words:

                                    There can be no doubt, as the Quebec Court of Appeal and
                                    Superior Court found, that the principle of judicial independence
                                    requires, in the context of a judge’s dismissal proceeding, that
                                    the judge be entitled to the payment of his out-of-court fees he
                                    will have to incur in defending himself.

19.                               “The argument of public policy leads you from sound law,
                                    and is never argued but when all other points fail.

                                                Burrough J. , Richardson  v.  Mellish (18240
                                                2 Bing 252

20.       The following is a list the reasons why PC’s “who should foot the bill test” is neither helpful or persuasive and indeed destructive to judicial independence as we know it:

                        1.         The complaint process is indeed a term and condition of office
                                    in a free and democratic society;

                        2.         Theoretically, a sitting judge or justice of the peace could be
                                    the target of an allegation of leering or oogling at anytime from
                                    anyone appearing before them;

                        3.         Judicial independence is prima facie compromised if the subject
                                    judge or justice of the peace is circumscribed in the manner and
                                    extent of their defence of the complaint;

                        4.         Both the Respondent’s security of tenure and financial security as
                                    a judicial officer were at issue in these proceedings;

                        5.         The Applicant earns roughly $122,000 per year and based on the
                                    costs associated with the first hearing could not reasonably
                                    afford to defend his office without indemnification from the
                                    Attorney General.  He was in fact indemnified by the
                                    Attorney General as the records at tab 10 show.

                        6.         “No one should be able easily or conveniently to obtain the
                                    dismissal or sanction of a judge.  That is the very essence of
                                    the security of tenure of the judge’s position. For that reason,
                                    the judicial system must provide Judge Fortin with reasonable
                                    resources to defend his position, not so much in his own
                                    interest but in order to avoid an infringement of the security
                                    of tenure of the position”. (Fortin  v. Ministre de la justice)

                        7.         Re Foulds was in essence a guilty plea.

                        8.         Re Johnson was in essence a guilty plea.

                        9.         Re Chisvin was in essence a guilty plea.

                        10.       Re Phillips was not a guilty plea but involved a judicial officer who was                                         found after a hearing to have obstructed the investigation of a police
                                    officer in the course of a lawful investigation.

                        11.       Caution must be headed so as not to create the appearance
                                    or suggestion that defending allegations of misconduct is
                                    somehow inconsistent with the public interest and that
                                    administrative frugality trumps the Rule of Law and
                                    judicial independence and security of tenure.

21.       IT IS RESPECTFULLY SUBMITTED THAT for the Hearing Panel to accept Presenting Counsel’s submissions on indemnification for the Respondent in this case and in all of the circumstances of this case is for the Hearing Panel to disregard established legal principles in Canada and England recognizing the practice of the Attorney General (not the public)indemnifying judicial officers for the cost of their defence in judicial misconduct proceedings, to interfere with the Respondent’s right to counsel of his choice and plain and simply unfair and unprecedented.


22.       The Respondent repeats and relies upon his prior statements on this point.  At the end of the day the time spent on the motion was minor in the context of the entire proceedings.

 23.      Lastly, because the JPA and Procedures contain no basis to compel the Attorney General to compensate justices of the peace like J.P. Massiah as does the Courts of Justice Act there is no useful purpose in making an order for an assessment as suggested by the Divisional Court.  At best, the Panel can resort back to the clear established practice of indemnification and the flaws in the legislation can be saved for another day.

March 24th, 2017.

E.J. GUISTE  & J. House, Co-counsel for the Respondent

NOTE:  These submissions were served and filed with the Registrar and Counsel to the Justices of the Peace Review Council on March 24th, 2017 in accordance with her communications of the Panel's order.  They are being published here as a public service.  The JPRC Hearing Panel has elected to depart from the traditional oral hearing mandated by the Act and Procedures for an in-writing only adjudication of the re-hearing ordered by the Divisional Court over J.P. Massiah's objections.  As these are matters of public importance, the people of Ontario have a right to know. 

 * A publication ban prohibits the use of this person's name.

Saturday, March 25, 2017



Justice of the Peace in the
Central East Region


Professional Corporation
Trial & Appellate Advocacy
2 County Court Blvd., Suite 494
Brampton, Ontario
L6W 3W8

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

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

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


A.        J.P. Massiah asserts the following three discrete motions:  1. Re-opening per Chandler  v.  Alta Assoc. of Architects [1989] 2 S.C.R. 848; 2.  Bias; and 3. Disclosure.

B.        J.P. Massiah will make separate submissions on the discrete issue of the re-hearing on compensation as invited by the Hearing Panel.

1.         The following facts invite a re-opening on the decisions rendered on liability and penalty:

1.         The Notice of Hearing states that the hearing in this matter was ordered 
by the Review Counsel and the Justices of the Peace Act (The Act) does not 
vest this body with the authority so to do;

2.         The power to order a hearing is vested in the complaints committee under s.11(15)(c );

3.         s.11(18) requires the complaints committee to report to the Review Council on its decision;

 4.         No Report and no order of the complaints committee has been disclosed to His Worship Massiah or the people of Ontario to date. Transcripts from an investigation without more do not constitute a report;

 5.         J.P. Massiah challenged the Panels jurisdiction on the basis that there was no complaint in writing from a complainant. In their factum dated July 19th, 2013 Presenting Counsel wrote that The detailed report of Mr. Burns served this purpose. In a letter dated January 14th, 2014 Presenting Counsel informed J.P. Massiah in response to a question as to who was the complainant in this case and Presenting Counsel responded that it was the witnesses who would be called to give evidence.  In their Submissions dated July 7th, 2014 Presenting Counsel suggested that  Mr. Hunt put the information obtained from these individuals in writing and delivered it to the Justices of the Peace Review Council on November 2, 2011.
             Presenting Counsel led no evidence in support of  Mr. Hunt or Mr. Burns intention to make a complaint.  Neither Mr. Burns nor Mr. Hunt ever said they were making a complaint about the conduct of J.P. Massiah. Presenting Counsels witnesses were all questioned on this point and they confirmed no intention to complain.

             It is not for J.P. Massiah to establish the requirement of a complaint in writing from a complainant.  In a sworn affidavit dated August 19th, 2016 the Registrar has produced a letter which she deposed was sent to Mr. Hunt as the complainant.  Had this letter been properly disclosed in advance of the hearing J.P. Massiah could have confronted Mr. Hunt directly on factual and legal         requirements of a complaint which Independent Counsel referred to in his opinion to the Hearing Panel. Ex. 17)

6.         The Justices of the Peace Act mandates that the Hearing Panel is to uphold or dismiss the complaint and the Hearing Panel failed to adjudicate this question;

7.         Paragraphs 1-6 and 14 of the Notice of Hearing did not stem from any complaint to the Review Counsel and was not screened or investigated the complaints committee or the persons retained to investigate on their behalf;

8.         Paragraph 14 in particular on the Notice of Hearing expressly relies on bad character and propensity evidence to ground liability contrary to R   v.  Corbett [1988] 1 S.C.R.  670 and Presenting Counsel acknowledged on July 29th,  2014 at page 110 line 4 that the intent was to restrict this
evidence to penalty but the Hearing Panel clearly relied upon this evidence to ground liability, as invited by Presenting Counsel(see Presenting Counsels submissions on liability paragraph 1 and paragraphs 16 and 211 of Decision on Liability) ;                              

9.         The Notice of Hearing in this case asserts claims for acts or conduct in the workplace for which the subject employees have both collective agreements and statutory protections which potentially conflict with the exclusive jurisdiction pronouncement made by the Supreme Court of Canada in Weber  v. Ontario Hydro [1995] 2. S.C.R. 929.  Presenting  Counsels  suggestion that the witnesses are the complainants make this line of authority highly relevant to the question of whether the Hearing Panel had jurisdiction to entertain.

 10.       The findings of liability and penalty cannot stand since the Hearing Panel was not properly constituted on two grounds.  Firstly, the Chair of the Hearing Panel was a part-time judge who required the consent of the Attorney General to sit and therefore lacked the degree of independence and impartiality to provide J.P. Massiah with a fair and impartial hearing as that term is used under the Charter.  Secondly, the Hearing Panel was composed of two temporary members, both judicial members,  when the Chief Justice can only appoint one temporary member pursuant to the Procedures Document. Key disclosure in the form of the Chief Justices appointment letters for Justice Livingstone and H.W. Cuthbertson remains outstanding.

11A.    The finding on liability can not stand because the Hearing Panel failed to apply the law in Ontario on vexatious  unwelcome and poisoned work environment.

11.       The following acts subsequent to the disposition of the complaint against J.P. Massiah raises grave concerns about the fairness of the proceedings and beg for the invocation of a stay of proceedings:

1.         The deficient record of proceedings filed with the Divisional Court:

 2.         Justice Deborah Livingstones use of Twitter to publish and promote 
her Compensation Decision and Addendum by retweeting Michele Mandels article the day after the release of the Hearing Panels decision denuded the panel of any semblance of objectivity, independence and impartiality;

3.         Ms. Margot Blights use of the disposition in Re Massiah as a precedent 
in one of her decisions while sitting as the Chair of a Panel on the Law Society 
Tribunal while Re Massiah was under review by the Divisional Court was 
grossly improper and calls into question the fairness and legitimacy of the dispositions against J.P. Massiah standing alone. When combined with the fact that Ms. Blight and appellate counsel, Mr. Anand have sat together on the said Law Society Tribunal both before and after Re Massiah undermines the fairness and legitimacy of the Hearing Panels on an objective evaluation.
Jurisdiction to Re-Open:
2.         The Supreme Court of Canada was clear in Chandler  v.  Alta Assoc. of Architects [1989] 848 that where a tribunal fails to dispose of a matter before it in a manner mandated by its enabling legislation it is not functus officio, the purported disposition is a nullity and it is therefore entitled to continue the original proceedings to consider disposition of the matter on a proper basis.

                       Chandler  v.  Alta Assoc. of Architects [1989] 2 S.C.R. 848

Justices of the
Peace Act:

3.         s.10.2(3)      

Timely Reporting to Complainant The complaints committee shall 
report in a timely manner to the complainant that it has received the 
complaint and it shall report in a timely manner to the complainant 
on its  disposition of the matter.

3.         s.11(15)          

When its investigation is complete, the complaints committee shall,

(c )   order that a formal hearing into the complaint be held by a hearing panel;


The complaints committee shall report to the Review Council on 
its decision and except where it orders a formal hearing, it shall not 
identify the complainant or the justice of the peace who is the subject of 
the complaint in the report.


When a hearing is ordered under subsection 11(15), the chair of the 
Review Council shall establish a hearing panel from among the members 
of the Review Council to hold a hearing in accordance with this section.     

The council known in English as the Justices of the Peace Review Council and 
in French as Conseil devaluation des juges de paix is Continued, c. 21, Sched. B, s.7.

The functions of the Review Council are:

(a)   to consider applications under section 5.2 for the accommodation of needs;
(b)   to establish complaints committee from among its members to 
review and investigate complaints under section 11;
(b.1)  to approve criteria under subsection 6(5) for granting Approval for 
justices of the peace to continue in Office once they reach 65 years of age;
(c)    to review and approve standards of conduct under under section 13;
(d)     to deal with continuing education plans under section 14; and
(e)     to decide whether a justice of the peace may engage in other remunerative work.                                        


The Review Council may engage persons, including counsel, to assist it and its complaints committees and hearing panels.

Three distinct bodies
and functions:

6.         The process of adjudication of complaints under the Act involves three 
distinct bodies with separate and distinct functions in the process.  The 
Review Council receives complaints under section 10.2(1) and appoints 
a complaints committee to investigate the complaint under section 11(1).  
The complaints committee investigates the complaint under s.11(7) and when 
its investigation is complete shall order that a formal hearing into 
the complaint be held by a hearing panel.

7.         It is clear on a proper reading of the statute that the Review Council has 
no jurisdiction under the Act to order a hearing.

8.         It is clear on the face of the Notice of Hearing that the hearing was ordered by the Review Council and there is no evidence to the contrary.

9.         The Act itself is silent on the concept of a Notice of Hearing.  
The Procedures document speaks to this.               

10.       It is clear that the Notice of Hearing contained serious flaws going to jurisdiction which required adjudication and these issues remain unresolved to the grave prejudice of J.P. Massiah.

11.       In Weber  v.  Ontario Hydro [1995] 2 S.C.R. 929 the Supreme Court of Canada held that where the provisions of a collective agreement purports to regulate the conduct at the heart of a dispute the labour arbitration forum has exclusive jurisdiction to deal with such disputes.

12.       In Giorno  v.  Pappas 1999 Canlii 1161 (ON CA) an employee covered by a collective agreement attempted to sue another employee for allegedly defaming her after she grieved the matter and a settlement of that grievance was arrived at.  The Court of Appeal for Ontario reasoned that As the essential character of the conduct complained of by the plaintiff was covered by the collective agreement, the dispute was one that arose under the collective agreement and had to be resolved in the arbitration process rather than in the courts.  It was irrelevant that the relief was sought against a party or parties other than the employer.

13.       The record reveals that the fact that the subject employees were covered by a collective agreement and a harassment policy which protected them against retaliation for asserting their rights was not disclosed to His Worship Massiah as part of the disclosure obligation in this case but came to light during the hearing itself.  In addition, evidence from the employer of their lack of knowledge with respect to a poisoned work environment only came to light during the hearing itself.


14.       The Applicant seeks leave to have the Hearing Panel entertain and hear the issues raised above in a full public hearing as mandated by the Act or stay the proceedings as an abuse of process.  Proceeding in this manner will be the most efficient use of public resources.          

March 23rd, 2017

All of which is respectfully submitted.

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

NOTE: This factum was filed with the Registrar and Counsel for the JPRC.  It is published here as a community service.  The people of Ontario need to know.  These are public matters.  The JPRC Hearing Panel has decided that the re-hearing ordered by the Divisional Court in this matter will not be done by way of the conventional public hearing where viva voce evidence is received but the hearing would be conducted in writing only.  The removal of a judicial officer is an issue of public importance. Many men and women died to provide us the right to be tried by an impartial tribunal in fair and public proceedings. This is a fundamental right to all in the community.

Sunday, March 19, 2017

Miscarriage of Justice - Definition

In 1927 Viscount Dunedin wrote in Robins:

"....miscarriage of justice....means such departure from the rules which permeate all judicial procedure as to make that which happened not in the proper use of the word judicial procedure at all."

In Fanjoy  v.  R (1985)  Justice McIntyre of Canada's Supreme Court wrote:

"A person charged with the commission of a crime is entitled to a fair trial according to law. Any error which occurs at trial that deprives the accused of that entitlement is a miscarriage of justice.  It is not every error which will result in a miscarriage of justice, the very existence of the provisio to relieve against errors of law which do not cause a miscarriage of justice recognizes that fact."